     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

 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-36101

 5 JUSTUS WATSON,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Alisa A. Hadfield, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   John Kloss, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14   Bennett J. Baur, Chief Public Defender
15   Santa Fe, NM
16   Steven J. Forsberg, Assistant Appellate Defender
17   Albuquerque, NM

18 for Appellant

19                                 MEMORANDUM OPINION

20 BOHNHOFF, Judge.
 1   {1}   Defendant Justus Watson was stopped on suspicion of driving while intoxicated

 2 (DWI). When tested for breath alcohol, the readings were .08 and .07 grams of alcohol

 3 per 210 liters of air. Defendant was charged and, after a bench trial before the

 4 metropolitan court, convicted of per se DWI in violation of NMSA 1978, Section 66-

 5 8-102(C)(1) (2010, amended 2016), which requires proof of breath alcohol

 6 concentration of .08 or more. He appealed his conviction to the district court, and that

 7 court affirmed. Defendant now appeals to this Court. He does not challenge the

 8 legality of the stop or the validity and admissibility of the breath alcohol testing

 9 procedures and results. Instead, Defendant argues solely that as a matter of law the

10 evidence was not sufficient to convict him of per se DWI, because the two scores

11 carry equal evidentiary weight and therefore that evidence cannot establish guilt

12 beyond a reasonable doubt. This is a memorandum opinion and because the parties are

13 familiar with the facts and procedural posture of the case, we set forth only such facts

14 and law as are necessary to decide the issues raised. We affirm.

15   {2}   The question for us on appeal is whether the metropolitan court’s decision is

16 supported by substantial evidence, not whether another fact-finder could have reached

17 a different conclusion. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M.

18 562, 915 P.2d 318. Our Supreme Court recently clarified our standard of review

19 where, as in the instant case, the evidence at trial would “support[] a reasonable



                                              3
 1 hypothesis of innocence[.]” State v. Garcia (Garcia 2016), 2016-NMSC-034, ¶ 24,

 2 384 P.3d 1076. The Court reiterated its rejection “as no longer an appropriate

 3 standard for a New Mexico appellate court the proposition that where the evidence

 4 supports a reasonable hypothesis of innocence, the [s]tate, by definition, has failed to

 5 prove its case beyond a reasonable doubt.” Id. (alteration, omissions, internal

 6 quotation marks, and citation omitted). The Court observed that “it is unproductive

 7 to try to formulate a standard of appellate review in terms of a hypothesis of

 8 innocence, because inevitably it appears to intrude upon the role of the jury.” Id. The

 9 Court held that instead, “to avoid second-guessing the jury,” id., the standard of

10 review is a “ ‘two-step process’ that requires an appellate court to draw every

11 reasonable inference in favor of the jury’s verdict and then to evaluate whether the

12 evidence, so viewed, supports the verdict beyond a reasonable doubt.” Id. Applying

13 this standard of review to the facts, the evidence that one of Defendant’s breath

14 alcohol samples tested at .08 supports the district court’s conclusion of guilt for per

15 se DWI. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

16   {3}   Defendant cites an earlier Supreme Court decision, State v. Garcia (Garcia

17 2005), 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72, for the proposition that

18 “evidence equally consistent with two hypotheses tends to prove neither.” He then

19 argues that, “[i]n this case the two breath scores are equally consistent with



                                              4
 1 [Defendant] having a score of .08 (at the legal limit) or at .07 (below the legal limit).”

 2 Defendant concludes that “the evidence of the BAC scores does not support the

 3 verdict beyond a reasonable doubt because the two scores are contradictory and there

 4 is no evidence with which to believe one over the other.”

 5   {4}   However, the Supreme Court in Garcia 2016 rejected the same logic. In that

 6 case, the defendant was convicted of defrauding an elderly man by claiming to be his

 7 loving partner and that she was not married to or otherwise romantically involved with

 8 anyone else. 2016-NMSC-034, ¶¶ 20-22. Invoking the hypothesis of innocence rule,

 9 the defendant contended that it was “at least as plausible that [the victim] either did

10 not care about or did not want to know about [the defendant’s] other romantic interests

11 given his failure to ever discuss the issue with her.” Id. ¶ 25 (emphasis added)

12 (internal quotation marks omitted). The Court made clear that this argument was

13 encompassed by its rejection of the hypothesis of innocence rule earlier in its decision:

14 “This argument is . . . based on a discredited standard of appellate review[.]” Id. Thus,

15 it matters not that the .08 and .07 breath scores, without more, could have been equally

16 supportive of determinations that Defendant was or was not guilty of per se DWI. Our

17 Supreme Court has replaced the Garcia 2005 analysis with a two-step process for

18 reviewing the sufficiency of the evidence on appeal. Following that process, we will




                                               5
 1 not disturb a determination by the fact-finder to credit the .08 breath score and on that

 2 basis find that Defendant is guilty of per se DWI.

 3   {5}   For the reasons set forth in the State’s answer brief, Defendant’s remaining

 4 arguments are not persuasive. We therefore conclude that sufficient evidence supports

 5 Defendant’s conviction beyond a reasonable doubt.

 6 CONCLUSION

 7   {6}   We affirm Defendant’s conviction.

 8   {7}   IT IS SO ORDERED.


 9                                          ______________________________
10                                          HENRY M. BOHNHOFF, Judge


11 WE CONCUR:


12 ___________________________________
13 LINDA M. VANZI, Chief Judge


14 ___________________________________
15 EMIL J. KIEHNE, Judge




                                               6
