This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 33,419 4 ROBERT GEORGE TUFTS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Marci Beyer, District Judge 8 Hector H. Balderas, Attorney General 9 M. Anne Kelly, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Kimberly Chavez Cook, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Judge. 182 {1} Defendant Robert George Tufts wa s convicted of criminal sexual 1 communication with a child, contrary to NMSA 1978, Section 30-37-3.3 (2007). We 2 initially heard this case and issued an opi nion reversing Defendant ’s conviction on the 3 ground that the statute under which Defendant was prosecuted did not apply to his 4 conduct. State v. Tufts (Tufts I) , 2015-NMCA-075, ¶¶ 1, 12-18, 355 P.3d 32 5 (concluding that Section 30-37-3.3 did not prohibit Defendant’s conduct because he 6 did not “send” the images to Child when hetransferred images via a secure digital 7 (SD) card and hand-delivered the card to Child). That opinion was reversed by the 8 Supreme Court in State v. Tufts (Tufts II) , 2016-NMSC-020, ¶¶ 8-10, ___ P.3d ___ 9 (rejecting the New Mexico Court of Appeals’ interpretation of the term “send” and 10 concluding that “confin[ing] the definition of ‘sending’ to encompass only electronic 11 transmissions . . . would frustrate the purpose of the legislation”). The case was 12 remanded to this Court for further consider ation of the remaining issues on appeal. Id. 13 ¶ 10. In his remaining issues on appeal, Defendant asserts: (1) because he was in 14 custody but had not been given warnings pursuant to Miranda v. Arizona , 384 U.S. 15 436 (1966), the district court erred when it refused to suppress Defendant’s statements 16 made to police detectives; and (2) the jurywas instructed with a patently erroneous 17 definition of “obscene” resulting in fundamental error. 183 {2} We affirm the district court’s denial of Defendant’s motion to suppress because 1 we conclude that Defendant was not subjectto a custodial interrogation when he was 2 interviewed by police detectives, and theref ore the detectives were not required to 3 notify Defendant of his Miranda rights. We also conclude that the instruction 4 provided to the jury regarding the definition of “obscene” did not result in 5 fundamental error. 6 BACKGROUND 7 {3} Much of the relevant factual background regardi ng the relationship between 8 Defendant and Child, as well as the proceduralhistory of Defendant’s case, is detailed 9 in Tufts I, 2015-NMCA-075, ¶¶ 2-7. Additional f acts regarding the remaining issues 10 on appeal are set forth as needed in this Opinion. 11 {4} After conducting a forensic interview of Child, Las Cruces Police Department 12 Detective Rudy Sanchez asked Defendant to come to the police station for 13 questioning. Defendant agreed , and on March 16, 2012, he voluntarily arrived at the 14 police station for an interview. Upon arriving, Defendant was escorted to a secure area 15 of the station, and Detectiv e Sanchez and his partner, De tective Michael Garcia, began 16 to interview Defendant. At the beginning of the interview, Defendant was told that he 17 was not under arrest and that he was free toleave at any time. He was informed that 18 the door to the interview room would remainclosed during the interview but that it 194 was only closed to provide privacy. Defendant was informed that he did not need to 1 tell the detectives anything or answer any of their questions. 2 {5} During the course of the interview, De fendant denied being concerned about 3 going to jail. When asked about Defendant’s last communication with Child, 4 Defendant indicated that hehad texted with her tw o days prior, he had not 5 communicated with her since then, and he presumed the detectives had confiscated her 6 phone because he had not heard from her. Detective Sanchez reminded Defendant that 7 deleted files could be retrieved from the phone and asked for consent to search 8 Defendant’s phone. Defendant agreed to the search. Detective Sanchez then disclosed 9 to Defendant that he had in fact spoken to Child and that they had possession of 10 Child’s phone but that they needed Defendant’s consent to search the phone because 11 he had paid for the phone. De fendant appears to have he sitated somewhat but then 12 agreed to having Child’s phone searched by the detectives. De tective Sanchez then 13 asked Defendant what was going to be on the phone, to which Defendant responded 14 “that’s where the . . . problem’s gonna be.” He then admitted to sending pictures of 15 his nude penis and one or moresexual videos of himself. He also admitted that he 16 knew sending the pictures was wrong becausehe “looked it up.” He also explained 17 to the detectives his process of transf erring the video to Child’s phone by switching 18 the SD cards between phones. The detectives then presented Defendant with a consent 195 authorization form to search both phones and asked Defendant toreview and sign it. 1 Defendant hesitated, indicating that his phone was the primary way of contacting his 2 children. He then began to cry, and the detectives reminded Defendant that he was 3 going to walk out of the interview at its c onclusion, to which Defendant stated, “that’s 4 not my concern.” Instead, Defendant stated that his concern was not being able to 5 communicate with Child and “losing her.” 6 {6} Approximately forty-seven minutes after beginning the interview and 7 immediately after expressing his concern about losing contact with Child, Defendant 8 began to have a seizure. The detectives requested medical assistance, and after the 9 seizure subsided, Defendant explained that he has had seizures since he was a child 10 and that they are triggered by stress. Once emergency personnel arrived, a medic 11 asked Defendant what triggered the episode, to which Defendant replied, “just being 12 really stressed,” and Detec tive Sanchez opined, “the c onversations we were having” 13 caused the stress. Defendant was evaluated but declined further medical treatment. He 14 reported that his last seizure was the previous night. 15 {7} After the medics left, Detective Sanch ez asked if Defendant was confused or 16 disoriented, to which Defendant responded that he unders tood where he was, who he 17 was speaking with, and the allegations disc ussed. Detective Sanchez explained that 18 he wanted to make sure that Defendant recalled giving consent to search the phones. 196 Defendant asked what would happen if he did not remembergiving consent, to which 1 the detectives responded that they woul d take custody of the phones and obtain a 2 search warrant. Defendant expressed con cern that not consenting would “make[] 3 things more difficult” and would look bad. The detectives explained that it would not 4 necessarily make things more difficult and that it was Defendant’s right to tell the 5 detectives no. The detectives assured Defendant th at refusing consent did not “look 6 bad” and again reminded him th at he had every right to tell them no. The detectives 7 then indicated that Defendant should leav e because it seemed like the environment 8 was “triggering something.” Defendant ultim ately confirmed consent but stated that 9 he was “just worried.” All in all, the interview continued fo r approximately eight 10 minutes after Defendant was evaluated by medical personnel, and the interview 11 concluded approximately one hour and seven minutes after it began. 12 {8} Defendant filed a motion to suppress the statements he made to the detectives 13 during his interview. The district court held a hearing on the motion to suppress 14 Defendant’s statements made during the custodial interrogation without Miranda 15 warnings. After hearing testimony from Detective Sanchez and argument from 16 counsel, the district court denied the motion. In its order, the district court found that 17 the following facts, when considered in totality, supported the conclusion that 18 Defendant was not in custody for Miranda purposes: (1) Defendant agreed to give a 197 statement and voluntarily drove to the police station for the purpose of giving that 1 statement; (2) Defendant was not under arrest and was not placed in handcuffs; (3) at 2 the beginning of the interview, the detectiv es told Defendant that he was not under 3 arrest and that the intervie w was non-custodial; (4) the detectives told Defendant that 4 the door to the interview room was closed only for privacy and that he could leave at 5 any time; (5) the detectives told Defendant that he did not have to answer their 6 questions or tell them anything; (6) Defendant acknowledge d the detectives’ 7 statements regarding Defendant’s freedom ; (7) the degree of pressure applied to 8 Defendant was minimal; and (8) the interview lasted for just over one hour. 9 DISCUSSION 10 Custodial Interrogation 11 {9} Defendant argues that the district court erred when it failed to suppress his 12 statements made during police questioni ng because the interview took place during 13 a custodial interrogation and hewas not informed of his Miranda rights. He argues 14 that the interrogation was custodial because , under the totality of the circumstances, 15 a reasonable person in his position would have felt “inherently compelling pressure” 16 to cooperate. Specifically, De fendant argues that he was not free to leave because 17 (1) the interrogation was lengthy and distre ssing, (2) the physical surroundings of the 18 interrogations created a conf ined and police-dominated environment, and (3) the 198 purpose of the interrogation was to acquire a confession and consent to search both 1 phones, which was achieved by confronting Defendant with evidence against him. 2 {10} “The standard of review for a suppre ssion ruling is whether the trial court 3 correctly applied the law to the facts whenthe facts are viewed in the light most 4 favorable to the prevailing party. Under this standard , the trial court’s factual 5 determinations are subject to a substantial evidence standard of review, and its 6 application of the law to the fact s is subject to de novo review.” State v. Snell , 2007- 7 NMCA-113, ¶ 7, 142 N.M. 452, 166 P.3d 1106 (citation omitted). “Determining 8 whether or not a police interview constitu tes a custodial interrogation requires the 9 application of law to the facts” and is therefore reviewed de novo. Id. (internal 10 quotation marks and citation omitted). 11 {11} According to Miranda , 384 U.S. at 444, a police officer must advise an 12 individual during custodial interrogation that “h e has a right to remain silent, that any 13 statement he does make may be used as ev idence against him, and that he has a right 14 to the presence of an attorney , either retained or appointed .” “[A]n officer’s obligation 15 to administer Miranda warnings arises only when a person is (1) interrogated while 16 (2) in custody.” State v. Wilson , 2011-NMSC-001, ¶ 48, 149 N.M. 273, 248 P.3d 315 17 (internal quotation marks and citation omitted), overruled on other grounds by State 18 v. Tollardo , 2012-NMSC-008, 275 P.3d 110. “[Miranda warnings] are not required 199 for non-custodial interrogations.” Snell , 2007-NMCA-113, ¶ 10. In determining 1 whether an individual is in custody, weapply an objective test “not from the 2 subjective perception of any of the members to the interview.” State v. Nieto , 2000- 3 NMSC-031, ¶ 20, 129 N.M. 688, 12 P.3d 442. We consider “how a reasonable person 4 who is being interviewed by police would have understood his . . . situation.” Wilson , 5 2011-NMSC-001, ¶ 48 (internal quotation mark s and citation omitted). This objective 6 test is used “to resolve whether there was a formal arrest or restraint on freedom of 7 movement of the degree associated with a formal arrest.” Id. (internal quotation marks 8 and citation omitted); see Nieto , 2000-NMSC-031, ¶ 20. Stated differently, an 9 individual is considered to be in custody “if a reasonable person would believe that 10 he . . . [was] not free to leave the scene.” State v. Munoz , 1998-NMSC-048, ¶ 40, 126 11 N.M. 535, 972 P.2d 847. 12 {12} This Court considers “a number of f actors . . . in determining whether a 13 reasonable person would believe he . . . is free to leave, including the purpose, place, 14 and length of interrogation, . . . the extent to which the defendant is confronted with 15 evidence of guilt, the physical surroundings of the interrogation, the duration of the 16 detention, and the degree of pre ssure applied to the defendant.” Wilson , 2011-NMSC17 001, ¶ 48 (third omission in original) (alterations, internal quotation marks, and 18 citation omitted). 1910 {13} Here, there does not appear to be any dispute that Defendant was interrogated. 1 We therefore focus on whether Defendant wa s in custody. In this case, the evidence 2 in the record supports the district court’s conclusion that Defendant was not in custody 3 because a reasonable person undergoing the in terrogation would believe that he was 4 free to leave. In reaching this conclusi on, we find a number of cases instructive. 5 {14} In Munoz , 1998-NMSC-048, ¶¶ 2-3, 40-44, our Supreme Court declined to 6 conclude that the defendant was the subjectof a custodial interrogation when he was 7 questioned by FBI agents in their vehicle about a murder. The Court noted that the 8 defendant accompanied the agents voluntarily and was informed that he was not under 9 arrest, was provided a formal warning thathe did not have to accompany the agents 10 or answer any of their questions, and was told that he could leave at any time. Id. ¶¶ 5, 11 43. During the course of the interview, the defendant was ne ither handcuffed nor 12 searched. Id. ¶ 43. There was no indication that the car doors were locked or that the 13 defendant was otherwise prev ented from leaving the car, wh ich was parked in a public 14 lot during daylight hours. Id. At the conclusion of the interview, the defendant was 15 returned home. Id. Although the defendant had become the focus of the investigation 16 and ultimately confessed to the murder , our Supreme Court concluded that Miranda 17 had not been triggered. Id. ¶¶ 42, 44. 1811 {15} In Nieto , 2000-NMSC-031, our Supreme Court refused to conclude that the 1 interrogation of the defendant was custodi al simply because the defendant was 2 questioned by a police detective in a small o ffice, with the defendant’s back to the 3 wall, and with an officer between th e defendant and the closed doorway. Id. ¶ 21. The 4 Court noted that “these facts, as well as th e trial court’s findings that [the d]efendant 5 was asked and agreed to accompany police offi cers to the station, was free to leave or 6 terminate the interview, and was provided tr ansportation to and from the station, are 7 consistent with routine, non-custodial police questioning.” Id. 8 {16} This Court also considered whether an interrogation at a police station was 9 custodial in State v. Bravo , 2006-NMCA-019, 139 N.M. 93, 128 P.3d 1070. In Bravo , 10 the defendant was questioned at a police station after officers asked her if she would 11 be willing to give a second statement following the death of her son. Id. ¶¶ 1, 12. She 12 voluntarily drove to the police station and was interrogated for approximately two 13 hours. Id. ¶¶ 12-13. During the course of the interview, she was not placed in 14 handcuffs. Id. ¶ 13. Despite essentially confessing to the crime of child abuse resulting 15 in death, she was free to leave the station at the c onclusion of the interview. Id. This 16 Court found that, given these facts, substantial evidence supported the district court’s 17 finding that the defendant was not in custody and therefore was not entitled to 18 Miranda warnings. Id. 1912 {17} In Wilson , our Supreme Court again revis ited whether interrogation of the 1 defendant in a police station c onstituted a custodial interrogation. 2011-NMSC-001, 2 ¶¶ 47-49. In Wilson , the defendant was escorted to aninterview room with recording 3 capabilities. Id. ¶ 47. He was told he was not under arrest and under no obligation to 4 speak with the detective. Id. The defendant was also advise d that he was free to stop 5 the interview and leave at any time. Id. The defendant was ques tioned for two to three 6 hours and ultimately confessed to killing his foster son. Id. ¶¶ 1, 47. The Supreme 7 Court concluded that “the police encounterwas non-coercive and unintimidating, and 8 that a reasonable person in [the d]efe ndant’s position would have believed the 9 interview could have been terminated at any point.” Id. ¶ 49. 10 {18} In the present case, the totality of the circumstances indicates that the 11 interrogation of Defendant was non-custodial. Although De fendant was interviewed 12 at a police station, he arrived at the station on his own accord as in Wilson , Nieto , and 13 Bravo

. See Wilson , 2011-NMSC-001, ¶ 49 (“[The de fendant] drove to the police 14 station in [his] own vehicle.”); Nieto , 2000-NMSC-031, ¶ 21 (“[The d]efendant was 15 asked and agreed to accompany poli ce officers to the station[.]”); Bravo , 2006- 16 NMCA-019, ¶ 12 (“[The d]efe ndant . . . agreed to be interviewed and followed the 17 officers to the police station in [her] ow n personal vehicle.”). Upon arriving at the 18 police station, Defendant wa s taken to an interview room for questioning. Although 1913 the room was in a secured area of the st ation, Defendant was explicitly told on 1 multiple occasions that he was free to leave and that he was not under arrest. See 2 Wilson , 2011-NMSC-001, ¶ 47 (indicating that the interrogation was not custodial, in 3 part because the defendant wa s advised that he was not under arrest and could stop the 4 interview and leave at any time); Nieto , 2000-NMSC-031, ¶ 21 (stating that the 5 defendant “was free to leave orterminate the interview”); Munoz , 1998-NMSC-048, 6 ¶¶ 43-44 (holding an interrogation to be non-custodial in part because the defendant 7 was told that he was free to leave at any time and would not be under arrest). The 8 detectives explained that the door was only cl osed for privacy and that he did not have 9 to answer the detectives’ questions. See Munoz , 1998-NMSC-048, ¶ 43 (stating that 10 there was no indication that the car doors werelocked and that th e agents told the 11 defendant that “he did not have to answer any of their questions or talk to them” as 12 supporting factors for the conclusion that the interrogation was non-custodial). The 13 detectives sat across from De fendant during the interview and did not obstruct his path 14 to the door, had he chosen to leave. Defe ndant was in no way c onstrained, either by 15 handcuffs or some other method. See id. (stating that the agents “did not handcuff [the 16 defendant], nor did they search him”); Bravo , 2006-NMCA-019, ¶ 13 (listing the fact 17 that the defendant “was ne ver placed in handcuffs” as a factor that supported the 18 district court’s conclusion that the defendant was not in custody). At the conclusion 1914 of the interview, Defendant actually left the police station. See Munoz , 1998-NMSC1 048, ¶ 43 (“After the interview was completed, the agents indeed took [the d]efendant 2 home.”); Bravo , 2006-NMCA-019, ¶ 13 (“[D]espite her confession, [the d]efendant 3 was allowed to go home . . . at the conclusion of the interview.”). 4 {19} We also do not believe that the length of the interrogation or duration of the 5 detention supports Defendant’s argument that he was not free to leave. Defendant’s 6 interrogation lasted just over an hour, in cluding the time during which the interview 7 was suspended pending resolution of Defendant’s medical issue. See Wilson , 2011- 8 NMSC-001, ¶¶ 47, 49 (c oncluding that an interview la sting between two and three 9 hours did not implicate Mirandabecause a reasonable person in the defendant’s 10 position would have believed the interview could be terminated); Munoz , 1998- 11 NMSC-048, ¶¶ 42-44 (concluding, after considering the particular facts of the 12 interrogation, that a one hour and forty minute interrogation was not custodial); Bravo , 13 2006-NMCA-019, ¶ 13 (concluding that the interview, which lasted approximately 14 two hours, was not custodial). In fact, af ter Defendant’s seizure, the detectives 15 concluded the interrogation and urged that the interview be over. At no time did 16 Defendant request a break or indicate thathe wished to end the interrogation. 17 {20} We also do not believe that Defendant was faced with a degree of pressure that 18 would suggest he was not free to leave. De fendant’s argument that the pressure was 1915 evident from his seizure reaction is not compelling. Accordin g to Defendant, his 1 seizures are stress-related. Howe ver, he also indicated that he has a history of seizures, 2 and in fact, he had suffered from a seizure one day prior. Addi tionally, just before 3 Defendant began convulsing, heexpressed that the concern was not going to jail, but 4 rather losing contact with Child . This concern, which is not apparently tied to whether 5 a reasonable person would feel free to leave the interrogati on, was consistent 6 throughout the interview and could also have been the trigger for his seizure. 7 Defendant now asserts that the interrogati on was the source of stress, however, neither 8 in his motion to suppress nor during the hearing on the motion did Defendant offer 9 testimony (either himself or from a medical provider) to explain his medical history 10 or his triggers. We decline to suppress statements based on mere speculation as to the 11 reason for Defendant’s seizure. 12 {21} The extent to which Defendant was con fronted with evidence of guilt likewise 13 was insufficient to make the interrogati on custodial. Although the detectives did 14 indicate that they had spoken with Child and also stated that they had possession of 15 Child’s phone, they did not threaten Defendant or assert that he was going to be 16 arrested for a crime. See Munoz , 1998-NMSC-048, ¶¶ 8, 43-44 (declining to conclude 17 that the interrogation was cu stodial even though the agent told defendant that he 18 already knew the essential facts of the crime and urged the defendant not to lie). In 1916 fact, as indicated earlier, the detectives specifically told Defendant that he was not 1 under arrest. Regardless of any acknowle dgment by the detectives that Defendant 2 could be in trouble, the overall degree of pressure was minimal, and as in Wilson , “the 3 police encounter was non-coercive and unintimidating[.]” 2011-NMSC-001, ¶ 49. 4 Thus, we conclude that a reasonable person would believe th at they were free to leave 5 the interrogation. 6 {22} The remaining factor in regard to th e suppression issue is the purpose of the 7 interrogation. According to the record , the detectives interviewing Defendant 8 indicated that prior to the interrogation, they had received a report alleging that 9 Defendant was in a relationship with Child. The record also indicates that prior to 10 Defendant’s interrogation, th ey had spoken with Child and had confiscated Child’s 11 phone. Thus, at the time they interrogated Defendant, he was their sole suspect. 12 Although we conclude this factor potentiallyweighs in favor of determining that 13 Defendant was in custody, we also note thatthe fact that Defendant was the focus of 14 a police investigation is insufficient by itself to trigger Miranda requirements. See 15 Munoz , 1998-NMSC-048, ¶ 42 (“It is also true that [the d]efendant had become the 16 focus of the police investigation, but this factor alone is not enough to trigger the need 17 to give warnings.”). In the present case, as in Munoz , when considered as part of the 18 totality of the circumstances, which include d specific statements by law enforcement 1917 that Defendant was free to leave, a reas onable person would belie ve that they were 1 free to leave during the interrogation. 2 {23} We conclude that under the totality of circumstances, a reasonable person 3 would feel free to leave during Defendant’s interrogation. Neither the environment of 4 the interrogation, nor the detectives’ t actics during the interview indicate that 5 Defendant’s freedom of movement was re strained. We therefore conclude that 6 Defendant was not in custody and the detectives were not required to give Miranda 7 warnings. 8 Jury Instruction 9 {24} Defendant’s second argument on appeal is th at the district court instructed the 10 jury with a patently erroneous definition of “obscene” resulting in fundamental error. 11 Defendant argues that the definition provided was misleading because it suggested 12 that any image of Defendant’s intimate parts is, by definition, obscene. Defendant 13 does not object to the instruction desc ribing the elements of criminal sexual 14 communication with a child. 15 {25} Defendant did not object to the jury instruction in the district court and thus 16 argues on appeal that the given instru ction constitutes fundamental error. See Rule 12- 17 216(B)(2) NMRA (“This rule shall not precl ude the appellate c ourt from considering 18 . . . questions involving . . . fundamental error[.]”); State v. Barber , 2004-NMSC-019, 1918 ¶ 8, 135 N.M. 621, 92 P.3d 633 (“The doctrine of fundamental error applies only 1 under exceptional circumstances and only to prevent a mi scarriage of justice.”). 2 “[F]undamental error occurs where there ha s been a miscarriag e of justice, the 3 conviction shocks the conscience, or s ubstantial justice has been denied.” State v. 4 Cabezuela , 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 (internal quotation 5 marks and citation omitted). Error that is fundamental “must go to the foundation of 6 the case or take from the defendant a righ t which was essential to his defense and 7 which no court could or ought to permit him to waive. Each case will of necessity, 8 under such a rule, stand on its own merits.” Barber , 2004-NMSC-019, ¶ 8 (internal 9 quotation marks and citation omitted). 10 {26} The at-issue instruction stated: “Obscene definition; ‘intimate parts’ means the 11 primary genital area, groin, buttocks, anus[,] or breast.” Defendant argues that the 12 definition does not define “obscene” and further that the drafting suggests that any 13 intimate parts should be categorized as obscene. 14 {27} While we agree that the drafting of the definition was less than ideal, the failure 15 to remove the phrase “obscene definition” or else provide a clear definition of 16 “obscene” does not rise to the level of fundamental error. The appellate courts’ “task 17 is to determine whether a reasonable juror would have been confused or misdirected 18 by the jury instruction.” State v. Cunningham , 2000-NMSC-009, ¶ 14, 128 N.M. 711, 1919 998 P.2d 176 (internal quotation marks and citation omitted) . We do not believe that 1 a reasonable juror would have been confusedby the jury instruction. The instructions 2 offered to the jury provided the relevant elements of the crime. Th e lack of a specific 3 definition of the term “obscene” does not mean that the jury could not have 4 determined how to properly consider whether Defendant was guilty of the overarching 5 crime. We conclude that a reasonable juro r could reach the conclusion that an adult 6 male sending nude photos of his penis and a video of himself masturbating was 7 “obscene” without a specific definition of th e term. Defendant seems to suggest that 8 by listing intimate parts after “obscene,” the jury would be misled into finding 9 Defendant guilty, when it otherwise may not have, had it been properly instructed on 10 how to evaluate the term “obscene.” We are unconvinced that the instruction misled 11 the jury, and Defendant fails to offer convincing evidence or argument to the contrary. 12 Even if the presentation of the jury instruction was less than ideal, we do not hold that 13 a reasonable jury would be confused about whether nude photos and video from an 14 adult to a child were contrary to the statute or that any potential confusion rose to the 15 level of fundamental error. 16 CONCLUSION 17 {28} We hold that the district court properl y denied Defendant’s motion to suppress. 18 We also hold that the problematic jury instruction regarding the definition of 1920 “obscene” did not constitute fundamental error. We therefore affirm Defendant’s 1 conviction. 2 {29} IT IS SO ORDERED. 3

__________________________________ 4 JONATHAN B. SUTIN, Judge 5 WE CONCUR: 6

_________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8

_________________________________ 9 M. MONICA ZAMORA, Judge 10