This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. No. 28,801 9 JESSE MANFORD CHAVEZ, 10 Defendant-Appellant 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Frank H. Allen, District Judge 13 Gary K. King, Attorney General 14 Farhan Khan, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Carlos Ruiz de la Torre, A ssistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21

MEMORANDUM OPINION 22 SUTIN, Judge. 232 Defendant appeals his convictions for greatbodily injury by vehicle in violation 1 of NMSA 1978, Section 66-8-101 (2004), reckless driving in violation of NMSA 2 1978, Section 66-8-113 (1987), leaving the scene of an accident involving death or 3 great bodily harm in violation of NMSA1978, Section 66-7-201 (1989), and leaving 4 the scene of an accident involving damage to a vehicle in violation of NMSA 1978, 5 Section 66-7-202 (1978). Because we conclude that error in the admission of 6 evidence at Defendant’s trial was not harmless, we reverse Defe ndant’s convictions. 7 BACKGROUND 8 The charges in this case ar ose from an incident in wh ich a Chevrolet Blazer was 9 involved in two accidents within approximately half a mile of one another. The driver 10 fled the scene on foot after the second accident, leaving the Blazer where it had 11 crashed. Based on information found in the vehicle and through radio contact with 12 the motor vehicle division, using normal po lice procedure, the po lice determined that 13 the Blazer belonged to Nancy Chavez. Deputy Charles Haycox contacted Ms. Chavez 14 by telephone the evening of the accident, and during that conversation, Ms. Chavez 15 informed Deputy Haycox that her son, Defendant, had been driving the Blazer at the 16 time of the accident. Two days later, Deputy Haycox called Ms. Chavez once more, 17 and Ms. Chavez again told the deputy that Defendant was driving the Blazer at the 183 time of the accident. She also stated that Defendant had sustained minor injuries, that 1 he had tried to avoid the accident, and that the accident was not his fault. 2 At trial, the primary contested issu e was whether Defendant was the person 3 driving the Blazer. Paul Chavez, the driverof the first vehicle the Blazer hit, was 4 unable to identify Defendant in court as the driver of the Blazer. However, he testified 5 that he caught a “glimpse” of Defendan t’s face at the scene and evidence was 6 presented that he selected a photograph of Defendant from a photo array shown to him 7 two weeks after the accident. Loreno Garcia, Jr., the driver of the second vehicle the 8 Blazer hit, stated that he did not get a good look at the driver of the Blazer, that the 9 driver could have been Defendant, but that it was hard to say and th at he could not say 10 for certain that Defendant wa s the driver who hit him. Jimmy Sena, a witness to the 11 second accident, was able to id entify Defendant in court as the person involved in the 12 accident. However, Mr. Sena admitted that at the time of the accident with regard to 13 distinguishing marks or tattoos, “I really didn’t look at [the driver]. I didn’t pay 14 attention that well.” The description Mr . Sena provided to the police described 15 Defendant’s hair as light br own and apparently did not i ndicate that Mr. Sena saw the 16 various tattoos on Defendant ’s chest and back. Another witness to the second 17 accident, Daniel Corona, who knows Defendant and his family, testified that it was 18 Defendant’s father who was driving the Blazer. 194 The State called Ms. Chavez to testify. After a few preliminary questions, the 1 State asked whether Ms. Chav ez was the owner of the Bl azer. Ms. Chavez said she 2 was, but that she was not driving the ve hicle when it was wrecked. The State then 3 asked whether Ms. Chavez recognized certaininformation on a form that described 4 her vehicle. Ms. Chavez responded that she could not remember and stated that the 5 reason she had difficulties remembering th ings from the relevant time period was 6 because of personal problems. The Stat e asked whether Ms. Chavez knew who was 7 driving the Blazer on the date in question, and Ms. Chavez said she did not know. 8 The State asked if Defendant had permissi on to drive it, and Ms. Chavez said, “No. 9 My husband had it at home. It was not working.” The State again asked if Defendant 10 had permission to use the Blazer, and Ms. Chavez said her husband would have to be 11 the one to answer that question because she was at work that day. The State asked if 12 Defendant was ever allowed to use the ve hicle, and Ms. Chavez said, “[Yes]. My 13 husband did when it was fixed, but it hadn’t been fixed for a couple of months.” After 14 several questions about Defendant’s father, the St ate asked whether Ms. Chavez 15 remembered being contacted by the Sheriff’s Department on the day of the accident. 16 Ms. Chavez said she did not. The State asked if Ms. Chavez remembered Deputy 17 Haycox calling her that day, and she said, “No.” The State aske d if she remembered 18 being contacted by the deputy two days later, and Ms. Chavez gave a response that is 195 transcribed as “(No audibl e response.)” The State began to ask if Ms. Chavez 1 remembered telling Deputy Haycox something during their phoneconversation, but 2 defense counsel interjected and objected on grounds of hearsay. The district court 3 asked if the State’s question was being as ked for purposes of impeachment, and the 4 State said it was. 5 A brief bench conference was held, duri ng which the court excused the jury to 6 hear further argument. Neither the distri ct court nor the State indicated specifically 7 which of Ms. Chavez’s in-court statements was inconsistent with her prior out-of8 court statements such that she could be impeached with the prior statements. The 9 State tendered evidence thatMs. Chavez would testify that she did not remember 10 speaking to Deputy Haycox about the accident and that she did not remember making 11 the statements he said she made. Defens e counsel objected stating that Ms. Chavez’s 12 prior statements were hearsay and did not fall within the exception provided by Rule 13 11-801(D)(1)(a) NMRA, which only permits the admission of prior inconsistent 14 statements if the statements were made unde r oath. The district court asked whether 15 an out-of-court statement is a prior inconsis tent statement when the witness says she 16 does not remember the prior conversation. Defendant di d not directly address the 17 substance of this question, saying that the testimony was “essentially impeachment” 18 and that the State was trying to impeach Ms. Chavez, but the jury would use the 196 testimony as substantive evidence which would not be proper because the prior 1 statements were not under oath. The Stat e argued that it could impeach Ms. Chavez 2 because she claimed to have no memory of the prior stat ements and that pursuant to 3 Rule 11-613 NMRA, the statements woul d then be admissible through Deputy 4 Haycox. Defendant argued that if the prior statements were offered, the State could 5 try to refresh Ms. Chavez’s recollection, but that the prior statements could not be 6 relayed to the jury. The district court ru led that it would allow the questioning of Ms. 7 Chavez as impeachment and then permitte d Deputy Haycox to testify about the 8 conversation as extrinsic impeachment evidence. 9 The jury was brought back into the courtroom and Ms. Chavez testified that she 10 did not remember speaking to Deputy Haycox. The following colloquy took place. 11 Q. Okay. Do you re member when [Deputy Haycox] called you on 12 June 10th at 9:30 in the evening that you told him that [Defendant] had 13 been driving a Blazer that day? 14 A. No. 15 Q. Do you remember telling him that you would try to find 16 [Defendant] so that he could talk to him about the wreck? 17 A. No. 18 Q. Do you remember talking to him again two days later on June 12th 19 at about 9:35 in the evening? 20 A. No. I don’t remember. 217 Q. Do you remember telling him at that time that [Defendant] had 1 told you that he was driving the Blazer? 2 A. No. 3 Q. Do you remember telling him that [D efendant] had told you that he was 4 in an accident? 5 A. No. 6 Q. Do you remember telling Deputy Haycox that [Defendant] said he 7 had received minor scrapes and scratches in the accident? 8 A. No. I don’t remember. 9 Q. And that he hurt his knee? 10 A. (Shaking head.) 11 Q. Do you remember telling Deputy Haycox that [Defendant] said it 12 wasn’t his fault? 13 A. No, I don’t remember. 14 Q. And that [Defendant] tried to prevent it from occurring? 15 A. No. 16 Q. So you don’t remember talking to the deputy at all? 17 A. I can’t remember right now. 18 Ms. Chavez explained that the reason sh e was having difficulties with her memory 19 was because the year of the accident, her hus band, her sister, and her brother died, and 20 that their deaths had caused Ms. Chavez stress and anxiety that required medication. 218 She stated that she did not deny having a conversation with Deputy Haycox, only that 1 she could not remember whether she had su ch a conversation. Deputy Haycox later 2 testified as to the substance of his conversations with Ms. Chavez. 3 Defendant was convicted and now app eals, arguing that (1) the admission of 4 Ms. Chavez’s prior out-of-court statements as impeachment was erroneous and that 5 the error was not harmless, (2) there was insufficient evidence on which a jury could 6 find beyond a reasonable doubt that Defendant was the driver of the Blazer, and (3) 7 Defendant’s right to be free of double jeopardy was violated by his conviction of two 8 charges that should have been merged into one offense. 9 DISCUSSION 10 Impeachment of Ms. Chavez with Her Prior Out-of-Court Statements 11 Defendant contends that the district c ourt erred in admitting evidence of the out12 of-court statements Ms. Chavez made to Deputy Haycox regarding the accident. 13 Defendant contends that the use of this evidence for purposes of impeachment was 14 improper because Ms. Chavez’s in-court statement that she had no recollection of any 15 conversation with Deputy Haycox provided no version of an event to impeach. We 16 review the district court’s decision for abuse of discretion in admitting evidence for 17 the purpose of impeachment. See State v. Macias , 2009-NMSC-028 , ¶ 16, 146 N.M. 189 378, 210 P.3d 804. A district court abuses its discretion when its ruling is based on 1 a misunderstanding of the law. Id. 2 When a witness’s testimony at trial differs from some other statement she has 3 made previously, the witness’s prior incons istent statement may be used to impeach 4 the witness’s credibility pur suant to Rule 11-613. See Macias , 2009-NMSC-028, ¶ 20 5 (noting that “it is the fact of the inconsistency that is admissible, not the substantive 6 truth or falsity of the prior statement” ). “To accomplish impeachment by prior 7 inconsistent statements, the attorney mustfirst elicit in-court testimony about a matter. 8 If the testimony is inconsistent with [the ] witness’s prior statement, the attorney 9 confronts the witness withthe prior statement.” Id. However, if the only testimony 10 of the witness that is questioned for incons istency is the witness’s statement of lack 11 of memory about making a prior statement, the prior statement cannot be used to 12 impeach the witness because there is no direct inconsistency between the testimony 13 of a lack of memory and the prior statement. See id. ¶ 21. 14 In this case, Ms. Chavez testified thatshe could not remember speaking with 15 Deputy Haycox about the accident. This stat ement was the only stated basis for the 16 State’s argument in the district court regarding impeachment. The State did not 17 contend that it sought to impeach the witn ess based on any other factual statements 18 that Ms. Chavez made up to the point in th e trial when this impeachment issue was 1910 raised. Furthermore, on appeal, the State points to no statement of fact made by Ms. 1 Chavez that could provide an alternative basis for the district court’s ruling. 2 Accordingly, we only address the issue of whether Ms. Chavez’s statement that she 3 did not remember any conversation withDeputy Haycox pr ovided a basis for 4 impeaching her with extrinsic evidence of the conversations. We hold that, pursuant 5

to Macias , the use of Ms. Chavez’ s prior statements for impeachment purposes was 6 improper where Ms. Chavez testif ied at trial that she simply did not remember having 7 any conversation withDeputy Haycox. See id. ¶¶ 21-22. 8 The State reads Macias to permit the use of a witness’s prior statements for 9 impeachment purposes when the witness tes tifies at trial to a lack of memory. Macias 10 does not support this argument. Maciasheld that when a witness testifies to a lack of 11 memory, the use of prior statements cannot be for impeachment purposes because 12 there was no inconsistent statement to impeach. See id. ¶ 21. Maciasstates that 13 [t]he use of the taped phone conversation during the [d]istrict 14 [a]ttorney’s direct examination of [a witness] was not for impeachment 15 purposes. The [d]istrict [a]ttorney began this area of questioning by 16 asking [the witness] whether he remembered calling [his cousin] . . . . 17 After [the witness] testified that he did not remember the telephone call 18 and was uncertain what was discu ssed, the [d]istrict [a]ttorney 19 distributed a transcript to the jury and played the recording of the phone 20 call in its entirety. The [d]istrict [a ]ttorney then proceed ed to have [him] 21 attempt to interpret the meaning of [her] statements . The [d]istrict 22 [a]ttorney simply was not impeach ing [the witness] with a prior 23 inconsistent statement, because [he] had not made a statement in his 24 testimony that could be impeached by the statements made in the call. 2511 Id. Although Maciascontains a citation to a West Virginia Supreme Court of Appeals 1 case stating that when a witness testifies to a lack of memory, prior statements may 2 only be used “sparingly to demonstrate lack of integrity in the witness,” Maciasdid 3 not actually approve of any use of the prior statements in that case and did not explain 4 what “must be used sparingly” might entail. Id. What Maciasdid say, however, was 5 that even if use of the st atements as impeachment had been proper, “the introduction 6 of the entire call with its myriad hearsay st atements would plainly be an inappropriate 7 undertaking, unless the hearsay itself were admissible.” Id. In this case, where it 8 appears that the State cro ss-examined Ms. Chavez about the entire substance of her 9 prior statements to Deputy Haycox and introduced extrinsic evidence of the 10 conversation through the deputy’s testimony, Maciascounsels that the admission of 11 this evidence was improper. 12 Because Maciasindicates that the evidence of Ms. Chavez’s prior statements 13 was not admissible for purposes of impeach ment, and as there is no contention that 14 it was admissible as substantive evidence, Defendant was not re quired to request a 15 limiting instruction in order to merit reversal on appeal. See Rule 11-105 NMRA 16 (stating when evidence is admissible for onepurpose but not for another, a party may 17 request a limiting instruction). This is not a case in which the evidence could have 1812 been properly limited to a particular legitim ate evidentiary use. Instead, it was simply 1 inadmissible. 2 The State argues that evenif the evidence should not have been admitted for 3 impeachment purposes, the error was harmless. “A reviewing court should only 4 conclude that a non-constitutional error is harmless when there is no reasonable 5 probability the error affected the verdict.” State v. Barr , 2009-NMSC-024, ¶ 53, 146 6 N.M. 301, 210 P.3d 198 (emphasis omitted). To decide whether error in the 7 admission of evidence was harmless, th is Court considers whether there is: 8 “(1) substantial evidence to support the convi ction without reference to the improperly 9 admitted evidence; (2) such a disproportionate volume of permissible evidence that, 10 in comparison, the amount of improper ev idence will appear minuscule; and (3) no 11 substantial conflicting evidence to discredit the State’s testimony.” Id. ¶ 56 (footnote 12 omitted). 13 Here, there was substantial evidence to support Defendant’s convictions without 14 reference to the improperly admitted evidence. Substantial eviden ce is “such relevant 15 evidence as a reasonable mind might accept as adequate to support a conclusion.” 16 State v. Salgado , 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal 17 quotation marks and citation omitted). De fendant’s only argument regarding the 18 sufficiency of the evidence wa s that there was insufficien t evidence to establish that 1913 he was the person driving the Blazer. However, two eyewitnesses identified 1 Defendant as the driver. At trial, Mr . Sena identified Defendant as the person 2 involved in the accident. Mr. Chavez te stified that he caught a “glimpse” of 3 Defendant’s face at the scene, and there wa s evidence that he selected Defendant as 4 the driver in a photo array shown to him two weeks after the incident. Although Mr. 5 Chavez could not identify Defendant in court, his prior identification, in combination 6 with Mr. Sena’s in-court identification, was substantial evidence from which a 7 reasonable jury could conclude beyond a reasonable doubt that Defendant was the 8 driver. 9 Although there was substantial evid ence to support the conclusion that 10 Defendant was the driver, we conclude th at there was not such a disproportionate 11 volume of permissible evidence on this issu e that the impermi ssible evidence seems 12 minuscule. See Barr , 2009-NMSC-024, ¶ 56. With re spect to his identification of 13 Defendant, Mr. Sena stated that even though he came face to face with Defendant 14 while at the scene, with regard to distingui shing marks or tattoos he replied, “I really 15 didn’t look at him. I didn’t pay attention that well.” Defendant was not wearing a 16 shirt when Mr. Sena saw him after the accident, Mr. Sena did not testify to seeing the 17 various tattoos on Defendant’s chest and back . In Mr. Sena’s statement to the police 18 after the accident, he said that Defendant had light brown hair, and when asked at trial 1914 what color Defendant’s hair was, Mr. Sena revised his a ssessment and called 1 Defendant’s hair “light black.” Mr. Ch avez selected Defendant’s photograph from an 2 array of photos provided by the police two weeks after the accident, but both he and 3 Mr. Garcia were unable to identify Defendant at trial. The volume of the evidence 4 identifying Defendant as the driver does not make the prior out-of-court statements 5 of Defendant’s mother, which relay Defendant’s confession to her that he was the 6 driver of the vehicle, minuscule in comparison. 7 Finally, Defendant introduced the te stimony of Mr. Corona that it was 8 Defendant’s father who was driving the Bl azer at the time of the accidents. This 9 constitutes substantial evidence that c onflicted with the State’s evidence that 10 Defendant was the driver. See id. 11 Upon balancing these factors, this Court can conclude that there is a reasonable 12 probability that the error in the admission of Ms. Chavez’s prior statements affected 13 the verdict. See id. ¶ 53. Accordingly, the error is not harmless and warrants reversal 14 of Defendant’s convictions. 15 Defendant’s Other Claims of Error 16 Defendant asserts that there was insuffici ent evidence to establish that he was 17 the person driving the vehicle. “In reviewi ng the sufficiency of the evidence, we must 18 view the evidence in the li ght most favorable to the guilty verdict, indulging all 1915 reasonable inferences and re solving all conflicts in the evidence in favor of the 1 verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 2 “The relevant question is whether, after viewing the evidence in the light most 3 favorable to the prosecution, any rational trier of fact could have found the essential 4 elements of the crime beyond a reasonable doubt.” Id. (alteration omitted) (emphasis 5 omitted) (internal quotation marks and citation omitted). As we explained in our 6 harmless error analysis, we conclude that the evidence was sufficient and that reversal 7 is not warranted on this basis. To the degree that any of the witnesses’ testimony 8 identifying Defendant was equivocal or subj ect to questions about its reliability, such 9 conflicts in the evidence werefor the jury to resolve. 10 Because we reverse all four of Defendant’s convictions on the basis of the 11 erroneous admission of Ms. Chavez’s hearsay statements for impeachment purposes, 12 we need not address Defendant ’s argument for reversal of one of his convictions based 13 on his claim that two of the charges agai nst him should have merged in order to 14 comport with double jeopardy principles. 15 CONCLUSION 16 For the reasons stated in this opinion, we reverse Defendant’s convictions. 17 IT IS SO ORDERED. 1816 __________________________________ 1 JONATHAN B. SUTIN, Judge 2

WE CONCUR: 3

_______________________________ 4 CELIA FOY CASTILLO, Judge 5

_______________________________ 6 TIMOTHY L. GARCIA, Judge 7