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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, v. NO. 33,252 BARBARO FERNANDEZ, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Kenneth H. Martinez, District Judge

9 Gary K. King, Attorney General Albuquerque, NM for Appellee Jorge A. Alvarado, Chief Public Defender Steven J. Forsberg, Assistant Appellate Defender Albuquerque, NM for Appellant

16 MEMORANDUM OPINION KENNEDY, Chief Judge.

1 {1} Barbaro Fernandez (Defendant) appeals a district court judgment affirming his metropolitan court conviction for telephone harassment. In our notice of proposed summary disposition, we proposed to affirm. Defendant has filed a memorandum in opposition, which we have duly considered. As we do not find his argument to be persuasive, we affirm.

6 {2} On appeal to this Court, Defendant’s only argument is that the evidence was insufficient to support his conviction. [DS 15] In this Court’s notice of proposed summary disposition, we proposed to hold that the evidence was sufficient. In Defendant’s memorandum in opposition, he asserts that his statement to the victim that he would “make her pay” for her involvement with another man is not the sort of threat that the Legislature intended to punish. [MIO 1-2] We are not persuaded.

12 Viewing the evidence in the light most favorable to the judgment, this language could reasonably be construed as a threat to commit a tortious or criminal act. Cf. State v. Stephens, 1991-NMCA-019, ¶¶ 17-19, 111 N.M. 543, 807 P.2d 241 (holding that because the defendant’s communication did not include criminal or tortious misconduct, his conduct did not constitute a threat as intended by the Legislature).

17 {3} Therefore, for the reasons stated here and in our notice of proposed summary disposition, we affirm.

19 {4} IT IS SO ORDERED.

1 ____________________________________ 2 RODERICK T. KENNEDY, Chief Judge WE CONCUR:

4 ___________________________ TIMOTHY L. GARCIA, Judge

6 ___________________________ J. MILES HANISEE, Judge