{ "id": 4004009, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Donald BULLCOMING, Defendant-Appellant", "name_abbreviation": "State v. Bullcoming", "decision_date": "2008-06-04", "docket_number": "No. 26,413", "first_page": "546", "last_page": "554", "citations": [ { "type": "official", "cite": "144 N.M. 546" }, { "type": "parallel", "cite": "2008-NMCA-097" }, { "type": "parallel", "cite": "189 P.3d 679" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 3, "year": 1999, "pin_cites": [ { "parenthetical": "explaining that the U.S. Constitution does not require prior convictions that increase a maximum penalty to be proved beyond a reasonable doubt" }, { "parenthetical": "explaining that the U.S. Constitution does not require prior convictions that increase a maximum penalty to be proved beyond a reasonable doubt" }, { "parenthetical": "explaining that the U.S. Constitution does not require prior convictions that increase a maximum penalty to be proved beyond a reasonable doubt" } ], "opinion_index": 0, "case_paths": [ "/us/526/0227-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 7, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "490" }, { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "2001-NMCA-001", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352341 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6\u00b6 5, 10" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0098-01" ] }, { "cite": "2000-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106514 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/128/0588-01" ] }, { "cite": "2000-NMCA-004", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106480 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0559-01" ] }, { "cite": "114 N.M. 283", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731655 ], "weight": 2, "pin_cites": [ { "page": "287" }, { "page": "1370" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0283-01" ] }, { "cite": "2006-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2544827 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0106-01" ] }, { "cite": "112 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720248 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "487", "parenthetical": "noting that error in the admission of evidence in a criminal case must be prejudicial and not harmless and that standard is met \"if there is a reasonable possibility that the evidence complained of might have contributed to the conviction\"" }, { "page": "1109", "parenthetical": "noting that error in the admission of evidence in a criminal case must be prejudicial and not harmless and that standard is met \"if there is a reasonable possibility that the evidence complained of might have contributed to the conviction\"" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0485-01" ] }, { "cite": "2004-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224666 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0309-01" ] }, { "cite": "1998-NMSC-052", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827417 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0477-01" ] }, { "cite": "2007-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669946 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 1-3" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0751-01" ] }, { "cite": "100 N.M. 621", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588567 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "622", "parenthetical": "explaining that this Court is bound by the precedents of our Supreme Court \"even when a United States Supreme Court decision seems contra\"" }, { "page": "512", "parenthetical": "explaining that this Court is bound by the precedents of our Supreme Court \"even when a United States Supreme Court decision seems contra\"" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0621-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "2004-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224659 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 3-4" }, { "page": "\u00b6 45" }, { "page": "\u00b6 44" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0561-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 5, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "287 Mont. 1", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 297478 ], "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "concluding that the district court did not abuse its discretion in admitting the expert testimony of a law enforcement officer even though she was never \"formally offer[ed]\" as an expert witness by the prosecution" }, { "page": "580-81", "parenthetical": "concluding that the district court did not abuse its discretion in admitting the expert testimony of a law enforcement officer even though she was never \"formally offer[ed]\" as an expert witness by the prosecution" } ], "opinion_index": 0, "case_paths": [ "/mont/287/0001-01" ] }, { "cite": "76 N.M. 171", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500976 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "176", "parenthetical": "explaining that the district court has substantial discretion, based on its perception of the offered expert's qualifications, in deciding whether to allow or deny the testimony of such a witness" }, { "page": "213-14", "parenthetical": "explaining that the district court has substantial discretion, based on its perception of the offered expert's qualifications, in deciding whether to allow or deny the testimony of such a witness" } ], "opinion_index": 0, "case_paths": [ "/nm/76/0171-01" ] }, { "cite": "158 P.3d 459", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "141 N.M. 569", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2007-NMCERT-004", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2007-NMCA-046", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668900 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0455-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "113 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723276 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "229" }, { "page": "1031" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0221-01" ] }, { "cite": "2006-NMCA-098", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671457 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0345-01" ] }, { "cite": "1998-NMCA-163", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827413 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6\u00b6 13-14" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0177-01" ] } ], "analysis": { "cardinality": 1063, "char_count": 24995, "ocr_confidence": 0.694, "pagerank": { "raw": 1.0928537025579325e-07, "percentile": 0.5660741224681439 }, "sha256": "8397ad9a58996797f027fe2d2b916a12f7824a1b044beb5b091f6d9e1a02f9a8", "simhash": "1:9e328b12bd07af43", "word_count": 4048 }, "last_updated": "2023-07-14T22:37:29.378104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: JONATHAN B. SUTIN, Chief Judge, and CELIA FOY CASTILLO, Judge." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Donald BULLCOMING, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} As per the Corrected Judgment, Sentence, Order Partially Suspending Sentence and Commitment to the Department of Corrections, Defendant Donald Bullcoming was convicted of the offense of Aggravated Driving While Under the Influence of Intoxicating Liquor and sentenced based on four prior DWI convictions. He appeals, raising five issues: (1) that the district court erred in denying a motion for mistrial based on the prosecutor\u2019s improper comment on silence in closing argument, (2) that the district court abused its discretion by allowing testimony by a police officer about the cause of an accident involving Defendant when the officer did not witness the accident, (3) that the district court erred in admitting into evidence blood draw results when the analyst who prepared the results was not available to testify, (4) that the district court erred in admitting into evidence the hearsay statement of Defendant\u2019s brother, and (5) that the State did not sufficiently prove Defendant\u2019s four prior DWI convictions. We affirm Defendant\u2019s conviction. In doing so, we agree with the district court\u2019s use of the preponderance of the evidence standard in addressing Defendant\u2019s prior DWI convictions.\nBACKGROUND\n{2} Defendant was arrested after an automobile accident in which Defendant, while driving his sibling\u2019s vehicle, ran into another truck at an intersection. After the accident, the other driver got out of his truck and went back to the vehicle that Defendant was driving and asked for Defendant\u2019s license and registration. The other driver noticed the smell of alcohol coming from Defendant\u2019s vehicle. When the other driver returned to his truck, he asked his wife to call the police. As the other driver examined the rear end of his truck for damage, Defendant and his sister approached him. The other driver spoke with both of them and obtained insurance information. The other driver smelled alcohol emanating from Defendant and also observed that Defendant had bloodshot eyes. When the other driver told Defendant that he needed to get a police report and had called the police, Defendant excused himself, saying that he needed to go to the restroom, and went across the street toward a medical complex. The other driver testified that the police brought Defendant back to the scene of the accident approximately ten minutes later.\n{3} Defendant testified that he had not been drinking for about ten hours that day. He said that he was driving because the others in the vehicle had been drinking and were drunk. According to Defendant, the odor of alcohol in the vehicle came from them, rather than him. Defendant further testified that he left the scene after the other driver told him that the police had been called because he was afraid that he was going to be arrested. Defendant knew he had an outstanding warrant because he had violated his probation in Oklahoma by leaving that state. He walked to a creek where he met other men who were drinking vodka, and he testified that he drank with them for about thirty minutes and that they drank about a pint and a half gallon. He was picked up by the police when he returned to the road. He was intoxicated when he was given field sobriety tests back at the scene of the accident.\nCOMMENT ON SILENCE\n{4} In closing argument, on rebuttal, the prosecutor argued that Defendant did not tell the police officers anything about drinking vodka with others. He argued that if Defendant had told the officers that he \u201cwas just back in the bushes with three or four guys and I drank a whole load of vodka,\u201d and \u201cI\u2019ll show you,\u201d one of the officers could have gone to the bushes and investigated and asked the others if Defendant had been drinking. Defendant objected on Fifth Amendment grounds. The district court then stated: \u201cLadies and gentlemen of the jury, ... Defendant has a right to remain silent and be presumed innocent. And, you are not to infer from counsel\u2019s argument that ... Defendant had any duty to say anything.\u201d After the district court excused the jury, Defendant moved for a mistrial, contending that the prosecutor\u2019s argument was \u201cso prejudicial and so in violation of the law, of the constitution,\u201d that it justified a mistrial. The district court denied the motion, stating that the comment was only a casual comment that was cured by its instruction to the jury.\n{5} On appeal, Defendant argues that the comment was not casual; rather, Defendant asserts that its calculation was demonstrated by the prosecutor\u2019s questioning of Officer Martin Snowbarger about his conversation with Defendant. When, as here, the facts are not in question, the issue of whether the prosecutor made an improper comment on the defendant\u2019s silence is a question of law that we review de novo. State v. Foster, 1998-NMCA-163, \u00b6 8, 126 N.M. 177, 967 P.2d 852. We may affirm the district court if it was correct for any reason, as long as the basis for such ruling was raised before the district court. State v. Granville, 2006-NMCA-098, \u00b6 12, 140 N.M. 345, 142 P.3d 933.\n{6} We now review the record, which demonstrates that the prosecutor\u2019s comment related to Defendant\u2019s pre-arrest, as opposed to his post-arrest, silence. Officer Snowbarger first encountered Defendant on the other side of a bridge away from the scene of the accident and spoke with him at that time. He requested another police car to transport Defendant back to the accident scene. He arrived back at the scene at the same time as Defendant and was there during the time that Officer David Rock administered field sobriety tests to Defendant. Officer Snowbarger testified that he issued Defendant three citations but that he did not issue a citation for DWI. Officer Rock testified that when he arrived at the scene, Defendant was still in a police car. Officer Rock removed Defendant from the car, observed him walk to the sidewalk, and asked him, \u201cHave you had anything to drink today?\u201d Defendant responded that he \u201chad one this morning at 6:00 a.m.\u201d Officer Rock wrote Defendant\u2019s response in his report. Officer Rock then administered the field sobriety tests. After completing the tests, Officer Rock concluded that Defendant was intoxicated and impaired, arrested him, and took him to the police station for booking. Although Officer Rock\u2019s testimony is not clear as to the exact location where he read Defendant his rights under the New Mexico Implied Consent Act, he testified that he did so after arresting Defendant. Ultimately, he obtained a warrant and took Defendant to the emergency room for a blood alcohol test.\n{7} The prosecution may use a defendant\u2019s pre-arrest silence for impeachment purposes without infringing upon his or her Fifth Amendment rights. See State v. Gonzales, 113 N.M. 221, 229, 824 P.2d 1023, 1031 (1992); Foster, 1998-NMCA-163, \u00b6\u00b6 13-14. Although the transcript does not reflect exactly when Defendant was given his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we assume that it was not until after Officer Rock arrested him.\n{8} With this factual predicate, we conclude that the context of the prosecutor\u2019s statement in rebuttal shows that he was only referencing Defendant\u2019s pre-arrest silence. First, the prosecutor discussed the police officers\u2019 ability to investigate by going to the bushes and asking anyone found there if Defendant had been drinking. That time period was, by necessity, limited, because anyone present in the bushes had the ability to leave that area. Second, although a police investigation may certainly continue after an arrest, the prosecutor\u2019s discussion was limited to the police officers\u2019 investigation in the context of this case, which impliedly referenced only the investigation at the scene when the officers had the present ability to return to the bushes while someone with knowledge of Defendant was still present. Third, the prosecutor made reference to Defendant\u2019s statement to Officer Rock that he had not had anything to drink since 6:00 a.m. That statement was a pre-arrest statement.\n{9} Thus, from the factual context, as well as the wording of the prosecutor\u2019s argument, we conclude that it reasonably related only to Defendant\u2019s pre-arrest silence. It did not merit a granting of Defendant\u2019s motion for a mistrial.\nOFFICER SNOWBARGER\u2019S TESTIMONY ABOUT THE CAUSE OF THE ACCIDENT\n{10} Defendant contends that Officer Snowbarger was not qualified to offer opinion testimony concerning the cause of the accident because he was not qualified as an expert and, testifying as a lay witness, he could not testify about causation because he did not witness the accident. Officer Snowbarger testified at trial as the State\u2019s witness. He was dispatched to and observed the accident scene. After being informed that Defendant had left the scene, he also left the scene, located Defendant, and requested the transport of Defendant back to the scene by another officer. Defense counsel objected when the prosecutor asked Officer Snowbarger if he was able to form an opinion about the cause of the accident. Upon the district court\u2019s inquiry as to a ground for the objection, defense counsel stated, \u201cThere\u2019s no foundation for it. He\u2019s not an expert.\u201d The prosecutor offered to lay a foundation, and Officer Snowbarger testified that he was assigned to the traffic division and had the primary duty of investigating traffic accidents. He testified that he had received training in basic accident reconstruction and traffic crash reconstruction and was certified as a traffic crash reconstructionist. Officer Snowbarger also testified that he had formed opinions as to the contributing factors to Defendant\u2019s accident, and when asked to state his opinions, defense counsel again objected, stating, \u201cI would still object, Your Honor.\u201d The district court overruled the objection. Accordingly, Officer Snowbarger testified to his opinion as to the contributing factors of Defendant\u2019s accident, stating that \u201cthe driver of the vehicle was not paying attention to the vehicle in front of him, or his driving habits.\u201d When asked if he was able to formulate an opinion based on his observations as to why the driver was not paying attention, again over objection, Officer Snowbarger testified that he believed that the driver \u201cwas under the influence of some kind of intoxicating liquor.\u201d\n{11} We do not agree with Defendant\u2019s contention that Officer Snowbarger was not qualified as an expert to provide his opinion about the cause of the accident. Under Rule 11-702 NMRA, a witness may testify as to an expert opinion if the \u201cspecialized knowledge\u201d of the witness \u201cwill assist the trier of fact\u201d and the witness is qualified as an expert to provide the opinion by virtue of \u201cknowledge, skill, experience, training or education.\u201d The district court, in its discretion, decides whether a witness qualifies as an expert under Rule 11-702. State v. Downey, 2007-NMCA-046, \u00b6 11, 141 N.M. 455, 157 P.3d 20, cert. granted, 2007-NMCERT-004, 141 N.M. 569, 158 P.3d 459. When defense counsel raised the issue of Officer Snowbarger\u2019s qualifications by objecting for lack of foundation, the prosecutor elicited his qualifications. Officer Snowbarger testified about his training and his certification as a traffic crash reconstructionist. Defense counsel then only restated her earlier objection of lack of foundation. She did not seek to engage Officer Snowbarger in a voir dire examination or otherwise challenge his qualifications. The district court acted within its discretion in allowing Officer Snowbarger\u2019s causation testimony based on the foundation laid concerning his qualifications.\n{12} Nor did the district court abuse its discretion because the prosecutor did not formally proffer Officer Snowbarger as an expert witness. The prosecutor clearly presented the issue to the district court. He asked Officer Snowbarger about whether he had formed any opinions about the cause of the accident. After laying a foundation for testimony about his opinion, the prosecutor asked Officer Snowbarger to state his opinions. There was no lack of clarity concerning the scope of the question calling for Officer Snowbarger\u2019s expertise or of the relationship of his qualifications to his ability to present an opinion in response to the question. Defendant does not indicate how a formal proffer would have served any meaningful purpose or how he was prejudiced by the absence of a formal proffer. See State v. Garcia, 76 N.M. 171, 176, 413 P.2d 210, 213-14 (1966) (explaining that the district court has substantial discretion, based on its perception of the offered expert\u2019s qualifications, in deciding whether to allow or deny the testimony of such a witness); see also State v. Gregoroff, 287 Mont. 1, 951 P.2d 578, 580-81 (1997) (concluding that the district court did not abuse its discretion in admitting the expert testimony of a law enforcement officer even though she was never \u201cformally offer[ed]\u201d as an expert witness by the prosecution).\nBLOOD DRAW RESULTS\n{13} The State introduced evidence of the analysis of the blood sample taken from Defendant through the testimony of an analyst of the New Mexico Department of Health Scientific Laboratory Division, Toxicology Bureau. The witness was not the analyst who performed the analysis of the blood sample and did not prepare the blood analysis report admitted into evidence. Defendant objected to the analyst\u2019s testimony on the basis that it violated Defendant\u2019s right of confrontation. Defendant further objected to the receipt of the blood analysis report as a business record because it was prepared in anticipation of litigation. The district court allowed the report to be admitted into evidence as a business record.\n{14} On appeal, Defendant argues that the district court erred in allowing the blood draw results. Relying on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), he contends that testimonial statements may not be introduced against a defendant at trial unless both the declarant is unavailable and the defendant has had the opportunity to cross-examine the declarant. According to Defendant, the State did not prove that the analyst who prepared the report was unavailable to testify at trial, and Defendant did not have the opportunity to cross-examine that analyst. Defendant further acknowledges that our Supreme Court has decided this issue in State v. Dedman, 2004-NMSC-037, 136 N.M. 561, 102 P.3d 628, but argues that decisions in other states following Crawford have reached a different result than our Supreme Court in Dedman. We note that although Defendant argued in the district court that the witness\u2019s testimony should have been excluded because of late disclosure, Defendant does not raise that ground as a basis for reversal on appeal.\n{15} We begin and end our legal analysis with Dedman because it is dispositive. In Dedman, the nurse who had withdrawn blood from the defendant for testing by the Scientific Laboratory Division (SLD) was not available to testify at trial. Dedman, 2004-NMSC-037, \u00b6\u00b6 3-4. The SLD toxicologist testified at trial that the blood alcohol report was the product of the \u201cregularly conducted business activity\u201d of SLD. Id. \u00b643. Our Supreme Court held that there was no indication the report was untrustworthy or unreliable and further held that the report was admissible under the public records exception to the hearsay rule. Id. \u00b6\u00b6 24, 44. It stated that \u201cordinarily a blood alcohol report is admissible as a public record and presents no issue under the Confrontation Clause because the report is non-testimonial and satisf\u00edes\u201d the test of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford, 541 U.S. 36, 124 S.Ct. 1354, concerning the admission of hearsay evidence under the Confrontation Clause. Dedman, 2004-NMSC-037, \u00b6 45.\n{16} In this case, the SLD toxicologist testified that the report was used and kept in the ordinary course of SLD\u2019s business and also testified about the procedure used in preparing the report. As in Dedman, there was no evidence that there was any deviation from ordinary practice or that the report was untrustworthy or unreliable. See id. \u00b6 44. We are bound by Dedman, a decision of our Supreme Court, and we therefore do not address the opinions of other states on the issue. See State v. Manzanares, 100 N.M. 621, 622, 674 P.2d 511, 512 (1983) (explaining that this Court is bound by the precedents of our Supreme Court \u201ceven when a United States Supreme Court decision seems contra\u201d).\n{17} We do not agree with Defendant\u2019s argument at oral argument that State v. Almanza, 2007-NMCA-073, 141 N.M. 751, 160 P.3d 932, is inconsistent with Dedman. In Almanza, because of short notice to subpoena the chemist to appear at trial, the prosecution introduced the telephonic testimony of a New Mexico State Crime Lab chemist concerning the character of the substance the state alleged was illegal drugs. Almanza, 2007-NMCA-073, \u00b6\u00b6 1-3. This Court held that the testimony violated the defendant\u2019s confrontation rights. Id. \u00b6\u00b6 1, 12-13. However, Almanza did not involve the issue of the testimonial nature of a report admissible under Roberts. As discussed in Dedman, the blood alcohol report in the present case was non-testimonial and prepared routinely with guarantees of trustworthiness. See Dedman, 2004-NMSC-037, \u00b6 44.\nHEARSAY STATEMENT OF DEFENDANT\u2019S BROTHER\n{18} Officer Snowbarger testified, over Defendant\u2019s objection, to statements that were told to him by Defendant\u2019s brother, who did not testify at trial. He testified that Defendant\u2019s brother told him that Defendant had been driving the vehicle and pointed in the direction that Defendant had gone from the scene. The district court responded to Defendant\u2019s hearsay objection by instructing the jury that the testimony was not for the truth of the statements; rather, it served to show that it caused Officer Snowbarger to take further action. Defendant did not make a Confrontation Clause objection.\n{19} We review the admission of hearsay evidence under an abuse of discretion standard. State v. Torres, 1998-NMSC-052, \u00b6 15, 126 N.M. 477, 971 P.2d 1267, overruled on other grounds by State v. Alvarez-Lopez, 2004-NMSC-030, \u00b6 23, 136 N.M. 309, 98 P.3d 699. The district court did not abuse its discretion in allowing this testimony. First, it did not allow hearsay testimony because it instructed the jury not to accept the testimony for the truth of what Defendant\u2019s brother said. Rule 11-801(C) NMRA (defining hearsay as \u201ca statement ... offered in evidence to prove the truth of the matter asserted\u201d). Second, even if the testimony had been hearsay, there was no prejudice to Defendant. See Clark v. State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991) (noting that error in the admission of evidence in a criminal case must be prejudicial and not harmless and that standard is met \u201cif there is a reasonable possibility that the evidence complained of might have contributed to the conviction\u201d). There was no material issue that Defendant had been driving the vehicle or had left the scene in a particular direction.\n{20} As to the Confrontation Clause, our review is de novo. Torres, 1998-NMSC-052, \u00b6 20. In this case, we review for fundamental error because Defendant did not raise an objection in the district court. See State v. Munoz, 2006-NMSC-005, \u00b6 12, 139 N.M. 106, 129 P.3d 142. Fundamental error exists in this context if Defendant\u2019s \u201cinnocence is indisputable or the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand.\u201d State v. Hennessy, 114 N.M. 283, 287, 837 P.2d 1366, 1370 (Ct.App.1992) (internal quotation marks and citation omitted). No such circumstances exist in this case because, as we have stated, there was no material issue as to whether Defendant was driving or whether he left the scene in a particular direction after the accident.\nPROOF OF PRIOR DWI CONVICTIONS\n{21} Sentencing for a DWI conviction in New Mexico is graduated depending on a defendant\u2019s prior convictions, if any. See NMSA 1978, \u00a7 66-8-102(E) to (J) (2005) (amended 2007). The district court found that Defendant had at least four prior convictions of DWT and sentenced him on the basis that his conviction in this ease was his fifth DWI conviction. As a result, Defendant\u2019s conviction was for a fourth degree felony, subjecting him to a two-year term of imprisonment, which term was imposed by the district court. Section 66-8-102(H).\n{22} In proving prior DWI convictions for purposes of enhancing a DWI conviction, the state has the \u201cinitial burden of presenting evidence of the validity of each\u201d of a defendant\u2019s prior DWI convictions. State v. Gaede, 2000-NMCA-004, \u00b6 8, 128 N.M. 559, 994 P.2d 1177. If the state presents a prima facie case, the defendant may present contrary evidence. Id. The state continues to have the ultimate burden of persuading the district court, as factfinder, of the validity of each of the convictions. Id.\n{23} Defendant argues on appeal that the State\u2019s evidence was insufficient to prove that Defendant had four prior convictions. As part of his argument, he asserts that the State had to prove the convictions to a standard of beyond a reasonable doubt rather than the lesser standard, to a preponderance of the evidence, that was used by the district court.\n{24} Based on documents that were before the district court, the district court found that Defendant had been convicted of DWI in Elk City Municipal Court, Andarko, Oklahoma, on December 30, 1993; in Clinton Municipal Court, Oklahoma, on April 17, 1995; in Blaine County Oklahoma, on September 28, 2003; and in Dewey County, Taloga, Oklahoma, on December 9, 2004. Defendant contested the use of the 1993 and 1995 convictions to the district court, but the district court found that the convictions were valid. On appeal, although Defendant notes the objections below, he does not argue that the district court erred except in its application of the standard of proof. We thus understand Defendant\u2019s argument to be that the validity of those convictions depends on the district court\u2019s proper application of the standard of proof.\n{25} In making his standard of proof argument, Defendant acknowledges that the New Mexico Supreme Court, in State v. Smith, 2000-NMSC-005, 128 N.M. 588, 995 P.2d 1030, held that in proving prior convictions for habitual offender enhancement, the State need only meet the standard of preponderance of the evidence. Defendant further acknowledges this Court\u2019s statement in State v. Sedillo, 2001-NMCA-001, \u00b6 5, 130 N.M. 98, 18 P.3d 1051, that proof beyond a reasonable doubt is not necessary to prove prior DWI convictions for sentencing in a DWI case. Defendant relies on cases of the United States Supreme Court starting with Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), holding that the proof of \u201cany fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d According to Defendant, Apprendi was decided after Smith, and, in light of Apprendi and its United State Supreme Court progeny, Sedillo was wrongly decided.\n{26} But, Defendant\u2019s argument disregards the express holding of Apprendi. In reaching its conclusion, the United States Supreme Court explicitly excluded \u201cthe fact of a prior conviction\u201d from the type of facts that must be proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In doing so, the United States Supreme Court expressly confirmed its earlier position in Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (explaining that the U.S. Constitution does not require prior convictions that increase a maximum penalty to be proved beyond a reasonable doubt), that facts of prior convictions do not fit within the same category as other facts that increase \u201cthe penalty for a crime beyond the prescribed statutory maximum.\u201d Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.\n{27} A beyond a reasonable doubt standard does not apply to a finding of a prior DWI conviction for purposes of DWI sentencing. See Sedillo, 2001-NMCA-001, \u00b6\u00b6 5, 10. There is no indication in the record on appeal that there was insufficient evidence to support the district court\u2019s findings of Defendant\u2019s prior DWI convictions.\nCONCLUSION\n{28} We affirm Defendant\u2019s conviction.\n{29} IT IS SO ORDERED.\nWE CONCUR: JONATHAN B. SUTIN, Chief Judge, and CELIA FOY CASTILLO, Judge.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.", "John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2008-NMCA-097\n189 P.3d 679\nSTATE of New Mexico, Plaintiff-Appellee, v. Donald BULLCOMING, Defendant-Appellant.\nNo. 26,413.\nCourt of Appeals of New Mexico.\nJune 4, 2008.\nCertiorari Granted, No. 31,186, July 21, 2008.\nGary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.\nJohn Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0546-01", "first_page_order": 578, "last_page_order": 586 }