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


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                 NO. 28,950

 5 STEPHANIE SALAZAR,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Mike Murphy, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Eleanor Brogan, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                             MEMORANDUM OPINION

17 CASTILLO, Judge.

18       Defendant appeals her conviction for aggravated driving while intoxicated

19 (DWI) (refusal). [MIO 1] We proposed to affirm in a notice of proposed summary
 1 disposition and, pursuant to an extension, Defendant has filed a timely memorandum

 2 in opposition. Remaining unpersuaded by Defendant’s memorandum, we affirm her

 3 conviction.

 4 Right to a jury trial

 5        Defendant contends that she was unfairly deprived of her right to a jury trial

 6 when the State dismissed the charges in magistrate court and refiled the charges in

 7 district court. [MIO 1, 4-11] We disagree.

 8        Defendant was charged in magistrate court with aggravated DWI, first offense,

 9 and failure to maintain lane. [RP 30; MIO 1] See NMSA 1978, § 66-8-102(D)(3)

10 (2008). After she pled not guilty and requested a jury trial, see Rule 6-602(A)

11 NMRA, [MIO 3; RP 35] the district attorney dismissed the case in magistrate court

12 and refiled the same charges in district court. [MIO 3; RP 11] Defendant was not

13 entitled to a jury trial in district court. See, e.g., Hamilton v. Walker, 65 N.M. 470,

14 472-73, 340 P.2d 407, 409 (1959). After a bench trial, Defendant was acquitted of the

15 failure to maintain lane charge and convicted of the aggravated DWI charge. [MIO

16 3]

17        Defendant claims that she was unfairly deprived of her right to a jury trial

18 because the district court failed to determine that the State had a sufficient reason for

19 dismissing the case in magistrate court and refiling in district court. [MIO 4] A


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 1 criminal defendant does not have a constitutional right to have a magistrate court trial,

 2 and the decision whether to bring the case in the magistrate court or the district court

 3 is a matter within the prosecutor’s discretion. See State v. Ahasteen, 1998-NMCA-

 4 158, ¶¶ 21-22, 126 N.M. 238, 968 P.2d 328; State v. Riddall, 112 N.M. 78, 83, 811

 5 P.2d 576, 581 (Ct. App. 1991) (stating that prosecuting attorneys have the discretion

 6 to choose the court in which to bring a criminal action). Moreover, Defendant was

 7 charged with aggravated DWI and that criminal statute specifically provides that

 8 magistrate courts have concurrent jurisdiction with district courts to try first, second,

 9 or third offenders. See § 66-8-102(P).

10        Defendant acknowledges that this case could have been originally filed in

11 district court but argues that, as it was originally filed in magistrate court, the State

12 needed to provide a reason for its decision to dismiss the case from magistrate court

13 and refile in district court. [MIO 4-6] We disagree.

14        Defendant is correct that a prosecuting attorney’s charging discretion is limited

15 if a defendant can show it was based on an improper motive. [MIO 6, 9-10] See State

16 v. Bolton, 1997-NMCA-007, ¶ 11, 122 N.M. 831, 932 P.2d 1075 (“Prosecutors may

17 ordinarily do what they wish—unless there is a bad reason for what they do, in which

18 event the court will supervise it in a way that might prevent the prosecution.”).

19 However, a defendant must raise the issue of improper motive by making a sufficient


                                               3
 1 showing that the prosecuting attorney is not acting in good faith. See Ahasteen, 1998-

 2 NMCA-158, ¶ 22. In this case, Defendant failed to do so.

 3        In our notice of proposed summary disposition, we observed that there was

 4 nothing to suggest that Defendant objected when the proceedings were dismissed and

 5 refiled in district court, and that Defendant failed to present any evidence below

 6 suggesting that the district attorney filed the charges in district court for an improper

 7 reason. Cf. State v. Cochran, 112 N.M. 190, 191, 812 P.2d 1338, 1339 (Ct. App.

 8 1991) (stating that defenses and objections based on defects in the initiation of the

 9 prosecution are to be raised prior to trial).       Defendant does not dispute our

10 observation. [MIO 7-11] Therefore, she failed to preserve this issue by raising it in

11 the district court. See State v. Muise, 103 N.M. 382, 386, 707 P.2d 1192, 1196 (Ct.

12 App. 1985) (stating that, “[o]n appeal, a reviewing court will not consider issues not

13 raised in the trial court”).

14        In her memorandum in opposition, Defendant relies on the arguments made in

15 her docketing statement as to the policy of the prosecutor’s office to dismiss all

16 misdemeanor trials set in magistrate court and refile the same charges in district court

17 after a defendant makes a proper demand for a jury trial in magistrate court. [MIO 8]

18 However, Defendant did not make this argument in district court by filing a motion

19 or making any objection.


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 1        Moreover, we disagree with Defendant’s contention that the district court has

 2 an obligation to sua sponte raise the issue of the State’s reasons for refiling in district

 3 court. [MIO 8-9] Cf. id. (noting in dicta that “[e]ven a constitutional claim must be

 4 properly raised in order to preserve error for review upon appeal”). Defendant relies

 5 on this Court’s opinion in State v. Ericksen, 94 N.M. 128, 607 P.2d 666 (Ct. App.

 6 1980), as support for her argument that the district court has a responsibility to inquire

 7 as to why the prosecutor decided to dismiss the charges and refile in district court.

 8 [MIO 8-11] We are unpersuaded because in that case, it was clear to the district court

 9 that the State had filed a nolle prosequi only because its efforts to disqualify the judge

10 had been unsuccessful. Id. at 130, 607 P.2d at 668. This Court held that the

11 prosecution’s conduct “not only fail[ed] to demonstrate good faith but l[eft] no other

12 impression than that he had deliberately engaged in game-playing with the rules, and

13 has misused his discretionary powers to achieve a barred result.” Id. at 131, 607 P.2d

14 at 669.

15        In this case, Defendant did nothing to alert the district court that the prosecutor

16 was acting with a bad motive, and there is nothing in the record to support her

17 allegations that the State dismissed and refiled merely because the defendant

18 demanded a jury trial. [MIO 10] Therefore, we affirm because Defendant failed to

19 preserve the issue of whether the State unfairly deprived him of his right to a jury trial.


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 1 See State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating that

 2 in order to preserve an issue for appeal, the appellant must specifically state the

 3 grounds for his objection below so as to alert the trial court as to the claimed error in

 4 order to invoke a ruling thereon); State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266,

 5 269 (Ct. App. 1986) (noting that to preserve issue for appeal, defendant must make

 6 timely objection that specifically apprizes trial court of nature of error).

 7 Sufficiency of the evidence

 8        Defendant challenges the sufficiency of the evidence to support her conviction

 9 for aggravated DWI (refusal). [MIO11-13] We affirm.

10        In reviewing the sufficiency of the evidence in a criminal case, we must

11 determine whether substantial evidence, either direct or circumstantial, exists to

12 support a verdict of guilty beyond a reasonable doubt for every essential element of

13 the crime at issue. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d

14 829. The evidence is reviewed in the light most favorable to the verdict, resolving all

15 conflicts and indulging all permissible inferences to uphold the conviction and

16 disregarding all evidence and inferences to the contrary, to ensure that a rational fact

17 finder could have found each element of the crime established beyond a reasonable

18 doubt. Id. Finally, we observe that it is for the fact finder to evaluate the weight of

19 the evidence, to assess the credibility of the various witnesses, and to resolve any


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 1 conflicts in the evidence; we will not substitute our judgment as to such matters. See

 2 State v. Roybal, 115 N.M. 27, 30, 846 P.2d 333, 336 (Ct. App. 1992).

 3        In order to convict Defendant of aggravated DWI, the State had to prove that

 4 Defendant “operated” a motor vehicle while under the influence of intoxicating liquor

 5 and that Defendant refused to submit to chemical testing, as provided for in the

 6 Implied Consent Act. See § 66-8-102(D)(3); cf. UJI 14-4508 NMRA. In our notice

 7 of proposed summary disposition, we reviewed the evidence that was introduced in

 8 support of the conviction. We again summarize that evidence with minor corrections

 9 based upon the material provided in Defendant’s memorandum in opposition.

10        Defendant was pulled over by Officer Robles who observed her car weaving

11 within its lane and crossing the center and edge lines. [MIO 2, 13] A video camera

12 on the dashboard of Robles’ vehicle recorded Defendant’s driving up to the moment

13 of her arrest. [MIO 2] Robles conducted field sobriety tests (FSTs), which Defendant

14 failed. [MIO 2, 13] The FSTs were observed by a second officer, Munoz, who read

15 the New Mexico Implied Consent Act to Defendant. [MIO 2, 13] Defendant refused

16 chemical testing. [MIO 2, 13] Viewing this evidence in the light most favorable to

17 conviction, it is sufficient to convict Defendant of aggravated DWI.

18        Defendant argues that the evidence is insufficient because the evidence must

19 be viewed as a whole and she testified to a different version of events. [MIO 13] She


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 1 testified that she was not impaired and had only had one shot of tequila hours earlier.

 2 [MIO 2, 13] She also testified that she failed the FSTs because it was cold, windy,

 3 and snowy. [MIO 13; DS 2]

 4        We are unpersuaded that Defendant’s testimony warrants reversal. When

 5 confronted with such conflicting testimony, the fact finder is free to weigh the

 6 credibility of the witnesses and is not required to adopt the version favored by

 7 Defendant. See State v. Morales, 2002-NMCA-052, ¶ 35, 132 N.M. 146, 45 P.3d 406

 8 (observing that when the evidence is conflicting, the fact finder is not required to

 9 believe the defendant’s version of the events). In this case, it appears that the fact

10 finder found the evidence presented by the State to be more compelling than

11 Defendant’s testimony. We will not second-guess this determination. See State v.

12 Mann, 103 N.M. 660, 664, 712 P.2d 6, 10 (Ct. App. 1985).

13 Conclusion

14        For the foregoing reasons as well as those set forth in our notice of proposed

15 disposition, we affirm Defendant’s conviction.

16        IT IS SO ORDERED.



17                                                ________________________________
18                                                    CELIA FOY CASTILLO, Judge




                                              8
1 WE CONCUR:



2 ________________________________
3 CYNTHIA A. FRY, Chief Judge



4 ________________________________
5 MICHAEL E. VIGIL, Judge




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