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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 29,639 9 HERMAN BEYALE, 10 Defendant-Appellant. 11
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Thomas J. Hynes, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Allison H. Jaramillo, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 WECHSLER, Judge. 222 Defendant appeals from a district court judgment and sentence for fifth offense 1 DWI. We issued a calendar notice proposi ng to affirm, and Defendant has responded 2 with a memorandum in opposition. We affirm. 3 The sole issue in this case involves a ch allenge to one of four prior driving4 while-intoxicated convictions used to enhance Defendant’s sentence. The State does 5 not have to show proof beyond a reasonabl e doubt of the prior DWI conviction, but 6 instead it must provide a preponderance of the evidence. State v. Anaya , 7 1997-NMSC-010, ¶¶ 11-14, 123 N.M . 14, 933 P.2d 223 (filed 1996); State v. Sedillo , 8 2001-NMCA-001, ¶ 5, 130 N.M. 98, 18 P. 3d 1051 (filed 2000). Procedurally, the 9 state has the initial burden of establishing a prima facie case that there is a prior DWI 10 conviction. See

. Sedillo , 2001-NMCA-001, ¶ 5. The defendant is then entitled to 11 come forward with contrary evidence to rebut the prima facie showing. See id. The 12 state ultimately bears the burden of persuasion. See id. 13 Defendant challenged the use of a 1989 DWI conviction. [DS 1] The State 14 relied on a Farmington municipal court final order, the criminal complaint, a waiver 15 of counsel, and a citation. [DS 1] The di strict court found that the conviction was a 16 valid prior, noting the similarity of the so cial security number, date of birth, and 17 signature. [RP 48] Our calendar notice obs erved that, although Defendant tried to 18 rebut this evidence with evidence that he had worked in California that year and that 19 a family member might have assumed his identity at the time [RP 47-48], the district 203 court, sitting as factfinder, was free to reject this theory. [CN 2] See State v. Sutphin , 1 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (observing that the factfinder is free 2 to reject a defendant’s version of events). We also noted that even if Defendant had 3 been working in California in 1989, this fact is not proof that he was not in 4 Farmington on the date of the DWI. [CN 2] Finally, we observed that, to the extent 5 that Defendant was challenging the validity of the signature, we believe that it satisfies 6 the State’s prima facie burden, and Defendant had to rebut this evidence with 7 something more than a mere assertion that it was invalid. [CN 2-3] See In re Ernesto 8 M., Jr. , 1996-NMCA-039, ¶ 10, 121 N.M. 562, 566, 915 P.2d 318, 322 (“An assertion 9 of prejudice is not a showing of prejudice.”). 10 In his memorandum in opposition, Defendant advocates that we reject the 11 preponderance of the evidence standard and th at we adopt a heightened standard that 12 he believes is more consistent with notions of due pro cess that emanate from recent 13 United States Supreme Court case law in the separate but analogous Sixth Amendment 14 context. [MIO 4-13] As Defendant concedes, however, there is no direct United 15 States Supreme Court authority that supports his position; to the contrary, existing 16 authority by that Court is that the hei ghtened Sixth Amendment protections on which 17 Defendant relies by analogy do not apply to recidivist statutes. [MIO 9] In the 18 absence of any direct authority from thatCourt, [MIO 11] we are bound by the case 19 law of our New MexicoSupreme Court. See Alexander v. Delgado , 84 N.M. 717, 204 718, 507 P.2d 778, 779 (1973). Our Supreme Court has adopted the preponderance 1 of the evidence standard. See State v. Smith , 2000-NMSC-005, ¶ 9, 128 N.M. 588, 2 995 P.2d 1030. To the extent th at Defendant believes that Smithwas wrongly decided 3 [MIO 11], he must address his arguments to our Supreme Court. For the reasons 4 discussed above, we affirm. 5 IT IS SO ORDERED. 6

_______________________________ 7 JAMES J. WECHSLER, Judge 8 WE CONCUR: 9

_______________________________ 10 ROBERT E. ROBLES, Judge 11

_______________________________ 12 LINDA M. VANZI, Judge 13