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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. 33,252

 5 BARBARO FERNANDEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Kenneth H. Martinez, District Judge


 9 Gary K. King, Attorney General
10 Albuquerque, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Steven J. Forsberg, Assistant Appellate Defender
14 Albuquerque, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 KENNEDY, Chief Judge.
 1   {1}   Barbaro Fernandez (Defendant) appeals a district court judgment affirming his

 2 metropolitan court conviction for telephone harassment. In our notice of proposed

 3 summary disposition, we proposed to affirm. Defendant has filed a memorandum in

 4 opposition, which we have duly considered. As we do not find his argument to be

 5 persuasive, we affirm.

 6   {2}   On appeal to this Court, Defendant’s only argument is that the evidence was

 7 insufficient to support his conviction. [DS 15] In this Court’s notice of proposed

 8 summary disposition, we proposed to hold that the evidence was sufficient. In

 9 Defendant’s memorandum in opposition, he asserts that his statement to the victim

10 that he would “make her pay” for her involvement with another man is not the sort of

11 threat that the Legislature intended to punish. [MIO 1-2] We are not persuaded.

12 Viewing the evidence in the light most favorable to the judgment, this language could

13 reasonably be construed as a threat to commit a tortious or criminal act. Cf. State v.

14 Stephens, 1991-NMCA-019, ¶¶ 17-19, 111 N.M. 543, 807 P.2d 241 (holding that

15 because the defendant’s communication did not include criminal or tortious

16 misconduct, his conduct did not constitute a threat as intended by the Legislature).

17   {3}   Therefore, for the reasons stated here and in our notice of proposed summary

18 disposition, we affirm.

19   {4}   IT IS SO ORDERED.


                                             2
1                               ____________________________________
2                               RODERICK T. KENNEDY, Chief Judge

3 WE CONCUR:



4 ___________________________
5 TIMOTHY L. GARCIA, Judge



6 ___________________________
7 J. MILES HANISEE, Judge




                                  3
