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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. 33,995 4 RENE LUJAN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Darren M. Kugler, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Law Offices of the Public Defender 12 Jorge A. Alvarado, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Judge. 182 {1} Defendant appeals his jury conviction for criminal sexual contact of a minor 1 (CSCM) in the fourth degree. [DS 1-2] Our notice proposed to affirm. In response, 2 Defendant filed a memorandum in opposition. We remain unpersuaded by 3 Defendant’s arguments and therefore affirm. 4
{2} Defendant raises two issues on appeal. Fi rst, Defendant argues that the district 5 court erred by instructing the jury on unlawfulness with the alternative “with the intent 6 to arouse or gratify sexual de sire.” [DS 4; MIO 4] Second, Defendant argues that there 7 was insufficient evidence presented to support his conviction for CSCM

. [DS 5; MIO 8 8] 9
{3} First, Defendant continues to argue that the district court erred by denying his 10 request to instruct the jury on the el ement of unlawfulness using the bracketed 11 language “with the intent to arouse or gr atify sexual desire” instead of “to intrude 12 upon the bodily integrity or personal safety of [V]ictim.” [MIO 4-8; DS 2] See UJI 14- 13 132 NMRA. As given to the jury, the unlawfulness instruction read: 14 In addition to the other elements of criminal sexual contact of a minor, 15 the state must prove beyond a r easonable doubt that the act was 16 unlawful. For the act to have beenunlawful it must have been done to 17 intrude upon the bodily integrity or personal safety of [Victim]. Criminal 18 sexual contact of a minor does not include a touching for purposes of 19 nonabusive parental care. 20 21 [MIO 3; RP 158] 223 {4} Our notice observed that Defendant’s theo ry of the case was that he accidentally 1 touched Victim in the course of searching for his daughter in the dark and, therefore, 2 Defendant lacked unlawful intent. [CN 3] We observed that evidence was presented 3 that Defendant felt Victim’s bra strap and touched her underwear, and relying upon 4 State v. Gardner , we noted that this “reasonably gaverise to the inference that [the 5 d]efendant either sought sexual arousal or that he meant to violate the victims’ bodily 6 integrity.” 2003-NMCA-107, ¶ 24, 134 N.M. 294, 76 P.3d 47. [CN 4-5] We further 7 observed that, under the facts of this case, it was irrelevant whether Defendant touched 8 Victim with the intent to ar ouse or gratify sexual desire. See id. (“A defendant who 9 unlawfully and intentionally touches an in timate part of a minor’s body is guilty of 10 criminal sexual contact of a minor, regard less of whether the defendant was motivated 11 by a desire to obtain sexual gratificati on or by some other desire.”). [CN 4-5] 12
{5} In response to our notice, Defendant continues to assert that the State’s theory 13 of the case was that Defendant knew thatthe person he was touching was not his 14 daughter and he touched Victim in a sexualized way. [MIO 2] Defendant further 15 argues that Gardner is inapplicable to the facts of this case because “the theory of 16 defense was that [Defendant] intentionally touched [Victim], belie ving her to be his 17 daughter, but not with an unlawful purpose.” [MIO 7] Defendant asserts, therefore, 18 that “[t]his directly rebutted the State’s theory that [Defendant] was sexually 194 motivated to touch [Victim].” [MIO 7] Inturn, Defendant contends that the only 1 applicable alternative in the unlawfulness instruction was the phrase “[f]or the act to 2 have been unlawful it must have been done w ith the intent to arouse or gratify sexual 3 desire.” [MIO 3, 7] 4
{6} However, Defendant does not provide any authority for the proposition that 5 Defendant’s conduct of touching Victim’s bottom, underwear, and bra strap did not 6 intrude upon Victim’s personal safety or bodily integrity. For the same reasons 7 provided in our notice, we hold that the evidence presented supported the instruction 8 given. See Gardner , 2003-NMCA-107, ¶ 24 (holding th at where there was evidence 9 presented at trial that [the d]efendant touched the breasts and buttocks of the victims, 10 this “reasonably gave rise to the inferen ce that Defendant either sought sexual arousal 11 or that he meant to violate the victims’ bodily integrity). Because we conclude that the 12 evidence supported this alternative instructi on, it operated to Defe ndant’s benefit that 13 both alternatives were not given because the jury could have convicted Defendant 14 under either theory. Cf. State v. Nichols , 2006-NMCA-017, ¶ 16, 139 N.M. 72, 128 15 P.3d 500 (explaining that where the jury is instructed on two distinct theories upon 16 which a conviction is possible, the relevant inquiry is whether the jury unanimously 17 agreed to convict the defendant, and not whether the jury agreed upon a single theory 18 of conviction). 195 {7} With respect to Issue II, Defendant’s account of the evidence does not 1 contradict the facts upon which our notice proposed to rely. Further, Defendant’s 2 memorandum in opposition does not assert any new factual or legal argument that 3 persuades this Court that our notice was in correct regarding the sufficiency of the 4 evidence. Defendant’s memorandum in opposition asserts that “[t]he evidence showed 5 only that [Defendant] touched [Victim] becausehe mistakenly belie ved her to be his 6 daughter whom he was attempting to wake. There is absolutely no evidence in this 7 cause that supports an intention to intrudeon the bodily integrity or personal safety 8 of anyone.” [MIO 10-11] Howe ver, as discussed above, the evidence that Defendant 9 touched Victim’s bottom, underwear, and bra strap supports a jury finding that 10 Defendant intruded upon Victim’s bodily integrity or personal safety. 11
{8} We acknowledge that Defendant continues to assert that his defense was that 12 he “mistakenly believed hewas waking up his four-year[-]old daughter when he 13 touched [Victim].” [MIO 10] As observed inour proposed notice, the jury was given 14 a mistake of fact instruction. [CN 4; RP 159] The jury necessarily rejected 15 Defendant’s theory of the case that he t ouched Victim believing Victim to be his 16 daughter, which the jury was free to do. See State v. Rojo , 1999-NMSC-001, ¶ 19, 126 17 N.M. 438, 971 P.2d 829 (explaining that “the juryis free to reject[the d]efendant’s 18 version of the facts”); State v. Salazar , 1997-NMSC-044, ¶ 44, 123 N.M. 778, 945 19 P.2d 996 (holding that it is the fact-finder’s prerogative to reject the defendant’s 206 version of the event). Viewi ng the evidence in the light most favorable to the verdict 1 and for the reasons detailed in our notice, we hold that sufficient evidence supports 2 Defendant’s conviction. See State v. Sparks , 1985-NMCA-004, ¶ 6, 102 N.M. 317, 3 694 P.2d 1382 (defining substantial evidence as evidence that a reasonable person 4 would consider adequate to s upport a defendant’s conviction). 5
{9} To conclude, for the reasons detailed in our notice and discussed above, we 6 affirm. 7
{10} IT IS SO ORDERED. 8

__________________________________ 9 LINDA M. VANZI, Judge 10 WE CONCUR: 11

_________________________________ 12 MICHAEL D. BUSTAMANTE, Judge 13

_________________________________ 14 M. MONICA ZAMORA, Judge 15