September 16, 2019- State of New Mexico v. David Garcia, No. A-1-CA-37831

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. A-1-CA-37831
5 DAVID GARCIA,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 Drew D. Tatum, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Santa Fe, NM
14 Luz C. Valverde, Assistant Appellate Defender
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 M. ZAMORA, Chief Judge.
19 {1} Defendant appeals his conviction for criminal sexual contact of a minor (Child
20 Under 13). We issued a calendar notice proposing to affirm. Defendant has responded
21 with a memorandum in opposition. We affirm.
Court of Appeals of New Mexico
Filed 9/16/2019 8:57 AM

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1 {2} Defendant’s sole issue on appeal challenges the sufficiency of the evidence to
2 support his conviction. See State v. Armijo, 1997-NMCA-080, ¶ 16, 123 N.M. 690,
3 944 P.2d 919 (“A motion for a directed verdict challenges the sufficiency of the
4 evidence.”).
5 {3} A sufficiency of the evidence review involves a two-step process. Initially, the
6 evidence is viewed in the light most favorable to the verdict. Then the appellate court
7 must make a legal determination of “whether the evidence viewed in this manner
8 could justify a finding by any rational trier of fact that each element of the crime
9 charged has been established beyond a reasonable doubt.” State v. Apodaca, 1994-
10 NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and citations
11 omitted).
12 {4} Defendant’s argument has been that the jury should not have believed the
13 victim’s testimony that the criminal sexual contact occurred. [DS 7] “Testimony by
14 a witness whom the fact[-]finder has believed may be rejected by an appellate court
15 only if there is a physical impossibility that the statements are true or the falsity of the
16 statement is apparent without resort to inferences or deductions.” State v. Sanders,
17 1994-NMSC-043, ¶ 13, 117 N.M. 452, 872 P.2d 870. Inherently improbable
18 testimony is limited to: (1) statements which are physically impossible, and (2)
19 statements the falsity of which is apparent without resort to inferences or deductions.

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1 See State v. Till, 1967-NMSC-150, ¶ 3, 78 N.M. 255, 430 P.2d 752. Here, the victim
2 (L.B.) testified that she was in her aunt’s bedroom, where she apparently spent the
3 night with Defendant and her aunt. [RP 471-72] L.B. testified that she was trying to
4 sleep when Defendant touched her vagina. [RP 472] We conclude that the victim’s
5 testimony was not physically impossible or false on its face.
6 {5} In his memorandum in opposition, Defendant claims that the State failed to
7 show that the charged incident occurred in October 2014, as required by the jury
8 instruction. [MIO 10, RP 441] Specifically, Defendant refers to L.B.’s testimony that
9 the incident occurred in 2015. [MIO 10, RP 471] However, the 2015 reference was
10 made by the prosecutor; although L.B. did not dispute that date, the jury could look
11 to other evidence that would place the incident in October 2014. L.B. testified that
12 she never saw Defendant again after the incident. [RP 474] She also testified that she
13 first reported the incident to her grandmother, two months later. [RP 472] Sandy
14 Loomis of the Curry County Sheriff’s Office testified that he investigated the
15 incident, which he stated occurred in October 2014. [RP 476] Although Defendant
16 claims [MIO 15] that there could have been some hearsay or other evidentiary
17 problems with his testimony, we still consider the testimony for purposes of a
18 sufficiency of the evidence challenge. See State v. Post, 1989-NMCA-090, ¶ 22, 109
19 N.M. 177, 783 P.2d 487. To the extent that there was inconsistency regarding whether

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1 the incident occurred in October 2014 or 2015, we defer to jury’s resolution on this
2 issue. See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482
3 (recognizing that it is for the fact-finder to resolve any conflict in the testimony of the
4 witnesses and to determine where the weight and credibility lie).
5 {6} For the reasons set forth above, we affirm.
6 {7} IT IS SO ORDERED.
7 __________________________________
8 M. MONICA ZAMORA, Chief Judge
9 WE CONCUR:
10 _________________________________
11 J. MILES HANISEE, Judge
12 _________________________________
13 ZACHARY A. IVES, Judge