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 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 <juveniles’ in the car.”     We disagree that this is the only evidence

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:



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1
2 JAMES J. WECHSLER, Judge


3
4 LINDA M. VANZI, Judge




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