This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-g enerated errors or other deviations from the official paper version filed by the Supreme Court. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Decision Number:______________ 2 Filing Date: June 26, 2014 3 NO. 33,756 4 STATE OF NEW MEXICO , 5 Plaintiff-Appellee, 6

v . 7 JOSE A. GARCIA, 8 Defendant-Appellant. 9

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 10 William C. Birdsall, District Judge 11 Jorge A. Alvarado, Chief Public Defender 12 Allison H. Jaramillo, Assist ant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 Gary K. King, Attorney General 16 Yvonne Marie Chicoine, Assistant Attorney General 17 Santa Fe, NM 18for Appellee 1 DECISION 2 BOSSON, Justice. 3 {1} A jury found Defendant JoseGarcia guilty of intentional child abuse resulting 4 in the death of seventeen-month old Taegan McKinney, and the district court 5 sentenced him to life imprisonment. On app eal, Defendant argues that (1) the district 6 court violated his confrontation right by allowing testimony by an expert forensic 7 pathologist who did not perform the autopsy, (2) the district court improperly 8 instructed the jury, (3) Defendant’s trial couns el was ineffective, (4) the district court 9 erred in admitting Defendant’s shoes and statements into evidence, (5) the conviction 10 was not supported by substantial evidence, and (6) the district court erred in not 11 holding a preliminary hearing on the charge of intentional child abuse. For the reasons 12 discussed below, we affirm the di strict court and the conviction. 13 I. BACKGROUND 14 {2} On the evening of April 14, 2007, De fendant was with Akasha (Casey) 15 Morriston; they were babysitting Taegan, age seventeen months, and her brother 16 Connor McKinney, age four. The children’ s mother dropped them off at Casey’s 17 house on her way to work at around 5:00 p.m. 18 {3} Denessa Starkey testifie d that around 6:00 p.m., she drove over to Casey’s 192 house to cut Casey’s hair. Ms. Starkey further testified that Taegan did not appear ill 1 or injured while she was there; she left a little after 9:00 p.m. 2 {4} On April 15, 2007, at about 3:00 a.m., emergency medical technicians (EMTs) 3 were dispatched to a call fo r a child not breathing. When EMTs arrived at the address 4 provided to dispatch, they observed two men performing CPR on a child on the living 5 room floor; she was pale and not breathi ng. The child was Taegan McKinney. EMTs 6 attempted to insert a tube through the child ’s mouth to establish a clear airway, but 7 were unable to open her mouth because her muscles had stiffened, a sign of rigor 8 mortis. EMTs also noticed a shoe impression on the child’s abdomen. They called 9 their medical control and told them th e child had been unconscious for an unknown 10 amount of time, rigor mortis had set in , she did not have a pulse and was not 11 breathing, and “that [there were] indications of trauma th at was present on the child’s 12 belly from a shoe print.” At that point, EMTs were advised by medical control to 13 cease their efforts to revive the child. After the police arrived, EMTs informed police 14 of the shoe imprint on the child’s abdomen. 15 {5} At the scene, police questioned Defendant. In the course of the initial interview, 16 Defendant told investigators that earlier that evening he stepped on Taegan—he 17 believed on her foot—while trying to jump over a pile of clothes. This occurred 183 shortly after 9:00 p.m. Defendant made these revelations in the bedroom where this 1 incident occurred, while the officer and Defendant sat beside each other on the bed, 2 talking. 3 {6} Defendant told the officer that he picked Taegan up and comforted her after he 4 realized that had he steppe d on her, and placed her on the bed, but then fifteen minutes 5 later she fell over and vomited. He said he cleaned Taegan up, held her, and then laid 6 down with her for a little bit, but she was fussy so he got up to watch a movie while 7 Casey fed her with a bottle in the bedroom . Defendant told the officer that Casey 8 returned from the bedroom to finish th e movie with Defendant and Connor, “cause 9 [Taegan] finally fell asleep, cau se we were trying to get her to go to sleep the whole 10 night, and she’d go to sleep for about five minutes and then just wake up, start 11 screaming and crying.” After the movie, Cas ey went to get Taegan. Defendant said 12 that Casey came out of the room “screaming and crying and she brought the baby back 13 and she said she was dead.” 14 {7} People began arriving at Casey’s house while Defendant and the officer were 15 still talking in the bedroom. The atmosphere outside the house became more charged, 16 and the officer asked Defendant to accompany him to the sheriff’s office so they could 17 talk in a calmer atmosphere. Defendant agreed , and they drove together to the sheriff’s 184 office to continue the interview. Ultimately, Defendant was arrested. Additional facts 1 will be discussed as required below. 2 II. DISCUSSION 3 A. Expert Testimony Regarding the Cause and Manner Of Death Did Not 4 Violate the Confrontation Clause 5 {8} Dr. Kurt Nolte of the Office of the Me dical Investigator (OMI), an expert 6 witness for the State, review ed the autopsy records and testified regarding the cause 7 and manner of Taegan’s death. He did not perform, nor was he present at, the autopsy. 8 Two other doctors at OMI, Dr. Harada and Dr. Nine, performed the autopsy but did 9 not testify at trial. 10 {9} Defendant argued pre-trial, at trial, and before this Court that under Bullcoming 11 v. New Mexico , 131 S.Ct. 2705, __ U.S. __ (2011), the Sixth Amendment’s 12 Confrontation Clause does not permit anyforensic pathologist to testify unlessthe 13 State establishes that the pathologi st who performed the autopsy is unavailable

. 14 Bullcomingdoes not apply as broadl y as Defendant suggests. See id . at S.Ct. 2713- 15 2718 (holding that if a forensic laborat ory report that contains a testimonial 16 certification is admitted into ev idence, a defendant has the right to confront the analyst 17 that certified the report). 18 {10} Subsequent to Bullcoming , this Court has reviewed the testimony of forensic 195 pathologists who did not perform the aut opsy, but who were allowed to testify 1 regarding the cause and manner of death. See, e.g. , State v. Navarette , 2013-NMSC2 003, 294 P.3d 435. Defendant also argues that Navaretteshould bar Dr. Nolte’s 3 testimony. 4 {11} Under Navarette , a forensic pathologist who doe s not perform the autopsy may 5 nonetheless offer an expert opi nion as long as the forensicpathologist does not merely 6 repeat the subjective observations made by the non-testifying pathologist who 7 performed the autopsy. Id. ¶ 22. As an example, in Navarettethe presence or absence 8 of soot or stippling (evidence of gun powder residue) on the decedent’s body helped 9 to establish which of two individuals fired the fatal shots, because it established the 10 distance of the shoot er from the victim. Id. ¶ 6. Because of the nature of soot or 11 stippling evidence, it was not preserved inany of the raw data contained in the 12 autopsy report, only in the recorded obs ervations of the autopsy pathologist. Id. ¶ 21. 13 Accordingly, a subsequent pathologist c ould not arrive at his own, independent 14 opinion about the presence of soot or s tippling because there was no raw data to 15 review. Since the testifying pathologist in Navarettemerely parroted the subjective 16 opinion of the absent autopsy pathologist regarding soot or stippling, and thereby, 17 established the identity of the shooter, we he ld that “Navarette’s confrontation rights 186 were violated.” Id. ¶ 23. We reversed the convic tion and remanded for a new trial. 1 {12} In State v. Sisneros , 2013-NMSC-049, 314 P.3d 665, wealso reviewed expert 2 testimony by a non-autopsy-performing pathol ogist regarding the cause and manner 3 of death. We held that the expert’s tes timony violated the Confrontation Clause in so 4 far as it merely repeated the opinion of the autopsy pathologist. Id. ¶ 31. However, the 5 cause and manner of death were not in dispute in that prosecution. In Sisneros , 6 therefore, any Confrontation Clau se violation was harmless error. Id ¶ 33. We further 7 observed and reaffirmed that an expert may review an autopsy report and come to an 8 independent opinion, based on raw data and objective markers. Id. ¶ 28. 9 {13} Dr. Nolte testified that in preparation for his own expert te stimony, he reviewed 10 Taegan’s entire autopsy file, including au topsy photographs admitted into evidence. 11 We have “ not . . . sa[id] that all material contained within an autopsy file is testimonial 12 and therefore inadmissible.” Navarette , 2013-NMSC-003, ¶ 22 (emphasis added). In 13 Navarette , we observed that the expert did not offend the Confrontation Clause when, 14 “after being shown the autopsy photographs, [he] expressed his own opinion about the 15 entry and exit wounds, explaining the basis for his opinion.” Id. In this case, the State 16 moved the photographs of Taegan taken at the autopsy—and reviewed by Dr. 17 Nolte—into evidence. Defendant did not obj ect. Defendant does not argue to this 187 Court that it was error to admit the photographs, and he candidly acknowledges that 1 photographs may be used to form an independent opinion about the nature and cause 2 of an injury without violating the Con frontation Clause. At trial, the State 3 methodically presented those photographs to Dr. Nolte and asked for his opinion 4 regarding the injuries shown. 5 {14} In discussing the autopsy photographs , Dr. Nolte occasionally referred in 6 passing to the comments made by the autopsy pathologists. Once, when asked to 7 describe the injury shown in a photograph of the back of Taegan’s head, Dr. Nolte 8 testified “that is a bruise, right here, wh ich the pathologist who handled this case 9 described as a reverse J [bruise], and I thi nk that’s the J that th ey were seeing which 10 was on the back portion of the head, on the scalp.” Dr. Nolte offered his own 11 independent opinion, based on those photographs, that this was a “blunt force injury” 12 and that it was likely “one imp act” that created the bruise. 13 {15} Dr. Nolte further testified that “the se injuries don’t show any evidence of 14 healing,” after which he desc ribed the healing process of bruises and how changes in 15 coloration may establish where the bruise is in the healing process. Next, Dr. Nolte 16 was shown a photograph of bruises behind Taeg an’s left ear, and he stated that it 17 depicted “three bruises described by the [autopsy] pathologist.” He opined that blood 188 in the ear visible in the photographwas, to a reasonable de gree of medical certainty, 1 “blood that has run down th e face and pooled in the ear” from a tear of the tissue 2 connecting the upper lip to the gum. 3 {16} We are satisfied that, taken as a whol e, Dr. Nolte’s testimony was based on his 4 own observations and conclusions from whathe saw and read, opinions that were 5 independently conceived. Occasi onal and incidental references to what was said in the 6 autopsy report were more for purposes of identification and were not prejudicial to 7 Defendant. 8 {17} Dr. Nolte also discussed a number of additional photographs of bruises and 9 injuries to Taegan’s head, providing hi s opinion regarding the injuries depicted 10 therein. The State then asked him, “so far inall of the pictures we have looked at, have 11 you seen any injuries that look to be old or healing,” Dr. Nolte responded, “I have 12 not.” However, he followed his opinion by adding, “I must say th at Dr. Harada did 13 describe some degree of green color on two areas of contusion. I did not see that color 14 change in my review of the photographs.” As he had previously discussed, reviewing 15 the healing process of bruises, green coloration would indicate a bruise that was not 16 fresh but had already begun to heal. Dr. No lte noted there were two areas where Dr. 17 Harada indicated evidence of healing, the left side of the head and the forehead; 189 however, in Dr. Nolte’s opinion there was no evidence that healing had begun. When 1 Dr. Nolte referred to Dr. Harada’s opinion regarding evidence of healing, he noted 2 that it directly contradicted his own opinion—that there was no evidence of healing. 3 {18} Defendant’s primary concern with Dr. Nolte’s testimony is that his opinion 4 contradicts what Defendant wanted to esta blish at trial—that some of the injuries 5 could have occurred earlier, which w ould undermine the State’s argument that 6 Defendant was responsible for the fatal injuries. Dr. Nolte expressed his own 7 independent opinion, and now Defendant attacks that opinion by attacking Dr. Nolte’s 8 observation that Dr. Harada disagreed withhim. Importantly, what Dr. Nolte said 9 about Dr. Harada’s observation rega rding coloration of the bruises assisted Defendant, 10 it corroborated Defendant’s theory of th e case that the bruises were caused by 11 someone else. Dr. Nolte’s testimony regarding certain favorablereferences to Dr. 12 Harada’s observations causes no prejudice to Defendant. It also creates no 13 confrontation issue for us to decide. 14 {19} If Defendant wanted testimony from Dr. Ni ne or Dr. Harada to corroborate his 15 theory of when the fatal injuries occurre d, he was free to attempt to call them as 16 witnesses for the defense. See Williams v. Illinois , 132 S.Ct. 2221, 2228 (2012) 17 (observing that a defendant “who . . . wi shes to probe the reliability of the DNA 1810 testing done in a particular case” may subpoe na the analyst who participated in the 1 testing and question the analyst at trial) . The State was not obliged to call those 2 witnesses to help Defendant’s case. 3 {20} Ultimately, Dr. Nolte testified regardi ng his opinion as to the cause and manner 4 of death: 5 Prosecutor : Did you form your own opinion as to the cause and manner 6 of death of Taegan McKinney? 7 Dr. Nolte : Yes ma’am 8 Prosecutor : What’s, what is that? 9 Dr. Nolte : Ah, I would classify it the same way as Doctors Nine and 10 Harada classified it , which was multiple blunt force injuries. 11 Prosecutor : Are you able to determine th e mechanism of the injuries? 12 Dr. Nolte : The mechanism of the injuries? 13 Prosecutor : Yes. 14 Dr. Nolte : I think the mechanism of the in juries are that she was beaten, 15 and I think that the imprint on the abdomen likely reflects that she was 16 stomped. 17 (Emphasis added.) 18 {21} As observed above, Defendant’s argument is premised on his belief that the 19 Confrontation Clause does not permit anyforensic pathologist to testify unlessthe 20 State establishes that the pathologi st who performed the autopsy is unavailable . This 21 belief is not supported by the case law. See, e.g. , Navarette , 2013-NMSC-003, ¶ 22 22 (“[A]n expert witness may express an independent opini on regarding his or her own 23 interpretation of raw data without o ffending the Confrontation Clause.”); see also 2411 Sisneros , 2013-NMSC-049, ¶ 30 (“[A]n expert w itness may offer an expert opinion 1 based on raw data, such as autopsy photographs . . . taken by others.”). 2 {22} Further, the State called a second forens ic pathologist from OMI, Dr. Clarissa 3 Krinsky, who was listed as a witness for the defense. Dr. Krinsky also was not present 4 at the autopsy, but reviewedthe complete autopsy file, the same as Dr. Nolte, and 5 gave her opinion as to the cause and manner of death being “multiple blunt force 6 injury” and “homicide.” Dr. Krinsky further testified that “all the injuries that [she] 7 discussed . . . [occurred] before oraround the time of [Taegan’s] death.” 8 {23} Defendant makes no argument to this Court that Dr. Krinsky’s testimony 9 violated his right to confrontation. In anabundance of caution, wehave reviewed her 10 testimony, and we have found no confrontation issue. Dr. Krinsky’s testimony and Dr. 11 Nolte’s testimony were similar. Both opi ned, based on their obs ervations and review 12 of the autopsy file, regarding the cause and manner of death. Both opined that all the 13 injuries occurred at or near the time of death. The only difference appears to be that 14 Dr. Nolte mentioned contradictory opinions put forth by Dr. Harada and Dr. Nine in 15 the autopsy report that Defendant wished to elicit as direct evidence. Defendant has 16 suffered no deprivation of constitutional ri ghts to confrontation by virtue of Dr. 17 Nolte’s and Dr. Krinsky’s testimony. 1812 B. The Jury Instructions Did Not Result In Fundamental Error 1 {24} Defendant asserts that the district court erred because it “instructed the jury in 2 this case that [the jury] had to find that Joseacted intentionally in order to convict him 3 of negligent child abuse.” He argues that this instruction created a fundamental error 4 in the trial because it left the jury with only one option, to convict him of intentional 5 child abuse, since it effectively equate d intentional and negligent child abuse. 6 Defendant was charged with intentional child abuse, and in the alternative with 7 negligent child abuse. He was convi cted of intentional child abuse. 8 {25} Since Defendant did not object to the juryinstructions, we review his claim for 9 fundamental error. State v. Sandoval , 2011-NMSC-022, ¶ 13, 150 N.M. 224, 258 P.3d 10 1016. When this Court reviews jury instruc tions for fundamental error, we will only 11 reverse the jury verdict if doing so is “nece ssary to prevent a mis carriage of justice.” 12 Id. ¶ 13 (internal quotation and citation omitted) . “[C]ases in whic h a mistake in the 13 process makes a conviction fundamentally unfair notwithstanding the apparent guilt 14 of the accused” may result in a miscarriage of justice. State v. Barber , 2004-NMSC15 019, ¶ 17, 135 N.M. 621, 92 P.3d 633. First, “[w]e must determine whether a 16 reasonable juror would have been confused or misdirected by the jury instruction.” 17 Id. ¶ 19. If so, we then review the jury instruction in context and only reverse if “the 1813 [d]efendant’s conviction was the result of a plain miscarriage of justice.” Id. (internal 1 quotation and citation omitted). 2 {26} Regarding one count, the abuse of a child, see NMSA 1978 § 30-6-1(D) (2009) 3 (defining the crime of child abuse), the distri ct court instructed the jury on intentional 4 abuse of a child resulting in death, al ong with the definition of intentional. See UJI 14- 5 602 NMRA (providing the jury instruc tion for the crime of child abuse); see also UJI 6 14-610 NMRA (providing the jury instruction defining intentional). The district court 7 then instructed the jury on negligent childabuse resulting in the death of a child. In 8 so doing, the district court stated, “[ t]he defendant has also been charged in the 9 alternativewith negligent child abuse . . . .” (Emphasis added.) In concluding the 10 instructions as to Count 1, the district court instructed: 11 In this case . . . there are three possi ble verdicts as to the defendant (1) 12 guilty of intentional child abuse resulti ng in death; (2) guilty of negligent 13 child abuse resulting in death; (3) notguilty; [o]nly one of the possible 14 verdicts may be signed by you as to the defendant. You must consider 15 each of these crimes. You should be sure that you fully understand the 16 elements of each crime before you deliberate further. You will then 17 consider whether the defendant is gu ilty of the crime of intentional child 18 abuse resulting in death. If you find him guilty of that crime, then that is 19 the only form of verdict which is to be signed. If you have a reasonable 20 doubt as to his guilt of that crime, you will go on to a consideration of 21 the crime of negligent child abuse resulting in death . If you find him 22 guilty of that crime, then that is the only form of verdict which should be 23 signed. But if you have a reasonable doubt as to his guilt of the crime of 24 negligent child abuse resulting in death, then you should find him not 2514 guilty and sign only the not guilty fo rm. You may not find the defendant 1 guilty of more than one of the foregoing crimes. . . . 2 (Emphasis added.) Defe ndant does not argue that the district court erred in this jury 3 instruction. 4 {27} What Defendant actually argues is that th e district court erred when it instructed 5 the jury regarding general criminal intent. After instructing the jury on other crimes, 6 tampering with evidence and battery of a household member, the district court 7 instructed the jury regarding general criminal intent. See UJI 14-141 NMRA, Note 1 8 (“This instruction must be used with ev ery crime except for the relatively few crimes 9 not requiring criminal intent or those crimes in which the intent is specified in the 10 statute or instruction.”). When the district court listed the crimes in the general intent 11 instruction, it included intentional child abuse and negligent child abuse, in addition 12 to tampering with evidence and battery of a household member. 13 {28} Defendant is correct that UJI 14-610 (providing the instruction for the crime of 14 child abuse) states that “UJI 14-141 NMRA, ge neral criminal intent, shall not be given 15 in child abuse cases and child abandonment cases.” UJI, 14-610, Note 1. When the 16 district court included the charges of intentional and negligent child abuse in the list 17 of crimes in the general intent instru ction, the district court committed error. 18 {29} The question, however, is whether this resulted in prejudice and fundamental 1915 error to Defendant. Defendant argues that because the jury was instructed that it was 1 required to find that he acted purposefully toconvict him of negligent child abuse, it 2 was impossible for him to be convicted of negligent child abuse. Thus, Defendant 3 argues, the jury instruction resulted in prejudice to him, forcing the jury to either 4 convict him of intentional child abuse or not at all. 5 {30} We do not agree. If anything, the erro r benefitted Defendant . Any confusion 6 on the part of the jury would have incr eased the burden on the State to prove that 7 Defendant purposefully committed the act of which he was convicted. Also, even 8 though the instruction as given meant the State bore a higher burden regarding the 9 charge of negligent child abuse, the jury could have still c onvicted Defendant of 10 negligent child abuse. It did not. The juryconvicted Defendant of intentional child 11 abuse. As instructed, that was the only fo rm of verdict which was signed by the jury. 12 At that point, there is no ev idence that the jury consider ed negligent child abuse—it 13 was instructed not to do so. Thus, the district court’s error in this instance was 14 harmless. More importantly, wesee no likelihood that the jury was confused or misled 15 by the district court’s mistake. 16 C. Defendant’s Allegation Of Ine ffective Assistance Of Counsel 17 {31} Defendant asserts ineffectiv e assistance of counsel because his trial counsel did 1816 not object to the jury instructions as discussed above and “f ailed to convey the 1 causation problem with the timing of the head injuries.” 2 {32} Defendant’s assertion regarding the lack of objection to the jury instructions, 3 that “there is no argument that this was a tactical decision” is without merit. As 4 discussed above, the instructions given ostensibly increasedthe State’s burden 5 required to gain a conviction. It is possibl e that counsel made a tactical decision at 6 trial to let the jury deliberate as instructed , instead of objecting to the error, thereby 7 increasing the likelihood that the State would not carry its burden of proof. 8 {33} Defendant also asserts that his counsel was ineffective because he failed to call 9 “an expert or otherwise bring forth the cau sation problem with the head injuries.” He 10 cites State v. Aragon , 2009-NMCA-102, ¶ 15, 147 N.M. 26, 216 P.3d 276 (holding 11 that defense counsel acted unreasonably based on “her failure to e ngage an expert for 12 consultation, combined with her failure to conduct adequate pre-trial interviews of the 13 State’s experts”) to support his argument. Aragonis not applicable. Here, defense 14 counsel conducted pre-trial interviews of the experts w ho testified. Defense counsel 15 identified Dr. Krinsky as an expert witn ess, although it was the State who called Dr. 16 Krinsky to testify at trial. Additionally, de fense counsel did elicit evidence at trial that 17 Defendant asserts he did not elicit—the opinion that some experts opined that a 1817 number of the bruises showed signs of healing. This came in through the testimony 1 of Dr. Nolte, although his own opinion contradicted it. Also, in his closing argument 2 defense counsel pointed out Defendant’s theo ry about signs of healing being evidence 3 that someone other than Defendant caused the injuries. Defendant’s arguments that 4 he received ineffective assistance of counselare without merit, but Defendant is not 5 constrained from pursuing ineffective assistance of counsel claims on habeas. 6 D. The District Court Di d Not Err In Admitting Defendant’s Statements and 7 Shoes Into Evidence 8 {34} Defendant argues that the district c ourt erred when it denied his motion to 9 suppress evidence of (1) his statements to police, and (2) his shoes. 10 {35} Defendant asserts that the police did notproperly advise him of his rights under 11 Miranda v. Arizona , 384 U.S. 436, 444 (1966) (holding that statements made during 12 a custodial interrogation may not be admitte d unless a defendant was advised of his 13 legal rights that “secure the privilege agains t self-incrimination”). But, “[a] suspect’s 14 Mirandarights attach only when he is the subject of a custodial interrogation.” State 15 v. Nieto , 2000-NMSC-031, ¶ 20, 129 N.M. 688, 12 P.3d 442) (internal quotation 16 marks and citation omitted). If Defendant was not subject to a custodial interrogation 17 at the time the statements weremade, then the officers were not required to advise him 18 of his rights under Miranda

. See id. ¶ 20. 1918 {36} The district court determined that De fendant was not subject to a custodial 1 interrogation, and therefore no Mirandaadvisement was required. Giving deference 2 to factual findings, we review the legal conclusion of a custodial interrogation de 3

novo. Id. ¶ 19. Our test is objective, consid ering whether under the circumstances “a 4 reasonable person would believe that he or she were not free to leave” or where the 5 interrogation was inherently coercive. State v. Munoz , 1998-NMSC-048, ¶ 40-41, 126 6 N.M. 535, 972 P.2d 847. 7 {37} Defendant first argues that a custodial interrogation took place at the house, 8 when a detective interviewed him in the bedroom. He premises his argument on the 9 facts that (1) two police officers were at the house , and (2) he was questioned alone, 10 away from other people. 11 {38} At the scene, officers asked Defendant if he was willing to speak to them about 12 what happened; Defendant replied, “that’s fine.” One detective followed Defendant 13 into the bedroom to see where Taegan had been earlier in the evening. Defendant was 14 not handcuffed, he was free to move around, and he gave th e detective his story freely 15 without being asked many questions. When Defendant was telling his story, he and 16 the detective were sitting beside each other on the bed. The interview in the bedroom 17 lasted ten to fifteen minutes. While they were in the bedroom, nothing blocked 1819 Defendant’s access to the door, and there were no other officers in the room. Because 1 tensions were escalating in the house as other people began to arrive, the detective 2 asked Defendant if he would accompany the detective to the sheriff’s office to talk 3 some more away from the scen e. Defendant waited for the detective to get his truck 4 and then rode to the office with the detectiv e in the front seat of the detective’s truck. 5 Objectively, these circumstances do not amount to a custodial interrogation; therefore, 6 officers were not required to advise Defendant of his Mirandarights at the time. 7 {39} Defendant also argues that he was subj ect to a custodial interrogation at the 8 sheriff’s office. He relies on the fact that he was questioned ina small interrogation 9 room. While at the sheriff’s office, Defendant stated that he was ready to go home. 10 Ultimately, Defendant was arrested at the sh eriff’s office. At the sheriff’s office, the 11 detective informed Defendant (1) that he was not under arrest; (2) that he was free to 12 leave at any point, but they would drive hi m home after the interview if he wanted; 13 (3) that there were going to be some questi ons that “[he] might not want to answer”; 14 and (4) of his rights under Miranda , except that the detective did not mention that 15 counsel would be appointed if Defendant c ould not afford it. De fendant’s access to the 16 door was not blocked, the door was unlocke d, and Defendant wa s not restrained. In 17 fact, Defendant acknowledges that he left the room unaccompanied on at least one 1820 occasion. Reviewing the record, we affirm th e district court’s determination that the 1 circumstances did not amount to a custodial interrogation. 2 {40} Defendant further argues that the district court erred by denying his motion to 3 suppress the evidence of his shoes. He maintains that the alleged significance of his 4 shoes resulted from the allege dly coercive police intervie ws discussed above. During 5 the interviews, Defendant admitted that the shoes he was wearing were the same shoes 6 he was wearing the previous night when he stepped on Taegan. Defendant’s shoes 7 were collected as evidence and analyzed by an expert who compared the outsole 8 pattern of the shoes to photographs of injuries on Taegan’s abdomen. The expert 9 testified that the impression on Taegan’s abdomen was made by a shoe that was the 10 same size and had the same outsole pattern as Defendant’s right shoe. 11 {41} As our Court of Appeals has obs erved, “the failure to give Mirandawarnings 12 did not require suppression of evidence that [is] the fruit of a [defendant’s] unwarned 13 but voluntarystatements.” State v. Olivas , 2011-NMCA-030, ¶ 18, 149 N.M. 498, 252 14 P.3d 722 (quoting United States v. Patane , 542 U.S. 630 (2004)). We affirm the 15 district court’s determination that De fendant was not subject to a custodial 16 interrogation when the statements weregiven—Defendant’s statements were 17 voluntary. Accordingly, we affirm the distri ct court’s denial of the motion to suppress 1821 the evidence of Defendant’s shoes based on the statements given during his 1 interviews. 2 E. Defendant’s Conviction Is Supported By Substantial Evidence 3 {42} In reviewing the record for sufficiency, “[e]vidence is viewed in the light most 4 favorable to the guilty verdict, indulging all reasonable inferences and resolving all 5 conflicts in the evidence infavor of the verdict.” State v. Garcia , 2011-NMSC-003, 6 ¶ 5, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation omitted). We 7 will not second guess the jury concerning witness credibility, the weight of the 8 evidence, or judgment. Id. 9 {43} In his brief, Defendant argues that “[t]he State simp ly proved that [Taegan] died 10 from blunt force trauma to her head and/or abdomen, but failed to prove that 11 [Defendant] caused the head injuries or . . . the abdominal injuries intentionally.” We 12 disagree. Based on the trial testimony, T aegan was in the custody of both Defendant 13 and Casey at the time the fatal injuries o ccurred. Both Defendant and Casey testified 14 at trial that the other person—alone—had c ontrol of Taegan for a period of time, and 15 before that time Taegan had no visible injuries. Both testified that they had no idea 16 how the injuries to Taegan ’s head, arms, and legs o ccurred. Essentially, Defendant 17 and Casey each implied that the other pers on injured Taegan. They pointed fingers at 1822 each other. 1 {44} Testimony and evidence established that Defendant and Casey were fighting 2 that night. Both Defendant and Casey showed physical signs of 3 violence—photographs of Casey showed brui ses from that evening and Defendant had 4 a broken hand. Dr. Nolte’s testimony and Dr. Krinsky’s testimony established that 5 Taegan’s fatal injuries occurred during th e period of time that Taegan was in the 6 custody of Defendant and Casey. In addition, Defendant admitted to stepping on 7 Taegan, and expert testimony linked the imprint on Taegan’s abdomen to the shoes 8 Defendant was wearing. 9 {45} We will never know with certainty what happened that evening, but in a case 10 like this, one that is reduced to witness credibility, the fact finder is the ultimate 11 arbiter. In this case, the jury concluded that Defendant’s story was less credible than 12 Casey’s. Viewed in the light most favorableto sustain the convi ction, the evidence 13 was sufficient to support the jury’s determination that Defendant committed the crime 14 of intentional child abuse resulting in death. 15 III. CONCLUSION 16 {46} The remainder of Defendant’s arguments are without merit. For the reasons 17 discussed above, we affirm the verdict of the jury and the judgment of the district 1823 court. 1 {47} IT IS SO ORDERED. 2

______________________________ 3 RICHARD C. BOSSON, Justice 4

WE CONCUR: 5

___________________________________ 6 BARBARA J. VIGIL, Chief Justice 7

___________________________________ 8 PETRA JIMENEZ MAES, Justice 9

___________________________________ 10 EDWARD L. CHÁVEZ, Justice 11

___________________________________ 12 CHARLES W. DANIELS, Justice 13