Court of Appeals of New Mexico

This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 filed by the Court of Appeals and does not include the filing date.

STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOHN FLORES,
Defendant-Appellant.

No. 35,070

COURT OF APPEALS OF NEW MEXICO

May 4, 2016

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY, Matthew E. Chandler, District Judge

COUNSEL

Hector H. Balderas, Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Acting Chief Public Defender, Will O’Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant

JUDGES

JONATHAN B. SUTIN, Judge. WE CONCUR: MICHAEL D. BUSTAMANTE, Judge, J. MILES HANISEE, Judge

AUTHOR: JONATHAN B. SUTIN

MEMORANDUM OPINION

SUTIN, Judge.

{1}       Defendant appeals his conviction for felon in possession of a firearm. We issued a calendar notice proposing to affirm. Defendant has responded with a memorandum in opposition. We affirm.

{2}       Defendant continues to challenge the sufficiency of the evidence to support his conviction for felon in possession of a firearm, contrary to NMSA 1978, Section 30-7-16(A) (2001). [MIO 2] A sufficiency of the evidence review involves a two-step process. Initially, the evidence is viewed in the light most favorable to the verdict. Then the appellate court must make a legal determination of “whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.” State v. Apodaca, 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and citation omitted).

{3}       In order to convict Defendant, the evidence had to show that he was in possession of a firearm and had been convicted of a felony within the last ten years. [RP 165] Here, an officer was investigating a possible stolen vehicle in an alley and noticed Defendant walking nearby in the same alley. [MIO 1] The officer initiated contact, and Defendant informed the officer that he was carrying a firearm. [MIO 1] The firearm was admitted as evidence in the district court. [DS 2] There was also evidence that Defendant had been convicted of a felony within the last ten years. [DS 2] Defendant testified that he believed this prior conviction was a misdemeanor and not a felony, and the jury was given a mistake of fact instruction. [MIO 1-2; RP 168] The jury was free to reject Defendant’s claim that he believed that his felony conviction was actually a misdemeanor conviction. See State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that the fact-finder is free to reject a defendant’s version of events).

{4}       In light of the above-noted evidence supporting Defendant’s conviction, we affirm.

{5}       IT IS SO ORDERED.

JONATHAN B. SUTIN, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

J. MILES HANISEE, Judge