Date: 06-21-2019

Case Style:

STATE OF NEW MEXICO v. TERRELL WILLY ARD

Case Number: A-1-CA-36455

Judge: Kristina Bogardus

Court: IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Plaintiff's Attorney: Hector H. Balderas, Attorney General
John J. Woykovsky, Assistant Attorney General

Defendant's Attorney: Bennett J. Baur, Chief Public Defender
MJ Edge, Assistant Appellate Defender

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Defendant Terrell Willyard was charged with DWI, contrary to NMSA 1978,
10 Section 66-8-102(A) (2016), following a single-vehicle collision in which
11 Defendant's vehicle collided with a telephone pole. A witness heard Defendant's
12 truck approaching, saw the collision, and then saw Defendant drive his truck from
13 the scene and park it in the shadows behind a business. The witness called 911 and
14 described the collision and Defendant. The witness lost sight of Defendant when
15 Defendant walked away from the scene.
16 {3} A responding officer spotted Defendant a few blocks away. That officer and
17 two assisting officers believed that Defendant displayed signs of intoxication. When
18 he refused to submit to field sobriety tests and chemical testing, Defendant was
19 placed under arrest and brought back to the scene for identification. Based on the
1 witness's testimony, no more than twenty-one minutes passed from the time he lost
2 sight of Defendant until the officers brought Defendant back to the scene.
3 {4} Defendant moved for a directed verdict at trial, both at the close of the State's
4 evidence and after the defense rested, arguing the State presented no evidence that
5 Defendant was intoxicated at the time he was driving. The district court denied both
6 motions, and the jury found Defendant guilty of DWI.
7 {5} Following trial, and for the reasons cited in our discussion that follows, the
8 district court, sua sponte, ruled that there was no evidence that Defendant's driving
9 and impairment overlapped and granted Defendant a new trial. The district court
10 then dismissed the case, concluding that Defendant could not be retried because
11 there was insufficient evidence to sustain the jury's verdict. The State appeals.
12 DISCUSSION
13 I. The State Has a Right to Appeal the District Court's Ruling
14 {6} We first address the question of whether the State has the right to appeal in
15 this case. "The right to appeal is . . . a matter of substantive law created by
16 constitutional or statutory provision." State v. Armijo, 2016-NMSC-021,, 19, 375
17 P.3d 415. "We review issues of statutory and constitutional interpretation de novo."
18 Id. (internal quotation marks and citation omitted).
2
1 A. The State Is an Aggrieved Party Under the New Mexico Constitution
2 {7} The State argues that it has a "strong interest in enforcing a lawful jury
3 verdict" and, therefore, as an aggrieved party, has a constitutional right to an appeal.
4 State v. Chavez, 1982-NMSC-108, 16, 98 N.M. 682, 652 P.2d 232 (holding "that
5 when the jury reaches a verdict after a trial which is fair and free from error, and
6 such a verdict is set aside, the [ s ]tate is aggrieved within the meaning of the New
7 Mexico Constitution"); see State v. Heinsen, 2005-NMSC-035, 19, 138 N.M. 441,
8 121 P.3d 1040 ("Article VI, Section 2 of the New Mexico Constitution provides 'that
9 an aggrieved party shall have an absolute right to one appeal.' This provision gives
10 the [ s ]tate an absolute, constitutional right to appeal a ruling that is contrary to law.").
11 Although Defendant notes that under Chavez, the State's right to appeal from a
12 verdict that has been set aside exists only when the verdict is reached after a trial
13 that is "fair and free from error," 1982-NMSC-108, 16, he fails to identify any trial
14 errors that affected the jury's verdict or rendered the trial unfair. We are not obligated
15 to review Defendant's undeveloped argument, State v. Guerra, 2012-NMSC-014,
16 1 21, 278 P.3d 1031, nor are we obligated to "search the record for facts, arguments,
17 and rulings" to find support for Defendant's claim of error. Muse v. Muse, 2009
18 NMCA-003, 172, 145 N.M. 451, 200 P.3d 104. We will not scour the record in
19 search of trial error or unfairness, and thus conclude that the State, as the aggrieved
20 party in the instant case, has a right to appeal under Chavez.
3
1 B. The District Court's Ruling Did Not Constitute an Acquittal
2 {8} Defendant relies on State v. Lizzol, 2007-NMSC-024, 141 N.M. 705, 160 P.3d
3 886, to argue that the State has no "right to appeal an acquittal based on the
4 insufficiency of the evidence[.]" The State argues Lizzol is distinguishable because
5 the acquittal in that case was entered before the case was submitted to the jury. The
6 State also argues double jeopardy does not bar this appeal because reversal would
7 only lead to reinstatement of the jury's verdict. We agree with the State that Lizzol
8 is not applicable here because the district court dismissed this case after the jury
9 rendered its verdict.
10 {9} In Lizzol, the defendant was charged with driving under the influence of
11 intoxicating liquor. Id. 1 2. When the state attempted to lay the foundation for the
12 breath alcohol test (BAT) card through the testimony of the arresting officer, the
13 metropolitan court found the officer lacked knowledge to lay the proper foundation.
14 Id. 113-4. The state then rested its case, and the metropolitan court entered a written
15 order suppressing the card and dismissing the case, concluding there was insufficient
16 evidence to proceed. Id. 1 4. The state ultimately appealed to the New Mexico
17 Supreme Court, which explained that "an acquittal results when, after making an
18 erroneous evidentiary ruling, the trial court concludes the evidence is insufficient to
19 proceed[.]" Id. 1 15. The Court held, therefore, that double jeopardy barred the
4
1 state's appeal because the defendant was acquitted when the trial court excluded the
2 BAT card and concluded there was insufficient evidence to proceed. Id. ,r 29.
3 {t O} Here, by contrast, the district court made no evidentiary ruling during trial that
4 resulted in a determination that the evidence was insufficient to proceed, which is
5 the specific and limited scenario addressed in Lizzol. Unlike the trial in Lizzol, the
6 trial in this case was presented in its entirety, after which the district court determined
7 that the evidence was sufficient to send the case to the jury, which then returned a
8 guilty verdict. In this case, the district court addressed an evidentiary scenario
9 applicable only to the granting of a new trial, and not a mid-trial evidentiary
10 determination that mandated acquittal. Therefore, we conclude that the district
11 court's ruling after the verdict was rendered did not operate as an acquittal under
12 Lizzol. See id. ,r 15. Furthermore, because Defendant was not acquitted and reversal
13 would not require a second trial, but rather reinstatement of the original verdict, we
14 conclude that double jeopardy does not bar this appeal. Cf State v. Griffin, 1994
15 NMSC-061, ,r 12, 117 N.M. 745, 877 P.2d 551 ("Allowing an appeal after the second
16 trial would not offend the prohibition against double jeopardy because reversal on
17 appeal would not lead to another trial but to reinstatement of the original jury
18 verdict.").
5
1 II. The District Court Erred in Granting a New Trial
2 {11} Defendant contends that the district court's grant of a new trial, pursuant to
3 Rule 5-614 NMRA, could be based on the legal insufficiency of the evidence. The
4 State responds that the district court exceeded its authority by granting the motion
5 based on what the court concluded was insufficient evidence. We agree with the
6 State for the following reasons.
7 {12} Rule 5-614(A) provides, in relevant part, "When the defendant has been found
8 guilty, the court on ... its own motion, may grant a new trial if required in the interest
9 of justice." This rule provides the district court with a limited opportunity to consider
10 the verdict and, if warranted, grant a new trial before judgment is entered. Therefore,
11 if such a motion is properly granted by the district court, there is no procedural
12 violation when a judgment consistent with the verdict is not entered.
13 {13} In deciding a motion for a new trial, the district court "may weigh the evidence
14 and consider the credibility of witnesses." Griffin, 1994-NMSC-061,, 6 (internal
15 quotation marks and citation omitted). A new trial can be granted and the verdict set
16 aside only if the district court concludes that "the verdict is contrary to the weight of
17 the evidence and that a miscarriage of justice may have resulted." Id. (internal
18 quotation marks and citation omitted). "When the [district] court reaches this
19 conclusion, it is stating not just that it disagrees, but that the evidence so heavily
20 preponderates against the verdict that there evidently has been a miscarriage of
6
1 justice." Id. ,r 7. If the district court reaches that conclusion, "the verdict may be set
2 aside and a new trial granted." Id. ,r 6 (internal quotation marks and citation omitted).
3 {14} Such an inquiry is different than a sufficiency of the evidence determination.
4 When a defendant challenges the sufficiency of the evidence at trial in a motion for
5 directed verdict, the district court must "assume the truth of the evidence offered by
6 the prosecution." Id. ( emphasis, internal quotation marks, and citation omitted).
7 When a motion for directed verdict is granted, it results in an acquittal barring even
8 appellate review. See Lizzol, 2007-NMSC-024, ,r 15. Based on these differences, we
9 conclude that it would be inherently inconsistent to allow a motion for new trial to
10 be granted based on insufficiency of the evidence when that insufficiency bars
11 retrial. Therefore, when the district court granted the motion for new trial based on
12 insufficiency of the evidence in this case, it did so in error.
13 {IS} Our conclusion is supported by this Court's decision in State v. Davis, 1982
14 NMCA-057, 97 N.M. 745, 643 P.2d 614. In Davis, after the jury returned a guilty
15 verdict, "[the d]efendant moved for a judgment of acquittal notwithstanding the
16 verdict." Id. ,r 1. The district court set aside the jury's verdict and entered a judgment
17 of not guilty, and the state appealed. Id. Concluding that the district court erred, this
18 Court highlighted the mandatory language of NMSA 1978, Section 31-1-3 (1972),
19 that criminal prosecutions "shall be commenced, conducted[,] and terminated in
20 accordance with [r ]ules of [c ]riminal [p ]rocedure. All pleadings, practice[,] and
7
1 procedure shall be governed by such rules." Davis, 1982-NMCA-057, 1 10 (internal
2 quotation marks and citation omitted). This Court stated that the term "shall" as used
3 in that statute is mandatory, so "shall" in the rules of criminal procedure is also
4 mandatory. Id. 111. This Court held that "[w]here ... the [district] court failed to
5 comply, after the verdict was received, with a mandatory rule of criminal procedure,
6 the [s]tate has a right to appeal." Id. 13.
7 {16} In reaching that holding, the Davis Court reasoned that Rule 5-607 NMRA1
8 requires "a determination of the sufficiency of the evidence before the case is
9 submitted to the jury." Davis, 1982-NMCA-057, ,r 14. After the verdict is returned
10 by the jury, Rule 5-701(A) NMRA2 "requires the [district] court to enter judgment
11 in accordance with the verdict." Davis, 1982-NMCA-057, ,r 14. This Court
12 concluded the district court violated both Rule 5-607, by failing to rule on the
13 sufficiency of the evidence before the case was submitted to the jury, and Rule 5
14 701, by entering a judgment of not guilty. Davis, 1982-NMCA-057, 1112, 15. The
15 Court "remanded with instructions to enter a judgment and sentence in compliance
16 with" Rule 5-701. Davis, 1982-NMCA-057, ,r 23.
1The Davis Court referred to this rule as "Rule of Criminal Procedure 40." Davis, 1982-NMCA-057, ,r 14. For clarity and consistency, this opinion refers to the rule as it is now codified.
2The Davis Court referred to this rule as "Rule of Criminal Procedure 46." Davis, 1982-NMCA-057, ,r 14. For clarity and consistency, this opinion refers to the rule as it is now codified.
8
1 {17} As we emphasized in Davis, a district court has two opportunities to rule on
2 the sufficiency of the evidence during a trial. Both arise before the case is submitted
3 to the jury: the first opportunity is after the state has submitted its evidence, Rule 5
4 607(E), and the second, after the defense presents its evidence or rests, Rule 5
5 607(K). No provision in our rules of criminal procedure allows a district court to
6 consider the sufficiency of the evidence after the jury has returned its verdict and
7 enter a judgment contrary to the jury's verdict.3 See Davis, 1982-NMCA-057, ~ 6
8 ("We note that a judgment notwithstanding a verdict is recognized by ... the [r Jules
9 of [c]ivil [p]rocedure but is not mentioned in the [r]ules of [c]riminal [p]rocedure.").
10 In the instant case, the district court impermissibly revisited its rulings on the
11 sufficiency of the evidence after the jury returned its verdict.
12 {18} It did so in the following manner. The day after the jury found Defendant
13 guilty of DWI, the district court, sua sponte, moved for a new trial, pursuant to Rule
14 5-614. In its motion, the district court noted that: ( 1) no evidence was presented that
15 Defendant's driving and impairment overlapped; (2) pursuant to State v. Cotton,
16 2011-NMCA-096, 150 N.M. 583, 263 P.3d 925, any connections between the
17 driving and impairment had to result from impermissible speculation; and (3) there
18 was insufficient evidence to sustain the jury's verdict.
3 Such a scenario is different than what occurs when a court exercises its discretion under Rule 5-614. Under that rule, the court does not enter its own judgment in the matter; instead, it sets aside the verdict and orders a new trial.
9
1 {19} At the hearing on its motion, the district court explained that it was confused
2 when it denied Defendant's motions for directed verdict because it mistakenly
3 believed that testimony describing Defendant walking away from the collision "in a
4 'drunk-like' manner" had been introduced. Upon review, however, the district court
5 determined that no such testimony was elicited at trial. The district court indicated
6 it moved, pursuant to Rule 5-614, to remedy its prior confusion. After argument from
7 the parties, the district court set aside the jury's verdict and, despite granting a new
8 trial under the rule, concluded that retrial was precluded due to insufficient evidence,
9 which effectively granted judgment to Defendant.
10 {20} It appears that the district court, having reconsidered the evidence and its
11 previous rulings on Defendant's motions for directed verdict, intended its motion for
12 a new trial to provide an opportunity to correct its previous rulings on the sufficiency
13 of the evidence. However, as we held above, insufficiency of the evidence does not
14 support a motion for a new trial. Additionally, we are unaware of, and Defendant
15 has failed to cite, any authority indicating a district court can revisit its rulings on
16 directed verdict motions after the jury has rendered its verdict. See State v. Vigil
17 Giron, 2014-NMCA-069, 160,327 P.3d 1129 ("[A]ppellate courts will not consider
18 an issue if no authority is cited in support of the issue and that, given no cited
19 authority, we assume no such authority exists[.]"). To the contrary, the controlling
20 authority-our rules of criminal procedure-required the district court to render a
10
1 judgment in accordance with the jury's verdict. Rule 5-701(A). Had that judgment
2 been rendered, Defendant would then have had the opportunity to challenge the
3 sufficiency of the evidence on appeal. See Davis, 1982-NMCA-057, ~ 16.
4 III. Substantial Evidence Supported Defendant's Conviction for DWI
5 {21} The district court ruled that the State's evidence was insufficient to sustain
6 Defendant's DWI conviction. Therefore, another appeal is likely to follow if we
7 remand without addressing this issue. In the interest of conserving judicial resources,
8 and because the parties have fully briefed the sufficiency issue, we now tum to
9 whether the evidence introduced at trial is sufficient to sustain the conviction. See
10 id. ~ l 7 ( addressing the sufficiency of the evidence question to conserve judicial
11 resources).
12 {22} "Whether there is sufficient evidence to support a conviction is a question of
13 law which we review de novo." State v. Neal, 2008-NMCA-008, ~ 20, 143 N.M.
14 341, 176 P.3d 330. "The test for sufficiency of the evidence is whether substantial
15 evidence of either a direct or circumstantial nature exists to support a verdict of
16 guilty beyond a reasonable doubt with respect to every element essential to a
17 conviction." State v. Montoya, 2015-NMSC-010, ~ 52, 345 P.3d 1056 (internal
18 quotation marks and citation omitted). The reviewing court "view[ s] the evidence in
19 the light most favorable to the guilty verdict, indulging all reasonable inferences and
20 resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham,
11
1 2000-NMSC-009, ~ 26, 128 N.M. 711, 998 P.2d 176. "Evidence of a direct or
2 circumstantial nature is sufficient if a reasonable mind might accept the evidence as
3 adequate to support a conclusion." Neal, 2008-NMCA-008, ~ 20 (alteration, internal
4 quotation marks, and citation omitted). We disregard all evidence and inferences that
5 support a different result. See State v. Rojo, 1999-NMSC-001, ~ 19, 126 N.M. 438,
6 971 P.2d 829.
7 {23} The State contends there is sufficient evidence to support all elements of DWI
8 and, thus, the jury1s guilty verdict. Defendant, relying on Cotton, argues there is
9 insufficient evidence to support his conviction because the State failed to prove that
10 his driving and impairment overlapped. For the following reasons, we are
11 unpersuaded that Cotton is controlling here.
12 {24} In Cotton, we reversed an aggravated DWI conviction because the state failed
13 to provide evidence that the defendant actually drove while impaired. 2011-NMCA
14 096, ~ 1. When the responding officer approached, the defendant was sitting in the
15 driver's seat of a van parked on the side of the road. Id.~~ 4-5. "The van was not
16 running, and the keys were not in the ignition." Id. ~ 5. The defendant failed field
17 sobriety tests and admitted to drinking an hour before the officer arrived. Id. ~ 6. At
18 trial, "there was no evidence presented to prove that the driving and impairment
19 overlapped. No one testified about seeing [the d]efendant driving while impaired."
20 Id. ~ 14. Additionally, because there was no evidence as to when the defendant had
12
1 parked the van, we noted that the defendant could have parked the van and then
2 consumed the beer. Id. We concluded the state "failed to establish that [the
3 d]efendant drove after he had consumed alcohol and after alcohol had impaired his
4 ability to drive to the slightest degree." Id.
5 {25} Cotton, however, does not control this case because the following evidence
6 leads us to conclude that there was sufficient circumstantial evidence introduced at
7 trial to establish that Defendant's impairment and driving overlapped. See, e.g. ,
8 Town of Taos v. Wisdom, 2017-NMCA-066, ,I 38, 403 P.3d 713 (distinguishing
9 Cotton when there were witnesses to the defendant's driving and sufficient
10 circumstantial evidence "allow[ ed] for an inference that [the d]efendant drove while
11 intoxicated").
12 {26} First, a witness testified he heard Defendant's truck as it approached and saw
13 it collide with a telephone pole. This witness estimated that Defendant was traveling
14 at forty-five to fifty miles per hour prior to the collision. Under these facts and
15 circumstances, a reasonable juror could infer that the collision itself was evidence of
16 Defendant's impairment at the time he operated the vehicle. 4 This evidence of
17 Defendant's driving alone significantly distinguishes this case from the
18 circumstances in Cotton.
4Defendant contends that an inference of intoxication based on the collision is impermissible speculation, but cites no authority in support. See Vigil-Giron, 20 l 4NMCA-069, ,I 60.
13
1 {27} Second, responding officers testified that Defendant smelled of alcohol; had
2 bloodshot, watery eyes; and was swaying back and forth when they encountered him
3 less than twenty-one minutes after the collision. This evidence supports an inference
4 that Defendant had consumed alcohol and further bolsters the inference that
5 Defendant was impaired when he operated and crashed the vehicle less than half an
6 hour previously. Although defense counsel suggested that Defendant could have
7 become intoxicated between the time he was driving and his encounter with the
8 officers, no evidence was offered to support the suggested inference. Nevertheless,
9 the jury was free to reject Defendant's version of events. See State v. Salazar, 1997
10 NMSC-044, 146, 123 N.M. 778, 945 P.2d 996.
11 {28} Third, the State presented the following evidence from which a reasonable
12 juror could infer Defendant's consciousness of guilt. Following the collision,
13 Defendant moved his truck into the shadows behind a business and left the scene
14 without reporting the collision. Defendant also futilely attempted to hide behind a
15 pole as an officer approached. Defendant then refused to submit to field sobriety and
16 chemical testing. See State v. Wright, 1993-NMCA-153, 115, 116 N.M. 832, 867
17 P.2d 1214 (reasoning that a jury could infer consciousness of guilt from a
18 defendant's refusal to take a field sobriety test); see also McKay v. Davis, 1982
19 NMSC-122, 1 16, 99 N.M. 29, 653 P.2d 860 (holding that "a defendant's refusal to
14
I take a chemical test is relevant to show his consciousness of guilt and fear of the test
2 results").
3 {29} Viewing the evidence in the light most favorable to the verdict and indulging
4 all reasonable inferences, we conclude that substantial evidence supported
5 Defendant's conviction for DWI. See Wisdom, 2017-NMCA-066, ,-r 35
6 ("Circumstantial evidence alone may be sufficient to allow a fact-finder to infer that
7 the accused drove while intoxicated.").

Outcome: We reverse the district court's order setting aside the jury's verdict and
IO remand with instructions to enter a judgment and sentence in accordance with the
11 jury's verdict.

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