This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8 v. No. 30,419 9 QUINTAN WRIGHT, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Thomas J. Hynes, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Karl Erich Martell, Assi stant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 SUTIN, Judge. 22 Defendant Quintan Wright appeals his convictions for child abuse (negligently 23 caused–no bodily harm) and aggravated assault (deadly weapon). On June 23, 2010, 242 this Court filed a notice of proposed summary disposition proposing to affirm. 1 Defendant filed a memorandum in opposition, which we have given due 2 consideration. We affirm Defendant’s convictions. 3 For convenience of analysis, we consid er Defendant’s two issues concerning 4 sufficiency of the ev idence first, followed by the issue concerning Defendant’s motion 5 in limine. 6 Issue 1 : Defendant contends that there was insufficient evidence presented at 7 trial to support a conviction for child abuse when Defendant did nothing to the child 8 and did not place the child in danger. 9 “Substantial evidence is relevant evid ence that a reasonable mind might accept 10 as adequate to support a conclusion.” State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 11 438, 971 P.2d 829 (filed 1998). “In reviewing the sufficiency of evidence used to 12 support a conviction, we resolve all disputed facts in favor of the State, indulge all 13 reasonable inferences in support of the verdict, and disregard all evidence and 14 inferences to the contrary.” Id. We determine as a matter of law “whether the 15 evidence viewed in this manner could justif y a finding by any rational trier of fact that 16 each element of the crime charged has been established beyond a reasonable doubt.” 17 State v. Apodaca , 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation 18 marks and citation omitted). 193 Defendant was convicted of child abuse under NMSA 1978, Section 30-6-1(D) 1 (2009), which provides as follows: [RP 178] 2 Abuse of a child consists of a person knowingly, intentionally or 3 negligently, and without justifiabl e cause, causing or permitting a child 4 to be: 5 (1) placed in a situation that may endanger the child’s life or 6 health; 7 (2) tortured, cruelly confined or cruelly punished; or 8 (3) exposed to the inclemency of the weather. 9 The New Mexico Supreme Court has interpre ted the phrase “placed in a situation that 10 may endanger the child’s life or health” as requiring the State to “present evidence to 11 prove a substantial and foreseeable risk [that the situation] endangered the child.” 12 State v. Chavez , 2009-NMSC-035, ¶ 27, 146 N.M. 434, 211 P.3d 891. 13 The jury in the present cas e was instructed that, to find Defendant guilty under 14 Section 30-6-1(D), the State had to prove beyond a reasonable doubt that: 15 (1) Defendant caused Child to be placed ina situation which endangered his life or 16 health; (2) Defendant acted without justification and with reckless disregard; that is, 17 that Defendant knew or should have known his conduct created a substantial and 18 foreseeable risk, Defendant disregarde d the risk, and Defendant was wholly 19 indifferent to the consequences of the conduc t and to the welfare and safety of Child; 20 (3) Child was under the age of eighteen; and (4) this happened in New Mexico on or 21 about July 26, 2009. [RP 45, 146] SeeUJI 14-605 NMRA. 224 Our review of the tape log of the trial indicates that a witness, Gail Silva, 1 testified as follows. She observed a man and woman and a child about age two get 2 into a car in a Smith’s parking lot and begi n to drive off. [RP 100-01] Three males, 3 one of whom was wearing white pants and holding a gun, came around the side of the 4 car, shouting. [RP 101-02] Silva identified Defendant as the man holding the gun. 5 [RP 102] She was standing about ten feet away and heard the sliding action of the 6 gun. [Id.] 7 Charles Wilson, the man who got into the car with the woman (Jessica Binder) 8 and Child, testified next. [RP 105-06] As Binder began backing the car out of the 9 parking place, Wilson saw the man in wh ite pants waving a knife around. [RP 106] 10 The man took out a gun, racked the slide, and aimed in Wilson’s general direction. 11 [RP 107] Wilson became enraged, unbuckled his seatbelt, and was going to get out, 12 but Binder “gunned” the car and drove out onto the street. [Id.] 13 Binder testified that she had been in the Smith’s store with Ch ild in the cart and 14 that Defendant and his friends began making rude comments to her. [RP 109-10] She 15 checked out and went out to the car. [RP 110] When Defendant appeared in the 16 parking lot, Binder saw him fling around a butterfly knife, cock a gun, and point it 17 down, not at Wilson’s face. [Id.] 185 Patrolman Nathan Kempton testified re garding surveillance videos he had 1 watched. [RP 112-13] He id entified Defendant as the one wearing a black shirt and 2 white pants in the video, and he had seen a knife in De fendant’s hand in the video. 3 [RP 113] 4 Defendant called two witne sses at trial and testifie d on his own behalf. Ana 5 Sawyer testified that she saw a man holding something black in his hand which she 6 thought was a gun. [RP 116-17] She did notsee the man raise his hand and threaten 7 anyone with what he was holding. [Id.] Candace Archuleta testif ied that she had been 8 in the store with Defendant. [RP 118] Sh e testified that Defe ndant had a knife with 9 him and had been flipping it around, but he did not have a gun. [Id.] She testified that 10 Defendant had not been looking for a fight. [RP 119] Defendant testified that “some 11 guy,” presumably Charles Wilson, was in Jeremy’s (one of the two males Defendant 12 was with) face asking him what his probl em was and said something about his 13 girlfriend and having respect for women. [RP 118, 120] Defendant agreed that he had 14 been playing with his knife, but testified that he did not havea gun, nor had anyone 15 handed him one. [RP 122-23] 16 In State v. McGruder , 1997-NMSC-023, ¶ 5, 123 N.M. 302, 940 P.2d 150, 17 abrogated on other grounds by Chavez , 2009-NMSC-035, the defendant had pointed 18 a gun at the victim from a distance of about six feet and followed her around her home 196 as she looked for a set of truck keys. As the victim handed the defendant the keys, he 1 threatened to kill her and held the gun to her temple while her young daughter was 2 standing behind her. Id. The Supreme Court held that “[t]he jury was entitled to view 3 such conduct as endangering either th e life or health of the child.” Id. ¶ 38. In the 4 present case, Wilson and Binder testified that Defendant had cocked the gun and 5 pointed it in the direction of Wilson, although not at his face, as Wilson sat in the front 6 seat of the car with Child in the b ackseat. [RP 107, 110] Although Defendant 7 testified that he did not have a gun, the jury as fact finder is not obligated to believe 8 a defendant’s testimony, to disbelieve ordiscount conflicting te stimony, or to adopt 9 a defendant’s view. State v. Foxen , 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 10 1071. We conclude that sufficient evid ence supported Defendant’s conviction for 11 child abuse. 12 Issue 3 : Defendant contends that there was insufficient evidence to support a 13 conviction for aggravated assault given th at the alleged victim was the primary 14 aggressor during the entire encounter. [DS 4] 15 As instructed by the district court, to convict Defendant of aggravated assault 16 (deadly weapon) contrary to NMSA 1978, Section 30-3-2(A) (1963), the jury had to 17 find that: (1) Defendant threatened Wils on with a firearm; (2) Defendant’s conduct 18 caused Wilson to believe Defendant was about to intrude on his bodily integrity or 197 personal safety by touching or applying force to him in a rude, insolent, or angry 1 manner; (3) a reasonable person in the samecircumstances as Wilson would have had 2 the same belief; (4) Defendant used a firearm; and (5) this happened in New Mexico 3 on or about July 26, 2009. [RP 147] SeeUJI 14-302 NMRA. 4 As discussed earlier, there was testimony that Defendant pointed a gun in the 5 general direction of Wilson during the enc ounter. There was also testimony that the 6 three males (including Defendant) came ar ound the side of Binder’s car “shouting” 7 and that the parties were “cussing at each other” during part of the encounter, from 8 which the jury could conclude the confrontation was done in a “rude, insolent, or 9 angry” manner. [RP 101] 10 We conclude that the jury had eviden ce before it contradicting the premise of 11 this issue–that the alleged victim wa s the primary aggressor during the entire 12 encounter. As described by Wilson, the inci dent began inside the Smith’s store when 13 the three males directed rude comments at Binder. Wilson then asked the three why 14 they were speaking to his wife like that , and the three responded in a threatening 15 manner. [RP 105-06] Wilson and Binder then left the store, went to their car, and 16 prepared to drive away. At this point, Defendant approached flipping the knife and 17 then cocking and pointing a gun at Wilson. [RP 106-07] The testimony of the State’s 18 other witnesses generally accorded with a scen ario in which, after the encounter in the 198 store, Wilson and Binder attempted to leave, after which Defendant and the other two 1 males began the threatening conduct at issue. Thus, we concludethat regardless of 2 who initiated the encounter in the store, De fendant renewed the c onfrontation in the 3 parking lot. Accordingly, we conclude that sufficient evidence supported Defendant’s 4 conviction for aggravated assault. 5 Issue 2 : Defendant contends that the district court erred in allowing the jury 6 to hear the word “gang” after the court had entered an order in limine precluding such 7 evidence. [DS 4] 8 Defendant moved in limine to preclude the State from making any reference at 9 trial to gangs or gang activity or to Tortilla Flats in particular. [RP 53-54] According 10 to the tape log, the districtcourt ruled that the word “g ang” would be skipped over in 11 playing the recording of the 911 call and th at reference to gangs would not be made 12 until it was relevant to the case. [RP 67] The judge also appears to have ruled that 13 witnesses could say “Tortilla Flat s” but not “gang.” [Id.] Attrial, the State played the 14 911 recording during the testimony of Gail Silva, the first witness, but did not stop the 15 recording in time to avoid the word “gang.” [DS 4] Defense counsel objected. [Id.] 16 Following a side-bar conference, the judge se nt the jury out, stating that there had 17 been a technical difficulty. [RP 79] The docketing statement does not inform us what 18 remedy, if any, defense couns el requested following the erro r. The judge excluded the 199 911 recording from the evidence, but allowe d the witness to testify regarding what 1 was said during the 911 call. [Id.] When the testimony resu med, the witness testified 2 that she had called 911 because she had seen a gun. [Id.] 3 “An evidentiary ruling within the di scretion of the court will constitute 4 reversible error only upon a showing of an abuse of discretion, and a demonstration 5 that the error was prejudicial rather than harmless.” State v. Wildgrube , 6 2003-NMCA-108, ¶ 8, 134 N.M. 262, 75 P.3d 862 (internal quotation marks and 7 citation omitted). 8 For several reasons, we conclude that the error, if any, was harmless. First, the 9 actual error appears to have been on the part of the State in failing to stop the 911 10 playback before the word “gang” was said. Any error on the part of the district court 11 would have arisen from the court’s response to the State’s failure. As noted, we are 12 not informed what remedy Defendant sought. In any event, the testimony before and 13 after the 911 playback contains other referen ces to gangs and Tortilla Flats, which the 14 jury could reasonably infer was a gang. The first witness testified before the recording 15 was played that she recalled “one of the guys” saying “Tortilla Flats.” [RP 79] 16 Wilson’s testimony, as summarized in the tape log, included “Tortilla Flats will shoot 17 you and bury you.” [RP 84] At the begi nning of his testimony, Officer Kempton 18 described himself as being employed by the FBI gang task force. [RP 90] 1910 Defendant’s second witness, Candace Archul eta, testified that while walking with 1 Defendant and the two other males she heard someone yell “fuck Tortilla Flats” and 2 that Defendant had “Tortilla Flats” tattooed on his neck. [RP 118-19] Further, the 3 jury could have likely inferred from the natureof the confrontation as a whole that it 4 involved gang activity. Finally, given th e substantial evidence supporting Defendant’s 5 convictions as described here , we fail to see how a single inadvertent use of the word 6 “gang” could have prejudiced him. 7 For the reasons stated in this opinion, we affirm the district court and 8 Defendant’s convictions. 9 IT IS SO ORDERED. 10

__________________________________ 11 JONATHAN B. SUTIN, Judge 12 WE CONCUR: 13

___________________________________ 14 MICHAEL D. BUSTAMANTE, Judge 15

___________________________________ 16 RODERICK T. KENNEDY, Judge 17