This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO , 7 Plaintiff-Appellee, 8

v. NO. 31,111 9 HAROLD LEWIS , 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 John A. Dean, District Judge 13 Gary King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Jacqueline L. Cooper, Ac ting Chief Public Defender 17 Carlos Ruiz de la Torre, A ssistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 VIGIL, Judge. 22 Defendant appeals his conviction of third degree criminal sexual penetration. 23 In our notice we proposed to affirm. De fendant has timely responded. We have 24 considered his arguments and affirm. 252 In our notice, we proposed to concludethat Defendant’s statements made to 1 police were admissible as non-hearsay. Rule 11-801(D)(2)(a) NMRA (stating that 2 admissions of a party opponent are not hearsay). We also proposed that if the 3 statements were offered for a purpose other th an the truth of the matter, they were not 4 hearsay. It appeared to us from the tape log of the trial that the two statements were 5 presented to demonstrate that Defendant changed his story, thus suggesting a 6 consciousness of guilt. See State v. Martinez , 1999-NMSC-018, ¶ 30, 127 N.M. 207, 7 979 P.2d 718. For two di fferent reasons, we proposed to conclude that the statements 8 were not hearsay. 9 In his memorandum in opposition, Defendant appears to conflate the two 10 reasons and argues that an admission of a party opponent is not hearsay if it is offered 11 for some other purpose than the truth of the matter. [MIO 5] He then clarifies that the 12 two statements were made at different times and that the second statement that appears 13 to be inconsistent with the first was ex cluded. [MIO 6] While testimony about the 14 second statement was excluded upon Defendant ’s objection prior to trial [RP 93], it 15 appears that the police officer did offer testimony about Defendant’s second statement 16 during cross-examination. [RP 101] 17 Our two proposed reasons for affirming the admission of Defendant’s out-of18 court statements are distinct. Either alone would support the admission of 193 Defendant’s statements made to police duri ng their investigation. First, an out-of1 court statement is not hearsay if “[t]he statement is offere d against a party and is the 2 party’s own statement.” Rule 11-801(D)(2)(a). Here, Defendant’s first statement was 3 recorded and played for the jury. We conc lude that the statements of the Defendant 4 in the recording are admissible as non-hearsay statements of a party opponent. See 5 State v. Johnson , 2010-NMSC-016, 148 N.M. 50, 229 P.3d 523. 6 Second, the two statements made by Defendant have e nough inconsistencies 7 that it appears Defendant gaveconflicting accounts to the po lice. We have held that 8 this suggests a consciousness of guilt. Martinez , 1999-NMSC-018, ¶ 30. Defendant 9 argues that an initial denial and a later “I don’t remember” are not sufficiently 10 inconsistent. We disagree. A denial of any sexual contact is very different from not 11 remembering what happened. 12 Defendant also argues th at because he did not make an incriminating 13 admissions in his first statement, the recording should have been excluded as more 14 prejudicial than probative. It does not appear that he made that argument below. 15 Therefore, we do not address it. See State v. Varela , 1999-NMSC-045, ¶ 25, 128 16 N.M. 454, 993 P.2d 1280 (pointing out that in or der to preserve an issue for appeal, 17 defendant must make a timely objection that apprises the district court of the nature 18 of the claimed error and invokes an intelligent ruling thereon). 194 In our notice, we also proposed to conc lude that the evidence was sufficient to 1 support the conviction. In our notice, werelied on the testimony of the victim who 2 testified that she had been drinking and passed out and when sh e woke up, Defendant 3 was on top of her. [CN 5] There was alsoDNA evidence establishing that the victim’s 4 DNA was present in the sample take n from Defendant. [CN 6] Defendant 5 acknowledges this evidence, but argues thatthe witnesses memories were impaired 6 by alcohol and that DNA evidence can be transferred through other than sexual 7 contact. [MIO 8] As we pointed out in our notice, we review the evidence in the light 8 most favorable to the verdict. We do not reweigh the evidence or substitute our 9 judgment for that of the fact finder. It wa s for the jury here to weigh the conflicting 10 evidence and determine the credibility of the witnesses. The question is whether the 11 decision is supported by substantial evidence not whether a different conclusion could 12 have been reached. In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 13 P.2d 318. We conclude that the evidence was sufficient to support the conviction. 14 15 For the reasons stated herein and inthe notice of proposed disposition, we 16 affirm. 17 IT IS SO ORDERED. 185 _______________________________ 1 MICHAEL E. VIGIL, Judge 2

WE CONCUR: 3

_________________________________ 4 JAMES J. WECHSLER, Judge 5

_________________________________ 6 RODERICK T. KENNEDY, Judge 7