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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     No. 34,171

 5 TEDDY MACK REESER,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
 8 Drew D. Tatum, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Elizabeth Ashton, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Mary Barket, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 SUTIN, Judge.
 1   {1}   Defendant Teddy Mack Reeser was convicted of one count of aggravated

 2 driving while under the influence of intoxicating liquor and/or drugs (fifth), contrary

 3 to NMSA 1978, Section 66-8-102(D) (2010, amended 2016) (aggravated DWI).1

 4 Defendant asserts three arguments on appeal: (1) the district court erred in finding that

 5 the emergency assistance doctrine justified a warrantless entry into Defendant’s home

 6 and in denying his motion to suppress; (2) fundamental error occurred because the

 7 aggravated DWI jury instruction omitted the requirement that Defendant’s blood

 8 alcohol content (BAC) came from alcohol consumed before or while operating a

 9 vehicle; and (3) the evidence was insufficient to establish that Defendant drove his

10 vehicle while intoxicated. Although not an argument for reversal, Defendant also

11 requests that a typographical error in his judgment and sentence be corrected to

12 accurately show that he was convicted of aggravated DWI based on his high BAC

13 level, not on the basis that he refused to submit to a test under the Implied Consent

14 Act.

15 BACKGROUND

16   {2}   Sergeant Michael Brockett, with the Curry County Sheriff’s Office, testified at

17 the motion to suppress hearing that he was dispatched to Defendant’s residence south


         1
18         Defendant was also convicted of one count of driving while license is revoked,
19 contrary to NMSA 1978, Section 66-5-39 (1993, amended 2013), however, he is not
20 appealing that conviction.

                                               2
 1 of Clovis, New Mexico on April 27, 2012, at approximately 6:13 p.m. He overheard

 2 on his police radio that there had been a car crash with injuries. Shortly after hearing

 3 about the crash on his radio, dispatch advised that a green2 pickup involved in the

 4 crash was seen leaving the area, and further provided a license plate number. Dispatch

 5 ran the license plate and obtained an address.

 6   {3}   Sergeant Brockett heard the address and responded. He did not know the extent

 7 of the injuries from the crash but was aware that both the police department and the

 8 fire department had been notified of the accident. When Sergeant Brockett arrived on

 9 scene, officers from the Clovis Police Department, Sergeant John Howard and another

10 officer, were already there. Sergeant Brockett approached the pickup believed to be

11 involved in the crash and noticed shoe prints leading from the driver’s side of the

12 pickup to the front of the vehicle. Sergeant Brockett admitted that he observed no

13 blood and that the pickup had no broken windows. However, he testified that based

14 on the shoe prints he observed, he thought there had been a scuffle. He also stated that

15 the prints looked as if someone had fallen. Amongst the prints, he also observed a pair



           2
16            Although Sergeant Brockett testified that dispatch stated the pickup was green,
17   the testimony of the other individuals involved in the accident, the testimony of a
18   sergeant with the Clovis Police Department, and the trial testimony of Sergeant
19   Brockett indicated that the at-issue pickup was gray or silver. Sergeant Brockett
20   testified at trial that the discrepancy was related to the fact that the truck appeared
21   green at dusk.

                                                3
 1 of glasses laying on the ground. After noting the prints and the glasses, he followed

 2 the prints that led to the front porch of a residence.

 3   {4}   He knocked on the side of the mobile home but got no response. He then

 4 checked to see if the door was locked, which it was, and then he knocked on the front

 5 door. When he knocked on the front door, the door opened, possibly because the

 6 locked door was not fully closed. When the door opened, Sergeant Brockett noticed

 7 Defendant lying on the floor. Sergeant Brockett stated that Defendant’s feet were

 8 toward Sergeant Brockett, Defendant’s shirt was pulled up over his upper torso, and

 9 Defendant’s hands were trapped inside his shirt. Upon seeing Defendant, Sergeant

10 Brockett called out several times and identified himself as a deputy sheriff; there was

11 no response from Defendant. Sergeant Brockett testified that Defendant appeared to

12 be struggling inside his shirt, and at that point, Sergeant Brockett entered the residence

13 to assist Defendant. Sergeant Brockett admitted that he did not know what injuries

14 Defendant might have sustained at that point but stated that Defendant may have been

15 seizing and looked to be experiencing a medical emergency. Sergeant Brockett stated

16 that he entered the residence because he was concerned with Defendant’s welfare,

17 having seen Defendant lying on the floor unresponsive and trapped in his shirt, and

18 knowing that there had just been a crash, there were shoe prints outside of the

19 residence, and glasses on the ground that suggested Defendant had fallen.


                                               4
 1   {5}   After entering the residence, Sergeants Brockett and Howard helped Defendant

 2 with his shirt and asked if Defendant was okay. Defendant stated that he was okay, but

 3 Sergeant Brockett could, at that point, smell a strong odor of alcohol and noticed that

 4 Defendant seemed unsteady and could not successfully stand up. At that point,

 5 Sergeant Brockett called for an ambulance. After calling the ambulance, Sergeant

 6 Brockett asked Defendant if he had been driving a vehicle. When the ambulance

 7 arrived, Defendant indicated that he had low blood sugar and paramedics began

 8 rendering aid to Defendant. Once they determined that there was no medical

 9 emergency, the paramedics departed, leaving Defendant with Sergeant Brockett. At

10 that point, Defendant was placed under arrest. Sergeant Brockett read the New Mexico

11 Implied Consent Act to Defendant, who refused to provide a sample and could not

12 stand on his own. Sergeant Brockett transported Defendant to the hospital for possible

13 alcohol poisoning. At the hospital, Defendant was treated by staff.

14   {6}   Based on Sergeant Brockett’s testimony, the district court concluded that the

15 emergency assistance doctrine justified his warrantless entry into Defendant’s

16 residence. In a well-explained letter decision issued to the parties, the district court

17 denied Defendant’s motion to suppress, and the case proceeded to trial.

18   {7}   At trial, a passenger in the other vehicle involved in the crash, Rosa Garcia,

19 testified that the crash had taken place at approximately 6:00 p.m. Ms. Garcia recalled


                                              5
 1 feeling a jolt, apparently from being rear-ended, she saw a pickup that was trying to

 2 go around her car. The driver of the pickup drove away, despite the Garcias’ signal

 3 to the driver to pull over into a nearby parking lot. Ms. Garcia testified that the driver

 4 was an older Hispanic male with a mustache and grayish hair, and she stated that

 5 Defendant looked like the man driving the pickup that rear-ended her. Ms. Garcia’s

 6 son, Jose Garcia (the driver of the vehicle in which she was a passenger), also testified

 7 that the driver appeared to be an older Hispanic male with a mustache. Ms. Garcia

 8 testified that the pickup involved in the accident was a grayish silver Chevy pickup

 9 and stated that State’s Exhibit 4, a photograph of a pickup truck, looked like the truck

10 that rear-ended her. Mr. Garcia also testified that the pickup was silver and agreed that

11 State’s Exhibit 4 looked like the pickup involved in the collision. Mr. Garcia called

12 the police after the collision and provided the license plate number, as well as the

13 make of the truck to police.

14   {8}   Sergeant Howard testified that on April 27, 2012, he responded to a crash at the

15 intersection of Prince Street and Brady Avenue. Having been told by witnesses that

16 the driver had fled the scene southbound on Prince, Sergeant Howard went to look for

17 the vehicle and was able to locate a vehicle matching the description of the vehicle

18 involved in the crash with front-end damage consistent with a crash. Upon locating

19 the vehicle, Sergeant Howard testified that he saw shoe prints around the vehicle and


                                               6
 1 a pair of glasses, consistent with someone having fallen. The State showed Sergeant

 2 Howard State’s Exhibit 4, and he identified it as a photograph of the vehicle that was

 3 the subject of his investigation. He also stated that to his knowledge the license plate

 4 on the vehicle depicted in State’s Exhibit 4 matched the plate number called out by

 5 dispatch.

 6   {9}    Sergeant Howard corroborated Sergeant Brockett’s testimony that there was

 7 concern that the driver of the vehicle had been injured and that when they entered

 8 Defendant’s home, they saw Defendant caught in his shirt. He testified that as he and

 9 Sergeant Brockett assisted Defendant with his shirt, he noticed that Defendant’s shoes

10 matched the shoe prints beside the at-issue vehicle, and also noticed that Defendant

11 was emitting an odor of alcohol, had bloodshot and watery eyes, and his speech was

12 slurred. At trial, Sergeant Howard testified as to the likeness between Defendant’s

13 shoes (as depicted in a photograph taken by Sergeant Howard in Defendant’s

14 residence) and the shoe prints by the pickup. He also stated that Defendant was the

15 only individual in the residence.

16   {10}   Sergeant Brockett’s testimony at trial was consistent with his testimony

17 provided during the motion to suppress hearing. In an attempt to limit redundancy and

18 for the purposes of this appeal, we note only the following additional testimony

19 provided by Sergeant Brockett at trial. Sergeant Brockett testified that he arrived at


                                              7
 1 Defendant’s property at approximately 6:28 p.m., i.e., about 15 minutes after the

 2 initial call went out that there had been a crash. Additionally, Sergeant Brockett

 3 testified that, after entering Defendant’s residence, they began talking about

 4 Defendant leaving the scene of the crash, and Defendant admitted to having gone to

 5 get a sandwich. Once Defendant was taken to the hospital on suspicion of alcohol

 6 poisoning, Sergeant Brockett obtained a search warrant for a blood draw because

 7 Defendant had refused to be tested. The warrant was served at approximately 9 p.m.

 8 After having his blood drawn pursuant to the warrant, Defendant voluntarily, without

 9 being asked, told Sergeant Brockett that he had been drinking beer with friends, he

10 knew he should not have driven, and had made a mistake. The sample taken from the

11 blood draw was tested and ultimately revealed a BAC of 0.39.

12   {11}   The jury found Defendant guilty of aggravated DWI and driving with a revoked

13 license. This appeal followed.

14 DISCUSSION

15 The Emergency Assistance Doctrine

16   {12}   We “review a district court’s decision to suppress evidence based on the legality

17 of a search as a mixed question of fact and law.” State v. Ryon, 2005-NMSC-005,

18 ¶ 11, 137 N.M. 174, 108 P.3d 1032. We view the facts in the light most favorable to

19 the prevailing party and defer to the district court’s findings of fact when supported


                                                8
 1 by substantial evidence. Id. “The legality of a search, however, ultimately turns on the

 2 question of reasonableness[,]” which we review de novo. Id.

 3   {13}   The Fourth Amendment of the United States Constitution and Article II, Section

 4 10 of the New Mexico Constitution provide protection against unreasonable searches

 5 and seizures. This protection is particularly strong when applied to searches of an

 6 individual’s home. See State v. Ryan, 2006-NMCA-044, ¶ 21, 139 N.M. 354, 132 P.3d
7 1040 (“A person’s dwelling receives the highest degree of protection from

 8 unreasonable intrusion by the government[.]” (internal quotation marks and citation

 9 omitted)); State v. Monteleone, 2005-NMCA-129, ¶ 9, 138 N.M. 544, 123 P.3d 777

10 (“Among the areas afforded the greatest protection by these constitutional provisions

11 is a person’s home.”). Thus, “[w]arrantless searches and seizures inside a home are

12 presumptively unreasonable, subject only to a few specific, narrowly defined

13 exceptions.” Ryon, 2005-NMSC-005, ¶ 23; see also State v. Trudelle, 2007-NMCA-

14 066, ¶ 14, 142 N.M. 18, 162 P.3d 173 (“A warrantless search is presumptively

15 unreasonable, unless it falls within an exception to the warrant requirement.” (internal

16 quotation marks and citation omitted)).

17   {14}   The exception to the warrant requirement at issue in the present case is the

18 emergency assistance doctrine. In order to determine whether a warrantless search and

19 seizure is justified under the emergency assistance doctrine, a three-part test is


                                               9
 1 employed. “First, the police must have reasonable grounds to believe that there is an

 2 emergency at hand and an immediate need for their assistance for the protection of life

 3 or property. Second, the search must not be primarily motivated by intent to arrest and

 4 seize evidence. Third, there must be some reasonable basis, approximating probable

 5 cause, to associate the emergency with the area or place to be searched.” Ryon, 2005-

 6 NMSC-005, ¶ 29 (alterations, internal quotation marks, and citations omitted).

 7   {15}   We find three New Mexico cases to be of particular use in conducting our

 8 analysis: Ryon, 2005-NMSC-005; State v. Baca, 2007-NMCA-016, 141 N.M. 65, 150

 9 P.3d 1015; and State v. Cordova, 2016-NMCA-019, 366 P.3d 270, cert. granted,

10 2015-NMCERT-008, 369 P.3d 369.

11   {16}   In Ryon, our Supreme Court adopted the three-part test now used in New

12 Mexico to evaluate the use of the emergency assistance doctrine. 2005-NMSC-005,

13 ¶¶ 29-39. In Ryon, the police were investigating a stabbing. Id. ¶ 2. During their

14 investigation, the police acquired the name of a suspect and were told by dispatch that

15 the suspect might have a head or face injury. Id. ¶¶ 2-4. When the police arrived at the

16 suspect’s house, the lights were on and the door was ajar. Id. ¶ 4. The police knocked

17 on the door of the suspect’s home but received no response. Id. Thinking it was odd

18 for the door to be open with no one answering and allegedly looking for someone with

19 a possible head injury, the police entered the house. Id. The police walked through the


                                              10
 1 house but did not find the suspect. Id. ¶ 5. They did, however, notice a small folding

 2 knife stained with blood in the kitchen sink. Id. Thereafter they secured the home and

 3 obtained a search warrant. Id.

 4   {17}   In considering whether the warrantless entry was appropriate, our Supreme

 5 Court employed the three-part test. Id. ¶ 29. The Court explained that when evaluating

 6 the first factor, courts should consider (1) “the purpose and nature of the dispatch,”

 7 (2) “the exigency of the situation based on the known facts,” and (3) “the availability,

 8 feasibility[,] and effectiveness of alternatives to the type of intrusion usually

 9 accomplished.” Id. ¶¶ 31-32 (internal quotation marks and citation omitted). The

10 Court also explained that the second factor is essential because although “emergency

11 situations can occur during a criminal investigation[,] . . . [t]he protection of human

12 life or property in imminent danger must be the motivation for the initial decision to

13 enter the home.” Id. ¶¶ 35-36 (emphasis, alteration, internal quotation marks, and

14 citation omitted). As to the third and final factor, the Court explained that “[o]fficers

15 do not have carte blanche to rummage for evidence if they believe a crime has been

16 committed[,]” and “[they] may do no more than is reasonably necessary to ascertain

17 whether someone is in need of assistance . . . and to provide that assistance.” Id. ¶ 38

18 (omission in original) (internal quotation marks and citations omitted). However,

19 “[o]nce they are lawfully inside, officers may expand the scope of the intrusion, if


                                              11
 1 probable cause or reasonable suspicion arises[, and they] may . . . seize evidence of

 2 a crime that is in plain view or arrest a suspect if there is probable cause.” Id. (citation

 3 omitted).

 4   {18}   Ultimately, the Ryon Court determined that the facts available to the officers at

 5 the time of intrusion did not “compel a conclusion that swift action was necessary to

 6 protect life or avoid serious injury.” Id. ¶¶ 40-41. The Court held that neither the light

 7 inside the residence nor the door being ajar supported warrantless entry. Id. ¶ 41.

 8 Moreover, there were no facts that a crime had taken place at the residence, nor was

 9 there credible and specific information that a victim in need of assistance would be

10 located in the residence. Id. ¶¶ 41-42. The Court stated that the nonspecific

11 information that the suspect may have sustained an injury was not enough to support

12 entry and reiterated that entry must be primarily based on concern for human life, not

13 to apprehend a suspect or gather evidence. Id. ¶¶ 43-45.

14   {19}   In Baca, 2007-NMCA-016, ¶ 1, a police officer entered the defendant’s home

15 after the defendant’s employer and aunt expressed concerns about the defendant’s

16 welfare. The defendant had been absent from work for two days with no contact, and

17 the information received by the police suggested a possible drug overdose. Id. In

18 evaluating the Ryon factors, this Court considered the officer’s belief that the

19 defendant was “suffering from sleep deprivation from methamphetamine use or a


                                                12
 1 possible overdose.” Baca, 2007-NMCA-016, ¶ 23. However, this Court held that the

 2 officer’s speculation of sleep deprivation did not constitute an emergency under Ryon.

 3 Baca, 2007-NMCA-016, ¶ 24. Additionally, this Court held that, given the lack of

 4 specific facts regarding an immediate emergency, the officer’s vague and unsupported

 5 concern that the defendant may have overdosed was not sufficiently developed to

 6 permit a warrantless intrusion. Id. ¶¶ 25-27. Additionally, this Court stated that the

 7 intrusion was not justified because there were family members present who were

 8 willing to check on the defendant at the time of the entry, such that there was another

 9 “available, feasible, and effective alternative” to police intrusion. Id. ¶¶ 29-30.

10 Because there were insufficient facts to support the existence of an emergency and

11 such alternatives to police entry, the Court concluded that the prosecution did not meet

12 its burden to justify entering the home without a warrant. Id. ¶¶ 30-31.

13   {20}   In Cordova, deputies entered a suspect’s home after that suspect was seen

14 fleeing the scene of a hit-and-run accident that resulted in numerous injuries and the

15 death of a motorcyclist. 2016-NMCA-019, ¶¶ 2-4. One deputy testified that when they

16 arrived at the suspect’s home, the door was ajar, and “she heard some type of

17 ‘background noise’ in the home.” Id. ¶ 4. “She testified that she knocked and

18 announced the deputies’ presence and, upon getting no response, entered the home.”

19 Id. The other deputy present at the residence testified that they neither knocked nor


                                              13
 1 heard background noises, but that they did announce their presence. Id. The deputies

 2 eventually found the suspect in his bedroom and escorted him out of the home for

 3 questioning. Id. ¶ 5. He was ultimately prosecuted in connection with the crash. Id.

 4 ¶ 1. In arguing that the emergency assistance doctrine did not validate the deputies’

 5 warrantless entry, the defendant argued that the deputies lacked sufficient information

 6 to reasonably believe that he was in need of immediate assistance. Id. ¶ 9. This Court

 7 agreed. Id. ¶ 11. Cordova held that the only information the deputies had at the time

 8 was that the defendant’s truck had been in an accident. Id. They did not know that the

 9 defendant was the driver of the truck or that he was at home. Id. There were no

10 indications of injury, such as blood or impact evidence, to indicate that anyone in the

11 truck had been injured. Id. ¶ 12. Additionally, the fact that the truck’s occupants had

12 fled indicated that the truck’s occupants were not seriously injured. Id. This Court also

13 stated that there were no signs at the residence of an emergency, such as sounds from

14 the house that would have alerted the deputies that the defendant was in need of

15 immediate aid. Id. ¶ 13. Cordova explained that the lack of specific testimony

16 regarding the defendant’s status did “not establish the requisite circumstances needed

17 to demonstrate a legitimate emergency requiring immediate police assistance.” Id.

18 ¶ 14.




                                              14
 1   {21}   In the present case, Defendant argues that the State failed to prove all three

 2 Ryon factors beyond a reasonable doubt. We address each factor in turn.

 3 1.       Law Enforcement’s Reasonable Belief That There Was an Emergency
 4          Requiring an Immediate Need for Assistance for the Protection of Life or
 5          to Avoid Serious Injury

 6   {22}   Defendant argues that law enforcement did not have an objectively reasonable

 7 belief that action was necessary to protect him against an imminent danger to his life

 8 or limb. Defendant argues that any injury to him as a result of the crash was

 9 speculative and was insufficient to sustain a finding that there was an emergency.

10 Defendant also points out that there was no blood at the scene of the accident, and

11 there was not extensive damage to the pickup. Although he does not appear to dispute

12 that he was in fact struggling with his shirt, he argues that the struggle did not indicate

13 an emergency because he was not also bleeding, screaming, crying, or moaning in

14 pain. He argues that if law enforcement truly believed that Defendant was

15 experiencing an emergency, they would have called an ambulance sooner.

16   {23}   We disagree with Defendant’s interpretation of the facts and conclude that in

17 this case law enforcement reasonably believed that Defendant was in need of

18 immediate aid to protect or preserve life or avoid serious injury. See Ryon, 2005-

19 NMSC-005, ¶ 29. The law enforcement officers were aware that there had been a

20 crash with injuries. Although they were unaware of the extent of the injuries, they saw


                                               15
 1 shoe prints around the vehicle believed to have been in the crash that were consistent

 2 with a scuffle or someone having fallen, and saw a pair of glasses on the ground. Once

 3 the sergeants approached Defendant’s residence, they knocked multiple times. After

 4 the door to the residence opened from the knocking, they witnessed Defendant on the

 5 floor with his arms stuck, as he struggled with his shirt. The sergeants identified

 6 themselves as law enforcement and asked multiple times if Defendant was okay, and

 7 Defendant did not respond. It was only after trying to address Defendant’s situation

 8 verbally, and without success, that law enforcement entered the residence. Although

 9 they did not know the exact nature of Defendant’s situation, the sergeants testified that

10 they were concerned Defendant had suffered an injury or was having a seizure or

11 some other medical emergency.

12   {24}   While we are wary of warrantless entries into a person’s residence, the facts in

13 this case support law enforcement’s reasonable belief that Defendant was

14 experiencing an emergency and in need of immediate assistance. The facts in this case

15 are notably different from the facts in Ryon, Baca, and Cordova, none of which

16 involved officers actually seeing an individual physically struggling and unresponsive.

17 Moreover, unlike the officer who entered the residence in Baca, law enforcement here

18 attempted to contact Defendant or whoever else might be inside the residence by

19 knocking multiple times, and upon the door opening on its own and the sergeants


                                               16
 1 seeing Defendant, announcing their presence, and asking whether Defendant was

 2 okay. There was no testimony as to other individuals on scene that could have entered

 3 the residence in lieu of law enforcement. Thus, there were no available, feasible, and

 4 effective alternatives to law enforcement entry.

 5 2.       The Primary Motivation for Entering the Residence

 6   {25}   Defendant argues that law enforcement’s primary purpose in entering his home

 7 was to pursue their criminal investigation of the accident, which they did immediately

 8 after assisting Defendant to free his arms from his shirt. In support of his position,

 9 Defendant highlights Sergeant Brockett’s testimony that he went to Defendant’s

10 residence to assist in the investigation of the hit-and-run accident. He also points to

11 Sergeant Howard examining Defendant’s shoes after entering the residence and

12 Sergeant Brockett asking Defendant if he had been drinking and driving.

13   {26}   Despite Defendant’s arguments, we hold that the State proved that law

14 enforcement’s primary motivation in entering Defendant’s residence was “[t]he

15 protection of human life or property in imminent danger[.]” Ryon, 2005-NMSC-005,

16 ¶ 36 (alteration, internal quotation marks, and citation omitted). As noted in Ryon,

17 emergency situations can occur during a criminal investigation, and thus we consider

18 the primary motivation for the entry. Id. ¶¶ 35-36. In this case, although the sergeants

19 were at Defendant’s residence to investigate a hit-and-run accident, it does not appear


                                              17
 1 that they entered the residence in pursuit of that purpose. Once they saw Defendant

 2 on the floor, non-responsive, and physically struggling with his shirt, they entered and

 3 actually helped Defendant with his shirt. Officer Brockett again asked if Defendant

 4 was okay, and only then did Defendant respond affirmatively. Defendant tried to get

 5 up but immediately fell down and into the entertainment center and onto the floor, at

 6 which point an ambulance was called.

 7   {27}   Although there is evidence in the record to support that law enforcement

 8 initially went to Defendant’s residence to investigate a crash, there is nothing in the

 9 record to indicate that entry into the home was similarly and primarily motivated by

10 investigative goals. This is notably different from the warrantless entry in Ryon, which

11 seemed to be primarily motivated by the underlying investigation, as opposed to

12 protection of human life. See id. ¶¶ 40, 45 (holding that “the facts within the entering

13 officers’ knowledge were not sufficient to elevate their primary role to that of

14 community caretaking” (internal quotation marks omitted)). We also note that

15 although the sergeants did appear to ask investigatory questions and take pictures of

16 Defendant’s shoes, they only did so after assisting Defendant. It was not until after

17 rendering aid that law enforcement discovered Defendant exhibited clear signs of

18 intoxication and then took up the criminal investigation.

19 3.       Law Enforcement’s Reasonable Basis to Associate the Emergency With
20          Defendant’s Residence

                                              18
 1   {28}   Defendant argues that the sergeants did not have a reasonable basis for

 2 associating any emergency situation with Defendant’s home. He argues that although

 3 the evidence may have created an association between Defendant’s residence and a

 4 potential crime, it did not create an association between the residence and a potential

 5 emergency. He argues that even if law enforcement had sufficient reason to associate

 6 Defendant’s residence with an emergency upon seeing his struggle with his shirt, the

 7 sergeants should have left the residence once Defendant was free from his shirt and

 8 the emergency was abated.

 9   {29}   We do not find Defendant’s position compelling. Here, law enforcement had

10 a reasonable basis to associate the emergency with the area or place to be searched.

11 The sergeants were directed to Defendant’s residence as a location possibly associated

12 with a vehicle involved in a crash. Once at Defendant’s residence, they observed shoe

13 prints leading from the vehicle to Defendant’s front door—the pattern of which

14 suggested that someone had fallen. This was corroborated by the pair of glasses found

15 on the ground nearby. Upon locating Defendant, the sergeants witnessed Defendant

16 on his floor struggling. Thus, there appeared to be an emergency taking place in

17 Defendant’s residence. The facts here are notably different from the facts in Cordova,

18 where there was an absolute lack of evidence at the defendant’s home indicating a

19 genuine emergency. See 2016-NMCA-019, ¶ 13 (stating that there were no signs of


                                             19
 1 injury at the residence and there were no sounds from inside the house that alerted the

 2 deputies the defendant was in need of immediate aid).

 3   {30}   Moreover, as indicated in Ryon, once law enforcement is inside of a residence

 4 that is directly tied to an emergency, they may expand the scope of the intrusion if

 5 probable cause or reasonable suspicion arises. 2005-NMSC-005, ¶ 38. In this case,

 6 there is no evidence that the sergeants removed items from the residence, though they

 7 did take pictures of Defendant’s shoes, and did ask Defendant if he had been driving.

 8 This minor expansion was based on the fact that Defendant’s shoes appeared to match

 9 the shoe prints by the pickup, and Defendant smelled like alcohol, had bloodshot and

10 watery eyes, had slurred speech, and had significant trouble standing. In light of the

11 discovery of Defendant’s state when they entered to assist him, the additional inquiries

12 were not inappropriate, and the sergeants did not improperly expand the scope of their

13 search. We also note that aside from asking Defendant questions and photographing

14 his shoes, there was no evidence that they conducted a meaningful search of any areas

15 within the home for any criminal evidence.

16 Aggravated DWI Jury Instruction

17   {31}   Defendant argues that although he did not object at trial, the aggravated DWI

18 instruction provided to the jury was in error. When a party fails to object to a tendered

19 jury instruction, we review the issue for fundamental error. See State v. Benally, 2001-


                                              20
 1 NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. In reviewing a jury instruction for

 2 fundamental error, we first determine “whether a reasonable juror would have been

 3 confused or misdirected by the jury instruction” that was given. State v. Barber, 2004-

 4 NMSC-019, ¶ 19, 135 N.M. 621, 92 P.3d 633. Confusion or misdirection may arise

 5 from “instructions which, through omission or misstatement, fail to provide the juror

 6 with an accurate rendition of the relevant law.” Benally, 2001-NMSC-033, ¶ 12.

 7   {32}   Defendant argues that there was fundamental error because the jury instruction

 8 used for aggravated DWI omitted the second half of the second element of UJI 14-

 9 4506 NMRA. Specifically, Defendant argues that the instruction should have required

10 the jury to find beyond a reasonable doubt that (1) Defendant operated a motor

11 vehicle; (2) within three hours of driving, Defendant had an alcohol concentration of

12 0.16 grams or more in 100 milliliters of blood and the alcohol concentration resulted

13 from alcohol consumed before or while driving the vehicle; and (3) this happened in

14 New Mexico. See id. Instead, as to the second prong, the jury was simply instructed

15 that it must find beyond a reasonable doubt that within three hours of driving,

16 Defendant had an alcohol concentration of 0.16 grams or more in 100 milliliters of

17 blood. Defendant argues that by omitting the requirement that the BAC resulted from

18 alcohol consumed before or while driving the vehicle, the instruction failed to reflect

19 a critical component of DWI. Defendant also argues that the instruction as given was


                                              21
 1 erroneous because it permitted the jury to convict Defendant of conduct that is not

 2 actually illegal, i.e., having a high BAC within three hours of driving without showing

 3 that Defendant actually drove in such condition.

 4   {33}   We agree that omitting the at-issue portion of the jury instruction was error.

 5 However, we do not believe that the error rose to the level of fundamental error. Our

 6 Supreme Court evaluated fundamental error as applied when an element was omitted

 7 from a jury instruction in State v. Orosco, 1992-NMSC-006, ¶¶ 12, 15, 113 N.M. 780,

 8 833 P.2d 1146. Orosco held:

 9                 The rule of fundamental error applies only if there has been a
10          miscarriage of justice, if the question of guilt is so doubtful that it would
11          shock the conscience to permit the conviction to stand, or if substantial
12          justice has not been done. Clearly, when a jury’s finding that a defendant
13          committed the alleged act, under the evidence in the case, necessarily
14          includes or amounts to a finding on an element omitted from the jury’s
15          instructions, any doubt as to the reliability of the conviction is eliminated
16          and the error cannot be said to be fundamental. The trial court’s error in
17          failing to instruct on an essential element of a crime for which [a]
18          defendant has been convicted, where there can be no dispute that the
19          element was established, therefore does not require reversal of the
20          conviction. . . .

21                ....

22                 . . . [W]hen the verdict of guilty is correct beyond a reasonable
23          doubt, despite an instruction which has relieved the state of [its burden
24          to prove beyond a reasonable doubt every element of the charged
25          offense], reversal of the conviction does nothing to promote the interest
26          that the rule serves. . . . [T]he purpose of the rule requiring proof beyond
27          a reasonable doubt on each element is not served by mechanically
28          requiring reversal even though the jury’s findings, in light of the

                                                 22
 1          undisputed evidence in the case, necessarily establish that the element
 2          was met beyond a reasonable doubt.

 3 Id. (internal quotation marks and citations omitted).

 4   {34}   In this case, we decline to conclude there was fundamental error because we are

 5 unconvinced that there has been a miscarriage of justice, that the question of guilt is

 6 so doubtful that it would shock the conscience to permit the conviction to stand, or

 7 that substantial justice has not been rendered. Defendant argues that the jury

 8 instruction, as worded, means that Defendant could be convicted of a non-existing

 9 crime, i.e., getting into a crash, driving home, and then drinking heavily for 20

10 minutes to the point of his BAC being 0.39. But there was no testimony provided to

11 the jury that Defendant drank between the time of the accident and law enforcement

12 arriving at his house. The evidence offered at trial indicated that law enforcement

13 responded to Defendant’s home and made contact with him within approximately 30

14 minutes from the hit-and-run accident that precipitated the investigation. Defendant’s

15 involvement in a hit-and-run accident, together with the short interval between the

16 accident and the arrest, Defendant’s extraordinarily high BAC of 0.39, and

17 Defendant’s own admissions that he had driven to get a sandwich, that he knew he

18 should not have been driving, and had made a mistake gave rise to a reasonable

19 inference that he had consumed alcohol prior to driving. See State v. Mailman, 2010-

20 NMSC-036, ¶¶ 23-24, 26-28, 148 N.M. 702, 242 P.3d 269 (recognizing that the

                                              23
 1 prosecution may introduce direct or circumstantial evidence that the defendant drove

 2 while intoxicated); see generally State v. Herrera, 1991-NMCA-005, ¶ 20, 111 N.M.
3 560, 807 P.2d 744 (“The trier-of-fact may, based upon the evidence, make reasonable

 4 inferences supported by logic, common knowledge, and experience.”). Given the

 5 evidence in support of the inference that Defendant consumed alcohol prior to driving

 6 and the fact that there was no evidence offered to dispute this inference, we do not

 7 conclude that the State’s omission of the second part of the second element of the jury

 8 instruction was fundamental error requiring a new trial.

 9 Sufficiency of the Evidence

10   {35}   Defendant challenges the sufficiency of the evidence supporting his conviction

11 for aggravated DWI. “In reviewing the sufficiency of the evidence, [the appellate

12 courts] must view the evidence in the light most favorable to the guilty verdict,

13 indulging all reasonable inferences and resolving all conflicts in the evidence in favor

14 of the verdict.” State v. Gallegos, 2009-NMSC-017, ¶ 30, 146 N.M. 88, 206 P.3d 993

15 (internal quotation marks and citation omitted). “The relevant question is whether,

16 after viewing the evidence in the light most favorable to the prosecution, any rational

17 trier of fact could have found the essential elements of the crime beyond a reasonable

18 doubt.” State v. Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891

19 (alteration, internal quotation marks, and citation omitted).


                                              24
 1   {36}   In order to convict Defendant of aggravated DWI, the State was required to

 2 prove beyond a reasonable doubt that Defendant drove “a vehicle in this state with an

 3 alcohol concentration of [0.16] or more in [his] blood or breath within three hours of

 4 driving the vehicle and the alcohol concentration results from alcohol consumed

 5 before or while driving the vehicle[.]” Section 66-8-102(D)(1); see UJI 14-4506.

 6 Defendant specifically argues that (1) the State failed to produce sufficient evidence

 7 that he was driving the vehicle involved in the crash, and (2) the State failed to show

 8 that Defendant drove his vehicle in an intoxicated state.

 9   {37}   We disagree that there was insufficient evidence to convict Defendant of

10 aggravated DWI. In this case, there was eyewitness testimony that the driver of the

11 pickup involved in the crash looked like Defendant. The witnesses described the

12 physical characteristics of the pickup and identified a picture of Defendant’s pickup

13 as looking like the pickup involved in the crash. Immediately after the crash, one of

14 the witnesses reported the license plate of the pickup involved in the crash to

15 authorities, and law enforcement was able to tie that plate to Defendant’s address.

16 Sergeant Howard identified an image of Defendant’s truck as being the subject of the

17 investigation and indicated that it had front-end damage consistent with a crash. The

18 testimony indicated that there were shoe prints leading from the truck to Defendant’s

19 trailer, that Defendant’s shoes matched the prints outside of the truck with the front-


                                             25
 1 end damage, and that Defendant was the only person in the home. This testimony was

 2 bolstered by Defendant’s own admissions that he had been drinking, had gone to get

 3 a sandwich, and knew he should not have been driving. In light of this testimony,

 4 there was sufficient evidence for the jury to find that Defendant was driving the

 5 pickup and that that pickup was involved in the crash.

 6   {38}   As to Defendant’s second sufficiency argument—that the State failed to show

 7 that he drove his vehicle in an intoxicated state—we are similarly unconvinced. The

 8 facts relied upon in resolving the jury instruction issue earlier in this Opinion also

 9 apply here. Given the testimony regarding Defendant’s physical state approximately

10 30 minutes from the time of the crash and given Defendant’s highly elevated BAC

11 within three hours of the crash, the evidence supports a reasonable inference that

12 Defendant had consumed alcohol prior to driving and that Defendant drove his vehicle

13 in an intoxicated state. Although defense counsel inferred at trial that Defendant could

14 have gotten intoxicated in the time between driving and the sergeants’ arrival, there

15 was no testimony offered at trial to support that inference, and the jury was free to

16 adopt the State’s version of events instead of Defendant’s. The jury was at liberty to

17 find, as it did, that the State’s evidence was sufficiently compelling to support a

18 conviction. See generally State v. Armijo, 2005-NMCA-010, ¶ 4, 136 N.M. 723, 104

19 P.3d 1114 (“[I]t is for the fact-finder to evaluate the weight of the evidence, to assess


                                              26
 1 the credibility of the various witnesses, and to resolve any conflicts in the evidence;

 2 we will not substitute our judgment as to such matters.”).

 3 Administrative Error

 4   {39}   Defendant’s judgment and sentence reflects a conviction under Section 66-8-

 5 102(D)(3) (aggravated refusal). Defendant requests that we order his judgment and

 6 conviction be corrected to accurately reflect that Defendant was convicted under

 7 Section 66-8-102(D)(1) of aggravated DWI based on his high BAC level, as opposed

 8 to his refusal under the Implied Consent Act. Defendant states that it is appropriate to

 9 amend the judgment and conviction because it currently includes a typographical

10 error. See, e.g., State v. Gutierrez, No. 29,004, 2009 WL 6560310, mem. op. ¶ 1 (N.M.

11 Ct. App. July 31, 2009) (non-precedential) (“[A]lthough we affirm [the d]efendant’s

12 convictions, we remand to the district court for correction of a typographical error in

13 the judgment and sentence.”).

14   {40}   We agree that the typographical error here should be corrected. Although

15 Defendant refused to submit to a chemical test under the Implied Consent Act, which

16 could have been used to support a conviction for aggravated DWI, see § 66-8-

17 102(D)(3), the State pursued aggravated DWI on the grounds that Defendant’s BAC

18 was well above 0.16, which relies on a different subsection within the DWI statute.

19 See § 66-8-102(D)(1). The jury in this case was instructed on and convicted Defendant


                                              27
 1 on the basis of an elevated BAC theory. The jury was never instructed as to the refusal

 2 theory. We agree that the judgment, as worded, inaccurately reflects the grounds for

 3 Defendant’s conviction. We therefore order that the judgment, sentence, and

 4 commitment be amended to reflect Defendant’s conviction for aggravated DWI based

 5 on his BAC level pursuant to Section 66-8-102(D)(1), as opposed to aggravated DWI

 6 based on refusal pursuant to Section 66-8-102(D)(3).

 7 CONCLUSION

 8   {41}   We affirm the district court’s denial of Defendant’s motion to suppress, and we

 9 affirm Defendant’s conviction for aggravated DWI (fifth). However, we remand to the

10 district court to amend the judgment so that it accurately reflects the basis for

11 Defendant’s conviction as outlined in this Opinion.

12   {42}   IT IS SO ORDERED.



13                                          __________________________________
14                                          JONATHAN B. SUTIN, Judge


15 WE CONCUR:



16 _______________________________
17 LINDA M. VANZI, Judge



                                              28
1 _______________________________
2 J. MILES HANISEE, Judge




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