This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 33,796 4 MONICA GARCIA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Christina P. Argyres, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Law Offices of the Public Defender 12 Jorge A. Alvarado, Chief Public Defender 13 Santa Fe, NM 14 Josephine H. Ford, Assist ant Appellate Defender 15 Albuquerque, NM 16 for Appellant 17 MEMORANDUM OPINION 18 SUTIN, Judge. 192 {1} Defendant appeals from an on-the-record district court judgment affirming her 1 driving while intoxicated (DWI) conviction. We issued a calendar notice proposing 2 to affirm. Defendant has responded witha memorandum in opposition. We affirm. 3
{2} Defendant continues to argue that th e evidence was insufficient to support her 4 conviction. [MIO 9] A sufficiency of the evidence review involves a two-step 5 process. Initially, the evidence is viewed inthe light most favorable to the verdict. 6 Then the appellate court must make a legal determination of “whether the evidence 7 viewed in this manner could justify a fi nding by any rational trier of fact that each 8 element of the crime charged has been established beyond a reasonable doubt.” State 9 v. Apodaca , 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation 10 marks and citation omitted). 11
{3} In order to convict Defendant of DWI, the evidence had to show that Defendant 12 was under the influence of intoxicating liquor while operating a motor vehicle and that 13 this affected her ability to operate the vehicle to at least the slightest degree. NMSA 14 1978, § 66-8-102(A) (2010); UJI 14-4501 NMRA. Here, Defendant is specifically 15 challenging evidence with respect to the “ operating a motor vehicle” element. [MIO 16 9] Both Defendant and a passenger in th e vehicle testified that Defendant did not 17 drive the car, but instead jumped into the driver’s seat after the vehicle had come to 18 a stop. [MIO 4-8] However, the judge, sitting as fact-finder in this bench trial, 19 specifically rejected the cred ibility of this testimony. See State v. Sutphin , 1988- 20 NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 ( noting that the fact-finder is free to 213 reject a defendant’s version of events). Instead, the judge relied on the officer’s 1 testimony that indicated that Defendant wa s driving the vehicle, namely, that he 2 observed her through the driver’s side windowand that she was in the driver’s seat 3 with the vehicle running when the vehicl e was stopped by the officer. [DS 3] See 4 generally State v. Mailman , 2010-NMSC-036, ¶¶ 23, 28, 148 N.M. 702, 242 P.3d 269 5 (observing that direct evidence is not required to support a conviction for DWI and 6 noting that circumstantial evidence may be relied upon to establish that the accused 7 actually drove while intoxicated). Although Defendant continues to argue that her 8 testimony should have been believed, the fact-finder was free to reject Defendant’s 9 version of events. See Sutphin , 1988-NMSC-031, ¶ 21. 10
{4} For the foregoing reasons, we affirm. 11
{5} IT IS SO ORDERED. 12

__________________________________ 13 JONATHAN B. SUTIN, Judge 14

WE CONCUR: 15

___________________________________ 16 MICHAEL D. BUSTAMANTE, Judge 17

___________________________________ 18 J. MILES HANISEE, Judge 19