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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-34276 4 JOSE VARGAS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 Jerry H. Ritter, Jr., District Judge 8 Hector H. Balderas, Attorney General 9 Maris Veidemanis, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 C. David Henderson, Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 182 {1} Defendant Jose Vargas seeks to revers e his convictions following a jury trial 1 for one count of aggravated assault ag ainst a household member, pursuant to NMSA 2 1978, Section 30-3-13(A) (1995), one count of false imprisonment, pursuant to 3 NMSA 1978, Section 30-4-3 (1963), and one count of battery against a household 4 member, pursuant to NMSA 1978, S ection 30-3-15 (2008). Unpersuaded by 5 Defendant’s arguments, we affirm. Because this is a memorandum opinion and the 6 parties are familiar with the facts and proce dural posture of the case, we set forth only 7 such facts and law as are nece ssary to decide the merits. 8 BACKGROUND 9 {2} Defendant’s convictions stem from a domestic dispute that occurred between 10 Defendant and Olga Sau cedo (Victim) on Thanksgivi ng Day, November 22, 2012. 11 Witnesses at Defendant’s trial were Vic tim’s neighbors, Joe Oc hoa (Mr. Ochoa) and 12 his wife, Cheryl Polizzi (Ms. Polizzi), as well as Alamogordo, New Mexico Police 13 Officers, Troy Thompson (Officer Thompson) and Mark Esquero (Officer Esquero). 14 {3} The following evidence was presented to the jury. Victim and Defendant had 15 been in a relationship for two years befo re their Thanksgiving Day 2012 dispute. On 16 the morning of Thanksgiving Day 2012, De fendant and Victim were drinking and 17 arguing in Victim’s trailer. Around 9:00 a. m., Victim went to Mr. Ochoa and Ms. 18 Polizzi’s trailer in her bathrobe “confused ” and “not herself,” but only told Mr. Ochoa 193 and Ms. Polizzi “Happy Thanksgiving.” Victim left soon after, but later that day 1 returned to Mr. Ochoa and Ms. Polizzi’s home and banged on the trailer, saying 2 “Help me! Help me!” and “He wants to kill me!” Mr. Ochoa called the police. 3 {4} Officer Thompson responded to the call, but did not detect any signs of criminal 4 conduct. Officer Thompson therefore conc luded his investigation after Victim 5 informed him that Defendant would be l eaving and that everything would be okay. 6 {5} Later that same day, Mr . Ochoa testified to observing Victim’s hand trying to 7 open her trailer door and then seeing the door slamming shut. Victim was screaming 8 “help me,” “leave me alone,” and “stop hitting me,” and Defendant could be heard 9 yelling back at her. Victim and Defendant then came out of Victim’s trailer and both 10 were holding knives. Mr. Ochoa described this situation as a “fight[]” between Victim 11 and Defendant “with knives[ .]” Ms. Polizzi described seeing Victim backing away 12 from her trailer and from Defendant with a knife in her hand as he pursued her with 13 a knife in his hand. 14 {6} Ms. Polizzi called the police a second time and stated that “the same people that 15 I called about before, now they’re outside and they’ve got weapons.” While Ms. 16 Polizzi called the police, Mr. Ochoa went to Victim’s trailer to offer help. While at 17 Victim’s trailer, Mr. Ochoa managed to grab Victim and tell her togive him her knife. 18 Mr. Ochoa then convinced Defendant to puthis knife down. Ms. Polizzi then called 194 Victim to come into her yard where she observed injuries suffered by Victim 1 including blood coming from her nose, brui ses and red marks on her wrists, blood 2 smears on both of her shoulders, a wet f ace from crying and her hair in disarray. 3 Defendant left the scene before the police arrived. 4 {7} Officer Thompson responded to the second call with the information that there 5 were two people armed with knives swinging them at each other. After investigating 6 the scene of the altercation and being unable to locate Defendant, Officer Thompson 7 left the trailer park and obtained a warrant for Defendant’s arrest. Defendant was 8 subsequently arrested on the warrant. 9 DISCUSSION 10 {8} Defendant raises five arguments on appeal: (1) that the district court erred in 11 refusing to instruct the jury on self-defense by non-deadly force, see UJI 14-5181 12 NMRA; (2) that the jury instructions on the New Mexico “no-retreat” law, see UJI 14- 13 5190 NMRA, and the definition of “household member,” see UJI 14-332 NMRA, as 14 well as statements made by the prosecutor during closing argument constituted 15 fundamental errors that collectively amounted to cumulative error; (3) that Officer 16 Thompson’s testimony repeating Victim’s out-of-court statements concerning who 17 had hit her and where that individual was vi olated the Confrontation Clause; (4) that 18 admission of Officer Esquero’s testimony describing the arrest of Defendant 195 constituted plain error; and (5) that su fficient evidence does not support Defendant’s 1 convictions. We address these issues in turn. 2 I. The District Court Did Not Err in Refu sing to Instruct the Jury on Self3 Defense by Non-Deadly Force 4 {9} Defendant tendered a non-deadly force se lf-defense instruction modeled after 5 UJI 14-5181. The State objected, arguing thatbased on Victim and Defendant’s use 6 of knives in the confrontation, any self-d efense instruction submitted to the jury 7 should include the use of deadly force. Th e district court ruled that a self-defense 8 instruction was warranted because both Vi ctim and Defendant had knives and used 9 them in a way that the jury could infer that Defendant could have perceived Victim 10 as a threat and used his knife for self-defen se. The district court also determined that 11 self-defense by deadly force, pursuant to UJI 14-5183 NMRA, was the proper self12 defense instruction because the use of the knives as described by the witness 13 constituted the use of deadly force. The instruction given to the jury stated: 14 Evidence has been presented that [D ]efendant acted in self-defense. 15 [D]efendant . . . acted in self-defen se if: 1. There was an appearance of 16 immediate danger of death or great bodily harm to [D]efendant as a 17 result of [Victim] arming herself and swinging a knife at [D]efendant; 2. 18 [D]efendant was in fact put in fearof immediate death or great bodily 19 harm and was swinging a kni fe because of that f ear, and 3. The apparent 20 danger would have caused a reasonable person in the same 21 circumstances to act as [D]efendant did. The burden is on the State to 22 prove beyond a reasonable doubt that [D ]efendant did not act in self23 defense. If you have a reasonable doubtas to whether [D]efendant acted 24 in self-defense, you must find [D]efendant not guilty. 256 {10} We review a trial court’ s rejection of proposed jury instructions de novo. See 1 State v. Percival , 2017-NMCA-042, ¶ 8, 394 P.3d 979. “A defendant is only entitled 2 to jury instructions on a self-defense theo ry if there is evidence presented to support 3 every element of that theory.” State v. Baroz , 2017-NMSC-030, ¶ 14, 404 P.3d 769. 4 “Where there is enough evidence to raise a reasonable doubt in the mind of a juror 5 about whether the defendant lawfully acted in self-defense such that reasonable minds 6 could differ, the instru ction should be given.” Id. ¶ 15 (alterations, omission, internal 7 quotation marks, and citation omitted). 8 {11} Defendant argues that the district court erred in refusing to instruct the jury on 9 self-defense by non-deadly force. Defendant submits that while “[i]t was undisputed 10 that [he] and [Victim] both had knives duri ng their confrontation, . . . there was no 11 evidence that [he] attempted to use hi s knife” on Victim. As a result, Defendant 12 contends that his threatening conduct invol ving the display of a knife, without more, 13 constituted only the use of non-deadly force. In support of this contention, Defendant 14 cites State v. Clisham , 614 A.2d 1297 (Me. 1992) and People v. Pace , 302 N.W.2d 15 216 (Mich. Ct. App. 1980). In Clisham , upon receiving information that the defendant 16 had killed his wife, police officers attemp ted to search the home of the defendant 17 without obtaining a warrant. 614 A.2d at 1297. When the defendant refused to allow 187 the officers to enter his home, the officers to ld the suspect that if he did not permit 1 them to enter that they would break his door down. Id. at 1298. As a result, the 2 defendant armed himself with two knives, opened the door, and explained to the 3 officers that he would use the knives to prevent them from coming into his home. Id. 4 The defendant eventually relented and permitted the officers to enter his home—at 5 which time he was arrested and charged with “criminal threatening.” Id. The Supreme 6 Judicial Court of Maine determined that th e facts indicated that by brandishing knives 7 to repel the police from entering his home, the defendant had only “threatened the use 8 of deadly force. [And t]he mere threat of the use of deadly force is tantamount to the 9 actual use of non-deadly force. It is not on a par with the actual use of deadly force.” 10 Id. Accordingly, the court held that it was anerror for the trial court to equate “the 11 mere threat of deadly force withthe actual use of deadly force.” Id. at 1299. 12 {12} Similarly in Pace , there was a confrontation be tween the defendant and victim 13 over a transaction involving a set of speaker s that the defendant’s wife had purchased 14 from the victim. 302 N.W.2d at 217. During the confrontation, it was alleged that the 15 victim jumped in the face of the defendant. Id. at 217-18. The defendant responded 16 by pulling out a knife that he claimed to have used to defend himself when the victim 17 came toward him with what appear ed to be a small baseball bat. Id. At his trial for 18 assault using a dangerous weapon, the trial court gave the jury a self-defense using 198 deadly force instruction over defense counsel’s objection. Id. at 221. Reasoning that 1 the evidence did not show that the defe ndant stabbed, lunge d, or swung at anybody 2 with the blade of his knife, but rather merelydrew the knife and he ld it at his side, the 3 Michigan Court of Appeals determined that the defendant did not use deadly force 4 during the confrontation. Id. Accordingly, the court held that it was error for the trial 5 court to have instructed the jury on self-defense using deadly force. Id. 6 {13} Clishamand Pace are unpersuasive here. In Clishamand Pace , the defendants 7 used their knives in defensive postures—to repel an unlawful home entry by the police 8 in the first instance and to self-protect ag ainst an attack with a baseball bat by the 9 victim in the other—with no indication thatthe defendants stabbe d, lunged, or swung 10 at anybody with the blade of their knives. Incontrast, here the testimony of Mr. Ochoa 11 and Ms. Polizzi established that Victim and Defendant used their knives offensively 12 and in a manner consistent with the use of deadly force. Mr. Ochoa testified that he 13 witnessed Victim and Defendant “fighting” and “swinging” knives at each other in 14 front of Victim’s trailer. Additionally, Ms . Polizzi described seeing Victim backing 15 away from her trailer and from Defendant with a knife in her hand as he pursued her 16 with a knife in his hand. Based on these f acts, we conclude that there were facts to 17 support each element of self-defense by usi ng deadly force. As the district court 18 observed, Victim and Defendant had knives and used themin a way that one could 199 infer that Defendant could have reasonably perceived Victim as a threat and used his 1 knife for self-defense. Accordingly, we c onclude that the district court properly 2 instructed the jury on a theory of self-def ense by using deadly force and did not err 3 in rejecting Defendant’s tendered theory of self-defense by using non-deadly force. 4 II. Neither Fundamental nor Cumulati ve Error Occurred at Defendant’s 5 Trial as a Result of Either the Jury Instructions or the Prosecutor’s 6 Closing Argument 7 {14} Defendant argues that “the jury instruc tions on no duty to retreat, the definition 8 of a household member, and the prosecutor’s closing argument gave rise to 9 fundamental error[s]” at his trial. Moreover, Defendant contends , these errors taken 10 together also constituted a cumulative error. 11 A. The Instructions Given to the Juryon the New Mexico No-Retreat Law 12 and the Definition of a “Household Member” Did Not Give Rise to 13 Fundamental Errors 14 {15} The State tendered and received a “no -retreat” instruction, which was a 15 modified version of UJI 14-5190. The tendere d instruction provided that “[a] person 16 who is threatened with an attack need not retreat. In the exercise of her right of self 17 defense, she may stand her ground and defe nd herself.” The State explained that it 18 requested this instruction to inform the jury that upon being attacked, Victim had the 19 right to defend herself at her own home. Defendant neither objected to the State’s 2010 tendered version of UJI 14-5190 nor requested that a no-retreat instruction be given 1 to apply to him. 2 {16} The State also tendered and receive d an instruction defining the term 3 “household member” pursuant to UJI 14-332. The instruction provided that “a 4 ‘household member’ means a spouse, former spouse, family member, including a 5 relative, parent, present or fo rmer step-parent, present or former in-law, child or co6 parent of a child, or a person with whom the threatened [Victim] has had a continuing 7 personal relationship. Cohabitation is not necessary for [Victim] to be considered a 8 household member.” Defendant did not object to the instruction. 9 {17} Because Defendant failed to object to the State’s no-retreat instruction and 10 instruction defining “household member,” we review his challenges only for 11 fundamental error. See State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 12 P.3d 1134 (“The standard of review [appellate courts] apply to jury instructions 13 depends on whether the issue has been pres erved. If the error has been preserved 14 [appellate courts] review the instructions fo r reversible error. If not, we review for 15 fundamental error.” (citation omitted)). “The doctrine of fundamental error applies 16 only under exceptional circumstances and only to prevent a miscarriage of justice.” 17 State v. Barber , 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. “An error is 18 fundamental when it goes to the foundati on or basis of a defendant’s rights.” State v. 1911 Anderson , 2016-NMCA-007, ¶ 8, 364 P.3d 306 (internal quotation marks and citation 1 omitted). This Court “will not uphold a conviction if an error implicated a 2 fundamental unfairness within the system that would undermine judicial integrity if 3 left unchecked.” Id. (internal quotation marks and citation omittted). 4 {18} In cases involving instructional errors, the appellate courts seek to determine 5 “whether a reasonable juror would have been confused or misdirected by the jury 6 instruction.” Benally , 2001-NMSC-033, ¶ 12 (internal quotation marks and citation 7 omitted). “For fundamental error to exist, the instruction given must differ materially 8 from the uniform jury instruction, omit essential elements, or be so confusing and 9 incomprehensible that a c ourt cannot be certain that the jury found the essential 10 elements under the facts of the case.” State v. Caldwell , 2008-NMCA-049, ¶ 24, 143 11 N.M. 792, 182 P.3d 775 (internal quotation marks and citations omitted). Whether a 12 particular jury instruction was properly given “is a mixed question of law and fact” 13 that the appellate courts review de novo. State v. Lucero , 2010-NMSC-011, ¶ 11, 147 14 N.M. 747, 228 P.3d 1167 (internal quotation marks and citation omitted). 15 1. The Jury Instruction on the Ne w Mexico No-Retreat Law Was Not a 16 Fundamental Error 17 {19} Relying on Anderson , Defendant argues that the district court erred in giving 18 the jury the State’s tendered no-retreat instruction, which included only female 19 pronouns. This modified instruction, Defendant submits, “likely misdirected the jury” 2012 especially in light of the fact that female pronouns are “marked” terms in the English 1 language such that “a reasonable juror likel y would have concluded that because only 2 feminine pronouns were used” that Defendant“did have a duty to retreat” under the 3 circumstances. Defendant therefore posits that the State’s no-retreat instruction 4 “would have permitted the jury to rejectself-defense out of hand without even 5 considering whether [Defendant] acted reasonably.” 6 {20} In Anderson , the defendant and victim got in to a fight at a house party. 2016- 7 NMCA-007, ¶ 3. After a squabble and belie ving that the victim had armed himself 8 with a firearm, the defendant drew a handgun and shot the victim multiple times, 9 killing him. Id. At his homicide trial, the defendant requested a self-defense and no10 retreat instruction pursuant to UJI 14-5190, which the district court agreed was 11 warranted by the facts. Anderson , 2016-NMCA-007, ¶ 5. However, as a result of an 12 “oversight,” the no-retreat instruction was not given to the jury. Id. ¶ 6. The defendant 13 did not object to the omission of UJI 14-5190. Anderson , 2016-NMCA-007, ¶ 8. 14 During deliberations, the jury submitted a ques tion to the district court asking if there 15 was a “stand-your-ground” law in New Mexico , but ultimately withdrew the question 16 because it had “found what it was looking for.” Id. ¶ 6 (alteration, internal quotation 17 marks, and citation omitted). The defendant was thereafter convicted of second-degree 18 murder. Id. On appeal, we determined that: 1913 [T]he term “reasonable” in the third prong of [a] self-defense instruction 1 carries a different meaning when read in conjunction with the no-retreat 2 instruction than it does alone. Read alone, a person exercising the degree 3 of attention, knowledge, intelligence, and judgment that society requires 4 of its members is acting reasonably. When read together with the no5 retreat instruction, however, a pers on who, when threatened with an 6 attack, does not retreat and stands his ground when exercising his right 7 of self-defense is acting reasonably. 8 Id. ¶ 15 (internal quotation marks and citati on omitted). As a result, “[g]iven the 9 difference between the reasonableness standardof a self-defense instruction alone and 10 a self-defense instruction read in conjun ction with the no-retreat instruction,” we 11 concluded that there was no way to determine which standard the defendant was held 12 to by the jury. Id. ¶ 16. These circumstances, we held, established that the defendant’s 13 “conviction was tainted by fundamental error[.]” Id. ¶ 19. 14 {21} We are unpersuaded by De fendant’s reliance on Andersonas authority for the 15 argument that it was fundamental error for the di strict court to give the jury the State’s 16 modified no-retreat instruction. In Anderson , the district court agreed with the 17 defendant that a no-retreat instruction wa s warranted by the facts of the case, but 18 because of an oversight failed to give the jury the tendered instruction. In contrast, 19 here the jury received a no-retreat instruction. In Anderson , there was also a strong 20 indication of jury confusion concerning wh ether the defendant acted in self-defense 21 based on the omission of the no-retreat instru ction. This confusion was evident by the 22 jury’s question to the district court c oncerning whether there was a “stand-your- 2314 ground” law in New Mexico, which was later withdrawn on grounds that the jury had 1 “found what it was looking for.” Id. ¶ 6 (alteration, internal quotation marks, and 2 citation omitted). In contrast, here although the second sentence of the State’s 3 modified no-retreat instruction only cont ained female gender pronouns, the jury was 4 fully instructed on New Mexico’s self-d efense and no-retreat law, which did not 5 materially differ from the applicable uniform jury instructions. And there is no 6 indication in the record of jury confusion as to whom the given no-retreat instruction 7 applied. As a result, becau se Defendant’s argument relie s on speculation that the jury 8 may have believed that Defendant had a duty to retreat from the altercation between 9 him and Victim, we perceive no fundamental error. 10 2. The Jury’s Instruction on the Defi nition of a “Household Member” Was 11 Not Fundamental Error 12 {22} Relying on State v. Bonham , 1998-NMCA-178, 126 N.M. 382, 970 P.2d 154, 13 abrogated by State v. Traeger , 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518, 14 Defendant argues that the district court erre d in permitting inclusion in its instruction 15 on the definition of “household member,” modeled after UJI 14-332, the language that 16 Victim was “threatened.” The word “threatened” in the definition of “household 17 member,” Defendant argues “infringed upon [his] right to a jury verdict on the 18 element that was the gravamen of the aggravated assault charge.” In other words, 1915 Defendant states, the instruction constituted “a clear, direct, and gratuitous statement 1 defining the alleged victim of the assault as having been ‘threatened.’ ” 2 {23} In Bonham , this Court reversed the convic tion of a defendant for aggravated 3 battery on grounds of an erroneous jury in struction, applying a reversible error 4 standard. 1998-NMCA-178, ¶ 28. There, we held that give n the grammatical structure 5 of the aggravated battery elements instruc tion given to the jury, that the instruction 6 was facially erroneous and permitted the jury to convictthe defendant without proof 7 of all of the essential elements of the crime. Id. ¶¶ 26-28 (reasoning that an instruction 8 providing “[t]he defendant did touch or apply force to [the victim], a household 9 member, with a hot plate or trivet frame, an instrument or object which, when used as 10 a weapon, could cause death or very serious injury” instruct ed the jury that these items 11 met the definition of a “deadly weapon” without requiring the State to prove that fact 12 (alteration and emphasis omitted)). Bonhamwas abrogated, however, byTraeger , 13 2001-NMSC-022, ¶¶ 19-20. In Traeger , our Supreme Court held that an aggravated 14 battery elements instruction involving the use of a baseball bat did not warrant 15 reversal of the defendant’s convicti on under a fundamental error analysis. Id. ¶¶ 19, 16 22 (stating that the instruction provided in pertinent part that the defendant “hit the 17 victim with a baseball bat, an instrument or object which, when used as a weapon, 18 could cause death or very serious injury ” (alteration and internal quotation marks 1916 omitted)). The Court stated that “[c]ons idering the heightened scrutiny of a 1 fundamental error analysis, . . . jury instru ctions should be considered as a whole” and 2 convictions should not be reversed where analleged error is a “strictly legal and a 3 highly technical objection.” Id. ¶¶ 19-20 (alteration, intern al quotation marks, and 4 citation omitted). In concluding that reversal of the defendant ’s conviction was not 5 warranted, the Court reasoned that as a whol e, the instruction at issue contained an 6 introductory phrase stating that “the state must prove to your satisfaction beyond a 7 reasonable doubt each of the following elements.” Id. ¶ 21 (internal quotation marks 8 and citation omitted). This language, the Court concluded, instructed the jury that the 9 question of whether a baseball bat was a “d eadly weapon” was an element that the 10 State was required to prove beyond a reasonable doubt. Id. 11 {24} Even assuming it was an error to in clude the language that Victim was 12 “threatened” in the jury instruction defi ning “household member,” the error was not 13 fundamental. The second element of the aggravated assault against a household 14 member instruction given to the jury pr ovided that “[D]efendant’s conduct caused 15 [Victim] to believe [D]efendant was about to intrude on [Victim]’s bodily integrity or 16 personal safety by touching or applying force to [Victim] in a rude, insolent or angry 17 manner[.]” Following Traeger , we conclude that whether characterization of the 18 Victim as “threatened” in the instruction defining a household member permits the 1917 jury to assume without proof beyond a reasonable doubt the second element of the 1 aggravated assault instruction is at most “strictly legal and a highly technical 2 objection” that does not implicate fundame ntal fairness or judicial integrity. Id. ¶ 19 3 (internal quotation marks omitted). Also, as inthe case of the aggr avated battery using 4 a deadly weapon instruction in Traeger , because the aggravated assault against a 5 household member instruction here directed that “the state must prove to your 6 satisfaction beyond a reasonable doubt each of the following elements of the crime,” 7 a reasonable juror would have understood thatthe State was required to establish with 8 sufficient evidence all of th e elements of the crime. Id. ¶ 21 (internal quotation marks). 9 Finally, the State’s tendered instruction defining a “household member” contained no 10 substantive or material modification fro m the applicable uniform instruction. SeeUJI 11 14-332 (providing that “[a] ‘household member’ means a spouse, former spouse, 12 family member, including a relative, parent, present or former step-parent, present or 13 former in-law, child or co-parent of a ch ild, or a person with whom the threatened 14 __________ ( name of victim ) has had a continuing personal relationship. Cohabitation 15 is not necessary for __________ ( name of victim ) to be considered a household 16 member”). Accordingly, the instruction defining a “household member” did not give 17 rise to fundamental error. 1818 B. Fundamental Error Due to Prosecutorial Misconduct Did Not Result From 1 the State’s Closing Argument 2 { 25} At the conclusion of the State’s clos ing argument, counsel commented that: 3 The law is here. You just have to read it and apply it. Self-defense is 4 objectionable to even hear about in this case, yet you have been 5 instructed about it. Take those instru ctions on self-defense and tear them 6 up—figuratively. They don’t apply. There’s no facts to sustain them. 7 This law and that testimony and thos e photos is what will do justice in 8 this case. Find the defendant exactly what he did in this case—guilty of 9 all three counts. 10 Defendant did not object. 11 {26} Defendant argues on appeal that “[t] he prosecutor committed misconduct when 12 he told the jury ‘figuratively’ to rip up the court’s self-defense in structions, and to rely 13 instead on the other instructions in its de liberations.” Defendant contends that this 14 statement was a violation of law under settled New Mexico case law standing for the 15 proposition that “[a] prosecutor may not urge the jury to disregard the defenses 16 contained in the court’s instructions.” To support his argumen t, Defendant cites State 17 v. Garvin , 2005-NMCA-107, 138 N.M. 164, 117 P.3d 970 and State v. Diaz , 1983- 18 NMCA-091, 100 N.M. 210, 668 P.2d 326, as well as the out-of-state cases of People 19 v. Rosales , 134 P.3d 429 (Colo. App. 2005) and State v. Cardus , 949 P.2d 1047 20 (Haw. Ct. App. 1997). 21 {27} Because Defendant failed to object to the State’s comment during closing 22 argument, our review is limited to a fundamental error analysis. See State v. Trujillo , 2319 2002-NMSC-005, ¶ 52, 131 N.M. 709, 42 P.3d 814 (“When an issue [of alleged 1 prosecutorial misconduct] has not been properly preserved by a timely objection at 2 trial, [appellate courts] havediscretion to review the cl aim on appeal for fundamental 3 error.”). “Prosecutorial misconduct rises to the level of fundamental error when it is 4 so egregious and had such a persuasive and prejudicial effect on the jury’s verdict that 5 the defendant was deprived of a fair trial. An isolated, minor impropriety ordinarily 6 is not sufficient to warrant reversal, becausea fair trial is not necessarily a perfect 7 one.” Id. (internal quotation marks and citation omitted); see State v. Sosa , 2009- 8 NMSC-056, ¶ 35, 147 N.M. 351, 223 P.3d 348 (“Fundamental error occurs when 9 prosecutorial misconduct in closing statemen ts compromises a defendant’s right to a 10 fair trial[.]”). To determine whether a defendant was deprived of a fair trial, the 11 appellate courts “review th e [challenged] comment in context with the closing 12 argument as a whole” in order to “gain a full understanding of the comments and their 13 potential effect on the jury.” State v. Fry , 2006-NMSC-001, ¶ 50, 138 N.M. 700, 126 14 P.3d 516 (internal quotation marks and citation omitted). 15 {28} The cases relied upon by Defendant share a commonality fatal to their 16 application to this case—the prosecutor ineach case made a misst atement of the law 17 in its closing argument. See Garvin , 2005-NMCA-107, ¶¶ 19-20 (holding that “the 18 prosecutor’s comments were incorrect st atements of the law” because they 1920 communicated a lowered burden of proof “as tothe essential element of the mens rea” 1 for the crime of forgery with which the defendant was charged); Diaz , 1983-NMCA2 091, ¶ 17 (holding that “[t]he prosecutor’s comment that in order to establish the 3 intoxication defense [to charges of burglary and larceny] the defendant would have 4 to produce expert testimony does notcorrectly state the law”); See also Rosales , 134 5 P.3d at 436 (stating that “it was improper for the prosecution to argue that a verdict 6 acquitting defendant of first degree murder would reward defendant for drinking and 7 indicate that it is permissible for every intoxicated person to commit murder and not 8 be held accountable,” yet still holding the comment “does not constitute plain error 9 affecting defendant’s substantial right s” where there wa s ample evidence of 10 defendant’s guilt); Cardus , 946 P.2d at 1054, 1060 (holding that although the 11 prosecutor misstated the law in closing argument, a curative instruction assured that 12 the defendant was afforded a fair trial) . Here, because the comment challenged by 13 Defendant was not a statement of law, but rather a conclusion that the State argued 14 that the jury should reach based on the evidence admitted at trial, Garvin , Diaz , 15 Rosales , and Cardusdo not apply. 16 {29} Considered in the context of the clos ing argument as a whole, the State’s 17 comment—that the jury should view the ev idence in support of the State’s position 18 and figuratively tear up the instruction on Defendant’s self-defense theory of the 1921 case—did not deprive Defendant of a fair trial. This erroneous suggestion was raised 1 as an isolated comment by the State at the conclusion of its summarization of the 2 evidence admitted at trial. Although such animproper comment is not appropriate and 3 might rise to a level of reversible error if preserved belo w, nothing exists in the record 4 to show that the jury failed to carry out its sworn duty to apply all the jury instructions 5 given by the district court. See State v. Clark , 1989-NMSC-010, ¶ 78, 108 N.M. 288, 6 772 P.2d 322 (recognizing that “[t]here is a presumption that jurors will adhere to 7 their instructions . . . and not pick out oneinstruction or parts of an instruction or 8 instructions and disregard others” (internal quotation marks and citation omitted)). It 9 is possible to infer that the State was onl y attempting to ask the jury to accept the 10 State’s view of the evidence, reject Defendant’s self-defense theory, and then refuse 11 to apply the self-defense instruction as support for a not guilty verdict. See State v. 12 Vigil , 2010-NMSC-003, ¶ 4, 147 N.M. 537, 226 P.3d 636 (stating that our appellate 13 courts “indulge all reasonable inferences insupport of the verdict” (internal quotation 14 marks and citation omitted)). In a fundament al error context, this Court would only 15 be speculating to conclude that the State’s comment about the self-defense instruction 16 had an absolute effect on the jury that was so persuasively prejudicial that it deprived 17 Defendant of a fair trial. See In re Ernesto M., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 18 915 P.2d 318 (stating that an “assertion of prejudice is not a showing of prejudice”). 1922 As a result, we conclude th at Defendant failed to estab lish fundamental error in this 1

case. 2 C. No Cumulative Error Occurred 3 {30} Considered together, Defendant argues, the foregoing alleged errors resulted 4 in cumulative error because they “dep rive[d Defendant] of a fair trial.” 5 {31} “The doctrine of cumulative error applies when multiple errors, which by 6 themselves do not constitute reversible error, are so serious in the aggregate that they 7 cumulatively deprive the defendant of a fair trial.” State v. Carrillo , 2017-NMSC-023, 8 ¶ 53, 399 P.3d 367 (internal quotation marks and citation omitted). Cumulative error 9 doctrine is “strictly applie d, and cannot be invoked if the record as a whole 10 demonstrates that the defendant received a fair trial.” State v. Maxwell , 2016-NMCA11 082, ¶ 32, 384 P.3d 116 (alterati ons, internal quotation mark s, and citation omitted). 12 Our examination of the record as a whole fails to demonstrate that Defendant did not 13 receive a fair trial. We therefore rejectDefendant’s claim of cumulative error. 14 III. Officer Thompson’s Testimony Did No t Violate Defendant’s Rights Under 15 the Confrontation Clause 16 {32} On direct examination, the State aske d Officer Thompson if there was any on17 the-scene questioning of Victim about Defe ndant’s location when he responded to the 18 second 911 call. Officer Thompson answered in the affirmative, testifying that he 19 “asked who was the person thathit her [Victim]. She said [Defendant]. And then I 2023 asked where he was. She [Vic tim] said she thinks he’s possibly inside [her trailer].” 1 Defense counsel objected on grounds of hearsay initially. At the ensuing bench 2 conference, the State argued that Victim’s statements were admissible as excited 3 utterances and under the public safety ex ception to the Confrontation Clause. The 4 district court overruled the objection, ruling that “the eliciting of information to find 5 out where another potential combatant” was falls within the public safety exception 6 to the Confrontation Clause, “so her answer to that and his [Officer Thompson’s] 7 response in reaction to that information is admissible.” Officer Thompson later 8 testified that his on-the-scene questions were asked based on his concern for public 9 safety because the community surrounding Victim’s trailer was home to multiple 10 families and children who fre quently played outside. 11 {33} On cross-examination, defense couns el asked Officer Thompson where the 12 knives found on the kitchen table in Victim’s trailer had come from and how he knew 13 those knives were actually the knives usedby Victim and Defendant during their 14 altercation. Officer Thom pson responded that Victim had stated that she and 15 Defendant had two knives and those were the knives found on the kitchen table in her 16 trailer. No objection, motion to strike, or curative instruction for this testimony was 17 requested by defense counsel. 1824 {34} Defendant argues on appeal that the “[t]estimony by Officer Thompson 1 regarding [Victim’s] answer[s] to his ques tion about who had hit her [and the location 2 of that person] violated [Defendant’s] ri ght to confrontation.” Additionally, Defendant 3 argues, Officer Thompson’s testimony repeating Victim’s statements tying Defendant 4 to the knives found in Victim’s kitchen that were allegedly involved in the 5 confrontation between Defendant and Vic tim also violated Defendant’s right to 6 confrontation. As a result, De fendant concludes, it was an error for the district court 7 to admit these statements at his trial where no showing was made as to Victim’s 8 unavailability and Defendant had no opportunity to cross-examine Victim. 9 {35} “We apply a de novo standard of review as to the constitutional issues related 10 to the defendant’s rights under the Confrontation Clause.” State v. Gutierrez , 2011- 11 NMCA-088, ¶ 12, 150 N.M. 505, 263 P.3d 282 (alteration, internal quotation marks, 12 and citation omitted). The Sixth Amendmen t’s Confrontation Clause provides that 13 “[i]n all criminal prosecutions, the accused sh all enjoy the right . . . to be confronted 14 with the witnesses against him[.]” U.S. C onst. amend VI. This procedural safeguard 15 applies in both state and federal prosecutions. See Crawford v. Washington , 541 U.S. 16 36, 42 (2004). The Confrontation Clause bars admission of “testimonial statements 17 of a witness who did not app ear at trial unless he was unavailable to testify, and the 18 defendant had had a prior opportunity for cross-examination.” Id. 53-54; see 1925 Gutierrez , 2011-NMCA-088, ¶ 13. “Statements are non-testimonial when made in the 1 course of police interrogation under circum stances objectively indicating that the 2 primary purpose of the interrogation is to enable police assistance to meet an ongoing 3 emergency.” Id. ¶ 14 (alteration, emphasis, internal quotation marks, and citation 4 omitted). In contrast, “statements are tes timonial when the circumstances objectively 5 indicate that there is no such ongoing emerge ncy, and that the primary purpose of the 6 interrogation is to establish or prove past events potentially relevant to later criminal 7 prosecution.” Id. (emphasis, internal quotation mark s, and citation omitted). The level 8 “of formality of the interrogation is a key f actor in determining whether statements are 9 testimonial.” State v. Romero , 2007-NMSC-013, ¶ 21, 141 N.M. 403, 156 P.3d 694 10 (internal quotation marks and citation omitted). 11 {36} In Gutierrez , we held that statements given to a poli ce officer by a stabbing 12 victim were not testimonial where the statements were gi ven to the officer while the 13 officer was responding to a fight in progress and still trying to figure out if there were 14 other suspects or victims at the scene, ratherthan in response to a structured question15 and-answer interrogation. 2011-NMCA -088, ¶¶ 15-16. In contrast, in Romero , our 16 Supreme Court held that a tape recorded statement given by a victim to police at a 17 police station interrogation was testimonial since it was given in response to structured 1826 questioning as part of an aggravated battery against a household member 1 investigation. 2007-NMSC-013, ¶¶ 19-23. 2 {37} The district court determined that th e primary purpose of Officer Thompson’s 3 on-the-scene questioning of Victim concerning who had hit her and the location of 4 that individual was to assist the police officers in meeting the ongoing emergency 5 involving a potentially armed and dangerous person, Defendant, who was still at large. 6 Prior to arriving for the s econd time at Victim’s residence, Officer Thompson had 7 been informed by dispatch that two individuals were outside the residence swinging 8 knives at each other. Upon arri ving at Victim’s residence, Officer Thompson testified 9 that he had a public safety concern that a dangerous individual may still be in the area 10 and a threat to the community surrounding Victim’s residence, which was home to 11 multiple families and to children who frequently played outside. As a result of this 12 concern for public safety, Officer Thomps on asked Victim questions in order to 13 determine who had hit her and where that person was now. Victim answered by 14 identifying Defendant as the individual who had hit her and stated that she thought he 15 may still be inside her trailer. 16 {38} The circumstances here make this case more like Gutierrezthan Romero . In 17 Gutierrez , the challenged out-of-court statements were made while the police were 18 responding to a potential fight in progre ss and still trying to figure out who the 1927 suspects and victims were. Additionally, unlike the facts of Romero , where the battery 1 victim’s statement was taken and recorded in response to structured questioning at a 2 police station and as part of an aggravatedbattery investigation, here there is no 3 indication that Officer Thompson’s questions were part of a formal police station-style 4 interrogation structured to gather facts relevant to a future criminal prosecution. 5 Accordingly, we conclude that Victim’s statements were not testimonial and their 6 admission did not constitute a violation of the Confrontation Clause. 7 {39} We also conclude that Defendant waived his right to object to Officer 8 Thompson’s testimony connecting Defendant to the knives found by police on the 9 kitchen table in Victim’s trailer. During cross-examination, defense counsel asked 10 Officer Thompson questions concerning wh ere the knives found on the kitchen table 11 in Victim’s trailer had come from and wh ether those knives were actually the knives 12 used by Victim and Defendant during their confrontation. OfficerThompson testified 13 that Victim had stated th at she and Defendant had tw o knives and those were the 14 knives found on the kitchen table in her trailer. However, because no objection, 15 motion to strike, or curative instruction for this testimony was requested by defense 16 counsel, we decline to address Defendant’s contention on appeal. See Trujillo , 2002- 17 NMSC-005, ¶¶ 12-13 (holding that where tes timony was not objected to at trial that 1828 the issue of whether admission of the testim ony violated the Confrontation Clause was 1 waived on appeal). 2 IV. Admission of Officer Esquero’s Account of Defendant’s Arrest Did Not 3 Constitute Plain Error 4 {40} On direct examination, the State as ked Officer Esquero whether he was 5 involved with Defendant’s arre st in March 2013. Officer Esquero testified that he and 6 other officers responded to a late night disturbance at a trailer park sometime between 7 10:00 p.m. and 2:00 a.m., and upon arriving made contactwith Victim, who along 8 with others, stated that a disturbance ha d occurred and that Defendant had fled the 9 scene. Officer Esquero and other officers s earched the trailer park for Defendant and 10 ultimately found him hiding underneath a nearby culvert. Officer Esquero testified 11 that Defendant was then arrested and appeared intoxicated, belligerent, and was 12 verbally combative. There was no objection to this testimony. 13 {41} Defendant argues on appeal that “[t]hetrial court committed plain error in 14 permitting the State to admit uncharged mi sconduct evidence in violation of Rule 11- 15 404(B)(2)[] NMRA.” Rule 11-404(B)(1)-(2) provides that “[e]vidence of a crime, 16 wrong, or other act is not admissible to prove a person’s character in order to show 17 that on a particular occasion the person acted in accordance w ith the character[,]” 18 provided however that such “evidence may be admissible for another purpose, such 19 as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence 2029 of mistake, or lack of acci dent.” The alleged error, De fendant argues, stemmed from 1 Officer Esquero’s testimony in response to the State’s question concerning the 2 circumstances surrounding the arrest of Defendant in March 2013, which occurred 3 some months after the condu ct for which Defe ndant was on trial. This testimony, 4 Defendant contends, “was irrelevant to the issues at trial except insofar as it 5 constituted evidence of his propensity to b ecome drunk and violent[,]” and constituted 6 plain error since it was admitted without notice and without a Rule 11-403 NMRA 7 balancing of the prejudicial effect of the evidence against its probative value. 8 {42} “This Court reviews unpreserved evid entiary matters for plain error.” State v. 9 Lopez , No. A-1-CA-34615, 2017 WL 3225444, ___-NMCA-___, ¶ 34, ___ P.3d ___, 10 (July 28, 2017); see Rule 11-103(E) NMRA (“A court may take notice of plain error 11 affecting a substantial right, even if the cl aim of error was not properly preserved.”). 12 However, we only will apply plain error if “allegedly erroneous testimony affected the 13 substantial rights of the accused and constitu ted an injustice that created grave doubts 14 concerning the validity of the verdict.” State v. Sweat , 2017-NMCA-069, ¶ 20, 404 15 P.3d 20 (internal quotation marks and citation omitted). 16 {43} The admission of Officer Esquero’s unobjected-to testimony concerning the 17 circumstances surrounding the arrest of Defendant did not affect the substantial rights 18 of Defendant or create grave doubts as to th e validity of the verdict. Officer Esquero, 1930 as the State points out in its brief, “neveridentified the nature of the disturbance to 1 which he responded, and ne ver said that Defendant caused the disturbance.” 2 Moreover, the State contends that OfficerEsquero’s testimony was relevant since 3 Defendant had fled from the s cene and “[i]t is well establis hed that evidence of flight 4 ‘may prove consciousness of guilt.’ ” We agree. We also observe that ample evidence 5 was admitted at Defendant’s trial apart from Officer Esquero’s testimony concerning 6 his role in the arrest of Defendant to support Defendant’s convictions for aggravated 7 assault against a household member, fals e imprisonment, and battery against a 8 household member. Accordingly, we concludethat it was not plain error to admit 9 Officer Esquero’s testimony describing the arrest of Defendant. 10 V. Sufficient Evidence Supports Defendant’s Convictions 11 {44} Finally, Defendant challenges the suffici ency of the evidence to support his 12 convictions. Defendant contends that Mr. Ochoa and Ms. Polizzi were untruthful in 13 their testimony “about what happened and could not have seen what happened from 14 across the street and within the rock wall enclosing their trailer. [Defendant] also 15 believes Mr. Ochoa was not truthful about the knives given where they were found by 16 the police, and that the police should have collected and tested the knives.” 17 {45} “Sufficient evidence exists to support a conviction when substantial 18 evidence[,]” either direct or circumstantial, “exists to support a verdict of guilt beyond 1931 a reasonable doubt with respect to every element essential to a conviction.” State v. 1 Vargas , 2016-NMCA-038, ¶ 27, 368 P.3d 1232 (internal quotation marks and citation 2 omitted). New Mexico appellate courts revi ew challenges to the sufficiency of the 3 evidence to support a conviction “in the lightmost favorable to the guilty verdict, 4 indulging all reasonable inferences and resolv ing all conflicts in the evidence in favor 5 of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 6 176. “It is the exclusive province of the jury to resolve inconsistencies or ambiguities 7 in a witness’s testimony, and New Mexico appellate courts will not invade the jury’s 8 province as fact-finder by second-guessing the jury’s decision concerning the 9 credibility of witnesses, reweighing the evidence, or substituting [their] judgment for 10 that of the jury.” Vargas , 2016-NMCA-038, ¶ 27 (internal quotation marks and 11 citation omitted). Rather, the appellate courts will only determine whether “a rational 12 jury could have found beyond a reasonable doubt the essential facts required for a 13 conviction.” Id. (emphasis, internal quotati on marks, and citation omitted). 14 {46} The testimony of Mr. Ochoa and Ms. Polizzi, the police officers, and the 15 evidence admitted at trial constituted su fficient evidence to support Defendant’s 16 convictions. Defendant’s contentions that Mr. Ochoa and Ms. Polizzi were untruthful 17 in their testimony concerning what they wereable to see of the altercations between 18 Victim and Defendant from thei r trailer and the origin of the knives found in Victim’s 1932 trailer require this Court to reweigh the credibility of the testimony presented at trial. 1 Based on the principles described above, this Court will not take the place of the jury 2 and make a credibility determination. Accordingly, because Defendant does not 3 otherwise challenge the sufficiency of the ev idence presented to establish the essential 4 elements of the charged crimes, we concl ude that a rational jury could have found 5 beyond a reasonable doubt the facts required to sustain Defendant’s convictions. 6 CONCLUSION 7 {47} For the foregoing reasons, the judgment and sentence is affirmed. 8 {48} IT IS SO ORDERED. 9

_______________________________ 10 MICHAEL E. VIGIL, Judge 11 WE CONCUR: 12

____________________________ 13 EMIL J. KIEHNE, Judge 14

____________________________ 15 TIMOTHY L. GARCIA, Judge Pro Tempore 16