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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. 33,298

 5 JACOB CARRILLO,

 6           Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Jacqueline D. Flores, District Judge

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

11 for Appellee

12 Lisa A. Torraco
13 Albuquerque, NM

14 for Appellant

15                                   MEMORANDUM OPINION

16 ZAMORA, Judge.

17   {1}     Defendant appeals from an on-the-record district court judgment affirming his

18 metropolitan court conviction for aggravated DWI (refusal) and related offenses. We
 1 issued a calendar notice proposing to affirm. Defendant has responded with a

 2 memorandum in opposition. We affirm.

 3   {2}   Issue 1: Defendant has claimed that the aggravated DWI charge should have

 4 been reduced to simple DWI because, although he initially refused to submit to

 5 chemical testing, he “cured” the initial refusal by subsequently consenting within a

 6 reasonable time. See generally In re Suazo, 1994-NMSC-070, ¶ 24, 117 N.M. 785,

 7 877 P.2d 1088 (adopting five-part test to consider whether an initial refusal to submit

 8 to testing has been revoked). Defendant’s argument is predicated on his assertion that

 9 his testimony that he revoked his initial refusal was “uncontroverted” below.

10 However, the officer who transported Defendant to the PTC testified that he did not

11 remember Defendant changing his mind and consenting to testing. [RP 194] The

12 officer also buttressed this testimony with the claim that he would have taken

13 Defendant to a closer station in the event that Defendant had, in fact, consented. [RP

14 194] Under our standard of review, we defer to the factfinder to make credibility

15 determinations and to resolve conflicts in the evidence. See State v. Roybal, 1992-

16 NMSC-114, ¶ 9, 115 N.M. 27, 846 P.2d 333. We therefore presume that the factfinder

17 rejected Defendant’s testimony and concluded that he did not revoke his refusal. See

18 State v. Day, 2008-NMSC-007, ¶ 15, 143 N.M. 359, 176 N.M. 1091 (observing that

19 factfinder is free to reject a defendant’s version of events).

20   {3}   Issue 2: Defendant claims that the trial court erred in refusing to dismiss based

21 on the State’s failure to preserve a PTC videotape taken on the night of his arrest.

                                               2
 1 Defendant asserts that he asked a second time to take the test once he was at the PTC.

 2 [DS 7] As indicated above, the factfinder was free to reject Defendant’s claim that the

 3 initial request to take the test was made just a few minutes after the initial refusal. In

 4 light of this, a first request made at the PTC would not be considered a reasonable

 5 time under Suazo. See id., 1994-NMSC-070, ¶ 26 (stating that request must be made

 6 in “a very short time, never more than a matter of minutes”). Accordingly, Defendant

 7 would not be prejudiced by the absence of the tape even if it showed that he had made

 8 a request. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d

 9 318 (“An assertion of prejudice is not a showing of prejudice.”).

10   {4}   For the reasons set forth above, we affirm.

11   {5}   IT IS SO ORDERED.



12                                                 _______________________________
13                                                 M. MONICA ZAMORA, Judge

14 WE CONCUR:


15 __________________________________
16 JAMES J. WECHSLER, Judge



17 __________________________________
18 MICHAEL E. VIGIL, Judge



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