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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 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. 35,305 4 JOHN M. FLORES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Drew D. Tatum, District Judge 8
Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Will O’Connell, Assistan t Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 BUSTAMANTE, Judge. 17
{1} Defendant appeals from the district c ourt’s judgment and sentence, convicting 18 him for abuse of a child by endangerment, fourth offense DWI, and driving while 192 license suspended or revoked. Unpersuaded that Defendant demonstrated reversible 1 error, we issued a notice of proposed summary disposition, proposing to affirm. 2 Defendant responded to our notice witha memorandum in opposition and a motion 3 to amend the docketing statement to add two issues. We issued a second notice of 4 proposed summary disposition, granting the mo tion to add the first issue, denying the 5 motion to add the second issue, and propos ing to affirm. Defendant has responded to 6 our second notice with a second memorandum in opposition. We have duly considered 7 Defendant’s second memorandum and remain unpersuaded to reverse or to transfer 8 or certify this case for Suprem e Court review. We affirm. 9
{2} To avoid the unnecessary duplication of efforts, we do not reiterate the 10 proposed analysis contained in either of our notices and respond only to those 11 arguments made in Defendant’s second memorandum in opposition. 12
{3} Defendant continues to argue that although the submitted jury instructions 13 conform to the newly adopted uniform jury instruction for child abuse by reckless 14 endangerment, UJI 11-612 NMRA, the in struction incorrectly defined the mens rea 15 that the Supreme Court recently announced in State v. Consaul , 2014-NMSC-030, 16 ¶ 37, 332 P.3d 850. [2 ndMIO 1-2] Defendant takes issu e with our characterization of 17 the alleged error as a partial definitional omission. [2 ndMIO 1-2] He argues that by 18 substituting an objective “law-abiding person” test for an assessment of the 193 defendant’s mental state, the instruction wrote the required mens rea out of the crime. 1 [2 ndMIO 1-2] Defendant also opposes our view that the precise degree of Defendant’s 2 reckless or conscious disregard of a substan tial risk of harm was not placed in dispute 3 by the evidence. [2 ndMIO 2-3] 4
{4} Most importantly, Defendant does not dispute our proposed holding that 5 regardless of whether we wereto find UJI 11-612 somewhat deficient in its definition 6 of recklessness, we were not persuaded that we could pr ovide any remedy because the 7 Supreme Court has ruled on its newly adoptedUJI in a challenge made in an actual 8

case. See State v. Wilson , 1994-NMSC-009, ¶ 6, 116 N.M. 793, 867 P.2d 1175 9 (holding that this Court can review the validity of uniform jury instructions and is 10 precluded only from overruling instructions that our Supreme Court has considered 11 in actual cases). We observed that in State v. Montoya , 2015-NMSC-010, ¶ 32, 345 12 P.3d 1056, the Supreme Court addressed th e newly adopted UJI for reckless child 13 abuse under Consauland used language suggesting that its newly adopted UJI “clearly 14 define[s] reckless . . . conduct” with in the meaning and intention of Consaul . In the 15 absence of any argument opposing this propos ed holding, we presume that Defendant 16 agrees that we are constrained from acting on his challenge to the instruction. 17 Regardless, we remain persuaded that there is Supreme Court precedent “that 18 specifically addresses the validity of [the Uniform Jury Instruction, such that] the 194 Court of Appeals may not overrule that preceden t nor alter or reject that instruction.” 1 Wilson , 1994-NMSC-009, ¶ 5. T hus, we do not address any further Defendant’s 2 argument that UJI 11-612 misstates the mens rea for child abuse. We also decline the 3 invitation to transfer or certify this case to the Supreme Court based on our continued 4 reservations that Defendant requests anadvisory opinion on an unpreserved issue, 5 because the level of Defendant’s consci ousness was not an element actually taken 6 away from the jury under the facts. As al ways, Defendant can raise his arguments in 7 the Supreme Court by petition for writ of certiorari. 8
{5} As for the remaining challenge to the sufficiency of the evidence, Defendant 9 relies on the facts, arguments, and authorities set forth in his first memorandum in 10 opposition. [MIO 4-5] See State v. Franklin , 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 11 P.2d 982; State v. Boyer , 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1. [MIO 12 5] Defendant’s first memorandum in oppositi on to our first notice did not, however, 13 provide us with any new factual or legal argument supporting his theory that he was 14 not the driver and was not unlawfully impair ed than the arguments presented in the 15 docketing statement. We reject Defendant’s sufficiency challenge for the same reasons 16 stated in our first and second notices. 17
{6} Lastly, we note that Defendant’s second memorandum in opposition lists the 18 second issue that he sought to add in his motion to amend the docketing statement. 195 [2 ndMIO 4] We denied the motion to amend to add that issue for the reasons stated in 1 our second notice. We do not address the matter further. 2
{7} Based on the foregoing, we affirm Defe ndant’s convictions and direct him to 3 the Rules of Appellate Procedure to seek re view of the jury instruction with the 4 Supreme Court. 5
{8} IT IS SO ORDERED. 6 7

_______________________________________ 8 MICHAEL D. BUSTAMANTE, Judge 9 WE CONCUR: 10

11 TIMOTHY L. GARCIA, Judge 12

13 STEPHEN G. FRENCH, Judge 14