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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. 34,994

 5 DALE TENORIO,

 6                  Defendant-Appellant.

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

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

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 HANISEE Judge.
 1   {1}   Defendant, Dale Tenorio, appeals his convictions for aggravated assault and

 2 shoplifting. We issued a notice of proposed summary disposition proposing to affirm

 3 on November 3, 2015. Defendant filed a timely memorandum in opposition, which

 4 we have duly considered. We remain unpersuaded that our initial proposed disposition

 5 was incorrect, and we therefore affirm.

 6 DISCUSSION

 7   {2}   Defendant argues that the evidence was insufficient to support his convictions

 8 for aggravated assault and shoplifting. [MIO 1] “The test for sufficiency of the

 9 evidence is whether substantial evidence of either a direct or circumstantial nature

10 exists to support a verdict of guilt beyond a reasonable doubt with respect to every

11 element essential to a conviction.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M.

12 94, 140 P.3d 515 (internal quotation marks and citation omitted). “In reviewing the

13 sufficiency of the evidence, we must view the evidence in the light most favorable to

14 the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the

15 evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128

16 N.M. 711, 998 P.2d 176.

17   {3}   Based on the facts as recited in the docketing statement and the memorandum,

18 we believe that the evidence at trial was sufficient to support Defendant’s convictions.

19 In order to convict Defendant of aggravated assault by use of a deadly weapon, the



                                               2
 1 State was required to present evidence that: (1) Defendant tried to touch or apply force

 2 to Phil Gonzales by lunging at him with a knife, (2) Defendant acted in a rude, angry,

 3 or insolent manner, (3) Defendant used a deadly weapon (knife), (4) Defendant

 4 intended to touch or apply force to Phil Gonzales, and (5) Defendant was not

 5 intoxicated from the use of alcohol at the time the offense was committed to the extent

 6 of being incapable of forming an intention to touch or apply force to Phil Gonzales.

 7 [RP 103] See State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883

 8 (“Jury instructions become the law of the case against which the sufficiency of the

 9 evidence is to be measured.”); see also UJI 14-304 NMRA (defining the elements of

10 aggravated assault with a deadly weapon).

11   {4}   At trial, the State presented the testimony of Phil Gonzales. Mr. Gonzales

12 testified that he was a loss prevention officer working at a Smith’s grocery store. Mr.

13 Gonzales confronted Defendant because Defendant passed all points of sale without

14 paying for several bottles of alcohol and other items. Mr. Gonzales testified that, after

15 he confronted Defendant, Defendant removed a knife from his pocket and came

16 towards him. [DS 3, MIO 1] The State also presented video surveillance of the

17 incident to the jury. [DS 3] Evidence that Defendant removed a weapon from his

18 pocket and advanced on Mr. Gonzales is sufficient to support his conviction for

19 aggravated assault. See NMSA 1978, §30-3-2 (1963) (stating that aggravated assault



                                               3
 1 consists of unlawfully assaulting someone with a deadly weapon); see also NMSA

 2 1978, § 30-3-1 (1963) (defining assault of any unlawful act, threat or menacing

 3 conduct which causes another person to reasonably believe that he is in danger of

 4 receiving an immediate battery).

 5   {5}   This evidence is also sufficient to support Defendant’s conviction for

 6 shoplifting. “Shoplifting consists of willfully taking possession of or concealing any

 7 merchandise with the intention of converting it without paying for it.” State v.

 8 Ramirez, 2008-NMCA-165, ¶ 6, 145 N.M. 367, 198 P.3d 866; see also §

 9 30-16-20(A)(1), (2) (2006) (defining shoplifting). Mr. Gonzales’s testimony that he

10 saw Defendant leaving a Smith’s grocery store with several bottles of alcohol and

11 other items that Defendant did not pay for, after which Defendant threatened him with

12 a knife when confronted, is sufficient to prove shoplifting. [DS 3, MIO 1]

13   {6}   Defendant states in his memorandum that Mr. Gonzales testified that Defendant

14 was intoxicated during the encounter. [MIO 1] Defendant argues that this evidence

15 tends to prove that he did not commit aggravated assault and shoplifting. [MIO 1-2]

16 Defendant has not explained in his memorandum in opposition how evidence of his

17 intoxication is exculpatory. However, we note that “[c]ontrary evidence supporting

18 acquittal does not provide a basis for reversal because the jury is free to reject [the

19 d]efendant’s version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.



                                              4
1 438, 971 P.2d 829; see also State v. Akers, 2010-NMCA-103, ¶ 32, 149 N.M. 53, 243

2 P.3d 757 (stating that when reviewing the sufficiency of the evidence we do not

3 consider the merit of evidence that may have supported a different result).

4   {7}   For these reasons, we affirm Defendant’s convictions.

5   {8}   IT IS SO ORDERED.




6
7                                        J. MILES HANISEE, Judge


8 WE CONCUR:



 9
10 MICHAEL E. VIGIL, Chief Judge



11
12 TIMOTHY L. GARCIA, Judge




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