 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.

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


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,639

10 HERMAN BEYALE,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Thomas J. Hynes, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Allison H. Jaramillo, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 WECHSLER, Judge.
 1        Defendant appeals from a district court judgment and sentence for fifth offense

 2 DWI. We issued a calendar notice proposing to affirm, and Defendant has responded

 3 with a memorandum in opposition. We affirm.

 4        The sole issue in this case involves a challenge to one of four prior driving-

 5 while-intoxicated convictions used to enhance Defendant’s sentence. The State does

 6 not have to show proof beyond a reasonable doubt of the prior DWI conviction, but

 7 instead it must provide a preponderance of the evidence.               State v. Anaya,

 8 1997-NMSC-010, ¶¶ 11-14, 123 N.M. 14, 933 P.2d 223 (filed 1996); State v. Sedillo,

 9 2001-NMCA-001, ¶ 5, 130 N.M. 98, 18 P.3d 1051 (filed 2000). Procedurally, the

10 state has the initial burden of establishing a prima facie case that there is a prior DWI

11 conviction. See. Sedillo, 2001-NMCA-001, ¶ 5. The defendant is then entitled to

12 come forward with contrary evidence to rebut the prima facie showing. See id. The

13 state ultimately bears the burden of persuasion. See id.

14        Defendant challenged the use of a 1989 DWI conviction. [DS 1] The State

15 relied on a Farmington municipal court final order, the criminal complaint, a waiver

16 of counsel, and a citation. [DS 1] The district court found that the conviction was a

17 valid prior, noting the similarity of the social security number, date of birth, and

18 signature. [RP 48] Our calendar notice observed that, although Defendant tried to

19 rebut this evidence with evidence that he had worked in California that year and that

20 a family member might have assumed his identity at the time [RP 47-48], the district


                                               2
 1 court, sitting as factfinder, was free to reject this theory. [CN 2] See State v. Sutphin,

 2 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (observing that the factfinder is free

 3 to reject a defendant’s version of events). We also noted that even if Defendant had

 4 been working in California in 1989, this fact is not proof that he was not in

 5 Farmington on the date of the DWI. [CN 2] Finally, we observed that, to the extent

 6 that Defendant was challenging the validity of the signature, we believe that it satisfies

 7 the State’s prima facie burden, and Defendant had to rebut this evidence with

 8 something more than a mere assertion that it was invalid. [CN 2-3] See In re Ernesto

 9 M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 566, 915 P.2d 318, 322 (“An assertion

10 of prejudice is not a showing of prejudice.”).

11        In his memorandum in opposition, Defendant advocates that we reject the

12 preponderance of the evidence standard and that we adopt a heightened standard that

13 he believes is more consistent with notions of due process that emanate from recent

14 United States Supreme Court case law in the separate but analogous Sixth Amendment

15 context. [MIO 4-13] As Defendant concedes, however, there is no direct United

16 States Supreme Court authority that supports his position; to the contrary, existing

17 authority by that Court is that the heightened Sixth Amendment protections on which

18 Defendant relies by analogy do not apply to recidivist statutes. [MIO 9] In the

19 absence of any direct authority from that Court, [MIO 11] we are bound by the case

20 law of our New Mexico Supreme Court. See Alexander v. Delgado, 84 N.M. 717,


                                               3
1 718, 507 P.2d 778, 779 (1973). Our Supreme Court has adopted the preponderance

2 of the evidence standard. See State v. Smith, 2000-NMSC-005, ¶ 9, 128 N.M. 588,

3 995 P.2d 1030. To the extent that Defendant believes that Smith was wrongly decided

4 [MIO 11], he must address his arguments to our Supreme Court.         For the reasons

5 discussed above, we affirm.

6       IT IS SO ORDERED.



7                                              _______________________________
8                                              JAMES J. WECHSLER, Judge

9 WE CONCUR:



10 _______________________________
11 ROBERT E. ROBLES, Judge



12 _______________________________
13 LINDA M. VANZI, Judge




                                           4
