State v. Carrasco

• Court: New Mexico Court of Appeals
• Decided: October 7, 2013
• Docket: 32,985
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 32,985

5 JAMIE CARRASCO,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 Gary Clingman, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Acting Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 GARCIA, Judge. 1 {1} Defendant appeals his conviction for third degree criminal sexual penetration

2 (CSP), which was enhanced due to his habitual offender status. [RP 145] Our notice

3 proposed to affirm, and Defendant filed a memorandum in opposition. We remain

4 unpersuaded by Defendant’s arguments and therefore affirm.

5 {2} Defendant continues to argue there was insufficient evidence to support his CSP

6 conviction. See State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d

7 1314 (setting forth the standard of review for a substantial evidence review). For the

8 reasons detailed in our notice, we hold that the evidence supports the jury’s

9 determination that Defendant inserted his penis in Victim’s vagina, and that he did so

10 unlawfully and through the use of physical force or violence. [RP 97] See generally

11 State v. Sparks, 1985-NMCA-004, ¶¶ 6-7, 102 N.M. 317, 694 P.2d 1382 (defining

12 substantial evidence as that evidence which a reasonable person would consider

13 adequate to support a defendant’s conviction). While Defendant maintains that Victim

14 consented to his act [MIO 4], we again emphasize that the jury was free to reject

15 Defendant’s version of the events. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.

16 438, 971 P.2d 829 (“Contrary evidence supporting acquittal does not provide a basis

17 for reversal because the jury is free to reject Defendant’s version of the facts.”); see

18 also State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing

2 1 that it is for the factfinder to resolve any conflict in the testimony of the witnesses and

2 to determine where the weight and credibility lay).

3 {3} For the reasons set forth herein and in our notice, we affirm.

4 {4} IT IS SO ORDERED.

5 6 TIMOTHY L. GARCIA, Judge

7 WE CONCUR:

8 9 CYNTHIA A. FRY, Judge

10 11 LINDA M. VANZI, Judge