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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. 31,697

 5 MICHAEL VALENZUELA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Carl J. Butkus, District Judge

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

11 for Appellee

12 Jacqueline Cooper, Chief Public Defender
13 Santa Fe, NM

14 Josephine H. Ford, Assistant Appellate Defender
15 Albuquerque, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 BUSTAMANTE, Judge.
 1        Defendant argues that the evidence was insufficient to support his conviction

 2 for driving while under the influence of intoxicating liquor (DWI). We issued notice

 3 of proposed summary disposition proposing summary affirmance. Defendant has

 4 responded with a timely memorandum in opposition, which we have duly considered.

 5 We remain unpersuaded and therefore affirm.

 6        “The test for sufficiency of the evidence is whether substantial evidence of

 7 either a direct or circumstantial nature exists to support a verdict of guilty beyond a

 8 reasonable doubt with respect to every element essential to a conviction.” State v.

 9 Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks

10 and citation omitted). “In reviewing the sufficiency of the evidence, we must view

11 the evidence in the light most favorable to the guilty verdict, indulging all reasonable

12 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.

13 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. On appeal, the

14 appellate court views the evidence in the light most favorable to the verdict, resolving

15 all conflicts and indulging all reasonable inferences in favor of the verdict. State v.

16 Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994).

17        In his memorandum in opposition, Defendant argues that the evidence only

18 established that he had been drinking alcohol and had trouble balancing, which was

19 not shown to be tied to consumption of alcohol. [MIO 8] We disagree. As we stated

                                               2
 1 in our notice of proposed summary disposition, Defendant’s conviction was supported

 2 by evidence that Defendant appeared to be speeding and had his high beams on. [RP

 3 90] Defendant did not respond to the officer’s signal to dim his lights. [RP 90] Once

 4 the vehicle was stopped, Defendant changed seats with a rear seat passenger. [RP 90]

 5 See State v. Martinez, 2002-NMCA-043, ¶ 17, 132 N.M. 101, 45 P.3d 41 (stating that

 6 the jury could interpret the defendant’s actions of giving officers a false name as

 7 evincing a consciousness of guilt and supported his conviction for DWI). Defendant

 8 had an odor of alcohol on his breath, and there was an open beer can at his feet. [RP

 9 90] Defendant appeared confused and intoxicated to the officer, and he admitted to

10 drinking alcohol. [MIO 2, RP 91] Defendant was unable to balance while being

11 instructed on the field sobriety tests (FST), did not follow instructions during one of

12 the FSTs, and was unable to balance during another. [RP 91] This evidence is

13 sufficient to support Defendant’s conviction. See State v. Gutierrez, 1996-NMCA-

14 001, ¶ 4, 121 N.M. 191, 909 P.2d 751 (upholding a DWI conviction where the

15 defendant smelled of alcohol, had bloodshot and watery eyes, failed field sobriety

16 tests, admitted to drinking alcohol, and the defendant’s vehicle was weaving into other

17 traffic lanes); see also State v. Neal, 2008-NMCA-008, ¶¶ 26, 29, 143 N.M. 341, 176

18 P.3d 330 (holding that evidence was sufficient to support a reasonable inference that

19 the defendant was under the influence of alcohol where he was seen veering over the


                                              3
 1 shoulder line of the road; he smelled of alcohol and had bloodshot, watery eyes; he

 2 admitted to drinking; he failed on several FST criteria; he appeared to the officer to

 3 be under the influence of alcohol; and he stated that he did not want a DWI on his

 4 record, supporting an inference of consciousness of guilt); UJI 14-4501 NMRA

 5 (requiring proof that, “as a result of drinking liquor[, Defendant] was less able to the

 6 slightest degree, either mentally or physically, or both, to exercise the clear judgment

 7 and steady hand necessary to handle a vehicle with safety to the person and the

 8 public.”).

 9        Defendant challenges the evidence arguing that the only driving error the

10 officer observed was his failure to dim his brights and states that he properly stopped

11 the vehicle and pulled over to the side of the road when signaled by police. [MIO 9]

12 Defendant argues that observations of actual driving are the best indication of driving

13 ability. [MIO 9] We disagree. Evidence of irregular driving is not required to prove

14 DWI. See State v. Soto, 2007-NMCA-077, ¶¶ 32-34, 142 N.M. 32, 162 P.3d 187

15 (holding     that   there   was    sufficient    evidence     of   DWI     under    the

16 impaired-to-the-slightest-degree standard even though the officers observed no

17 irregular driving, where the defendant had red, bloodshot, and watery eyes, as well as

18 slurred speech and a very strong odor of alcohol on his breath, the defendant admitted

19 drinking, the officers observed several empty cans of beer where the defendant had


                                              4
 1 been, and the officers testified that the defendant was intoxicated). We also note that

 2 the officer testified that Defendant appeared to be speeding and did not respond to a

 3 signal to dim his lights.

 4        Defendant next argues that the FST evidence does not support the conclusion

 5 that his driving ability was impaired by alcohol because he was able to complete

 6 several of the tests without problems. [MIO 10-11] Defendant also argues that his act

 7 of changing seats with the rear seat passenger is irrelevant because it could have been

 8 done for purposes other than consciousness of guilt. [MIO 11] However, contrary

 9 evidence supporting acquittal is not a basis for reversal because the fact finder is free

10 to reject a defendant’s version of the facts. See State v. Rojo, 1999-NMSC-001, ¶ 19,

11 126 N.M. 438, 971 P.2d 829; see also Neal, 2008-NMCA-008, ¶ 19 (“The test is not

12 whether substantial evidence would support an acquittal, but whether substantial

13 evidence supports the verdict actually rendered.”); State v. Hughey, 2007-NMSC-036,

14 ¶ 16, 142 N.M. 83, 163 P.3d 470 (“It is the role of the fact finder to judge the

15 credibility of witnesses and determine the weight of evidence.”).

16        Accordingly, we affirm Defendant’s conviction.

17        IT IS SO ORDERED.



18
19                                          MICHAEL D. BUSTAMANTE, Judge

                                               5
1 WE CONCUR:



2
3 CELIA FOY CASTILLO, Chief Judge



4
5 RODERICK T. KENNEDY, Judge




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