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     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum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

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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                    No. A-1-CA-35527

 5 ALEJANDRA RIVAS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Briana H. Zamora, District Judge

 9 Hector H. Balderas, Attorney General
10 Aaron Baca, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13   Bennett J. Baur, Chief Public Defender
14   Santa Fe, NM
15   Steven J. Forsberg, Assistant Appellate Defender
16   Albuquerque, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 FRENCH, Judge.
 1   {1}   Defendant Alejandra Rivas appeals from the district court’s judgment affirming

 2 her driving while under the influence of intoxicating liquor conviction (DWI) (first

 3 offense), pursuant to NMSA 1978, Section 66-8-102(C)(1) (2010, amended 2016),

 4 following an on-record appeal from her bench trial conviction in metropolitan court.

 5 Defendant claims that her DWI conviction–a DWI per se conviction—was supported

 6 by insufficient evidence (alcohol concentration equals or exceeds .08 within three

 7 hours of driving and the concentration results from alcohol consumed before or while

 8 driving). Defendant maintains that her breath samples of .08 and .07 are of equal

 9 evidentiary weight, and thus there existed insufficient evidence of guilt. We decline

10 to reweigh the evidence in this case, adopt the district court’s resolution of this

11 argument, and affirm Defendant’s conviction.

12 Sufficient Evidence Exists to Support Defendant’s Conviction

13   {2}   “The test for sufficiency of the evidence is whether substantial evidence of

14 either a direct or circumstantial nature exists to support a verdict of guilty beyond a

15 reasonable doubt with respect to every element essential to a conviction.” State v.

16 Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and

17 citation omitted). The reviewing court “view[s] the evidence in the light most

18 favorable to the guilty verdict, indulging all reasonable inferences and resolving all

19 conflicts in the evidence in favor of the verdict.” State v. Cunningham,



                                              2
 1 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and

 2 inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19,

 3 126 N.M. 438, 971 P.2d 829.

 4   {3}   On the night in question, Sergeant Daniel Carr with the Albuquerque Police

 5 Department (APD) conducted the initial stop, and noted that Defendant had bloodshot,

 6 watery eyes and smelled of alcohol. APD Officer Timothy McCarson, who conducted

 7 the standardized field sobriety tests, testified that Defendant evoked a fair to moderate

 8 odor of alcohol from her person, admitted to consuming alcohol a short time before

 9 driving, and performed poorly on the field sobriety tests. Defendant then submitted

10 to a breath alcohol test, with resulting scores of .08 and .07. The metropolitan court

11 found Defendant guilty of DWI per se, reasoning that the .08 result was valid based

12 on the test results of the breath alcohol test and the testimony validating the calibration

13 check of the machine. The district court affirmed. On appeal, Defendant argues that

14 both scores carry equal weight, in essence asserting that while the .08 score would

15 sustain guilt, the .07 score would not.

16   {4}   The question for us on appeal is whether the metropolitan court’s “decision is

17 supported by substantial evidence, not whether the court could have reached a

18 different conclusion.” In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562,

19 915 P.2d 318. Our Supreme Court recently clarified our standard of review, where as



                                                3
 1 in the instant case, the .07 breath sample may “support[] a reasonable hypothesis of

 2 innocence[.]” State v. Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076. “[Our Supreme

 3 Court] explicitly rejected as no longer an appropriate standard for a New Mexico

 4 appellate court the proposition that where the evidence supports a reasonable

 5 hypothesis of innocence, the [s]tate, by definition, has failed to prove its case beyond

 6 a reasonable doubt.” Id. (alteration, omissions, internal quotation marks, and citation

 7 omitted). In rejecting this standard of appellate review—hypothesis of innocence—

 8 which appears to intrude upon the role of the jury, our Supreme Court expressly

 9 established a “two-step process” of appellate review. Id. (internal quotation marks and

10 citation omitted). Appellate courts are to “draw every reasonable inference in favor

11 of the jury’s verdict and then to evaluate whether the evidence, so viewed, supports

12 the verdict beyond a reasonable doubt.” Id. Applying this standard of review to the

13 facts, the evidence that Defendant’s sample tested at .08 and Officer McCarson’s

14 testimony that the machine was properly calibrated, together with every reasonable

15 inference therefrom, supports the district court’s conclusion of guilt for DWI per se.

16 We therefore conclude that sufficient evidence supports Defendant’s conviction

17 beyond a reasonable doubt.

18 CONCLUSION

19   {5}   For the reasons stated, we affirm Defendant’s conviction.



                                              4
1   {6}   IT IS SO ORDERED.


2                               __________________________________
3                               STEPHEN G. FRENCH, Judge


4 WE CONCUR:


5 ___________________________________
6 M. MONICA ZAMORA, Judge


7 ___________________________________
8 JULIE J. VARGAS, Judge




                                  5
