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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. 33,351

 5 EDWARD BARNHOUSE,

 6          Defendant-Appellant.

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

 9 Gary King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Sergio J. Viscoli, Assistant Public Defender
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 DWI (first offense). We issued a calendar notice
 1 proposing to affirm Defendant’s three issues. Defendant has responded with a

 2 memorandum in opposition. We affirm.

 3   {2}   We initially note that the caption of the memorandum in opposition purports

 4 to raise a motion to amend the docketing statement. However, no new issue is raised;

 5 to the contrary, Defendant has actually abandoned one of his issues. We therefore

 6 construe the caption to be a typographical error.

 7   {3}   Issue I: Defendant has argued that his arrest was not supported by probable

 8 cause. There is no new argument in the memorandum in opposition. Accordingly, the

 9 issue is deemed abandoned. See State v. Johnson, 1988-NMCA-029, ¶ 8, 107 N.M.

10 356, 758 P.2d 306 (holding that when a case is decided on the summary calendar, an

11 issue is deemed abandoned where a party fails to respond to the proposed disposition

12 of that issue).

13   {4}   Issue II: Defendant continues to challenge the sufficiency of the evidence to

14 support his conviction for Driving While Intoxicated. [MIO 24] A sufficiency of the

15 evidence review involves a two-step process. Initially, the evidence is viewed in the

16 light most favorable to the verdict. Then the appellate court must make a legal

17 determination of “whether the evidence viewed in this manner could justify a finding

18 by any rational trier of fact that each element of the crime charged has been

19 established beyond a reasonable doubt.” State v. Apodaca, 1994-NMSC-121, ¶ 6, 118

20 N.M. 762, 887 P.2d 756 (internal quotation marks and citation omitted).


                                             2
 1   {5}   In order to convict Defendant of DWI, the evidence had to show that

 2 Defendant was under the influence of intoxicating liquor while operating a motor

 3 vehicle, and that this affected his ability to operate the vehicle to at least the slightest

 4 degree. NMSA 1978, § 66-8-102(A) (2010); UJI 14-4501 NMRA.

 5   {6}   Here, the officer had received a dispatch of an extremely intoxicated individual

 6 leaving the scene in his vehicle. [DS 13] When the officer arrived on the scene, a

 7 manager of the restaurant handed him the keys, informing the officer that “he was

 8 trying to leave.” [DS 13-14] Defendant admitted that he had been drinking and that

 9 he was trying to leave. [DS 14; RP 166] The State presented evidence that Defendant

10 appeared very intoxicated and performed poorly on the field sobriety tests. [DS 5, 14,

11 18] The restaurant manager also testified that Defendant drove his vehicle backward

12 out of the parking lot, and that another manager had to move out of the way to avoid

13 getting hit. [RP 168; MIO 5, DS 15] Accordingly, our calendar notice proposed to

14 affirm. See, e.g., State v. Soto, 2007-NMCA-077, ¶ 34, 142 N.M. 32, 162 P.3d 187

15 (holding that there was sufficient evidence to support a conviction where officers

16 observed the defendant driving, where the defendant admitted to drinking, and where

17 the defendant had bloodshot watery eyes, smelled of alcohol, and slurred speech).

18   {7}   In his memorandum in opposition, Defendant refers us to his version of events,

19 namely that he did not have the intent to drive, but merely went briefly out to the

20 vehicle with the intention of going back into the restaurant. [MIO 25-26] However,

21 the fact-finder was free to reject Defendant’s version of events. See State v. Sutphin,

                                                3
 1 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that the fact-finder is

 2 free to reject a defendant’s version of events). With respect to Defendant’s claim that

 3 the fact-finder relied too heavily on the testimony of a witness who stated that

 4 Defendant drove the vehicle, witness credibility is to be determined by the fact-finder,

 5 and will not be re-examined on appeal. See State v. Nichols, 2006-NMCA-017, ¶ 9,

 6 139 N .M. 72, 128 P.3d 500 (stating that “[a]s an appellate court, we do not substitute

 7 our judgment for that of the fact[-]finder concerning the credibility of witnesses or the

 8 weight to be given their testimony”) (internal quotation marks and citation omitted).

 9   {8}    Issue III: Defendant continues to argue that the district court erred in denying

10 his motion for a new trial. [MIO 27] Defendant’s motion alleged that a second

11 manager, who did not testify at trial, would provide testimony contradicting testimony

12 that the vehicle had been in motion. [RP 81] We conclude that the trial court did not

13 err for the same reasons set forth by the district court in Defendant’s on-the-record

14 appeal. [RP 170] Specifically, it appears that this testimony, at best, would have

15 merely contradicted some of the specifics of the incident, and was inconclusive. [RP

16 170] In addition, Defendant did not show that this testimony could not have been

17 discovered prior to trial. See State v. Garcia, 2005-NMSC-038, ¶ 8, 138 N.M. 659,

18 125 P.3d 638 (setting forth factors to consider when addressing motion for new trial).

19   {9}    For the reasons set forth above, we affirm.

20   {10}   IT IS SO ORDERED.



                                                4
1                                       _______________________________
2                                       M. MONICA ZAMORA, Judge

3 WE CONCUR:


4 ___________________________________
5 RODERICK T. KENNEDY, Chief Judge


6 __________________________________
7 JONATHAN B. SUTIN, Judge




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