 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                    No. 30,422

10 CARLOS CROCKET,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Ross C. Sanchez, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17   Hugh W. Dangler, Chief Public Defender
18   Santa Fe, NM
19   Linda Yen, Assistant Appellate Defender
20   Albuquerque, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 SUTIN, Judge.
 1        Defendant appeals from a district court judgment affirming Defendant’s

 2 metropolitan court conviction for aggravated driving while intoxicate (DWI). We

 3 issued a calendar notice proposing to affirm. Defendant has responded with a

 4 memorandum in opposition.        After due consideration, we affirm Defendant’s

 5 conviction.

 6        Defendant continues to argue that the evidence was insufficient to support his

 7 metropolitan court conviction [RP 12-15] for aggravated DWI. [DS 6] A sufficiency

 8 of the evidence review involves a two-step process. Initially, the evidence is viewed

 9 in the light most favorable to the verdict. Then the appellate court must make a legal

10 determination of “whether the evidence viewed in this manner could justify a finding

11 by any rational trier of fact that each element of the crime charged has been

12 established beyond a reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887

13 P.2d 756, 760 (1994) (internal quotation marks and citation omitted).

14        In order to support the aggravated DWI conviction, the evidence had to show

15 that Defendant drove a vehicle while having “an alcohol concentration of sixteen one

16 hundredths or more in [his] blood or breath within three hours of driving the vehicle

17 and the alcohol concentration results from alcohol consumed before or while driving

18 the vehicle[.]” NMSA 1978, § 66-8-102(D)(1) (2007) (amended 2008 and 2010). In

19 this case, Defendant stipulated that the blood-test result was .19 grams per hundred


                                             2
 1 milliliters of blood. [MIO 5-6] Defendant’s primary challenge continues to rely on

 2 the conflicting evidence with respect to the identity of the driver. James Chyz testified

 3 that on the morning of February 17, 2006, at approximately 4:45 a.m., he was going

 4 through a green light when another vehicle came through the intersection, hitting his

 5 vehicle. [MIO 1] Chyz identified Defendant as the driver on the date of the incident,

 6 and he also made an in-court identification of Defendant as the driver. [MIO 1] Chyz

 7 testified that he was certain of this identification, and he also noted that he

 8 remembered identifying Defendant as the driver when the two were being treated at

 9 the hospital. [MIO 3] Chyz was asked by the metropolitan court judge if his

10 testimony was that Defendant was the driver, and Chyz stated that he believed it was

11 him. [MIO 3] Officer Griego also testified that Chyz had identified Defendant as the

12 driver at the scene. [MIO 4] The officer stated that, based on his experience, he

13 deduced that Defendant was the driver. [MIO 5] Based on this testimony, the

14 metropolitan court judge, sitting as factfinder could reasonably conclude that

15 Defendant was driving the vehicle. Although Defendant continues to challenge the

16 credibility of this testimony, including suggestions that the injured passenger was the

17 individual seen at the hospital, and Chyz’s belief that the driver was hispanic, we note

18 that issues of credibility and conflicts in evidence are for the factfinder to resolve.

19 See State v. Riggs, 114 N.M. 358, 362-63, 838 P.2d 975, 979-80 (1992) (responding


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1 to the defendant’s argument that a witness was not credible by stating “[t]he jury, and

2 not this [C]ourt, however, resolves questions of credibility and the weight to be given

3 to testimony”). The factfinder was also free to reject Defendant’s testimony that he

4 was not the driver. [MIO 7] See State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314,

5 1319 (1988).

6        For the reasons stated in this opinion, we affirm.

7        IT IS SO ORDERED.


8                                         __________________________________
9                                         JONATHAN B. SUTIN, Judge

10 WE CONCUR:


11 _________________________________
12 CYNTHIA A. FRY, Chief Judge


13 _________________________________
14 JAMES J. WECHSLER, Judge




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