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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. 33,796

 5 MONICA GARCIA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Christina P. Argyres, District Judge

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

11 for Appellee

12   Law Offices of the Public Defender
13   Jorge A. Alvarado, Chief Public Defender
14   Santa Fe, NM
15   Josephine H. Ford, Assistant Appellate Defender
16   Albuquerque, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 SUTIN, Judge.
 1   {1}   Defendant appeals from an on-the-record district court judgment affirming her

 2 driving while intoxicated (DWI) conviction. We issued a calendar notice proposing

 3 to affirm. Defendant has responded with a memorandum in opposition. We affirm.

 4   {2}   Defendant continues to argue that the evidence was insufficient to support her

 5 conviction. [MIO 9] A sufficiency of the evidence review involves a two-step

 6 process. Initially, the evidence is viewed in the light most favorable to the verdict.

 7 Then the appellate court must make a legal determination of “whether the evidence

 8 viewed in this manner could justify a finding by any rational trier of fact that each

 9 element of the crime charged has been established beyond a reasonable doubt.” State

10 v. Apodaca, 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation

11 marks and citation omitted).

12   {3}   In order to convict Defendant of DWI, the evidence had to show that Defendant

13 was under the influence of intoxicating liquor while operating a motor vehicle and that

14 this affected her ability to operate the vehicle to at least the slightest degree. NMSA

15 1978, § 66-8-102(A) (2010); UJI 14-4501 NMRA. Here, Defendant is specifically

16 challenging evidence with respect to the “operating a motor vehicle” element. [MIO

17 9] Both Defendant and a passenger in the vehicle testified that Defendant did not

18 drive the car, but instead jumped into the driver’s seat after the vehicle had come to

19 a stop. [MIO 4-8] However, the judge, sitting as fact-finder in this bench trial,

20 specifically rejected the credibility of this testimony. See State v. Sutphin, 1988-

21 NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that the fact-finder is free to

                                              2
 1 reject a defendant’s version of events). Instead, the judge relied on the officer’s

 2 testimony that indicated that Defendant was driving the vehicle, namely, that he

 3 observed her through the driver’s side window and that she was in the driver’s seat

 4 with the vehicle running when the vehicle was stopped by the officer. [DS 3] See

 5 generally State v. Mailman, 2010-NMSC-036, ¶¶ 23, 28, 148 N.M. 702, 242 P.3d 269

 6 (observing that direct evidence is not required to support a conviction for DWI and

 7 noting that circumstantial evidence may be relied upon to establish that the accused

 8 actually drove while intoxicated). Although Defendant continues to argue that her

 9 testimony should have been believed, the fact-finder was free to reject Defendant’s

10 version of events. See Sutphin, 1988-NMSC-031, ¶ 21.

11   {4}   For the foregoing reasons, we affirm.

12   {5}   IT IS SO ORDERED.



13                                        __________________________________
14                                        JONATHAN B. SUTIN, Judge


15 WE CONCUR:


16 ___________________________________
17 MICHAEL D. BUSTAMANTE, Judge


18 ___________________________________
19 J. MILES HANISEE, Judge


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