 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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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. 31,111

10 HAROLD LEWIS,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 John A. Dean, District Judge

14 Gary King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Jacqueline L. Cooper, Acting Chief Public Defender
18 Carlos Ruiz de la Torre, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 VIGIL, Judge.

23          Defendant appeals his conviction of third degree criminal sexual penetration.

24 In our notice we proposed to affirm. Defendant has timely responded. We have

25 considered his arguments and affirm.
 1        In our notice, we proposed to conclude that Defendant’s statements made to

 2 police were admissible as non-hearsay. Rule 11-801(D)(2)(a) NMRA (stating that

 3 admissions of a party opponent are not hearsay). We also proposed that if the

 4 statements were offered for a purpose other than the truth of the matter, they were not

 5 hearsay. It appeared to us from the tape log of the trial that the two statements were

 6 presented to demonstrate that Defendant changed his story, thus suggesting a

 7 consciousness of guilt. See State v. Martinez, 1999-NMSC-018, ¶ 30, 127 N.M. 207,

 8 979 P.2d 718. For two different reasons, we proposed to conclude that the statements

 9 were not hearsay.

10        In his memorandum in opposition, Defendant appears to conflate the two

11 reasons and argues that an admission of a party opponent is not hearsay if it is offered

12 for some other purpose than the truth of the matter. [MIO 5] He then clarifies that the

13 two statements were made at different times and that the second statement that appears

14 to be inconsistent with the first was excluded. [MIO 6] While testimony about the

15 second statement was excluded upon Defendant’s objection prior to trial [RP 93], it

16 appears that the police officer did offer testimony about Defendant’s second statement

17 during cross-examination. [RP 101]

18        Our two proposed reasons for affirming the admission of Defendant’s out-of-

19 court statements are distinct.      Either alone would support the admission of



                                              2
 1 Defendant’s statements made to police during their investigation. First, an out-of-

 2 court statement is not hearsay if “[t]he statement is offered against a party and is the

 3 party’s own statement.” Rule 11-801(D)(2)(a). Here, Defendant’s first statement was

 4 recorded and played for the jury. We conclude that the statements of the Defendant

 5 in the recording are admissible as non-hearsay statements of a party opponent. See

 6 State v. Johnson, 2010-NMSC-016, 148 N.M. 50, 229 P.3d 523.

 7        Second, the two statements made by Defendant have enough inconsistencies

 8 that it appears Defendant gave conflicting accounts to the police. We have held that

 9 this suggests a consciousness of guilt. Martinez, 1999-NMSC-018, ¶ 30. Defendant

10 argues that an initial denial and a later “I don’t remember” are not sufficiently

11 inconsistent. We disagree. A denial of any sexual contact is very different from not

12 remembering what happened.

13        Defendant also argues that because he did not make an incriminating

14 admissions in his first statement, the recording should have been excluded as more

15 prejudicial than probative. It does not appear that he made that argument below.

16 Therefore, we do not address it. See State v. Varela, 1999-NMSC-045, ¶ 25, 128

17 N.M. 454, 993 P.2d 1280 (pointing out that in order to preserve an issue for appeal,

18 defendant must make a timely objection that apprises the district court of the nature

19 of the claimed error and invokes an intelligent ruling thereon).



                                              3
 1        In our notice, we also proposed to conclude that the evidence was sufficient to

 2 support the conviction. In our notice, we relied on the testimony of the victim who

 3 testified that she had been drinking and passed out and when she woke up, Defendant

 4 was on top of her. [CN 5] There was also DNA evidence establishing that the victim’s

 5 DNA was present in the sample taken from Defendant. [CN 6]                  Defendant

 6 acknowledges this evidence, but argues that the witnesses memories were impaired

 7 by alcohol and that DNA evidence can be transferred through other than sexual

 8 contact. [MIO 8] As we pointed out in our notice, we review the evidence in the light

 9 most favorable to the verdict. We do not reweigh the evidence or substitute our

10 judgment for that of the fact finder. It was for the jury here to weigh the conflicting

11 evidence and determine the credibility of the witnesses. The question is whether the

12 decision is supported by substantial evidence not whether a different conclusion could

13 have been reached. In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915

14 P.2d 318. We conclude that the evidence was sufficient to support the conviction.

15

16        For the reasons stated herein and in the notice of proposed disposition, we

17 affirm.

18        IT IS SO ORDERED.




                                              4
1                                     _______________________________
2                                     MICHAEL E. VIGIL, Judge


3 WE CONCUR:



4 _________________________________
5 JAMES J. WECHSLER, Judge


6 _________________________________
7 RODERICK T. KENNEDY, Judge




                                  5
