Opinion
NO. 34,384
06-24-2015
STATE OF NEW MEXICO, Plaintiff-Appellee, v. ANDREW FRAZIER, Defendant-Appellant.
Hector H. Balderas, Attorney General Santa Fe, NM for Appellee Jorge A. Alvarado, Chief Public Defender Sergio J. Viscoli, 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 BERNALILLO COUNTY
Benjamin Chavez, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
for Appellee Jorge A. Alvarado, Chief Public Defender
Sergio J. Viscoli, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
GARCIA, Judge. {1} Defendant Andrew Frazier appeals from the district court's affirmance of his conviction for aggravated DWI (refusal), contrary to NMSA 1978, § 66-8-102(D)(3) (2010). Unpersuaded by Defendant's docketing statement, we issued a notice of proposed summary disposition, proposing to affirm. Defendant has filed a memorandum in opposition to our notice. We remain unpersuaded and therefore affirm. {2} Defendant challenges the sufficiency of the evidence to support his convictions. [DS 12; MIO 11-14] In our notice, we indicated that the district court's memorandum opinion, which addressed the same issues raised in this appeal, thoroughly detailed the relevant facts, correctly set forth the applicable standards of review and relevant law, and proposed to adopt portions of the district court's opinion. Persuaded that the district court's opinion was correct, we directed Defendant to demonstrate why the district court's opinion and our reliance on it was incorrect if he wanted this Court to reach conclusions that differed from those reached by the district court. We also directed Defendant to State v. Cotton, 2011-NMCA-096, ¶¶ 14-15, 150 N.M. 583, 263 P.3d 925, and explained why we believed that it was distinguishable from the present case and why it supported our proposed conclusion that there was sufficient evidence to support Defendant's conviction. We further instructed Defendant to address Cotton and its applicability to this case in any memorandum in opposition. {3} In response, Defendant reiterates the same arguments that he articulated in his docketing statement and in his statement of issues, [RP 57-68; MIO 2-14] which was considered by the district court below and by this Court prior to issuing our notice. Specifically, Defendant continues to assert that there was insufficient evidence to support his conviction because "[t]here were no driving clues indicating impairment" [MIO 13] and because Defendant's "dementia casts doubt on his admission that he drank [shortly] after 4:00 p.m." [MIO 7, 14] We are not persuaded by Defendant's arguments. These assertions were fully addressed by the district court's opinion and by this Court's proposed disposition, and Defendant has not presented any authority or argument that convinces this Court that our proposed disposition or our reliance on the district court's opinion was incorrect. See State v. Ibarra, 1993-NMCA-040, ¶ 11, 116 N.M. 486, 864 P.2d 302 ("A party opposing summary disposition is required to come forward and specifically point out errors in fact and/or law."). Accordingly, we conclude that there was sufficient evidence to support Defendant's conviction for the reasons set forth in the district court's opinion and in our proposed disposition. {4} Based on the foregoing, we affirm.
{5} IT IS SO ORDERED.
/s/_________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
/s/_________
MICHAEL E. VIGIL, Chief Judge
/s/_________
MICHAEL D. BUSTAMANTE, Judge