State v. Clark

Opinion

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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 36,102

5 JACK CLARK,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 Dustin K. Hunter, District Judge

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

11 for Appellee

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

15 for Appellant

16 MEMORANDUM OPINION

17 HANISEE Judge. 1 {1} Defendant appeals from his bench trial convictions of driving under the

2 influence of intoxicating liquor (DUI), pursuant to NMSA 1978, Section 66-8-102(A)

3 (2010, amended 2016) (impaired to the slightest degree), and failure to maintain lane,

4 pursuant to NMSA 1978, Section 66-7-317 (1978). [DS 1; RP 168, 174, 199] This

5 Court issued a notice proposing to affirm. Defendant has filed a memorandum in

6 opposition, which we have duly considered. Remaining unpersuaded, we affirm.

7 {2} Defendant’s sole issue on appeal is whether his conviction for DUI is supported

8 by sufficient evidence. [DS 10] Based on the facts noted in the docketing statement

9 and viewing them in the light most favorable to the verdict, we proposed to hold

10 Defendant’s conviction was supported by sufficient evidence. [CN 6] See State v.

11 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (stating that the

12 reviewing court “view[s] the evidence in the light most favorable to the guilty verdict,

13 indulging all reasonable inferences and resolving all conflicts in the evidence in favor

14 of the verdict”). In his memorandum in opposition, Defendant continues to argue his

15 conviction was not supported by sufficient evidence based on contrary evidence

16 tending to show his failure to maintain his lane was caused by the poor condition of

17 his vehicle, gusty winds, and road construction; Defendant stated he had consumed

18 only two beers and two energy drinks; and Defendant’s appearance and performance

19 on the field sobriety tests was due to fatigue, wind, and road construction. [MIO 2-4,

2 1 5-7] As we noted in our notice of proposed disposition, “[c]ontrary evidence

2 supporting acquittal does not provide a basis for reversal because the jury is free to

3 reject [the d]efendant’s version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19,

4 126 N.M. 438, 971 P.2d 829; see State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M.

5 686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any conflict in

6 the testimony of the witnesses and to determine where the weight and credibility lie).

7 [CN 6] We therefore hold the evidence was sufficient to support Defendant’s

8 conviction for DUI.

9 {3} Accordingly, for the reasons explained in the notice of proposed disposition and

10 because Defendant’s asserted contrary facts do not present a basis for reversal of his

11 conviction, we affirm.

12 {4} IT IS SO ORDERED.

13 14 J. MILES HANISEE, Judge

15 WE CONCUR:

16 17 JULIE J. VARGAS, Judge

3 1 2 STEPHEN G. FRENCH, Judge