 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 5   filing date.

 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                           NO. 30,083

10 ELIZABETH MARTINEZ,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Kenneth Martinez, District Judge

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

16 for Appellee

17 Linda Yen
18 Albuquerque, NM

19 for Appellant

20                                 MEMORANDUM OPINION

21 FRY, Chief Judge.

22          Defendant appeals from the district court’s order in an on-record appeal that

23 affirmed the metropolitan court’s order, finding her guilty of first offense DWI and

24 open container. We issued a notice of proposed summary disposition, proposing to
 1 affirm. Defendant has responded to our notice with a memorandum in opposition.

 2 We have considered Defendant’s response, and remain unpersuaded that she

 3 established error. We affirm.

 4        On appeal, Defendant argues that the officers lacked reasonable suspicion to

 5 stop her, because the stop was based on a mistake of law, and if not, the stop could not

 6 be justified under the community caretaking function. [DS 8-9; 8-15,15-20] On

 7 appeal from a trial court’s ruling on a motion to suppress, findings of fact are

 8 reviewed to determine if they are supported by substantial evidence and legal

 9 conclusions are reviewed de novo. State v. Leyba, 1997-NMCA-023, ¶ 8, 123 N.M.

10 159, 935 P.2d 1171. “We . . . determine whether the law was correctly applied to the

11 facts, viewing the facts in the light most favorable to the prevailing party.” State v.

12 Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785.

13 Community Caretaking

14        As we stated in our notice, there is no indication in the record that Defendant

15 argued the factually intensive grounds that the officers’ community caretaking

16 function could not justify the stop. [RP 74 lines 19-22, RP 75 lines 1-12] See State

17 v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating that in order

18 to preserve an issue for appeal, the defendant must make a timely objection that

19 specifically apprises the district court of the nature of the claimed error and invokes


                                              2
 1 an intelligent ruling thereon). In response to our notice, Defendant concedes that the

 2 issue was not preserved, but argues that the issue was the State’s to preserve, not the

 3 defense’s. [MIO 15-18] Because Defendant raised the matter in her docketing

 4 statement, however, we addressed it. We hold that the officers had reasonable

 5 suspicion to stop Defendant, and do not address the issue further.

 6 Mistake of Law

 7        The defense argued that the officers stopped Defendant under a mistake of law,

 8 held to be a constitutionally unreasonable basis for a stop. State v. Anaya, 2008-

 9 NMCA-020, ¶ 15, 143 N.M. 431, 176 P.3d 1163 (filed 2007). [DS 3-9; MIO 8-15]

10 In the current case, the officers approached Defendant in her vehicle because it was

11 stopped in Los Altos Park at 10:30 p.m., a half hour after the park was closed. [RP

12 68-69] Defendant argued that the State failed to present sufficient evidence that the

13 park closed at 10:00 p.m., and that the officers, therefore, lacked reasonable suspicion

14 to detain her. [DS 3-8] In support of her argument, Defendant presented the

15 Albuquerque City Ordinance stating that parks are open from 6:00 a.m. to 12:00 a.m.,

16 unless otherwise posted. [RP 71] Officer Oates testified that signs posted in the park

17 stated that it closed at 10:00 p.m., specifically pointing out the sign at the west end of

18 the park’s south parking lot. [RP 70; MIO 4-5] Officer Oates also testified that it was

19 common knowledge among officers patrolling the park that it closed at 10:00 p.m.,


                                               3
 1 except when softball games run past that time, and that no such games were being

 2 played when he found Defendant. [RP 70] To rebut this evidence, on cross-

 3 examination of Officer Oates, the defense produced photographs of the park for

 4 demonstrative purposes, which, he testified did not show signs stating that the park

 5 closed at 10:00 p.m. [Id.] The defense did not produce any evidence, however, that

 6 proved the officers were wrong and that the park closed at midnight or any time after

 7 10:00 p.m.

 8        “A defendant has the burden to produce evidence of a fourth-amendment

 9 violation.” State v. Anaya, 2008-NMCA-077, ¶ 6, 144 N.M. 246, 185 P.3d 1096,

10 rev’d on other grounds 2009-NMSC-043, 147 N.M. 100, 217 P.3d 586. To the extent

11 that the defense was that the park’s closing time was an objectively provable fact, and

12 that it closed after 10:00 p.m., Defendant did not present that objective proof. As we

13 stated in our notice, Defendant did not, therefore, establish that her case involves a

14 mistake of law. We continue to be persuaded that, given the officer’s testimony about

15 the park’s closing time, this was a question of fact for the fact finder to determine the

16 weight and credibility of the evidence. See State v. Notah-Hunter, 2005-NMCA-074,

17 ¶¶ 6-7, 137 N.M. 597, 113 P.3d 867 (holding that, where there is no radar reading, it

18 was for the fact finder to weigh the credibility of evidence as part of the determination

19 of the reasonableness of the officer’s suspicion that the law was being violated); see


                                               4
 1 also State v. Sanchez, 2000-NMSC-021, ¶ 32, 129 N.M. 284, 6 P.3d 486 (stating that

 2 “the fact finder resolves conflicts and determines weight and credibility”).

 3        Defendant’s response to our notice emphasizes that the State’s evidence that the

 4 park was closed was weak and conflicting. [MIO 14] Nevertheless, where the fact

 5 finder rules against the party with the burden, we must affirm if it was rational for the

 6 fact finder to be unpersuaded by the evidence supporting the party bearing the burden.

 7 See Lopez v. Adams, 116 N.M. 757, 758, 867 P.2d 427, 428 (Ct. App. 1993). There

 8 was evidence that the officers often work that area, patrol the park on bicycles, often

 9 find drug and alcohol use there after dark, it was common knowledge that the park

10 closed at 10:00 p.m., and Officer Oates has a key to the light box he uses to shut the

11 lights off after 10:00 p.m. [MIO 3-5] The officers were highly familiar with the park

12 and enforcing the park rules. The officer testified that the skate park within Los Altos

13 Park has a sign posted, stating that it closed at 10:00 p.m., and he enforced that closing

14 time throughout the park. [RP 70; MIO 3] See State v. Jones, 114 N.M. 147, 150, 835

15 P.2d 863, 866 (Ct. App. 1992) (“We indulge the presumption that the court found all

16 facts in favor of reasonable suspicion.”).

17        With this evidence from the State and only Defendant’s demonstrative,

18 photographic evidence, with no positive proof rebutting it, we cannot say that it was

19 irrational for the fact finder to be unpersuaded by the defense’s evidence, the party


                                                5
 1 bearing the burden. See Lopez, 116 N.M. at 758, 867 P.2d at 428. Therefore, we

 2 hold that the officers had a reasonable suspicion that the law was being violated. See

 3 Jones, 114 N.M. at 151, 835 P.2d at 867 (“We accept as true the fact that the officers

 4 stopped [the] defendant for all the reasons we mention above because substantial

 5 evidence supports the fact.”).

 6        For these reasons and those stated in our notice, we affirm the denial of

 7 Defendant’s motion to suppress.

 8        IT IS SO ORDERED.



 9
10                                         CYNTHIA A. FRY, Chief Judge

11 WE CONCUR:



12
13 JONATHAN B. SUTIN, Judge



14
15 TIMOTHY L. GARCIA, Judge




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