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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. 33,179

 5 WILLIS J. KELLY,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Ross C. Sanchez, District Judge

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

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Santa Fe, NM

14 Josephine H. Ford
15 Assistant Public Defender
16 Albuquerque, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 ZAMORA, Judge.
 1   {1}   Defendant appeals from the district court’s judgment affirming the metropolitan

 2 court’s judgment and sentence convicting him of assault on a household member and

 3 criminal damage to property. [RP 3, 37-38] This Court’s calendar notice proposed to

 4 affirm Defendant’s convictions. Defendant filed a memorandum in opposition to the

 5 proposed disposition. We are not persuaded by Defendant’s arguments and affirm the

 6 judgment.

 7   {2}   Defendant continues to argue that Ms. Paige Messec should have been excused

 8 from the jury panel for jury misconduct. The calendar notice proposed to conclude

 9 that there was no evidence that extraneous information actually reached the jury and

10 “came to bear on the jury’s deliberations.” State v. Mann, 2002-NMSC-001, ¶ 19, 131

11 N.M. 459, 39 P.3d 124; see id. ¶ 17 (stating that this Court will not reverse a district

12 court’s denial of a motion for a new trial based on juror misconduct unless the court

13 abused its discretion). Defendant argues that because his case was still active, his

14 federal conviction was common knowledge in the office where Ms. Messec worked

15 as a district attorney, and she had opportunities to discover this during breaks in the

16 trial if she returned to her office. [DS 12] Although Defendant acknowledges there

17 was no evidence that Ms. Messec actually received any extraneous information [MIO

18 11], he argues the critical fact is that she had access to the information. That is not the

19 standard we apply in determining juror misconduct. Absent any evidence showing that

                                                2
 1 extraneous information actually reached the jury, we affirm. See Kilgore v. Fuji Heavy

 2 Industries, Ltd., 2009-NMCA-078, ¶¶ 12-13, 146 N.M. 698, 213 P.3d 1127

 3 (concluding there was jury misconduct where there was evidence that the juror

 4 actually received extraneous information). Because we affirm on this basis, we need

 5 not consider Defendant’s request to take judicial notice of his federal conviction.

 6 [MIO 11]

 7   {3}   Defendant continues to argue that there was insufficient evidence to support his

 8 conviction for criminal damage to property. This Court’s notice proposed to conclude

 9 that there was sufficient evidence of Defendant’s identity, given the victim’s

10 testimony that when the banging on her garage door stopped, she saw Defendant from

11 her window get into his car and drive away. [DS 6, MIO 5] We further proposed to

12 conclude that to the extent Defendant testified it was not him and he was not at the

13 victim’s house the night of the incident [DS 11], “[t]he reviewing court does not

14 weigh the evidence or substitute its judgment for that of the fact finder as long as there

15 is sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27,

16 124 N.M. 346, 950 P.2d 789, abrogated on other grounds as recognized by Kersey v.

17 Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.

18   {4}   Defendant continues to argue that the victim’s testimony that she saw him leave

19 her house directly contradicted his testimony, and that this court “must be satisfied


                                               3
 1 that the evidence was sufficient to establish the facts essential to conviction with the

 2 level of certainty required by the applicable burden of proof.” State v. Maes, 2007-

 3 NMCA-089, ¶ 12, 142 N.M. 276, 164 P.3d 975. Defendant maintains that a reasonable

 4 fact finder could not have reached a subjective state of near certitude that he was the

 5 person who went to her house and threatened her, in part because the victim admitted

 6 that it was she who was mad at Defendant because of some photos she had found on

 7 his cell phone. [DS 13] The standard of proof we review on appeal is beyond a

 8 reasonable doubt and not a subjective state of near certitude as Defendant asserts. See

 9 State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (“Substantial

10 evidence review requires analysis of whether direct or circumstantial substantial

11 evidence exists and supports a verdict of guilt beyond a reasonable doubt with respect

12 to every element essential for conviction”). We disagree with Defendant, and affirm

13 on the basis that, to the extent there was any conflicting evidence, we defer to the fact

14 finder and do not weigh the credibility of the testimony. See Mora, 1997-NMSC-060,

15 ¶ 27.

16   {5}   Defendant also continues to argue that there was insufficient evidence that he

17 was the person who left the threatening voice message on the victim’s cell phone, or

18 that the victim reasonably feared an imminent battery. [DS 13] The calendar notice

19 proposed to affirm on the basis that despite conflicting evidence, which all go to


                                               4
 1 credibility, there was evidence that the victim recognized Defendant’s voice in the

 2 messages and that she was scared he would carry out his threats. See State v. Salas,

 3 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact

 4 finder to resolve any conflict in the testimony of the witnesses and to determine where

 5 the weight and credibility lay). Defendant continues to argue that a reasonable fact

 6 finder could not have reached a subjective state of near certitude as to the victim’s

 7 state of mind concerning her belief she was in danger of receiving an immediate

 8 battery, particularly because there was evidence that the victim sent Defendant text

 9 messages both before and after the incident, and that the victim allowed Defendant to

10 see their daughter after the incident. [MIO 15] Again, Defendant attempts to apply an

11 improper standard of proof. Based on the above evidence, as well as the evidence

12 outlined in the first calendar notice, we conclude that there was sufficient evidence to

13 support a jury’s conclusion beyond a reasonable doubt, that Defendant was the person

14 who left the voice message and that, as a result, the victim feared an imminent battery.

15 The jury was free to disregard any evidence to the contrary. See State v. Rojo, 1999-

16 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting

17 acquittal does not provide a basis for reversal because the jury is free to reject [the

18 d]efendant’s version of the facts.”).




                                              5
1   {6}   For all of the above reasons, and those stated in the calendar notice, we affirm

2 Defendant’s judgment and sentence.

3   {7}   IT IS SO ORDERED.



4                                                 _______________________________

5                                                 M. MONICA ZAMORA, Judge



6 WE CONCUR:




7 __________________________________

8 CYNTHIA A. FRY, Judge




9 __________________________________

10 TIMOTHY L. GARCIA, Judge




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