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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. A-1-CA-35488 4 ABRAHAM BACA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 7 Sylvia Lamar, District Judge 8 Hector H. Balderas, Attorney General 9 John Kloss, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Ben A. Ortega 13 Albuquerque, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VARGAS, Judge. 17 {1} Defendant Abraham Baca appeals his convi ction for aggravated driving under 18 the influence (DWI), under the impaired to the slightest degree standard, contrary to 192 NMSA 1978, Section 66-8-102(A), (D)(3 ) (2008, amended 2016). On appeal, 1 Defendant raises two challenge s. First, Defendant argues th ere is insufficient evidence 2 for a conviction because the State failed to establish a nexus between Defendant’s 3 driving and impairment from alcohol consum ption. Second, Defe ndant contends the 4 district court erred when it declined to sanction the State for its failure to collect 5 evidence when officers intentionally turnedoff their audio recording devices for 6 approximately ten minutes during the i nvestigation. We affirm Defendant’s 7 conviction. 8 I. BACKGROUND 9 {2} At 2:10 a.m. on May 2, 2010, Sergeant Martin Trujillo, then a supervisor with 10 the DWI Unit of the Rio Arriba County Sheriff’s Office, drove up behind the vehicle 11 driven by Defendant, which was weaving w ithin its lane. Sergeant Trujillo followed 12 Defendant and observed his driving behavior for approxi mately one minute. During 13 that time, Defendant twice crossed the yello w center line and returned to his lane of 14 travel. On a third occasion, Defendant cr ossed over the yellow center line into the 15 oncoming traffic lane by about three-quarters the width of his vehicle and continued 16 there for thirteen seconds until Sergeant Trujillo turned on his emergency lights and 17 initiated the traffic stop. After Sergean t Trujillo engaged his emergency lights, 18 Defendant continued to drive over the ye llow center line for an additional seven 193 seconds. At the time of the stop, Serg eant Trujillo was accompanied by Deputy Jose 1 Martinez, also with the Rio Arriba C ounty Sheriff’s Office’s DWI Unit. Deputy 2 Martinez was driving in a separate patrolvehicle behind Sergeant Trujillo and also 3 observed Defendant’s vehicle leave its laneof travel. Once Defendant had pulled over 4 and stopped, Sergeant Trujillo approached the driver’s side of the vehicle. There were 5 two passengers in the vehicle with Defendant and Sergeant Trujillo detected the smell 6 of alcohol coming specifically from Defendant as well as from his vehicle. Sergeant 7 Trujillo testified that Defendant had bloods hot, watery eyes and slurred his speech. 8 Sergeant Trujillo further observed three to four sealed alcohol containers in the 9 vehicle. Deputy Martinez, participating as a secondary or backup officer for Sergeant 10 Trujillo, approached the passenger side of the vehicle, but did not speak with 11 Defendant and did not notice his smell, eyes, or speech. Deputy Martinez did, 12 however, note that Defendant’s vehicle smelled of alcohol. 13 {3} At the time of the stop, Defendant was employed as a New Mexico State Police 14 officer. Sergeant Trujillo immediately recogni zed Defendant as a State Police officer, 15 testifying he was “stunned” and “blown aw ay.” Upon realizing they had pulled over 16 a State Police officer, Sergean t Trujillo testified that heand Deputy Martinez turned 17 off their audio recording devices in order to discuss what to do. During the 18 approximately ten-minute period that their audio recording devices were turned off, 194 there was no interruption in both officers’ dash camera video recordings. While their 1 audio recording devices were off, Sergeant Trujillo used Deputy Martinez’s cell phone 2 to contact the State Police office and requestthat a supervisor come to the scene. 3 Sergeant Trujillo and Deputy Martinez then turned their audio recording devices back 4 on. Soon thereafter, Sergeant Arcenio Chavez, a New Mexico State Police supervisor, 5 arrived at the scene, but declined to participate in the investigation. 6 Sergeant Trujillo then asked Defendant to step out of the vehicle to perform field 7 sobriety tests. Somewhere between thirty -seven and forty-eight minutes passed from 8 the time Sergeant Trujillo first spoke to De fendant and the time Defendant exited his 9 vehicle to perform the field sobriety tests. As Defendant stepped out of his vehicle, he 10 held onto the door and dropped his cell phone. After Defendant was outside his 11 vehicle, Sergeant Trujillo again detected the odor of alcohol coming from Defendant. 12 Sergeant Trujillo administered three standardized field sobriety tests—the horizontal 13 gaze nystagmus (HGN), the walk -and-turn test, and the one-leg stand test—as well as 14 a finger counting test, all of which Defendant performed contrary to instructions. After 15 Sergeant Trujillo administered the field sobriety tests, Defendant admitted to Sergeant 16 Trujillo that he had consumed “maybe tw o, maybe three” beers. Deputy Martinez 17 observed the field sobriety test portion of the investigation from approximately fifteen 18 to twenty-five feet away and testified he did not hear Defendant admit to consuming 195 alcohol. Sergeant Trujillo conc luded Defendant was drivi ng while under the influence 1 of alcohol and arrested him for DWI. At th e scene, Defendant agreed to take a breath 2 alcohol test but later refused. During an inventory search of Defendant’s vehicle after 3 the arrest, Deputy Martinez recovered opene d and unopened beer cans from inside the 4 vehicle and discovered one of the passengers in possession of an open beer. Sergeant 5 Arcenio Chavez, of the State Police, wa s on scene from the beginning of the field 6 sobriety test portion of the investigation until the time Defendant was taken into 7 custody. 8 {4} Defendant was charged with aggravated driving under the influence, a violation 9 of Section 66-8-102(A), (D)(3), making it “unlawful for a person who is under the 10 influence of intoxicating liquor to drive a vehicle[,]” aggravated by “refusing to 11 submit to chemical testing[.]” Following a bench trial, the district court found 12 Defendant guilty, and Defendant appeals. 13 II. DISCUSSION 14 {5} Defendant argues that because he wa s left unattended and unobserved by police 15 in his vehicle for an extended period of time with several containers of alcohol, there 16 is insufficient evidence to establish the nexus between his driving and impairment 17 from alcohol consumption that is necessaryfor a DWI conviction. Defendant suggests 18 he could have consumed the alcohol after being pulled over. Defendant further argues 196 that because of a rumored affair betweenhimself and the spouse of Deputy Martinez, 1 the officers acted in bad faith and treated him “differently” when they turned off their 2 audio recording devices during the portions of the investigation they otherwise 3 captured on video. While not completely clear, we surmise Defendant suggests that 4 the officers coordinated their stories and conspired to arrest him for DWI to punish 5 him for the rumored affair. 6 A. Sufficient Evidence Exists to Support Defendant’s Conviction for 7 Aggravated DWI 8 {6} When reviewing for sufficiency, we view the evidence in the light most 9 favorable to the verdict, and then determine “whether the evidence viewed in this 10 manner could justify a finding by any rational trier of fact that each element of the 11 crime charged has been established beyond a reasonable doubt.” State v. Trossman , 12 2009-NMSC-034, ¶ 16, 146 N.M. 462, 212 P.3d 350 (internal quotation marks and 13 citation omitted). We “indulg[e] all reasonable inferences and resolv[e] all conflicts 14 in the evidence in favor of the verdict.” State v. Chavez , 2009-NMSC-035, ¶ 11, 146 15 N.M. 434, 211 P.3d 891 (internal quotation mark s and citation omitted). In reviewing 16 for sufficiency, “[t]he reviewing court does not weigh the evidence or substitute its 17 judgment for that of the fact finder as l ong as there is sufficient evidence to support 18 the verdict.” Id. (internal quotation marks and citation omitted). 197 {7} The test for sufficiency is “whether s ubstantial evidence of either a direct or 1 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt 2 with respect to every elemen t essential to a conviction.” State v. Astorga , 2015- 3 NMSC-007, ¶ 57, 343 P.3d 1245 (internal quotation marks and citation omitted). 4 “Substantial evidence is defined as that evidence which is acceptable to a reasonable 5 mind as adequate support for a conclusion.” State v. Flores , 2010-NMSC-002, ¶ 2, 6 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citation omitted). 7 {8} Pursuant to Section 66-8-102, New Mexico law requires that the state prove a 8 defendant was impaired at the time he or she drove. Under the “impaired to the 9 slightest degree” standard, “[i]n order to convict under [Section 66-8-102(A)], a court 10 must find that the defendant was less able to the slightest degree, either mentally or 11 physically, or both, to exerci se the clear judgment and steady hand necessary to handle 12 a vehicle with safety to th e driver and the public as a result of drinking the liquor.” 13 State v. Gurule , 2011-NMCA-042, ¶ 7, 149 N.M. 599, 252 P.3d 823 (internal 14 quotation marks and citation omitted). 15 {9} Defendant argues that, because the officer s left him unattended in his vehicle 16 for an extended period of time with several containers of alcohol while they contacted 17 State Police and discussed how to proceed w ith the stop, the State is unable to prove 18 that he did not become intoxicated after he was stopped by officer s. Defendant argues 198 that “the [S]tate focused its case in chief on the results of [the] roadside sobriety tests 1 and other observations after [D efendant] got out of his vehicle” and “never addressed 2 the fact that they had left [Defendant] inhis vehicle for well over a half an hour, and 3 perhaps nearly a whole hour, unattended and unobserved.” 4 {10} In this case, the State presented substantial evidence that Defendant drove while 5 under the influence of alcohol and that his driving ability was impaired at least to the 6 slightest degree based solely on the officers’ observations of Defendant’s driving and 7 physical condition during his initial encounter with Sergeant Trujillo. That evidence 8 included the testimony of Sergeant Trujillo and Deputy Martinez who both witnessed 9 Defendant driving his vehicle, weaving within his lane, and crossing the yellow center 10 line on more than one occasion, as well as Sergeant Trujillo’s testimony that during 11 his initial contact with Defendant, Defe ndant smelled of alcohol, had bloodshot, 12 watery eyes, and slurred his speech. 13 {11} Defendant relies on State v. Mailman , 2010-NMSC-036, ¶ 22, 148 N.M. 702, 14 242 P.3d 269 and State v. Cotton , 2011-NMCA-096, ¶ 14, 150 N.M. 583, 263 P.3d 15 925 to support his argument that there is insufficient evidence to prove a nexus 16 between his driving and impairment from alcohol consumption. In Mailman , our 17 Supreme Court considered the propriety of the defendant’s DWI conviction on 18 alternative theories of actually driving wh ile intoxicated and being in actual physical 199 control of a vehicle while intoxicated. 2010-NMSC-036, ¶ 1. In that case, the 1 defendant argued that the state did not pres ent sufficient evidence that he drove his 2 vehicle while impaired. When police found him sitting in his car in a convenience 3 store parking lot with an open can of beer on the center console, smelling of a strong 4 odor of alcohol, the defendant admitted he had consumed five can s of a six-pack of 5 beer and thrown the empty cans out the window along the highway as he drove to the 6 convenience store. Id. ¶¶ 2, 24. Further, the defendantwas disoriented, confused, had 7 bloodshot, watery eyes, and had difficulty maintaining his balance. Id. ¶ 24. The 8 district court found substantial evidence to support the defendant’s DWI conviction 9 for driving under the influence prior to parking at the convenience store, but remanded 10 the matter for a new trial because the general verdict form submitted to the jury did 11 not allow the court to ascertain which of the two theories were the basis of the 12 defendant’s conviction. Id. ¶¶ 24, 28. 13 {12} Defendant quotes Mailman , pointing out that “[a]ctual physical control is not 14 necessary to prove DWI unless there are no witnesses to the vehicle’s motion and 15 insufficient circumstantial evidence to infe r that the accused actually drove while 16 intoxicated .” Id. ¶ 28. Mailman , however, is of no assistan ce to Defendant, as there 17 is uncontroverted evidence that Defendant was operating his vehicle in a manner that 18 indicated he was impaired . While the officer in Mailmandid not witness the defendant 1910 driving his vehicle, Sergeant Trujillo and Deputy Martinez witnessed Defendant 1 driving his vehicle, weaving within his lane and crossing the yellow center line, all 2 actions that were recorded on Sergean t Trujillo’s dash camera. Therefore, Mailman’s 3 discussion of actual physical control is irre levant. The State has established Defendant 4 was actually driving the vehicl e, and Defendant’s reliance on Mailman’sdiscussion 5 of actual physical control is misplaced. 6 {13} Defendant also analogizes this case to Cotton , claiming Defendant could have 7 parked and then consumed th e beer. 2011-NMCA-096, ¶ 14. In Cotton , this Court 8 reversed the defendant’s c onviction for aggravated DWI because the state provided 9 no evidence at trial that the defendant actually drove while impaired. Id. ¶ 1. The 10 defendant in Cottonwas parked on the side of the road and was seated in the driver’s 11 seat with no keys in the ignition when the officer approached him. Id. ¶¶ 4-5. While 12 the defendant admitted to having consumed alcohol one hour earlier and performed 13 poorly on the field sobriety tests, suggesti ng he was impaired at the time he came into 14 contact with the officer, there was no evidence that the defendant drove while 15 impaired and no indication of how long the vehicle had been parked in that location. 16 Id. ¶ 14. Because there was nothing linking the defendant’s impairme nt with any prior 17 driving, we noted in Cottonthat “[the d]efendant c ould have parked and then 18 consumed the beer.” Id. We concluded that the state had “failed to establish that [the 1911 d]efendant drove after he had consumed alcohol and after alcohol had impaired his 1 ability to drive[.]” Id. 2 {14} In Cotton , there were no witnesses to the vehicle’s motion, and there was 3 insufficient circumstantial evidence to allo w for an inference that the accused actually 4 drove while intoxicated. Id. ¶ 13. Cottonis therefore distinguishable. Rather than 5 happening upon Defendant in a parked car, w ithout any idea of how long he had been 6 there, Sergeant Trujillo and Deputy Martin ez witnessed Defendant ’s erratic driving, 7 prompting them to stop him. In addition, Sergeant Trujillo testified that when he 8 initially made contact with Defendant, De fendant smelled of alcohol, had bloodshot, 9 watery eyes, and slurred his speech. Thes e facts taken together are sufficient to 10 support an inference that Defendant drove while intoxicated. 11 B. The District Court Did Not Err by Denying Defendant’s Motion to 12 Dismiss, to Suppress, or for Sanction s Due to the State’s Failure to Collect 13 Evidence 14 {15} Finally, Defendant argues that the districtcourt erred in failing to sanction the 15 State by dismissing the case or awarding other sanctions when officers intentionally 16 turned off their audio recording devices for approximately ten minutes during the 17 investigation. Defendant characterizes th e officers’ actions as an intentional 18 destruction of, or intentional failure to, collect evidence and asserts the district court 19 should have excluded the officers’ testimony, or considered the unrecorded audio 2012 evidence beneficial to Defendant and presumed the officers’ testimony to be 1 unreliable pursuant to State v. Ware , 1994-NMSC-091, ¶ 23, 118 N.M. 319, 881 P.2d 2 679. 3 {16} We review the denial of a motion for sanctions for an abuse of discretion. See 4 State v. Duarte , 2007-NMCA-012, ¶ 3, 140 N.M. 930, 149 P.3d 1027. “An abuse of 5 discretion occurs when the ruling is clearly ag ainst the logic and eff ect of the facts and 6 circumstances of the case. We cannot say th e [district] court abused its discretion by 7 its ruling unless we can characterize it as cl early untenable or not justified by reason.” 8 Id. (internal quotation marks and citation omitted). A district court also abuses its 9 discretion when it uses an incorrect legal standard or misapplies the law. See Brooks 10 v. Norwest Corp ., 2004-NMCA-134, ¶ 7, 136 N.M. 599, 103 P.3d 39. In determining 11 whether the district court abused its disc retion, “[w]e view the facts in the manner 12 most favorable to the prevaili ng party and defer to the district court’s findings of fact 13 if substantial evidence exists to support those findings[,]” but we review the 14 application of the law to the facts de novo. State v. Hubble , 2009-NMSC-014, ¶ 5, 146 15 N.M. 70, 206 P.3d 579 (internal quotation marks and citation omitted). 16 {17} Our Supreme Court has adopted a test “t o determine whether the [s]tate should 17 be sanctioned for failure to gather evid ence from a crime scene” that considers both 18 the interest of the defendant in obtaining a fair trial and the interest of the state in 1913 engaging in effective “law enforcement, convicting guilty defendants, and revealing 1 the truth in criminal proceedings.” Ware , 1994-NMSC-091, ¶ 23. “First, as a threshold 2 matter the evidence that the [s]tate failed to gather from the crime scene must be 3 material to the defendant’s defense.” Id. ¶ 25. “If the evidence is material to the 4 defendant’s defense, then the conduct of th e investigating officers is considered” to 5 determine whether the officers acted in bad faith or were grossly negligent. Id. ¶ 26. 6 {18} Whether evidence is material is a question of law. See id. ¶ 25. “Evidence is 7 material only if there is a reasonable probability that, had the ev idence been available 8 to the defense, the result of the pr oceeding would have been different.” Id. (alteration, 9 internal quotation marks, and citations omitted). “A reasonable probability is a 10 probability sufficient to undermine confidence in the outcome.” Id. (internal quotation 11 marks and citations omitted). 12 {19} Defendant speculates that the officers turned off their audio recording devices 13 to discuss the fact that Defendant was rumore d to be having an affair with the wife of 14 Deputy Martinez and to formulate a plan to retaliate against Defe ndant for the alleged 15 affair. Initially, we note thatDefendant’s hypothesis about the content of the officers’ 16 conversation seems unlikely in light of thei r decision to contact a supervisor of the 17 State Police to participate inthe investigation. Presumabl y, if the officers intended to 18 retaliate against Defendant, they woul d not have invited a supervisor from 1914 Defendant’s department to participate inthe investigation. Further, Defendant’s 1 speculation was based on the perceived retaliatory motive of Deputy Martinez. 2 However, Deputy Martinez was the nonarresting officerand, though he testified to 3 having witnessed the erratic driving confirmed by the da sh camera video, he also 4 testified that he did not witness De fendant’s physical condition—namely his 5 bloodshot, watery eyes, sl urred speech, and smell of alcohol—supporting his 6 conviction. Deputy Martinez also testified that he didn’t believe the rumors. Sergeant 7 Trujillo, the arresting officer, testified he hadn’t heard the rumors about the purported 8 affair. Thus, we conclude Defendant has faile d to demonstrate that any unrecorded 9 conversation between Sergeant Trujillo and Deputy Martinez was material to his 10 defense. 11 {20} Because Defendant has not satisfied the first prong of the Ware test, we need 12 not consider the second prong concerning the culpability of the officers’ conduct in 13 turning off their audio recording devices. See id. ¶¶ 25-26 (stating that materiality is 14 a “threshold matter” and that the investig ating officer’s conduct is considered only 15 “[i]f the evidence is material to the defendant’s defense”). Accordingly, we determine 16 that the district court did not err by denying Defendant’s motion to dismiss, to 17 suppress, or for sanctions due to the State’s alleged destruction of or failure to collect 18 evidence. 1915 III. CONCLUSION 1 {21} We affirm Defendant’s conviction. 2 {22} IT IS SO ORDERED. 3

4 JULIE J. VARGAS, Judge 5 WE CONCUR: 6

7 STEPHEN G. FRENCH Judge 8

9 HENRY M. BOHNHOFF, Judge 10