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State v. Collins3/4/2005
otice to the defendant of the charges against him), overruled on other grounds by State v. Contreras, 120 N.M. 486, 903 P.2d 228 (1995); State v. Gurule, 90 N.M. 87, 91, 559 P.2d 1214, 1218 (Ct. App. 1977) (holding that an indictment was not insufficient where it charged violation of one statute that could be committed in two ways).
Defendant argues that DWI .08 cannot be a lesser included offense under a strict elements test because aggravated DWI can be committed without committing DWI .08. It is true that one can commit aggravated DWI with a BAC less than .08, either by refusing to submit to a chemical test or by causing injury to a human. ยง 66-8-102(D)(2), (3). Thus, because the greater crime of aggravated DWI can be committed in such a manner that the lesser crime of DWI .08 is not committed, we agree with Defendant that the strict elements test has not been met in this case. See State v. Munoz, 2004-NMCA-103, 13, 136 N.M. 235, 96 P.3d 796 (holding that the strict elements test was not met because, analyzing the statutory elements of the charges in the abstract, it was theoretically possible to commit the greater crime without committing the lesser crime); State v. Romero, 1998-NMCA-057, 15-16, 125 N.M. 161, 958 P.2d 119 (same). We therefore turn to the cognate approach.
Romero provides support for the determination that DWI .08 was a lesser included offense in the present case under the cognate approach. See id. 14. In Romero, the greater offense with which the defendant was charged was burglary, of which one element is unauthorized entry. Id. 11. The lesser offense was criminal trespass, which could be committed by either entering or by remaining in a dwelling without permission. Id. 15. This Court determined that it was theoretically possible to commit the lesser crime without committing the greater crime, if the defendant had entered the dwelling with permission but remained without consent. Id. 15-16. Thus, we concluded that the strict elements test was not met. Id. 16. However, we further concluded that under the cognate approach, criminal trespass was a lesser included offense because the sole factual basis of the charge of criminal trespass was unauthorized entry, and under that theory the defendant could not have committed aggravated burglary without also committing criminal trespass. Id.
In the case at hand, it is the greater offense, aggravated DWI, which can be committed in more than one way. However, this Court's reasoning in Romero applies. Under the evidence adduced at trial, the only factual basis for the aggravated DWI charge was DWI .16. Defendant nowhere presents an argument showing that he could not have had notice of DWI .08 as a lesser included offense. We conclude that the first prong of the Meadors cognate approach is met in this case because, under the offense in the charging document and the evidence adduced at trial, Defendant could not have committed the greater offense (DWI .16) without also committing the lesser offense (DWI .08). See Meadors, 121 N.M. at 42-43, 908 P.2d at 735-36.
The second and third prongs of the Meadors cognate approach are also met. The second prong requires sufficient evidence to convict Defendant of the lesser charge to be introduced at trial. Id. at 44, 908 P.2d at 737. As we discuss in greater detail later in this opinion, the BAC results of .17 and .18 are sufficient evidence to show that Defendant drove with a BAC greater than .08. The third prong of the Meadors cognate approach is that the elements distinguishing between the greater and lesser offenses were sufficiently in dispute at trial such that a rational jury could acquit on the greater charge but convict on the lesser charge. Id
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