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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,077 4 ADRIAN MACIAS-MARTINEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Lisa Schultz, District Judge 8 Gary K. King, Attorney General 9 Margaret McLean, Assistant Attorney General 10 Joel Jacobsen, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Jacqueline L. Cooper, Chief Public Defender 14 Karl Erich Martell, Assi stant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 SUTIN, Judge. 192 Defendant Adrian Macias-Martinez appeals his conviction after a jury trial for 1 criminal sexual penetration in violation of NMSA 1978, Section 30-9-11(F) (2007) 2 (amended 2009). Defendant ar gues that the evidence was insufficient for conviction. 3 The incident from which the charges ar ose occurred on or about September 10, 4 2006, as Victim walked home late at night after visiting friends. Defendant 5 acknowledges that he had a sexual encounter with Victim at that time, but he asserts 6 that the encounter was consensual and that there was no sexual penetration. 7 STANDARD OF REVIEW 8 When reviewing a claim of insufficiency of the evidence, wedetermine whether 9 substantial evidence, either direct or ci rcumstantial, “exists to support a verdict of 10 guilt beyond a reasonable doubt with respectto every element essential to a 11 conviction.” State v. Apodaca , 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994) 12 (internal quotation marks and citation omitte d). “Substantial evidence is relevant 13 evidence that a reasonable mind might accept as adequate to support a conclusion.” 14 State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “The reviewing 15 court does not weigh the evidence or substituteits judgment for that of the fact finder 16 as long as there is sufficient evidence to support the verdict.” State v. Mora , 17 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds as 18 recognized in Kersey v. Hatch , 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. “In 193 reviewing the sufficiency of evidence used to support a conviction, we resolve all 1 disputed facts in favor of the [verdict], indulge all reasonable inferences in support of 2 the verdict, and disregard all evidence and inferences to the contrary.” Rojo , 3 1999-NMSC-001, ¶ 19

. We determine as a matter of law “whether the evidence 4 viewed in this manner could justify a fi nding by any rational trier of fact that each 5 element of the crime charged has b een established beyond a reasonable doubt.” 6 Apodaca , 118 N.M. at 766, 887 P.2d at 760 (internal quotation marks and citation 7 omitted). 8 DISCUSSION 9 The jury convicted Defendant of crimin al sexual penetrati on in violation of 10 Section 30-9-11(F). The district court instru cted the jury as follows on this charge: 11 For you to find . . . [D]efendant guilty of criminal sexual 12 penetration as charged as an included offense in Count 2, the [S]tate 13 must prove to your satisfaction beyond a reasonable doubt each of the 14 following elements of the crime: 15 1. . . . [D]efendant caused [V ictim] to engage in sexual 16 intercourse; 17 2. . . . [D]efendant caused [V ictim] to engage in sexual 18 intercourse through the use of physical force or physical violence; 19 3. This happened in New Mexico on or about the 10 thday of 20 September, 2006. 214 See UJI 14-941 NMRA. In another instruc tion, the district court defined sexual 1 intercourse as follows: “Sexual intercoursemeans the penetration of the vagina, the 2 female sex organ, by the penis, the male sex organ, to any extent.” See UJI 14-982 3 NMRA. 4 Defendant argues that neither of the s ubstantive elements of the offense of 5 criminal sexual penetration were presen t: there was no sexual intercourse and no 6 physical force or physical violence occurred. The extensive testimony of the State’s 7 witnesses, including Victim herself, indicate otherwise. Victim testified as follows. 8 She had gone out to dinner with friends on the evening of September 9, 2006. She 9 recalled having two drinks at th e restaurant, then two or three more at the home of her 10 friends, S.M. and M.F. As the evening began to wind down, she felt “buzzed” but not 11 “completely drunk” and was invited to spe nd the night at S.M.’s and M.F.’s home. 12 Because her father’s home and his girl friend’s home were both nearby, Victim 13 decided not to stay, but to walk home. She took a shortcut through a pecan orchard, 14 where she encountered Defendant sitting on the ground. Victim, somewhat startled 15 by Defendant’s presence, said hello to him and had a conversation with him in 16 Spanish. Although the convers ation was initially light, after a few minutes it became 17 “really weird,” with Defendant saying things like Victim wa s pretty and he wanted to 18 kiss her. Victim who had been squatting n ear Defendant, jumped up and said she had 195 to go. Defendant grabbed her right wris t and would not let go as she struggled to 1 leave. Defendant then “pushed–sort of like laid [her] on the ground,” at which point 2 she screamed for help. Defendant covered her mouth such that she could not breathe. 3 Defendant brushed her underwear to the sideand sexually penetr ated her for “maybe 4 like two minutes.” Although actually older, Victim had repeated to Defendant in 5 Spanish that she was only seventeen, and ev entually Defendant “stopped and sort of 6 . . .moved away,” then told her to go. Vi ctim ran away, disorien ted and unsure of her 7 whereabouts, she ran into a chest-high wire that almo st knocked her over. Once 8 Victim determined where she was, she ran back to S.M.’s house. Victim 9 acknowledged that she had previously said she was not sure pene tration occurred, but 10 she had felt “numb” and “paralyzed with this fear.” She thought Defendant had 11 ejaculated inside her. 12 Victim further testified concerning the events that followed the incident, 13 including the examination by the sexual a ssault nurse examiner (SANE) and the 14 investigation by Sheriff’s Investigator John Rubio. Several of the persons with whom 15 she interacted around the time of the incide nt also testified. M.F.’s testimony 16 concerning events earlier in the evening were generally consistent with Victim’s 17 testimony. M.F. testified th at she believed Victim was intoxicated, but that she could 18 stand up and speak intelligibly. After disc overing that Victim had left their home 196 rather than spending the night there, M.F. and S.M. went out twice, once in M.F.’s car 1 and once in S.M.’s car, to look for her, but returned without finding her. They 2 decided to go to bed, but about ten minutes after they di d so Victim knocked on their 3 door. S.M. answered the door, and when M. F. entered the room, Victim was sitting 4 on the couch crying. Victim “said someth ing along the lines of, ‘I was raped’” and 5 asked them to call the police. M.F. described Victim as “j ust very upset and just kind 6 of–I mean, hysterically crying.” She esti mated that Victim had been gone from the 7 home twenty or thirty minutes. On cross-ex amination, M.F. testified that while she 8 was rubbing Victim’s back to comfort her, she had not noticed any leaves or dirt or 9 the like on Victim’s back. 10 S.M. also testified, again generally c onsistent with the previous testimony as 11 to the sequence of events, including Victim’s statement, “I’ve been raped,” when he 12 answered the door. S.M. testified that heknew Victim was not kidding because “[s]he 13 looked horrified on her face. Her face had a look of being horrified. Her clothes were 14 disheveled. She had a small cut on her cheek . Her hair was disheveled. She looked 15 really, really distraught[.]” 16 Two sheriff’s officers testified. Deputy Paul Telles testified that he had been 17 dispatched to S.M.’s home around 1:00 a. m. on September 10, 2006. Deputy Telles 18 met S.M., whom he describe d as “very hyper,” in front of the home and then went 197 inside, where he encountered Victim sitti ng on a couch. Deputy Telles described her 1 as “scared[,]” “crying[,]” and “very upset[, ]” and he noted an injury on her arm and 2 a scratch on her leg. Victim told Deputy Telles that a male individual had “popped 3 out of nowhere and just started a conversation with her.” She described the assault to 4 Deputy Telles, and upon being as ked if she had been penetrated, she could not tell him 5 if she was or not. Deputy Telles did not obs erve any signs of intoxication in Victim. 6 After the ambulance arrived, he went to the hospital but had no further contact with 7 Victim, S.M., and M.F. 8 Sheriff’s Investigator John Rubio, who took over the investigation, first spoke 9 to Victim in the SANE examination room at the hospital. When he entered, Victim 10 was on the couch “kind of curled up a little bit.” Upon introducing himself, 11 Investigator Rubio noticed that she seemed“kind of confused and tired[.]” Victim 12 described her attacker as a twenty- to thirty-year-old Spanish-speaking male, about 13 145 to 180 pounds, wearing a baseball cap and having a mustache and goatee. Upon 14 being asked if she had been penetrated, Vi ctim said she felt numb in “that area” and 15 could not recall if she had been penetrated. At some point, however, Victim also told 16 Investigator Rubio that her underwear had been pushed aside and that she had been 17 raped. After the sun came up, the morning following the assault, Investigator Rubio 18 first went to S.M.’s house and got a feel for the area where the attack had occurred, 198 including the pecan orchard. He recalled th at Victim had told him she had lost her 1 wallet, so he began l ooking for it. At some point in his search, Investigator Rubio 2 encountered Defendant and noticed that although he was tan, he had a white area 3 where he had recently shaved his chin. Investigator Rubi o did not tell Defendant that 4 he was investigating a sexual assault, but persuaded Defendant to give him a saliva 5 sample and a fingerprint. Investigator Rubio also took DNA swabs of two other men 6 at the orchard a few days later, Mari o Armendariz-Hernandez and Jose Franco. 7 The SANE nurse, Melissa C opeland, who had examined Victim, testified as an 8 expert in the area of sexual assault nurseexaminations. Ms. Copeland described 9 Victim as appearing “very sober,” although Victim had acknowledged that she had 10 several drinks the night before. Victim’s affect was tearful at times, trembling at 11 times, and she made good eye contact and wa s very cooperative. Victim told Ms. 12 Copeland that she had been raped and specifi cally that her assailant had pushed her 13 panties aside and penetratedher vagina with his peni s. Ms. Copeland examined 14 Victim’s outer body and noted a number of sc ratches, bruises, and abrasions, which 15 she photographed and documented. Ms. Cope land also examined Victim’s genital 16 area. She did not find any injuries, but explained that this was not significant in 17 determining whether a sexual assault had o ccurred. Finally, Ms . Copeland testified 189 in detail concerning the process by whic h she collected DNA samples from several 1 areas inside and outside the vagina. 2 The State’s final witness, Thomas Fedor , testified as a DNA analysis expert. 3 After testifying regarding the shipping and packaging of the DNA samples to establish 4 a chain of custody, he identified the vari ous samples taken fro m Defendant, Victim, 5 and two other individuals who were in the vicinity of the orchard where the assault 6 took place. Mr. Fedor then discussed the process by which fifteen different markers 7 in a DNA sample are identifie d and compared. Mr. Fedor testified that the DNA from 8 the vaginal samples taken from Victim and the samples taken from Defendant 9 contained the same DNA. He described the odds of two different individuals 10 matching all fifteen DNA markers as “astronomical” and later quantified the odds of 11 a person other than Defendant being the source of the tested DNA as one in 150 12 sextillion, which is expressed as the number 150, with twenty-one zeroes after it. 13 In addition to testifying on his own behalf, Defendant presented the testimony 14 of Jose Franco, one of the two men who werepresent in the orchard when Investigator 15 Rubio was still investigating the incident. He testified that he had been at Mr. 16 Armendariz-Hernandez’s house when a car arrived and a woman got out and walked 17 with Defendant in the direction of a nearby school. On cross-examination, Mr. Franco 18 acknowledged that he could not give a desc ription of the woman and that he had not 1910 previously mentioned seeing the woman to Investigator Rubio. Mr. Franco also 1 acknowledged that he had told Investigator Rubio during a taped statement that he, 2 Mr. Franco, had “left early” on the night in question. 3 Defendant testified that onthe night of the incide nt, he had gone outside to 4 urinate and saw a car arrive. A woman got out and came toward him. Defendant 5 testified that she invited him to walk, gr abbed his hand, and was “doing weird stuff. 6 . . . She looked drunk or on some substan ce. She looked strange, not just drunk.” 7 They sat down and the woman “started hugging and kissing” him. Defendant testified 8 that she looked sexually excited and that she got on top of him and pulled his 9 sweatpants down. He deniedpenetrating the woman and did not think he had become 10 erect, but stated that it was possible he ha d ejaculated. According to Defendant, they 11 were together for five or ten minutes, he to ld her to leave, and she returned to the car 12 she had arrived in. Defendant said he then went into th e house and went to sleep. He 13 acknowledged that he did not tell Investigat or Rubio about this encounter later that 14 morning when the officer told Defendant th at he was looking for a bag that a woman 15 had lost just after midnight. Defendant also testified that he had told Investigator 16 Rubio that he had gone away with his girl friend the day before and was not present 17 in the area at the relevant time. 1811 The evidence before the jury satisfied both substantive elements of the charge 1 of criminal sexual penetration, that Defendant had caused Victim to engage in sexual 2 intercourse and had done so through the use of physical force or physical violence. 3 Victim told the SANE nurse that sexual penetration had occurred, she told M.F., 4 S.M., and Investigator Rubio that she had b een raped, and she testified at trial that 5 penetration had occurred. Defendant’s semen was found in side her vagina. Victim 6 testified, “I was trying to . . . get away w ith all of my strength, but [Defendant] had 7 quite a firm grip on my wrist, so I couldn’t really leave.” M.F. and S.M. both testified 8 that Victim was upset and crying upon her return to their home, a demeanor not 9 consistent with a consensual sexual enc ounter. Deputy Telles, the responding officer, 10 also described Victim as scared, crying, and very upset. Further, the jury could have 11 found Defendant’s description of the encounter to be implausible and incredible. See 12 Rojo , 1999-NMSC-001, ¶ 19 (stating that “[ c]ontrary evidence supporting acquittal 13 does not provide a basis for reversal because the jury is free to reject [the d]efendant’s 14 version of the facts”). 15 We acknowledge that there were someinconsistencies in the evidence, 16 including Victim’s initial statements to Deputy Telles and Investigator Rubio that she 17 was not sure penetration had occurred. Taken as a whole, however, we conclude that 18 there was sufficient evidence to allow the jury to find guilt beyond a reasonable doubt. 1912 CONCLUSION 1 For the reasons stated in this Opinion, we affirm Defendant’s conviction. 213 IT IS SO ORDERED. 1

__________________________________ 2 JONATHAN B. SUTIN, Judge 3 WE CONCUR: 4

_________________________________ 5 MICHAEL D. BUSTAMANTE, Judge 6

_________________________________ 7 RODERICK T. KENNEDY, Judge 8