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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. A-1-CA-37547 4 MARTIN VENTURA-MENDOZA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Stanley Whitaker, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Santa Fe, NM 13 Steven J. Forsberg, Assistant Public Defender 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 18 {1} Defendant Martin Ventura-Mendoza, appeals his conviction for driving while 192 under the influence of an intoxicating liquor(DWI). We issued a notice of proposed 1 summary disposition proposing to affirm, and Defendant has res ponded with a timely 2 memorandum in opposition. We have considered Defendant ’s arguments and remain 3 unpersuaded that our initial proposed dispos ition was incorrect. We therefore affirm. 4 {2} We have already outlined the procedural and factual background in our notice 5 of proposed summary disposition, and Defendant indicates in his memorandum in 6 opposition that he does not take issue with th e district court’s recitation of the facts 7 or this Court’s reliance on the district court’ s recitation. Therefore, in order to avoid 8 unnecessary repetition, we will focus in stead on the contents of Defendant’s 9 memorandum in opposition, discussing only su ch facts as are relevant to his 10 arguments. 11 {3} In our notice of proposed summary dis position, this Court proposed to adopt 12 the district court’s memorandum opinion and its analysis regarding the sufficiency of 13 the evidence. In his memorandum in opposition, Defendant argues that the district 14 court’s attempt to distinguish this case from State v. Cotton , 2011-NMCA-096, 150 15 N.M. 583, 263 P.3d 925, is misplaced and that Cotton is directly on point. [MIO 2] 16 We disagree. In Cotton , police encountered the defendant in the driver’s seat of a van 17 parked on a roadside. The defendant admitte d that he had consumed a beer recently, 18 and was placed under arrest after failing FSTs and refusing to submit to chemical 193 testing. On appeal, this Court held that the evidence was insufficient to convict the 1 defendant of DWI because there was no eviden ce as to the time of driving, so there 2 was no evidence to show that the driving and impairment overlapped. Accordingly, 3 we held that, although it would have been reasonable for the jury to conclude that the 4 defendant drove to the place where he was arrested, there was insufficient evidence 5 to allow the jury to conclude that the defendant had been impaired by alcohol at the 6 time. Id . ¶¶ 14-15. 7 {4} Here, in contrast, Defendantadmitted to drinking alcoholbefore he drove to the 8 location where he was found by Deputy Carhart. When Deputy Carhart encountered 9 Defendant, he found Defendant asleep in the vehicle with what appeared to be vomit 10 on his shirt. Defendant had bloodshot watery eyes, an odor of alcohol, and he refused 11 to submit to field sobriety tests (FSTs) . Additionally, a breath card was introduced 12 into evidence that showed Defendant had a blood alcohol content of 0.27. [RP 84-90] 13 We are of the opinion that this evidence was sufficient to permit the jury to infer that 14 Defendant was impaired to the slightest degree when he drove the vehicle. See State 15 v. Mailman , 2010-NMSC-036, ¶¶ 2-5, 24, 148 N.M. 702, 242 P.3d 269 (observing 16 that there was sufficient circumstantial evidence to support a conviction for past 17 driving while impaired to the slightest degree based on the defendant’s presence 18 behind the wheel of a parked vehicle, admissions to having driven and having 194 consumed alcohol, refusal either to perform field sobriety tests or to provide a breath 1 sample, the presence of an open can of beer in the vehicle, and a variety of indicia of 2 intoxication including odor of alcohol, disorientation and confusion, difficulty 3 maintaining balance, and bloodshot, watery eyes). 4 {5} We understand Defendant to argue that, despite evidence that Defendant drank 5 alcohol before he drove, the evidence was in sufficient to show that Defendant was 6 impaired by alcohol at that time. However, the evidence described above, including 7 Defendant’s admission to drinking beer and tequila, coupled with his BAC level and 8 the evidence that Defendant did not drink any alcohol after he arrived at the location 9 because Deputy Carhart saw no evidence of al cohol containers in the vehicle or the 10 immediate area, a jury could infer that Defendant was impaired to the slightest degree 11 when he drove the vehicle. See id. ¶¶ 24-28 (recognizing that the fact-finder may 12 infer that the accused drove while intoxi cated based on circumstantial evidence that 13 includes “the accused’s own admissions, the location of the vehicle next to the 14 highway, or any other similar evidence th at tends to prove that the accused drove 15 while intoxicated”). 16 {6} Finally, Defendant argues that disbelief about his claim that he only drank one 17 beer before driving cannot substitute for affirmative proof. [MIO 2-3] The evidence 18 described above, however, constitutes suffi cient affirmative proof which is not 195 dependent on belief or disbe lief of Defendant’s claim that he drank only one beer 1 before driving. Additionally, the fact -finder was not require d to accept Defendant’s 2 story as to when he consumed the alcohol he admitted to drinking in the face of the 3 contradictory evidence showing that he did not drink the alcohol after he drove the 4

car. See State v. Delgado , 2010-NMCA-078, ¶ 6, 148 N.M . 870, 242 P.3d 437 (“It is 5 for the jury to resolve the conflicts in the evidence.”); see also State v. Stefani , 6 2006-NMCA-073, ¶ 39, 139 N.M. 719, 137 P.3d 659 (noting that the jury is free to 7 reject the defendant’s theory of the case). 8 CONCLUSION 9 {7} For these reasons, we affirm Defendant’s conviction. 10 {8} IT IS SO ORDERED. 11

_______________________________ 12 LINDA M. VANZI, Chief Judge 13 WE CONCUR: 14

_________________________________ 15 JULIE J. VARGAS, Judge 16

_________________________________ 17 JENNIFER L. ATTREP, Judge 18