State v. Sotelo ( 2018 )

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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. A-1-CA-37397
5 AMANDA SOTELO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 Fred T. Van Soelen, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Gregory B. Dawkins, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Chief Judge.
18 {1} Defendant appeals her convictions for aggravated battery, aggravated DWI,
19 resisting, driving with a revoked license, open container, and concealing identity. We
1 issued a calendar notice proposing to affirm. Defendant has responded with a
2 memorandum in opposition. Not persuaded, we affirm.
3 {2} Initially, we note that we have two separate records reflecting the fact that two
4 criminal proceedings were consolidated for sentencing. We will refer to the records
5 as CR-363 and CR-417.
6 {3} Defendant continues to challenge the sufficiency of the evidence to support her
7 convictions. [MIO 3] See generally State v. Armijo, 1997-NMCA-080, ¶ 16, 123 N.M.
8 690, 944 P.2d 919 (“A motion for a directed verdict challenges the sufficiency of the
9 evidence[.]”). A sufficiency of the evidence review involves a two-step process.
10 Initially, the evidence is viewed in the light most favorable to the verdict. Then the
11 appellate court must make a legal determination of “whether the evidence viewed in
12 this manner could justify a finding by any rational trier of fact that each element of the
13 crime charged has been established beyond a reasonable doubt.” State v. Apodaca,
14 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and
15 citation omitted).
16 {4} The elements of the offenses were set out in the jury instructions. [RP CR-363
17 at 218; RP CR-417 at 168-73] In support of the aggravated battery charge, the State
18 presented evidence that Defendant lured the victim to the front of the vehicle
19 Defendant was driving, at which time Defendant “floored it.” [MIO 2; DS 3] Victim
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1 jumped onto the hood of the car, and then was thrown onto the street, suffering injury.
2 [MIO 2; DS 3-4] The State also presented testimony from an officer concerning
3 physical evidence that corroborated Victim’s story. [DS 4]
4 {5} With respect to the charges in CR-417, the State presented evidence that
5 Defendant refused to stop her vehicle when an officer located her and activated his
6 lights. [DS 4] When she did stop, the officer noticed that Defendant smelled of
7 alcohol, had slurred speech, and that there was an open container of alcohol in her
8 vehicle. [DS 5] Defendant would not reveal her identity and refused to consent to
9 testing after the officer attempted to read her the informed consent act. [DS 5] Our
10 calendar notice proposed to hold that this evidence was sufficient to support the
11 charges in CR-417.
12 {6} In her memorandum in opposition, Defendant refers us to possible
13 discrepancies in the evidence or alternative inferences that could be derived from the
14 evidence. [MIO 2-5] However, as we noted above, on appeal we view the evidence
15 in the light most favorable to the verdict. In addition, the jury was free to reject
16 Defendant’s testimony [MIO 3] that it was an accident. State v. Rojo, 1999-NMSC-
17 001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Finally, to the extent that Defendant is
18 challenging the basis for the stop [MIO 5-6], Defendant did not raise this issue in her
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1 docketing statement [DS 8], and has not established that the issue was preserved or
2 is otherwise viable. See Rule 12-208(F) NMRA.
3 {7} For the reasons set forth above, we affirm.
4 {8} IT IS SO ORDERED.
5 _______________________________
6 LINDA M. VANZI, Chief Judge
7 WE CONCUR:
8 ___________________________
9 STEPHEN G. FRENCH, Judge
10 ___________________________
11 EMIL J. KIEHNE, Judge
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