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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. 33,583

 5 MURAT TUTAR,

 6          Defendants-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
 8 George P. Eichwald, District Judge

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

11 for Appellee

12   The Law Offices of the Public Defender
13   Jorge A. Alvarado, Chief Public Defender
14   Kathleen T. Baldridge, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellee

17                                 MEMORANDUM OPINION

18 HANISEE, Judge.

19   {1}    Defendant appeals his misdemeanor convictions for assault against a household

20 member and assault upon a peace officer. Our notice proposed to affirm, and
 1 Defendant filed a memorandum in opposition. We remain unpersuaded by

 2 Defendant’s arguments and therefore affirm.

 3   {2}   Defendant continues to challenge the sufficiency of the evidence to support his

 4 convictions for assault against a household member and assault upon a peace officer.

 5 [DS 3; MIO 3] See NMSA 1978, §§ 30-3-12(A)(2) (1995) and 30-22-21 (1971); see

 6 also State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (setting

 7 forth our standard of review). For the reasons detailed in our notice, we affirm both

 8 convictions. See State v. Sparks, 1985-NMCA-004, ¶¶ 6-7, 102 N.M. 317, 694 P.2d

 9 1382 (defining substantial evidence as that evidence which a reasonable person would

10 consider adequate to support a defendant’s conviction).

11   {3}   In affirming Defendant’s conviction for assault upon a household member, we

12 acknowledge Defendant’s continued emphasis that Victim did not indicate to the 911

13 operator that Defendant hit her or that weapons were involved. [MIO 5; DS 2] As we

14 stated in our notice, however, this is not determinative because Defendant was

15 convicted for assault, as opposed to battery or aggravated assault by the use of a

16 weapon. See, e.g., State v. Roper, 2001-NMCA-093, ¶ 12, 131 N.M. 189, 34 P.3d 133

17 (stating that the harm protected by the assault statutes is mental harm, while the harm

18 protected by the battery statutes is physical harm). We acknowledge also Defendant’s

19 denial of assaulting Victim [MIO 5], as well as his view that Victim’s testimony did


                                              2
 1 not support his conviction for assault because Victim never testified that Defendant

 2 “acted aggressively toward her while taking the phone away from her.” [MIO 5]

 3 However, it was within the factfinder’s prerogative to weigh the evidence. See

 4 generally State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482

 5 (recognizing that the appellate court defers to the factfinder when weighing the

 6 credibility of witnesses and resolving conflicts in witness testimony); see also State

 7 v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (recognizing that the

 8 jury is free to reject the defendant’s version of the event).

 9   {4}   Similarly, in affirming Defendant’s conviction for assault upon a peace officer,

10 we acknowledge Defendant’s continued argument that his intent was not to spit on the

11 officer, but instead to spit on the ground. [MIO 6] Again, however, it was the

12 factfinder’s prerogative to find otherwise. See generally Salas, 1999-NMCA-099, ¶

13 13 (recognizing that the appellate court defers to the factfinder when weighing the

14 credibility of witnesses and resolving conflicts in witness testimony); Rojo, 1999-

15 NMSC-001, ¶ 19 (recognizing that the jury is free to reject the defendant’s version of

16 the event).

17   {5}   For the reasons set forth in our notice and above, we affirm.

18   {6}   IT IS SO ORDERED.


19

                                               3
1                           J. MILES HANISEE, Judge

2 WE CONCUR:



3
4 MICHAEL D. BUSTAMANTE, Judge


5
6 M. MONICA ZAMORA, Judge




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