This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 file d 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. 30,437 4 ANTHONY CASILLAS, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Stephen K. Quinn, District Judge 8
Gary K. King, Attorney General 9 Santa Fe, NM 10 Francine A. Chavez, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Liane E. Kerr 14 Albuquerque, NM 15 for Appellant 162 MEMORANDUM OPINION 1 CASTILLO, Chief Judge. 2 Defendant Anthony Casillas appeals from the district court’s judgment and 3 sentence convicting him, after a jury trial, of aggravated battery upon a peace officer, 4 a fourth degree felony. He was sentenced as an habitual offender to two and one-half 5 years. Defendant raises two issues on app eal: (1) whether his right to due process 6 was violated when a comment on Defendant’s post-Mirandaright to remain silent was 7 evoked during defense counsel’s cross-ex amination; and (2) whether there was 8 sufficient evidence to support his convicti on when the evidence in support of the 9 verdict was circumstantial. We affirm. 10 BACKGROUND 11 In February 2009, Daniel Etlicher was em ployed as a detention officer at the 12 Curry County Detention Center. At trial, Etlicher testified to the following. On 13 February 7, 2009, as he entered pod six carrying trash bags, he was struck by an 14 inmate. He explained how this occurred as follows. Each pod has two doors, an outer 15 door, which is a holdi ng area, and an inner door, which places a person on the floor 16 with the inmates. He entered the “alpha door” and shut the door behind him. He 17 radioed to have the seco nd “bravo door” opened, walkedthrough the door, and was 18 pushed by Defendant at the door as he entered the pod. Etlicher knew Defendant, an 193 inmate, through his job and pointed him out in the court room. He remembered 1 Defendant asking him what the bags were for and Etlicher th en looked to the left and 2 to the right as he entered th e pod, and was struck unconscious . Etlicher stated that the 3 next thing he remembered was sitting up withanother officer talking to him and that 4 there was a lot of blood coming out of his mouth. He was taken to the emergency 5 room where he was given CAT scans and X -rays, his cheek was swollen for a month, 6 and five teeth were broken off. 7 On cross-examination, Etlicher testifie d that, although there were other inmates 8 in the pod, Defendant was the only one who approached him. He explained that as he 9 entered, Defendant was standing within two feet of him, that Defendant asked him 10 about the trash bags, and that Etlicher looked to the left and to the right and everything 11 went black. 12 Deputy Dan Marney testified that on February 10, 2009, he was called in to 13 investigate a battery at the jail. He observed Etlicher’s in juries and took four 14 photographs that were admitted into evidence as State’s exhibits 1-4, and about 3-4 15 days later he took another tw o photographs that were admitted as State’s exhibits 5 16 and 6. The security video was played for the jury and admitted as State’s exhibit 7. 17 Deputy Marney identified Defendant as the person in the video walking towards the 18 inner door of the pod. Defe ndant is the only person in the video wearing a white t- 194 shirt, and the video shows Defendant remaining in the doorway of the pod for 1 approximately one minute and twenty seconds. The video also shows that 2 approximately nine seconds later, other inmates look towards the inner door or get up 3 and look towards it, but none of the other inmates respond or act based on what they 4 observe, and they sit back down at their tabl es. Deputy Marney testified that he talked 5 to another deputy who had been on the scen e, read his report, obtained the security 6 video from him that he watched with Etlicher, and obtained Etlicher’s medical 7 records. 8 During cross-examination of Deputy Marney, the following exchange took 9 place: 10 Defense counsel: Officer, did anyone look at my client ’s hands to see 11 whether he had any bruise s, busted knuckles, scrape s, cuts[,] or anything 12 else indicating that he hit something? 13 Deputy Marney: Are you talking about the day of the incident sir, or 14 when I dealt with him? 15 Defense counsel: When you dealt with him did you look at his hands? 16 Deputy Marney: In the report th at I read he was read his Miranda rights 17

. . . 18 Defendant counsel: Did you look at his hands and look at his knuckles? 19 Deputy Marney: I did not. 20 Defense counsel: Did you takeany photos of his hands? 21 Deputy Marney: I did not. 22 On re-direct, the following exchange took place: 23 Prosecutor: At the time that you became involved in this case, on 24 February 10, 2009, without going into specifics, please don’t go into the 25 specifics of it, but, was [Defendant] available to you for you to interview 265 and talk to? 1 Deputy Marney: No. 2 Following redirect, a bench conference was held. Defense counsel argued that he 3 believed Deputy Marney wanted to discuss Defendant’s constitutional rights and that 4 Defendant was available by a subpoena for Deputy Marneyto obtain photographs of 5 Defendant’s hands. Defense counsel’s c oncern was that Deputy Marney’s testimony 6 led the jury to believe that Defendant wa s not available through some other process. 7 The prosecutor pointed out that Defendant had invoked his right to silence and to an 8 attorney, so Defendant could not be interviewed further. Defense counsel agreed but 9 insisted that Defendant’s hands were phys ical evidence and not statements. The 10 prosecutor said that if defense counsel wish ed to ask Deputy Marn ey if he could have 11 obtained a search warrant to photograph De fendant’s hands, that would be proper. 12 Defense counsel said that he would pose th at question to Deputy Marney. During the 13 recross-examination of Deputy Marn ey, the following exchange took place: 14 Defense counsel: Officer[,] you said that my client’s hands were not 15 available to you to look at. He was an inmate correct? 16 Deputy Marney: That is correct. 17 Defense counsel: He remained in detention after this? 18 Deputy Marney: Yes. 19 Defense counsel: You have powers of subpoena, excuse me[,] search 20 warrant to get items like that correct? 21 Deputy Marney: Yes sir, he had been read his Mirandarights and didn’t 22 want to talk. So you’re asking me why I didn’t talk to him, that’s why. 23 Defense counsel requested a mistrial on grounds that the prosecution had commented 246 on Defendant’s silence. The prosecutor argued that the exchange was not grounds for 1 a mistrial, stating that defense counsel ha d “opened the door.” The district court 2 denied a mistrial and asked defense counselif he wanted the jury to be given a 3 curative instruction. Defense counsel responded that “once the bell has been rung, 4 you can’t really un-ring it.” Defense counsel further stated that he would not ask the 5 district court to admonish the jury and was only asking for a mistrial. 6 Following the State’s case-in-chief, de fense counsel moved for a directed 7 verdict, arguing that a jury verdict of guilty would be based on “speculation”: “We 8 have nothing but speculation that this gentleman got injured, he does not know how 9 he was struck, with what, by whom, he has injuries but we have no connection to my 10 client.” The district court denied the mo tion, stating that the video does not show a 11 blow being struck but that it does show Defendant in the direct proximity of Etlicher. 12 The State rested. Defendant did not present witnesses. The jury deliberated from 13 1:00:25 p.m. to 1:28:23 p.m., returning a verdict of guilty. This appeal followed. 14 DISCUSSION 15 Right to Silence 16 Defendant contends that his Fifth Am endment right to silence was violated 17 “when a State witness blurted th at . . . Defendant had invoked Mirandaand would not 18 speak with him.” Defendant argues that Deputy Marney’s statement that Defendant 197 had been read his Mirandawarnings, and he didn’t want to talk in response to a 1 simple question about whether he could have obtained a warrant, was nonresponsive 2 and resulted in a deliberate comment on De fendant’s silence. Defendant further 3 argues that the comment on silence also improperly shifted the burden of proof to 4 Defendant and that it cannot be deemed harmless under the circumstances of this case. 5 We disagree. 6 We review the district court’s decision to deny a mistrial for an abuse of 7 discretion. State v. O’Neal , 2008-NMCA-022, ¶ 28, 143 N.M. 437, 176 P.3d 1169. 8 The legal question of whether the pros ecution improperly commented on Defendant’s 9 silence is reviewed de novo. State v. Pacheco , 2007-NMCA-140, ¶ 8, 142 N.M. 773, 10 170 P.3d 1011. 11 The Fifth Amendment’s due process cl ause protects against prosecutorial 12 comment on a defendant’s post-Mirandaexercise of his right to remain silent. See 13 State v. DeGraff , 2006-NMSC-011, ¶ 12, 139 N.M. 211, 131 P.3d 61. “When a 14 defendant has invoked the right to remain silent after being given Mirandawarnings, 15 use of that silence by the prosecution at trial violates due process.” State v. Foster , 16 1998-NMCA-163, ¶ 11, 126 N.M. 177, 967 P.2d 852. An impermissible 17 prosecutorial comment on silence includes statements elicited by the prosecutor from 18 the witness and the prosecution’s use of a defendant’s silence to impeach his 198 credibility or create an inference of guilt in the minds of the jury. Id. A deliberate 1 comment on silence elicited by the prosecuti on and used to create an inference of 2 Defendant’s guilt is difficult to cure by in structing the jury to disregard it. See, e.g. , 3 State v. Gutierrez , 2007-NMSC-033, ¶ 23, 142 N.M. 1, 162 P.3d 156 (discussing that 4 some prosecutorial comments are so highly prejudicial that a curative instruction may 5 not sufficiently remove the impression created by the prosecutor’s comments on a 6 defendant’s silence from the minds of the jury, and in fact may magnify an 7 impression). 8 We have recognized, however, that “indirect comments, both those that are 9 ambiguous[] and those inadvertently elicited by the prosecutor from a witness, are less 10 likely to call a jury’s attention to the defendant’s exercise of his rights.” DeGraff , 11 2006-NMSC-011, ¶ 8 (internal citation om itted). Moreover, we have found no 12 reversible error where defense counsel opened the door, trying to use his client’s 13 silence for tactical advantage, see State v. Padilla , 1996-NMCA-072, ¶ 15, 122 N.M. 14 92, 920 P.2d 1046, or, for example, where th e remarks were inv ited by a defendant’s 15 opening statement, see State v. Smith , 2001-NMSC-004, ¶¶ 39-40, 130 N.M. 117, 19 16 P.3d 254. 17 Relying on State v. Wisniewski , 103 N.M. 430, 435, 708 P.2d 1031, 1036 18 (1985), Defendant argues that although “it wa s not the State who actually asked the 199 question, [Deputy Marney], as an agent of the State, is part of the prosecution team.” 1 While we agree that for purposes of Bradyviolations, the term “prosecution” includes 2 the prosecutor, his office, law enforcement personnel, and other arms of the state 3 involved on the investigative aspect of th e case, Defendant provides no authority for 4 expanding this concept to violations of the Fifth Amendment. Absent such authority, 5 we may assume no such authority exists. In re Adoption of Doe , 100 N.M. 764, 765, 6 676 P.2d 1329, 1330 (1984). Accordingly, we decline to entertain this argument. 7 Defendant also argues that it was the St ate who suggested the question that was 8 asked by the defense, that Deputy Marney’s answer was nonresponsive and, thus, the 9 comment was a violation of Defendant’s right to remain silent. We review the record. 10 At the outset of his cross-examination, Deputy Marney had already admitted that he 11 did not look at Defendant’s hands or knuckles or take photogr aphs of Defendant in his 12 investigation following the incident. At th at juncture, the defense had made its point 13 to the jury that Deputy Marney’s inves tigation could have been better or was not 14 thorough enough, which could operate, as the defense inte nded, to further cast doubt 15 in the jury’s mind on whether Defendant was the inmate who attacked Etlicher. 16 On redirect, the prosecutor made every e ffort to ensure that Deputy Marney did 17 not make an impermissible comment on Defendant’s silence: “At the time that you 18 became involved in this case, on February10, 2009, without going into specifics, 1910 please don’t go into the specifics of it, but , was [Defendant] available to you for you 1 to interview and talk to?” At the benc h conference that followed, the prosecutor 2 articulated the danger of continuing to pre ss Deputy Marney as to why he had not met 3 with Defendant to examine his hands and photograph them—because Defendant had 4 already been read and had invoked his Mirandarights. We also observe that although 5 the questions regarding a s ubpoena was suggested by the prosecution, it was defense 6 counsel’s choice to continue the questioning along this line knowing the witness’s 7 position as to why he ceased c ontact with the Defendant. State v. Baca , 89 N.M. 204, 8 205, 549 P.2d 282, 283 (1976). 9 We conclude that the prosecutor did not intentionally elicit the comment on 10 Defendant’s exercise of his Mirandarights. Moreover, the prosecution did not exploit 11 Deputy Marney’s answer in taking further testimony, nor argue it as evidence of 12 Defendant’s guilt in closing arguments. See, e.g. , Baca , 89 N.M. at 205, 549 P.2d at 13 283 (involving unsolicited statements by a policeman and holding that the prejudicial 14 impact occurs when the prosecutor is directly responsible for the improper comment 15 on a defendant’s silence). We remain con cerned that a prosecution witness, especially 16 a law enforcement officer involved in the prosecution of a defendant, will utilize 17 cross-examination by defense counsel for this improper purpose. Where it appears 18 clear that a violation of the defendant’s Fi fth Amendment right to remain silent during 1911 a police investigation is injected into a witn ess’s answer that is unrelated to the line 1 of questioning being asked by defense couns el and no door was previously opened by 2 the defense to allow such an answer, a violation necessitating a mistrial may 3 potentially occur. Our review of the circum stances in this case do not fit within this 4 criteria. We affirm the district court’ s decision to deny Defendant’s motion for a 5 mistrial. Finding no error, we need not address the issue of plain or harmless error. 6 Sufficiency of the Evidence 7 Defendant contends that the district court erred in denying the motion for a 8 directed verdict because the evidence was insufficient to support a charge of 9 aggravated battery due to the completecircumstantial nature of the evidence. 10 Defendant also argues that the circumstantial evidence cannot support the jury verdict 11 in this case. Again, we disagree. 12 “Our review of the denial of a direct ed verdict motion asks whether sufficient 13 evidence was adduced to support the underlying charge.” State v. Sena , 14 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198. “The test for sufficiency of 15 the evidence is whether substantial evidence of either a direct or circumstantial nature 16 exists to support a verdict of guilt beyond a reasonable doubt with respect to every 17 element essential to a conviction.” State v. Duran , 2006-NMSC-035, ¶ 5, 140 N.M. 18 94, 140 P.3d 515 (internal quotati on marks and citation omitted); see State v. Sutphin , 1912 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). When considering the sufficiency 1 of the evidence, this Court does not evaluate the evidence to de termine whether some 2 hypothesis could be designed that is cons istent with a finding of innocence. State v. 3 Graham , 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285. Moreover, “[w]e 4 review sufficiency of the evidence on appeal from a highly deferential standpoint.” 5 State v. Dowling , 2011-NMSC-016, ¶ 20, 150 N.M. 110, 257 P.3d 930. “The 6 evidence is to be viewed in the light mostfavorable to the [s]tate, resolving all 7 conflicts and making all permissible inferen ces in favor of the jury’s verdict.” Id. “It 8 is our duty to determine whether any rational jury could have found the essential facts 9 to establish each element of the crime beyond a reasonable doubt.” Id. 10 In order to convict Defendant of aggravated battery upon a peace officer, the 11 jury was instructed that the State must prove each of the following elements of the 12 crime beyond a reasonable doubt: (1) Defendant unlawfully touched or applied force 13 to Etlicher by hitting striking or kicking him; (2) Defendant’s conduct caused injury 14 to Etlicher; (3) Defendant intended to injure Etlicher; (4) Defendant caused Etlicher 15 painful temporary disfigurement; (5) at th e time, Etlicher was a peace officer and was 16 performing the duties of a peace officer; and (6) this happened in New Mexico on or 17 about February 7, 2009. SeeUJI 14-2214 NMRA; NMSA 1978, § 30-22-25(B) 18 (1971). 1913 In this case, Etlicher, a detention officer on duty at the Curry County jail, 1 testified that as he entered the pod, Defe ndant approached him and asked about the 2 trash bags he was carrying. Etlicher th en looked right and left and was struck 3 unconscious. Although the security video doe s not show the blow, it shows Etlicher 4 falling through the doorway, and it confirms that Defendant, and only Defendant, 5 approached Etlicher and was in close proximity , within two feet of him, at the time he 6 blacked out from a blow to th e face. Etlicher identified De fendant as the person in the 7 video who approached him, asked about th e trash bags, and was standing within two 8 feet of him just prior to the blow and blackout. Deputy Marney also identified 9 Defendant as the person in the video who a pproached Etlicher. At the time Etlicher 10 fell to the ground, the video shows other inmates looking toward the doorway. The 11 video also shows that no inmates, other than Defendant, approached Etlicher as he 12 entered the pod or the doorway where he lay after the blow was struck. Etlicher 13 testified that when he regained conscious ness, blood was streaming out of his mouth. 14 The State presented photographs of the effect s of the blow to Etlicher’s face, including 15 a black eye and swollen, bruised check. At trial, Etlicher showed the jury that his 16 teeth were broken off. Our review of the testimony presented in support of the verdict 17 does not support Defendant’s assertions thatDefendant’s convicti on is based on juror 18 “speculation.” While the evidence is circum stantial, it contains several implicating 1914 details that allowed the jury to rationally conclude beyond a reasonable doubt that it 1 was Defendant who attacked the officer and knocked him unconscious. 2 We hold that the district court did not err in denying Defendant’s motion for a 3 directed verdict, and that the jury’s verdict, convicting Defendant of aggravated 4 battery upon a peace officer, is based on substantial evidence. 5 CONCLUSION 6 We affirm Defendant’s conviction and the district court’s judgment and 7

sentence. 8 IT IS SO ORDERED. 9

__________________________________ 10 CELIA FOY CASTILLO, Chief Judge 11

WE CONCUR: 12

__________________________________ 13 MICHAEL E. VIGIL, Judge 14

__________________________________ 15 TIMOTHY L. GARCIA, Judge 16