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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,489 4 JOSE CONTRERAS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Douglas R. Driggers, District Judge 8 Hector H. Balderas, Attorney General 9 Maris Veidemanis, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Tania Shahani, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge. 18 {1} Defendant, Jose Contreras appeals from his convictions for aggravated driving 19 under the influence (DWI), contrary to NMSA 1978, Section 66-8-102(D)(3) (2010), 202 careless driving, contrary to NMSA 1978, Section 66-8-114(B) (1978), and possession 1 of a controlled substance, contrary to NMSA 1978, Section 30-31-23(D) (2011). 2 Defendant argues that: (1) the State presen ted insufficient evidence to sustain his 3 convictions, (2) the jury was not properly in structed on the essential elements for the 4 aggravated DWI charge, (3) his convictions for aggravated DWI and careless driving 5 violate the prohibition against double jeopardy, and (4) he received ineffective 6 assistance of counsel. 7 BACKGROUND 8 {2} On February 26, 2011, D oña Ana County Sheriff’s Deputies Martha Aguilera 9 and Adrian Chavez were disp atched to an automobile accident. Upon arriving at the 10 scene of the accident, Deputy Aguilera obs erved Defendant outside of the vehicle. 11 Defendant told Deputy Aguilera that he had been driving the vehicle and that he was 12 drunk. During an investigatory detention, Defendant consented to a patdown for 13 weapons and Defendant informed Deputy Aguilera that he had cocaine in his right 14 front coin pocket. With De fendant’s permission, Deputy Aguilera retrieved a folded 15 dollar bill from Defendant’s poc ket. Inside the dollar bill was a small, clear plastic 16 baggie containing a white powdery subs tance later identified as cocaine. 17 {3} Deputy Chavez arrived at the scene of the accident after Deputy Aguilera. He 18 interviewed Defendant about th e accident. Defendant stated th at he was driving to his 193 mother’s house when he lost control of the vehicle. Deputy Chavez asked Defendant 1 if anything—another vehicle, a person, oran animal—was on the road causing him 2 to crash. Defendant denied that anyone or anything else was involved in the accident. 3 {4} A jury convicted Defendant of aggr avated DWI, careless driving, and 4 possession of a controlled substance. This appeal followed. 5 DISCUSSION 6 Sufficiency of the Evidence 7 {5} Defendant claims that the State presen ted insufficient evidence to sustain his 8 convictions. “In reviewing the sufficiency of the evidence, we must view the evidence 9 in the light most favorable to the guilty verdict, indulging all reasonable inferences 10 and resolving all conflicts in the evidence in favor of the verdict.” State v. Holt , 2016- 11 NMSC-011, ¶ 20, 368 P.3d 409 (internal quotation marks and citations omitted). “In 12 that light, the [appellate c] ourt[s] determine[] whether anyrational trier of fact could 13 have found the essential elements of the crime beyond a reasonable doubt.” Id. 14 (internal quotation marks and citation omitted). 15 Aggravated DWI 16 {6} In this case, the jury was instructed that in order to convict Defendant of 17 aggravated DWI for refusing to submit to a chemical test, the State had to show that 18 on February 26, 2011, “[D]efe ndant operated a motor vehi cle[, D]efendant was under 194 the influence of intoxicating liquor or drugs to such a degree [D]efendant was 1 incapable of safely driving[, and D]efendant refused to submit to chemical testing[.]” 2 Deputy Aguilera testified that when sh e arrived on the scene of the accident, 3 Defendant told her that he was drunk and that he had been driving the vehicle when 4 it crashed. Deputy Aguilera observed that Defendant had watery eyes and slurred 5 speech. According to Deputy Aguilera, Defendant was incapable of performing field 6 sobriety tests because “he could barely st and on his own two feet .” Defendant twice 7 refused to take a breath test, saying “I’m too drunk, I had 20.” This evidence is 8 sufficient to support Defendant’s conviction for aggravated DWI. 9 Careless Driving 10 {7} In order to convict Defendant of careless driving, the State had to show that on 11 February 26, 2011, “[D]ef endant operated the moto r vehicle in a careless, 12 inattentive[,] or imprudent manner without due regard for the width, grade curves, 13 corner, traffic, weather, road conditions and all other attendant circumstances.” 14 According to Deputy Chavez’s testimony, Defendant admitted that he was driving the 15 night of the accident. When he was asked for an explanation of howhe lost control of 16 the vehicle, Defendant responded by sayi ng “he was drunk.” Whenasked, Defendant 17 denied there being anything else on the road that night that contributed to the accident. 18 The State also produced photographs of th e vehicle after the accident, which showed 195 that Defendant’s vehicle initially struck a pole, ripping the front tire away from the 1 vehicle and continued into a fence. We c onclude that this evidence is sufficient to 2 support Defendant’s conviction for careless driving. 3 Possession of a Controlled Substance (Cocaine) 4 {8} Defendant challenges his conviction for possesion of a controlled substance 5 pursuant to State v. Franklin , 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982. 6 Defendant claims that he should not have been convicted because the cocaine did not 7 belong to him; however, Defendant acknowle dges that this assertion was not stated 8 on the record. 9 {9} With regard to possession of cocaine, the jury was instructed that in order to 10 find Defendant guilty of possession of cocai ne, the State was required to prove beyond 11 a reasonable doubt that on February 26, 2011, Defendant “had cocaine in his 12 possession;” and “knew it was cocaine or belie ved it to be cocaine.” The jury was also 13 given the following definition of “possession”: 14 A person is in possession of cocai ne when he knows it is on his 15 person or in his presence and he exercises control over it. 16 A person’s presence in the vicin ity of the [substance] or his 17 knowledge of the existence or the location of the [substance] is not, by 18 itself, possession. 19 UJI 14-3130 NMRA. 206 {10} Deputy Aguilera testified th at Defendant told her hehad cocaine concealed in 1 a dollar bill in his right front coin pocket and gave her permission to remove it. The 2 substance discovered in the do llar bill was a white powdery substance, that was later 3 tested and identified as cocaine. Based on these facts, we conclude that there was 4 sufficient evidence to support Defendant’s conviction for possession of cocaine. 5 {11} To the extent that Defendant relies on his own testimony to support a different 6 result, “[t]he question is not whether substantial evidence would have supported an 7 opposite result but whether such evid ence supports the result reached.” State v. James , 8 1989-NMCA-089, ¶ 11, 109 N.M. 278, 784 P.2d 1021. 9 The Aggravated DWI Jury Instruction 10 {12} Defendant argues that he did not receivea fair trial because the jury was not 11 provided a proper jury instruction for DWI. Defendant acknowle dges that he did not 12 object to the DWI instruction as it was given and asks us to review the DWI 13 instruction for fundamental error. See State v. Cunningham , 2000-NMSC-009, ¶ 11, 14 128 N.M. 711, 998 P.2d 176 (holding that where a defendant did not object to the jury 15 instructions as given, the appellate court reviews only for fundamental error). 16 Fundamental error exists “if there has been a miscarriage of justice, if the question of 17 guilt is so doubtful that it would shock th e conscience to permit the conviction to 18 stand, or if substantial justice has not been done.” State v. Caldwell , 2008-NMCA- 197 049, ¶ 22, 143 N.M. 792,182 P.3d 775 (internal quotation marks and citation omitted); 1 see State v. Barber , 2004-NMSC-019, ¶ 17, 135 N.M . 621, 92 P.3d 633 (explaining 2 that fundamental error includes both “cas es with defendants who are indisputably 3 innocent, and cases in which a mistake in the process makes a conviction 4 fundamentally unfair notwithstanding the apparent guilt of the accused”). 5 {13} Under fundamental error review, a conviction cannot be upheld if an error 6 implicates “a fundamental unfairness withinthe system that would undermine judicial 7 integrity if left unchecked.” Barber , 2004-NMSC-019, ¶ 18 (internal quotation marks 8 and citation omitted). Thus, we must determine whether the departure from the 9 language of the uniform jury instruction caused such a “fundamental unfairness” in 10 Defendant’s trial. See id. When we analyze jury instructions for fundamental error, 11 “we seek to determine whether a reasona ble juror would have been confused or 12 misdirected by the jury instruction.” State v. Benally , 2001-NMSC-033, ¶ 12, 131 13 N.M. 258, 34 P.3d 1134 (internal quotation mark s and citation omitted). In order for 14 such an instruction to mislead, it must “omit essential elements or be so confusing 15 . . . that a court cannot becertain that the jury found the essential elements.” Caldwell , 16 2008-NMCA-049, ¶ 24 (internal quotati on marks and citations omitted). 178 {14} The uniform jury instruction that states the essential elements of the crime of 1 aggravated DWI while under the influence of alcohol or drugs and refusing to submit 2 to chemical testing as defined by Section 66-8-102(D) provides: 3 For you to find the defendant guilty of aggravated driving while 4 under the influence of [intoxicating liquor] [or drugs] [as charged in 5 Count ____], the state must prove to your satisfaction beyond a 6 reasonable doubt each of the follo wing elements of the crime: 7 1. The defendant operated a motor vehicle; 8 2. At that time the defendant was under the influence of 9 [intoxicating liquor; that is, as a result of drinking liquor the defendant 10 was less able to the slightest degree, either mentally or physically, or 11 both, to exercise the clear judgment and steady hand n ecessary to handle 12 a vehicle with safety to the person and the public;] 13 [or] 14 [drugs to such a degree that the defendant was incapable of safely 15 driving a vehicle;] 16 3. The defendant refused to submit to chemical testing; and 17 4. This happened in New Mexi co, on or about the ____ day of 18

__________, ____. 19 UJI 14-4508 NMRA. The district court gave the following jury instruction submitted 20 by the State: 21 For you to find [D]efendant guilty of aggravated driving while 22 under the influence of intoxicating li quor or drugs as charged in Count 23 2, the [S]tate must prove to yoursatisfaction beyond a reasonable doubt 24 each of the following el ements of the crime: 259 1. [D]efendant operated a motor vehicle; 1 2. At that time [D]efendantwas under the influence of 2 intoxicating liquor or drugs to such a degree that [D]efendant was 3 incapable of safely driving a vehicle ; 4 3. [D]efendant refused to submit to chemical testing; 5 4. This happened in New Mexico , on or about the 26th day of 6 February, 2011. 7 (Emphasis added.) Comparing the instruction given in this case with the uniform jury 8 instruction, it appears that the instru ction was completed using the impairment 9 language set forth for drivi ng under the influence of drugs instead of the impairment 10 language set forth for intoxicating liquor. See UJI 14-4508. 11 {15} Generally, the uniform jury instructions are to be used without substantive 12 modification. State v. Ellis , 2007-NMCA-037, ¶ 10, 141 N.M. 370, 155 P.3d 775 13 (“District courts must give uniform jury instructions as written.”), rev’d on other 14 grounds by2008-NMSC-032, 144 N.M. 253, 186 P.3d 245. However, departure from 15 the language of a uniform jury instruction, does not necessarily rise to the level of 16 fundamental error. See Jackson v. State , 1983-NMSC-098, ¶ 5, 100 N.M. 487, 672 17 P.2d 660 (“[T]here may be fundamental error if the instruction given differs materially 18 from the required instruction.”). Rather, “[ a] jury instruction is proper, and nothing 19 more is required, if it fairly and accurately presents the law.” State v. Laney , 2003- 20 NMCA-144, ¶ 38, 134 N.M. 648, 81 P.3d 591. “For fundamental error to exist, the 2110 instruction given must differ materially from the uniform jury instruction, omit 1 essential elements, or be so confusing and incomprehensible that a court cannot be 2 certain that the jury found the essential elements under the facts of the case.” 3 Caldwell , 2008-NMCA-049, ¶ 24 (internal quotation marks and citations omitted). 4 {16} In the present case, the given instruc tion fairly represents the elements of 5 aggravated DWI by refusing a chemical test; that on February 26, 2011, Defendant 6 was driving in the State of New Mexico, under the influence of intoxicating liquor or 7 drugs, and refused to submit to chemical testing. See Section 66-8-102(D)(3); UJI 14- 8 4508. 9 {17} We fail to see any material differen ce, missing elements, or language lending 10 itself to juror confusion that would riseto the level of fundamental error. See State v. 11 Reed, 2005-NMSC-031, ¶ 52, 138 N.M. 365, 120 P.3d 447 (“The doctrine of 12 fundamental error applies only under excepti onal circumstances and only to prevent 13 a miscarriage of justice.”); Barber , 2004-NMSC-019, ¶¶ 8, 14 (“Each case will of 14 necessity, under such a rule, stand on its ow n merits. . . . The doctrine of fundamental 15 error is to be resorted to in criminal cases only for the protection of those whose 16 innocence appears indisputably, or open to such question that it would shock the 17 conscience to permit the conviction to stand.”(internal quotation marks and citations 18 omitted)). 1911 Double Jeopardy 1 {18} Defendant argues that his convictions for aggravated DWI and careless driving 2 violate the prohibition against double jeopardy because the same evidence formed the 3 basis on both convictions. “A double jeopardy challenge is a constitutional question 4 of law which we review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 5 747. The Fifth Amendment of the United States Constitution, made applicable to New 6 Mexico by the Fourteenth Amendment, “p rohibits double jeopardy and . . . functions 7 in part to protect a criminal defendant against multiple punishments for the same 8 offense.” Id. (internal quotation marks and citations omitted). Double jeopardy cases 9 involving multiple-punishments are classified as either double-description cases, 10 “where the same conduct resu lts in multiple convictions under different statutes,” or 11 unit-of-prosecution cases, “where a defendant challenges multipleconvictions under 12 the same statute.” Id. The present case is a double-de scription case because Defendant 13 challenges two convictions under different statutes for wh at he claims is the same 14 conduct. 15 {19} Double-description cases involve a two-part analysis. See Swafford v. State , 16 1991-NMSC-043, ¶ 12, 112 N.M. 3, 810 P.2d 1223. “First weconsider whether the 17 conduct underlying the [offenses] was unitary[.]” Swick , 2012-NMSC-018, ¶ 11; State 18 v. Melendrez , 2014-NMCA-062, ¶ 7, 326 P.3d 1126. “[R]eviewing whether conduct 1912 is unitary in the double jeopardy context, weindulge in all presumptions in favor of 1 the verdict.” State v. Herrera , 2015-NMCA-116, ¶ 12, 362 P.3d 167 (internal 2 quotation marks and citation omitted). “If the conduct is not unitary, . . . there is no 3 double jeopardy violation.” State v. Contreras , 2007-NMCA-045, ¶ 20, 141 N.M. 434, 4 156 P.3d 725 (internal quotation marks and c itation omitted). If the conduct is unitary, 5 we must determine “whether the legislature intended to create separately punishable 6 offenses.” Swafford, 1991-NMSC-043, ¶ 25. 7 {20} Turning to the first prong of our anal ysis, whether the conduct was unitary, we 8 review the elements of the charged offenses. See State v. Vance , 2009-NMCA-024, 9 ¶ 13, 145 N.M. 706, 204 P.3d 31. Then we consider whether th e facts presented at trial 10 are sufficient to support the elements of both crimes. See id. “The proper analytical 11 framework is whether the facts presented at trial establish that the jury reasonably 12 could have inferred independent factual bases for the charged offenses.” Id. (internal 13 quotation marks and citation omitted); see State v. Olsson , 2014-NMSC-012, ¶ 37, 14 324 P.3d 1230 (“In a double description case the primary inquiry is whether the facts 15 presented at trial establish that the jury reasonablycould have inferred independent 16 factual bases for the charged offenses.” (internal quotation marks and citation 17 omitted)). 1813 {21} At trial, the State produced eviden ce of aggravated DWI including Deputy 1 Aguilera’s testimony that Defendant had watery eyes, slurred speech, was barely able 2 to stand up, admitted to drinking and driv ing, was unable to perform field sobriety 3 tests, and refused to takea breath test, because he was “too drunk.” The State 4 produced evidence of careless driving in cluding photographs of the accident, which 5 depicted Defendant’s damaged vehicle, along with Deputy Chavez’s testimony that 6 Defendant admitted that he wa s driving and lost control of the vehicle, as well as 7 Defendant’s denial that there were any other factors contributing to the accident. 8 Defendant’s argument concentrates on his inability to drive safely as the unitary 9 conduct. The crime of careless driving and that of driving an automobile under the 10 influence of intoxicating liquor or drugs are distinct offenses and are established by 11 different evidence. Cf. State v. Sisneros , 1938-NMSC-049, ¶ 19, 42 N.M. 500, 82 P.2d 12 274 (noting that a case involving the crimes of reckless driving and driving an 13 automobile while under the influence of intoxicating liquor, “[a] conviction of one 14 would not be a bar to a prosecution for committing the other offense. While the 15 evidence of intoxication might bear upon th e question of whether the defendant was 16 guilty of reckless driving, it does not necessarily prove it; but is a circumstance to be 17 considered by the jury in deciding the issue.”). 1814 {22} Based on the evidence, the jury reas onably could have inferred independent 1 factual bases for the aggravated DWI charge and the careless driving charge. As a 2 result, we conclude that Defendant’s conduct was not unitary. See Vance , 2009- 3 NMCA-024, ¶ 13. Therefore, under the first Swafford inquiry, double jeopardy 4 principles were not violated. See State v. Saiz , 2008-NMSC-048, ¶ 35, 144 N.M. 663, 5 191 P.3d 521, abrogated on other grounds by State v. Bellanger , 2009-NMSC-025, 6 ¶ 36 n.1, 146 N.M. 351, 210 P.3d 783. 7 Ineffective Assistance of Counsel 8 {23} Defendant claims that he received ineffe ctive assistance of counsel because trial 9 counsel failed to: (1) investigate potential de fenses, (2) secure witnesses, (3) preserve 10 issues, and (4) strike a juror who knew Defendant for possible bias. “We review 11 claims of ineffective assistance of counsel de novo.” State v. Dylan J. , 2009-NMCA12 027, ¶ 33, 145 N.M. 719, 204 P.3d 44. 13 {24} “The Sixth Amendment to the United States Constitution, applicable to the 14 states through the Fourteenth Amendment, guarantees . . . the right to the effective 15 assistance of counsel.” Patterson v. LeMaster , 2001-NMSC-013, ¶ 16, 130 N.M. 179, 16 21 P.3d 1032 (internal quotation marks and c itation omitted). “When an ineffective 17 assistance claim is first raisedon direct appeal, we evaluatethe facts that are part of 18 the record.” State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. “A 191 Prior to filing the docketing statement inthis Court, Defendant filed a petition 14 for writ of habeas corpus in the district court, challenging his alleged illegal sentence 15 and confinement. Defendant asserted that he had received ineffective assistance of 11 counsel because trial counsel failed to: c onduct a proper investigation, investigate 12 15 prima facie case of ineffective assistance is made by showing that defense counsel’s 1 performance fell below the standard of a reasonably competent attorney and, due to 2 the deficient performance, th e defense was prejudiced.” Patterson , 2001-NMSC-013, 3 ¶ 17 (internal quotation marks and citation omitted). 4 {25} In arguing that he received ineffec tive assistance of counsel, Defendant 5 allegedly relies on several facts, but does not cite to the record to support his 6 assertions. Thus, Defendant has not met hi s burden to show ineffective assistance. See 7 Muse v. Muse , 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not 8 search the record for facts, arguments, and rulings in order to support generalized 9 arguments.”); see also Santa Fe Expl. Co. v. Oil Conservation Comm’n , 1992-NMSC10 044, ¶ 11, 114 N.M. 103, 835 P.2d 819 (holding that where a party fails to cite any 11 portion of the record to support its factual allegations, the appellate courts need not 12 consider its argument on appeal). However, “[i]f facts beyond those in the record on 13 appeal could establish a legitimate claim of ineffective assistance of counsel, [the 14 d]efendant may assert it in a habeas corpus proceeding where an adequate factual 15 record can be developed for a court to make a reasoned determination of the issues.” 16 State v. Crocco , 2014-NMSC-016, ¶ 24, 327 P.3d 1068. 1 17potential defenses, secure witnesses, and pres erve issues. The district court entered an 11 order on Defendant’s petition fo r writ of habeas corpus and found that Defendant was 12 entitled to partial habeas relief based on trial counsel’s failure to file a timely 13 docketing statement. Defendant’s remaining claims were dismissed without prejudice, 14 and the order provided that Defendant may “file a successive petition raising these 15 issues (if not addressed in the direct appeal) and any other remaining claims after 16 Mandate in his direct appeal.” 17 16 CONCLUSION 1 {26} For the foregoing reasons, we affirm. 2 {27} IT IS SO ORDERED. 3

4 M. MONICA ZAMORA, Judge 5 WE CONCUR: 6

7 MICHAEL E. VIGIL, Chief Judge 8

9 JAMES J. WECHSLER, Judge 10