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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 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. 32,837 4 GERALD CHAVEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Christina P. Argyres, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Acting Chief Public Defender 12 Santa Fe, NM 13 Josephine H. Ford, Assist ant Appellate Defender 14 Albuquerque, NM 15 for Appellant 16

MEMORANDUM OPINION 17 BUSTAMANTE, Judge. 182 {1}Gerald Chavez (Defendant) appeals from th e district court’s judgment in an on1 record metropolitan court appeal. [RP 79] The judgment affirms the metropolitan 2 court’s judgment convicting Defendant of DW I (1st offense), pursuant to a conditional 3 plea. [Id.] In the plea agreem ent [RP 36], Defendant reservedthe right to appeal the 4 metropolitan court’s decision to deny his moti on to suppress. [RP 34] This Court’s 5 calendar notice proposed summary affirmance. [Ct. App. File, CN1] Defendant has 6 filed a memorandum in opposition that we have duly considered. [Ct. App. File, 7 MIO] Unpersuaded, however, we affirm. 8 Issue 1 - Reasonable Suspicion to Support the Stop. 9
{2} In his memorandum, Defendant continues to argue that the officer was not close 10 enough to Defendant’s vehicle to notice thatthere was no other traffic near Defendant 11 that could have caused Defendant to s ound his horn. [MIO 7] Defendant points out 12 that the officer did not testify that he never lost sight of Defendant’s vehicle and that 13 the officer only testified that he did not see any other traffic as he approached 14 Defendant. [MIO 7-8] Further, Defendant points out that, in the dark from two blocks 15 away any dark-colored vehicl e would have been difficult to see, “especially a car on 16 a side street off Montgomery.” [MIO 8] As such, Defendant argues that the State 17 failed to show that an objectively reasona ble officer would have believed he had 183 reasonable suspicion to stop Defendant fo r a horn violation. [MIO 8] We are not 1 persuaded. 2
{3} As we discussed in the calendar notice, “[a]ppellate review of a motion to 3 suppress presents a mixed question of law and fact.” State v. Ketelson , 4 2011-NMSC-023, ¶ 9, 150 N.M. 137, 257 P.3d 957. First, a reviewing court looks 5 “for substantial evidence to support the trial court’s factual findi ng, with deference to 6 the district court’s review of the testimony and other evidence presented.” State v. 7 Leyva , 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861. “We then review the 8 application of the law to those facts, making a de novo determination of the 9 constitutional reasonableness of a search or seizure.” State v. Sewell , 10 2009-NMSC-033, ¶ 12, 146 N.M. 428, 211 P.3d 885. 11
{4} “An automobile stop and the attendant detention of its occupants is a ‘seizure.’” 12 State v. Olson , 2012-NMSC-035, ¶ 11, 285 P.3d 1066 (citing State v. Duran , 13 2005-NMSC-034, ¶¶ 22-23, 138 N.M. 414, 120 P.3d 836, overruled on other grounds 14 by Leyva , 2011-NMSC-009, ¶ 17). “In Duran , this Court recognized the two-part test 15 from Terry v. Ohio , 392 U.S. 1, 20 (1968), [which is] whether the officer’s action was 16 justified at its inception, and whether it was reasonably related in scope to the 17 circumstances which justified the interference in the first place.” Olson , 2012-NMSC18 035, ¶ 11 (internal quotation marks and citation omitted); see also Leyva , 194 2011-NMSC-009, ¶¶ 3, 28 (upholding Duran as the appropriate inquiry for evaluating 1 permissible officer questioning during traffi c stops under Article II, Section 10 of the 2 New Mexico Constitution). 3
{5} The docketing statement and the memorandum agree that the officer testified 4 at trial as follows. On November 9, 2008, at about 1:50 a.m., the officer was traveling 5 westbound on Montgomery approaching Louisi ana, when he heard a car horn sound 6 about four or five times. [DS 2, MIO 1] Th ere was a small amount of traffic traveling 7 eastbound and the officer first assumed that the sound came from one of them. [Id.] 8 The officer was about a quarter of a mile behind Defendant’s car and continued 9 driving behind Defendant’s car, closing the distance between them to about two 10 blocks. [Id.] The officer testified that he observed Defendant’s car weaving within 11 the lane. [DS2, MIO 2] Th e officer heard the horn sound again two or three times and 12 he could hear that it was co ming from Defendant’s vehicle. [Id.] The officer further 13 testified that at that point, aside from the officer’s and Defendant’s vehicles, there was 14 no other traffic on Montgomery or the side streets. [DS 3, MIO 2] The officer stated 15 that when he heard the horn, he looked down the side streets he passed to see if there 16 were any other vehicles and when he heard the horn th e second time, there was no 17 other traffic around and therefore no reason for a driver to sound his horn. [Id.] The 185 officer testified that he stopped Defendant for unnecessary use of the horn and for 1 weaving within his lane. [Id.] 2
{6} Defendant testified that he used his horn when a car almost came to a complete 3 stop in his lane, that the other car was some distance ahead of him, that he did not 4 think he swerved but that hemay have swerved to avoid the other car. [DS 3-4, MIO 5 3] Defendant also testified that the other car’s stopping in his lane was the only 6 reason for honking his horn and that he does not honk his horn just for the fun of it. 7 [DS 4, MIO 3] The metropolitan court deniedthe motion to suppress, ruling that the 8 officer had reasonable suspicion to st op Defendant for violation of NMSA 1978, 9 Section 66-3-843 (1978) (regulating the use of horns and warning devices). [RP 34] 10 We agree. 11
{7} Section 66-3-843 provides, in pertinent part, that “[t]he driver of a motor 12 vehicle shall when reasonably necessary to ensure safe operation give audible warning 13 with his horn but shall not otherwise use such horn when upon a highway.” {8} 14 The officer’s testimony indicated thatDefendant kept honking his horn when 15 there were no other vehicles around. [DS 5, MIO 4] To the extent that Defendant 16 offered conflicting testimony that he honked at a vehicle that stopped in his lane, the 17 metropolitan judge as fact finder at the suppression hearing, is entitled to find the 18 officer’s testimony credible and to re ject Defendant’s version of events. See State v. 196 Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for 1 the fact finder to resolve any conflict in the testimony of the witnesses and to 2 determine where the wei ght and credibility lie); see also State v. Rojo , 1999-NMSC3 001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (stating that contrary evidence supporting 4 acquittal does not provide a basi s for reversal because the f act finder is free to reject 5 the defendant’s version of the facts). Similarly, to the extent Defendant argues in the 6 memorandum that the darkness of the night or the officer’s ve hicle’s distance from 7 Defendant’s vehicle would have made it diffi cult for the officer to see what Defendant 8 was honking at or whether there were other vehicles down side streets [MIO 7-8], 9 these are matters for the fact finder involvi ng the credibility of the officer’s testimony 10 and the weight to be given to it. See State v. Garvin , 2005-NMCA-107, ¶ 5, 138 N.M. 11 164, 117 P.3d 970 (observing that as the appellate court, we do not substitute our 12 judgment for that of the fact finder con cerning the credibility of witnesses or the 13 weight to be given their testimony). 14
{9} We affirm the district court’s decision to affirm the metropolitan court’s denial 15 of the motion to suppress. We hold thatthe stop was based on reasonable suspicion 16 that Defendant was violating Section 66-3-843. See State v. Vandenburg , 17 2003-NMSC-030, ¶ 21, 134 N.M. 566, 81 P.3d 19 (recognizing that the arresting 187 officer “reasonably suspected that [the de fendant] had violateda traffic law, and 1 therefore, [the officer] was entitled to stop [the defendant’s] car”). 2 Issue 2 - Constitutional Vagueness Challenge. 3
{10} In the memorandum, Defendant contends that the statute regulating horn use 4 while driving permits “police officers, pros ecutors, judges, or juries to engage in 5 arbitrary and discriminatory enforcement of the statute” because it has no standards 6 or guidelines, which encourages “subjectiv e and ad hoc application.” [MIO 9] 7 Defendant contends that since it was “up to the officer to decide whether use of the 8 horn was reasonable,” this led to an “absur d result,” because “it leads to traffic stops 9 and prosecutions based on questionable f acts, when drivers have no means of 10 ascertaining where to draw the line between reasonable and unreasonable use of the 11 horn.” [MIO 9-10] Defendant further argues that, therefore, the statute 12 unconstitutionally “delegates to the officer” “the policy decision” or “complete 13 discretion” whether to stop a driver who us es his horn “when the officer does not see 14 any other traffic near the driver.” [MIO 10] We are not persuaded. 15
{11} As we discussed in the calendar noti ce, this Court reviews a constitutional 16 vagueness challenge de novo in light of the facts of the case and the conduct that is 17 being prohibited by the statute. See State v. Smile , 2009-NMCA-064, ¶ 17, 146 N.M. 188 525, 212 P.3d 413. Statutes are presumedconstitutional and De fendant bears the 1 burden of establishing unconstitutionality. See id. 2
{12} We remain persuaded that, as the district court recognized in its memorandum 3 opinion, Defendant has failed to demonstrate that the statute did not give him a fair 4 opportunity to determine whether his conduc t was prohibited. [RP 91] Defendant 5 testified that he did not think he violated the statute because he only honked his horn 6 to warn another driver, and he does not honk his horn for th e fun of it. [RP 91; DS 4] 7 As such, although the metropolitan court did not find this testimony credible, 8 Defendant’s own testimony indicates that th e statute gave him a fair opportunity to 9 determine what conduct was prohibited. 10
{13} Moreover, we cannot say that the statute provides no guidelines for when a 11 violation has occurred thereby allowing for arbitrary or ad hoc vehicle stops and 12 prosecutions, as Defendant argues in th e memorandum. [MIO 8-10] The officer 13 testified that he pulled Defendant over because Defendant was honking his horn 14 repeatedly at 1:50 a.m. on a city street when no other traffic was around, and, in 15 contrast, Defendant testified that a ve hicle stopped in front of him, making it 16 reasonably necessary to sound his horn. As st ated in our discussion of Issue 1, we do 17 not substitute our judgment for that of the fact finder concerning the credibility of 18 witnesses or the weight to be given their testimony. Garvin , 2005-NMCA-107, ¶ 5. 199 The objective circumstances of Defendant ’s conduct observed by the officer, whom 1 the fact finder found to be credible, are pros cribed by the guidelines of the statute. 2
{14} The fact that a statute may be written ingeneral terms and th at it then must be 3 applied on a case-by-case basis does not establish that it is unconstitutionally vague. 4 See, e.g., State v. Fleming , 2006-NMCA-149, ¶ 5, 140 N.M. 797, 149 P.3d 113 5 (stating that room in a statute for the exer cise of charging discretion does not establish 6 that a statute is void for vagueness); see also State v. Larson , 1980-NMSC-106, ¶ 5, 7 94 N.M. 795, 617 P.2d 1310 (stating that a statute is not unconstitutionally vague just 8 because “marginal cases could be put where doubts might arise”). 9
{15} Finally, the statute clearly applies in th is case to proscribe Defendant’s conduct. 10 See State v. Laguna , 1999-NMCA-152, ¶ 24, 128 N.M. 345, 992 P.2d 896 (reasoning 11 that if a statute clearly applies to a person’s conduct, then it is not unconstitutionally 12 vague). As discussed above, according to the officer’s version of the facts, which the 13 metropolitan court found to be credible, Defendant’s conduct of sounding his horn 14 when there was no other traffic and no need to give audible warning to ensure safe 15 operation, constituted a clear violation of the statute. 16
{16} We affirm Defendant’s convic tion for DWI (1st offense). 17
{17} IT IS SO ORDERED. 1810 1 MICHAEL D. BUSTAMANTE, Judge 2 WE CONCUR: 3

4 MICHAEL E. VIGIL, Judge 5

6 TIMOTHY L. GARCIA, Judge 7