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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. 34,963

 5 RAUL TARIN,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
 8 James Waylon Counts, District Judge

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

11 for Appellee

12 Raul Tarin
13 Dexter, NM

14 Pro Se Appellant

15                                 MEMORANDUM OPINION

16 SUTIN, Judge.
 1   {1}   Defendant appeals his conviction for parking an SUV too close to a water

 2 trough in violation of NMSA 1978, Section 72-1-8 (1979). [DS 2] In his docketing

 3 statement, Defendant asserted three issues, the first of which remains relevant to this

 4 opinion.1 In the issue that remains relevant, Defendant suggested that the district

 5 court’s verdict was unsupported by the evidence because the court erroneously

 6 received the testimony of a game warden about Defendant’s out-of-court statement

 7 regarding ownership of the SUV. [DS 13]

 8   {2}   Because the game warden’s testimony was only relevant to the question of who

 9 committed the crime in this case and not whether a crime had been committed (i.e.,

10 the corpus delicti), this Court’s notice of proposed summary disposition proposed to

11 affirm Defendant’s conviction. [CN 1-3] In response, Defendant has filed a motion to

12 amend his docketing statement to raise an issue involving the use of presumptions in

13 criminal cases, as well as a memorandum in opposition to that proposed summary

14 disposition in which he continues to assert that the evidence was insufficient because

15 “there was no substantial evidence based on personal knowledge presented by the

16 State’s witness that Defendant was the person who parked the SUV[.]” [MIO 1] In



          1
17          Defendant’s memorandum in opposition does not address the other two issues
18 raised in his docketing statement. See State v. Salenas, 1991-NMCA-056, ¶ 2, 112
19 N.M. 268, 814 P.2d 136 (when a party fails to respond to the calendar notice’s
20 proposed disposition of the issues, those issues are deemed abandoned).

                                              2
 1 doing so, Defendant directs our attention to his reliance upon State v. Silva, which was

 2 quoted in his docketing statement for the following rule: “The test for sufficiency of

 3 the evidence is whether substantial evidence of either a direct or circumstantial nature

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

 5 element essential to a conviction.” 2008-NMSC-051, ¶ 17, 144 N.M. 815, 192 P.3d

 6 1192 (internal quotation marks and citation omitted). [DS 14; MIO 3]

 7   {3}   This language from Silva accurately states this Court’s standard of review for

 8 assessing the sufficiency of the evidence. We, further, note that when Silva discusses

 9 “substantial evidence,” that term means “such relevant evidence as a reasonable mind

10 might accept as adequate to support a conclusion[.]” State v. Baca, 1997-NMSC-059,

11 ¶ 14, 124 N.M. 333, 950 P.2d 776 (internal quotation marks and citation omitted). In

12 conducting our review, we are required to “view the evidence in the light most

13 favorable to the [prosecution], resolving all conflicts therein and indulging all

14 permissible inferences therefrom in favor of the verdict[.]” State v. Parker, 1969-

15 NMCA-056, ¶ 31, 80 N.M. 551, 458 P.2d 803. The relevant question is whether the

16 district court’s “decision is supported by substantial evidence, not whether the court

17 could have reached a different conclusion.” In re Ernesto M., Jr., 1996-NMCA-039,

18 ¶ 15, 121 N.M. 562, 915 P.2d 318. Thus, it is not the role of this Court to “weigh the

19 evidence or substitute its judgment for that of the fact[-]finder as long as there is


                                              3
 1 sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124

 2 N.M. 346, 950 P.2d 789, abrogated on other grounds as recognized in Kersey v.

 3 Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.

 4   {4}   Keeping that standard of review in mind, we turn to the evidence in Defendant’s

 5 trial to see whether there was sufficient evidence from which the district court could

 6 conclude that Defendant was the person who illegally parked the SUV. Defendant’s

 7 docketing statement summarizes three statements from the game warden’s testimony

 8 that are relevant to that question. First, the warden testified that Defendant was one

 9 of two people who approached the SUV shortly after he found it parked illegally.

10 [MIO 5; DS 7] During the game warden’s subsequent encounter with those two

11 people, Defendant admitted that he owned the SUV. [DS 12] And, ultimately, at the

12 end of that encounter, Defendant drove the SUV away. [DS 8]

13   {5}   Defendant argues that, because there was a companion with him when he

14 encountered the warden, “there was at least a 50% reasonable doubt” that he was the

15 one who parked the SUV. [MIO 5] In essence, Defendant is suggesting that the district

16 court could have found that the companion, and not Defendant, parked the SUV next

17 to the water trough. As noted earlier, however, it is not appropriate for this Court to

18 reweigh the evidence and decide whether the evidence supported an alternative

19 conclusion. Our job is simply to decide whether there was evidence supporting the


                                              4
 1 conclusion actually reached by the court below. See Mora, 1997-NMSC-060, ¶ 27; In

 2 re Ernesto M., Jr., 1996-NMCA-039, ¶ 15. And, the fact that Defendant was one of

 3 two people approaching the SUV in a secluded location does help to support a

 4 conclusion that he parked the SUV there.

 5   {6}   Further, once there were two people on the scene, the game warden apparently

 6 asked which of them owned the SUV. [DS 12] Defendant said that it was his. [Id.]

 7 That fact, again, suggests a likelihood that Defendant may have been the person who

 8 parked his SUV in an illegal location. Finally, once he was finished interacting with

 9 the game warden, Defendant appears to have demonstrated his ability to exercise

10 control over the SUV by getting into it and driving it away. [DS 8] Each of these three

11 statements from the game warden’s testimony offers support for the conclusion that

12 Defendant parked the SUV where the game warden found it. And, taken together,

13 those three statements provide sufficient evidence for a reasonable person to “accept

14 as adequate” a conclusion that Defendant illegally parked his SUV. See Baca, 1997-

15 NMSC-059, ¶ 14. As that appears to be the only finding challenged by Defendant on

16 appeal, we conclude that there was sufficient evidence “to support a verdict of guilt

17 beyond a reasonable doubt with respect to every element essential to a conviction.”

18 Silva, 2008-NMSC-051, ¶ 17 (internal quotation marks and citation omitted).




                                              5
 1   {7}   Defendant has also filed a motion to amend his docketing statement in order to

 2 raise an issue dealing with the use of presumptions in criminal cases. [Mtn. 1] In his

 3 proposed amended docketing statement, Defendant cites to Bollenbach v. United

 4 States, 326 U.S. 607 (1946), and Rule 11-302 NMRA to argue that the district court

 5 erred by “presum[ing] that . . . Defendant parked the SUV based on an unsupported

 6 allegation . . . that Defendant owned the SUV.” [amended DS 15] We begin our

 7 analysis by noting that this Court will grant a timely motion to amend a docketing

 8 statement when the issue sought to be raised was properly preserved below or may be

 9 raised for the first time on appeal, and the issue asserted is viable. State v. Moore,

10 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, superseded by rule on other

11 grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730. The

12 new issue that Defendant seeks to assert by way of his proposed amendment is not

13 viable in this case.

14   {8}   As discussed earlier, there was sufficient evidence offered at trial to support a

15 finding that Defendant illegally parked the SUV at issue. There is, further, nothing to

16 suggest that the district court applied any presumption to arrive at that fact. Instead,

17 it appears that the district court merely inferred from the evidence presented that

18 Defendant had parked the SUV in question. The distinction between an inference and

19 a presumption is well-established.


                                               6
 1        [A] “true” presumption shifts the burden of proof; if proof of the basic
 2        facts are introduced into evidence, the presumed fact is also taken to be
 3        proved in the absence of evidence to the contrary. If no evidence to the
 4        contrary is forthcoming, the court is compelled to direct a verdict against
 5        the party now having the burden of producing such evidence. In other
 6        words, a “true” presumption is conclusive on the jury in the absence of
 7        evidence to the contrary. An inference, on the other hand, is nothing
 8        more than a permissible deduction from the evidence.
 9
10 State v. Jones, 1975-NMCA-078, ¶ 7, 88 N.M. 110, 537 P.2d 1006 (citation omitted).

11   {9}    For the reasons discussed in this opinion, the district court could reasonably

12 deduce from the evidence offered at trial that Defendant was the person who parked

13 the SUV. As a result, there is no reason to believe that the court indulged in an

14 impermissible presumption, and Defendant’s motion to amend his docketing statement

15 does not present any viable issue for this Court to address. That motion is denied.

16   {10}   Accordingly, Defendant’s conviction is affirmed.

17   {11}   IT IS SO ORDERED.



18                                          __________________________________
19                                          JONATHAN B. SUTIN, Judge


20 WE CONCUR:


21 _______________________________
22 LINDA M. VANZI, Chief Judge



                                               7
1 _______________________________
2 STEPHEN G. FRENCH, Judge




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