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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 27,606 9 DARLENE TANNER, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Thomas Hynes, District Judge 13 Gary K. King, Attorney General 14 Katherine Zinn, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Joseph P. Walsh, Assistant Public Defender 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 VIGIL, Judge. 232 Defendant appeals her convictions for one count of driving while intoxicated 1 (fourth offense) (“DWI”) and one count of child abuse, not resulting in death or great 2 bodily harm, raising six issues on appeal. We affirm. 3 BACKGROUND 4 The material facts leading up to the in itial stop of Defendant’s vehicle are not 5 in dispute. A dispatch call was made to police by a citizen-informant at a convenience 6 store. The citizen-informant told the disp atcher that Defendant appeared intoxicated. 7 Based on the call, the police dispatcher sent out an “attempt to locate” bulletin 8 (“ATL”) providing a description of the vehi cle and the driver and stating that the 9 driver was suspected of DWI. Officers Calkins, Clark, and Webb responded to the 10 ATL, but Sergeant Webb was the officer who initially stopped Defendant’s vehicle 11 in a convenience store parking lot. Deputy Calkins was the field training officer 12 supervising Deputy Clark, and the tw o were riding in the same vehicle. 13 None of the officers testified that the dispatch included information regarding 14 the facts giving rise to the caller’s suspicion that Defendant was intoxicated. After 15 stopping the vehicle based on the ATL, Deputy Clark discovered that Defendant 16 displayed signs of intoxication. After ad ministering field sobriety tests, Defendant 17 was arrested and later charged with DWI ( over .08) or, in the alternative, based on 183 impairment “to the slightest degree,” one c ount of child abuse not resulting in death 1 or great bodily harm, and three othe r counts that were later dismissed. 2 Defendant filed a motion to suppress and a motion in limine to exclude the 3 results of the blood alcohol tests (“ BAT”); both motions were denied. After a jury 4 trial, Defendant was convictedof DWI and child abuse not resulting in death or great 5 bodily harm. This appeal followed. Additi onal facts are incorporated in the following 6 discussion where necessary. 7 I. PROPRIETY OF STOP 8 Defendant contends that all of the ev idence should be suppressed because the 9 officers had insufficient information to justif y a stop of her vehicle. She claims that 10 even if the informant gave the dispatcher sufficient information to establish reasonable 11 suspicion that she was committing the offe nse of DWI, that information was not 12 communicated to the officers and thus they lacked sufficient facts to justify stopping 13 her. Defendant also claims that pres entation of the evidence justifying the stop 14 violated her constitutional right to confront her accuser. This c ontention is discussed 15 in detail following analysis of the propriety of the stop. 16 STANDARD OF REVIEW 17 In reviewing the district court’s denialof a motion to suppress, we determine 18 “whether the law was correctly applied to the facts, viewing them in a manner most 194 favorable to the prevailing party.” State v. Jason L. , 2000-NMSC-018, ¶ 10, 129 N.M. 1 119, 2 P.3d 856 (internal quotation marks and citation omitted). We defer to the 2 district court’s findings of fact to the extent that they are supported by substantial 3 evidence. Id. However, we “review the application of the law to these facts, 4 including determinations of reasonable suspicion, under a de novo standard of 5 review.” State v. Patterson , 2006-NMCA-037, ¶ 13, 139 N.M. 322, 131 P.3d 1286. 6 In this case, the district court did not en ter any formal factual findings or conclusions 7 of law. Therefore, we will employ all reasonable presumptions in support of the 8 district court’s ruling. See Jason L. , 2000-NMSC-018, ¶ 11. 9 DISCUSSION 10 When an officer stops an automobile to investigate a possible crime, we analyze 11 the reasonableness of the stop and ensuing investigatory detention in accordance with 12 the two-part test in Terry v. Ohio , 392 U.S. 1 (1968). See State v. Duran , 13 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836. We ask whether the stop was 14 justified at its inception and whether the officer’s actions during the stop were 15 reasonably related to circumstances that justified the stop. Id. In order for the stop 16 to be justified at its inception, “[t]he officer, looking at the totality of the 17 circumstances, must be able to form a reasonable suspicion that the individual in 18 question is engaged in or is about to be engaged in criminal activity.” State v. 195 Contreras , 2003-NMCA-129, ¶ 5, 134 N.M. 503, 79 P.3d 1111. “ A reasonable 1 suspicion is a particularized suspicion, based on all the circumstances that a particular 2 individual, the one detained, is br eaking, or has broken, the law.” J ason L

. , 2000- 3 NMSC -018, ¶ 20. When officers stop a suspect pursuant to a tip, we consider the 4 totality of the circumstances to determine whether the tip was sufficiently reliable to 5 provide police with reasonable suspicion thata crime “was being or was about to be 6 committed,” or whether the tip was sufficien t to indicate the possibility of danger to 7 the public thus justifying an investigatory stop. Contreras , 2003-NMCA-129, ¶ 7. 8 At the suppression hearing, Defendant c onceded that the informant identified 9 herself to the dispatcher by name, and in formed the dispatcher that she was a 10 convenience store clerk who had refused to sell alcohol to Defendant because 11 Defendant appeared to be intoxicated and that she witnessed Defendant driving away 12 from the store. Despite the information provided to the dispatcher, the officers 13 testified that they were not given any factual details as to the nature of the complaint 14 or a description of driving; the dispatcheronly reported the conclusion that the driver 15 was suspected of DWI and identified Defendant’s car by description and license plate 16 number. 17 Defendant contends that the stop was not justified because none of the officers 18 claimed to have any inform ation regarding the facts supporting the suspicion that 196 Defendant was committing a DWI; instead, the officers improperly relied on 1 information which accurately described the suspect and her vehicle but which failed 2 to provide a factual description of the alleged crime. We disagree. 3 Even though no facts were provided to support the informant’s suspicion that 4 Defendant was intoxicated, officers were ju stified in making the stop due to the 5 exigent circumstances presented by a possi bly intoxicated driver and due to the 6 identifying information provided by the in formant and conveyed by the dispatcher. 7 See id. ¶ 21 (holding that, under the totality of circumstances, the officer’s stop of the 8 defendant’s vehicle was reasonable in light of the “exigency of the possible threat to 9 public safety that a drunk driver poses,” and given that the tip was provided by “a 10 reliable concerned motorist” and that th e information was sufficiently detailed to 11 allow the officer to “find the vehicle in question and confirm the description”); State 12 ex rel. Taxation & Revenue Dep’t Mo tor Vehicle Div. v. Van Ruiten , 107 N.M. 536, 13 538-39, 760 P.2d 1302, 1304-05 (Ct. App. 1988) (applying the standard used in 14 criminal cases and concluding that the offi cer had reasonable suspicion justifying the 15 stop when the dispatcher provided him withinformation that someone had called and 16 reported seeing a very intoxicated person l eaving a store and describing the vehicle 17 and the direction of travel). 187 Defendant cites to Florida v. J.L. , 529 U.S. 266 (2000), to support her 1 contention that officers were not justifie d in relying on the in formation conveyed by 2 the dispatcher. In J.L. , officers relied on an anonymous tip that a person was carrying 3 a gun to justify a search of the defendant. Id. at 268. The tip came from an unknown 4 person at an unknown location. Id. at 270. The Supreme Court held that the search 5 violated the defendant’s Fourth Amendment rights because the call provided “no 6 predictive information,” and therefore the po lice had no means to test the informant’s 7 knowledge or credibility. Id. at 271. 8 We are unpersuaded that J.L. warrants reversal in this case given that this Court 9 has previously considered and rejected the same argument in Contreras. See 10 Contreras , 2003-NMCA-129, ¶¶ 3, 6, 16-21. In rejecting the defendant’s argument 11 in Contreras , this Court noted the significant number of cases from other jurisdictions 12 decided after J.L. and holding that a tip that provide d sufficient information to reliably 13 identify the car, provided sufficient justifi cation to allow officers to make the stop. 14 Contreras , 2003-NMCA-129, ¶¶ 9, 17-21 (recognizing the holding in J.L. , but then 15 holding that officers were justified in maki ng the stop because the facts “allow[ed an] 16 inference that the anonymous caller was a re liable concerned motorist; the information 17 given was detailed enough for the deputies to find the vehicle in question and confirm 18 the description; and the caller was an apparent eyewitness to the erratic driving”). 198 In Contreras , the informant was an anonymous citizen who was an eyewitness 1 to the erratic driving, which lent credibility to the anonymous claim. Id. ¶ 12. In this 2 case, the informant lent credibility to her claim by identifying herself by name and as 3 a convenience store employee and telling the dispatcher that she personally observed 4 Defendant’s intoxicated behavior. An in formant such as the one in this case is 5 considered to be more reliabl e than other types of informants and thus subject to less 6 stringent credibility verification requirement s because such informants have nothing 7 to gain by providing false information. See id. ¶ 10. Moreover, in contrast to the 8 circumstances underlying the search in J.L., this case involves “a moving car on a 9 public roadway [which] presents an exigen t circumstance that a possessory crime does 10 not[;] . . . it is the imminent threat to public safety that distinguishes th[is] case[] from 11 J.L. ” Contreras , 2003-NMCA-129, ¶ 15. Finally, a brief investigatory stop such as 12 the one in this case is “less intrusive than the pat-down search at issue in J.L. ” Id. ¶ 13 16. 14 Finally, we disagree that reversal is warranted based on this Court’s decision 15 in State v. Moore , 2008-NMCA-056, 144 N.M. 14, 183 P.3d 158. [BIC 16-17] In 16 Moore , this Court found that a warrantless sear ch of a residence was not justified by 17 exigent circumstances. Id. ¶¶ 14-16 (holding that exigent circumstances justifying 18 warrantless entry into a residence were not presented by an ammoni a leak in a garage 199 that was thirty to forty feet away from the residence in the absence of sufficient, 1 particularized, articulable facts suggesti ng that individuals in the residence were 2 incapacitated). However, the facts underlying the search in Moore are more similar 3 to those presented in J.L. than to those presented in Contreras or this case because 4 Moore does not concern the exigent circumstances presented by a potential drunk 5 driver on a public roadway. See Contreras , 2003-NMCA-129, ¶¶ 15-16, 21; cf. State 6 v. Rowell , 2008-NMSC-041, ¶¶ 28-35, 144 N.M. 371, 188 P.3d 95 (reversing the 7 Court of Appeals and holding that the offi cer’s warrantless search of the defendant’s 8 vehicle was justified by the exigent ci rcumstances presented once the defendant 9 admitted that he had a shotgun in the vehicle that was on school premises). 10 Based on the foregoing, we affirm the de nial of Defendant’s motion to suppress 11 based upon her challenge to the initial stop. 1210 II. CONFRONTATION CLAUSE 1 Defendant contends that she was entitle d to a new suppression hearing because 2 her right to confrontation was violated wh en she was unable to confront the citizen3 informant, her primary accuser, during the suppression hearing. She notes that the 4 informant provided all of the information justifying the stop, and then claims that she 5 was deprived of her constitutional right to confront this witness “whose testimony 6 would either confirm or dispel the existe nce of reasonable suspicion.” We disagree. 7 STANDARD OF REVIEW 8 “Questions of admissibility under the C onfrontation Clause are questions of 9 law, which we review de novo.” State v. Dedman , 2004-NMSC-037, ¶ 23, 136 N.M. 10 561, 102 P.3d 628; see State v. Romero , 2006-NMCA-045, ¶ 12, 139 N.M. 386, 133 11 P.3d 842, aff’d 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694. 12 DISCUSSION 13 It is undisputed that the information obtained from the citizen-informant was 14 used only for purposes of justifying the stop; she was not a witness at trial and did not 15 testify or present evidence against Defendant. Therefore, we are unconvinced that 16 Defendant’s right to confrontation wa s triggered and we are unpersuaded by 17 Defendant’s citation to out -of-state authority supporting the proposition that a 18 defendant is entitled to confront eyewitnesse s whose statements are presented at trial 1911 through the testimony of the investigating officer. See State v. Rivera, 2008-NMSC1 056, ¶¶ 18, 22-23, 144 N.M. 836, 192 P.3d 1213 (noting that recent Supreme Court 2 cases continue to focus on the protections th at must be afforded a defendant at trial 3 and holding that an accused doe s not have a Sixth Amendmen t right to confront and 4 cross-examine witnesses at a pretrial hearing on a motion to suppress evidence). 5 Finally, Defendant claims that even though the informant’s statements were not 6 introduced at trial, the right to c onfrontation is a pre-trial right. See State v. Hensel , 7 106 N.M. 8, 738 P.2d 126 (Ct. App. 1987). We disagree and note that Hensel was 8 expressly overruled by our Supreme Court in Rivera

. See Rivera , 2008-NMSC-056, 9 ¶ 22 (stating that “the Hensel opinion does not reflect current confrontation clause 10 jurisprudence and is of no current value to our courts. It is hereby overruled”). 11 III. ADMISSION OF BAT RESULTS 12 Defendant claims that the district court abused its discretion in admitting the 13 BAT results into evidence b ecause Deputy Calkins, the operator of the machine used 14 to test her, did not comply with the regul ation of the Scientific Laboratory Division 15 of the Department of Health(“SLD”), which requires the officer administering the 16 breath test to first “ascertain[] that the subject has not had anything to eat, drink or 17 smoke for at least 20 minutes prior to collection of the first breath sample.” 18 7.33.2.12(B)(1) NMAC (03/14/01). She fu rther contends that the results were 1912 improperly admitted because th e State failed to make a threshold showing that the 1 machine used to test Defendant, the Int oxilyzer 8000 (“breath machine”) was properly 2 certified. 3 STANDARD OF REVIEW 4 We review the district court’s decisionon whether to admit the results of the 5 BAT for abuse of discretion. State v. Willie , 2008-NMCA-030, ¶ 5, 143 N.M. 615, 6 179 P.3d 1223, rev’d on other grounds, 2009-NMSC-037, __ N.M. __, __P.3d __ 7 (No. 30,909, June 24, 2009). Interpretation of a regulation is subject to de novo 8 review. Willie , 2009-NMSC-037, ¶ 9. Once a defendant objects, the district court 9 abuses its discretion if it admits evid ence when the foundational requirements have 10 not been established. See Willie , 2008-NMCA-030, ¶ 5. In determining whether BAT 11 results are admissible, the district court needs to find by a preponderance of the 12 evidence that foundational requirements have been met. See Willie , 2009-NMSC-037, 13 ¶ 8; State v. Martinez , 2007-NMSC-025, ¶¶ 10-11, 21, 141 N.M. 713, 160 P.3d 894. 1413 DISCUSSION 1 Deputy Clark was not a certified operator of the breath machine, so the BAT 2 was administered by Deputy Calkins. Even though Deputy Calkins performed the 3 test, Deputy Clark observed Defendant during the twenty-minute observation period. 4 Defendant claims that the BAT resu lts were improperly admitted because 5 Deputy Calkins, the officer administering the test, failed to “ascertain” that Defendant 6 had nothing to eat, drink, or smoke for twenty minutes prior to the test as required by 7 7.33.2.12(B)(1) NMAC. She claims th at Deputy Calkins delegated the “non8 delegable duty” to ascertain whether she had been deprivedof food, drink, or smoking 9 materials for twenty minutes to an “ unqualified individual” because Deputy Calkins 10 did not remember what steps, if any, weretaken to ensure that Defendant had nothing 11 to eat, drink or smoke during the twenty-minute period. 12 Deputy Clark testified that he conducte d the twenty-minute deprivation period. 13 He testified that he arrested Defendant at 7:44 p.m., handcuffed her hands behind her 14 back, asked her if she had anything in her mouth, searched her to confirm she had 15 nothing on her person, and aske d her to open her mouth so he could confirm that it 16 was empty. He testifie d that he then placed her in the back of the patrol car where she 17 remained until they arrived at the substation at 8:11 p.m. At thatpoint, Defendant was 18 escorted into the “intox” room where she remained in the presence of Deputies Clark 1914 and Calkins until the BAT commenced at 8: 15 p.m. Based upon this testimony, the 1 district court could concl ude by a preponderance of the evidence that Deputy Clark 2 ascertained that Defendant had nothing to eat, drink, or smoke during the twenty3 minute observation period before the first BAC. Cf. Willie , 2009-NMSC-037, ¶¶ 12- 4 13, 16 (reversing the Court of Appeals whic h required that the officer ask and check 5 whether a suspect has something in his or her mouth, interpreting the ascertainment 6 regulation as allowing a BAT operator to use a variety of methods and means “to 7 determine that a DWI suspect has had nothing to eat, drink, or smoke during the 8 deprivation period,” and stating that no speci fic action on the part of the BAT operator 9 is required). 10 Even though Deputy Clark was the officer who ensured compliance with the 11 requisite deprivation period, there is nothing in the regulations requiring that the 12 officer who observes a suspect for twenty minutes prior to the test, be the same officer 13 who administers the test and nothing preclude s the testing officer from delegating the 14 duty regarding the deprivati on period to another officer. Instead, it is only necessary 15 that the person administering the test as certain through a reliable means that the 16 suspect has had nothing to eat, drink, or smoke for twenty minutes prior to the test. 17 Id. ¶ 14 (holding that the BAT operator may us e a variety of means at their disposal 1815 to determine that the subject has had nothing to eat, drink, or smoke “on an 1 individualized, case-by-case basis”). 2 Deputies Clark and Calkins testified that they were near Defendant during the 3 entire deprivation period. Furthermore, Deputy Calkins testified that he knew Deputy 4 Clark had been trained to conduct the deprivation period and it was Deputy Calkins’ 5 role to ensure that Deputy Clark correc tly performed his duties. Based upon the 6 testimony of Deputies Clark and Calkins, take n as a whole, the district court could 7 find by a preponderance of the evidence th at Deputy Calkins ascertained that 8 Defendant had nothing to eat, drink or smokefor at least twenty minutes before he 9 administered the tests because Deputy Calkins and the court could rely on Deputy 10 Clark’s actions in observing Defendant to in sure that the purpose of the regulation has 11 been met—that Defendant have nothing to eat, drink, or smoke for at least twenty 12 minutes before the first BAT is administered. Cf. Willie , 2009-NMSC-037, ¶¶ 12, 16 13 (noting that “ascertain” suggests the need “to make a determination to some degree 14 of certainty [but it] does not address the manner in which such a determination is 15 made”); State v. Rivera , 1997-NMCA-102, ¶ 4-5, 124 N.M. 211, 947 P.2d 168 16 (holding that the purpose of the twenty-minute observation period could be satisfied 17 by testimony showing that the officer was s itting in the car with the defendant because 18 the purpose is “to insure that a defendant does nothing to compromise the test”). 1916 Defendant also argues that the BAT resu lts were inadmissible because the State 1 failed to establish that the breath machin e was properly certified. Defendant claims 2 that at trial, Deputy Calkins admitted that he had no knowledge as to whether the 3 machine was certified. She claims that sh e challenged the certification of the machine 4 both orally and in writing beforetrial. She admits that the State provided proof as to 5 certification of the machine by providing a copy of the certification documents during 6 discovery, but claims that she could notdetermine if the machine was properly 7 calibrated absent an affirmative showing of proper calib ration by the State, and that 8 the certification documents alone are insufficient unless someone testifies as to 9 certification. 10 Defendant is correct thateven though the State establishes the foundational 11 requirement of certification by introduci ng testimony or documentation, she may 12 challenge the admissibility of the BAT by introducing evidence calling into doubt the 13 validity of the certification. See Martinez , 2007-NMSC-025, ¶¶ 23-25 (holding that 14 the officer’s testimony that he saw the SL D certification sticker on the machine was 15 sufficient to meet the foundational requirement of proper certification by a 16 preponderance of the evidence but also obs erving that a defendant may still challenge 17 the reliability of BAT results by seeking disc overy to provide information to be able 18 to “critically challenge an officer’s f oundational testimony concerning certification”)

. 1917 However, we disagree with Defendant’s contention that alerting the State that 1 certification is challenged is all that is necessary to require the State to show 2 certification with a “proper foundational witness.” 3 After the State produced the documents establishing certification, Defendant 4 put forth nothing to challenge the State’ s foundational proof that the machine was 5 properly certified except for unsupported allegations that live testimony was necessary 6 to avoid reliance on the hearsay that was purportedly contained in the certification 7 document. This is insufficient to call the State’s foundation proof into doubt or to 8 require the State to produce additional proof. See State v. Granillo-Macias , 9 2008-NMCA-021, ¶ 20, 143 N.M. 455, 176 P.3d 1187 (accepting the district court’s 10 observations that the SLD maintains the breath machines in accordance with certain 11 rules and regulations, the certification in formation is available for review by 12 defendants to ensure the veracity of certification documents, and unless evidence 13 appears to the contrary to challenge th e veracity of the documents, the officer’s 14 testimony that a machine had a proper, validcertification certificate is sufficient to 15 establish a presumption that the machine is operating correctly). 16 IV. PROSECUTORIAL MISCONDUCT 17 Defendant contends that the district c ourt abused its discretion in permitting the 18 State to argue in closing that the ATL wa s based on a suspected DWI when no witness 1918 testified about suspecting Defendant of DWI prior to the st op and when Defendant 1 could not cross-examine any such witness as to the credibility of the suspicion of 2 DWI. See State v. Duffy , 1998-NMSC-014, ¶¶ 46-47, 126 N.M. 132, 967 P.2d 807 3 (stating that a trial court’s rulings on pros ecutorial misconduct are reviewed for abuse 4 of discretion), modified on other grounds by State v. Gallegos , 2007-NMSC-007, ¶ 5 17, 141 N.M. 185, 152 P.3d 828. 6 Before trial, the district court granted Defendant’s motion in limine prohibiting 7 the State from making any refere nce to the fact that the A TL was related to a possible 8 DWI or reference to any statements made by the informant that Defendant was driving 9 impaired because such info rmation would be hearsay and also violate Defendant’s 10 rights under the Confrontation Clause. During closing arguments, the prosecutor 11 made reference to the stop being pursuant to an ATL of a suspected DWI. At trial, 12 Defendant objected claiming “facts not in evidence” because suchstatements were 13 excluded by the district court’s pre-trial ru ling and because he be lieved that no witness 14 testified regarding any suspicion of DWI prior to the stop. See State v. Diaz , 100 15 N.M. 210, 213-14, 668 P.2d 326, 329-30 (Ct. App. 1983) (stating that, during closing 16 “a prosecutor must confine himself to the facts introduced in ev idence and to the fair 17 and reasonable inferences to be drawn therefrom”). The court overruled Defendant’s 18 objection. 1919 Defendant contends that the prosecuto r’s statement was not based on evidence 1 introduced at trial and that it was so prejudicial and such egregious misconduct that 2 it warrants a new trial. See Duffy , 1998-NMSC-014, ¶¶ 46-47 (stating that 3 prosecutorial misconduct may warrant a new trial if it is “so egregious” and “had such 4 a persuasive and prejudicial effect on th e jury’s verdict that the defendant was 5 deprived of a fair trial”). We disagree. 6 In Defendant’s opening statement, she c onceded that the State’s evidence could 7 prove that she was driving while intoxicat ed by stating an expectation that the 8 evidence would show she was driving while intoxicated including evidence of 9 standardized field sobriety tests, bloodshot, watery eyes, and alc ohol in the car. She 10 reiterated this concession during closing by instructing th e jury to only “convict her 11 of what she’s guilty of, convict her of the DUI.” Moreover, during trial, Defendant 12 did not object when Sergeant Webb testifie d that he received an ATL “reference 13 possible DWI.” Therefore, the prosecuto r’s comments did not introduce facts that 14 were not in evidence. See id. ¶ 59. 15 Finally, to whatever extent Defendant mi ght claim that her failure to object to 16 Sergeant Webb’s testimony should be excuse d because that testimony combined with 17 the prosecutor’s comments were so prejudicial as to constitute fundamental error, we 18 again disagree. Given Defendant’s own statemen ts during opening and closing, we 1920 are not persuaded that the State’s actions in referring to the possible DWI as a basis 1 for the ATL or Sergeant Webb’s statement prejudiced Defendant’s case. See In re 2 Ernesto M. , 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (stating that “[a]n 3 assertion of prejudice is not a showing of prejudice”); State v. Fernandez , 117 N.M. 4 673, 676, 875 P.2d 1104, 1107 (Ct. App. 1994) (“In the absence of prejudice, there 5 is no reversible error.”). 6 V. SUFFICIENCY OF THE EVIDENCE FOR CHILD ABUSE 7 Last, Defendant contends there was insufficient evidence to support her 8 conviction for child abuse not resulting in death or great bodily harm. Specifically, 9 she argues that there was no evidence presen ted to show that the children in the 10 vehicle were under the age of eighteen, or th e identities of the children as set forth in 11 the jury instructions. 12 STANDARD OF REVIEW 13 We review the evidence introduced at trial to determine “whether substantial 14 evidence of either a direct orcircumstantial nature exists to support a verdict of guilt 15 beyond a reasonable doubt with respect to ev ery element essential to a conviction.” 16 State v. Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We view the 17 evidence in the light most favorable to the verdict, resolving all conflicts and 18 indulging all inferences in favor of the verdict. See State v. Apodaca , 118 N.M. 762, 1921 765-66, 887 P.2d 756, 759-60 (1994). We do not reweigh the evidence or substitute 1 our judgment for that of the fact finder so long as there is sufficient evidence to 2 support the verdict. State v. Mora , 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 3 789. 4 DISCUSSION 5 To convict Defendant of child abuse not resulting in death or great bodily harm, 6 the jury had to find, beyond a reasonable doubt, that Defendant “caused Tracy Tanner, 7 Raymond Tanner, and Ilene Tanner,” to be placed in a situation that endangered their 8 life or health and that “Tracy Tanner, Raymond Tanner, and Ilene Tanner were under 9 the age of 18.” See State v. Smith , 104 N.M. 729, 730, 726 P. 2d 883, 884 (Ct. App. 10 1986) (observing that “[j]ury instructions become the law of th e case against which 11 the sufficiency of the evid ence is to be measured”). 12 Defendant contends that the State failed to prove that the occupants of the car 13 were children under eighteen years of age. She notes, correctly, that the children were 14 never named at trial, and there was no testimony as to their ages. She also claims that 15 the only evidence on which the State could rely was a “mention by the officer that 16 there were 

### < juveniles’ in the car.” We disagree that this is the only evidence 17 supporting the element that Defendant’s juvenile children were in the car. We now 18 turn to the evidence in support of the conviction. 1922 Sergeant Webb, who initially stopped the vehicle, testif ied that there were five 1 other occupants including a “four year ol d girl [in the] front passenger seat.” 2 Defendant objected, and the court sustained the objection stating that the officer had 3 to lay a foundation as to how he knew the age. Sergeant Webb then testified that 4 another female juvenile was found directly behind the drive r’s seat and a juvenile boy 5 was in the back. He also testified that he stayed on the scene until the children’s 6 father took them home, and he remained on the scene until the fath er arrived to “take 7 custody of the children.” 8 In addition to Sergeant Webb’s testimony, a videotape of the interaction 9 between Defendant and the police was played to the jury. On the videotape, 10 Defendant is asked who is in the car withher, and she responds “my children,” and 11 someone can be heard saying “mommy, mommy.” An officer is then heard to say 12 “[w]e’ll get a[]hold of their dad, okay?” Later, an officer asked Defendant if her 13 husband can pick up the car and the kids, and sh e says yes. After playing the tape, the 14 State asked the arresting officer, Deputy Cl ark, “did you observe the children in the 15 vehicle?” and he responded “yes.” 16 Based upon this testimony and the videot ape, the jury could conclude beyond 17 a reasonable doubt, that Defendant “caused Tracy Tanner, Raymond Tanner, and Ilene 18 Tanner,” to be placed in a situation that e ndangered their life or health and that “Tracy 1923 Tanner, Raymond Tanner, and Ilene Tanner were under the age of 18,” in order to 1 convict Defendant of one count of child abuse not resulting in great bodily harm. See 2 State v. Cunningham , 2000-NMSC-009, ¶ 29, 128 N.M . 711, 998 P.2d 176 (stating 3 that circumstantial evidence may besufficient to uphold a conviction); cf. State v. 4 Barber , 2004-NMSC-019, ¶ 33, 135 N.M. 621, 92 P.3d 633 (affirming the defendant’s 5 conviction because the state presented enough circumstantial evidence 6

to support all of the inferences necessary fo r the jury to find the essential elements of 7 the crime beyond a reasonable doubt). 8 CONCLUSION 9 As the stop and investigation of Defendant were justified, Defendant was not 10 entitled to a suppression of the evidence obtained as a result of the stop. We affirm 11 the denial of Defendant’s motion to suppress and affirm her convictions. 12 IT IS SO ORDERED. 13

14 MICHAEL E. VIGIL, Judge 15 WE CONCUR: 1624 1 JAMES J. WECHSLER, Judge 2

3 LINDA M. VANZI, Judge 4