This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 file d 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. 31,573 4 MARIO P. LOPEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 Charles C. Currier, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline Cooper, Ch ief Public Defender 12 Carlos Ruiz de la Torre, A ssistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 BUSTAMANTE, Judge. 172 Defendant appeals his c onviction for driving-while-intoxicated (DWI) (fifth 1 offense). We issued a calendar notice pr oposing to affirm. De fendant has responded 2 with a memorandum in opposition. Not persuaded, we affirm. 3 Initially, we note that Defendant has reor dered the issues being raised. For 4 purposes of consistency, weaddress each issue as designated in the docketing 5 statement and our calendar notice. 6 Issue 1: Defendant continues to challenge the sufficiency of the evidence to support 7 his conviction for DWI. [MIO 6] A sufficienc y of the evidence review involves a 8 two-step process. Initially, th e evidence is viewed in the light most favorable to the 9 verdict. The appellate court must makea legal determination of “whether the 10 evidence viewed in this manner could justif y a finding by any rational trier of fact that 11 each element of the crime charged has been established beyond a reasonable doubt.” 12 State v. Apodaca , 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation 13 marks and citation omitted). 14 In order to support his conviction, th e evidence had to show that Defendant 15 drove a vehicle under the influence of intoxicating liquor. [RP 98] See NMSA 1978, 16 § 66-8-102(A) (2010). Here, Deputy Sheriff Thomas Hardy observed Defendant’s 17 vehicle swerving out of his lane at approxi mately 1:00 a.m. [MIO 1] Defendant was 18 stopped and he admitted thathe had been drinking. [MIO 2] Defendant performed 193 poorly on the field sobriety tests. [DS 2] Two breath tests wereconducted, indicating 1 a BAC of 0.18 on both tests. [DS 2] Based on this evidence, we conclude that there 2 was sufficient evidence presented to support Defendant’s conviction. 3 Issue 2: Defendant continues to ar gue that it was error for th e district court to permit 4 reference to the “finger dexterity” test and other alleged non-standardized field 5 sobriety tests. [MIO 3] We disagree w ith the implication that the use of the term 6 “test” is so misleading that jurors woul d place more importance on the reported results 7 of the exercises than they inherently deserve. Nor are we in clined to believe that these 8 apparent motor skills tests are scientific and require scientific testimony to explain 9 their meaning, reliability, orsignificance to the case. See Rule 11-702 NMRA (“If 10 scientific, technical or other specialized knowledge will assist the trier of fact to 11 understand the evidence or to determine a f act in issue, a witness qualified as an 12 expert by knowledge, skill, experience, training or education may testify thereto in the 13 form of an opinion or otherwise. ”). 14 Our courts have never cons idered an officer’s observations of any motor skill 15

test to require scientific knowle dge, nor have we consideredan officer’s observations 16 of such test results to require reliable sc ientific expertise for admission into evidence. 17 Cf

. State v. Torres , 1999-NMSC-010, ¶¶ 31, 33-34, 127 N.M. 20, 976 P.2d 20 18 (holding that the Horizontal Gaze Nystagmus (HGN) test requires scientific 194 knowledge and requiring reliabl e scientific evidence and testimony concerning the 1 results for their admission into evidence). The TorresCourt drew a distinction 2 between the specialized knowledge required to observe and testify as to the results of 3 the HGN test and the other “‘self-explanatory’” field sobriety tests. See id. ¶ 31 4 (citation omitted). A defendant’s performan ce on motor skills exercises appear to be 5 some of the “‘self-explanatory’” tests th at reveal “‘common physical manifestations 6 of intoxication.’” Id. (citation omitted). For these reasons, we conclude that the 7 district court did not err by permitting the officer to testify, without scientific 8 foundational evidence, as to his observations of Defendant’s performance on the 9 motor skills exercises. 10 Issue 3: Defendant challenges the proof of two of his four prior convictions used to 11 enhance his sentence. [MIO 7] The State does not have to show proof beyond a 12 reasonable doubt of the prior DWI conviction, but instead must provide a 13 preponderance of the evidence. See State v. Sedillo , 2001-NMCA-001, ¶ 5, 130 N.M. 14 98, 18 P.3d 1051. Procedurally, the State has the initial burden of establishing a prima 15 facie case that there is a prior DWI conviction. See State v. Duncan , 117 N.M. 407, 16 412, 872 P.2d 380, 385 (Ct. App. 1994), abrogated on other grounds by State v. 17 Brule , 1999-NMSC-026, ¶¶ 3-6, 127 N.M. 368, 981 P.2d 782. The defendant is then 18 entitled to come forward with contrary evid ence to rebut the prima facie showing. See 195 id. The State ultimately bears the burden of persuasion. See State v. O'Neil , 91 N.M. 1 727, 729, 580 P.2d 495, 497 (Ct. App. 1978). 2 Here, Defendant challenged the use of a 1994 Lincoln County conviction and 3 a 2003 conviction. [DS 4] W ith respect to the 1994 convic tion, Defendant claims that 4 the paperwork “did not specify the senten ce exposure sufficient to justify a voluntary 5 and knowing waiver.” [DS 4] Our calendar notice proposed to hold that the State 6 satisfied its burden under the case law set forth above, and Defe ndant has not argued 7 that the calendar notice misapplied the test . Instead, Defendant argues that recent 8 changes in United States Supreme Court case law calls for a reevaluation of this test. 9 [MIO 9-10] Our Supreme Court has heldthat the preponderance of the evidence 10 standard controls for proof of prior convictions. See State v. Smith , 2000-NMSC-005, 11 ¶ 1, 128 N.M. 588, 995 P.2d 1030. We are not authorized to overrule this precedent, 12 and therefore we decline Defendant’s invitation to revisit the issue. See Alexander v. 13 Delgado , 84 N.M. 717, 718, 507 P.2d 778, 779 (1973) (holding that Supreme Court 14 precedent controls). 15 For the reason set forth above, we affirm. 16 IT IS SO ORDERED. 17

18 MICHAEL D. BUSTAMANTE, Judge 1926 WE CONCUR: 1

2 JONATHAN B. SUTIN, Judge 3

4 MICHAEL E. VIGIL, Judge 5