State v. Willyard

                                                                   Office of Director           New Mexico
                                                                 14:11:47 2019.10.21            Compilation
                                                                              '00'06-           Commission

           IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: June 17, 2019

No. A-1-CA-36455

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

TERRELL WILLYARD,

       Defendant-Appellee.

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

                                         OPINION

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 NMSA 1978,
Section 66-8-102(A) (2016), following a single-vehicle collision in which Defendant’s
vehicle collided with a telephone pole. A witness heard Defendant’s truck approaching,
saw the collision, and then saw Defendant drive his truck from the scene and park it in
the shadows behind a business. The witness called 911 and described the collision and
Defendant. The witness lost sight of Defendant when Defendant walked away from the
scene.

{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, 

, 

. “We review
issues of statutory and constitutional interpretation de novo.” 

 (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, 

, ¶ 6, 

, 

 (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, 

, 

, 

 (“Article VI,
Section 2 of the New Mexico Constitution provides ‘that an aggrieved party shall have
an absolute right to one appeal.’ This provision gives the [s]tate an absolute,
constitutional right to appeal a ruling that is contrary to law.”). Although Defendant notes
that under Chavez, the State’s right to appeal from a verdict that has been set aside
exists only when the verdict is reached after a trial that is “fair and free from error,”

, ¶ 6, he fails to identify any trial errors that affected the jury’s verdict or
rendered the trial unfair. We are not obligated to review Defendant’s undeveloped
argument, State v. Guerra, 

, 

, nor are we obligated
to “search the record for facts, arguments, and rulings” to find support for Defendant’s
claim of error. Muse v. Muse, 

, 

, 

. We
will not scour the record in search of trial error or unfairness, and thus conclude that the
State, as the aggrieved party in the instant case, has a right to appeal under Chavez.

B.     The District Court’s Ruling Did Not Constitute an Acquittal

{8}     Defendant relies on State v. Lizzol, 

, 

, 

, 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, 

, ¶ 12, 

, 

(“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 Rule
5-614 NMRA, could be based on the legal insufficiency of the evidence. The State
responds that the district court exceeded its authority by granting the motion based on
what the court concluded was insufficient evidence. We agree with the State for the
following reasons.

{12} Rule 5-614(A) provides, in relevant part, “When the defendant has been found
guilty, the court on . . . its own motion, may grant a new trial if required in the interest of
justice.” This rule provides the district court with a limited opportunity to consider the
verdict and, if warranted, grant a new trial before judgment is entered. Therefore, if such
a motion is properly granted by the district court, there is no procedural violation when a
judgment consistent with the verdict is not entered.

{13} In deciding a motion for a new trial, the district court “may weigh the evidence
and consider the credibility of witnesses.” Griffin, 

, ¶ 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.” 

 (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, 

. 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, 

, 

. 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 NMSA 1978, Section 31-1-3 (1972), that criminal prosecutions
“shall be commenced, conducted[,] and terminated in accordance with [r]ules of
[c]riminal [p]rocedure. All pleadings, practice[,] and procedure shall be governed by
such rules.” Davis, 

, ¶ 10 (internal quotation marks and citation
omitted). This Court stated that the term “shall” as used in that statute is mandatory, so
“shall” in the rules of criminal procedure is also mandatory. Id. ¶ 11. This Court held that
“[w]here . . . the [district] court failed to comply, after the verdict was received, with a
mandatory rule of criminal procedure, the [s]tate has a right to appeal.” Id. ¶ 3.

{16} In reaching that holding, the Davis Court reasoned that Rule 5-607 NMRA 1
requires “a determination of the sufficiency of the evidence before the case is submitted
to the jury.” Davis, 

, ¶ 14. After the verdict is returned by the jury, Rule
5-701(A) NMRA 2 “requires the [district] court to enter judgment in accordance with the
verdict.” Davis, 

, ¶ 14. This Court concluded the district court violated
both Rule 5-607, by failing to rule on the sufficiency of the evidence before the case was
submitted to the jury, and Rule 5-701, by entering a judgment of not guilty. Davis, 1982-
NMCA-057, ¶¶ 12, 15. The Court “remanded with instructions to enter a judgment and
sentence in compliance with” Rule 5-701. Davis, 

, ¶ 23.

{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, Rule 5-607(E),
and the second, after the defense presents its evidence or rests, Rule 5-607(K). No
provision in our rules of criminal procedure allows a district court to consider the
sufficiency of the evidence after the jury has returned its verdict and enter a judgment
contrary to the jury’s verdict. 3 See Davis, 

, ¶ 6 (“We note that a
judgment notwithstanding a verdict is recognized by . . . the [r]ules of [c]ivil [p]rocedure
but is not mentioned in the [r]ules of [c]riminal [p]rocedure.”). In the instant case, the
district court impermissibly revisited its rulings on the sufficiency of the evidence after
the jury returned its verdict.

{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 Rule 5-614. In its
motion, the district court noted that: (1) no evidence was presented that Defendant’s
driving and impairment overlapped; (2) pursuant to State v. Cotton, 

,

1
 The Davis Court referred to this rule as “Rule of Criminal Procedure 40.” Davis, 

, ¶ 14. For clarity
and consistency, this opinion refers to the rule as it is now codified.
2
 The Davis Court referred to this rule as “Rule of Criminal Procedure 46.” Davis, 

, ¶ 14. For clarity
and consistency, this opinion refers to the rule as it is now codified.
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.


, 

, any connections between the driving and impairment had
to result from impermissible speculation; and (3) there was insufficient evidence to
sustain the jury’s verdict.

{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
Rule 5-614, to remedy its prior confusion. After argument from the parties, the district
court set aside the jury’s verdict and, despite granting a new trial under the rule,
concluded that retrial was precluded due to insufficient evidence, which effectively
granted judgment to Defendant.

{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, 

,

 (“[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.
Rule 5-701(A). Had that judgment been rendered, Defendant would then have had the
opportunity to challenge the sufficiency of the evidence on appeal. See Davis, 1982-
NMCA-057, ¶ 16.

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 of the evidence question to conserve judicial resources).

{22} “Whether there is sufficient evidence to support a conviction is a question of law
which we review de novo.” State v. Neal, 

, 

, 

. “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, 

, 

 (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, 

, 

, 

. “Evidence of a direct or circumstantial nature is sufficient if a
reasonable mind might accept the evidence as adequate to support a conclusion.” Neal,

 (alteration, internal quotation marks, and citation omitted). We
disregard all evidence and inferences that support a different result. See State v. Rojo,

, 

, 

.

{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. 

. 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, 

, 

 (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.




4
 Defendant contends that an inference of intoxication based on the collision is impermissible speculation, but cites
no authority in support. See Vigil-Giron, 

.
{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. Although defense counsel suggested that Defendant could have become
intoxicated between the time he was driving and his encounter with the officers, no
evidence was offered to support the suggested inference. Nevertheless, the jury was
free to reject Defendant’s version of events. See State v. Salazar, 

, 

, 

.

{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, 

, ¶ 15, 

, 

 (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, 

, ¶ 16, 

, 

 (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, 

 (“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