State v. Frazier

• Court: New Mexico Court of Appeals
• Decided: June 24, 2015
• Docket: 34,384
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,384

5 ANDREW FRAZIER,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Benjamin Chavez, District Judge

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

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender 13 Sergio J. Viscoli, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 GARCIA, Judge.

18 {1} Defendant Andrew Frazier appeals from the district court’s affirmance of his 1 conviction for aggravated DWI (refusal), contrary to NMSA 1978, § 66-8-102(D)(3)

2 (2010). Unpersuaded by Defendant’s docketing statement, we issued a notice of

3 proposed summary disposition, proposing to affirm. Defendant has filed a

4 memorandum in opposition to our notice. We remain unpersuaded and therefore

5 affirm.

6 {2} Defendant challenges the sufficiency of the evidence to support his convictions.

7 [DS 12; MIO 11-14] In our notice, we indicated that the district court’s memorandum

8 opinion, which addressed the same issues raised in this appeal, thoroughly detailed the

9 relevant facts, correctly set forth the applicable standards of review and relevant law,

10 and proposed to adopt portions of the district court’s opinion. Persuaded that the

11 district court’s opinion was correct, we directed Defendant to demonstrate why the

12 district court’s opinion and our reliance on it was incorrect if he wanted this Court to

13 reach conclusions that differed from those reached by the district court. We also

14 directed Defendant to State v. Cotton, 2011-NMCA-096, ¶¶ 14-15, 150 N.M. 583, 263

15 P.3d 925, and explained why we believed that it was distinguishable from the present

16 case and why it supported our proposed conclusion that there was sufficient evidence

17 to support Defendant’s conviction. We further instructed Defendant to address Cotton

18 and its applicability to this case in any memorandum in opposition.

19 {3} In response, Defendant reiterates the same arguments that he articulated in his

2 1 docketing statement and in his statement of issues, [RP 57-68; MIO 2-14] which was

2 considered by the district court below and by this Court prior to issuing our notice.

3 Specifically, Defendant continues to assert that there was insufficient evidence to

4 support his conviction because “[t]here were no driving clues indicating impairment”

5 [MIO 13] and because Defendant’s “dementia casts doubt on his admission that he

6 drank [shortly] after 4:00 p.m.” [MIO 7, 14] We are not persuaded by Defendant’s

7 arguments. These assertions were fully addressed by the district court’s opinion and

8 by this Court’s proposed disposition, and Defendant has not presented any authority

9 or argument that convinces this Court that our proposed disposition or our reliance on

10 the district court’s opinion was incorrect. See State v. Ibarra, 1993-NMCA-040, ¶ 11,

11 116 N.M. 486, 864 P.2d 302 (“A party opposing summary disposition is required to

12 come forward and specifically point out errors in fact and/or law.”). Accordingly, we

13 conclude that there was sufficient evidence to support Defendant’s conviction for the

14 reasons set forth in the district court’s opinion and in our proposed disposition.

15 {4} Based on the foregoing, we affirm.

16 {5} IT IS SO ORDERED.

17 ________________________________ 18 TIMOTHY L. GARCIA, Judge

3 1 WE CONCUR:

2 _______________________________ 3 MICHAEL E. VIGIL, Chief Judge

4 _______________________________ 5 MICHAEL D. BUSTAMANTE, Judge