State v. Martinez

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-37126 5 STEVE GEORGE MARTINEZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Christina Pete Argyres, District Judge 9 Hector H. Balderas, Attorney General 10 Emily C. Tyson-Jorgenson, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Kimberly M. Chavez Cook, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 18 VANZI, Chief Judge. MEMORANDUM OPINION 1 {1} Defendant Steve George Martinez appeals from the district court’s judgment 2 and sentence, entered pursuant to a jury trial, convicting him for aggravated DWI 3 (eighth or subsequent offense), two counts of resisting, evading or obstructing an 4 officer, and reckless driving. Unpersuaded that the docketing statement demonstrated 5 error, we issued a notice of proposed summary disposition, proposing to affirm. 6 Defendant responded to our notice with a memorandum in opposition and a motion 7 to amend the docketing statement to add two double jeopardy challenges to his 8 convictions. We issued a second notice and granted the motion to amend to add one 9 of Defendant’s challenges and proposed to reverse in part and remand for the district 10 court to vacate one of Defendant’s convictions for resisting, evading or obstructing 11 an officer for violation of double jeopardy. We were unpersuaded by Defendant’s 12 remaining arguments and again proposed to affirm as to all of Defendant’s original 13 issues. 14 {2} The State has filed a response to our second notice, informing the Court that it 15 will not be opposing our proposal to reverse and remand for the district court to vacate 16 one of Defendant’s convictions for resisting, evading or obstructing an officer. 17 Defendant has filed a second memorandum in opposition. We have considered this 18 response, and remain unpersuaded as to Defendant’s original issues. We affirm in part, 2 1 reverse in part, and remand for the district court to vacate one of Defendant’s 2 convictions for resisting, evading or obstructing an officer. 3 Double Jeopardy 4 {3} We agree with Defendant that his convictions for two counts of resisting, 5 evading, or obstructing an officer under different subsections of the statute violate 6 double jeopardy under the “double description” line of cases, based on this Court’s 7 opinion in State v. LeFebre, 2001-NMCA-009, ¶¶ 16-23, 130 N.M. 130, 19 P.3d 825. 8 [1 MIO 4-9] In LeFebre, we held that the defendant’s refusal to stop his vehicle when 9 directed to do so by officers, his failure to safely exit the highway and the ensuing car 10 accident, in addition to his subsequent act of exiting his vehicle and fleeing on foot, 11 constituted unitary conduct with the singular purpose of evading officers. Id. ¶ 18. 12 {4} In the current case, Defendant was convicted for having violated the same 13 statutory subsections of the offense of resisting, evading or obstructing an officer as 14 was the defendant in LeFebre. Id. ¶ 20; see NMSA 1978, § 30-22-1(B) and (C) 15 (1981). [RP 86-87] The officer named in the jury instructions is Jason Brown; [RP 8616 87] thus, we look at Defendant’s actions with respect to Officer Brown to determine 17 whether Defendant’s charged conduct was unitary. See State v. Silvas, 2015-NMSC18 006, ¶ 10, 343 P.3d 616 (looking to the state’s presentation of the evidence to the jury 19 through argument and jury instructions to determine whether it relied on the same 3 1 conduct to support the offenses). Defendant refused to pull over after Officer Brown 2 signaled him to do so, [1 MIO 7] and Defendant fled in his vehicle after having his 3 tires flattened, and continued to drive on his rims, then stopped the truck, and ran 4 away on the highway, in a constant attempt to flee from police. [DS unnumbered 3-4] 5 We see no material distinction between the actions of Defendant and the actions of the 6 defendant in LeFebre that would warrant a different conclusion as to the unitariness 7 of Defendant’s conduct than that reached in LeFebre. 2001-NMCA-009. See id. ¶ 18 8 (holding that the defendant’s “actions can only be reasonably deemed to constitute 9 unitary conduct” and rejecting the State’s reasoning that his “failure to successfully 10 negotiate an exit from the interstate highway and his ensuing automobile accident 11 constitute an intervening event that ended the [d]efendant’s first act contrary to 12 Section 30-22-1—his refusal to stop his vehicle when directed to do so by 13 officers—and began a second act that is contrary to the statute, the evasion of the 14 officers on foot”). 15 {5} In applying a modified strict elements test to determine whether the Legislature 16 intended to impose multiple punishments for this unitary conduct, in LeFebre, we 17 looked at the elements in Section 30-22-1(B) and (C) and the jury instructions and 18 concluded that the State’s legal theory was simply that the defendant was attempting 4 1 to evade the police officers. LeFebre, 2001-NMCA-009, ¶¶ 20-23. The jury 2 instructions in the current case [RP 86, 87] mirror the instructions in LeFebre. Id. 3 ¶ 22. Thus, the State’s theory in the current case also was simply that Defendant was 4 attempting to evade the police officer. Because this case is materially 5 indistinguishable from LeFebre, the same result is required. We therefore reverse and 6 remand to the district court to vacate one of Defendant’s convictions for resisting, 7 evading or obstructing an officer for violation of double jeopardy. 8 {6} We note that, in his second memorandum in opposition, Defendant has re-raised 9 the other double jeopardy argument that was presented in his motion to amend the 10 docketing statement. [2 MIO 2-3] We have already denied the motion to amend to add 11 this issue. We treat Defendant’s attempt to argue the issue again as a motion for 12 rehearing, and deny it. 13 Show-Up Identification 14 {7} Defendant maintains that the district court erred by denying the suppression of 15 Officer Frazier’s show-up identification of Defendant, but makes no responsive 16 argument to our second notice. [2 MIO 4; 1 MIO 12-17] As we have stated, Officer 17 Frazier’s show-up identification of Defendant was not necessary to establish 18 Defendant’s identity, in light of the testimony of Officers Brown, Frazier, and Luthi 19 and the circumstances that flowed from Defendant driving through the DWI 5 1 checkpoint. For the reasons provided in our previous notices, we hold that 2 Defendant’s convictions were unattributable to Officer’s Frazier’s identification of 3 Defendant at the DWI checkpoint, given the information known to the testifying 4 officers and Officer Brown’s and Officer Luthi’s personal observations of Defendant. 5 Cf. State v. Tollardo, 2012-NMSC-008, ¶ 36, 275 P.3d 110 (stating that a 6 constitutional error is harmless only “when there is no reasonable possibility it 7 affected the verdict.” (internal quotation marks and citation omitted)); id. ¶ 43 (stating 8 that in determining “the likely effect of the error, courts should evaluate all of the 9 circumstances surrounding the error. This requires an examination of the error itself, 10 which [may] . . . include an examination of the source of the error and the emphasis 11 placed upon the error.”). On these grounds, we hold that Defendant has not 12 demonstrated reversible error in the district court’s denial of his motion to suppress 13 the evidence. 14 Sufficiency of the Evidence 15 {8} Defendant continues to argue that the circumstantial evidence was insufficient 16 to support his conviction for aggravated DWI. [2 MIO 4; 1 MIO 17-18] Again, 17 Defendant does not raise any responsive argument to our second notice. 18 {9} As we have previously stated in this case, to the extent that Defendant’s 19 challenge to the sufficiency of the evidence focuses on the identification of him as the 6 1 person who drove through the DWI checkpoint, we disagree that the evidence 2 insufficiently identified Defendant based on the testimony of the officers, which 3 shows that Defendant was continuously observed from the DWI checkpoint to his 4 ultimate capture. The evidence established that Defendant fled the DWI checkpoint, 5 fled after having his tires flattened, drove on his rims, stopped the truck, and ran away 6 on the highway, in a constant attempt to flee from police. [DS unnumbered 3-4] This 7 evidence of the extreme efforts Defendant took to avoid contact with police and 8 capture supports an inference of a consciousness of guilt. See, e.g., State v. Morales, 9 2002-NMCA-052, ¶ 31, 132 N.M. 146, 45 P.3d 406, overruled on other grounds by 10 Tollardo, 2012-NMSC-008, ¶ 37 n.6. Also, a search of Defendant’s truck revealed 11 several beer cans in the backseat. [DS unnumbered 4] After his arrest, Defendant 12 refused to submit to a breath test. [DS unnumbered 4] See State v. Marquez, 13 2009-NMSC-055, ¶ 16, 147 N.M. 386, 223 P.3d 931 (noting that a jury can 14 reasonably infer consciousness of guilt from defendant’s refusal to submit to a breath 15 test), overruled on other grounds by Tollardo, 2012-NMSC-008, ¶ 37 n.6; NMSA 16 1978, Section 66-8-102(D)(3) (2016) (“Aggravated driving under the influence of 17 intoxicating liquor or drugs consists of . . . refusing to submit to chemical testing, as 18 provided for in the Implied Consent Act, . . . and in the judgment of the court, based 7 1 upon evidence of intoxication presented to the court, the driver was under the 2 influence of intoxicating liquor or drugs.” 3 {10} Viewing the evidence in the light most favorable to the verdict and indulging 4 in all reasonable inferences, we hold that evidence was sufficient to support 5 Defendant’s conviction for aggravated DWI. See State v. Samora, 2016-NMSC-031, 6 ¶ 34, 387 P.3d 230 (stating our standard of review for assessing the sufficiency of the 7 evidence). 8 CONCLUSION 9 {11} For the reasons stated in this opinion and in our previous notices, we affirm in 10 part, reverse in part, and remand for the district court to vacate one of Defendant’s 11 convictions for resisting, evading or obstructing an officer for violation of double 12 jeopardy. 13 {12} IT IS SO ORDERED. 14 15 ____________________________________ LINDA M. VANZI, Chief Judge 16 WE CONCUR: 17 _______________________________ 18 J. MILES HANISEE, Judge 8 1 _______________________________ 2 HENRY M. BOHNHOFF, Judge 9

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