State v. Vigil

STATE OF NEW MEXICO, Plaintiff-Appellee, v. KAREN VIGIL, Defendant-Appellant.

NO. A-1-CA-34592

COURT OF APPEALS OF THE STATE OF NEW MEXICO

March 4, 2019

This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY

Sarah C. Backus, District Judge

Hector H. Balderas, Attorney General

Anita Carlson, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Nina Lalevic, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

BOGARDUS, Judge.

{1} Defendant Karen Vigil appeals her convictions, following a jury trial, of two counts of great bodily injury by vehicle (DWI); one count of child abuse (no death or great bodily harm); one count of knowingly leaving the scene of an accident (great bodily harm); and two counts of criminal damage to property (more than $1,000). Defendant contends that (1) her convictions are not supported by sufficient evidence; (2) the district court erred by improperly instructing the jury on the child abuse charge; (3) the district court abused its discretion in finding Defendant competent to stand trial; (4) the district court abused its discretion in allowing an expert witness to testify on retrograde extrapolation; and (5) the district court erred in failing to dismiss the charges against her on speedy trial grounds. We affirm.

BACKGROUND

{2} The charges against Defendant stem from a three-car accident in which Defendant, her friend, Venessa Velarde, and Defendant's minor son, Antonio, were traveling from Santa Fe in a minivan north on U.S. 68 through Taos Canyon at high speed. Other drivers reported having seen the minivan being driven erratically and passing other vehicles in no-passing zones. As the minivan passed another vehicle just before a blind curve, the minivan and a car traveling in the opposite direction collided. Meanwhile, the driver of the car being passed veered off the road and crashed into a guardrail. Ms. Velarde and the driver of the car that collided with the minivan were seriously injured, and the other drivers' vehicles were totaled.

{3} At trial, Defendant and Ms. Velarde disputed which of them was driving the minivan when it crashed. Defendant testified that Ms. Velarde was driving and that Defendant was sitting in the back seat. According to Ms. Velarde, she was a passenger at the time of the accident. Both she and Defendant testified that they had been drinking alcohol in the minivan during the drive. A test of Defendant's blood-alcohol content (BAC) conducted several hours after the accident measured her BAC at .07.

{4} Because this is a memorandum opinion and the parties are familiar with the facts and the procedural history of the case, we provide additional facts only as necessary to our analysis.

DISCUSSION

I. Sufficient Evidence Exists to Support the Jury's Verdict

{5} At Defendant's trial, the jury was instructed that the State had to prove that Defendant "operated a motor vehicle" to convict Defendant of the two counts of great bodily injury by vehicle and of knowingly leaving the scene of an accident.

{6} Defendant argues that the evidence the State presented is insufficient to sustain her convictions, and so the convictions must be vacated. Defendant bases her argument on her contention that the State failed to prove that she was driving the minivan when the accident occurred.

{7} "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). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. When reviewing for sufficiency of evidence, "we resolve all disputed facts in favor of the [s]tate, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary." Id.

{8} The State, to meet its burden to prove that Defendant was guilty of the crimes charged, presented direct evidence that Defendant was the driver through the testimony of Ms. Velarde. She testified that Defendant was driving the minivan recklessly and dangerously in the moments leading up to the accident.

{9} In addition to its direct evidence, the State presented indirect evidence supporting reasonable inferences that Defendant was the driver. For example, Ms. Velarde testified to (1) having shattered her right-side pelvis, her right femur, and her right ankle in the accident; (2) requiring post-accident reconstructive surgery; and (3) not being able to walk unassisted until fifteen months after the accident. Ms. Velarde's serious injuries to the right side of her body is consistent with theconclusion that she was sitting in the passenger's, not the driver's, seat: the passenger side of the minivan, in Defendant's own words, was "completely crushed."

{10} As another example, a nurse experienced in treating accident victims and who treated Ms. Velarde after the accident testified to seeing bruising apparently caused by a seatbelt on Ms. Velarde's right shoulder. The abrasion on Ms. Velarde's left shoulder, in contrast, appeared not to have been caused by a seatbelt, the nurse said. This evidence supports a reasonable inference that Ms. Velarde was in the passenger's seat at the time of the crash, placing Defendant in the driver's seat.

{11} Additional testimony of a witness to the accident also supports the verdict. Jesse Montoya, the driver of the car that collided with the minivan, testified that he saw "a big frizzy figure" in the minivan's driver's seat before the crash. When asked the color of that "figure's" hair, he said he saw it after the accident when he saw the figure walking away from the scene; in saying that, he implied that the driver was the same person who walked away from the scene. Mr. Montoya's statements support the State's case because—by Defendant's admission—Defendant was the only one of the two female passengers in the minivan to walk away from the accident scene. Mr. Montoya's testimony supports a reasonable inference that Defendant was the driver.

{12} Nevertheless, Defendant asks this Court to consider evidence, the absence of additional evidence, and inferences that support a different result. In so doing, she relies on her own testimony that she was not the driver. She notes that Ms. Velarde has curly hair matching the description of witnesses who saw the driver, and that both had post-accident injuries to their left shoulders that could have been caused by a driver's-side seatbelt. She further complains that the accident investigation was incomplete and that no witness at trial either corroborated or impeached Ms. Velarde's testimony. In sum, Defendant asserts that there was no more evidence to convict her than there was to convict Ms. Velarde.

{13} In essence, Defendant asks us to weigh the witnesses' credibility and entertain the question of whether—with the evidence presented at trial and without further evidence—the jury could have reached a different conclusion. However, it is the role of the jury to gauge Defendant's credibility and Ms. Velarde's credibility and to resolve the conflict in their testimony. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. The jury was free, as it did, to reject Defendant's version of the facts. See Rojo, 1999-NMSC-001, ¶ 19. In contrast, we are not free to concern ourselves with the contrary evidence supporting Defendant's acquittal. See id.

{14} Rather, we ask whether there is "relevant evidence that a reasonable mind might accept as adequate to support [the] conclusion" that Defendant was drivingthe minivan at the time of the accident. See id. Based on Ms. Velarde's testimony that Defendant was the driver, on the nature of Ms. Velarde's injuries, on the location of the damage to the minivan, and on the witnesses' pre- and post-accident observations, we conclude that sufficient evidence supports the jury's finding that Defendant was the driver.

II. Use of the Child Abuse Jury Instruction Does Not Constitute Fundamental Error

{15} Defendant's next assertion is that the district court fundamentally erred by including the phrase "knew or should have known" in the jury instruction on Defendant's child abuse charge. The portion of the instruction Defendant refers to reads:

For you to find [D]efendant guilty of child abuse which did not result in death or great bodily harm, . . . the [S]tate must prove . . . [that d]efendant acted intentionally or with reckless disregard and without justification; To find that [Defendant] acted with reckless disregard, you must find that [Defendant] knew or should have known [her] conduct created a substantial and foreseeable risk, [D]efendant disregarded that risk and [D]efendant was wholly indifferent to the consequences of the conduct and to the welfare and safety of Antonio Vigil[.]

(Emphasis added.) The instruction was based on UJI 14-604 NMRA (1999), the instruction in effect at the time of the trial. Neither party objected to the instruction.

{16} Five days before Defendant's trial, our Supreme Court decided State v. Consaul, 2014-NMSC-030, 332 P.3d 850, which concerned the application of thechild abuse statute and its corresponding uniform jury instructions. Consaul reiterated that the culpability standard associated with the crime of child abuse is recklessness. Id. ¶¶ 34, 38. In Consaul, the Court expressed concern about the then-current child abuse uniform...