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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-35967 4 MICHAEL DALTON WALDROP, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 7 Jennifer E. DeLaney, District Judge 8 Hector H. Balderas, Attorney General 9 Maris Veidemanis, Assist ant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chie f Public Defender 13 Mary Barket, Assistan t Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 182 {1} Defendant Michael Dalton Waldrop app eals his convictions for intimidation 1 of a witness, in violation of NMSA 1978, Section 30-24-3(A)(3) (1997), and 2 aggravated battery against a household member (great bodily harm), in violation of 3 NMSA 1978, Section 30-3-16(C) (2008, am ended 2018), on the ground that the 4 convictions are not supported by suffici ent evidence. We a ffirm Defendant’s 5 conviction for intimidation of a witness but reverse Defendant’s conviction for 6 aggravated battery against a household member. 7 BACKGROUND 8
{2} Because this is a memorandum opinion and the parties are familiar with the 9 facts of the case, we limit our recitation of the facts to those needed for clarity and 10 to adequately address the issues on appeal. 11
{3} Defendant’s wife (Victim) testified at trial as follows. In the summer of 12 2015, things were rocky be tween Defendant and Victim because Defendant found 13 out that Victim was having an affair. After weeks of Defenda nt acting “all over the 14 place” and being “volatile,” on July 10, 2 015, Victim gathered her personal items 15 from their home and attempted to leave Defendant. As she was moving her 16 clothing from the bedroom to the livi ng room, Defendant poured gasoline on the 17 clothes and tried to light them with a flamethrower. Victim thought Defendant was 18 trying to light her clothing on fire because he was mad about her affair. 193 {4} A week later, on July 16, 2015, Defend ant received a text from the wife of 1 the man with whom Victim was having th e affair. Defendant started yelling at 2 Victim and followed her into their bedroom where he handcuffe d Victim to a bar 3 in the closet and repeatedly hit and kick ed her. While Victim was still handcuffed, 4 Defendant directed her to get on the bed, ripped and removed her clothes, and 5 forcibly pierced her private parts with a needle. He inserted body jewelry in the 6 holes. Defendant threatened to shoot Victim if she did not stop screaming, and he 7 hit her in the head with a gun. 8
{5} Victim felt sick later that night and told Defendant that she should go to the 9 hospital. Defendant said they could not go to th e hospital because if they did, the 10 State would take away his towing warrant s for domestic violence and that would 11 mean the loss of their only source of income. 12
{6} The following day, Victim continued to feel sick and called her stepmother, 13 who was a nurse in Las Cruces , to examine her injuries. At Defendant’s direction, 14 Victim told her stepmother that she had b een in a four-wheeler accident. Victim’s 15 stepmother examined Victim’s injuries and determined that Victim needed to go to 16 the hospital. As Victim was getting into her step mother’s car, Defendant said what 17 sounded like, “Don’t fuck this up.” When asked why she did not contact the police 18 the day of the alleged beating and body pi ercing, Victim responded that she was 19 afraid of what Defendant mi ght do, and that while she was in the closet, Defendant 204 said that he did not have a problem taking out cops or anyone else who might try to 1 help her. Defendant told he r that he would rather see her dead than with anyone 2 else. 3
{7} The sexual assault nurse examiner, Sofi a Osollo (the SANE), who examined 4 Victim also testified at trial, and the entirety of her report was admitted into 5 evidence without objection. During the cour se of the examination, the SANE asked 6 Victim about prior injuries. Victim res ponded that she had some bruises because 7 Defendant had strangled, hit, slapped, and kicked her the week before. At trial, the 8 SANE was asked to look at a number of photos of Victim, three of which showed 9 bruising on Victim’s neck. When asked a bout these photos, the SANE testified that 10 there were “finger-like prints” on Victim ’s upper neck, just below the mandible. 11 She indicated that the color and extent of bruises depends on a variety of factors 12 but provided no testimony as to whether th e marks on Victim’s neck were a week 13 old or appeared to be more recent. 14
{8} Defendant moved for directed verdict on the claim of aggravated battery of a 15 household member, which was based solely on the alleged strangulation. The 16 district court denied the motion statin g that “the SANE nurse’s testimony and 17 report with regard to the strangulation and the marks as we ll as [Victim’s] 18 testimony with regard to the strangulatio n” provided sufficient evidence for the 19 count to go forward to the jury. Victim , however, never tes tified about being 205 strangled by Defendant, and the only evid ence about strangulation came from the 1 SANE. 2
{9} After deliberations, the jury found De fendant guilty of intimidation of a 3 witness and aggravated battery against a household member (great bodily harm) 4 based on the alleged strangulation, and not guilty of kidnapping, criminal sexual 5 penetration, aggravated battery agains t a household member (deadly weapon), and 6 false imprisonment. Defendant appeals hi s convictions on grounds of lack of 7 sufficient evidence. 8 DISCUSSION 9 Standard of Review 10
{10} “The test for sufficienc y of the evidence is whethe r substantial evidence of 11 either a direct or circumstantial nature ex ists to support a verdict of guilty beyond a 12 reasonable doubt with respect to every element essential to a conviction.” State v. 13 Largo , 2012-NMSC-015, ¶ 30, 278 P.3d 532 (int ernal quotation marks and citation 14 omitted). “Substantial evidence is releva nt evidence that a reasonable mind might 15 accept as adequate to support a conclusion.” Id. (internal quotation marks and 16 citation omitted). “In reviewing whether there was sufficient ev idence to support a 17 conviction, we resolve all disputed fact s in favor of the [s ]tate, indulge all 18 reasonable inferences in support of the verdict, and disregard all evidence and 19 inferences to the contrary.” Id. (internal quotation mark s and citation omitted). 206 “The court should not re-weigh the evidence . . . or replace the fact-finder’s view 1 of the evidence with the appellate court’s own view of the evidence.” State v. 2 Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72. “[O]ur role is to 3 determine whether a rational fact-finde r could determine beyond a reasonable 4 doubt the essential facts necessa ry to convict the accused.” Id. 5 Intimidation of a Witness 6
{11} The district court instructed the jury as follows on intimidation of a witness: 7 For you to find [D]efendant guilty of intimidation of a witness 8 as charged in Count 5, the [S]tat e must prove to your satisfaction 9 beyond a reasonable doubt each of the following elements of the 10 crime: 11 1. [D]efendant knowingly intimidated or threatened 12 [Victim] with the intent to keep [V ictim] from truthfully reporting to a 13 law enforcement officer in formation relating to: 14 the commission or possible commi ssion of kidnapping, criminal 15 sexual penetration or aggravat ed battery against a household 16 member; 17 2. This happened in New Me xico on or between July 10th 18 and July 17th, 2015. 19
{12} At trial, Victim testified that Defendant told her that she could not go to the 20 hospital for her injuries because the Stat e would take away th e towing warrants for 21 their business if he was a rrested for domestic violence. The towing business was 22 the family’s only source of income and, a ccording to Victim, loss of that business 23 and its related income would have nega tively impacted the family. When she 24 insisted on calling her stepmother, Defendant told Victim to say that she had been 257 in a four-wheeler accident, which Victim di d. Victim also testified at trial that 1 when she was leaving the house with he r stepmother to s eek medical care, 2 Defendant approached her an d said what sounded like, “Don’t fuck this up.” In 3 addition, Defendant made thes e statements after he had previously told Victim that 4 he would rather see her dead than with anyone else a nd that he did not have a 5 problem taking out any police officers or anyone else who came to help Victim. 6
{13} Defendant argues that Victim’s testim ony concerning his statements that 7 their only source of income would be lost if she went to the hospital after he 8 assaulted her on July 16, 201 5, and his statements warning Victim as she was 9 leaving for the hospital with her stepmother the following day do not qualify as 10 intimidation of a witness. According to Defendant, he was simply trying to 11 persuade Victim about the legal conseque nces if she reported acts of domestic 12 violence. He maintains that such statemen ts—ones that do not include a threat of 13 physical harm, violence, or an unlawful act—do not constitute intimidation or 14 threats under Section 30-24-3( A)(3). Defendant also ar gues that reversal is 15 required because he was acqu itted of “two of the three felonies which formed the 16 basis for the intimidation of a witness charge” and because the State’s primary 17 theory of guilt was legally e rroneous. We are unpersuaded. 18
{14} In State v. Fernandez , we upheld the defendant county commissioner’s 19 conviction for intimidation of a witness based on a letter he sent to his arresting 208 officer stating that the officer and his wi fe were in violati on of a federal food 1 commodities program. 1994-NMCA-056, ¶ 1, 117 N.M. 673, 875 P.2d 1104. 2 Although the officer testified that he wa s not intimidated by the defendant’s calls 3 and letters, we neverthele ss concluded that the purpose of the letter was to 4 intimidate the police officer a nd prevent him from testifying at trial and, as a result, 5 such conduct was sufficient to constitute intimidation. Id. ¶¶ 1, 33-36. In reaching 6 our holding, we noted that to establish the crime, the state is not required to prove 7 that the victim actually felt intimidated. Id. ¶ 35. 8
{15} Similarly, in In re Gabriel M. , 2002-NMCA-047, ¶¶ 2, 5, 132 N.M. 124, 45 9 P.3d 64, a juvenile defenda nt told two fellow employees who saw him commit a 10 crime that if he got in trouble, “he would know who told.” The defendant 11 challenged the charge of intimidation of a witness, arguing that he never intended 12 to keep the witnesses from talking to law enforcement about potentially 13 incriminating conduct they may have witn essed, and that the witnesses were not 14 afraid at the time he made the statement. Id. ¶¶ 23, 26. Noting that there was 15 conflicting evidence regarding whether th e witnesses were afraid to disclose 16 information because of something the defe ndant said to them, we concluded there 17 was sufficient evidence to support the conviction. Id. ¶ 26. 18
{16} Given our holdings in the above case s and that Defendant has provided no 19 law to the contrary, we conclude that there was sufficient evidence from which a 209 jury could find that Defendant committed in timidation of a witness. We also reject 1 Defendant’s argument that he cannot be c onvicted of intimidation if he was not 2 ultimately convicted of the felony he wa s attempting to prevent Victim from 3 disclosing. As we have explained “a defe ndant may be convicted of intimidation of 4 a witness even if he is acquitted of any cr ime associated with the actions relating to 5 the commission or possible commission of a felony.” Id. ¶ 32 (internal quotation 6 marks and citation omitted). 7
{17} Because the State presented sufficien t evidence to support Defendant’s 8 conviction for intimidation of a witness, in violation of Section 30-24-3(A)(3), we 9 affirm his conviction. 10 Aggravated Battery Against a Househ old Member (Great Bodily Harm) 11
{18} The district court instructed the jury on the count of aggravated battery on a 12 household member (great bodily harm) as follows: 13 For you to find [D]efendant guilty of aggravated battery with 14 great bodily harm against a household member as charged in Count 3, 15 the [S]tate must prove to your satisfaction beyond a reasonable doubt 16 each of the following el ements of the crime: 17 1. [D]efendant touched or app lied force to [Victim’s] neck 18 by strangling her; 19 2. [D]efendant intended to injure [Victim]; 20 3. [D]efendant acted in a wa y that would likely result in 21 death or great bodily harm to [Victim]; 22 4. [Victim] was a househol d member of [D]efendant; 2310 5. This happened in New Me xico on or between July 10th 1 and July 17th, 2015. 2
{19} The jury was also given an instruction on great bodily harm: 3 Great bodily harm means an inju ry to a person which creates a 4 high probability of death or results in serious disfigurement or results 5 in loss of any member or organ of the body or results in permanent or 6 prolonged impairment of the use of any member or organ of the body. 7
{20} Defendant argues that there was insuff icient evidence to convict him of 8 aggravated battery against a household member (great bodily harm) because the 9 only evidence that Victim was strangled came from the SANE’s testimony and 10 report that constituted inherently unrelia ble hearsay, and ev en if the SANE’s 11 testimony and report can be relied upon, ther e is nonetheless insufficient evidence 12 to sustain his conviction. We agree with Defendant’s argument as to the 13 sufficiency of the evidence. 14
{21} Because Defendant did not object to admi ssibility of the evidence as hearsay 15 at trial, we will treat the SANE’s test imony and report as competent evidence for 16 purposes of this appeal. See State v. Romero , 1960-NMSC-047, ¶ 16, 67 N.M. 82, 17 352 P.2d 781 (“We have held that hearsay, admitted without objection, is to be 18 considered along with other evidence in determining whether there is substantial 19 evidence to sustain a verdict on appeal[.]”); see also Rule 12-321(A) NMRA (“To 20 preserve an issue for review, it must app ear that a ruling or decision by the trial 21 court was fairly invoked.”). Although we consider the SANE’s report and 2211 testimony as admissible eviden ce, we conclude that the evidence was not sufficient 1 to establish the elements for aggrav ated battery of a household member. 2
{22} While Victim described in detail multiple instances of alleged abuse on July 3 10 and 16, 2015, she did not testify at tria l that Defendant strangled her. The only 4 evidence that Victim was strangled was a statement in the SANE report quoting 5 Victim as stating that Defendant had stra ngled her in the prior week, the SANE’s 6 testimony at trial re-iterating the report’s statement, and the photographs showing 7 neck bruises. Even assuming that Defe ndant did strangle Victim, there is no 8 evidence that Defendant “acted in a way th at would likely result in death or great 9 bodily harm” to Victim as required by the jury instruction. See State v. Wynn , 10 2001-NMCA-020, ¶ 4, 130 N.M. 381, 24 P.3d 816 (“ Aggravated battery is a 11 specific intent crime.”); cf. State v. Hollowell , 1969-NMCA-105, ¶ 29, 80 N.M. 12 756, 461 P.2d 238 (concluding that the vi ctim’s testimony that the defendant 13 choked him so that his breath was cut off was sufficient to show that the 14 defendant’s conduct created a “h igh probability of death”). 15
{23} Because the State did not offer eviden ce that “each element of the crime 16 [was] established beyond a reasonable doubt[,]” State v. Garcia , 1992-NMSC-048, 17 ¶ 27, 114 N.M. 269, 837 P.2d 862, the evidence is insufficient to support 18 Defendant’s conviction for aggravated ba ttery against a household member (great 1912 bodily harm), in violation of Section 30-3-16(C). We therefore reverse this 1 conviction. 2 CONCLUSION 3
{24} For the reasons set forth above, we affirm Defendant’s conviction for 4 intimidation of a witness and reverse Defendant’s convicti on for aggravated 5 battery of a household member (great bo dily harm) and rema nd for re-sentencing 6 and further proceedings cons istent with this opinion. 7
{25} IT IS SO ORDERED. 8

_________________________________ 9 LINDA M. VANZI, Chief Judge 10 WE CONCUR: 11

_________________________________ 12 STEPHEN G. FRENCH, Judge 13

_________________________________ 14 HENRY M. BOHNHOFF, Judge 15