State v. Duran ( 2015 )


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    1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    2 STATE OF NEW MEXICO,
    3          Plaintiff-Appellee,
    4 v.                                                                                     No. 33,862
    5 SEBASTIAN DURAN,
    6          Defendant-Appellant.
    7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
    8 Kenneth H. Martinez, District Judge
    9 Hector H. Balderas, Attorney General
    10 Santa Fe, NM
    11 for Appellee
    12   Jorge A. Alvarado, Chief Public Defender
    13   Santa Fe, NM
    14   Josephine H. Ford, Assistant Appellate Defender
    15   Albuquerque, NM
    16 for Appellant
    17                                 MEMORANDUM OPINION
    18 SUTIN, Judge.
    1   {1}      Defendant Sebastian Duran appeals his conviction for driving while under the
    2 influence of an intoxicating liquor. We issued a notice of proposed summary
    3 disposition proposing to affirm on September 9, 2014. Defendant filed a timely
    4 memorandum in opposition, which we have duly considered. We remain unpersuaded
    5 that our initial proposed disposition was incorrect, and we therefore affirm.
    6 DISCUSSION
    7   {2}   In his memorandum in opposition, Defendant concedes that the evidence was
    8 sufficient to establish that the crime occurred in the State of New Mexico and that the
    9 crime occurred within the territorial jurisdiction of the district court. [MIO 16-17]
    10 However, Defendant continues to argue that there was insufficient evidence to show
    11 that the crime occurred within the arresting officer’s jurisdiction.        [MIO 16]
    12 Specifically, Defendant argues that there was insufficient evidence that the crime
    13 occurred in the municipality of Albuquerque, and the arresting officer therefore did
    14 not have jurisdiction when she stopped and arrested him. [MIO 17] See NMSA 1978,
    15 § 3-13-2(A)(4)(d) (1988) (stating that a police officer of a municipality shall
    16 “apprehend any person in the act of violating the laws of the state or the ordinances
    17 of the municipality and bring him before competent authority for examination and
    18 trial”).
    2
    1   {3}   The district court entered a memorandum opinion in Defendant’s on-record
    2 appeal, addressing this issue, and we proposed to rely on its analysis in our notice of
    3 proposed summary disposition.          [RP 135-43]      Specifically, the district court
    4 determined that, even if this argument were preserved, there was sufficient evidence
    5 that the crime occurred within the City of Albuquerque because the arresting officer
    6 testified that she was within city limits when she stopped Defendant. [RP 142] She
    7 also testified that she stopped Defendant at the intersection of Universe and Irving,
    8 which is in the Ventana Ranch subdivision and that the Ventana Ranch subdivision
    9 is within the City of Albuquerque. [RP 135-37, 142] Defendant argues in his
    10 memorandum in opposition that the arresting officer did not testify verbatim that she
    11 stopped Defendant “in the City of Albuquerque, County of Bernalillo, State of New
    12 Mexico.” [MIO 18] However, we continue to agree with the district court’s analysis
    13 that the officer’s testimony was sufficient to allow the trial court to infer that the stop
    14 occurred within the city limits. We therefore reject this assertion of error.
    15   {4}   Defendant also continues to argue that police lacked probable cause to arrest
    16 him because the arresting officer did not have a reasonable belief that he was driving
    17 while impaired by alcohol. [MIO 20] Defendant raises this claim as a matter of
    18 fundamental error because, as we pointed out in the notice of proposed summary
    19 disposition, he did not raise this issue below. [MIO 20] See In re Aaron L.,
    3
    1 
    2000-NMCA-024
    , ¶ 10, 
    128 N.M. 641
    , 
    996 P.2d 431
     (stating that on appeal the
    2 reviewing court will not consider issues not raised in the trial court unless the issues
    3 involve matters of fundamental error or fundamental rights of a party). Defendant is
    4 necessarily arguing, therefore, that the district court should have suppressed the
    5 evidence sua sponte. According to our case law, such a claim implicates the doctrine
    6 of plain error rather than fundamental error. See State v. Torres, 
    2005-NMCA-070
    ,
    7 ¶ 9, 
    137 N.M. 607
    , 
    113 P.3d 877
    . Although this doctrine is not as strict in application
    8 as fundamental error, it is to be used sparingly. 
    Id.
     The rule should be applied “only
    9 if we have grave doubts about the validity of the verdict, due to an error that infects
    10 the fairness or integrity of the judicial proceeding.” 
    Id.
     (internal quotation marks and
    11 citation omitted).
    12   {5}   Where, as here, the claim of plain error is based on the district court’s failure
    13 to suppress evidence sua sponte, the doctrine will be applied only if suppression is the
    14 only result rationally supported by undisputed facts in the record. Id. ¶¶ 11, 12. If the
    15 claim depends on factual determinations that the district court was never asked to
    16 make, we will not apply the doctrine on appeal. See id. That is the situation here;
    17 Defendant points to evidence that conflicts with the arresting officer’s testimony in
    18 support of his arguments that probable cause did not exist to support his arrest for
    19 driving while impaired. [MIO 20-21] However, the arresting officer testified that she
    4
    1 stopped Defendant because he drove through a stop sign without stopping and then
    2 swerved into her lane, which provides reasonable suspicion for a traffic stop. [MIO
    3 1-2] In addition, she testified that, after making the stop, she smelled alcohol in
    4 Defendant’s vehicle and that Defendant performed unsatisfactorily on field sobriety
    5 tests, which provided probable cause for the arrest. [MIO 3-4] See State v. Granillo-
    6 Macias, 
    2008-NMCA-021
    , ¶ 12, 
    143 N.M. 455
    , 
    176 P.3d 1187
     (holding that the odor
    7 of alcohol, lack of balance at the vehicle, and failure to satisfactorily perform field
    8 sobriety tests supported an objectively reasonable belief that the defendant had been
    9 driving while intoxicated, and thus constituted probable cause to arrest). Although
    10 Defendant points to his testimony that he did not run a stop sign and did not turn into
    11 the officer’s lane, Defendant did not ask the district court to resolve the conflicting
    12 factual issues by moving to suppress the evidence obtained pursuant to the stop and
    13 arrest. [MIO 20-21] Accordingly, because there was conflicting evidence concerning
    14 the legal issues and a finding of lack of probable cause is not the only one rationally
    15 supported by the record, we hold there is no plain error in the district court’s failure
    16 to sua sponte suppress the evidence in question. See Torres, 
    2005-NMCA-070
    , ¶¶ 9-
    17 12.
    18   {6}   For these reasons, we affirm Defendant’s conviction.
    19   {7}   IT IS SO ORDERED.
    5
    1                               __________________________________
    2                               JONATHAN B. SUTIN, Judge
    3 WE CONCUR:
    4 ___________________________________
    5 RODERICK T. KENNEDY, Chief Judge
    6 ___________________________________
    7 CYNTHIA A. FRY, Judge
    6
    

Document Info

Docket Number: 33,862

Filed Date: 1/12/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021