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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. 32,969

 5 DUSTIN CAHALL,

 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   Jorge A. Alvarado, Chief Public Defender
13   Santa Fe, NM
14   Sergio J. Viscoli, Assistant Public Defender
15   Albuquerque, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 GARCIA, Judge.
 1   {1}   Defendant appeals from the district court’s judgment in an on-record appeal,

 2 affirming the sentencing order of the metropolitan court that convicted Defendant for

 3 first offense driving while intoxicated (DWI). We issued a notice of proposed

 4 summary disposition, proposing to affirm. Defendant has filed a memorandum in

 5 opposition to our notice. The State filed a motion to dismiss the appeal, as it did in

 6 several other cases, challenging the propriety of our review of district court on-record

 7 proceedings. Defendant filed a response to the State’s motion. We delayed disposition

 8 of the motion pending a formal decision from this Court. In State v. Carroll, No.

 9 32,909, mem. op. ¶¶ 1, 5, 9, 12 (N.M. Ct. App. Oct. 21, 2013), this Court determined

10 that appeals from on-record decisions of the district court are properly before us,

11 resolving all matters raised in the State’s motion. The State’s motion to dismiss is

12 therefore DENIED, and we may proceed to disposition in this case. Having

13 considered Defendant’s response to our notice, we remain unpersuaded that Defendant

14 demonstrated error. We affirm.

15   {2}   In this appeal, Defendant challenges the sufficiency of the evidence to support

16 his conviction for first offense DWI, under both the per se and the impairment-to-the-

17 slightest-degree standards. [DS 11; MIO 12-20]

18   {3}   In our notice, we suspected that Defendant’s vague argument against his

19 conviction based on the per se impairment standard was an attempt to challenge the


                                              2
 1 foundational evidence the State presented for admission of the breath card results as

 2 a part of his challenge to the sufficiency of the evidence. In his response to our notice,

 3 Defendant’s argument is clear: he contends that because the State failed to show

 4 compliance with the twenty-minute deprivation period, an accuracy-ensuring

 5 regulation for admission of the breath card, the test result is unreliable and insufficient

 6 to prove Defendant’s actual breath alcohol level. [MIO 12-17] As we stated in our

 7 notice, however, the foundation that is required for the admission of evidence does not

 8 consist of “core” facts nor does it involve proving the essential elements of a DWI

 9 offense beyond a reasonable doubt. See State v. Martinez, 2007-NMSC-025, ¶ 23, 141

10 N.M. 713, 160 P.3d 894. Therefore, foundational requirements are relevant to the

11 admissibility of the evidence, not to the sufficiency of the evidence to support

12 Defendant’s conviction. See id. ¶¶ 17, 21, 23. In reviewing the sufficiency of the

13 evidence, we consider all the evidence admitted, even wrongfully admitted evidence.

14 See State v. Post, 1989-NMSC-090, ¶ 22, 109 N.M. 177, 783 P.2d 487. For these

15 reasons, we proposed to address the only issue specifically presented—whether

16 sufficient evidence was presented to support Defendant’s conviction for DWI—and

17 not whether the breath card results were properly admitted. Defendant’s response to

18 our notice does not persuade us that our proposed approach was incorrect.




                                                3
 1   {4}   We are also not persuaded that insufficient evidence was presented to support

 2 Defendant’s conviction. Our notice detailed the evidence we considered sufficient,

 3 and Defendant’s response does not dispute that such evidence was presented. Instead,

 4 the response lauds Defendant’s performance on most of the field sobriety tests [MIO

 5 18-19] and asks us to draw more benign inferences from the evidence that Defendant

 6 was found in the driver’s seat with his eyes closed and parked facing the wrong side

 7 of the road. [MIO 17-18] The reviewing court, however, “view[s] the evidence in the

 8 light most favorable to the guilty verdict, indulging all reasonable inferences and

 9 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,

10 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We do “not re-weigh the

11 evidence to determine if there was another hypothesis that would support innocence

12 or replace the fact-finder’s view of the evidence with the appellate court’s own view

13 of the evidence.” State v. Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72.

14 Based on the evidence detailed in our notice, we hold that sufficient evidence supports

15 Defendant’s conviction.

16   {6}   For the reasons stated in this Opinion and in our notice, we affirm Defendant’s

17 conviction for first offense DWI.

18   {7}   IT IS SO ORDERED.




                                              4
1
2                           TIMOTHY L. GARCIA, Judge




3 WE CONCUR:


4
5 MICHAEL E. VIGIL, Judge


6
7 M. MONICA ZAMORA, Judge




                            5
