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

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,428

10 ANTHONY QUIROZ,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 Gary L. Clingman, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 J.K. Theodosia Johnson, Assistant Public Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 VIGIL, Judge.
 1        Defendant is appealing from a district court judgment and sentence entered

 2 after a jury found Defendant guilty of aggravated battery (deadly weapon). We

 3 issued a second calendar notice proposing to affirm, and the Defendant has

 4 responded with a memorandum in opposition. We affirm.

 5        Defendant continues to challenge the sufficiency of the evidence to support

 6 his conviction for aggravated battery (deadly weapon). A sufficiency of the

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

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

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

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

11 established beyond a reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887

12 P.2d 756, 760 (1994) (internal quotation marks and citation omitted).

13        Among other things, the jury instruction in this case required the jury to

14 find that the deadly weapon used against Victim was a firearm. [RP 44] See State v.

15 Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App. 1986) (“Jury instructions

16 become the law of the case against which the sufficiency of the evidence is to be

17 measured.”). According to the docketing statement, Victim testified that he did not

18 know if he was hit with a gun, and “the State offered no evidence of a gun.” [DS 3]

19 In the absence of evidence to support the finding that a firearm was used, our first



                                             2
 1 calendar notice proposed to reverse. See State v. Calanche, 91 N.M. 390, 392, 574

 2 P.2d 1018, 1020 (Ct. App. 1978) (facts in the docketing statement are accepted as

 3 true unless contradicted by the record). In its memorandum in opposition to our

 4 first calendar notice, the State informed us that Victim’s prior statement was

 5 admitted into evidence. [MIO 2] In this statement Victim had identified the object

 6 as a gun. [MIO 2] There was also evidence that approximately thirty seconds

 7 before Victim was hit Defendant had fired a weapon. In light of these facts, our

 8 second calendar notice proposed to reverse.

 9        Defendant’s memorandum in opposition to our second calendar notice does

10 not dispute the new facts that were brought to our attention by the State.

11 [Defendant’s MIO 1] Accordingly, Defendant has not persuaded us that our second

12 calendar notice was incorrect. See State v. Sisneros, 98 N.M. 201, 202-03, 647

13 P.2d 403, 404-05 (1982) (“The opposing party to summary disposition must come

14 forward and specifically point out errors in fact and in law.”). We are also not

15 persuaded by the jury’s special verdict with respect to any potential firearm

16 enhancement. [RP 59] We look to the evident to support Defendant’s conviction,

17 and we do not consider the fact that the verdicts might be irreconcilable. See State

18 v. Roper, 2001-NMCA-093, ¶ 24, 131 N.M. 189, 34 P.3d 133.

19        For the reasons set forth above, we affirm.

                                             3
1
2   IT IS SO ORDERED.

3
4                       MICHAEL E. VIGIL, Judge




                          4
1 WE CONCUR:


2
3 JAMES J. WECHSLER, Judge


4
5 JONATHAN B. SUTIN, Judge




                             5
