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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-36384 4 CELINA HOLGUIN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Briana H. Zamora , 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 Josephine H. Ford 14 Albuquerque, NM 15 for Appellant 16

MEMORANDUM OPINION 17 GARCIA, Judge. 182 {1} Defendant appeals from the district c ourt’s judgment in an on-record appeal, 1 affirming the metropolitan court’s sentenci ng order that convicted Defendant for 2 aggravated DWI. We issued a notice of proposed summary disposition, proposing to 3 affirm. Defendant has re sponded to our notice with a memorandum in opposition, 4 which we have duly considered. We remain unpersuaded th at Defendant has 5 demonstrated error. We , therefore, affirm. 6 {2} In her docketing statement, Defendant maintained that the officer lacked 7 reasonable suspicion to stop her and to expand the stop into a DWI investigation. [DS 8 7-8] Our notice proposed to review the unpreserved challenge to the stop under a plain 9 error analysis and proposed to hold that the officer had reasonable suspicion on 10 grounds that differed from the reasoning in the district court’s memorandum opinion. 11 Defendant’s response to our notice does not oppose our proposed disposition; thus, 12 she has abandoned the issue. See State v. Salenas , 1991-NMCA-056, ¶ 2, 112 N.M. 13 268, 814 P.2d 136 (stating that where a party has not responde d to the Court’s 14 proposed disposition of an issue, that issue is deemed abandoned). 15 {3} Defendant’s response pursues only her ch allenge to the expansion of the stop 16 into a DWI investigation. [MIO 1-4] Defendant continues to emphasize pretrial 17 testimony that was not admitted into evidence. [MIO 2] The district court pointed out 18 that the pretrial testimony, therefore, was not a matter of record. [RP 9] Defendant 193 does not state otherwise. “Matters not of record present no issue for review.” State v. 1 Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296; see In re Aaron L., 2000- 2 NMCA-024, ¶ 27, 128 N.M. 641, 996 P.2d 431 (“ This Court will not consider and 3 counsel should not refer to matters not of record in their briefs.”). Like the district 4 court, we will not consider the pretrial testimony. 5 {4} Defendant also relies on conflicts in the evidence—the wavering testimony of 6 Officer Abeyta and the lapel video—which are relevant to the question of whether 7 Officer Abeyta could actually smell alcoholon Defendant. [MIO 3-4] As our notice 8 explained, Defendant’s arguments regarding her characterization of the lapel video 9 and the officer’s statements about his ability to detect an odor of alcohol [DS 3-4, 8] 10 ask us to reweigh the evidence and resolv e potential conflicts in testimony, which is 11 not the role of anappellate court. See State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 12 686, 986 P.2d 482 (recognizing that it is for th e fact-finder to resolve any conflict in 13 the testimony of the witnesse s and to determine where th e weight and credibility lie). 14 We defer to the facts found, including contested facts, where the findings are 15 supported by the evidence, and then determine, de novo, whether they are legally 16 sufficient to support a reasonable suspicion of criminal activity. See State v. Rowell , 17 2008-NMSC-041, ¶ 8, 144 N.M. 371, 188 P.3d 95 (“We review the contested facts in 18 a manner most favorable to the prevailing party and defer to the factual findings of the 194 district court if substantial evidence exists to support those findings.”); State v. Leyva , 1 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861 (“ Our review of a district court’s 2 determination of whether reasonable suspic ion existed is de novo based on the totality 3 of the circumstances.”). 4 {5} Here, the State presented evidence of intoxication, upon which the officer could 5 base a reasonable suspicion of DWI: OfficerAbeyta testified, and the lapel video 6 showed, that he smelled an odor of alcohol on Defendant initially, Defendant 7 staggered, slurred her speech, was sobbing, and had bloodshot, watery eyes. [RP 93] 8 We hold that these circumstances, combin ed also with Officer Abeyta’s knowledge 9 of Defendant’s reported behavior at the apartment building—supplied the officer with 10 reasonable suspicion to investigate the po ssibility that Defendant was impaired by 11 alcohol and was not safe to c ontinue driving. [RP 85, 93] See, e.g. , Schuster v. N.M. 12 Dep’t of Taxation & Revenue , 2012-NMSC-025, ¶ 30, 283 P.3d 288 (holding that the 13 officer had reasonable suspicion to expand what was a community caretaking function 14 into a DWI investigation based on the odor of alcohol from the defendant, the 15 defendant’s bloodshot and watery eyes and admission to drinking two beers). 16 {6} For the reasons stated in our notice and in this opinion, we affirm the district 17 court’s judgment affirming the sentencing order of the metropolitan court. 18 {7} IT IS SO ORDERED. 195 ________________ ________________ 1 TIMOTHY L. GARCIA, Judge 2

WE CONCUR: 3

_______________________________ 4 J. MILES HANISEE, Judge 5

_______________________________ 6 JULIE J. VARGAS, Judge 7