 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
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 6
 7        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 8 STATE OF NEW MEXICO,

 9          Plaintiff-Appellee,

10 v.                                                                    NO.     29,721

11 LEWIS BYRD,

12          Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
14 Reed S. Sheppard, District Judge

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

17 for Appellee

18 Law Office of Steven P. Archibeque
19 Steven P. Archibeque
20 Albuquerque, NM

21 for Appellant


22                                 MEMORANDUM OPINION

23 BUSTAMANTE, Judge.

24          Defendant appeals his convictions for possession of a firearm by a felon and for

25 false imprisonment, as well as the enhancement of his sentence pursuant to the
 1 Habitual Offender Act. [RP 209, 193, 233, 238] Our notice proposed to affirm, and

 2 Defendant filed an untimely memorandum in opposition. We remain unpersuaded by

 3 Defendant’s arguments and therefore affirm.

 4        Issue (A). Defendant continues to argue that the prohibition against double

 5 jeopardy was violated when the State used the same prior felony conviction both to

 6 convict him of being a felon in possession of a firearm and to enhance his sentence.

 7 [RP 222; DS 6; MIO 4-5]

 8        In support of his argument, Defendant refers [MIO 4] to State v. Haddenham,

 9 110 N.M. 149, 152-54, 793 P.2d 279, 282-84 (Ct. App. 1990) (holding that using the

10 same prior felony convictions both to enhance the defendants' sentences for felon in

11 possession of a firearm and to prove that the defendants were felons, an element of the

12 underlying conviction for felon in possession of a firearm, violated the defendants'

13 double jeopardy rights). Defendant refers also to State v. Franklin, 78 N.M. 127, 428

14 P.2d 982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985) in

15 support of his argument. [MIO 5] As discussed in our notice, because the prior

16 felony that served as the predicate for Defendant’s felon-in-possession-of-a-firearm

17 conviction was not also used as a predicate for an habitual-offender enhancement of

18 the same felon in possession conviction, no double jeopardy violation took place.


                                              2
 1 See, e.g., State v. Handa, 120 N.M. 38, 46, 897 P.2d 225, 233 (Ct. App. 1995)

 2 (holding no double jeopardy violation where the same prior felony was used to

 3 establish the felon in possession of a firearm conviction and to provide the basis for

 4 enhancement of the assault conviction).

 5         Issue (B). Defendant continues to argue that the evidence was insufficient to

 6 support his conviction for false imprisonment. [DS 6; RP 5] Defendant again refers

 7 to Franklin and Boyer in support of his argument. [MIO 7]

 8         We review the evidence to determine “whether substantial evidence of either

 9 a direct or circumstantial nature exists to support a verdict of guilt beyond a

10 reasonable doubt with respect to every element essential to a conviction.” State v.

11 Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, “[w]e

12 view the evidence in the light most favorable to supporting the verdict and resolve all

13 conflicts and indulge all inferences in favor of upholding the verdict.” State v.

14 Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993). We do not re-weigh the

15 evidence, nor substitute our judgment for that of the fact-finder, so long as there is

16 sufficient evidence to support the verdict. Sutphin, 107 N.M. at 131, 753 P.2d at

17 1319.




                                              3
 1        Defendant’s conviction for false imprisonment requires findings that Defendant

 2 restrained and/or confined Victim against her will; that Defendant knew he had no

 3 authority to restrain or confine Victim; and that this happened on or about November

 4 16, 2006. [MIO 6; RP 155, 167, 193, 237] See NMSA 1978, § 30-4-3 (1963); UJI

 5 14-401 NMRA.

 6        The State presented evidence that Victim told police that Defendant restrained

 7 and sexually assaulted her in a car after they met at a bar. [DS 4; MIO 6] We hold

 8 that this testimony constitutes sufficient evidence to support Defendant’s conviction

 9 for false imprisonment. See State v. Sparks, 102 N.M. 317, 320, 694 P.2d 1382, 1385

10 (Ct. App. 1985) (defining substantial evidence as that evidence which a reasonable

11 person would consider adequate to support a defendant’s conviction). Although

12 Victim’s statements to the police had not been recorded [MIO 6] , Defendant’s DNA

13 was not the source of the DNA collected from Victim’s cervix and vaginal area [MIO

14 6], and Defendant denied having restrained Victim [DS 4; MIO 6], these were matters

15 for the jury to consider and to weigh. See State v. Gurule, 2004-NMCA-008, ¶ 38,

16 134 N.M. 804, 82 P.3d 975 (recognizing that it is up to the jury to weigh the testimony

17 and contradictory evidence and believe or disbelieve any testimony it hears); see also




                                              4
1 State v. Sutphin, 107 N.M. at 131, 753 P.2d at 1319 (holding that the fact-finder may

2 reject defendant's version of events).

3        Conclusion. Based on our notice and the foregoing discussion, we affirm.

4        IT IS SO ORDERED.



5
6                                          MICHAEL D. BUSTAMANTE, Judge

7 WE CONCUR:


8
9 RODERICK T. KENNEDY, Judge


10
11 ROBERT E. ROBLES, Judge
12




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