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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. A-1-CA-37555

 5 GERALD HERNANDEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Brett Loveless, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Gregory B. Dawkins, Assistant Appellate
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VANZI, Judge.

18   {1}    Defendant appeals his convictions for causing great bodily harm by vehicle

19 (reckless driving). We issued a notice of proposed summary disposition, proposing to
 1 uphold the convictions. Defendant has filed a memorandum in opposition. After due

 2 consideration, we remain unpersuaded. We therefore affirm.

 3   {2}   The relevant background information has previously been set forth. We will

 4 avoid undue reiteration here and focus instead on the memorandum in opposition.

 5   {3}   First, Defendant renews his challenge to the sufficiency of the evidence,

 6 specifically contending that the chain reaction that he precipitated should not be

 7 regarded as the direct cause of the injuries to the victims. [MIO 3] However, as we

 8 previously explained, [CN 4] New Mexico has adopted the rule of proximate cause

 9 in criminal cases, as opposed to the rule of direct causation, see State v. Fields, 1964-

10 NMSC-230, ¶ 17, 74 N.M. 559, 395 P.2d 908; State v. Chavez, 1971-NMCA-030,

11 ¶¶ 9, 13, 82 N.M. 569, 484 P.2d 1279, and the evidence clearly demonstrated that

12 Defendant’s conduct proximately caused the victims’ injuries. Defendant also

13 continues to argue that his culpability was diminished by one of the victims’ failure

14 to wear her seat belt. [MIO 3] However, the evidence was conflicting on this matter,

15 see generally State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829

16 (holding that contrary evidence does not warrant reversal because the jury is free to

17 reject the defendant’s version of events), and in any event, this is not a relevant or

18 mitigating consideration. See State v. Myers, 1975-NMCA-055, ¶ 28, 88 N.M. 16, 536

19 P.2d 280 (rejecting an argument in a vehicular homicide case that the victim’s failure

20 to wear a seat belt could be considered in determining the proximate cause of death):

                                               2
 1 cf. NMSA 1978, § 66-7-373(A) (2001) (providing that failure to use a safety belt

 2 “shall not in any instance constitute fault or negligence”). We therefore reject

 3 Defendant’s challenges to the sufficiency of the evidence.

 4   {4}   Defendant also renews his argument that the district court erred in classifying

 5 his crimes as serious violent offenses. [MIO 3-4] However, as we previously

 6 observed, [CN 6] the district court duly found that Defendant’s actions were

 7 committed in a physically violent manner with recklessness in the face of knowledge

 8 that his acts were reasonably likely to result in serious harm, [RP 240] and the

 9 evidence was clearly sufficient to support those findings. This satisfies the requisites.

10 See generally State v. Loretto, 2006-NMCA-142, ¶ 11, 140 N.M. 705, 147 P.3d 1138.

11 We therefore uphold the designations as well within the district court’s discretion.

12   {5}   Accordingly, for the reasons stated above and in our notice of proposed

13 summary disposition, we affirm.

14   {6}   IT IS SO ORDERED.

15                                          __________________________________
16                                          LINDA M. VANZI, Judge

17 WE CONCUR:


18 _________________________________
19 JULIE J. VARGAS, Judge


20 _________________________________

                                               3
1 KRISTINA BOGARDUS, Judge




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