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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. 33,827

 5 DAVID BRITO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Benjamin Chavez, District Judge

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

11 for Appellee

12   Law Offices of the Public Defender
13   Jorge A. Alvarado, Chief Public Defender
14   Santa Fe, NM
15   Josephine H. Ford, Assistant Appellate Defender
16   Albuquerque, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 SUTIN, Judge.
 1   {1}   Defendant appeals his conviction for aggravated DWI (refusal, first offense)

 2 entered by the metropolitan court following a bench trial and subsequently affirmed

 3 by the district court following an on-record review. [RP 140] Our notice of proposed

 4 summary disposition proposed to affirm, and Defendant filed a memorandum in

 5 opposition. We remain unpersuaded by Defendant’s arguments and therefore affirm.

 6   {2}   Defendant continues to argue that the metropolitan court erred in admitting

 7 Sergeant Barraza’s testimony about Defendant’s performance on the standardized

 8 field sobriety tests (SFSTs) on the asserted basis that the Sergeant had no independent

 9 recollection of Defendant’s performance outside of his police report. [DS 24; MIO

10 12-14] As set forth in our notice, case law provides that a witness may properly

11 testify when the witness has stated his or her memory is refreshed and the witness can

12 testify, independent of the writing, from present recollection. See State v. Orona,

13 1979-NMSC-011, ¶ 23, 92 N.M. 450, 589 P.2d 1041; see also State v. Macias, 2009-

14 NMSC-028, ¶ 25, 146 N.M. 378, 210 P.3d 804, overruled on other grounds by State

15 v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. Consistent with this case law,

16 Sergeant Barraza testified on re-direct that, with everything he used to refresh his

17 memory, he did have an independent memory of Defendant. [RP 134] Sergeant

18 Barraza further clarified that he was testifying from his memory, which was refreshed

19 by reading his police report, as opposed to reading his police report and still not


                                              2
 1 remembering any of the facts. [RP 130, 131-32, 134] Because Sergeant Barraza

 2 properly refreshed his memory and was testifying from his present recollection, we

 3 hold that his testimony about Defendant’s performance on the SFSTs was properly

 4 admitted. See State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85

 5 (providing that we will not disturb the lower court’s ruling absent a clear abuse of

 6 discretion).

 7   {3}   In holding that the district court did not abuse its discretion in admitting

 8 Sergeant Barraza’s testimony relating to Defendant’s performance on the SFSTs, we

 9 acknowledge Defendant’s challenge to the truth of Sergeant Barraza’s testimony that

10 he had an independent recollection of the incident, especially given the lengthy

11 passage of time. [MIO 19] We acknowledge too Defendant’s effort to cast doubt on

12 Sergeant Barraza’s testimony by pointing to omissions of details in his police report

13 regarding the odor of alcohol and presence of a passenger [MIO 19-21] and by

14 emphasizing that Defendant’s testimony conflicted with the Sergeant’s testimony.

15 [MIO 20] As provided in Issue (B), however, these were matters for the fact-finder

16 to consider in weighing the evidence. See generally State v. Sutphin, 1988-NMSC-

17 031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (providing that the appellate courts do not re-

18 weigh the evidence, nor substitute judgment for that of the fact-finder).




                                             3
 1   {4}   In Issue (B), Defendant continues to challenge the sufficiency of the evidence

 2 to support his conviction. [DS 24; MIO 21] See NMSA 1978, § 66-8-102(A), (D)(3)

 3 (2010); UJI 14-4501 NMRA; see also State v. Dutchover, 1973-NMCA-052, ¶ 5, 85

 4 N.M. 72, 509 P.2d 264 (observing that DWI may be established through evidence that

 5 the defendant’s ability to drive was impaired to the slightest degree). For the same

 6 reasons detailed in our notice, we hold the evidence was sufficient. See State v.

 7 Sparks, 1985-NMCA-004, ¶ 6, 102 N.M. 317, 694 P.2d 1382 (defining “substantial

 8 evidence” as evidence that a reasonable person would consider adequate to support

 9 a defendant’s conviction).

10   {5}   In holding that the evidence was sufficient, we acknowledge Defendant’s

11 continued assertion that Sergeant Barraza’s testimony about the SFSTs lacked

12 sufficient reliability to prove impairment beyond a reasonable doubt. [DS 24; MIO

13 21] As provided in our notice, however, Sergeant Barraza’s testimony about his

14 observations of Defendant’s performance on the SFSTs was one of several factors

15 indicative of Defendant’s impairment by alcohol and was a matter appropriate for the

16 fact-finder’s consideration. See, e.g., State v. Torres, 1999-NMSC-010, ¶ 31, 127

17 N.M. 20, 976 P.2d 20 (recognizing that a defendant’s performance on motor skills

18 exercises is one of the self-explanatory tests that reveal common physical

19 manifestations of intoxication); State v. Neal, 2008-NMCA-008, ¶ 27, 143 N.M. 341,


                                              4
 1 176 P.3d 330 (recognizing that the fact-finder could rely on common knowledge and

 2 experience to determine whether the defendant was under the influence of alcohol

 3 when considering the testimony as to the defendant’s driving behavior, physical

 4 condition, admission of drinking, and performance on the field sobriety tests). And

 5 while Defendant continues to emphasize that he denied drinking on the night of the

 6 incident, thought he would be arrested for an outstanding warrant, and provided other

 7 explanations for the odor of alcohol such as passengers possibly emitting the odor [DS

 8 24-25; MIO 21], these were matters for the fact-finder to consider. See Sutphin, 1988-

 9 NMSC-031, ¶ 21 (providing that the appellate courts do not re-weigh the evidence,

10 nor substitute judgment for that of the fact-finder); see also State v. Rojo, 1999-

11 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (recognizing that the fact-finder is free

12 to reject the defendant’s version of the facts”); State v. Salas, 1999-NMCA-099, ¶ 13,

13 127 N.M. 686, 986 P.2d 482 (providing that it is for the fact-finder to resolve any

14 conflict in the testimony of the witnesses and to determine where the weight and

15 credibility lay).

16   {6}   To conclude, for the reasons detailed in our notice and discussed in this

17 Opinion, we affirm.

18   {7}   IT IS SO ORDERED.




                                             5
1                               __________________________________
2                               JONATHAN B. SUTIN, Judge

3 WE CONCUR:



4 ___________________________________
5 RODERICK T. KENNEDY, Chief Judge



6 ___________________________________
7 MICHAEL E. VIGIL, Judge




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