State v. Baca

• Court: New Mexico Court of Appeals
• Decided: April 23, 2015
• Docket: 34,340
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 34,340

5 DIANE BACA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline Flores, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender 13 Vicki W. Zelle, Assistant Appellate Public Defender 14 Albuquerque, NM

15 for Appellant

16 MEMORANDUM OPINION 1 WECHSLER, Judge.

2 {1} Defendant has appealed from a conviction for DWI. We previously issued a

3 notice of proposed summary disposition in which we proposed to uphold Defendant’s

4 conviction. Defendant has filed a memorandum in opposition. After due consideration,

5 we remain unpersuaded. We therefore affirm.

6 {2} Defendant has raised a single issue, challenging the sufficiency of the evidence

7 to establish that she was driving. [DS 10] As we previously observed in the notice of

8 proposed summary disposition, the State presented evidence that Defendant repeatedly

9 admitted that she had been driving. [DS 2-5, MIO 2] This is sufficient to support the

10 factfinder’s determination. See, e.g., State v. Orquiz, 2012-NMCA-080, ¶ 4, 284 P.3d

11 418 (observing that although no witnesses testified to seeing the defendant driving,

12 his admission at the scene was sufficient for a jury to infer that he actually drove).

13 {3} In her memorandum in opposition, Defendant focuses on the countervailing

14 evidence, including the “physical evidence” (i.e., the position of the driver’s seat),

15 [MIO 10] in support of her continuing assertion that the verdict is unsupported by the

16 weight of the evidence. [MIO 9-11] However, insofar as we cannot re-weigh the

17 evidence, Defendant’s argument does not supply a basis for reversal. See, e.g., State

18 v. Owelicio, 2011-NMCA-091, ¶ 34, 150 N.M. 528, 263 P.3d 305 (observing, in a

19 similar case, that “[a]lthough there was other evidence and testimony indicating that

2 1 [the d]efendant was not the driver, the factfinder [was] entitled to weigh these

2 inconsistencies against [the d]efendant’s admission and the evidence suggesting she

3 was driving[,]” and that on appeal this Court “will not disturb the factfinder’s

4 determinations” on such matters). We therefore reject Defendant’s assertion of error.

5 {4} Accordingly, for the reasons stated in our notice of proposed summary

6 disposition and above, we affirm.

7 {5} IT IS SO ORDERED.

8 ________________________________ 9 JAMES J. WECHSLER, Judge

10 WE CONCUR:

11 ________________________________ 12 TIMOTHY L. GARCIA, Judge

13 ________________________________ 14 M. MONICA ZAMORA, Judge