STATE OF NEW MEXICO, Plaintiff-Appellant, v. TERRELL WILLYARD, Defendant-Appellee.
No. A-1-CA-36455
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
June 17, 2019
2019-NMCA-058
Opinion Number: 2019-NMCA-058. APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, William G. W. Shoobridge, District Judge. Certiorari Denied, September 10, 2019, No. S-1-SC-37818. Released for Publication October 29, 2019.
Hector H. Balderas, Attorney General Santa Fe, NM John J. Woykovsky, Assistant Attorney General Albuquerque, NM for Appellant
Bennett J. Baur, Chief Public Defender Santa Fe, NM MJ Edge, Assistant Appellate Defender Albuquerque, NM for Appellee
BOGARDUS, Judge.
{1} The State appeals from the district court’s order that (1) set aside the jury verdict finding Defendant guilty of driving while under the influence of intoxicating liquor (DWI); (2) granted its own motion for a new trial; and (3) dismissed the case after concluding that retrial was not supported by the evidence. We reverse and remand.
BACKGROUND
{2} Defendant Terrell Willyard was charged with DWI, contrary to
{3} A responding officer spotted Defendant a few blocks away. That officer and two assisting officers believed that Defendant displayed signs of intoxication. When he refused to submit to field sobriety tests and chemical testing, Defendant was placed under arrest and brought back to the scene for identification. Based on the witness’s testimony, no more than twenty-one minutes passed from the time he lost sight of Defendant until the officers brought Defendant back to the scene.
{4} Defendant moved for a directed verdict at trial, both at the close of the State’s evidence and after the defense rested, arguing the State presented no evidence that Defendant was intoxicated at the time he was driving. The district court denied both motions, and the jury found Defendant guilty of DWI.
{5} Following trial, and for the reasons cited in our discussion that follows, the district court, sua sponte, ruled that there was no evidence that Defendant’s driving and impairment overlapped and granted Defendant a new trial. The district court then dismissed the case, concluding that Defendant could not be retried because there was insufficient evidence to sustain the jury’s verdict. The State appeals.
DISCUSSION
I. The State Has a Right to Appeal the District Court’s Ruling
{6} We first address the question of whether the State has the right to appeal in this case. “The right to appeal is . . . a matter of substantive law created by constitutional or statutory provision.” State v. Armijo, 2016-NMSC-021, ¶ 19, 375 P.3d 415. “We review issues of statutory and constitutional interpretation de novo.” Id. (internal quotation marks and citation omitted).
A. The State Is an Aggrieved Party Under the New Mexico Constitution
{7} The State argues that it has a “strong interest in enforcing a lawful jury verdict” and, therefore, as an aggrieved party, has a constitutional right to an appeal. State v. Chavez, 1982-NMSC-108, ¶ 6, 98 N.M. 682, 652 P.2d 232 (holding “that when the jury reaches a verdict after a trial which is fair and free from error, and such a verdict is set aside, the [s]tate is aggrieved within the meaning of the New Mexico Constitution”); see State v. Heinsen, 2005-NMSC-035, ¶ 9, 138 N.M. 441, 121 P.3d 1040 (“Article VI, Section 2 of the New Mexico Constitution provides ‘that an aggrieved party shall have an absolute right to one appeal.’ This provision
B. The District Court’s Ruling Did Not Constitute an Acquittal
{8} Defendant relies on State v. Lizzol, 2007-NMSC-024, 141 N.M. 705, 160 P.3d 886, to argue that the State has no “right to appeal an acquittal based on the insufficiency of the evidence[.]” The State argues Lizzol is distinguishable because the acquittal in that case was entered before the case was submitted to the jury. The State also argues double jeopardy does not bar this appeal because reversal would only lead to reinstatement of the jury’s verdict. We agree with the State that Lizzol is not applicable here because the district court dismissed this case after the jury rendered its verdict.
{9} In Lizzol, the defendant was charged with driving under the influence of intoxicating liquor. Id. ¶ 2. When the state attempted to lay the foundation for the breath alcohol test (BAT) card through the testimony of the arresting officer, the metropolitan court found the officer lacked knowledge to lay the proper foundation. Id. ¶¶ 3-4. The state then rested its case, and the metropolitan court entered a written order suppressing the card and dismissing the case, concluding there was insufficient evidence to proceed. Id. ¶ 4. The state ultimately appealed to the New Mexico Supreme Court, which explained that “an acquittal results when, after making an erroneous evidentiary ruling, the trial court concludes the evidence is insufficient to proceed[.]” Id. ¶ 15. The Court held, therefore, that double jeopardy barred the state’s appeal because the defendant was acquitted when the trial court excluded the BAT card and concluded there was insufficient evidence to proceed. Id. ¶ 29.
{10} Here, by contrast, the district court made no evidentiary ruling during trial that resulted in a determination that the evidence was insufficient to proceed, which is the specific and limited scenario addressed in Lizzol. Unlike the trial in Lizzol, the trial in this case was presented in its entirety, after which the district court determined that the evidence was sufficient to send the case to the jury, which then returned a guilty verdict. In this case, the district court addressed an evidentiary scenario applicable only to the granting of a new trial, and not a mid-trial evidentiary determination that mandated acquittal. Therefore, we conclude that the district court’s ruling after the verdict was rendered did not operate as an acquittal under Lizzol. See id. ¶ 15. Furthermore, because Defendant was not acquitted and reversal would not require a second trial, but rather reinstatement of the original verdict, we conclude that double jeopardy does not bar this appeal. Cf. State v. Griffin, 1994-NMSC-061, ¶ 12, 117 N.M. 745, 877 P.2d 551 (“Allowing an appeal after the second trial would not offend the prohibition against double jeopardy because reversal on appeal would not lead to another trial but to reinstatement of the original jury verdict.”).
II. The District Court Erred in Granting a New Trial
{11} Defendant contends that the district court’s grant of a new trial, pursuant to
{13} In deciding a motion for a new trial, the district court “may weigh the evidence and consider the credibility of witnesses.” Griffin, 1994-NMSC-061, ¶ 6 (internal quotation marks and citation omitted). A new trial can be granted and the verdict set aside only if the district court concludes that “the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted.” Id. (internal quotation marks and citation omitted). “When the [district] court reaches this conclusion, it is stating not just that it disagrees, but that the evidence so heavily preponderates against the verdict that there evidently has been a miscarriage of justice.” Id. ¶ 7. If the district court reaches that conclusion, “the verdict may be set aside and a new trial granted.” Id. ¶ 6 (internal quotation marks and citation omitted).
{14} Such an inquiry is different than a sufficiency of the evidence determination. When a defendant challenges the sufficiency of the evidence at trial in a motion for directed verdict, the district court must “assume the truth of the evidence offered by the prosecution.” Id. (emphasis, internal quotation marks, and citation omitted). When a motion for directed verdict is granted, it results in an acquittal barring even appellate review. See Lizzol, 2007-NMSC-024, ¶ 15. Based on these differences, we conclude that it would be inherently inconsistent to allow a motion for new trial to be granted based on insufficiency of the evidence when that insufficiency bars retrial. Therefore, when the district court granted the motion for new trial based on insufficiency of the evidence in this case, it did so in error.
{15} Our conclusion is supported by this Court’s decision in State v. Davis, 1982-NMCA-057, 97 N.M. 745, 643 P.2d 614. In Davis, after the jury returned a guilty verdict, “[the d]efendant moved for a judgment of acquittal notwithstanding the verdict.” Id. ¶ 1. The district court set aside the jury’s verdict and entered a judgment of not guilty, and the state appealed. Id. Concluding that the district court erred, this Court highlighted the mandatory language of
{16} In reaching that holding, the Davis Court reasoned that
{17} As we emphasized in Davis, a district court has two opportunities to rule on the sufficiency of the evidence during a trial. Both arise before the case is submitted to the jury: the first opportunity is after the state has submitted its evidence,
{18} It did so in the following manner. The day after the jury found Defendant guilty of DWI, the district court, sua sponte, moved for a new trial, pursuant to
{19} At the hearing on its motion, the district court explained that it was confused when it denied Defendant’s motions for directed verdict because it mistakenly believed that testimony describing Defendant walking away from the collision “in a ‘drunk-like’ manner” had been introduced. Upon review, however, the district court determined that no such testimony was elicited at trial. The district court indicated it moved, pursuant to
{20} It appears that the district court, having reconsidered the evidence and its previous rulings on Defendant’s motions for directed verdict, intended its motion for a new trial to provide an opportunity to correct its previous rulings on the sufficiency of the evidence. However, as we held above, insufficiency of the evidence does not support a motion for a new trial. Additionally, we are unaware of, and Defendant has failed to cite, any authority indicating a district court can revisit its rulings on directed verdict motions after the jury has rendered its verdict. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts will not consider an issue if no authority is cited in support of the issue and that, given no cited authority, we assume no such authority exists[.]”). To the contrary, the controlling authority—our rules of criminal procedure—required the district court to render a judgment in accordance with the jury’s verdict.
III. Substantial Evidence Supported Defendant’s Conviction for DWI
{21} The district court ruled that the State’s evidence was insufficient to sustain Defendant’s DWI conviction. Therefore, another appeal is likely to follow if we remand without addressing this issue. In the interest of conserving judicial resources, and because the parties have fully briefed the sufficiency issue, we now turn to whether the evidence introduced at trial is sufficient to sustain the conviction. See id. ¶ 17 (addressing the sufficiency
{22} “Whether there is sufficient evidence to support a conviction is a question of law which we review de novo.” State v. Neal, 2008-NMCA-008, ¶ 20, 143 N.M. 341, 176 P.3d 330. “The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). The reviewing court “view[s] the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “Evidence of a direct or circumstantial nature is sufficient if a reasonable mind might accept the evidence as adequate to support a conclusion.” Neal, 2008-NMCA-008, ¶ 20 (alteration, internal quotation marks, and citation omitted). We disregard all evidence and inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.
{23} The State contends there is sufficient evidence to support all elements of DWI and, thus, the jury’s guilty verdict. Defendant, relying on Cotton, argues there is insufficient evidence to support his conviction because the State failed to prove that his driving and impairment overlapped. For the following reasons, we are unpersuaded that Cotton is controlling here.
{24} In Cotton, we reversed an aggravated DWI conviction because the state failed to provide evidence that the defendant actually drove while impaired. 2011-NMCA-096, ¶ 1. When the responding officer approached, the defendant was sitting in the driver’s seat of a van parked on the side of the road. Id. ¶¶ 4-5. “The van was not running, and the keys were not in the ignition.” Id. ¶ 5. The defendant failed field sobriety tests and admitted to drinking an hour before the officer arrived. Id. ¶ 6. At trial, “there was no evidence presented to prove that the driving and impairment overlapped. No one testified about seeing [the d]efendant driving while impaired.” Id. ¶ 14. Additionally, because there was no evidence as to when the defendant had parked the van, we noted that the defendant could have parked the van and then consumed the beer. Id. We concluded the state “failed to establish that [the d]efendant drove after he had consumed alcohol and after alcohol had impaired his ability to drive to the slightest degree.” Id.
{25} Cotton, however, does not control this case because the following evidence leads us to conclude that there was sufficient circumstantial evidence introduced at trial to establish that Defendant’s impairment and driving overlapped. See, e.g., Town of Taos v. Wisdom, 2017-NMCA-066, ¶ 38, 403 P.3d 713 (distinguishing Cotton when there were witnesses to the defendant’s driving and sufficient circumstantial evidence “allow[ed] for an inference that [the d]efendant drove while intoxicated”).
{26} First, a witness testified he heard Defendant’s truck as it approached and saw it collide with a telephone pole. This witness estimated that Defendant was traveling at forty-five to fifty miles per hour prior to the collision. Under these facts and circumstances, a reasonable juror could infer that the collision itself was evidence of Defendant’s impairment at the time he operated the vehicle.4 This evidence of Defendant’s driving alone significantly distinguishes this case from the circumstances in Cotton.
{27} Second, responding officers testified that Defendant smelled of alcohol; had bloodshot, watery eyes; and was swaying back and forth when they encountered him less than twenty-one minutes after the collision. This evidence supports an inference that Defendant had consumed alcohol and further bolsters the inference that Defendant was impaired when he operated and crashed the vehicle less than half an hour previously.
{28} Third, the State presented the following evidence from which a reasonable juror could infer Defendant’s consciousness of guilt. Following the collision, Defendant moved his truck into the shadows behind a business and left the scene without reporting the collision. Defendant also futilely attempted to hide behind a pole as an officer approached. Defendant then refused to submit to field sobriety and chemical testing. See State v. Wright, 1993-NMCA-153, ¶ 15, 116 N.M. 832, 867 P.2d 1214 (reasoning that a jury could infer consciousness of guilt from a defendant’s refusal to take a field sobriety test); see also McKay v. Davis, 1982-NMSC-122, ¶ 16, 99 N.M. 29, 653 P.2d 860 (holding that “a defendant’s refusal to take a chemical test is relevant to show his consciousness of guilt and fear of the test results”).
{29} Viewing the evidence in the light most favorable to the verdict and indulging all reasonable inferences, we conclude that substantial evidence supported Defendant’s conviction for DWI. See Wisdom, 2017-NMCA-066, ¶ 35 (“Circumstantial evidence alone may be sufficient to allow a fact-finder to infer that the accused drove while intoxicated.”).
CONCLUSION
{30} We reverse the district court’s order setting aside the jury’s verdict and remand with instructions to enter a judgment and sentence in accordance with the jury’s verdict.
{31} IT IS SO ORDERED.
KRISTINA BOGARDUS, Judge
WE CONCUR:
J. MILES HANISEE, Judge
MEGAN P. DUFFY, Judge