Opinion
NO. A-1-CA-37221
10-09-2018
STATE OF NEW MEXICO, Plaintiff-Appellee, v. JACOB AXE, Defendant-Appellant.
Hector H. Balderas, Attorney General Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
James M. Hudson, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM for Appellant
MEMORANDUM OPINION
VIGIL, Judge. {1} Defendant Jacob Axe appeals his conviction for criminal sexual contact of a minor (under 13). We issued a calendar notice proposing to affirm. Defendant has responded with a timely memorandum in opposition. Not persuaded, we affirm. {2} Defendant continues to challenge the sufficiency of the evidence to support his conviction for criminal sexual contact of a minor (under 13). A sufficiency of the evidence review involves a two-step process. Initially, the evidence is viewed in the light most favorable to the verdict. Then the appellate court must make a legal determination of "whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt." State v. Apodaca, 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and citations omitted). {3} In order to convict Defendant, the evidence had to show that Defendant intentionally touched or applied force to the breast of a child under the age of 13. [RP 83-84] Here, the State presented witness testimony (including Victim's) and videotape evidence that Defendant committed the charged crime. [MIO 1-2] Although Defendant testified [MIO 4] that he did not intentionally touch Victim's breast and that his furtive movements had an innocent explanation, the jury was free to interpret the evidence otherwise. See State v. Wasson, 1998-NMCA-087, ¶ 12, 125 N.M. 656, 964 P.2d 820 (stating that "[a] defendant's knowledge or intent generally presents a question of fact for a jury to decide"); see also State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that the fact-finder is free to reject a defendant's version of events). {4} For the reasons set forth above, we affirm.
{5} IT IS SO ORDEREED.
/s/ _________
MICHAEL E. VIGIL, Judge
WE CONCUR:
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DANIEL J. GALLEGOS, Judge /s/ _________
JENNIFER L. ATTREP, Judge