1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see

2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please

3 also note that this electronic memorandum opinion may contain computer-generated errors or other

4 deviations from the official paper version filed by the Court of Appeals and does not include the

5 filing date. 

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 29,007

10 JOE MICHAEL VILLALBA,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

13 Mike Murphy, District Judge

14 Gary K. King, Attorney General 

15 Margaret E. McLean, Assistant Attorney General

16 Santa Fe, NM

17 for Appellee

18 The Law Offices of Nancy L. Simmons, P.C.

19 Nancy L. Simmons 

20 Albuquerque, NM

21 for Appellant

22 MEMORANDUM OPINION

23 BUSTAMANTE, Judge.

24 Defendant appeals from his convictions for driving while intoxicated, driving

25 with a suspended or revoked license, and failure to maintain a traffic lane. In this
2

1 Court’s notice of proposed summary disposition, we proposed to affirm. Defendant

2 has filed a memorandum in opposition. We have considered Defendant’s arguments,

3 and as we are not persuaded by them, we affirm. 

4 Defendant contends that there was insufficient evidence to support his

5 convictions because there was evidence presented at trial that it was his girlfriend, and

6 not he, who was driving. In reviewing the sufficiency of the evidence, we must view

7 the evidence in the “light most favorable to the guilty verdict, indulging all reasonable

8 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.

9 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “[T]he relevant

10 question is whether, after viewing the evidence in the light most favorable to the

11 prosecution, any rational trier of fact could have found the essential elements of the

12 crime beyond a reasonable doubt.” State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862,

13 867 (1992) (internal quotation marks and citation omitted). “The reviewing court

14 does not weigh the evidence or substitute its judgment for that of the fact finder as

15 long as there is sufficient evidence to support the verdict.” State v. Mora,

16 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. 

17 Defendant asserts that there was insufficient evidence to support his convictions

18 because the police officer’s video of the traffic stop showed Defendant’s girlfriend in

19 the driver’s seat, suggesting that she, rather than Defendant had been driving the
3

1 vehicle. [DS 1-2] In our notice of proposed summary disposition, we proposed to

2 affirm because the officer testified that he saw Defendant and his girlfriend switching

3 seats as the vehicle was being stopped, even though the video did not capture

4 Defendant and his girlfriend switching seats. [DS 2] We stated that although

5 Defendant asserted that the officer could not have seen Defendant changing seats, it

6 was for the jury to evaluate the officer’s credibility and to resolve any potential

7 conflict between the officer’s testimony and the videotape. See State v.

8 Ortiz-Burciaga, 1999-NMCA-146, ¶ 22, 128 N.M. 382, 993 P.2d 96 (stating that it

9 is the “exclusive province of the jury to resolve factual inconsistencies” in the

10 evidence presented at trial (internal quotation marks omitted)); State v. Sosa,

11 2000-NMSC-036, ¶ 8, 129 N.M. 767, 14 P.3d 32 (observing that the “credibility of

12 witnesses is for the jury” to decide). Therefore, we proposed to conclude that a

13 reasonable juror could have concluded that the video evidence simply did not show

14 everything that occurred, either because the video recorder was turned on after

15 Defendant and his girlfriend switched seats, or because the switch was not visible on

16 the video.

17 In Defendant’s memorandum in opposition, he asserts that this Court should

18 assign the case to the general calendar in order to review the videotape and determine

19 whether the officer’s testimony was credible in light of what the videotape shows.
4

1 Defendant’s argument essentially asks this Court to re-weigh the evidence, which is

2 not our function on appeal. The officer testified that he saw Defendant switching from

3 the driver’s seat to the passenger’s seat, and this evidence was sufficient to support a

4 conclusion that Defendant was driving. Accordingly, we conclude that Defendant’s

5 arguments do not warrant assignment to the general calendar. 

6 Therefore, for the reasons stated in this opinion and in the notice of proposed

7 summary disposition, we affirm. 

8 IT IS SO ORDERED.

9 

10 MICHAEL D. BUSTAMANTE, Judge

11 WE CONCUR:

12 

13 JAMES J. WECHSLER, Judge 

14 

15 ROBERT E. ROBLES, Judge