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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. 35,106

 5 ALREE BERNIE SWEAT,

 6      Defendant-Appellant.
 7
 8 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 9 Douglas R. Drigger, District Judge

10 Hector H. Balderas, Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender
14 Allison H. Jaramillo, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 BUSTAMANTE, Judge.
 1   {1}   Defendant Alree Sweat appeals from his convictions for three counts of

 2 automobile burglary contending that there is insufficient evidence to support his

 3 convictions. This Court issued a notice of proposed disposition proposing to affirm

 4 Defendant’s convictions. In response, Defendant has filed a memorandum in

 5 opposition, which this Court has duly considered. Unpersuaded, we affirm.

 6   {2}   In this Court’s calendar notice, we proposed to conclude that there was

 7 sufficient evidence to support Defendant’s convictions where there was expert

 8 testimony offered by the State establishing that Defendant’s DNA was found either

 9 in the burglarized vehicles or on items that were removed from the vehicles at issue.

10 [CN 2-3] Further, we noted that to the extent Defendant was directing this Court to his

11 own expert’s DNA testimony that contradicted the State’s expert, such testimony goes

12 to weight and credibility and are determinations this Court leaves in the hands of the

13 fact finder. [CN 3 (citing State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950

14 P.2d 789, abrogation on other grounds recognized by Kersey v. Hatch, 2010-NMSC-

15 020, ¶ 17, 148 N.M. 381, 237 P.3d 683, for the proposition that this Court does not

16 “weigh the evidence or substitute its judgment for that of the fact finder as long as

17 there is sufficient evidence to support the verdict”)]

18   {3}   Defendant contends, in response, that his DNA expert testified regarding the

19 State’s handling of the DNA collection and assessment protocol. [MIO 2] Defendant’s


                                              2
 1 DNA expert noted that “five separate DNA reference samples from the defendant

 2 were processed and that this seemed like an excessive quantity of cells to bring into

 3 ‘an analytical environment where evidentiary material is also being processed.’” [MIO

 4 2 (citing RP 74)] Defendant’s DNA expert also noted that there “seem[ed] to be a

 5 lack of documentation in the case file—regarding chain of custody, and graphical

 6 DNA typing results.” [Id.] In light of this testimony, Defendant contends that there is

 7 insufficient evidence to support Defendant’s convictions.

 8   {4}   We reiterate that this Court gives deference to determinations of weight and

 9 credibility that are made by the fact finder. It is outside the purview of our role as an

10 appellate court to reweigh evidence and make determinations regarding credibility.

11 See State v. Sanders, 1994-NMSC-043, ¶ 13, 117 N.M. 452, 872 P.2d 870 (providing

12 that, as an appellate court, we do not “substitute our judgment for that of the fact

13 finder concerning the credibility of witnesses or the weight to be given their

14 testimony”); see also Tallman v. ABF (Arkansas Best Freight), 1988-NMCA-091, ¶ 7,

15 108 N.M. 124, 767 P.2d 363 (“An appellate court does not observe the demeanor of

16 live witnesses, cannot see a shift of the eyes, sweat, a squirm, a tear, a facial

17 expression, or take notice of other signs that may mean the difference between truth

18 and falsehood to the fact finder.”). In addition, to the extent Defendant’s DNA expert

19 pointed to a lack of documentation regarding the chain of custody, “[q]uestions


                                               3
1 concerning a possible gap in the chain of custody affects the weight of the

2 evidence[,]” State v. Peters, 1997-NMCA-084, ¶ 26, 123 N.M. 667, 944 P.2d 896, and

3 are, therefore, once again, an issue for the fact finder to resolve.

4   {5}   Accordingly, for the reasons stated above and those articulated in this Court’s

5 notice of proposed disposition, we affirm Defendant’s convictions.

6   {6}   IT IS SO ORDERED.




7                                     _______________________________________
8                                     MICHAEL D. BUSTAMANTE, Judge

9 WE CONCUR:


10
11 JONATHAN B. SUTIN, Judge


12
13 LINDA M. VANZI, Judge




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