     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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished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.



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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                  NO. A-1-CA-35967

 5 MICHAEL DALTON WALDROP,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
 8 Jennifer E. DeLaney, District Judge

 9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender
14 Mary Barket, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VANZI, Chief Judge.
                                                                                          


 1   {1}   Defendant Michael Dalton Waldrop appeals his convictions for intimidation

 2 of a witness, in violation of NMSA 1978, Section 30-24-3(A)(3) (1997), and

 3 aggravated battery against a household member (great bodily harm), in violation of

 4 NMSA 1978, Section 30-3-16(C) (2008, amended 2018), on the ground that the

 5 convictions are not supported by sufficient evidence. We affirm Defendant’s

 6 conviction for intimidation of a witness but reverse Defendant’s conviction for

 7 aggravated battery against a household member.

 8 BACKGROUND

 9   {2}   Because this is a memorandum opinion and the parties are familiar with the

10 facts of the case, we limit our recitation of the facts to those needed for clarity and

11 to adequately address the issues on appeal.

12   {3}   Defendant’s wife (Victim) testified at trial as follows. In the summer of

13 2015, things were rocky between Defendant and Victim because Defendant found

14 out that Victim was having an affair. After weeks of Defendant acting “all over the

15 place” and being “volatile,” on July 10, 2015, Victim gathered her personal items

16 from their home and attempted to leave Defendant. As she was moving her

17 clothing from the bedroom to the living room, Defendant poured gasoline on the

18 clothes and tried to light them with a flamethrower. Victim thought Defendant was

19 trying to light her clothing on fire because he was mad about her affair.




                                              2 
      
                                                                                          


 1   {4}   A week later, on July 16, 2015, Defendant received a text from the wife of

 2 the man with whom Victim was having the affair. Defendant started yelling at

 3 Victim and followed her into their bedroom where he handcuffed Victim to a bar

 4 in the closet and repeatedly hit and kicked her. While Victim was still handcuffed,

 5 Defendant directed her to get on the bed, ripped and removed her clothes, and

 6 forcibly pierced her private parts with a needle. He inserted body jewelry in the

 7 holes. Defendant threatened to shoot Victim if she did not stop screaming, and he

 8 hit her in the head with a gun.

 9   {5}   Victim felt sick later that night and told Defendant that she should go to the

10 hospital. Defendant said they could not go to the hospital because if they did, the

11 State would take away his towing warrants for domestic violence and that would

12 mean the loss of their only source of income.

13   {6}   The following day, Victim continued to feel sick and called her stepmother,

14 who was a nurse in Las Cruces, to examine her injuries. At Defendant’s direction,

15 Victim told her stepmother that she had been in a four-wheeler accident. Victim’s

16 stepmother examined Victim’s injuries and determined that Victim needed to go to

17 the hospital. As Victim was getting into her stepmother’s car, Defendant said what

18 sounded like, “Don’t fuck this up.” When asked why she did not contact the police

19 the day of the alleged beating and body piercing, Victim responded that she was

20 afraid of what Defendant might do, and that while she was in the closet, Defendant


                                              3 
      
                                                                                           


 1 said that he did not have a problem taking out cops or anyone else who might try to

 2 help her. Defendant told her that he would rather see her dead than with anyone

 3 else.

 4   {7}   The sexual assault nurse examiner, Sofia Osollo (the SANE), who examined

 5 Victim also testified at trial, and the entirety of her report was admitted into

 6 evidence without objection. During the course of the examination, the SANE asked

 7 Victim about prior injuries. Victim responded that she had some bruises because

 8 Defendant had strangled, hit, slapped, and kicked her the week before. At trial, the

 9 SANE was asked to look at a number of photos of Victim, three of which showed

10 bruising on Victim’s neck. When asked about these photos, the SANE testified that

11 there were “finger-like prints” on Victim’s upper neck, just below the mandible.

12 She indicated that the color and extent of bruises depends on a variety of factors

13 but provided no testimony as to whether the marks on Victim’s neck were a week

14 old or appeared to be more recent.

15   {8}   Defendant moved for directed verdict on the claim of aggravated battery of a

16 household member, which was based solely on the alleged strangulation. The

17 district court denied the motion stating that “the SANE nurse’s testimony and

18 report with regard to the strangulation and the marks as well as [Victim’s]

19 testimony with regard to the strangulation” provided sufficient evidence for the

20 count to go forward to the jury. Victim, however, never testified about being


                                             4 
      
                                                                                              


 1 strangled by Defendant, and the only evidence about strangulation came from the

 2 SANE.

 3   {9}    After deliberations, the jury found Defendant guilty of intimidation of a

 4 witness and aggravated battery against a household member (great bodily harm)

 5 based on the alleged strangulation, and not guilty of kidnapping, criminal sexual

 6 penetration, aggravated battery against a household member (deadly weapon), and

 7 false imprisonment. Defendant appeals his convictions on grounds of lack of

 8 sufficient evidence.

 9 DISCUSSION

10 Standard of Review

11   {10}   “The test for sufficiency of the evidence is whether substantial evidence of

12 either a direct or circumstantial nature exists to support a verdict of guilty beyond a

13 reasonable doubt with respect to every element essential to a conviction.” State v.

14 Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation

15 omitted). “Substantial evidence is relevant evidence that a reasonable mind might

16 accept as adequate to support a conclusion.” Id. (internal quotation marks and

17 citation omitted). “In reviewing whether there was sufficient evidence to support a

18 conviction, we resolve all disputed facts in favor of the [s]tate, indulge all

19 reasonable inferences in support of the verdict, and disregard all evidence and

20 inferences to the contrary.” Id. (internal quotation marks and citation omitted).


                                              5 
      
                                                                                               


 1 “The court should not re-weigh the evidence . . . or replace the fact-finder’s view

 2 of the evidence with the appellate court’s own view of the evidence.” State v.

 3 Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72. “[O]ur role is to

 4 determine whether a rational fact-finder could determine beyond a reasonable

 5 doubt the essential facts necessary to convict the accused.” Id.

 6 Intimidation of a Witness

 7   {11}   The district court instructed the jury as follows on intimidation of a witness:

 8                 For you to find [D]efendant guilty of intimidation of a witness
 9          as charged in Count 5, the [S]tate must prove to your satisfaction
10          beyond a reasonable doubt each of the following elements of the
11          crime:

12                1.    [D]efendant knowingly intimidated or threatened
13          [Victim] with the intent to keep [Victim] from truthfully reporting to a
14          law enforcement officer information relating to:
15                the commission or possible commission of kidnapping, criminal
16                sexual penetration or aggravated battery against a household
17                member;

18                2.     This happened in New Mexico on or between July 10th
19          and July 17th, 2015.

20   {12}   At trial, Victim testified that Defendant told her that she could not go to the

21 hospital for her injuries because the State would take away the towing warrants for

22 their business if he was arrested for domestic violence. The towing business was

23 the family’s only source of income and, according to Victim, loss of that business

24 and its related income would have negatively impacted the family. When she

25 insisted on calling her stepmother, Defendant told Victim to say that she had been
                                                6 
      
                                                                                          


 1 in a four-wheeler accident, which Victim did. Victim also testified at trial that

 2 when she was leaving the house with her stepmother to seek medical care,

 3 Defendant approached her and said what sounded like, “Don’t fuck this up.” In

 4 addition, Defendant made these statements after he had previously told Victim that

 5 he would rather see her dead than with anyone else and that he did not have a

 6 problem taking out any police officers or anyone else who came to help Victim.

 7   {13}   Defendant argues that Victim’s testimony concerning his statements that

 8 their only source of income would be lost if she went to the hospital after he

 9 assaulted her on July 16, 2015, and his statements warning Victim as she was

10 leaving for the hospital with her stepmother the following day do not qualify as

11 intimidation of a witness. According to Defendant, he was simply trying to

12 persuade Victim about the legal consequences if she reported acts of domestic

13 violence. He maintains that such statements—ones that do not include a threat of

14 physical harm, violence, or an unlawful act—do not constitute intimidation or

15 threats under Section 30-24-3(A)(3). Defendant also argues that reversal is

16 required because he was acquitted of “two of the three felonies which formed the

17 basis for the intimidation of a witness charge” and because the State’s primary

18 theory of guilt was legally erroneous. We are unpersuaded.

19   {14}   In State v. Fernandez, we upheld the defendant county commissioner’s

20 conviction for intimidation of a witness based on a letter he sent to his arresting


                                            7 
      
                                                                                            


 1 officer stating that the officer and his wife were in violation of a federal food

 2 commodities program. 1994-NMCA-056, ¶ 1, 117 N.M. 673, 875 P.2d 1104.

 3 Although the officer testified that he was not intimidated by the defendant’s calls

 4 and letters, we nevertheless concluded that the purpose of the letter was to

 5 intimidate the police officer and prevent him from testifying at trial and, as a result,

 6 such conduct was sufficient to constitute intimidation. Id. ¶¶ 1, 33-36. In reaching

 7 our holding, we noted that to establish the crime, the state is not required to prove

 8 that the victim actually felt intimidated. Id. ¶ 35.

 9   {15}   Similarly, in In re Gabriel M., 2002-NMCA-047, ¶¶ 2, 5, 132 N.M. 124, 45

10 P.3d 64, a juvenile defendant told two fellow employees who saw him commit a

11 crime that if he got in trouble, “he would know who told.” The defendant

12 challenged the charge of intimidation of a witness, arguing that he never intended

13 to keep the witnesses from talking to law enforcement about potentially

14 incriminating conduct they may have witnessed, and that the witnesses were not

15 afraid at the time he made the statement. Id. ¶¶ 23, 26. Noting that there was

16 conflicting evidence regarding whether the witnesses were afraid to disclose

17 information because of something the defendant said to them, we concluded there

18 was sufficient evidence to support the conviction. Id. ¶ 26.

19   {16}   Given our holdings in the above cases and that Defendant has provided no

20 law to the contrary, we conclude that there was sufficient evidence from which a


                                               8 
      
                                                                                              


 1 jury could find that Defendant committed intimidation of a witness. We also reject

 2 Defendant’s argument that he cannot be convicted of intimidation if he was not

 3 ultimately convicted of the felony he was attempting to prevent Victim from

 4 disclosing. As we have explained “a defendant may be convicted of intimidation of

 5 a witness even if he is acquitted of any crime associated with the actions relating to

 6 the commission or possible commission of a felony.” Id. ¶ 32 (internal quotation

 7 marks and citation omitted).

 8   {17}   Because the State presented sufficient evidence to support Defendant’s

 9 conviction for intimidation of a witness, in violation of Section 30-24-3(A)(3), we

10 affirm his conviction.

11 Aggravated Battery Against a Household Member (Great Bodily Harm)

12   {18}   The district court instructed the jury on the count of aggravated battery on a

13 household member (great bodily harm) as follows:

14                 For you to find [D]efendant guilty of aggravated battery with
15          great bodily harm against a household member as charged in Count 3,
16          the [S]tate must prove to your satisfaction beyond a reasonable doubt
17          each of the following elements of the crime:

18                 1.    [D]efendant touched or applied force to [Victim’s] neck
19          by strangling her;

20                2.     [D]efendant intended to injure [Victim];

21                3.     [D]efendant acted in a way that would likely result in
22          death or great bodily harm to [Victim];

23                4.    [Victim] was a household member of [D]efendant;
                                               9 
      
                                                                                            



 1                5.     This happened in New Mexico on or between July 10th
 2          and July 17th, 2015.

 3   {19}   The jury was also given an instruction on great bodily harm:

 4                 Great bodily harm means an injury to a person which creates a
 5          high probability of death or results in serious disfigurement or results
 6          in loss of any member or organ of the body or results in permanent or
 7          prolonged impairment of the use of any member or organ of the body.

 8   {20}   Defendant argues that there was insufficient evidence to convict him of

 9 aggravated battery against a household member (great bodily harm) because the

10 only evidence that Victim was strangled came from the SANE’s testimony and

11 report that constituted inherently unreliable hearsay, and even if the SANE’s

12 testimony and report can be relied upon, there is nonetheless insufficient evidence

13 to sustain his conviction. We agree with Defendant’s argument as to the

14 sufficiency of the evidence.

15   {21}   Because Defendant did not object to admissibility of the evidence as hearsay

16 at trial, we will treat the SANE’s testimony and report as competent evidence for

17 purposes of this appeal. See State v. Romero, 1960-NMSC-047, ¶ 16, 67 N.M. 82,

18 352 P.2d 781 (“We have held that hearsay, admitted without objection, is to be

19 considered along with other evidence in determining whether there is substantial

20 evidence to sustain a verdict on appeal[.]”); see also Rule 12-321(A) NMRA (“To

21 preserve an issue for review, it must appear that a ruling or decision by the trial

22 court was fairly invoked.”). Although we consider the SANE’s report and
                                              10 
      
                                                                                            


 1 testimony as admissible evidence, we conclude that the evidence was not sufficient

 2 to establish the elements for aggravated battery of a household member.

 3   {22}   While Victim described in detail multiple instances of alleged abuse on July

 4 10 and 16, 2015, she did not testify at trial that Defendant strangled her. The only

 5 evidence that Victim was strangled was a statement in the SANE report quoting

 6 Victim as stating that Defendant had strangled her in the prior week, the SANE’s

 7 testimony at trial re-iterating the report’s statement, and the photographs showing

 8 neck bruises. Even assuming that Defendant did strangle Victim, there is no

 9 evidence that Defendant “acted in a way that would likely result in death or great

10 bodily harm” to Victim as required by the jury instruction. See State v. Wynn,

11 2001-NMCA-020, ¶ 4, 130 N.M. 381, 24 P.3d 816 (“Aggravated battery is a

12 specific intent crime.”); cf. State v. Hollowell, 1969-NMCA-105, ¶ 29, 80 N.M.

13 756, 461 P.2d 238 (concluding that the victim’s testimony that the defendant

14 choked him so that his breath was cut off was sufficient to show that the

15 defendant’s conduct created a “high probability of death”).

16   {23}   Because the State did not offer evidence that “each element of the crime

17 [was] established beyond a reasonable doubt[,]” State v. Garcia, 1992-NMSC-048,

18 ¶ 27, 114 N.M. 269, 837 P.2d 862, the evidence is insufficient to support

19 Defendant’s conviction for aggravated battery against a household member (great




                                             11 
      
                                                                                     


 1 bodily harm), in violation of Section 30-3-16(C). We therefore reverse this

 2 conviction.

 3 CONCLUSION

 4   {24}   For the reasons set forth above, we affirm Defendant’s conviction for

 5 intimidation of a witness and reverse Defendant’s conviction for aggravated

 6 battery of a household member (great bodily harm) and remand for re-sentencing

 7 and further proceedings consistent with this opinion.

 8   {25}   IT IS SO ORDERED.



 9                                        _________________________________
10                                        LINDA M. VANZI, Chief Judge

11 WE CONCUR:



12 _________________________________
13 STEPHEN G. FRENCH, Judge



14 _________________________________
15 HENRY M. BOHNHOFF, Judge




                                            12 
      
