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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. 32,868

 5 TERESA TAPIA,

 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 Bennett J. Baur, Acting Chief Public Defender
13 Josephine H. Ford, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 BUSTAMANTE, Judge.
 1   {1}   Defendant appeals from the district court’s judgment in an on-record appeal

 2 from metropolitan court, which convicted Defendant for driving while intoxicated

 3 (DWI). The district court’s judgment affirmed the metropolitan court’s sentencing

 4 order. Unpersuaded that Defendant demonstrated error, we issued a notice of

 5 proposed summary disposition, proposing to affirm. Defendant has responded to our

 6 notice with a memorandum in opposition. We remain unpersuaded, and affirm.

 7   {2}   Defendant contends that the metropolitan court erred by denying her motion to

 8 suppress, arguing that the traffic stop was an unconstitutional pretextual stop under

 9 State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143, based on the officer’s

10 impermissible motive to investigate her for DWI, an offense for which the officer had

11 no reasonable suspicion. [DS 20-21] Our notice proposed to hold that based on the

12 totality of the circumstances, Defendant did not establish pretext.

13   {3}   In response to our notice, Defendant provides us with a detailed examination

14 of the facts, but does not challenge any particular fact described in the district court’s

15 memorandum opinion, the facts upon which our calendar notice relied. Defendant

16 continues to focus on the officer’s testimony that he suspected that Defendant was

17 DWI, and argues that the officer would not have stopped Defendant absent that

18 unrelated motive that was not supported by reasonable suspicion. [MIO 21-22]

19 Defendant also points out that the officer was assigned to the DWI team at the time



                                               2
 1 of the stop. [MIO 22] Defendant argues the officer’s observation of the broken,

 2 glaring taillight gave him the opportunity to pull over Defendant and investigate her

 3 for DWI. [MIO 22-23]

 4   {4}   It is for the fact finder—in this case, the trial judge—to resolve any conflict in

 5 the testimony of the witnesses and to determine where the weight and credibility lay.

 6 See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482. As indicated

 7 in our notice and as recognized in the memorandum in opposition, the metropolitan

 8 court engaged in a thorough analysis of the evidence, including the officer’s

 9 testimony. [MIO 16-19] The metropolitan court weighed all of the evidence,

10 considered the officer’s statements, and concluded that the officer did not decide to

11 pull over Defendant until after he observed the broken, glaring taillight, and that the

12 traffic stop was based primarily on that offense. [RP 121; MIO 18] As indicated in our

13 notice, the officer did not pull over Defendant until after he observed the broken,

14 glaring taillight despite his previous observations of other, less clear traffic offenses

15 that were more related to DWI. [RP 121]

16   {5}   We agree with the metropolitan court’s belief that this Court’s opinion in

17 Ochoa, 2009-NMCA-002, ¶¶ 39-42, does not prohibit an officer from possessing

18 more than one suspicion about a defendant. As we stated in our notice, the analysis

19 under Ochoa requires the trial court to consider many objective pretext indicators and



                                               3
 1 weigh many factors in order to determine whether based on the totality of the

 2 circumstances, the officer who made the stop would have done so even without an

 3 unrelated motive. See id. ¶¶ 40-41; State v. Gonzales, 2011-NMSC-012, ¶ 12, 150

 4 N.M. 74, 257 P.3d 894.

 5   {6}   Our notice further indicated that where “the objective reason articulated for the

 6 stop was necessary for the protection of traffic safety,” see Ochoa, 2009-NMCA-002,

 7 ¶ 41, it is difficult to conclude that an officer would not have made the stop without

 8 an unrelated motive. The officer’s stated overarching concern in the current case was

 9 that Defendant was driving unsafely and posed a threat to the driving public. By

10 suspecting that Defendant was speeding at night, not using a turn signal, and driving

11 with defective equipment, the officer was observing mounting evidence that

12 Defendant posed a threat to traffic safety. We see no error in concluding that the

13 officer acted reasonably by stopping Defendant for a clear equipment violation that

14 was a safety concern for other drivers where the officer suspected that Defendant

15 could pose different and greater threats to the public if left to drive farther.

16   {7}   We hold that substantial evidence supports the metropolitan court’s findings

17 indicating that the officer stopped Defendant for the broken taillight based on his

18 concern for traffic safety. See State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M.

19 691, 974 P.2d 661 (stating that substantial evidence is “such relevant evidence as a



                                               4
1 reasonable mind might accept as adequate to support a conclusion” (internal quotation

2 marks and citation omitted)).

3   {8}   For the reasons stated in our notice and this Opinion, we affirm the district

4 court’s judgment affirming the metropolitan court’s sentencing order.

5   {9}   IT IS SO ORDERED.



6
7                                         MICHAEL D. BUSTAMANTE, Judge

8 WE CONCUR:


 9
10 JAMES J. WECHSLER, Judge


11
12 J. MILES HANISEE, Judge




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