Correction Page: State v. Nakai , No. 31,955-VVzS (filed 6/7/12): Page 1, line 10: Deleted “William A. O’Connell, Assistant Attorney General” This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,955 4 GARRICK NAKAI, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Thomas J. Hynes, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline L. Cooper, Chief Public Defender 12 Santa Fe, NM 13 Sergio J. Viscoli, Assi stant Appellate Defender 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 182 Garrick Nakai (Defendant) appeals fro m the district court’s judgment and 1 sentence, convicting him after a jury trial of DWI (.08 or above). [RP 106] Defendant 2 raises two issues on appeal, contending that the State did not present sufficient 3 evidence to obtain a guilty verdict from the ju ry, and the district court erred in denying 4 Defendant’s motion for a directed verdict because the State failed to establish that 5 Defendant drove while under the influence at the time of arrest. [DS 2-3]. The 6 calendar notice proposed summary affirmance. [Ct. App. File, CN 1] Defendant has 7 filed a memorandum in opposition that we haveduly considered. [Ct. App. File, 8 MIO] Unpersuaded, however, we affirm. 9 We address both issues raised in this appeal as a challenge to the sufficiency of 10 the evidence. See State v. Dominguez , 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct. 11 App. 1993) (“The question presented by a directed verdict motion is whether there 12 was substantial evidence to s upport the charge.”). “In reviewing the sufficiency of the 13 evidence, we must view the evidence in the light most favorable to the guilty verdict, 14 indulging all reasonable inferen ces and resolving all conflicts in the evidence in favor 15 of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 16 P.2d 176. It is for the fact finder to resolve any conflict in the testimony of the 17 witnesses and to determine where the weight and credibility lay. See State v. Salas , 18 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482. 193 The jury instructions provide that in order for the jury to find Defendant guilty 1 of driving while under the influence of in toxicating liquor and/or drugs with a blood 2 or breath alcohol concentration of .08 or mo re, the State must prove to the satisfaction 3 of the jury beyond a reasonable doubt each of the following elements of the crime: 4 (1) Defendant operated a motor vehicle; (2 ) within three hours of driving, Defendant 5 had an alcohol concentration of .08 gram s or more in one hundred milliliters of blood 6 and the alcohol concentration resulted from alcohol consumedbefore or while driving 7 the vehicle; and (3) this happened in New Mexico on or about J une 8, 2011. [RP 91] 8 The jury was further instructed that a person is “operating” a motor vehicle if 9 the person is driving the motor vehicle or in actual physical control of the vehicle 10 whether or not the vehicle is moving. [RP 92] The jury was also instructed that the 11 State must show that Defendant was in “actual physical control of the vehicle” and 12 that Defendant intended to drive the vehicl e, thereby posing a real danger to himself 13 or the public. [RP 93] In making this dete rmination, the jury was instructed that it 14 should consider the totality of the circum stances shown by the evidence, including 15 whether the vehicle was running; whether th e ignition was in the “on” position; where 16 the ignition key was located; where and inwhat position the person was found in the 17 vehicle; whether the person was awake or asleep; whether the vehicle’s headlights 18 were on; where the vehicle was stopped; wh ether the driver had pulled voluntarily off 19 the road; the time of day; the weather cond itions; whether the heater or air conditioner 204 was on; whether the windows were up or down; whether the vehicle was operable; and 1 any explanation of the circumstance shown by the evidence. [RP 93] The jury was 2 also instructed that they should examine a ll the available eviden ce in its totality and 3 weigh its credibility in determining whether Defendant was simply using the vehicle 4 as stationary shelter or actually posed a th reat to the public by th e exercise of actual 5 physical control over the vehicle while impaired. [RP 93] 6 The State presented the testimony of an officer of the San Juan County Sheriff’s 7 Department (the officer), who had been dispatched to the scene. [DS 3] The officer 8 testified that dispatch had advised that ther e was a male in a white van that was denied 9 the sale of alcohol and was still in the parking lot, attempting to have other customers 10 purchase alcohol for him. [DS 1; RP 52 , 10:27:19-33] When the officer arrived, he 11 observed a male in the driver’s seat of th e only white van that wa s in the parking lot 12 of the gas station. [RP 52, 10:27:59; 53, 10:40:47 AM] The officer approached the 13 male in the white van to question him about the information he had been provided 14 from dispatch. [DS 1; RP 52, 10:40:22] The male identified himself as Defendant 15 [DS 1]; Defendant was holding the keys to the van [RP 59, 1:49:45 PM]; the officer 16 smelled alcohol coming from Defendant and observed that Defendant had red 17 bloodshot watery eyes [RP 53, 10:40:57 AM; RP 53, 10:42:45 AM]; the officer 18 observed open beer cans in the vehicle [R P 53, 10:42:22 AM]; and the officer asked 19 Defendant to exit the vehicle. [DS 1] The officer asked Defendant how many beers 205 he had had that day and Defe ndant initially advised two beer s, and later stated that he 1 had had “a lot.” [R P 61, 1:58:39 PM] Defendant also admitted to driving to the gas 2 station and arriving there about ten minutes before the officer ha d arrived. [RP 61, 3 1:58:57 PM] The officer knew from dispatch that Defendant had been denied the sale 4 of alcohol, and Defendant admitted he was asking others in the parking lot to purchase 5 it for him. [DS1; RP 53, 10:41:22 AM] Defendant also admitted that he drove to the 6 gas station and that he intended to driv e home. [RP 74, 3:48:07 PM] The officer 7 administered standard field sobriety test s that Defendant coul d not perform, and in 8 some instances, Defendant kept falling. [RP 54, 10:49: 51 AM - 10:58:49 AM] 9 Defendant provided a breath sample that yielded a result of .200 BAC. [DS 1] 10 Defendant was arrested and taken to the regional medicalcenter for a blood draw that 11 yielded results of .19 grams/100ml. [DS 1-2] 12 In the memorandum, Defendant continues to point out that the officer never saw 13 the car in motion and the “car was not running” when he approached Defendant. 14 [MIO 1] He also continues to argue that there was insu fficient evidence to show that 15 Defendant drove to the ga s station impaired by alcohol. [MIO 3] He also 16 acknowledges, however, that there was someevidence that Defendant had driven to 17 the gas station but insufficient evidence th at he was impaired while doing so, because 18 Defendant may have drunk the beers after he got there. [Id.] Defendant argues that 19 the State did not sufficiently show that he was physically in control of the vehicle or 206 that he intended to drive from the gas station. [MIO 4-5] Defendant also argues, 1 however, that “[w]hile a few factors tend to show [Defendant] was in physical control 2 and lead to a tenuous inference he intended to drive, the vast we ight of evidence (or 3 lack thereof) militates against such a fi nding.” [MIO 5] These are the same 4 contentions Defendant raised in the docke ting statement. We are not persuaded. 5 State v. Sims presented the same scenario as inthis case: an officer arrives on 6 the scene and the vehicle is not in motion. 2010-NMSC-027, ¶ 10, 148 N.M. 330, 236 7 P.3d 642. Thus, the officer has not observ ed any impaired driving. The officer, 8 however, is allowed to investigate and arrest for DWI, as long as, under the totality 9 of the circumstances, the driver’s physical condition demonstrates to the fact finder 10 that the defendant is under the influence and he intends to drive: “A totality of the 11 circumstances test must prove what defendants have done and whatthey intend to do, 12 not merely what they might do.” Id. ¶ 38; see also State v. Sanchez , 13 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446 (recognizing that “[a]n officer does 14 not have to observe a suspect actually driv ing in an impaired manner if the officer, 15 based upon all the facts and circumstances , has ‘reasonable grounds to believe that 16 Defendant had been driving while intoxicated’” (citing State v. Jones , 17 1998-NMCA-076, ¶ 10, 125 N.M. 556, 964 P.2d 117)). 18 In this case, the State pr esented evidence that Defendant admitted to driving to 19 the gas station and arriving about ten minutes before the officer. There were open 207 containers of beer in the vehicle. Defe ndant initially admitted to drinking two beers 1 and then to drinking “a lot.” The officerknew from dispatch that Defendant had been 2 refused the sale of alcohol at the gas station, and Defendant ad mitted he was soliciting 3 others to buy it for him. Defendant admitted he intended to drive home. Defendant 4 was holding the keys and getting into the driv er’s seat of the van. The van was 5 operable, as it had arrived at the gas station within ten minutes of the officer’s arrival. 6 The jury could reasonably infer from these f acts that when Defendant arrived at the 7 gas station, he was denied the sale of alcohol because he was already under the 8 influence. See State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 9 (stating that the jury is free to reject Defendant’s version of the facts). The jury could 10 also conclude, based on the totality of the ci rcumstances presented by the State at trial, 11 that Defendant had driven and intended to drive the vehi cle while under the influence 12 and impaired by alcohol, which presente d a danger to himself and the public. 13 We hold, therefore, that the districtcourt did not err in denying Defendant’s 14 request for a directed verdict, and we hold that the State presented substantial 158 evidence to support Defendant’s conviction. 1 IT IS SO ORDERED. 2

_______________________________ 3 MICHAEL E. VIGIL, Judge 4 WE CONCUR: 5

_________________________________ 6 JONATHAN B. SUTIN, Judge 7

_________________________________ 8 LINDA M. VANZI, Judge 9