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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-37216

 5 MARTIN LIBBY,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, Jr., District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Kimberly M. Chavez Cook, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VIGIL, Judge.

18   {1}    Defendant Martin Libby appeals his conviction for driving while under the

19 influence (DWI) of intoxicating liquor or drugs contrary to NMSA 1978, Section 66-
 1 8-102(C)(l) (2016). This Court’s calendar notice proposed to summarily affirm.

 2 Defendant filed a memorandum in opposition to this Court’s proposed disposition.

 3 Not persuaded by Defendant’s arguments, we affirm.

 4   {2}   Defendant continues to argue that there was insufficient evidence for the jury

 5 to find beyond a reasonable doubt that he was driving or operating a motor vehicle,

 6 a required element to support a finding of guilt for DWI. Defendant asserts that aside

 7 from the fact that the key was in the ignition and he was in the driver’s seat, there was

 8 no evidence that he drove or intended to drive, particularly given his explanation that

 9 he was installing the car radio and did not intend to drive. [MIO 6-7] While this

10 constituted conflicting evidence, we disregard all evidence and inferences that support

11 a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d

12 829; see also State v. Apodaca, 1994-NMSC-121, ¶ 5, 118 N.M. 762, 887 P.2d 756

13 (“Only the jury may resolve factual discrepancies arising from conflicting evidence.”).

14   {3}   Defendant also continues to argue that the State failed to prove past driving

15 because the only witness describing the surveillance video acknowledged it did not

16 clearly depict Defendant. [MIO 7-8] State v. Boyer, 1985-NMCA-029, ¶ 24, 103 N.M.

17 655, 712 P.2d 1; See State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d

18 982. The jury was free to give whatever weight it chose to give the surveillance video

19 admitted by the district court, and “it becomes a jury determination as to the accuracy



                                               2
 1 of a witness’ identification.” State v. Flores, 2010-NMSC-002, ¶ 60, 147 N.M. 542,

 2 226 P.3d 641 (internal quotation marks and citation omitted). We do not reweigh the

 3 evidence, “[n]or may we substitute our judgment for that of the jury.” Apodaca,

 4 1994-NMSC-121, ¶ 5.

 5   {4}   In the alternative, Defendant argues that even if the surveillance video is

 6 sufficient to prove he drove the car to the Walmart parking lot, it does not prove that

 7 he was impaired at that time, since the State failed to prove he had already consumed

 8 alcohol before arriving. [MIO 9] Defendant relies on State v. Cotton,

 9 2011-NMCA-096, ¶ 14, 150 N.M. 583, 263 P.3d 925, for the contention that, like that

10 case, the State here failed to establish that he drove after he had consumed alcohol.

11 [Id.] However, in Cotton, the defendant’s car was discovered parked on the side of the

12 road, with the defendant sitting in it intoxicated. The court determined that evidence

13 alone, without more, did not prove the defendant drove while impaired. Id. However,

14 in this case, there was evidence that the surveillance video showed Defendant driving

15 the car to the Walmart parking lot forty-five minutes prior to the dispatch; when the

16 officer arrived shortly after, he observed alcohol containers inside the car; and

17 Defendant made statements that he consumed alcohol. [DS 2] We propose to conclude

18 that there was sufficient evidence to prove the State’s theory that Defendant drove




                                              3
1 before the officer made contact with him and that he was impaired at that time.

2 Apodaca, 1994-NMSC-121, ¶¶ 3, 5.

3   {5}   For these reasons, and those stated in the notice of proposed disposition, we

4 affirm.

5   {6}   IT IS SO ORDERED.


6                                         ______________________________
7                                         MICHAEL E. VIGIL, Judge


8 WE CONCUR:



 9 _____________________________
10 HENRY M. BOHNHOFF, Judge



11 _____________________________
12 DANIEL J. GALLEGOS, Judge




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