State v. Kalouria

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,655 5 KARENBIR KALOURIA, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline D. Flores, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jorge A. Alvarado, Chief Public Defender 13 Santa Fe, NM 14 Josephine H. Ford, Assistant Appellate Defender 15 Albuquerque, NM 16 for Appellant 17 MEMORANDUM OPINION 18 FRY, Judge. 19 {1} Defendant has appealed from a conviction for DWI. We previously issued a 20 notice of proposed summary disposition in which we proposed to uphold the 1 conviction. Defendant has filed a memorandum in opposition. After due consideration, 2 we remain unpersuaded. We therefore affirm. 3 {2} Because the pertinent background information and applicable principles were 4 previously set out at some length in the notice of proposed summary disposition, we 5 will avoid unnecessary repetition here, and instead focus on the content of the 6 memorandum in opposition. 7 {3} Defendant has raised a single issue, challenging the sufficiency of the evidence 8 to support his conviction. In his memorandum in opposition, Defendant specifically 9 and exclusively focuses on the lack of evidence to establish that he possessed the 10 requisite intent to drive. [MIO 11-15] See generally State v. Sims, 2010-NMSC-027 , 11 ¶¶ 4, 27, 148 N.M. 330 , 236 P.3d 642 (holding that where the prosecution is premised 12 on prospective or anticipated impaired driving, such that the actual-physical-control 13 standard is applicable, the State must prove that the defendant was actually exercising 14 control over the vehicle, and had the general intent to drive). 15 {4} As an initial matter, Defendant suggests that the issue should be reviewed de 16 novo, in reliance upon Sims. [MIO 12] We disagree. De novo review was only called 17 for in Sims insofar as questions of statutory interpretation and the application of legal 18 precedent were presented. See generally State v. Tafoya, 2012-NMSC-030, ¶ 11 , 285 19 P.3d 604 (“Questions of statutory interpretation are reviewed de novo[.]”); State v. [2] 1 Ochoa, 2008-NMSC-023, ¶ 10 , 143 N.M. 749 , 182 P.3d 130 (“The application and 2 interpretation of law is subject to a de novo review.”). Such questions are not 3 presented on appeal in the instant case. 4 {5} In order to determine whether Defendant possessed the requisite intent, the fact 5 finder was required to assess “the totality of the circumstances,” Sims, 2010-NMSC- 6 027, ¶¶ 4, 34, 38. The Sims Court endorsed a non-exclusive list of relevant 7 considerations. Id. ¶ 33. Relative to a number of these factors, the State presented 8 evidence that the key was in the ignition in either the ‘accessory” or the “on” position; 9 Defendant was clearly awake, and positioned in the driver’s seat with his hands on the 10 steering wheel with his seatbelt buckled; and the vehicle was oriented perpendicular 11 to the parking spaces. [MIO 2] This evidence, when viewed in the light most favorable 12 to the verdict, supports a reasonable inference of intent to drive. See generally State 13 v. Garcia, 2011-NMSC-003, ¶ 5 , 149 N.M. 185 , 246 P.3d 1057 (“Evidence is viewed 14 in the light most favorable to the guilty verdict, indulging all reasonable inferences 15 and resolving all conflicts in the evidence in favor of the verdict.” (internal quotation 16 marks and citation omitted)); State v. Herrera, 2014-NMCA-007, ¶ 31 , 315 P.3d 343 17 (“A person’s intent may be established based upon circumstantial evidence.”). Insofar 18 as the State presented circumstantial evidence supporting an inference of intent to 19 drive, a rational fact finder could have found the essential elements of the crime [3] 1 beyond a reasonable doubt. See generally State v. Cunningham, 2000-NMSC-009 , ¶ 2 26, 128 N.M. 711 , 998 P.2d 176 (stating the standard of review for sufficiency of the 3 evidence). 4 {6} In his memorandum in opposition Defendant contends that the foregoing 5 evidence should be deemed insufficient to establish intent to drive because different 6 inferences could have been drawn, and in light of conflicting evidence that he did not 7 intend to drive the vehicle. [MIO 13-15] “However, as a reviewing court, we do not 8 reweigh the evidence or attempt to draw alternative inferences from the evidence.” 9 State v. Estrada, 2001-NMCA-034, ¶ 41 , 130 N.M. 358 , 24 P.3d 793 ; see State v. 10 Montoya, 2005-NMCA-078, ¶ 3 , 137 N.M. 713 , 114 P.3d 393 (observing that “the 11 evidence is not to be reviewed with a divide-and-conquer mentality . . . [ and w]e do 12 not reweigh the evidence or substitute our judgment for that of the jury”). Moreover, 13 the fact finder was free to reject Defendant’s theory. See State v. Stefani, [14] 2006-NMCA-073, ¶ 39 , 139 N.M. 719 , 137 P.3d 659 (noting that the finder of fact is 15 free to reject the defendant’s theory of the case). Ultimately, “our review is for 16 sufficient evidence to support the conviction, not for whether the fact[]finder could 17 have reached a different result.” State v. Delgado, 2010-NMCA-078, ¶ 6 , 148 N.M. 18 870, 242 P.3d 437 . We therefore reject Defendant’s argument. [4] 1 {7} Accordingly, for the reasons stated in our notice of proposed summary 2 disposition and above, we affirm. 3 {8} IT IS SO ORDERED. [4] 5 CYNTHIA A. FRY, Judge 6 WE CONCUR: [7] 8 RODERICK T. KENNEDY, Chief Judge [9] 10 JAMES J. WECHSLER, Judge