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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. A-1-CA-37547

 5 MARTIN VENTURA-MENDOZA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Stanley Whitaker, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

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

16 for Appellant

17                                 MEMORANDUM OPINION

18 VANZI, Chief Judge.

19   {1}    Defendant Martin Ventura-Mendoza, appeals his conviction for driving while
 1 under the influence of an intoxicating liquor (DWI). We issued a notice of proposed

 2 summary disposition proposing to affirm, and Defendant has responded with a timely

 3 memorandum in opposition. We have considered Defendant’s arguments and remain

 4 unpersuaded that our initial proposed disposition was incorrect. We therefore affirm.

 5   {2}   We have already outlined the procedural and factual background in our notice

 6 of proposed summary disposition, and Defendant indicates in his memorandum in

 7 opposition that he does not take issue with the district court’s recitation of the facts

 8 or this Court’s reliance on the district court’s recitation. Therefore, in order to avoid

 9 unnecessary repetition, we will focus instead on the contents of Defendant’s

10 memorandum in opposition, discussing only such facts as are relevant to his

11 arguments.

12   {3}   In our notice of proposed summary disposition, this Court proposed to adopt

13 the district court’s memorandum opinion and its analysis regarding the sufficiency of

14 the evidence. In his memorandum in opposition, Defendant argues that the district

15 court’s attempt to distinguish this case from State v. Cotton, 2011-NMCA-096, 150

16 N.M. 583, 263 P.3d 925, is misplaced and that Cotton is directly on point. [MIO 2]

17 We disagree. In Cotton, police encountered the defendant in the driver’s seat of a van

18 parked on a roadside. The defendant admitted that he had consumed a beer recently,

19 and was placed under arrest after failing FSTs and refusing to submit to chemical
                                               2
 1 testing. On appeal, this Court held that the evidence was insufficient to convict the

 2 defendant of DWI because there was no evidence as to the time of driving, so there

 3 was no evidence to show that the driving and impairment overlapped. Accordingly,

 4 we held that, although it would have been reasonable for the jury to conclude that the

 5 defendant drove to the place where he was arrested, there was insufficient evidence

 6 to allow the jury to conclude that the defendant had been impaired by alcohol at the

 7 time. Id. ¶¶ 14-15.

 8   {4}   Here, in contrast, Defendant admitted to drinking alcohol before he drove to the

 9 location where he was found by Deputy Carhart. When Deputy Carhart encountered

10 Defendant, he found Defendant asleep in the vehicle with what appeared to be vomit

11 on his shirt. Defendant had bloodshot watery eyes, an odor of alcohol, and he refused

12 to submit to field sobriety tests (FSTs). Additionally, a breath card was introduced

13 into evidence that showed Defendant had a blood alcohol content of 0.27. [RP 84-90]

14 We are of the opinion that this evidence was sufficient to permit the jury to infer that

15 Defendant was impaired to the slightest degree when he drove the vehicle. See State

16 v. Mailman, 2010-NMSC-036, ¶¶ 2-5, 24, 148 N.M. 702, 242 P.3d 269 (observing

17 that there was sufficient circumstantial evidence to support a conviction for past

18 driving while impaired to the slightest degree based on the defendant’s presence

19 behind the wheel of a parked vehicle, admissions to having driven and having
                                               3
 1 consumed alcohol, refusal either to perform field sobriety tests or to provide a breath

 2 sample, the presence of an open can of beer in the vehicle, and a variety of indicia of

 3 intoxication including odor of alcohol, disorientation and confusion, difficulty

 4 maintaining balance, and bloodshot, watery eyes).

 5   {5}   We understand Defendant to argue that, despite evidence that Defendant drank

 6 alcohol before he drove, the evidence was insufficient to show that Defendant was

 7 impaired by alcohol at that time. However, the evidence described above, including

 8 Defendant’s admission to drinking beer and tequila, coupled with his BAC level and

 9 the evidence that Defendant did not drink any alcohol after he arrived at the location

10 because Deputy Carhart saw no evidence of alcohol containers in the vehicle or the

11 immediate area, a jury could infer that Defendant was impaired to the slightest degree

12 when he drove the vehicle. See id. ¶¶ 24-28 (recognizing that the fact-finder may

13 infer that the accused drove while intoxicated based on circumstantial evidence that

14 includes “the accused’s own admissions, the location of the vehicle next to the

15 highway, or any other similar evidence that tends to prove that the accused drove

16 while intoxicated”).

17   {6}   Finally, Defendant argues that disbelief about his claim that he only drank one

18 beer before driving cannot substitute for affirmative proof. [MIO 2-3] The evidence

19 described above, however, constitutes sufficient affirmative proof which is not
                                              4
 1 dependent on belief or disbelief of Defendant’s claim that he drank only one beer

 2 before driving. Additionally, the fact-finder was not required to accept Defendant’s

 3 story as to when he consumed the alcohol he admitted to drinking in the face of the

 4 contradictory evidence showing that he did not drink the alcohol after he drove the

 5 car. See State v. Delgado, 2010-NMCA-078, ¶ 6, 148 N.M. 870, 242 P.3d 437 (“It is

 6 for the jury to resolve the conflicts in the evidence.”); see also State v. Stefani,

 7 2006-NMCA-073, ¶ 39, 139 N.M. 719, 137 P.3d 659 (noting that the jury is free to

 8 reject the defendant’s theory of the case).

 9 CONCLUSION

10   {7}   For these reasons, we affirm Defendant’s conviction.

11   {8}   IT IS SO ORDERED.


12                                                   _______________________________
13                                                   LINDA M. VANZI, Chief Judge

14 WE CONCUR:


15 _________________________________
16 JULIE J. VARGAS, Judge


17 _________________________________
18 JENNIFER L. ATTREP, Judge




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