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

 2 TOWN OF SILVER CITY,

 3          Plaintiff-Appellee,

 4 v.                                                     No. 32,747

 5 DAVID RUELAZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
 8 Jarod K. Hofacket, District Judge

 9 Reynolds Law Firm, PC
10 James H. Reynolds
11 Silver City, NM

12 for Appellee

13 Lopez, Dietzel and Perkins, P.C.
14 Daniel B. Dietzel
15 Silver City, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 FRY, Judge.

19   {1}    Defendant appeals the district court’s order finding that he violated Silver City

20 ordinances prohibiting the keeping of a vicious animal and establishing the owner’s
 1 responsibility for animal attacks. Silver City, N.M. Ordinances, Part II, ch. 6, art. V,

 2 §§ 6-194, 6-195 (2005). The charges arose from an incident in which Defendant’s pit

 3 bull terrier approached a woman in a hostile manner when she was visiting a friend

 4 in Defendant’s neighborhood. Defendant argues on appeal that the ordinances at issue

 5 are not strict liability offenses and that there was not sufficient evidence to find that

 6 he violated the ordinances. We address these issues in turn and affirm.

 7   {2}   Because this is a memorandum opinion and the parties are familiar with the

 8 facts and procedural history of this case, we reserve further discussion of the pertinent

 9 facts for our analysis.

10 DISCUSSION

11 The District Court Did Not Rule That the Ordinances Were Strict Liability
12 Offenses

13   {3}   Defendant argues that it would be error to sustain Defendant’s convictions

14 under a theory of strict liability. Defendant relies on State v. Gonzalez for the

15 proposition that when an act is punishable as a crime, our courts require that the

16 statute be construed as requiring some form of criminal intent unless the Legislature

17 clearly manifested its intent to make the act a strict liability offense. 2005-NMCA-

18 031, ¶ 12, 137 N.M. 107, 107 P.3d 547. Defendant argues that because a violation of

19 either of these ordinances could result in ninety days’ imprisonment, Defendant

20 cannot be convicted of violating the ordinances without a showing of criminal intent.


                                               2
 1   {4}   The problem with Defendant’s argument is that the district court agreed with

 2 Defendant below that the ordinances were not strict liability offenses. In issuing its

 3 ruling, the district court stated that

 4         the traditional approach [of] one free bite is how it’s looked at. The
 5         owner needs to have some awareness of the history of other unprovoked
 6         bites or attacks. . . . If the general common law rule of criminal intent
 7         does apply, the intent [was] met . . . [and] the level of intent necessary to
 8         violate these ordinances does exist.

 9 Defendant does not argue that the level of criminal intent the district court applied to

10 the ordinances was improper, and we therefore do not consider it. Accordingly, we

11 conclude that Defendant was not convicted of violating these ordinances on a strict

12 liability theory, and his assertion of error on this point is without any basis in the

13 record.

14   {5}   Furthermore, Defendant’s arguments regarding the alleged preemptive effect

15 of similar state statutes were not preserved below and, therefore, our review of this

16 issue is for fundamental error. See State v. Cunningham, 2000-NMSC-009, ¶ 10, 128

17 N.M. 711, 998 P.2d 176 (“The doctrine of fundamental error . . . is an exception to the

18 general rule requiring preservation of error.”).          However, “[t]he doctrine of

19 fundamental error is to be resorted to in criminal cases only for the protection of those

20 whose innocence appears indisputably, or open to such question that it would shock

21 the conscience [of the court] to permit the conviction to stand.” Id. ¶ 13 (internal



                                                3
 1 quotation marks and citation omitted). Given the evidence supporting Defendant’s

 2 convictions, as discussed below, we cannot conclude that such exceptional

 3 circumstances exist in this case so as to constitute fundamental error.

 4 Sufficient Evidence Exists to Support Defendant’s Conviction Under Section 6-
 5 194

 6   {6}   Defendant argues that there was insufficient evidence to convict him of an

 7 offense under Section 6-194. Defendant again contends that our interpretation of

 8 Section 6-194 should be limited by a similar state statute. See NMSA 1978, § 77-1-

 9 10(A) (1979) (prohibiting the keeping of animals “known to be vicious . . . unless

10 such animal is securely kept to prevent injury to any person”). However, we have

11 rejected Defendant’s preemption argument as unpreserved. Therefore, we consider

12 Defendant’s insufficiency of the evidence argument by examining the evidence

13 adduced at trial and whether it constitutes a violation of Section 6-194, not Section 77-

14 1-10.

15   {7}   We review an insufficiency of the evidence claim to determine whether

16 “substantial evidence of either a direct or circumstantial nature exists to support a

17 verdict of guilt beyond a reasonable doubt with respect to every element essential to

18 a conviction.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314.

19 We “view the evidence in the light most favorable to the [prosecution], resolving all

20 conflicts therein and indulging all permissible inferences therefrom in favor of the


                                               4
 1 verdict.” Id. We do not “weigh the evidence and may not substitute [our] judgment

 2 for that of the fact finder so long as there is sufficient evidence to support the verdict.”

 3 Id.

 4   {8}   Section 6-194 provides, “It shall be unlawful for any person to keep a vicious

 5 animal and any animal deemed vicious shall be humanely destroyed and the owner

 6 may be fined as provided for in this chapter.” The Silver City ordinances define

 7 “[v]icious animal” as:

 8         An animal that, unprovoked, bites or attacks a person or another animal
 9         or approaches a person in a vicious or terrorizing manner; provided,
10         however, that if the animal has no history of any other unprovoked bites
11         or attacks of persons or other animals and the animal is not likely to,
12         unprovoked, bite or attack another person or animal in the future, such
13         animal shall not be considered vicious[.]

14 Silver City, N.M. Ordinances, Part II, Section 6-1.

15   {9}   The district court found that the uncontroverted testimony at trial established

16 that Defendant’s dog had a history of previous terrorizing behavior and that Defendant

17 was made aware of the dog’s aggressive behavior by a neighbor who was a victim in

18 a previous encounter and by the animal control officer who responded to that incident.

19 The district court’s findings were supported by the testimony of the previous victim

20 and were corroborated by Defendant himself. Defendant’s contrary argument that he

21 was not aware that his dog was “insecurely kept” is immaterial to a conviction under

22 Section 6-194. Thus, there was sufficient evidence for the district court to conclude


                                                5
 1 that Defendant violated Section 6-194 by keeping an animal that he was aware had

 2 approached people in a “vicious or terrorizing manner” on previous occasions and did

 3 so again during the incident at issue.

 4 Sufficient Evidence Exists to Support Defendant’s Conviction Under Section 6-
 5 195

 6   {10}   Defendant argues that there was insufficient evidence to support his conviction

 7 for violating Section 6-195. We reiterate that Defendant has not preserved any

 8 arguments regarding alleged preemptive limitations on our interpretation of this

 9 ordinance. We therefore only consider Defendant’s argument that there was no

10 evidence that he knew that his dog was loose during the incident at issue or that he

11 purposefully intended for his dog to attack anyone.

12   {11}   We are unpersuaded by Defendant’s argument that Section 6-195 includes any

13 requirement that Defendant knew his dog was loose or that he purposefully intended

14 for the dog to injure anyone. Section 6-195 states, “It shall be unlawful for an animal

15 to, unprovoked, bite or attack a person or other animal or approach a person in a

16 vicious or terrorizing manner.” The evidence in this case established that Defendant’s

17 dog approached the victim in a vicious or terrorizing manner and continued its

18 aggressive behavior with the responding animal control and police officers to the

19 extent that the officers had to taze the dog to get it under control. The district court

20 found that any relevant mens rea was met because Defendant was aware that the dog


                                               6
1 had gotten out in the past and that it was possible for the dog to get out in the future.

2 We therefore conclude that sufficient evidence exists to support Defendant’s

3 conviction under Section 6-195.

4 CONCLUSION

5   {12}   For the foregoing reasons, we affirm Defendant’s convictions.

6   {13}   IT IS SO ORDERED.



7
8                                          CYNTHIA A. FRY, Judge

9 WE CONCUR:


10
11 RODERICK T. KENNEDY, Chief Judge


12
13 JONATHAN B. SUTIN, Judge




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