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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO. 31,373 4 RICHARD MACLAURIN, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 7 Stephen Pfeffer, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Ralph E. Trujillo, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jacqueline L. Cooper, Chief Public Defender 14 B. Douglas Wood III, Assi stant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17

MEMORANDUM OPINION 182 KENNEDY, Judge. 1 Richard MacLaurin (Defendant) appeals from his felony conviction for driving 2 while under the influence of intoxicating liquor and/or drugs (DWI). He claims there 3 was insufficient evidence to support his convi ction because the State did not prove he 4 was in actual physical control of the truck while intoxicated. We find no merit to 5 Defendant’s argument and affirm. 6 I. BACKGROUND 7 On May 25, 2010, Shasta Brooks, a small business owner, contacted the police 8 regarding an old pick-up truck parked in th e parking lot outside her business. She was 9 concerned about the negative impact the truck had on her busin ess because it “really 10 looked bad.” She was also concerned the driver might be a drunk driver. Brooks 11 notified the police that she had seen Defendant park the truck, walk away toward a 12 local restaurant and bar, and return to the truck after approxi mately one hour. While 13 waiting for the police to arrive, Brooks approached the truck and observed Defendant 14 in the driver’s seat, apparently “passed out.” She testified that she had seen the truck 15 in the parking lot approximately three times per week over the previous one to two 16 months, and it would typically remain in the parking lot for three to four hours. She 17 had never seen anyone other than Defe ndant associated with the truck. 183 Santa Fe Police Officer Rachel Meserve was dispatched in response to Brooks’s 1 call. She observed Defendant in the driver’s seat of th e truck, which was not running. 2 Defendant told Officer Meserve he was waiting for a phone call. The officer smelled 3 the odor of alcohol on Defendant’s breath and noted that his speech was slurred, and 4 he seemed “a little confused.” She aske d Defendant for the keys to the truck’s 5 ignition, and he retrieved them from the pocket of his pants. 6 Santa Fe Police Officer Donna Beck, assigned to the DWI Unit, was also 7 dispatched in response to Brooks’s call and arrived on scene at approximately 4:10 8 p.m. Officer Beck spoke to Officer Meserv e and then approached Defendant. Officer 9 Beck testified to the following: 10 [H]e told me he had two beers earlier. And I asked him what he was 11 doing there, and he told me that hewas a contractor, and that he was 12 waiting for a phone call, and as soon as he got this phone call, he would 13 be leaving. And I said, “You’re waiting for a call?” He said, “Yes, for 14 my next job. I’m just waiting for this call to come in.” And he had a cell 15 phone. . . . He says, “As s oon as I get this call, I’m out of here. I’ll leave 16 this place. I won’t come back and park here.” 17 Officer Beck asked Defendant to step out of the truck, and he performed field sobriety 18 tests. While Officer Beck and Defendant were walking away from the truck, 19 Defendant stated that “he was a contract or” and “something about he had to go to 20 work.” Defendant indicated signs of impairment or intoxication in his performance 21 of the field sobriety tests. Defendant later agreed to provi de two breath samples, 224 which showed a blood alcohol content of .08. Defendant moved for a directed verdict 1 at the close of the State’s cas e. The district court deniedthe motion. Defendant then 2 testified that he “had a couple of beers” but “had no intention of driving whatsoever.” 3 He claimed he was waiting for a phone call from one of his co-workers, who always 4 drove the truck and was going to drive him home. 5 The district court found Defendant guilty. The judge stated: “The [c]ourt finds, 6 beyond a reasonable doubt, that . . . Defendant intended to drive this [truck] and would 7 pose a threat or danger to himself or others in the public. In finding this, . . . I find the 8 story of . . . Defendant, frankly, contrived and nonsensical.” The district court 9 sentenced Defendant to two years imprisonment because this was his fifth offense. 10 Defendant was given credit for time served , and the remainder of his sentence was 11 suspended. 12 II. DISCUSSION 13 On appeal, Defendant challenges the suffi ciency of the evidence to support his 14 conviction. “[O]ur review for sufficiency of the evidence is deferential to the jury’s 15 findings.” State v. Garcia , 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057. We 16 review direct and circumstantial evidence “in the light most favorable to the guilty 17 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence 18 in favor of the verdict.” Id. (internal quotation marks and citation omitted). 195 Defendant was convicted of DWI, pursuant to NMSA 1978, Section 66-8- 1 102(A) (2010), which provides that “[i]t is unlawful for a person who is under the 2 influence of intoxicating liquor to drive a vehicle within this state.” Our Supreme 3 Court has “interpreted the word ‘drive’ to mean either driving a motor vehicle, or 4 being in actual physical control whether or not the vehicle is moving.” State v. 5 Mailman , 2010-NMSC-036, ¶ 7, 148 N.M. 702, 242 P.3d 269 (internal quotation 6 marks and citation omitted). In State v. Sims , the Supreme Court held that, to secure 7 a DWI conviction under the actual physical control standard, the State must prove “(1) 8 the defendant was actually, not just poten tially, exercising control over the vehicle, 9 and (2) the defendant had the general intent to drive so as to pose a real danger to 10 himself, herself, or the public.” 2010-NMSC-027, ¶ 4, 148 N.M. 330, 236 P.3d 642. 11 Defendant contends that the State failed to meet its burden of proving he was in actual 12 physical control of the truck and had the general intent to drive. 13 In State v. Johnson , the Supreme Court held that “a person is in actual physical 14 control over a vehicle when he or she exercises direct influence over the vehicle.” 15 2001-NMSC-001, ¶ 19, 130 N.M . 6, 15 P.3d 1233. The Johnson Court explained: 16 “[T]he clear purpose of the ‘actual physical control’ element of the DWI statute is to 17 deter persons from placing themselves in a situation in which they can directly 186 commence operating a vehicle while they are intoxicated, regardless of the location 1 of the vehicle.” Id. 2 In Sims , the Supreme Court reconsidered its holding in Johnson

. See Sims , 3 2010-NMSC-027, ¶¶ 2-3. The defendant in Sims was found “passed out or asleep 4 behind the wheel of his vehicle . . . in a co mmercial parking lot” with the keys “on the 5 front passenger seat.” Id. ¶ 1. Our Court had affi rmed the defendant’s DWI 6 conviction under Johnson

. See Sims , 2010-NMSC-027, ¶ 2. Without overruling 7 Johnson , the SimsCourt reversed. Sims , 2010-NMSC-027, ¶ 39. The Supreme Court 8 stated that it “[did] not believe that th e Legislature intended to forbid intoxicated 9 individuals from merely entering their vehicl es as passive occupants or using their 10 vehicles for temporary shelter.” Id. ¶ 3. The Supreme Court held that “a fact finder 11 cannot simply assume or speculate that the individual in question might sometime in 12 the future commence driving his or her vehicle.” Id. ¶ 4. The Supreme Court stated: 13 Facts that suggest what the defendants might do or the ease with which 14 the defendants could commence driving are now insufficient to establish 15 actual physical control. A totality of the circumstances test must prove 16 what [the] defendants have done and what they intend to do, not merely 17 what they might do. 18 Id. ¶ 38. 19 Relying principally on Sims , Defendant contends the State “failed to put on 20 evidence of actual physical control of the [tru ck] because . . . the keys were not in the 217 ignition and the engine was not running.” Sims is inapposite. Here, unlike in Sims , 1 there was evidence regarding what Defendant intended to do. He intended to drive 2 when he received a phone call regarding his next job. Officer Beck testified that when 3 she first questioned Defendant, he told her “he was waiting for a phone call, and as 4 soon as he got this phone call, he would beleaving.” He had a cell phone with him 5 and said he was “just waiting fo r [a call for his next job] tocome in.” After stepping 6 out of the truck, Defendant told Offi cer Beck “he was a contractor” and said 7 “something about he had to go to work.” Th e district court was not left to speculate 8 as to whether, absent police intervention, Defendant would haveroused himself and 9 driven the truck, so as to pose a danger to himself or the public. 10 Relying on State v. Cotton , Defendant also argues th at his conviction must be 11 reversed because the State failed to prove he intended to drive while he was 12 intoxicated. 2011-NMCA-096, 150 N.M. 583, 263 P.3d 925. He argues that “[t]he 13 intoxication and operation must be proven to have occurred simultaneously. It is 14 insufficient for a person to be intoxicated with the intent to drive at some unknown 15 later time.” Defendant is incorrect. Cottoninvolved past driving, not future driving. 16 See id. ¶ 14 (“At [the d]efendant’s trial, the State’s exclusive theory was that he drove 17 the van beforehe encountered [the police officers] and was impaired to the slightest 18 degree at that time.”). In th at context, we held the State had to present evidence that 198 the driving and impairment overlapped. Id. ¶ 15. We have never held that such 1 evidence is necessary in the context of futu re driving. Indeed, it would be impossible 2 to show that a defendant’s impairment overl apped with future driv ing that had not yet 3 occurred. 4 Under a totality of the circumstances test, Officer Beck’s testimony regarding 5 Defendant’s statements of in tent, combined with Defendant’s location in the driver’s 6 seat with the keys in his pocket, c onstitutes sufficient evidence to support his 7 conviction. See Sims , 2010-NMSC-027, ¶ 38. The district court was free to reject 8 Defendant’s story that he onl y intended to leave when some one else came to drive the 9 truck. See State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 10 (“Contrary evidence supporting acquittal does not provide a basis for reversal because 11 the jury is free to reject [a d]ef endant’s version of the facts.”). 12 III. CONCLUSION 13 We affirm Defendant’s conviction for DWI. 14 IT IS SO ORDERED. 15

_______________________________ 16 RODERICK T. KENNEDY, Judge 17 WE CONCUR: 189 __________________________ 1 JONATHAN B. SUTIN, Judge 2

__________________________ 3 J. MILES HANISEE, Judge 4