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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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-35581 4 JOHN D. MCDOWELL, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Matthew E. Chandler, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 John J. Woykovsky, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Allison H. Jaramillo, Assist ant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VARGAS, Judge. 192 {1} Defendant John D. McDowell was convicted of aggravated fleeing a law 1 enforcement officer pursuant to NMSA 1978, Section 30-22-1.1 (2003). He appeals 2 the conviction by challenging the sufficiency of the State’s eviden ce, the propriety of 3 the admission of two portions of a jailhouse phonecall, the refusal of the district court 4 to modify jury instructions, and the conc lusion that the law enforcement vehicle that 5 stopped him was appropriately marked, as required by the statute. We affirm. 6 BACKGROUND 7
{2} While driving a law enforcement vehicl e equipped with emergency lights and 8 sirens, Sergeants Rafael Aguilar (Agu ilar) and Waylon Rains (Rains) spotted 9 Defendant and his passenger, Jason Cadena (Cadena) sitting in a Ford Expedition 10 (SUV) parked on the side of the road. Recognizing both men as having active felony 11 warrants, Aguilar, who wa s driving, activated the emergency lights on his law 12 enforcement vehicle and pulled in front of the SUV, blocking its path. Rains exited 13 the law enforcement vehicle and approachedDefendant, ordering him out of the SUV. 14 In response, Defendant shifte d into reverse and acceleratedquickly, at which time the 15 passenger door opened and Cadena fell out of the SUV. As he sped backward, 16 Defendant almost lost control of the S UV, but managed to execute a J-turn and 17 continue down a cross-street at a high rate of speed. Aguilar and Rains got back in the 18 law enforcement vehicle, activ ated the siren, and gave ch ase. After chasing Defendant 193 for approximately three blocks, the officer s stopped their pursuit for safety reasons. 1 They patrolled the area looking for the SUV and saw Defendant traveling on foot. 2 After a brief foot chase, Defendant was apprehended. 3
{3} While in jail, Defendant made a phonecall to his girlfriend, which was 4 recorded. During the phone call, Defendant admitted, “I threw [Cadena] out and ran 5 him over . . . I took them on a high-speed ch ase.” He also stated, “Well I’m sorry, I 6 tried not to, I ran, I took them on a high-speed chase and everything.” 7
{4} Defendant was charged with aggravated fleeing a law enforcement officer 8 contrary to Section 30-22-1.1. Before trial, Defendant moved to have the charge 9 dismissed, arguing the State could not satisfy its burden because the law enforcement 10 vehicle driven by Aguilar was not a markedlaw enforcement vehi cle, as required by 11 Section 30-22-1.1. The district court denied the motion. Following a trial on the 12 merits, Defendant was convicted, and this appeal followed. 13 DISCUSSION 14 Sufficiency of the Evidence 15
{5} To convict Defendant for aggravated fleeing a law enforcement officer, the 16 State was required to prove he was “willfullyand carelessly driving his vehicle in a 17 manner that endangers the life of another person after being given a visual or audible 18 signal to stop, whether by hand, voice, emergency light, flashing light, siren or other 194 signal, by a uniformed law enforcement o fficer in an appropriately marked law 1 enforcement vehicle.” Section 30-22-1.1(A) . Defendant challenges the sufficiency of 2 the evidence supporting his conviction on tw o grounds, first arguing that the State 3 failed to prove that the law enforcement vehicle driven by Aguilar was an 4 “appropriately marked law en forcement vehicle” and next asserting that the State 5 failed to show Defendant endangered anyone during the chase, as required by the 6
statute. 7
{6} “The test for sufficiency of the evidence is whether substantial evidence of 8 either a direct or circumstantial nature exists to support a verdict of guilty beyond a 9 reasonable doubt with respect to every element essential to a conviction.” State v. 10 Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and 11 citation omitted). Substantial evidence is “s uch relevant evidence as a reasonable mind 12 might accept as adequate tosupport a conclusion[.]” State v. Salgado , 1999-NMSC13 008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation 14 omitted). When reviewing the sufficiency of evidence, we view it “in a light most 15 favorable to the verdict,” State v. Garcia , 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 16 P.3d 72, and disregard contrary evidence, see State v. Salazar , 1997-NMSC-044, ¶ 44, 17 123 N.M. 778, 945 P.2d 996. The question on app eal is whether the district court’s 18 “decision is supported by substantial evidence, not whether the [district] court could 195 have reached a different conclusion.” In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 15, 1 121 N.M. 562, 915 P.2d 318. 2 Appropriately Marked Law Enforcement Vehicle 3
{7} At the time of Defendant’s arrest, A guilar was driving a grey Chevy Tahoe 4 equipped with four sets of emergency light s, including lights hidden in the front grille 5 and the back of the law enforcement vehicl e and lights that were mounted and visible 6 on the dash. A radar and poli ce radio were also mounted and visible on the dash and 7 the vehicle was equipped with sirens. Th e vehicle had no logo, writing, decals, or 8 other marks identifying it as a law enforcement vehicle. Bas ed on its lack of insignia, 9 symbols, writing, and decals that clearlyidentified Aguilar’s vehicle as a law 10 enforcement vehicle, Defendant argues that the evidence introduced by the State was 11 insufficient to prove the law enforcement vehicle was appropriately marked. 12
{8} We recently resolved the question of wh at constitutes an “appropriately marked 13 law enforcement vehicle” in the c ontext of Section 30-22-1.1. In State v. Montaño , 14 ___-NMCA-___, ___P.3d___ (No. A-1-CA-35275, Mar. 29, 2018), we considered 15 whether a law enforcement vehicle lacking insignia, lettering, or striping identifying 16 it as a law enforcement vehicle, but equippe d with a siren and flashing and alternating 17 lights is an “appropriately marked law en forcement vehicle” to support a conviction 18 for aggravated fleeing a law enforcement officer. Id. ¶ 35. We held that “appropriately 196 marked” means “the vehicle in question is marked in a manner that is suitable for 1 being driven by a law enforcement officer and identified as such.” Id. ¶ 37. “Stated 2 another way, a law enforcement vehicle is ‘appropriately marked’ so long as it has 3 sufficient equipment to trigger the moto rist’s obligation under [NMSA 1978,] Section 4 66-7-332 [(2017)] to come to a stop.” Montaño , ___-NMCA-___, ¶ 42 (internal 5 quotation marks and citation omitted). Finding the siren and flashing and alternating 6 lights sufficient to trigger a motorist’s oblig ation to come to a stop, we concluded that 7 the law enforcement vehicle in Montaño satisfied the “appropriately marked” law 8 enforcement vehicle required by the statute. Id. 9
{9} Similar to the evidence presented in Montaño , the State presented evidence that 10 Aguilar’s law enforcement vehicle was e quipped with a siren and numerous flashing 11 lights, which Aguilar activated as the law enforcement vehicle approached Defendant. 12 The sirens and flashing lights were suffici ent to trigger Defendant’s responsibility to 13 pull over under Section 66-7-332, rendering the law enforcement vehicle 14 “appropriately marked” at the time Aguilar directed Defendant to exit the SUV. See 15 Montaño , ___-NMCA-___, ¶ 42; § 30-22-1.1. View ed in the light most favorable to 16 the verdict, the district court’s decision that the vehicle was appropriately marked 17 within the meaning of the aggravated fl eeing a law enforcement officer statute is 18 supported by substantial evidence. Furthermore, in light of our holding, we need not 197 address the district court’s denial of Defendant’s motion to dismiss under State v. 1 Foulenfont , 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329. 2 2. Endangering the Life of Another Person 3
{10} Defendant also argues the State did not introduce sufficient evidence to 4 establish actual endangerment to the life of another, because he remained in control 5 of the SUV and there was no evidence that there was actual danger to any pedestrian. 6 We disagree. 7
{11} As Rains approached the SUV, Defendant shifted it into reverse, the passenger 8 door opened, and Cadena fell out of the vehicle. During the jailhouse phone call 9 introduced at trial, Defendant admitted he“threw [Cadena] out and ran him over.” 10 Interpreting the evidence in favor of the verdict and di sregarding contrary evidence, 11 we hold that Defendant’s admission that hethrew Cadena out of the car and ran over 12 him was sufficient evidence to allow a jury to concl ude that Defendant actually 13 endangered the life of another person. See State v. Coleman , 2011-NMCA-087, ¶ 22, 14 150 N.M. 622, 264 P.3d 523 (concluding that the defendant endangered the life of 15 another person when he dr ove through several stop signs at excessive speeds with 16 passengers in the car while bei ng followed by a deputy sheriff); see also Garcia , 17 2005-NMSC-017, ¶ 12 (stating that “our role is to determine whether a rational fact- 188 finder could determine beyond a reasonable doubt the essential facts necessary to 1 convict the accused”). 2 Admission of Jailhouse Phone Call 3
{12} Defendant also contends the district court erred when it admitted recorded 4 segments of a jailhouse phone call with hi s girlfriend, during which he admitted to 5 pushing Cadena out of the SUV, running over him, and then taking police on a high6 speed chase. Defendant contends that the phone call is more prejudicial than probative 7 and should have been excluded pursuant to Rule 11-403 NMRA because the jury 8 learned from the phone call that Defendant had been in jail, and Defendant offered to 9 stipulate to allow Aguilar to testify aboutthe pertinent information in the phone call, 10 avoiding the disclosure that Defendant was in custody. The district court agreed with 11 Defendant that much of the recording s hould be excluded, but allowed the State to 12 play the two segments wherein Defendant admits to pushing Cadena out of the car, 13 running over him, and taking the police on a high-speed chase. 14
{13} We review the admission of evidence fo r an abuse of discretion “and will not 15 reverse in the absence of a clear abuse.” State v. Sarracino , 1998-NMSC-022, ¶ 20, 16 125 N.M. 511, 964 P.2d 72. “An abuse of discretion occurs when the ruling is clearly 17 against the logic and effect of the facts and circumstances of the case. We cannot say 18 the [district] court abused its discretion by its ruling unless we can characterize [the 199 ruling] as clearly untenable or not justified by reason.” State v. Rojo , 1999-NMSC1 001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation 2 omitted). Relevant evidence may be excluded “if its probative value is substantially 3 outweighed by a danger of . . . unfair prejudice[.]” Rule 11-403. 4
{14} First, we note “[t]he State is not bound to present its case to the jury through 5 abstract stipulations, despite a defendant’s offer to stipulate to certain facts.” State v. 6 Samora , 2016-NMSC-031, ¶ 39, 387 P.3d 230 (internal quotation marks and citation 7 omitted). Defendant’s offer to stipulate to allow Aguilar to tes tify about Defendant’s 8 admissions is of no assistan ce to him in this instance. 9
{15} Evaluating the admissibility of the jailhouse phone call under Rule 11-403, we 10 first consider the probative value of the recorded segments admitted by the district 11 court. “[I]f an item is probative it has the effect of proof; the item either proves or 12 tends to prove.” State v. Vigil , 1982-NMCA-058, ¶ 23, 97 N.M. 749, 643 P.2d 618 13 (internal quotation marks and citation omitted). In this in stance, to convict Defendant 14 of aggravated fleeing a law enforcement o fficer, the State was required to prove, 15 among other things, that Defendant drove“willfully and carelessly” and that he 16 endangered the life of another person. See § 30-22-1.1(A). In both of the recorded 17 segments admitted by the district court, Defendant admits that he took police on a 18 high-speed chase—evidence that is probativ e of whether Defendant drove willfully 1910 and carelessly. Further, in the first recorded segment, Defendant admitted, “I threw 1 [Cadena] out and ran him over.” Defendant’s admission that he ran over Cadena is 2 probative of whether Defendantendangered the life of another person and whether he 3 drove willfully and carelessly. 4
{16} Having concluded Defendant’s jailhouse statements are probative of at least two 5 of the elements of the crime with whic h he was charged, we now consider the 6 prejudicial effect of allowing the jury to hear these statements. While Rule 11-403 7 permits the district court to “exclude relevant evidence if its probative value is 8 substantially outweighed by a danger of . . . unfair prejudi ce,” it does not prohibit all 9 prejudicial evidence. Id. Instead, “[t]he purpose of Rule 11-403 is not to guard against 10 any prejudice whatsoever, but only against the danger of unfair prejudice.” State v. 11 Otto , 2007-NMSC-012, ¶ 16, 141 N.M . 443, 157 P.3d 8 (emphasi s, internal quotation 12 marks, and citation omitted). “Unfair prejudice,” in the context of Rule 11-403, 13 “means an undue tendency to suggest decision on an improper basis, commonly, 14 though not necessarily, an emotional one.” State v. Stanley , 2001-NMSC-037, ¶ 17, 15 131 N.M. 368, 37 P.3d 85 (internal quotation marks and citation omitted). Evidence 16 is unfairly prejudicial “if it is best characterized as sensational or shocking, provoking 17 anger, inflaming passions, or arousing overwhelmingly sympathetic reactions, or 18 provoking hostility or revulsion or punitive impulses, or appealing entirely to emotion 1911 against reason.” Id. (internal quotation marks and c itation omitted). The determination 1 of unfair prejudice is “fact sensitive,” and, accordingly, “much leeway is given trial 2 judges who must fairly weigh probativ e value against probable dangers.” Otto , 2007- 3 NMSC-012, ¶ 14 (internal quotation marks and citation omitted). Nonetheless, we will 4 “not . . . simply rubber stamp the [district] court’s determination.” State v. Torrez , 5 2009-NMSC-029, ¶ 9, 146 N.M. 331, 210 P. 3d 228 (internal quotation marks and 6 citation omitted). Instead, we review a di strict court’s weighing of probative value 7 against unfair prejudice for an abuse of discretion. See Otto , 2007-NMSC-012, ¶ 14. 8
{17} In this case, the district court carefully reviewed the lengthy jailhouse call 9 described by the defense counsel as “a really obnoxious phone call. . . . full of 10 irrelevant things,” and excluded significant portions of the call, including information 11 related to a probation violation hearing and Defendant’s association “with a lot of 12 people in the jail who are ch arged with other things.” Instead, the district court limited 13 the use of the call to those segments wh erein Defendant admits to pushing out and 14 running over Cadena and taking the police on a high-speed chase. 15
{18} Defendant does not claim error based on the actual contents of the admitted 16 statements, instead, focusing on the fact that when the recording of the jailhouse call 17 was played, the jury learned that Defendant had been in jail. Likening it to bringing 18 a shackled defendant into the courtroom, Defe ndant argues that the disclosure that he 1912 had been in jail is prejudicial and undermin es the presumption of innocence. We agree 1 that the disclosure to the jury has a prej udicial effect; however, under the facts of this 2 case, we cannot conclude that any such prejudice was unfair, as Defendant has failed 3 to explain how, under the facts of this case, the jury’s knowledge of the fact that he 4 was in jail at the time he made the call admitting to running over Cadena and taking 5 the police on a high-speed chase creates “an undue tendency to suggest decision on 6 an improper basis[.]” Stanley , 2001-NMSC-037, ¶ 17 (internal quotation marks and 7 citation omitted). At trial, the stipulation wa s treated as a procedural matter addressed 8 by the district court before the parties proceeded with the presentation of their 9 respective cases. The jury learned of Defendant’s custody when the district court read 10 a stipulation advising the jury that the r ecording they were about to hear was a 11 recording of a phone call made by Defendant from jail with the knowledge that he was 12 being recorded. Nothing about the manner in which the jury was told about the 13 jailhouse phone call could be “characterizedas sensational orshocking, provoking 14 anger, inflaming passions, or arousing overwhelmingly sympathetic reactions, or 15 provoking hostility or revulsion or punitive impulses, or appealing entirely to emotion 16 against reason.” Id. (internal quotation marks and citation omitted). As the 17 determination of unfair prejudice is “fact sensitive,” and, we are required to give 18 “much leeway [to] trial judges who must fairly weigh probative value against probable 1913 dangers[,]” we cannot say that the distri ct judge abused hi s discretion when he 1 admitted the recorded segments of Defe ndant’s jailhouse phone call, notwithstanding 2 that the result was that the jury di scovered Defendant had been in jail. Otto , 2007- 3 NMSC-012, ¶ 14 (internal quotation marks and citation omitted). We are not 4 persuaded that under the circumstances of this case, the disclosure to the jury that 5 Defendant had been in jail following hi s arrest undermines the presumption of 6 innocence in the same manner as a defendant appearing before the jury in shackles. 7 Instead, the fact that Defendant was in custody following his arrest had relatively 8 minor prejudicial effect, particularly in li ght of the fact that it was disclosed as a 9 procedural matter and does not appear to have been emphasized by the State. We 10 affirm the district court’s admission of the jailhouse call. 11 Modification to Jury Instructions 12
{19} Defendant next argues the district c ourt erred when it refused to give a 13 clarifying instruction advising the jury that the State must prove actual endangerment 14 to the life of another to convict him under Section 30-22-1.1. The State responds that 15 the Uniform Jury Instruction was sufficien t and there was no need for clarification. 16 We agree with the State. 171 Unfortunately, Defendant’s proffered jury instructions were not made a part 19 of the record. 20 14 {20} Defendant preserved the issue by raising it at trial and proffering his own jury 1 instructions. 1 We therefore review for reversib le error and consider “whether a 2 reasonable juror would have been confused or misdirected by the jury instruction.” 3 State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M . 258, 34 P.3d 1134 (internal 4 quotation marks and citation omitted). “The propriety of jury instructions given or 5 denied is a mixed question of law and f act. Mixed questions of law and fact are 6 reviewed de novo.” Salazar , 1997-NMSC-044, ¶ 49. 7
{21} Prior to beginning deliberations, the jury was instructed: 8 For you to find [D]efendant guilty of aggravated fleeing a law 9 enforcement officer as charged in C ount 1, the [S]tate must prove to your 10 satisfaction beyond a reasonable doubt each of the following elements 11 of the crime: 12 1. [D]efendant operated a motor vehicle; 13 2. [D]efendant drove willfully and carelessly in a manner that 14 endangered the life of another person; 15 3. [D]efendant had been given a visual or audible signal to 16 stop by a uniformed law enforcement o fficer in an appropriately marked 17 law enforcement vehicle; 18 4. [D]efendant knew that a law enforcement officer had given 19 him an audible or visual signal to stop; 20 5. This happened in New Mexico on or about the 10th day of 21 April, 2014. 2215 The given instruction is identical to our uni form jury instruction for aggravated fleeing 1 of a law enforcement officer. See UJI 14-2217 NMRA. Nonetheless, Defendant 2 contends that UJI 14-2217 is insufficient because it fails to advise jurors that they 3 must find that he actuallyendangered the life of another person when he drove 4 willfully and carelessly. Howe ver, “[w]hen a uniform jury instruction is provided for 5 the elements of a crime, generally that instruction mu st be used without substantive 6 modification.” Jackson v. State , 1983-NMSC-098, ¶ 5, 100 N.M. 487, 672 P.2d 660. 7 “[A]n elements instruction may only be altered when the alteration is adequately 8 supported by binding precedent or the unique ci rcumstances of a particular case, and 9 where the alteration is necessary in order to accurately convey the law to the jury.” 10 UJI Crim. General Use Note NMRA. 11
{22} Defendant relies on State v. Chavezto support his argument that the jury must 12 be instructed that actual endangerment is required for an aggravated fleeing a law 13 enforcement officer conviction. 2016-NMCA-016, 365 P.3d 61 (showing no 14 discussion of a modification to jury instructions), vacated , No. S-1-SC-35614 (N.M. 15 Sup. Ct. Aug. 24. 2016). Chavez , however, does not assist Defendant as it does not 16 address the aggravated fleeing a law enforcement officer jury instruction, it was 17 vacated when the defendant died while th e case was on appeal, and it shall “not be 18 published nor cited as precedent[.]” No. S-1-SC-35614 (Order, N.M. Sup. Ct. Aug. 1916 24. 2016). It therefore does not address th e issue before us and cannot adequately 1 support the alteration of a uniform jury instruction. 2
{23} However, even without the insertion of the word “actually,” the language of the 3 jury instruction requiring that, to find Defendant guilty, the jury must find that 4 Defendant drove “in a manner that endangered the life of another person,” was 5 sufficiently clear to avoid confusing or misleading the jury. Indeed, Defendant 6 clarified during closing arguments that th e State was obligated to show he actually 7 endangered another—an argument the State did not contradict. As the element was 8 adequately defined by the given instructions , it was not error to refuse the requested 9 clarification. See State v. Coffin , 1999-NMSC-038, ¶ 17, 128 N.M. 192, 991 P.2d 477. 10
{24} Finally, we note that, notwithstanding th e absence of the word “actually” from 11 the instruction, the evidence in this case is sufficient to allow a reasonable jury to 12 conclude Defendant actually endangered the life of another when he admitted in a 13 jailhouse phone call that he pushed Cadena out of the SUV and ran over him. 14 Defendant has failed to demonstrate howany alleged deficiency in the jury 15 instructions resulted in prejudice. See McCarson v. Foreman , 1984-NMCA-129, ¶ 31, 16 102 N.M. 151, 692 P.2d 537 (stating that “[a]bs ent evidence of prejudice, we would 17 find no error[,]” when discussing challenged jury instructions). We find no error with 1817 the district court’s rejection of Defendant’s proffered modification to the jury 1 instructions. 2 CONCLUSION 3
{25} We affirm. 4
{26} IT IS SO ORDERED. 5

6 JULIE J. VARGAS, Judge 7 WE CONCUR: 8

9 J. MILES HANISEE, Judge 10

11 STEPHEN G. FRENCH, Judge 12