This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. A-1-CA-37116 4 UBALDO RODRIGUEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 Angie K. Schneider, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 J.K. Theodosia Johnson, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VIGIL, Judge. 17 {1} Defendant Ubaldo Rodriguez has app ealed from multiple convictions for 18 trafficking, as well as possession of a fi rearm by a felon. We issued a notice of 192 proposed summary disposition in which we proposed to uphold the convictions. 1 Defendant has filed a memorandum in opposition. After due consideration, we remain 2 unpersuaded by the assertions of error. We therefore affirm. 3 {2} The relevant background information was previously set forth. We will avoid 4 undue reiteration here, and focus instead on the content of the memorandum in 5 opposition. 6 {3} Defendant continues to ch allenge the sufficiency of the evidence, specifically 7 arguing that his own testimony should besaid to have established objective 8 entrapment as a matter of law. [MIO 5] This would have required Defendant to 9 conclusively demonstrate that police conduct exceeded the standards of proper 10 investigation. See State v. Mendoza , 2016-NMCA-002, ¶ 14, 363 P.3d 1231 11 (“Objective entrapment may be held to exist as a matter of law when the district court 12 determines that “as a matter of law the police conduct exceeded the standards of 13 proper investigation.” (alterations, internalquotation marks, and citation omitted). In 14 this case, the undisputed facts merely es tablished that police used a confidential 15 informant to facilitate one purchase by anundercover agent, w ho subsequently made 16 two more purchases from Defendant. This does not constitute objective entrapment. 17 See State v. Vallejos , 1997-NMSC-040, ¶ 22, 123 N.M . 739, 945 P.2d 957 (observing 18 that objective entrapment is “reserved for only the most egregious circumstances,” and 193 is not indicated simply because the po lice participate “in a crime they are 1 investigating” or use “deception to gainthe confidence of suspects” (internal 2 quotation marks and citation omitted)). We therefore remain unpersuaded that 3 Defendant was entitled to dismissal of the charges as a matter of law. 4 {4} Defendant’s argument appears to be largely premised upon the theory that he 5 was the victim of a circular transaction. [MIO 1, 5] However, as we previously 6 observed, Defendant’s tes timony was effectively cont roverted by the undercover 7 officer’s conflicting account of the transac tions, the circumstances of which did not 8 suggest circularity. [CN 2-3] Accordingly, ne ither the district court nor the jury were 9 required to accept Defendant’s version of the incidents. See State v. Shirley , 2007- 10 NMCA-137, ¶¶ 27-29, 142 N.M. 765, 170 P.3d 1003 (observing that while circular 11 transactions amount to entrapment, a defendant’s testimony to this effect need not be 12 believed). We therefore reject Defe ndant’s first assertion of error. 13 {5} Defendant also continues to argue that the jury instructions were flawed. [MIO 14 5-8] However, we remain of the opinion that the district court properly utilized the 15 applicable UJIs. See State v. Ortega , 2014-NMSC-017, ¶ 32, 327 P.3d 1076 16 (“Uniform jury instructions ar e presumed to be correct.”); Jackson v. State , 1983- 17 NMSC-098, ¶ 5, 100 N.M. 487, 672 P.2d 660 (“ When a uniform jury instruction is 184 provided for the elements of a crime, generally that instruction must be used without 1 substantive modification.”). 2 {6} Defendant contends that the uniform in structions should have been modified, 3 to incorporate the absence of entrapment in the elements instructions. [MIO 6-8] 4 However, the entrapment defense does not e ffectively alter the elements or create an 5 issue as to the lawfulness of Defendant’s ac tions; it merely raised the question whether 6 Defendant’s unlawful acti ons should be excused. See State v. Percival , 2017-NMCA7 042, ¶¶ 11, 17, 394 P.3d 979 (discussing the distinction between defenses that 8 effectively negate essential el ements, and defenses that e ffectively excuse intentional 9 criminal conduct because of the surrounding circumstances; and indicating that this 10 distinction similarly explains why unlawfuln ess is not a necessary element in relation 11 to the latter class of defenses). As a re sult, we remain unpersuaded that modification 12 of the essential elements instruction was required. 13 {7} We are similarly unpersuaded thatour Supreme Court’s subsequent 14 modification of the use notes associated w ith the defense of dur ess requires a different 15 result, [MIO 5-6] particularly in light of its failure to similarly modify the use notes 16 associated with entrapment. Had our Supreme Court intended suchan alteration with 17 respect to the uniform jury instructions on entrapment, we assume it would have 18 explicitly done so. Of course, if we are mist aken in this, our Supreme Court is in the 195 best position to take corrective action. See State v. Wison , 1994-NMSC-009, ¶ 4, 116 1 N.M. 793, 867 P.2d 1175 (indicating th at although this Court “is not precluded from 2 considering error in jury instructions” insome cases, our Supreme Court is vested 3 with the ultimate authority to “amend, modify , or abolish uniform jury instructions”). 4

{8} Accordingly, for the reasons statedabove and in the notice of proposed 5 summary disposition, we affirm. 6 {9} IT IS SO ORDERED. 7

______________________________ 8 MICHAEL E. VIGIL, Judge 9
WE CONCUR: 10

____________________________ 11 EMIL J. KIEHNE, Judge 12

____________________________ 13 DANIEL J. GALLEGOS, Judge 14