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State v. Munoz6/24/2004
Defendant, Armando Munoz, appeals his conviction on two counts of great bodily injury by vehicle (GBI). Defendant argues that the district court improperly refused his request for an instruction on the lesser offense of driving while intoxicated (DWI). Because we agree that Defendant was entitled to an instruction on the offense of driving while intoxicated, we reverse his convictions and remand for a new trial.
BACKGROUND
In the early morning hours of September 30, 2001, a SUV driven by Defendant collided with a motorcycle at the intersection of Sudderth Drive and Raines Drive in Ruidoso. The driver of the motorcycle and his passenger were severely injured. The only witnesses to the collision were the driver and passenger of the motorcycle; Defendant's brother, who was a passenger in Defendant's SUV; and Defendant.
Defendant was charged, inter alia, with two counts of causing great bodily injury by vehicle, contrary to NMSA 1978, § 66-8-101(B) and (C) (1991). At trial, the State's theory was that Defendant caused the accident by pulling out of Raines Drive into the path of the motorcycle as it proceeded eastward on Sudderth Drive with the right of way. Defendant's theory was that he was driving westward in the right-hand lane of Sudderth Drive and that the motorcycle veered over the centerline into his lane, causing the collision.
The driver of the motorcycle conceded that he had been drinking prior to the collision. He testified that he had looked ahead prior to the accident and that Sudderth Drive was clear of traffic. The next thing he remembered was waking up in the hospital. The passenger testified that she recalled seeing an SUV matching the description of Defendant's vehicle off to the right as the motorcycle approached Raines Drive. The passenger did not recall the collision itself.
Defendant admitted that he had up to eight beers prior to the accident. The two samples analyzed in Defendant's breath test showed values of 0.17 and 0.18 BAC.*fn1 Defendant denied having been on Raines Drive that evening. Defendant told an investigating officer at the scene that he had been heading west on Sudderth Drive when the motorcycle struck his vehicle. Defendant's brother testified that they were headed west on Sudderth Drive when the accident occurred.
The State's evidence included testimony by the investigating officers and an accident reconstructionist. Their testimony generally supported the State's theory that the accident occurred in the eastbound side of Sudderth Drive, rather than the westbound side as claimed by Defendant.
During a jury instruction conference, Defendant requested a jury instruction on DWI as a lesser-included offense of GBI by vehicle. Defendant argued that the State's theory of the case was that Defendant's impaired driving due to intoxication was the proximate cause of the collision. Defendant argued that under the State's theory of the case, Defendant could not have committed GBI by vehicle without also having committed the offense of DWI. Defendant pointed out that without a DWI instruction, the only alternatives the jury would have would be letting Defendant go "Scott-free" or convicting him of GBI by vehicle. The State opposed the instruction, arguing that DWI was not a lesser- included offense of GBI by vehicle under the holdings of State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct. App. 1973) and State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975). Relying on Trujillo, the trial court denied Defendant's requested instruction on DWI.
The jury returned guilty verdicts on both counts of GBI by vehicle.
DISCUSSION
Rule 5-611(D) NMRA 2004 of the New Mexico Rules of Criminal
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