STATE of New Mexico, Plaintiff-Appellee, v. Patrick MARQUEZ, Defendant-Appellant.
No. 27,971.
Court of Appeals of New Mexico.
May 11, 2009.
2010-NMCA-064 | 238 P.3d 880
Certiorari Granted, July 1, 2009, No. 31,739. Certiorari Quashed, June 2, 2010.
{33} It is undisputed that Deputy Charley had a reasonable and objective basis for suspecting Defendant of criminal activity and, therefore, that the initial stop of Defendant‘s vehicle was lawful. Although Defendant and Amicus Curiae Santa Ana Pueblo allege that the length and manner of Defendant‘s detention exceeded that which was necessary for Deputy Charley to quell or verify his initial suspicion of criminal activity, there is no evidence in the record to support this allegation. See State v. Williamson, 2000-NMCA-068, ¶¶ 15-16, 129 N.M. 387, 9 P.3d 70 (holding that the defendant was not under de facto arrest during a routine traffic stop, despite a brief detention following the administration of field sobriety tests); Armijo v. State Transp. Dep‘t, 105 N.M. 771, 773, 737 P.2d 552, 554 (Ct.App.1987) (holding that the defendant was not under de facto arrest during a routine traffic stop, even though he was “asked to repeat the field sobriety tests and answer questions posed by [a] second officer“). We therefore reject Defendant‘s claim that his detention ripened into a de facto arrest, which infringed on the sovereignty of the Navajo Nation.
III. CONCLUSION
{34} We conclude that state officers have the authority to enter Indian country to investigate off-reservation crimes committed in their presence by Indians, so long as the investigation does not infringe on tribal sovereignty by circumventing or contravening a governing tribal procedure. The traffic stop in this case, which included the administration of field sobriety tests, did not circumvent or contravene the Navajo Nation Code and, therefоre, did not infringe on the sovereignty of the Navajo Nation. Accordingly, we affirm Defendant‘s DWI conviction.
{35} IT IS SO ORDERED.
WE CONCUR: CHARLES W. DANIELS, Chief Justice, PATRICIO M. SERNA, RICHARD C. BOSSON and EDWARD L. CHÁVEZ, Justices.
Albright Law & Consulting, Jennifer R. Albright, Albuquerque, NM, for Appellant.
OPINION
ROBLES, Judge.
{1} Patrick Marquez (Defendant) entered a conditional pleа of guilty to two counts of homicide by a vehicle and three counts of great bodily injury by a vehicle, contrary to
I. BACKGROUND
{2} On August 22, 2005, the State filed a criminal complaint in the magistrate court against Defendant, alleging that he caused the deaths of two individuals and the great bodily harm of five others while driving a vehicle under the influence of alcohol, contrary to
{3} A criminal information was filed in the district court on October 5, 2005, charging Defendant with two counts of homicide by vehiclе and five counts of great bodily injury by vehicle, contrary to
{4} Defendant argues that the language of
{5}
A person who commits homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or while under the influence of any drug or while violating [
NMSA 1978, Section 66-8-113 (1987)] is guilty of a third[-]degree felony and shall be sentenced pursuant to the provisions of [NMSA 1978, Section 31-18-15 (2007)], provided that violatiоn of speeding laws as set forth in the Motor Vehicle Code [NMSA 1978, Section 66-1-1 (1978)] shall not per se be a basis for violation of [Section 66-8-113].
{6}
Every person who commits, attempts to commit, conspires to commit or aids or abets in the commission of any act declared herein to be a crime, whether individually or in connection with one or more other persons or as a principal, agent or accessory, shall be guilty of such offense, and every person who falsely, fraudulently, forcibly or willfully induces, causes, coerces, requires, permits or directs anoth-
er to violate any provision of the Motor Vehicle Code [ Section 66-1-1 ] or any other law of this state pertaining to motor vehicles is likewise guilty of such offensе.
{7} Defendant claims that the State was operating under the portion of
{8} While we agree that
{9} We now turn to Defendant‘s argument that he cannot be convicted as an accessory if he cannot factually be deemed to have shared the mental state of the driver. Defendant contends that the law on accessory liability as defined in the Criminal Code is applicаble to the crimes defined in the Motor Vehicle Code because it is presumed that “the [L]egislature was aware of existing ... law and did not intend to enact a law [i.e.,
{10} We have no quarrel with Defendant‘s argument that the definition of accessory liability under the Criminal Code is applicable to the application of accessory liability as stated in
{11} New Mexico has defined “aid” and “abet” to mean “to help, assist, or facilitate the commission of a сrime, or to promote the accomplishment thereof, or to help in advancing or bringing it about; or to encourage, counsel or incite as to its commission.” State v. Lord, 42 N.M. 638, 649, 84 P.2d 80, 86 (1938) (internal quotation marks omitted). Neither mere presence nor presence with mental approbation is sufficient to sustain a conviction as an aider or abettor. State v. Luna, 92 N.M. 680, 683, 594 P.2d 340, 343 (Ct.App.1979). Presence must be accompanied by some outward manifestation or expression of approval, or shared purpose. Id. This expression of partnership in an unlawful enterprise may be shown by words, actions, signs, conduct, encouragement, or any method sufficient to incite, encоurage, or instigate commission of the offense. Id. The alleged aider and abettor must share the principal‘s criminal intent, but whether the principal‘s criminal intent was shared is a question of fact for the jury, which can be inferred from circumstances. State v. Ochoa, 41 N.M. 589, 603, 72 P.2d 609, 619 (1937).
{12} Both the State and Defendant argue aiding and abetting in the context of
{13} The focus of the inquiry into a defendant‘s intent is slightly different, depending on whether the charge is aiding and abetting driving while intoxicated, or homicide and/or great bodily injury by vehicle. For Defendant to be convicted of aiding and abetting homicide or great bodily harm by vehicle, it would be necessary for the State to demonstrate that Defendant encouraged and shared the intent of conscious wrongdoing with Lucero to the extent that it escalated to a partnership in the enterprise. See State v. Ortega, 77 N.M. 7, 17, 419 P.2d 219, 227 (1966) (holding all that is necessary to be guilty as an aider and abettor to a crime is to share the criminal intent of the perpetrator and have community of purpose and partnership in the unlawful undertaking).
{14} We also reject Defendant‘s claim of lack of control over the vehicle because it is irrelevant and overlooks the concept of aiding and abetting. As we noted in State v. Armijo, 120 N.M. 702, 703, 905 P.2d 740, 741 (Ct.App.1995),
one whо participates in a criminal venture is treated by the law as if he or she had committed all of the criminal acts of the other participants. An accessory (say, the getaway driver) is prosecuted and punished as a principal. . . . Consequently, each member of a band of thieves that loots a warehousе is treated as having taken all the loot.
Aiding and abetting in this context does not require physical control over a vehicle.
{15} State v. Hann, 55 Ohio App.2d 267, 380 N.E.2d 1339, 1341 (1977) is persuasive. There, the court held that a passenger may participate in the operation of a vehicle through “affirmative action of some sort, as distinguished from mere silence and inaction, [and] this participation need not be manifested by a direct physical contribution.” Id. at 1340 (internal quotation marks and citations omitted). In the instant case, Defendant encouraged Lucero to drive and to continue their party. He purchased beer, which was consumed in the vehicle and, all the while, he knеw that Lucero was intoxicated.
{16} Defendant asserts that there was no evidence that Lucero and he agreed to drink alcohol to the point of being under the influence and then to drive a vehicle; no evidence of a partnership to undertake unlawful activity; and no evidence that Defendant aided Luсero in controlling the vehicle. Additionally, Defendant states that there was no evidence establishing that Defendant intended Lucero‘s acts.
{17} The only facts this Court has are the facts alleged by the State under which Defendant entered a conditional plea. The State argues that Defendant provided encourаgement and assistance to Lucero. Defendant knew that Lucero was intoxicated as evidenced by the fact that they were refused service at two bars and by Defendant‘s statements after the accident. It was Defendant who encouraged Lucero to drive his vehicle to continue their party. It was Defendant who purchased additional alcohol, which was consumed in the vehicle just prior to the accident. This situation is not a question of Defendant and Lucero agreeing to drink alcohol to the point of being under the influence and then driving a vehicle, but a question of Defendant‘s knowledge of Lucero‘s intoxicated сondition, and Defendant‘s approval and encouragement for Lucero to drive a vehicle. The facts do suggest a partnership between the two men, such that a jury could convict Defendant of aiding and abetting Lucero.
III. CONCLUSION
{19} For the reasons stated above, we affirm Defendant‘s conditional plea of guilty.
{20} IT IS SO ORDERED.
WE CONCUR: CYNTHIA A. FRY, Chief Judge and MICHAEL D. BUSTAMANTE, Judge.