Court of Appeals of New Mexico

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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JAMIE CARRASCO,
Defendant-Appellant.

No. 32,985

COURT OF APPEALS OF NEW MEXICO

October 7, 2013

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, Gary Clingman, District Judge

COUNSEL

Gary K. King, Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Acting Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant

JUDGES

TIMOTHY L. GARCIA, Judge. WE CONCUR: CYNTHIA A. FRY, Judge, LINDA M. VANZI, Judge

AUTHOR: TIMOTHY L. GARCIA

MEMORANDUM OPINION

GARCIA, Judge.

{1}       Defendant appeals his conviction for third degree criminal sexual penetration (CSP), which was enhanced due to his habitual offender status. [RP 145] Our notice proposed to affirm, and Defendant filed a memorandum in opposition. We remain unpersuaded by Defendant’s arguments and therefore affirm.

{2}       Defendant continues to argue there was insufficient evidence to support his CSP conviction. See State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (setting forth the standard of review for a substantial evidence review). For the reasons detailed in our notice, we hold that the evidence supports the jury’s determination that Defendant inserted his penis in Victim’s vagina, and that he did so unlawfully and through the use of physical force or violence. [RP 97] See generally State v. Sparks, 1985-NMCA-004, ¶¶ 6-7, 102 N.M. 317, 694 P.2d 1382 (defining substantial evidence as that evidence which a reasonable person would consider adequate to support a defendant’s conviction). While Defendant maintains that Victim consented to his act [MIO 4], we again emphasize that the jury was free to reject Defendant’s version of the events. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject Defendant’s version of the facts.”); see also State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the factfinder to resolve any conflict in the testimony of the witnesses and to determine where the weight and credibility lay).

{3}       For the reasons set forth herein and in our notice, we affirm.

{4}       IT IS SO ORDERED.

TIMOTHY L. GARCIA, Judge

WE CONCUR:

CYNTHIA A. FRY, Judge

LINDA M. VANZI, Judge