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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,569 4 CLAUDIA ARGUELLO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 7 Drew D. Tatum, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline Cooper, Ch ief Public Defender 12 Carlos Ruiz de la Torre, A ssistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 BUSTAMANTE, Judge. 172 Defendant appeals her convictions fo r aggravated driving while under the 1 influence of intoxicating liquor (2 ndoffense) and for resisti ng, evading, or obstructing 2 an officer. [RP 2, 97] Our calendar noti ce proposed to affirm, and Defendant filed 3 a timely memorandum in opposition. We remain unpersuaded by Defendant’s 4 arguments and therefore affirm. 5 As an initial matter, we note that Defe ndant re-numbered the issues in the 6 memorandum in opposition. For ease of designation, however, we continue to number 7 the issues as was done in the notice. 8 In issues (1) and (2), Defendant continue s to argue that the district court erred 9 in denying her motions for directed verdic t for the charges of aggravated DWI and 10 resisting, evading, or obstructing an offi cer. [DS 11; MIO 8-14] We address first 11 Defendant’s conviction for aggrav ated DWI. [RP 48, 49, 90] See NMSA 1978, § 66- 12 8-102(A)(D)(3) (2010). Officer Wyatt observed Defendant’s pickup truck [DS 4], 13 with Defendant in the driver’s seat and Albert Ontiveros in the passenger seat. [RP 14 25; DS 5] While the officer did not observe the truck moving [D S 8], he observed that 15 the truck’s engine was running, with its lights activated and exhaust coming from the 16 back of the truck. [RP 25] After Defe ndant and Ontiveros exited the truck [RP 26], 17 Defendant approached Officer Wyatt. [R P 27] At this time, Officers Wyatt and 18 Shank observed that Defendant exhibited signs of intoxication, as detailed in our 193 notice. [DS 4; RP 28, 33] Defendant refuse d to perform requested field sobriety tests 1 [RP 28] and to submit requested chemical tests, even though Officer Wyatt read her 2 the implied consent advisory and informed her that failure to submit to the tests could 3 result in the revocation of her privilege to drive. [RP 28; DS 5] 4 We hold that the jury could have r easonably relied on the foregoing evidence 5 to convict Defendant for aggravated DWI. See State v. Sparks , 102 N.M. 317, 320, 6 694 P.2d 1382, 1385 (Ct. App. 1985) (defining substantial evidence as that evidence 7 which a reasonable person would consid er adequate to support a defendant’s 8 conviction). Although the officers did not see Defendant’s truck moving, motion of 9 a vehicle is not a necessary element of DWI. See State v. Reger , 2010-NMCA-056, 10 ¶ 5, 148 N.M. 342, 236 P.3d 654. Under a totality of the circumstances analysis, we 11 conclude that the jury coul d have reasonably considered that the truck’s engine was 12 running with its lights activated and that Defendant was in th e driver’s seat, to 13 determine that Defendant engaged in overt acts to show that she was in actual physical 14 control of the truck with intent to drive. See State v. Sims , 2010-NMSC-027, ¶ 33, 15 148 N.M. 330, 236 P.3d 642 (adopting a “totality of the circumstances” test and 16 listing non-exhaustive factors for the jury to consider in determining whether a 17 defendant is in actual physical control and has a general intent to drive so as to 18 endanger any person). While Defendant asserts that her comment to the officers that 194 she was cold [MIO 13] supports her defens e that the engine was running not because 1 she intended to drive, but instead so that she could use the vehicle’s heater [MIO 11- 2 12], the jury reasonably could have inferred otherwise. Id. ¶ 33 (recognizing that it 3 is within the jury’s prerogativ e to examine all the evidence in its totality and to weigh 4 its credibility to determine whether the defe ndant was simply using the vehicle as a 5 stationery shelter). 6 We next consider Defendant ’s conviction for resisting, evading or obstructing 7 an officer. See NMSA 1978, § 30-22-1 (1981). Defendant approached Officer Wyatt 8 while he was detaining Ontiveros and became belligerent – yelling at the officer [DS 9 4], using abusive language and profanity [RP 26-27, 29], and approaching the officer 10 in a way that made him concerned for his safety – even though the officer told 11 Defendant she was interfering and to stay back. [RP 27, 33] After the officer 12 handcuffed Defendant, she continued yelling and physi cally resisting [MIO 10] by 13 pushing up with her body. [RP 29] We conclude that the jury could have reasonably 14 determined that Defendant re sisted, evaded or obstructed the officer while he was in 15 the lawful discharg e of his duties. See Sparks , 102 N.M. at 320, 694 P.2d at 1385 16 (defining substantial evidence as that evidence which a reasonable person would 17 consider adequate to support a defendant’s conviction). We acknowledge Defendant’s 18 contentions that she was “rightfully outrage d” [MIO 11] and that her conduct resulted 195 only in “minimal inconvenience” to the o fficer. [MIO 10-11] These contentions, 1 however, do not detract from the determinative facts that Defendant continued to 2 approach the officer while using abusive language and profanity, even though she had 3 been instructed by the officer to stop her approach and stay back. See State v. Diaz , 4 121 N.M. 28, 29-32, 908 P.2d 258, 259-262 (Ct. App. 1995) (providing that resisting 5 refers not only to a defendant ’s overt physical act, but also to the failure to act when 6 refusing to obey lawful police commands); City of Roswell v. Smith , 2006-NMCA7 040, ¶ 5, 139 N.M. 381, 133 P.3d 271 (affirming the defendant’s conviction for 8 obstructing an officer based on his conduct of refusing to leav e a parking lot even 9 though he had been instructed several times by officers to do so). 10 In issues (3) - (5), Defendant maintains that the district court erred in allowing 11 the case against her to proceed even though the arrest warrant for Ontiveros, upon 12 which the initial detention of Defendant and her vehicle was based, was allegedly 13 invalid. [DS 11; MIO 4] Even assuming for purposes of discussion that Defendant 14 adequately preserved this issue [MIO 5-6], we nonetheless remain unpersuaded by 15 Defendant’s argument. As detailed in our notice, the officer’s testimony provides that 16 he checked to make sure th ere was an outstanding warrant for Ontiveros prior to the 17 stop. [DS 7; RP 28] In addition, inform ation that the warrant had been quashed was 18 not faxed to the police department until November 23 rd , after the November 20 th 196 detention and arrest of Defe ndant and Ontiveros. [RP 27, 30] Whether or not the 1 warrant was still outstanding for purposes of justifying the stop was a matter for the 2 district court to decide [RP 26-27], see Rule 11-104 NMRA (providing that 3 preliminary evidentiary questions shall be determined by the court) and, given the 4 foregoing, it was within the judge’s prer ogative to determine whether the arrest 5 warrant was outstanding at the time of arrest. See generally State v. Salas , 6 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the 7 fact-finder to resolve any conflict in the te stimony of the witnesse s and to determine 8 where the weight and credibility lay). 9 Moreover, even if the warrant had beenquashed prior to Defendant’s arrest, 10 there is no indication that the officer wa s aware of this. Because the officer had 11 information that the warrant was valid, the stop was justified. See State v. Hubble , 12 2009-NMSC-014, ¶ 22, 146 N.M. 70, 206 P.3d 579 (recognizing that a mistake of fact 13 may provide the objective grounds for reasonable suspicion). Under this mistake-of14 fact analysis, we note that Defendant ge nerally asserts for the first time in her 15 memorandum in opposition thatthe New Mexico Constitution affords her greater 16 protection. [MIO 7] Assuming that th is was preserved below [MIO 4], Defendant 17 provides this Court with no specific ar gument in support of her assertion. See 18 generally State v. Leyva , 2011-NMSC-009, ¶ 36, 149 N.M. 435, 250 P.3d 861 197 (discussing preservation requirements); State v. Gonzales , 2011-NMCA-007, ¶ 19, 1 149 N.M. 226, 247 P.3d 1111 (stating that “this Court has no duty to review an 2 argument that is not adequately develope d”). Moreover, as discussed, it was 3 nonetheless within the district court’s prer ogative to determine that the warrant was 4 valid, without having to rely on a mistake-of-fact analysis. 5 In issues (6) and (7), De fendant continues to argue that the prosecutor engaged 6 in misconduct when he misstated the law during rebuttal by stating, “If you find that 7 abusive language alone can obstruct an o fficer in his duties then it is absolutely 8 relevant.” [DS 12; MIO 14; RP 40] As discussed in our notice, the prosecutor did not 9 rely solely on Defendant’s abusive language to argue thatDefendant was guilty. The 10 prosecutor also stated, “[we] don’t just have abusive language in this case” and 11 referred to the officer’s belief that his safety was compromi sed. [RP 40] Even 12 assuming that abusive language alone is not enough to obstruct an officer in his or her 13 duties, the prosecutor did not rely on De fendant’s abusive language alone for her 14 conviction – either during the presentation of evidence at trial or during the rebuttal. 15 For this reason, we conclude that the prosecutor did not engage in misconduct. 16 In conclusion, based on the analysis set forth in our notice and above, we 17 affirm. 18 IT IS SO ORDERED. 198 1 MICHAEL D. BUSTAMANTE, Judge 2 WE CONCUR: 3

4 LINDA M. VANZI, Judge 5

6 TIMOTHY L. GARCIA, Judge 7