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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. 31,091 4 JOSE S. ENRIQUES , 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 7 Drew D. Tatum, District Judge 8
Gary K. King, Attorney General 9 Santa Fe, NM 10 M. Anne Kelly, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Robert E. Tangora, L.L.C. 14 Robert E. Tangora 15 Santa Fe, NM 16 for Appellant 17

MEMORANDUM OPINION 18 HANISEE, Judge. 192 Defendant Jose Enriques wa s convicted of aggravated driving while under the 1 influence (DWI), child abus e by endangerment, and attendant traffi c-related charges. 2 On appeal, he maintains that each convic tion was tainted by the prosecutor’s improper 3 remarks during closing argument and must be reversed base d upon that misconduct. 4 He also asserts that his conviction for third-degree child abuse cannot stand because 5 under the facts of this case it was not s upported by sufficient evidence. We disagree 6 and affirm. 7 I. FACTUAL BACKGROUND 8 On the late evening of October 15, 2009, New Mexico State Police Sergeant 9 Matthew Broom observed a moving pickup truck repeatedly cross the center and 10 shoulder lines of South Avenue D., in Portal es. After observing the erratic driving for 11 approximately one mile, Sergeant Broom conducted a traffic stop. He then 12 approached the passenger-side window of the truck, which De fendant rolled down 13 from the driver’s seat he occupied. Se rgeant Broom immediately smelled a strong 14 odor of alcohol and observed a small ch ild—Defendant’s six-year-old son—asleep 15 in the rear seat of the truck’s cab. Suspecting Defendant was under the influence of 16 alcohol, Sergeant Broom returned to his vehicle and called for a second officer 17 specifically trained to conduct a DWI investigation. 18 Officer Jeff Telles, also of the New Mexi co State Police, arrived soon thereafter 193 to assist Sergeant Broom with the DWI inve stigation. Officer Telles spoke briefly 1 with Defendant, who admitted drinking two beers four hours earlier, but maintained 2 that when stopped, he was getting medicine fo r his sick child. Officer Telles also saw 3 the child in the back seat, apparently sleeping. Based upon familiar markers of 4 intoxication—including bloodshot, watery ey es, odor of alcohol, and an admission of 5 prior alcohol consumption—Officer Telles instructed Defendant to perform certain 6 field sobriety tests. According to Officer Telles, Defendant’s atte mpts to complete the 7 field tests failed to comport with a skill leve l that indicated an absence of intoxication. 8 Following the conclusion of the on-siteDWI investigation, Defendant was 9 arrested and given the opportunity to provi de a breath or blood sample to determine 10 the alcohol content of his blood. Defendant refused to submit to the test, opting to 11 face elevated charges under Ne w Mexico law. Defendant’s son was then released into 12 the custody of a family member. Afterward, Officer Telles discovered an open, half13 full beer can on the front passenger floorboard pursuant to his pre-tow inspection of 14 the vehicle. 15 At trial, in addition to the evidence pr esented of Defendant’s intoxication, his 16 arrest, and the presence of a child passe nger in his moving pickup truck, evidence 17 indicated that the direction Defendant drovewas toward Goober’s, a bar in Portales, 18 and away from his own home. There was no direct evidence that Defendant had either 194 previously been to or was then on his way to Goober’s, nor does our review of the 1 record reveal the presence of testimony re garding the layout of Portales convenience 2 stores from which medicine for an ill child could have been purchased. Nonetheless, 3 the prosecutor remarked in closing argumen t, based on her observation that the trial 4 jurors were all “residents of Roosevelt County,” that “[Defendant] had already passed 5 the Allsup’s” and other places “that he could get medicine” at that time of night. She 6 added that he “wasn’t headed toward Walmart” and that there was a “reasonable 7 inference” that Defendant was “on his way to the bar.” 8 The prosecutor further highlighted her c ontention in this regard by arguing that 9 Defendant in fact sought to “get medicine for himself and not medicine for his son.” 10 Defense counsel objected to the verbiageof the prosecutor’s closing argument as 11 being based upon factual assertions not contained within the admitted trial evidence 12 and asserted that each comment constitute d an improper and c onclusory expression 13 of the State’s opinion. Defendant’s atto rney did not, however, seek a mistrial, a 14 curative instruction, or even request that the statements be struck from the record. 15 Rather, he merely asked that “the State argue the evidence and not its opinion.” The 16 district court determined that the comme nts in closing argument were in fact a 17 reasonable inference from the trial eviden ce and allowed the prosecutor to proceed. 18 Following deliberation, Defendant was convicted of aggr avated DWI, third-degree 195 child abuse by endangerment, driving on a suspended license, failure to maintain lane, 1 open container, and failure to provide proof of insurance. This appeal follows. 2 II. DISCUSSION 3 We review Defendant’s preserved assertions of prosecutorial misconduct for 4 an abuse of discretion. State v. Chamberlain , 112 N.M. 723, 729, 819 P.2d 673, 679 5 (1991). The standard of review for sufficien cy of the evidence “is whether substantial 6 evidence of either a direct or circumstantial nature exists to support a verdict of guilt 7 beyond a reasonable doubt with respect to ev ery element essential to a conviction.” 8 State v. Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We review the 9 evidence “in the light most favorable to the guilty verdict, indulging all reasonable 10 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. 11 Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The question 12 before us as a reviewing Court is not whether we would havehad a reasonable doubt 13 but whether it would have been impermissibly unreasonable for a jury to have 14 concluded otherwise.” State v. Rudolfo , 2008-NMSC-036, ¶ 29, 144 N.M. 305, 187 15 P.3d 170. 16 Both issues presented by Defendant on appeal are topics of recent appellate 17 jurisprudence. In State v. Torres , our Supreme Court comprehensively addressed a 18 claim of prosecutorial misconduct during closing argument, concluding that an 196 improper action “limited in sc ope and duration . . . [and] peripheral to the evidence 1 presented and the elements of the crime fo r which [the d]efendant was on trial” did 2 not, for those and other reasons, “deprive[the d]efendant of a fair trial.” 3 2012-NMSC-016, ¶¶ 24, 7, 279 P.3d 740. And in State v. Orquiz , this Court 4 concluded that a conviction for third- degree child abuse by endangerment was 5 sufficient as a matter of law “based upon the presence of a child in the moving vehicle 6 that [the d]efendant drove” while in toxicated. 2012-NMCA-080, ¶ 1, 284 P.3d 418, 7 cert. granted , 2012-NMCERT-___, ___ P.3d ___ (No. 33,677, Aug. 3, 2012). We 8 find each case to be directly applicable and dispositive of the claims herein, and we 9 address each in turn. 10 A. Prosecutorial Misconduct 11 At the outset, we reiteratethat Defendant did not re quest a curative instruction 12 or mistrial based on the prosecutor’s co mments regarding Defe ndant’s explanation 13 that his reason for travel was to acquire me dicine for his sick child. Defense counsel 14 merely asked that the State argue the evidence, not its opi nion. We employ our recent 15 precedent on the issue—though it involved actual requests for mistrials—in order to 16 succinctly resolve the issue. 17 A preserved claim that a particularconviction should be reversed for 18 prosecutorial misconduct involves a two part inquiry: (1) whether the prosecutor’s 197 conduct was improper, and (2) if so, whether it constituted reversible error in light of 1 the trial court’s response. See Torres , 2012-NMSC-016, ¶¶ 9-10 (answering 2 separately the propriety of the pros ecutor’s conduct and whether that conduct 3 constituted reversible error). Either question answered in the negative disposes of the 4 claim. Without deciding whether the pros ecutor’s inference—that Defendant was on 5 his way to Goober’s bar when stopped by Sergeant Broom—was reasonable, we 6 answer only the second prong because it is dispositive here. 7 In Torres , id. ¶ 10, our Supreme Court restated the relevant factors for 8 reversible error that were carefullydistilled from its prior precedent in State v. Sosa , 9 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 348: “(1) whether the statement 10 invades some distinct constitutional protection; (2) whether the statement [was] 11 isolated and brief, or repeated and perv asive; and (3) whether the statement [was] 12 invited by the defense.” We conclude that the factors do not weigh so heavily in favor 13 of Defendant’s position that we are willing to “determine that all the safeguards at the 14 trial level have failed.” Id . ¶ 25 (noting that “[o]nly in the most exceptional 15 circumstances should we, with the limited perspective of a written record,” “reverse 16 the verdict of a jury and the judgment of a jury and the judgment of a trial court”). 17 First, the prosecutor’s comments did notimpact any constitutional protection, 18 such as “the right against self-incrimination,” “the right to remain silent,” or the “right 198 to refuse a warrantless automobile search.” See Torres , 2012-NMSC-016, ¶ 12. With 1 respect to the more general constitutional protection of due process, the prosecutor’s 2 comments, which related to Defendant’s intent, were largely peripheral to the 3 elements of the crimes charge d. In fact, of the six charged crimes, four were strict 4 liability crimes (DWI, driving on a suspended license, failure to maintain lane, and no 5 proof of insurance) requiring no intent at all. Of the remaining two, only the child 6 abuse charge involved a mens rea even remo tely related to the prosecutor’s comments 7 during closing argument. 8 According to the tendered jury instructions, child abuse required that 9 “[D]efendant acted intentionally or with reckless disregard.” The jury was further 10 instructed that to find Defendant “acted w ith reckless disregard, [they] must find that 11 [Defendant] knew or should have known [D]e fendant’s conduct created a substantial 12 and foreseeable risk, [D]efendant disregar ded that risk and [D]efendant was wholly 13 indifferent to the consequences of the c onduct and to the welfar e and safety of [the 14 child.]” In this context, the prosecutor’s comments that sought to negate Defendant’s 15 on-scene excuse—that his child was sick and needed medicine—is arguably related. 16 But, Defendant did not assert the defense of necessity at trial or ask for any related 17 jury instructions. It was the State, rath er, that elicited tes timony from Officer Telles 18 of Defendant’s on-scene excuse. T hus, in our view, just as in the TorresCourt where 199 the trial court noted “[that] the [improper] references to the existence of a seatbelt 1 citation” were peripheral to the challe nged convictions, 2012-NM SC-016, ¶ 12, here, 2 the prosecutor’s setting-up and knocking-dow n of the abandoned “necessity defense” 3 was peripheral to the underlying convictions. 4 Moreover, the State’s theory of child abuse was never premised in any way 5 upon Defendant’s intent to go to Goober’s bar. The criminal information filed in the 6 Roosevelt County Court stated as follows: 7 Count 1: Child Abuse - Intentional (No Death or Great Bodily 8 Harm) , in that on or about, October 16, 2009 in Roosevelt County, New 9 Mexico, the above-named [D]efendant did intentionally and without 10 justification, cause A.E., a child under the age of eighteen years, to be 11 placed in a situation that may endanger his/her life or health, to wit: by 12 operating a motor vehicle while unde r the influence of intoxicating 13 liquor and having the child as a passenger , a third degree felony, 14 contrary to [NMSA 1978,] Section 30-6-1(D) [2009.]. 15 (Emphasis added.) The State’s theory remain ed the same throughout trial. In rebuttal 16 closing, the State reiterated the instructions to the jury on child abuse and explained 17 its theory that Defendant acted with “reckless disregard” by (1) “operating that car,” 18 (2) “weaving,” (3) not having “his child in a safety seat,” and (4) being “under the 19 influence of alcohol.” Notably missing fro m that theory was any reference to the 20 place where the State believed Defendant was traveling. 21 As for the second and third Sosa factors, neither has much impact on these 22 facts. The prosecutor’s co mments were isolated and brief—taking a mere ninety-one 2310 seconds of a more than twenty-two-minut e closing argument. But, as explained 1 above, the “sick child” excusewas elicited and defeated by the State, not invited by 2 Defendant. On balance, we cannot conclude that “the co mments materially altered the 3 trial or likely confused the jury by distorting the evidence,” such that reversal is 4 warranted. Torres , 2012-NMSC-016, ¶ 10 (internal quotation marks and citation 5 omitted). “[T]hese factors are only meant to be useful guides and that context is 6 paramount.” Id. (internal quotation marks and c itation omitted). Lastly, while we 7 recognize that the district court allowe d the prosecutor to make the challenged 8 inferences, which were based on presump tions about the jury’s knowledge of local 9 geography and store locations, the jury was in structed repeatedly that they were “to 10 determine the facts from the evidence produced . . . in court,” and not “on speculation, 11 guess or conjecture.” The judge explained th at the “arguments of the lawyers are not 12 evidence” and that “the only thing that shoul d matter in your deliberations is what you 13 decide the evidence has shown, and yourverdicts must be based only upon the 14 evidence.” We conclude that the prosecu tor’s comments, even if improper, did not 15 constitute reversible error. We thus follow Torres and conclude that “we do not 16 believe the prosecutor’s actions stood to affectthe jury’s view of the relevant evidence 17 presented.” 2012-NMSC-016, ¶ 15. 18 B. Sufficiency of the Evidence 1911 Defendant argues, pursuant to State v. Franklin , 78 N.M. 127, 428 P.2d 982 1 (1967), and State v. Boyer , 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), that there was 2 insufficient evidence to support his conviction for child abuse. We disagree. 3 The instructions tendered to the ju ry on child abuse read as follows: 4 1. Jose Enriques caused [his son] to be placed in a situation which 5 endangered the life or health of [the child]; 6 2. [D]efendant acted intentionally orwith reckless disregard . . . . 7 3. [The Child] was under the age of 18; 8 4. This happened in New Mexico on or about the 16th day of 9 October, 2009. 10 The State presented the testimony of both officers involved in the investigation of 11 Defendant. Each testified to Defendant’s identity, A.E.’s status as a child, and the 12 location of the incident. Sergeant Broom te stified that he observed Defendant driving 13 the truck and cross the center and shoulder lin es repeatedly within a very short span 14 of time. Officer Telles tes tified at length regarding his determination that Defendant 15 was DWI. No testimony was offered to the contrary. 16 Additionally, Defendant does not challenge the sufficiency of his DWI 17 conviction, which could have alone served as the basis of his child abuse conviction. 18 As this Court has recently held, facts su ch as those introduced in this case are 19 sufficient to support a jury’s conviction on child abuse. See Orquiz , 20 2012-NMCA-080, ¶ 1 (holding that evidence of moving DWI alone—without any 21 additional evidence of dangerous driving—coupl ed with the presence of a child in the 2212 offending vehicle, is sufficient to support a conviction for child abuse by 1 endangerment). 2 In the case at bar, however, Defendant ’s DWI was actually accompanied by two 3 additional indicia of unsafe driving. Defe ndant’s six-year-old son was not secured by 4 a child car seat as required by New Mexico law. See NMSA 1978, § 66-7- 5 369(B)(3)(2005) (“[C]hildren five years of ag e through six years of age, regardless of 6 weight, . . . shall be properly secured in e ither a child booster se at or an appropriate 7 child passenger restraint device that meets federal standards[ .]”). And, Defendant was 8 observed to have crossed both the centerline and shoulder line repeatedly. Those 9 additional facts confirm Defendant’s conviction even under pre- Orquizlaw. See, e.g. , 10 State v. Castañeda , 2001-NMCA-052, ¶¶ 3, 22, 130 N.M. 679, 30 P.3d 368 (affirming 11 a conviction for criminally negligent ch ild abuse when the driver drove while 12 intoxicated on the wrong side of the highway with her unrestrained children in the 13 car). 14 III. CONCLUSION 15 We reject Defendant’s claim that his convictions were tainted by the 16 prosecutor’s comments and constitute revers ible error, as well as his claim that 17 insufficient evidence supports his conviction for child abuse by endangerment. We 18 therefore affirm Defendant’s convictions in toto. 19 IT IS SO ORDERED. 2013 _______________________________ 1 J. MILES HANISEE, Judge 2

WE CONCUR: 3

_________________________________ 4 CELIA FOY CASTILLO, Chief Judge 5

___________________________ 6 JAMES WECHSLER, Judge 7