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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. 33,259

 5 EUGENE BONNEY,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
 8 Stephen K. Quinn, Jr., District Judge


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

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 KENNEDY, Chief Judge.
 1   {1}   Eugene Bonney (Defendant) appeals his conviction for resisting, evading, or

 2 obstructing an officer. In our notice of proposed summary disposition, we proposed

 3 to affirm. Defendant has filed a memorandum in opposition, which we have duly

 4 considered. As we do not find Defendant’s arguments to be persuasive, we affirm.

 5 Sufficiency of the Evidence

 6   {2}   Defendant contends that there was insufficient evidence to support his

 7 conviction. [DS 5] His argument is based on his assertion that the officer who

 8 testified that Defendant was the driver of the vehicle was not credible. [DS 4] In this

 9 Court’s notice of proposed summary disposition, we proposed to hold that the

10 evidence was sufficient. We pointed out that “[a]s an appellate court, we do not

11 substitute our judgment for that of the factfinder concerning the credibility of

12 witnesses or the weight to be given their testimony.” State v. Nichols, 2006-NMCA-

13 017, ¶ 9, 139 N.M. 72, 128 P.3d 500 (internal quotation marks and citation omitted).

14   {3}   In Defendant’s memorandum in opposition, he continues to argue that the

15 witness was not credible. [MIO 2-4] However, he provides no authority that would

16 permit this Court to reweigh the evidence in the manner that he proposes.

17 Accordingly, for the reasons stated in our notice, we hold that the evidence was

18 sufficient.

19 Motion for a Mistrial


                                              2
 1   {4}   Defendant asserts that the district court erred in refusing to grant a mistrial after

 2 the officer testified that the reason she recognized Defendant as the driver of the

 3 vehicle was because she had dealt with him on previous warrants. [DS 6] In this

 4 Court’s notice of proposed summary disposition, we proposed to find no abuse of

 5 discretion because this evidence was admissible pursuant to Rule 11-404(B)(2)

 6 NMRA in order to prove Defendant’s identity. We stated that Defendant’s identity

 7 was at issue because the State’s case depended on the officer’s determination that the

 8 person who drove away in the vehicle was Defendant. The fact that the officer knew

 9 that it was Defendant from prior police contact was relevant to prove that he was the

10 person driving. See State v. Contreras, 2007-NMCA-045, ¶¶ 25-27, 141 N.M. 434,

11 156 P.3d 725 (holding that where the defendant claimed that officers could not

12 properly identify him, his mug shot and prior convictions were relevant to prove

13 identity). We also pointed out that it was Defendant’s attorney who elicited this

14 testimony on cross-examination, such that it did not appear that the evidence was

15 purposefully introduced by the prosecutor in order to create an inference that

16 Defendant was prone to criminal behavior.

17   {5}   In Defendant’s memorandum in opposition, he does not address the aspect of

18 Rule 11-404(B)(2) that permits the introduction of other crimes if relevant to prove

19 identity. Instead, he simply argues that the rule generally prohibits the introduction

20 of evidence of a defendant’s other crimes, wrongs, or acts. [MIO 4-6] Here, however,

                                                 3
 1 as we have explained, the evidence was admitted to prove Defendant’s identity as the

 2 driver of the vehicle, not to prove his “character in order to show that on a particular

 3 occasion [he] acted in accordance with the character.” See Rule 11-404(B)(1).

 4 Accordingly, we conclude that the introduction of this evidence did not render

 5 Defendant’s trial unfair and the district court therefore did not abuse its discretion in

 6 denying Defendant’s motion for a mistrial.

 7   {6}   Therefore, for the reasons stated here and in our notice of proposed summary

 8 disposition, we affirm.

 9   {7}   IT IS SO ORDERED.



10                                          ____________________________________
11                                          RODERICK T. KENNEDY, Chief Judge


12 WE CONCUR:



13 ___________________________
14 MICHAEL E. VIGIL, Judge



15 ___________________________
16 TIMOTHY L. GARCIA, Judge




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