This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. A-1-CA-35021 4 ANDREW MARTINEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Michael E. Martinez, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Charles J. Gutierrez, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Kimberly Chavez Cook, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 BOHNHOFF, Judge. 192 {1} Andrew Martinez (Defendant) appeals the district court’s August 14, 2015, 1 order revoking his probation. The district court revoked Defendant ’s probation based 2 on fingerprint and other evidence that hehad robbed a 90-year-old woman by getting 3 into her vehicle and demanding that she hand over her credit cards, keys, and cell 4 phone. On appeal, Defendant argues that (1 ) the fingerprint evidence from Victim’s 5 vehicle was unreliable and that the distri ct court erred in concluding that the 6 fingerprints were Defendant’s; and (2) ev en if the fingerprints were Defendant’s, 7 viewed in the context of other evidence, th ey do not establish to a reasonable certainty 8 that he was involved in the robbery. This is a memorandum opinion and because the 9 parties are familiar with the facts and proce dural posture of the case, we set forth only 10 such facts and law as are necessary to d ecide the issues raised. For the following 11 reasons, we affirm. 12 BACKGROUND 13 {2} In 2009 a grand jury indicted Defendant for six offenses, including armed 14 robbery. Defendant ultimately entered into a plea and disposition agreement, pleading 15 guilty to the armed robbery and conspiracyto commit armed robbery. He also pleaded 16 guilty to three other separaterobberies and two related conspiracy to commit robbery 17 charges. The district court sentenced Defendant to eighteen years incarceration, 18 suspending all but five years and placi ng Defendant on five years of probation 193 following his release. Upon release, Defendant violated his probation three times and 1 was given probation sanctions of conti nued probation for testing positive for and 2 admitted use of THC and cocaine. 3 {3} On October 22, 2014, the State filed a motion to revoke Defendant’s probation, 4 alleging a violation of the standard condition of probati on requiring Defendant not to 5 violate state law. The State alleged that on June 7, 2014, Defendant and an accomplice 6 had robbed a woman who was sitting in her vehicle in the driveway of her home. 7 {4} On January 29, 2015, the di strict court held a probation violation hearing. 8 Victim testified on direct examination that she did not see the face of the robber who 9 entered her vehicle. On cross-examination, Victim testified that the robber entered her 10 vehicle through the rear driver’s side door and Defense counsel asked Victim whether, 11 during her initial interview following the robbery, she had stated that the robber had 12 entered the vehicle from the pa ssenger side door. Victim tes tified again that the robber 13 entered into the vehicle from the door directly behind her. 14 {5} The prosecutor then called Officer Neiberger, a field investigator with the crime 15 lab for the Albuquerque Police Department who collected the fingerprints off of 16 Victim’s vehicle. Officer Neiberger testifie d that as part of his duties he regularly 17 collected latent fingerprints from crime scenes. Hestated that he had been collecting 18 fingerprints nearly every day for the past five years. Officer Neiberger lifted 194 fingerprints off the exterior of the rear pa ssenger side exterior door handle, the interior 1 rear passenger side window, and a support column between the passenger side doors. 2 {6} The prosecutor then called Officer Jamie Mueller, a latent print examiner with 3 the Albuquerque Police Department. Officer Mueller was qualified by the court as an 4 expert in latent fingerprint examination without objection. On direct examination, 5 Officer Mueller testified that he has comp ared known prints to latent prints hundreds 6 of times. He testified that he enters th e latent print in the Automated Fingerprint 7 Identification System (AFIS), which plots mi nutia points on the late nt print, which he 8 then verifies by his own physical inspection. After verifying, he then has the system 9 do a search and it provides “applicants,” know n prints that are similar to the unknown 10 latent prints. He further testified that it is up to him to determine by his own 11 comparison if any of the “app licants” is a match to the latent print. Officer Mueller 12 then stated that after entering the latent prints from the scene of the robbery into the 13 system, he had an AFIS “hit,” otherwise know n as a ten print card. Officer Mueller 14 was then able to match four different latent prints to four fingers on the ten-print card; 15 the fingerprints on the ten-print card belonge d to Andrew Martinez. He testified that 16 he was one hundred percent certain that it was a match, and that, if he felt that he was 17 not certain, then he would not have called it an identification. 185 {7} On cross-examination, defense counsel established that Officer Mueller did not 1 lift the prints himself or vi sit the crime scene, and lacked observation of the surfaces 2 that the prints were lifted from. Defense counsel further established that AFIS assigns 3 a score between zero to ten thousand based on similarities between the latent print and 4 the known print. In this case, the top tw o scores were 2,585 and 2,555, which were 5 different individuals. Officer Mueller examin ed the prints that scored 2,585 with a 6 magnifying glass and a comparator (lighted magnification which reflects on a screen 7 providing a side-by-side comparison of the latent print and the known print) and had 8 a clear match, but did not examine the prin ts that scored 2,555. Officer Mueller then 9 testified that once he completed his report another qualified examiner reviewed his 10 results. Defense counsel then questioned O fficer Mueller about studies that question 11 the science underlying fingerprinting. Defens e counsel discussed a scientific report 12 that addressed whether human judgment is s ubject to different types of bias, asking 13 Officer Mueller if it would surprise him to learn that the report found evidence that 14 fingerprint examiners are subject to bias, to which Officer Mueller responded that he 15 has read multiple research papers on the s ubject matter. Defense counsel then asked, 16 “[Y]our position is that when you have actually made an identification you can claim 17 [one hundred] percent accuracy ?” Officer Mueller responded that he could make that 18 claim and that he disagrees with scientif ic reports that claim one hundred percent 191 Defense counsel never offered any evidence or provided an explanation as to 18 the scoring system and significance of the numbers on the ten thousand point scale. 19 6 accuracy is not scientifically plausible. “Just because they publish it doesn’t mean I 1 have to agree with them.” 2 {8} In closing, the prosecutor argued that th ere could be no dispute that the prints 3 lifted from the robbed vehicle belong to Defendant. The prosecutor contended that 4 defense counsel’s arguments—that fingerprint identifications are unreliable and that 5 Officer Mueller was biased—lacked merit. The prosecutor urged, “[t]here is no reason 6 why [Defendant’s] prints should be anywhere near [Victim’s] car.” Defense counsel 7 then argued that there were inconsistenc ies based on Victim’s testimony that the 8 robber entered on the rear driver’s side of the vehicle, but the fingerprints of 9 Defendant were lifted from the rear pa ssenger side of the door. Defense counsel 10 further argued that Defendant’s print matc h was only twenty-five percent considering 11 he had a score of 2,585 out of 10,000. 1 12 {9} The district court ruled that the expert testified that the prints from the car were 13 in fact Defendant’s prints and that, notwithstanding defense counsel’s cross14 examination about the validity of fingerp rints, the court believed it was a valid 15 method. The court further stated that De fendant’s prints had no business being in 16 Victim’s vehicle and that they tied him to the robbery; thus, he violated his probation. 177 DISCUSSION 1 {10} At a probation revocation hearing, the State must establish a violation of the 2 terms of probation with reasonable certainty. State v. Sanchez , 2001-NMCA-060, 3 ¶ 13, 130 N.M. 602, 28 P.3d 1143. To satisfy this burden, the State is required to 4 introduce proof that would incline “a reas onable and impartial mind” to believe that 5 the defendant violated the terms of probation. Id . (internal quotation marks and 6 citation omitted). “The proof of a violation of a condition of probation need not be 7 established beyond a reasonable doubt.” State v. Martinez , 1989-NMCA-036, ¶ 4, 108 8 N.M. 604, 775 P.2d 1321. On appeal, we review the district court’s decision to revoke 9 probation for an abuse of discretion. Id . ¶ 5. To establish an abuse of discretion, it 10 must appear that the districtcourt acted unfairly, arbitrarily, or in manifest error. Id

. 11 In reviewing the sufficiency of the evid ence to support a probation violation, this 12 Court reviews “the evidence in the light mo st favorable to the [State], indulging all 13 reasonable inferences and resolving all c onflicts to uphold the [district] court’s 14 decision.” In re Bruno R ., 2003-NMCA-057, ¶ 9, 133 N.M. 566, 66 P.3d 339. 15 A. The District Court Did Not Abus e Its Discretion in Relying on the 16 Fingerprint Evidence and Officer Mue ller’s Expert Opinion That the 17 Fingerprints on the Vehicle Belonged to Defendant 18 {11} Defendant asks this Court to reverse the district court’s finding that Officer 19 Mueller’s testimony was validand reliable. Significantly , however, Defendant does 208 not assert that the expert’s testimony wa s inadmissible. Thus, Defendant’s argument 1 is directed solely to whether the distri ct court should have believed the expert’s 2 opinion that the latent fingerprints at issue were produced by Defendant. Defendant 3 essentially argues that the district court should not have believed this testimony 4 because Officer Mueller tested only the top-scored fingerprints and not the other 5 “applicant” fingerprints and he was biasedin that he knew that the top-scored 6 fingerprints belonged to Defendant. 7 {12} Determination of the credibility of witnesses, however, is the province of the 8 trier of fact. See Evans v. N.M. Taxation & Revenue Dep’t , 1996-NMCA-080, ¶ 9, 122 9 N.M. 216, 922 P.2d 1212 (noting that “[a] long line of New Mexico cases reserves the 10 determination of witness credibility to the fact[-]finder”). We do not reweigh the 11 evidence and instead “defer to the distri ct court when it weighs the credibility of 12 witnesses and resolves conf licts in witness testimony.” State v. Salas , 13 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482; see State v. Griffin , 14 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156. 15 {13} Once Officer Mueller’s opinion was admitte d into evidence, the district court 16 was free to give the opinion whatever wei ght it saw fit and coul d reject Defendant’s 17 arguments. There is no indication in the recordthat the district court wholly refused 18 to consider defense counsel’s extensive cross-examination on these points. Defense 199 counsel could have presente d a rebuttal fingerprint expert but did not. It was the 1 district court’s role to decide whether O fficer Mueller’s opinion was correct or biased 2 and to evaluate the strength of his conclu sions; we will not disturb that decision. 3 {14} In sum, because it is the role of the district court and not this Court to determine 4 the weight and credibility to be accorded testimony received into evidence, we affirm 5 the court’s determination of the validity, and acceptance of, the fingerprint 6 identification. 7 B. The District Court Did Not Abus e Its Discretion in Ruling That the 8 Fingerprint and Other Evidence Esta blished With Reasonable Certainty 9 That Defendant Was Involved in the Robbery 10 {15} Defendant asserts that the evidencedoes not establish beyond a reasonable 11 certainty that Defendant was involved in the robbery, relying upon the inconsistency 12 between the forensic evidence and the testimony of Victim. Victim testified that two 13 men were involved in the robbery, that oneof the men approached her car from the 14 passenger side but never got into the car, and that the other approached from the driver 15 side and got into the car using the rear door on that side of the car. The witness 16 testified that she saw the man on the passenger side of her car, but did not see the man 17 who got into her car from the driver’s side . She also testified that Defendant was not 18 the man she saw on the passenger side of her car. The latent fingerprints that were 19 matched to Defendant, however , were found on the passenger si de of the car: one print 2010 or set of prints was taken from the interi or surface of the rear passenger side window, 1 another was taken from the exterior handl e of the rear passenger side door, and 2 another from the support column behind the passenger door. De fendant argues from 3 these facts that he cannot havebeen either of the partic ipants in the robbery because 4 the witness testified that he was not the person she saw on the pa ssenger side of the 5 car, which is the side of the car where his fingerprints were found. 6 {16} As noted earlier, proof of a probation vi olation need not be established beyond 7 a reasonable doubt. Martinez , 1989-NMCA-036, ¶ 4. Instead, the violation must be 8 established with a reasonable certainty, su ch that a reasonable and impartial mind 9 would believe that the defendant violated the terms of probation. Sanchez , 2001- 10 NMCA-060, ¶ 13. Ultimately, the question be fore this Court is whether the evidence 11 presented was sufficient to convince a reasonable and impartial mind that Defendant 12 participated in the robbery. Fundamentally , and as the district court noted below, 13 Defendant’s fingerprints “had no business being in the car[.]” In addition, Victim did 14 not testify which door the robber used to exit the vehicle, or to re-enter the vehicle to 15 take Victim’s cell phone and then re-exit. She testified only about which side the 16 robber initially entered the vehicle. Moreover, the district court could have discounted 17 Victim’s testimony about which side of the vehicle the robber used to initially enter 18 the car based on the fact that she was frightened at the time of the robbery. Thus, 1911 Victim’s testimony that the robber initially entered the car on the left side did not 1 necessarily negate a scenario that w ould explain the presence of Defendant’s 2 fingerprints on the interior and exterior sides of the right rear door of Victim’s car. 3 {17} The evidence presented was reliable and su fficient to support the district court’s 4 revocation of Defendant’s probation, as a reasonable mind could decide that 5 Defendant violated the terms of his probation by participating in a robbery. See 6 Sanchez , 2001-NMCA-060, ¶ 13. Under these circ umstances, the district court did not 7 abuse its discretion in concluding thatDefendant had violated his probation. 8 CONCLUSION 9 {18} For the foregoing reasons we affirm the district court’s order revoking 10 Defendant’s probation. 11 {19} IT IS SO ORDERED. 12

______________________________ 13 HENRY M. BOHNHOFF, Judge 14 WE CONCUR: 15

___________________________________ 16 EMIL J. KIEHNE, Judge 17

___________________________________ 18 DANIEL J. GALLEGOS, Judge 19