State v. Newman
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,383 5 PAUL NEWMAN, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Christina P. Argyers, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 13 14 15 Jorge A. Alvarado, Chief Public Defender Santa Fe, NM Sergio J. Viscoli, Assistant Appellate Defender Albuquerque NM 16 for Appellant 17 18 GARCIA, Judge. MEMORANDUM OPINION 1 {1} Defendant Paul Newman appeals from the district court’s affirmance of his 2 conviction for aggravated DWI, contrary to NMSA 1978, Section 66-8-102(D)(3) 3 (2010). Unpersuaded by Defendant’s docketing statement, we issued a notice of 4 proposed summary disposition, proposing to affirm. Defendant has filed a 5 memorandum in opposition to our notice. We remain unpersuaded and therefore 6 affirm. 7 {2} Defendant has raised two issues on appeal. First, he asserts that the State’s 8 failure to preserve the video recording of his field sobriety tests (FSTs) violated his 9 right to due process and a fair trial. [DS 19; MIO 17-20] Second, Defendant 10 challenges the sufficiency of evidence to support his conviction. [DS 19; MIO 21-24] 11 In this Court’s notice, relative to Defendant’s first issue, we proposed to conclude that 12 the trial court had not abused its discretion in denying Defendant’s motion to suppress 13 and that the remedy provided to him was adequate under the standards articulated in 14 State v. Chouinard, 1981-NMSC-096, 96 N.M. 658, 634 P.2d 680. With respect to 15 Defendant’s second issue, we indicated that the district court’s memorandum opinion, 16 which addressed the same issues raised in this appeal, throughly detailed the relevant 17 facts, and correctly set forth the applicable standards of review and relevant law. This 18 Court therefore proposed to adopt portions of the district court’s opinion. Persuaded 19 that the district court’s opinion was correct, we directed Defendant to demonstrate 2 1 why the district court’s opinion and our reliance on it was incorrect if he wanted this 2 Court to reach conclusions that differed from those reached by the district court. 3 {3} In response to our notice, Defendant reiterates the same arguments that he 4 articulated in his docketing statement and in his statement of issues, [RP 161-66; MIO 5 17-24] which was considered by the district court below and by this Court prior to 6 issuing our notice. Specifically, relevant to Defendant’s first issue, he continues to 7 assert that the remedy afforded to him was inadequate given that “the evidence of 8 intoxication was not overwhelming” and since no breath test was conducted, “the 9 video of the missing [field sobriety tests (FSTs) was] an important piece of evidence” 10 that could have bolstered his testimony. [MIO 19] Additionally, Defendant continues 11 to assert that there was insufficient evidence to sustain his DWI conviction and 12 disputes his performance on the FSTs. [MIO 21-24] 13 {4} We are not persuaded by Defendant’s arguments. These assertions were fully 14 addressed by our notice and the district court’s opinion, and Defendant has not 15 presented any authority or argument that convinces this Court that our proposed 16 disposition was incorrect. See State v. Ibarra, 1993-NMCA-040, ¶ 11, 116 N.M. 486, 17 864 P.2d 302 (“A party opposing summary disposition is required to come forward 18 and specifically point out errors in fact and/or law.”). Accordingly, for the reasons set 19 forth above and in the district court’s opinion, we affirm. 3 1 {5} IT IS SO ORDERED. 2 3 ________________________________ TIMOTHY L. GARCIA, Judge 4 WE CONCUR: 5 _______________________________ 6 MICHAEL E. VIGIL, Chief Judge 7 _______________________________ 8 M. MONICA ZAMORA, Judge 4
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