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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,720 4 ANDREW GONZALES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Thomas J. Hynes, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline Cooper, Ch ief Public Defender 12 Kimberly Chavez Cook, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 BUSTAMANTE, Judge. 172 Gonzales appeals his conviction for driving while intoxicated. In this Court’s 1 notice of proposed summary disposition, we proposed to affirm. Gonzales has filed 2 a memorandum in opposition, a motion to substitute an amended memorandum in 3 opposition, a substituted memorandum in opposition, and a motion to amend the 4 docketing statement, all of which we haveduly considered. We grant Gonzales’s 5 motion to substitute an amended memorandum in opposition. However, as we are not 6 persuaded by the arguments Gonzales make s in his amended memorandum and in his 7 motion to amend the docketing statement, we deny the motion to amend the docketing 8 statement, and we affirm. 9 Sufficiency of the Evidence 10 In our notice of proposed summary disposition, we proposed to hold that there 11 was sufficient evidence to support Gonzales’s conviction for driving while 12 intoxicated. Although Gonzales presented a defense at trial that it was his brother, and 13 not he, who was driving, we proposed to hold that there was sufficient evidence from 14 which a reasonable juror could conclude thatGonzales operated the vehicle during the 15 period that the officer observed the vehicle turn off of the road, into a driveway, 16 attempt to turn into another driveway, and th en back up. The offi cer testified that he 17 saw Gonzales operate the vehi cle in the driveway and that Gonzales got out of the 18 driver’s seat. 193 In Gonzales’s memorandum in opposition, he continues to argue that because 1 the passenger—Gonzales’s brother—testifie d that it was he who was driving the car 2 and that he and Gonzales switched seats after they stopped, the evidence was 3 insufficient to establish that Gonzales operated the vehicle. We disagree. The officer 4 testified that he did not see the men switch seats, that he saw Gonzales operating the 5 car in the driveway, and thatGonzales was the one who wa s in the driver’s seat when 6 the vehicle was stopped. This was suffic ient evidence from which the jury could 7 conclude beyond a reasonable doubt that Gonzal es was driving. Furthermore, the jury 8 was permitted to view the video recording taken by the officer’s dashboard camera. 9 It was for the jury to weigh the evidence and to resolve any conflicts between the 10 officer’s testimony, that of the brother, and the evidence of the videotape. See State 11 v. Ortiz-Burciaga , 1999-NMCA-146, ¶ 22, 128 N.M. 382, 993 P.2d 96 (stating that 12 it is the “exclusive province of the jury to resolve factual inconsistencies” in the 13 evidence presented at trial (internal quotation marks omitted)); State v. Sosa , 14 2000-NMSC-036, ¶ 8, 129 N.M. 767, 14 P.3d 32 (observing that the “credibility of 15 witnesses is for the jury” to decide). 16 Motion to Amend the Docketing Statement 17 Gonzales seeks to amend the docketing stat ement to add a claim that the district 18 court erred when it permitted a State Laborat ory Division analyst to testify by video. 194 [DS 7-10] Gonzales relies heavily on State v. Chung , No. 30,384, slip op. at 3 (N.M. 1 Ct. App. Feb. 9, 2012) to support his argument that the district court erred in 2 permitting the video testimony. However, assuming that the admission of this 3 testimony was error, Gonzales acknowle dges that he did not preserve his 4 Confrontation Clause argument in the distri ct court, such that we will reverse his 5 conviction only if the error was fundamental. See State v. Martinez , 2007-NMSC6 025, ¶ 25, 141 N.M. 713, 160 P.3d 894 (review ing an unpreserved Confrontation 7 Clause argument for fundamental error). Accordingly, he must demonstrate that he 8 is either indisputably innocent or that the error in permitting this witness to testify by 9 video makes his conviction f undamentally unfair and a miscarriage of justice. See 10 State v. Barber , 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 633 (providing that 11 fundamental error only occurs in “cases with defendants who are indisputably 12 innocent, and cases in which a mistak e in the process makes a conviction 13 fundamentally unfair notwithstanding th e apparent guilt of the accused”). 14 Gonzales does not argue that he was indisputably innocent, and does not 15 demonstrate that this defect in the proceedings made his conviction fundamentally 16 unfair. Therefore, assuming that it was erro r to permit the analyst to testify by video, 17 nothing in Gonzales’s motion to amend the docketing statement or in the amended 18 memorandum in opposition demonstrates th at the error was fundamental. Because 196 Gonzales does not provide any basis for c oncluding that the error was fundamental, 1 we deny Gonzales’s motion to amend the docketing statement. See State v. Sommer , 2 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (denying the defendant’s 3 motion to amend the docketing statement whenthe issue to be added was not viable). 4 For the reasons stated in this opini on and in our notice of proposed summary 5 disposition, we affirm. 6 IT IS SO ORDERED. 7

8 MICHAEL D. BUSTAMANTE, Judge 9 WE CONCUR: 10

11 CELIA FOY CASTILLO, Chief Judge 12 13 JONATHAN B. SUTIN, Judge 14