State v. Brito

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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 33,827 5 DAVID BRITO, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Benjamin Chavez, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 13 14 15 16 Law Offices of the Public Defender Jorge A. Alvarado, Chief Public Defender Santa Fe, NM Josephine H. Ford, Assistant Appellate Defender Albuquerque, NM 17 for Appellant 18 19 SUTIN, Judge. MEMORANDUM OPINION 1 {1} Defendant appeals his conviction for aggravated DWI (refusal, first offense) 2 entered by the metropolitan court following a bench trial and subsequently affirmed 3 by the district court following an on-record review. [RP 140] Our notice of proposed 4 summary disposition proposed to affirm, and Defendant filed a memorandum in 5 opposition. We remain unpersuaded by Defendant’s arguments and therefore affirm. 6 {2} Defendant continues to argue that the metropolitan court erred in admitting 7 Sergeant Barraza’s testimony about Defendant’s performance on the standardized 8 field sobriety tests (SFSTs) on the asserted basis that the Sergeant had no independent 9 recollection of Defendant’s performance outside of his police report. [DS 24; MIO 10 12-14] As set forth in our notice, case law provides that a witness may properly 11 testify when the witness has stated his or her memory is refreshed and the witness can 12 testify, independent of the writing, from present recollection. See State v. Orona, 13 1979-NMSC-011, ¶ 23, 92 N.M. 450, 589 P.2d 1041; see also State v. Macias, 200914 NMSC-028, ¶ 25, 146 N.M. 378, 210 P.3d 804, overruled on other grounds by State 15 v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. Consistent with this case law, 16 Sergeant Barraza testified on re-direct that, with everything he used to refresh his 17 memory, he did have an independent memory of Defendant. [RP 134] Sergeant 18 Barraza further clarified that he was testifying from his memory, which was refreshed 19 by reading his police report, as opposed to reading his police report and still not 2 1 remembering any of the facts. [RP 130, 131-32, 134] Because Sergeant Barraza 2 properly refreshed his memory and was testifying from his present recollection, we 3 hold that his testimony about Defendant’s performance on the SFSTs was properly 4 admitted. See State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85 5 (providing that we will not disturb the lower court’s ruling absent a clear abuse of 6 discretion). 7 {3} In holding that the district court did not abuse its discretion in admitting 8 Sergeant Barraza’s testimony relating to Defendant’s performance on the SFSTs, we 9 acknowledge Defendant’s challenge to the truth of Sergeant Barraza’s testimony that 10 he had an independent recollection of the incident, especially given the lengthy 11 passage of time. [MIO 19] We acknowledge too Defendant’s effort to cast doubt on 12 Sergeant Barraza’s testimony by pointing to omissions of details in his police report 13 regarding the odor of alcohol and presence of a passenger [MIO 19-21] and by 14 emphasizing that Defendant’s testimony conflicted with the Sergeant’s testimony. 15 [MIO 20] As provided in Issue (B), however, these were matters for the fact-finder 16 to consider in weighing the evidence. See generally State v. Sutphin, 1988-NMSC17 031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (providing that the appellate courts do not re18 weigh the evidence, nor substitute judgment for that of the fact-finder). 3 1 {4} In Issue (B), Defendant continues to challenge the sufficiency of the evidence 2 to support his conviction. [DS 24; MIO 21] See NMSA 1978, § 66-8-102(A), (D)(3) 3 (2010); UJI 14-4501 NMRA; see also State v. Dutchover, 1973-NMCA-052, ¶ 5, 85 4 N.M. 72, 509 P.2d 264 (observing that DWI may be established through evidence that 5 the defendant’s ability to drive was impaired to the slightest degree). For the same 6 reasons detailed in our notice, we hold the evidence was sufficient. See State v. 7 Sparks, 1985-NMCA-004, ¶ 6, 102 N.M. 317, 694 P.2d 1382 (defining “substantial 8 evidence” as evidence that a reasonable person would consider adequate to support 9 a defendant’s conviction). 10 {5} In holding that the evidence was sufficient, we acknowledge Defendant’s 11 continued assertion that Sergeant Barraza’s testimony about the SFSTs lacked 12 sufficient reliability to prove impairment beyond a reasonable doubt. [DS 24; MIO 13 21] As provided in our notice, however, Sergeant Barraza’s testimony about his 14 observations of Defendant’s performance on the SFSTs was one of several factors 15 indicative of Defendant’s impairment by alcohol and was a matter appropriate for the 16 fact-finder’s consideration. See, e.g., State v. Torres, 1999-NMSC-010, ¶ 31, 127 17 N.M. 20, 976 P.2d 20 (recognizing that a defendant’s performance on motor skills 18 exercises is one of the self-explanatory tests that reveal common physical 19 manifestations of intoxication); State v. Neal, 2008-NMCA-008, ¶ 27, 143 N.M. 341, 4 1 176 P.3d 330 (recognizing that the fact-finder could rely on common knowledge and 2 experience to determine whether the defendant was under the influence of alcohol 3 when considering the testimony as to the defendant’s driving behavior, physical 4 condition, admission of drinking, and performance on the field sobriety tests). And 5 while Defendant continues to emphasize that he denied drinking on the night of the 6 incident, thought he would be arrested for an outstanding warrant, and provided other 7 explanations for the odor of alcohol such as passengers possibly emitting the odor [DS 8 24-25; MIO 21], these were matters for the fact-finder to consider. See Sutphin, 19889 NMSC-031, ¶ 21 (providing that the appellate courts do not re-weigh the evidence, 10 nor substitute judgment for that of the fact-finder); see also State v. Rojo, 199911 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (recognizing that the fact-finder is free 12 to reject the defendant’s version of the facts”); State v. Salas, 1999-NMCA-099, ¶ 13, 13 127 N.M. 686, 986 P.2d 482 (providing that it is for the fact-finder to resolve any 14 conflict in the testimony of the witnesses and to determine where the weight and 15 credibility lay). 16 {6} To conclude, for the reasons detailed in our notice and discussed in this 17 Opinion, we affirm. 18 {7} IT IS SO ORDERED. 5 1 2 __________________________________ JONATHAN B. SUTIN, Judge 3 WE CONCUR: 4 ___________________________________ 5 RODERICK T. KENNEDY, Chief Judge 6 ___________________________________ 7 MICHAEL E. VIGIL, Judge 6

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