1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 27,606
10 DARLENE TANNER,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 13 Thomas Hynes, District Judge
14 Gary K. King, Attorney General 15 Katherine Zinn, Assistant Attorney General 16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender 19 Joseph P. Walsh, Assistant Public Defender 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 VIGIL, Judge. 1 Defendant appeals her convictions for one count of driving while intoxicated
2 (fourth offense) (“DWI”) and one count of child abuse, not resulting in death or great
3 bodily harm, raising six issues on appeal. We affirm.
4 BACKGROUND
5 The material facts leading up to the initial stop of Defendant’s vehicle are not
6 in dispute. A dispatch call was made to police by a citizen-informant at a convenience
7 store. The citizen-informant told the dispatcher that Defendant appeared intoxicated.
8 Based on the call, the police dispatcher sent out an “attempt to locate” bulletin
9 (“ATL”) providing a description of the vehicle and the driver and stating that the
10 driver was suspected of DWI. Officers Calkins, Clark, and Webb responded to the
11 ATL, but Sergeant Webb was the officer who initially stopped Defendant’s vehicle
12 in a convenience store parking lot. Deputy Calkins was the field training officer
13 supervising Deputy Clark, and the two were riding in the same vehicle.
14 None of the officers testified that the dispatch included information regarding
15 the facts giving rise to the caller’s suspicion that Defendant was intoxicated. After
16 stopping the vehicle based on the ATL, Deputy Clark discovered that Defendant
17 displayed signs of intoxication. After administering field sobriety tests, Defendant
18 was arrested and later charged with DWI (over .08) or, in the alternative, based on
2 1 impairment “to the slightest degree,” one count of child abuse not resulting in death
2 or great bodily harm, and three other counts that were later dismissed.
3 Defendant filed a motion to suppress and a motion in limine to exclude the
4 results of the blood alcohol tests (“BAT”); both motions were denied. After a jury
5 trial, Defendant was convicted of DWI and child abuse not resulting in death or great
6 bodily harm. This appeal followed. Additional facts are incorporated in the following
7 discussion where necessary.
8 I. PROPRIETY OF STOP
9 Defendant contends that all of the evidence should be suppressed because the
10 officers had insufficient information to justify a stop of her vehicle. She claims that
11 even if the informant gave the dispatcher sufficient information to establish reasonable
12 suspicion that she was committing the offense of DWI, that information was not
13 communicated to the officers and thus they lacked sufficient facts to justify stopping
14 her. Defendant also claims that presentation of the evidence justifying the stop
15 violated her constitutional right to confront her accuser. This contention is discussed
16 in detail following analysis of the propriety of the stop.
17 STANDARD OF REVIEW
18 In reviewing the district court’s denial of a motion to suppress, we determine
19 “whether the law was correctly applied to the facts, viewing them in a manner most
3 1 favorable to the prevailing party.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M.
2 119, 2 P.3d 856 (internal quotation marks and citation omitted). We defer to the
3 district court’s findings of fact to the extent that they are supported by substantial
4 evidence. Id. However, we “review the application of the law to these facts,
5 including determinations of reasonable suspicion, under a de novo standard of
6 review.” State v. Patterson, 2006-NMCA-037, ¶ 13, 139 N.M. 322, 131 P.3d 1286.
7 In this case, the district court did not enter any formal factual findings or conclusions
8 of law. Therefore, we will employ all reasonable presumptions in support of the
9 district court’s ruling. See Jason L., 2000-NMSC-018, ¶ 11.
10 DISCUSSION
11 When an officer stops an automobile to investigate a possible crime, we analyze
12 the reasonableness of the stop and ensuing investigatory detention in accordance with
13 the two-part test in Terry v. Ohio, 392 U.S. 1 (1968). See State v. Duran,
14 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836. We ask whether the stop was
15 justified at its inception and whether the officer’s actions during the stop were
16 reasonably related to circumstances that justified the stop. Id. In order for the stop
17 to be justified at its inception, “[t]he officer, looking at the totality of the
18 circumstances, must be able to form a reasonable suspicion that the individual in
19 question is engaged in or is about to be engaged in criminal activity.” State v.
4 1 Contreras, 2003-NMCA-129, ¶ 5, 134 N.M. 503, 79 P.3d 1111. “A reasonable
2 suspicion is a particularized suspicion, based on all the circumstances that a particular
3 individual, the one detained, is breaking, or has broken, the law.” Jason L., 2000-
4 NMSC-018, ¶ 20. When officers stop a suspect pursuant to a tip, we consider the
5 totality of the circumstances to determine whether the tip was sufficiently reliable to
6 provide police with reasonable suspicion that a crime “was being or was about to be
7 committed,” or whether the tip was sufficient to indicate the possibility of danger to
8 the public thus justifying an investigatory stop. Contreras, 2003-NMCA-129, ¶ 7.
9 At the suppression hearing, Defendant conceded that the informant identified
10 herself to the dispatcher by name, and informed the dispatcher that she was a
11 convenience store clerk who had refused to sell alcohol to Defendant because
12 Defendant appeared to be intoxicated and that she witnessed Defendant driving away
13 from the store. Despite the information provided to the dispatcher, the officers
14 testified that they were not given any factual details as to the nature of the complaint
15 or a description of driving; the dispatcher only reported the conclusion that the driver
16 was suspected of DWI and identified Defendant’s car by description and license plate
17 number.
18 Defendant contends that the stop was not justified because none of the officers
19 claimed to have any information regarding the facts supporting the suspicion that
5 1 Defendant was committing a DWI; instead, the officers improperly relied on
2 information which accurately described the suspect and her vehicle but which failed
3 to provide a factual description of the alleged crime. We disagree.
4 Even though no facts were provided to support the informant’s suspicion that
5 Defendant was intoxicated, officers were justified in making the stop due to the
6 exigent circumstances presented by a possibly intoxicated driver and due to the
7 identifying information provided by the informant and conveyed by the dispatcher.
8 See id. ¶ 21 (holding that, under the totality of circumstances, the officer’s stop of the
9 defendant’s vehicle was reasonable in light of the “exigency of the possible threat to
10 public safety that a drunk driver poses,” and given that the tip was provided by “a
11 reliable concerned motorist” and that the information was sufficiently detailed to
12 allow the officer to “find the vehicle in question and confirm the description”); State
13 ex rel. Taxation & Revenue Dep’t Motor Vehicle Div. v. Van Ruiten, 107 N.M. 536,
14 538-39, 760 P.2d 1302, 1304-05 (Ct. App. 1988) (applying the standard used in
15 criminal cases and concluding that the officer had reasonable suspicion justifying the
16 stop when the dispatcher provided him with information that someone had called and
17 reported seeing a very intoxicated person leaving a store and describing the vehicle
18 and the direction of travel).
6 1 Defendant cites to Florida v. J.L., 529 U.S. 266 (2000), to support her
2 contention that officers were not justified in relying on the information conveyed by
3 the dispatcher. In J.L., officers relied on an anonymous tip that a person was carrying
4 a gun to justify a search of the defendant. Id. at 268. The tip came from an unknown
5 person at an unknown location. Id. at 270. The Supreme Court held that the search
6 violated the defendant’s Fourth Amendment rights because the call provided “no
7 predictive information,” and therefore the police had no means to test the informant’s
8 knowledge or credibility. Id. at 271.
9 We are unpersuaded that J.L. warrants reversal in this case given that this Court
10 has previously considered and rejected the same argument in Contreras. See
11 Contreras, 2003-NMCA-129, ¶¶ 3, 6, 16-21. In rejecting the defendant’s argument
12 in Contreras, this Court noted the significant number of cases from other jurisdictions
13 decided after J.L. and holding that a tip that provided sufficient information to reliably
14 identify the car, provided sufficient justification to allow officers to make the stop.
15 Contreras, 2003-NMCA-129, ¶¶ 9, 17-21 (recognizing the holding in J.L., but then
16 holding that officers were justified in making the stop because the facts “allow[ed an]
17 inference that the anonymous caller was a reliable concerned motorist; the information
18 given was detailed enough for the deputies to find the vehicle in question and confirm
19 the description; and the caller was an apparent eyewitness to the erratic driving”).
7 1 In Contreras, the informant was an anonymous citizen who was an eyewitness
2 to the erratic driving, which lent credibility to the anonymous claim. Id. ¶ 12. In this
3 case, the informant lent credibility to her claim by identifying herself by name and as
4 a convenience store employee and telling the dispatcher that she personally observed
5 Defendant’s intoxicated behavior. An informant such as the one in this case is
6 considered to be more reliable than other types of informants and thus subject to less
7 stringent credibility verification requirements because such informants have nothing
8 to gain by providing false information. See id. ¶ 10. Moreover, in contrast to the
9 circumstances underlying the search in J.L., this case involves “a moving car on a
10 public roadway [which] presents an exigent circumstance that a possessory crime does
11 not[;] . . . it is the imminent threat to public safety that distinguishes th[is] case[] from
12 J.L.” Contreras, 2003-NMCA-129, ¶ 15. Finally, a brief investigatory stop such as
13 the one in this case is “less intrusive than the pat-down search at issue in J.L.” Id. ¶
14 16.
15 Finally, we disagree that reversal is warranted based on this Court’s decision
16 in State v. Moore, 2008-NMCA-056, 144 N.M. 14, 183 P.3d 158. [BIC 16-17] In
17 Moore, this Court found that a warrantless search of a residence was not justified by
18 exigent circumstances. Id. ¶¶ 14-16 (holding that exigent circumstances justifying
19 warrantless entry into a residence were not presented by an ammonia leak in a garage
8 1 that was thirty to forty feet away from the residence in the absence of sufficient,
2 particularized, articulable facts suggesting that individuals in the residence were
3 incapacitated). However, the facts underlying the search in Moore are more similar
4 to those presented in J.L. than to those presented in Contreras or this case because
5 Moore does not concern the exigent circumstances presented by a potential drunk
6 driver on a public roadway. See Contreras, 2003-NMCA-129, ¶¶ 15-16, 21; cf. State
7 v. Rowell, 2008-NMSC-041, ¶¶ 28-35, 144 N.M. 371, 188 P.3d 95 (reversing the
8 Court of Appeals and holding that the officer’s warrantless search of the defendant’s
9 vehicle was justified by the exigent circumstances presented once the defendant
10 admitted that he had a shotgun in the vehicle that was on school premises).
11 Based on the foregoing, we affirm the denial of Defendant’s motion to suppress
12 based upon her challenge to the initial stop.
9 1 II. CONFRONTATION CLAUSE
2 Defendant contends that she was entitled to a new suppression hearing because
3 her right to confrontation was violated when she was unable to confront the citizen-
4 informant, her primary accuser, during the suppression hearing. She notes that the
5 informant provided all of the information justifying the stop, and then claims that she
6 was deprived of her constitutional right to confront this witness “whose testimony
7 would either confirm or dispel the existence of reasonable suspicion.” We disagree.
8 STANDARD OF REVIEW
9 “Questions of admissibility under the Confrontation Clause are questions of
10 law, which we review de novo.” State v. Dedman, 2004-NMSC-037, ¶ 23, 136 N.M.
11 561, 102 P.3d 628; see State v. Romero, 2006-NMCA-045, ¶ 12, 139 N.M. 386, 133
12 P.3d 842, aff’d 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694.
13 DISCUSSION
14 It is undisputed that the information obtained from the citizen-informant was
15 used only for purposes of justifying the stop; she was not a witness at trial and did not
16 testify or present evidence against Defendant. Therefore, we are unconvinced that
17 Defendant’s right to confrontation was triggered and we are unpersuaded by
18 Defendant’s citation to out-of-state authority supporting the proposition that a
19 defendant is entitled to confront eyewitnesses whose statements are presented at trial
10 1 through the testimony of the investigating officer. See State v. Rivera, 2008-NMSC-
2 056, ¶¶ 18, 22-23, 144 N.M. 836, 192 P.3d 1213 (noting that recent Supreme Court
3 cases continue to focus on the protections that must be afforded a defendant at trial
4 and holding that an accused does not have a Sixth Amendment right to confront and
5 cross-examine witnesses at a pretrial hearing on a motion to suppress evidence).
6 Finally, Defendant claims that even though the informant’s statements were not
7 introduced at trial, the right to confrontation is a pre-trial right. See State v. Hensel,
8 106 N.M. 8, 738 P.2d 126 (Ct. App. 1987). We disagree and note that Hensel was
9 expressly overruled by our Supreme Court in Rivera. See Rivera, 2008-NMSC-056,
10 ¶ 22 (stating that “the Hensel opinion does not reflect current confrontation clause
11 jurisprudence and is of no current value to our courts. It is hereby overruled”).
12 III. ADMISSION OF BAT RESULTS
13 Defendant claims that the district court abused its discretion in admitting the
14 BAT results into evidence because Deputy Calkins, the operator of the machine used
15 to test her, did not comply with the regulation of the Scientific Laboratory Division
16 of the Department of Health (“SLD”), which requires the officer administering the
17 breath test to first “ascertain[] that the subject has not had anything to eat, drink or
18 smoke for at least 20 minutes prior to collection of the first breath sample.”
19 7.33.2.12(B)(1) NMAC (03/14/01). She further contends that the results were
11 1 improperly admitted because the State failed to make a threshold showing that the
2 machine used to test Defendant, the Intoxilyzer 8000 (“breath machine”) was properly
3 certified.
4 STANDARD OF REVIEW
5 We review the district court’s decision on whether to admit the results of the
6 BAT for abuse of discretion. State v. Willie, 2008-NMCA-030, ¶ 5, 143 N.M. 615,
7 179 P.3d 1223, rev’d on other grounds, 2009-NMSC-037, __ N.M. __, __P.3d __
8 (No. 30,909, June 24, 2009). Interpretation of a regulation is subject to de novo
9 review. Willie, 2009-NMSC-037, ¶ 9. Once a defendant objects, the district court
10 abuses its discretion if it admits evidence when the foundational requirements have
11 not been established. See Willie, 2008-NMCA-030, ¶ 5. In determining whether BAT
12 results are admissible, the district court needs to find by a preponderance of the
13 evidence that foundational requirements have been met. See Willie, 2009-NMSC-037,
14 ¶ 8; State v. Martinez, 2007-NMSC-025, ¶¶ 10-11, 21, 141 N.M. 713, 160 P.3d 894.
12 1 DISCUSSION
2 Deputy Clark was not a certified operator of the breath machine, so the BAT
3 was administered by Deputy Calkins. Even though Deputy Calkins performed the
4 test, Deputy Clark observed Defendant during the twenty-minute observation period.
5 Defendant claims that the BAT results were improperly admitted because
6 Deputy Calkins, the officer administering the test, failed to “ascertain” that Defendant
7 had nothing to eat, drink, or smoke for twenty minutes prior to the test as required by
8 7.33.2.12(B)(1) NMAC. She claims that Deputy Calkins delegated the “non-
9 delegable duty” to ascertain whether she had been deprived of food, drink, or smoking
10 materials for twenty minutes to an “unqualified individual” because Deputy Calkins
11 did not remember what steps, if any, were taken to ensure that Defendant had nothing
12 to eat, drink or smoke during the twenty-minute period.
13 Deputy Clark testified that he conducted the twenty-minute deprivation period.
14 He testified that he arrested Defendant at 7:44 p.m., handcuffed her hands behind her
15 back, asked her if she had anything in her mouth, searched her to confirm she had
16 nothing on her person, and asked her to open her mouth so he could confirm that it
17 was empty. He testified that he then placed her in the back of the patrol car where she
18 remained until they arrived at the substation at 8:11 p.m. At that point, Defendant was
19 escorted into the “intox” room where she remained in the presence of Deputies Clark
13 1 and Calkins until the BAT commenced at 8:15 p.m. Based upon this testimony, the
2 district court could conclude by a preponderance of the evidence that Deputy Clark
3 ascertained that Defendant had nothing to eat, drink, or smoke during the twenty-
4 minute observation period before the first BAC. Cf. Willie, 2009-NMSC-037, ¶¶ 12-
5 13, 16 (reversing the Court of Appeals which required that the officer ask and check
6 whether a suspect has something in his or her mouth, interpreting the ascertainment
7 regulation as allowing a BAT operator to use a variety of methods and means “to
8 determine that a DWI suspect has had nothing to eat, drink, or smoke during the
9 deprivation period,” and stating that no specific action on the part of the BAT operator
10 is required).
11 Even though Deputy Clark was the officer who ensured compliance with the
12 requisite deprivation period, there is nothing in the regulations requiring that the
13 officer who observes a suspect for twenty minutes prior to the test, be the same officer
14 who administers the test and nothing precludes the testing officer from delegating the
15 duty regarding the deprivation period to another officer. Instead, it is only necessary
16 that the person administering the test ascertain through a reliable means that the
17 suspect has had nothing to eat, drink, or smoke for twenty minutes prior to the test.
18 Id. ¶ 14 (holding that the BAT operator may use a variety of means at their disposal
14 1 to determine that the subject has had nothing to eat, drink, or smoke “on an
2 individualized, case-by-case basis”).
3 Deputies Clark and Calkins testified that they were near Defendant during the
4 entire deprivation period. Furthermore, Deputy Calkins testified that he knew Deputy
5 Clark had been trained to conduct the deprivation period and it was Deputy Calkins’
6 role to ensure that Deputy Clark correctly performed his duties. Based upon the
7 testimony of Deputies Clark and Calkins, taken as a whole, the district court could
8 find by a preponderance of the evidence that Deputy Calkins ascertained that
9 Defendant had nothing to eat, drink or smoke for at least twenty minutes before he
10 administered the tests because Deputy Calkins and the court could rely on Deputy
11 Clark’s actions in observing Defendant to insure that the purpose of the regulation has
12 been met—that Defendant have nothing to eat, drink, or smoke for at least twenty
13 minutes before the first BAT is administered. Cf. Willie, 2009-NMSC-037, ¶¶ 12, 16
14 (noting that “ascertain” suggests the need “to make a determination to some degree
15 of certainty [but it] does not address the manner in which such a determination is
16 made”); State v. Rivera, 1997-NMCA-102, ¶ 4-5, 124 N.M. 211, 947 P.2d 168
17 (holding that the purpose of the twenty-minute observation period could be satisfied
18 by testimony showing that the officer was sitting in the car with the defendant because
19 the purpose is “to insure that a defendant does nothing to compromise the test”).
15 1 Defendant also argues that the BAT results were inadmissible because the State
2 failed to establish that the breath machine was properly certified. Defendant claims
3 that at trial, Deputy Calkins admitted that he had no knowledge as to whether the
4 machine was certified. She claims that she challenged the certification of the machine
5 both orally and in writing before trial. She admits that the State provided proof as to
6 certification of the machine by providing a copy of the certification documents during
7 discovery, but claims that she could not determine if the machine was properly
8 calibrated absent an affirmative showing of proper calibration by the State, and that
9 the certification documents alone are insufficient unless someone testifies as to
10 certification.
11 Defendant is correct that even though the State establishes the foundational
12 requirement of certification by introducing testimony or documentation, she may
13 challenge the admissibility of the BAT by introducing evidence calling into doubt the
14 validity of the certification. See Martinez, 2007-NMSC-025, ¶¶ 23-25 (holding that
15 the officer’s testimony that he saw the SLD certification sticker on the machine was
16 sufficient to meet the foundational requirement of proper certification by a
17 preponderance of the evidence but also observing that a defendant may still challenge
18 the reliability of BAT results by seeking discovery to provide information to be able
19 to “critically challenge an officer’s foundational testimony concerning certification”).
16 1 However, we disagree with Defendant’s contention that alerting the State that
2 certification is challenged is all that is necessary to require the State to show
3 certification with a “proper foundational witness.”
4 After the State produced the documents establishing certification, Defendant
5 put forth nothing to challenge the State’s foundational proof that the machine was
6 properly certified except for unsupported allegations that live testimony was necessary
7 to avoid reliance on the hearsay that was purportedly contained in the certification
8 document. This is insufficient to call the State’s foundation proof into doubt or to
9 require the State to produce additional proof. See State v. Granillo-Macias,
10 2008-NMCA-021, ¶ 20, 143 N.M. 455, 176 P.3d 1187 (accepting the district court’s
11 observations that the SLD maintains the breath machines in accordance with certain
12 rules and regulations, the certification information is available for review by
13 defendants to ensure the veracity of certification documents, and unless evidence
14 appears to the contrary to challenge the veracity of the documents, the officer’s
15 testimony that a machine had a proper, valid certification certificate is sufficient to
16 establish a presumption that the machine is operating correctly).
17 IV. PROSECUTORIAL MISCONDUCT
18 Defendant contends that the district court abused its discretion in permitting the
19 State to argue in closing that the ATL was based on a suspected DWI when no witness
17 1 testified about suspecting Defendant of DWI prior to the stop and when Defendant
2 could not cross-examine any such witness as to the credibility of the suspicion of
3 DWI. See State v. Duffy, 1998-NMSC-014, ¶¶ 46-47, 126 N.M. 132, 967 P.2d 807
4 (stating that a trial court’s rulings on prosecutorial misconduct are reviewed for abuse
5 of discretion), modified on other grounds by State v. Gallegos, 2007-NMSC-007, ¶
6 17, 141 N.M. 185, 152 P.3d 828.
7 Before trial, the district court granted Defendant’s motion in limine prohibiting
8 the State from making any reference to the fact that the ATL was related to a possible
9 DWI or reference to any statements made by the informant that Defendant was driving
10 impaired because such information would be hearsay and also violate Defendant’s
11 rights under the Confrontation Clause. During closing arguments, the prosecutor
12 made reference to the stop being pursuant to an ATL of a suspected DWI. At trial,
13 Defendant objected claiming “facts not in evidence” because such statements were
14 excluded by the district court’s pre-trial ruling and because he believed that no witness
15 testified regarding any suspicion of DWI prior to the stop. See State v. Diaz, 100
16 N.M. 210, 213-14, 668 P.2d 326, 329-30 (Ct. App. 1983) (stating that, during closing
17 “a prosecutor must confine himself to the facts introduced in evidence and to the fair
18 and reasonable inferences to be drawn therefrom”). The court overruled Defendant’s
19 objection.
18 1 Defendant contends that the prosecutor’s statement was not based on evidence
2 introduced at trial and that it was so prejudicial and such egregious misconduct that
3 it warrants a new trial. See Duffy, 1998-NMSC-014, ¶¶ 46-47 (stating that
4 prosecutorial misconduct may warrant a new trial if it is “so egregious” and “had such
5 a persuasive and prejudicial effect on the jury’s verdict that the defendant was
6 deprived of a fair trial”). We disagree.
7 In Defendant’s opening statement, she conceded that the State’s evidence could
8 prove that she was driving while intoxicated by stating an expectation that the
9 evidence would show she was driving while intoxicated including evidence of
10 standardized field sobriety tests, bloodshot, watery eyes, and alcohol in the car. She
11 reiterated this concession during closing by instructing the jury to only “convict her
12 of what she’s guilty of, convict her of the DUI.” Moreover, during trial, Defendant
13 did not object when Sergeant Webb testified that he received an ATL “reference
14 possible DWI.” Therefore, the prosecutor’s comments did not introduce facts that
15 were not in evidence. See id. ¶ 59.
16 Finally, to whatever extent Defendant might claim that her failure to object to
17 Sergeant Webb’s testimony should be excused because that testimony combined with
18 the prosecutor’s comments were so prejudicial as to constitute fundamental error, we
19 again disagree. Given Defendant’s own statements during opening and closing, we
19 1 are not persuaded that the State’s actions in referring to the possible DWI as a basis
2 for the ATL or Sergeant Webb’s statement prejudiced Defendant’s case. See In re
3 Ernesto M., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (stating that “[a]n
4 assertion of prejudice is not a showing of prejudice”); State v. Fernandez, 117 N.M.
5 673, 676, 875 P.2d 1104, 1107 (Ct. App. 1994) (“In the absence of prejudice, there
6 is no reversible error.”).
7 V. SUFFICIENCY OF THE EVIDENCE FOR CHILD ABUSE
8 Last, Defendant contends there was insufficient evidence to support her
9 conviction for child abuse not resulting in death or great bodily harm. Specifically,
10 she argues that there was no evidence presented to show that the children in the
11 vehicle were under the age of eighteen, or the identities of the children as set forth in
12 the jury instructions.
13 STANDARD OF REVIEW
14 We review the evidence introduced at trial to determine “whether substantial
15 evidence of either a direct or circumstantial nature exists to support a verdict of guilt
16 beyond a reasonable doubt with respect to every element essential to a conviction.”
17 State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We view the
18 evidence in the light most favorable to the verdict, resolving all conflicts and
19 indulging all inferences in favor of the verdict. See State v. Apodaca, 118 N.M. 762,
20 1 765-66, 887 P.2d 756, 759-60 (1994). We do not reweigh the evidence or substitute
2 our judgment for that of the fact finder so long as there is sufficient evidence to
3 support the verdict. State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d
4 789.
5 DISCUSSION
6 To convict Defendant of child abuse not resulting in death or great bodily harm,
7 the jury had to find, beyond a reasonable doubt, that Defendant “caused Tracy Tanner,
8 Raymond Tanner, and Ilene Tanner,” to be placed in a situation that endangered their
9 life or health and that “Tracy Tanner, Raymond Tanner, and Ilene Tanner were under
10 the age of 18.” See State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App.
11 1986) (observing that “[j]ury instructions become the law of the case against which
12 the sufficiency of the evidence is to be measured”).
13 Defendant contends that the State failed to prove that the occupants of the car
14 were children under eighteen years of age. She notes, correctly, that the children were
15 never named at trial, and there was no testimony as to their ages. She also claims that
16 the only evidence on which the State could rely was a “mention by the officer that
17 there were
18 supporting the element that Defendant’s juvenile children were in the car. We now
19 turn to the evidence in support of the conviction.
21 1 Sergeant Webb, who initially stopped the vehicle, testified that there were five
2 other occupants including a “four year old girl [in the] front passenger seat.”
3 Defendant objected, and the court sustained the objection stating that the officer had
4 to lay a foundation as to how he knew the age. Sergeant Webb then testified that
5 another female juvenile was found directly behind the driver’s seat and a juvenile boy
6 was in the back. He also testified that he stayed on the scene until the children’s
7 father took them home, and he remained on the scene until the father arrived to “take
8 custody of the children.”
9 In addition to Sergeant Webb’s testimony, a videotape of the interaction
10 between Defendant and the police was played to the jury. On the videotape,
11 Defendant is asked who is in the car with her, and she responds “my children,” and
12 someone can be heard saying “mommy, mommy.” An officer is then heard to say
13 “[w]e’ll get a[]hold of their dad, okay?” Later, an officer asked Defendant if her
14 husband can pick up the car and the kids, and she says yes. After playing the tape, the
15 State asked the arresting officer, Deputy Clark, “did you observe the children in the
16 vehicle?” and he responded “yes.”
17 Based upon this testimony and the videotape, the jury could conclude beyond
18 a reasonable doubt, that Defendant “caused Tracy Tanner, Raymond Tanner, and Ilene
19 Tanner,” to be placed in a situation that endangered their life or health and that “Tracy
22 1 Tanner, Raymond Tanner, and Ilene Tanner were under the age of 18,” in order to
2 convict Defendant of one count of child abuse not resulting in great bodily harm. See
3 State v. Cunningham, 2000-NMSC-009, ¶ 29, 128 N.M. 711, 998 P.2d 176 (stating
4 that circumstantial evidence may be sufficient to uphold a conviction); cf. State v.
5 Barber, 2004-NMSC-019, ¶ 33, 135 N.M. 621, 92 P.3d 633 (affirming the defendant’s
6 conviction because the state presented enough circumstantial evidence
7 to support all of the inferences necessary for the jury to find the essential elements of
8 the crime beyond a reasonable doubt).
9 CONCLUSION
10 As the stop and investigation of Defendant were justified, Defendant was not
11 entitled to a suppression of the evidence obtained as a result of the stop. We affirm
12 the denial of Defendant’s motion to suppress and affirm her convictions.
13 IT IS SO ORDERED.
14 15 MICHAEL E. VIGIL, Judge
16 WE CONCUR:
23 1 2 JAMES J. WECHSLER, Judge
3 4 LINDA M. VANZI, Judge