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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. 35,482

 5 MARVIN PACHECO,

 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 Bennett J. Baur, Chief Public Defender
13 Tania Shahani, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 WECHSLER, Judge.
 1   {1}   Defendant Marvin Pacheco appeals from his convictions after a jury trial of

 2 shoplifting ($250 or less) and assault, both petty misdemeanors. In this Court’s notice

 3 of proposed disposition, we proposed to affirm. Defendant filed a timely

 4 memorandum in opposition, which we have duly considered. We remain unpersuaded

 5 and therefore affirm Defendant’s convictions.

 6   {2}   On appeal, Defendant challenges the sufficiency of the evidence to support his

 7 convictions. [DS 4; MIO 2-4] In our calendar notice, we proposed to hold that there

 8 was sufficient evidence to support Defendant’s conviction for shoplifting ($250 or

 9 less) because there was evidence presented at trial that Defendant took a CL10 Self-

10 Leveling 360-Degree Bosch Laser, priced at $229.00, from a shelf at Home Depot,

11 placed the item into a shopping cart, removed the security spider wrap and packaging

12 from the item, and walked with an unidentified male pushing the shopping cart with

13 the laser past the cash registers on the date in question. [CN 2-4] Likewise, we

14 proposed to hold that there was sufficient evidence to support Defendant’s conviction

15 for assault because there was evidence presented at trial that Mike Caes, a loss

16 prevention officer at Home Depot, attempted to apprehend Defendant, and as

17 Defendant and Caes struggled, they fell to the ground, and Defendant attempted to

18 punch Caes twice. [CN 2-4]



                                              2
 1   {3}   Defendant’s memorandum in opposition does not point to any specific errors

 2 in fact or in law in our calendar notice. See Hennessy v. Duryea, 1998-NMCA-036,

 3 ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary

 4 calendar cases, the burden is on the party opposing the proposed disposition to clearly

 5 point out errors in fact or law.”). Instead, Defendant argues that the State failed to

 6 prove that he had the specific intent to commit each crime. [MIO 3-4] He asserts that

 7 he did not push the shopping cart past the cash registers; the jury was not instructed

 8 on a theory of accessory liability; the State did not charge Defendant with conspiracy,

 9 “signaling that it is unclear whether the men were acting together to steal

10 merchandise”; and “he did not intentionally throw punches to [Caes’s] face, but rather,

11 was reacting to the evolving physical nature of the situation.” [MIO 3-4] We are not

12 persuaded by these arguments. As Defendant acknowledges [MIO 4], the jury was free

13 to reject his version of what happened. See State v. Buchanan, 1966-NMSC-045, ¶ 4,

14 76 N.M. 141, 412 P.2d 565 (providing that an appellate court “will not substitute its

15 opinion for that of the jury” and the “judgment of the credibility of the witnesses and

16 the weight to be given their testimony was the function of the jury”); State v. Foxen,

17 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 1071 (providing that conflicts in the

18 evidence, including conflicts in the testimony of witnesses are to be resolved by the

19 factfinder; stating that the factfinder is free to reject the defendant’s version of events).


                                                 3
1   {4}   Because the State presented evidence of every element of the crimes charged

2 and a reasonable jury could have found, beyond a reasonable doubt, that Defendant

3 committed those crimes, we conclude that there was sufficient evidence to support

4 Defendant’s convictions.

5   {5}   For the reasons stated in our notice of proposed disposition and herein, we

6 affirm.

7   {6}   IT IS SO ORDERED.


8                                              ________________________________
9                                              JAMES J. WECHSLER, Judge


10 WE CONCUR:


11 ________________________________
12 MICHAEL E. VIGIL, Chief Judge


13 ________________________________
14 J. MILES HANISEE, Judge




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