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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,115 4 MATTHEW HEPPLE , 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 7 John W. Pope, District Judge 8 Gary K. King, Attorney General 9 Yvonne M. Chicoine, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Acting Chief Public Defender 13 Karl Erich Martell, Assi stant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 GARCIA, Judge. 18 Defendant Matthew Hepple appeals his convictions for two counts of first 192 degree kidnapping, one count of conspiracy to commit kidnapping, and one count of 1 conspiracy to commit child abuse. Defendant’s wife, Sarah Burton-Hepple, was tried 2 jointly with Defendant and wa s convicted of the same crimes. Defendant raises eight 3 issues on appeal. Defendant challenges the propriety of the jury instructions, the 4 district court’s evidentiary rulings, the suffi ciency of the evidence, and argues that his 5 convictions were inconsistent and violated double jeopardy protections. We affirm 6 in part and reverse in part. 7 BACKGROUND 8 In early 2006, Defendant and his wife (c ollectively, the Hepples) rented a home 9 in Laguna, New Mexico. At that time, the Hepples had six children. The two oldest 10 children, Rikki and Joseph, were Defendant’s stepchildren. Rikki was twelve years 11 old and Joseph was eight years old. 12 A few months after arriving in New Mexico, the Hepples began using handcuffs 13 and ropes to restrain Rikki and Joseph fo r up to a week at a time. The Hepples 14 restrained Rikki and Joseph in either the bathroom or in a room identified as the 15 “animal room,” which functioned as both a den and as Rikki’s bedroom. The animal 16 room had a six-by-six inch wooden pillar in its center that went from the floor to the 17 ceiling. The pillar was used as a securepost where Rikki and Joseph would be tied 18 up. While restrained, the children often went without food and were not allowed to 193 use the toilet. 1 Rikki believed that the Hepples were re straining her as a form of punishment. 2 She said that the Hepples to ld her they were binding her because she was hurting her 3 siblings. The Hepples also accused Rikki of stealing food and pain medications. 4 Defendant told his neighbor that animals and children were similar because they will 5 work for food if it is withheld from them. The Hepples’ property manager saw a latch 6 for a lock located on the refrigerator door. Rikki denied hurting her siblings and 7 stealing pain medications, but she admitted th at she would try to steal food, and she 8 would eat out of the garbage can when sh e was starving. The Hepples never told 9 Joseph why they restrained him. 10 Rikki and Joseph both looked very skinny and appeared unhealthy. Rikki had 11 scars on her arms that appeared like some one gouged her with a knife or burned her. 12 Joseph also had sores and scars on his arms. They kept their hair short because of 13 head lice, and usually wore long-sleeved shirts and long pants. The Hepples told 14 people that Rikki was detoxing from an addi ction to cough medicine and that she was 15 addicted to all kinds of pills. 16 On May 10, 2007, Rikki and Joseph were tied to the animal room pillar. 17 Sometime after 6:30 a.m., Rikki used her teeth to untie the ropes binding her wrists 18 and escaped out a window. Rikki believed thatshe would be too weak to walk if she 194 stayed much longer. Joseph woke that morning to find Rikki gone, the animal room 1 window open, and the ropes binding him to the pillar loosened. The Hepples moved 2 within three days of Ri kki’s escape from the home. 3 After she escaped, Rikki hitchhiked to th e Starlight movie theater in Los Lunas, 4 New Mexico. She arrived at approximatelynoon and spoke to Nicole Padilla. Rikki 5 was very hungry, dirty, and pale, with dark circles under her eyes. She smelled of 6 urine, feces, and body odor. Nicole Padilla called her mother, who purchased food, 7 clothing, and a new knapsack for Ricki. Sarah Burton-Hepple had told the local 8 police that Rikki had walked away from th e house taking three knives with her. The 9 Padillas did not see any knives when they he lped Rikki transfer her belongings to her 10 new knapsack. 11 At approximately 5:00 p.m. that even ing, the Padillas contacted the police. 12 After the police were contacted, CYFD took Rikki into custody. Rikki lied to CYFD 13 about her identity and about the origins of her injuries. As a result, Rikki was not 14 correctly identified until May 31, 2007. Joseph was later removed from the Hepples’ 15 new home. When asked if he wanted to go back and live with his parents, Joseph told 16 CYFD that he would only want to see them with a lot of police around. 17 On July 5, 2007, the Hepples were indicted on two counts of kidnapping and 18 seventy-three counts of child abuse. A superseding indictment in November 2007 195 charged the Hepples with two counts of kidnapping, conspiracy to commit 1 kidnapping, four counts of intentional ch ild abuse resulting in great bodily harm, 2 conspiracy to commit intentional child abuse, and two counts of negligently causing 3 child abuse. All charges were based on events occurring between January 1, 2006, 4 and May 10, 2007. After two continuances, trial was set for the week of November 5 10, 2008. 6 During trial, Rikki and Joseph testified regarding their confinement, injuries, 7 and resulting scars. Their testimony included explanations as to why they had initially 8 lied about their injuries to CYFD and the police. The State also presented testimony 9 from two expert witnesses, Dr. Ian Paul and Dr. Karen Campbell. The district court 10 qualified Dr. Campbell to testify as an expert in forensic pedi atrics and general 11 medicine, over an objection by the defense. Dr. Campbell testified regarding Joseph’s 12 injuries. Dr. Paul, a forensic pathologist, di scussed the nature of Rikki’s injuries and 13 their most likely causes. Neither Defendant nor Sarah Burton-Hepple testified during 14 the defense’s case-in-chief. The defense focused its final argument on the weaknesses 15 in the State’s case and the credibility of its witnesses. 16 At the close of the State’s case, Defendant moved to dismiss the kidnapping 17 charges, arguing that a parent has legal authority over his children and cannot kidnap 18 them. Both parties and the district court conceded that they knew of no New Mexico 196 authority addressing the issue. After searching “high and low” for such authority on 1 the issue, the district court found that a parent can kidnap his own child if the parent 2 acts outside his own lawful authority as a pare nt. As a result, the district court denied 3 Defendant’s motions to dismiss the kidnapping charges. 4 Following trial, the jury found Defendant guilty of kidnapping and conspiracy 5 to commit the kidnapping of Rikki and Joseph, and conspiracy to commit intentional 6 child abuse. The jury retu rned special verdict forms finding that Defendant had not 7 voluntarily released the children in a safe location and that neither child had suffered 8 great bodily harm, and acquitte d Defendant of the remaining child abuse offenses. 9 The jury was not provided with an instru ction on the statutory unlawfulness element 10 for the kidnapping offenses. Defendant timel y filed an appeal of his convictions. 11 DISCUSSION 12 A. The Unlawfulness Element of Kidnapping 13 Defendant challenges his kidnapping and conspiracy to commit kidnapping 14 convictions on the grounds that the State failed to prove, and the jury was not 15 instructed on, the essential unlawfulness el ement of kidnapping. We will first address 16 Defendant’s argument that the statutory definition of kidnapping makes it impossible 17 for a parent to kidnap his own child. See NMSA 1978, Section 30-4-1(A) (2003). 18 Citing State v. Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 (1967) and State v. 197 Boyer , 103 N.M. 655, 659, 712 P.2d 1, 5 (Ct. App. 1985), Defendant contends that 1 this Court should reverse his convictions because he was ac ting in loco parentis and 2 his conduct was a lawful exercise of parental discipline. 3 We review de novo the question of wh ether New Mexico’s kidnapping statute 4 applies to parents and those acting in loco parentis. State v. Torres , 2006-NMCA-106, 5 ¶¶ 5, 8, 140 N.M. 230, 141 P.3d 1284. When construing statutes, we look to the plain 6 language of the statute with the primary goal of giving effect to the intent of the 7 Legislature. Att’y Gen. of N.M. v. N.M. Pub. Regulation Comm’n , 2011-NMSC-034, 8 ¶ 10, 150 N.M.174, 258 P.3d 453. Statutes in para materia are harmonized and 9 construed together, under a presumption th at the Legislature acts with full knowledge 10 of relevant statutory and common law. Id. We begin our analysis with the language 11 of Section 30-4-1(A), which codifies the criminal offense of kidnapping. 12 New Mexico defines kidnapping as: 13 the unlawful taking, restraining, transporti ng or confining of a person, by 14 force, intimidation or deception, with intent: (1) that the victim be held 15 for ransom; (2) that the victim be held as a hostageor shield and 16 confined against his will; (3) that the vi ctim be held to service against the 17 victim’s will; or (4) to inflict death, physical injury or a sexual offense 18 on the victim. 19 Section 30-4-1(A)(1)-(4) (emphasis added). The unambiguous language of the statute 20 does not exempt a parent from criminal liability for kidnapping his or her own child. 21 As a result, we must determine whether th e Legislature otherwise intended to exempt 228 a parent from criminal liability for kidnapping his or her own child. 1 We recognize that a parent in New Mexico , “has a privilege to use moderate or 2 reasonable physical force, without criminalliability, when engaged in the discipline 3 of his or her child.” State v. Lefevre , 2005-NMCA-101, ¶ 16, 138 N.M. 174, 117 P.3d 4 980. But if it is to be justif ied, a parent’s exercise of the parental discipline privilege 5 must not be cruel or excessive. Id. As such, the uniform jury instruction defining 6 unlawful conduct specifically exempts non-abusiveparental or custodial care from 7 classification as unlawful. See UJI 14-132 NMRA; see also Lefevre , 2005-NMCA8 101, ¶ 16 (“The parent’s conduct is to bemeasured under an objective standard.”). 9 Thus, it would be overly restrictive to construe the kidnapping statute as Defendant 10 suggests. 11 Harmonizing UJI 14-131 NMRA with the pl ain language of Section 30-4-1(A), 12 kidnapping by a custodial parent or person acti ng in loco parentis is legally possible. 13 We conclude that a parent may be found criminally guilty for kidnapping his or her 14 own child when the parent’s conduct is determined to be inconsistent with the 15 privilege provided for custodial parent al acts, including unlawful restraint or 16 confinement with the intent to inflict physical injury. Having determined this 17 singularly narrow issue that was raised by De fendant in this case, whether a parent can 18 be charged with the offens e of kidnapping, wenow address Defendant’s remaining 199 arguments. Defendant also argues that wemust reverse his kidnapping and conspiracy 1 to commit kidnapping convictions because the jury was not instructed on the essential 2 element of unlawfulness and that his conduc t was lawful because he was exercising 3 the privilege to discipline his children. 4 Defendant asserts that the unlawfulne ss instruction was necessary because he 5 introduced evidence during trial that his behavior constituted the type of lawful 6 parental discipline that is expressly exempted from the definition of unlawful conduct. 7 See UJI 14-132. Defendant failed to preserve this error on appeal because he did not 8 tender or argue for the inclusion of the unlaw fulness jury instruction. We therefore 9 review his claim for fundamental error. See State v. Sosa , 1997-NMSC-032, ¶ 23, 123 10 N.M. 564, 943 P.2d 1017 (“Having failed to proffer accurate instructions, object to 11 instructions given, or otherwise preservethe issue for appeal, . . . we will limit our 12 evaluation to the claim of fundamental error.”); Rule 12-216 NMRA (setting forth the 13 preservation requirements). 14 Error that is fundamental must be such error as goes to the 15 foundation or basis of a defendant’s rights or must go to the foundation 16 of the case or take from the defendanta right which was essential to his 17 defense and which no court could or ought to permit him to waive. 18 State v. Garcia , 46 N.M. 302, 309, 128 P.2d 459, 462 ( 1942). If the jury instructions 19 omitted an element which was at issue in the case, the error could be considered 20 fundamental. State v. Orosco , 113 N.M. 780, 783, 833 P.2d 1146, 1149 (1992), aff’d 2110 in part by State v. Trevino , 116 N.M. 528, 865 P.2d 1172 (1993). The question, then, 1 “is whether there was any evidence or sugge stion in the facts, however slight, that 2 could have put the element of unlawfulness in issue.” Id. at 784, 833 P.2d at 1150. 3 “Fundamental error requiring reversal occurs when a jury instruction fails to include 4 an essential element of an offense or a defense to a charge, leaving the question of 5 guilt so doubtful that it would shock the cons cience to permit the verdict to stand.” 6 Sosa , 1997-NMSC-032, ¶ 24. 7 Defendant contends that fundamental error occurred because the jury was 8 presented with evidence that “any alleged tying-up was done in a lawful manner for 9 the purpose of discipline.” However, Defendant has not identified any evidence in the 10 record that suggests he used objectively “moderate or reasonable physical force” to 11 confine Rikki and Joseph or that he did so in an effort to discipline them. See Lefevre , 12 2005-NMCA-101, ¶ 16. Instead, Defendant only points this Court to Rikki’s 13 testimony that the Hepples told her that they were disciplining her for hurting her 14 siblings. Effectively, Defendant’s uns upported argument amounts to an assertion of 15 prejudice, without any showing of prejudice. See In re Ernesto M., Jr. , 1996-NMCA16 039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing 17 of prejudice.”). The mere fact that Defendant now claims that his conduct was for the 18 purpose of discipline does not put the el ement of unlawfulness at issue. See Lefevre , 1911 2005-NMCA-101, ¶¶ 16, 17 (stating th at if “a question of parental privilege exists, the 1 [s]tate must prove beyond a reasonable doubt that the parent’s conduct did not come 2 within the privilege”). For unlawfulness to be at issue, evidence was required that the 3 disciplinary measures imposed on Rikkiand Joseph constituted moderate or 4 reasonable physical force that was warrantedunder the parental discipline privilege. 5 “[U]nder the rule of fundamental error[,] reversal is required only when the 6 interests of justice so require.” Orosco , 113 N.M. at 785, 833 P.2d at 1151. In this 7 case, the State established that (1) Defendant confined Rikki and Joseph for up to a 8 week at a time, during which he denied th em food, water, and access to a toilet; and 9 (2) the methods used to bind them resulte d in permanent scarring. On appeal, 10 Defendant has failed to point to any ev idence that his conduct constituted a lawful 11 exercise of parental care for the purposes of discipline. Further, we see no evidence 12 in the record suggesting that Defendant was exercising moderate or reasonable 13 physical force when he confined Rikki and Joseph. As such, we conclude that the 14 record as to unlawfulness in this case was not disputed, and it was left to the jury to 15 fairly consider at what point Defendant ’s conduct in confin ing Rikki and Joseph 16 became unlawful so as to support his conviction for kidnapping. The interests of 17 justice are not violated in this case becau se Defendant failed to dispute the evidence 18 or the issue of lawfulness at trial. 1912 We recognize Defendant’s contention that the jury was presented with 1 testimony and evidence regarding Rikki’s credibility and her different version of the 2 events in question. This conflicting evid ence does not warrant re versal. We defer to 3 the fact finder’s decision when weighing any contradictory evidence and assessing the 4 credibility of the witnesses. See State v. Sosa , 2000-NMSC-036, ¶ 8, 129 N.M. 767, 5 14 P.3d 32 (stating that the “credibilityof witnesses is for the jury”); State v. Riggs , 6 114 N.M. 358, 362-63, 838 P.2d 975, 979-80 (1992) (stating that the jury determines 7 questions of credibility and the we ight to be given to evidence); State v. Sutphin , 107 8 N.M. 126, 130-31, 753 P.2d 1314, 1318-19 (1988) (“An appellate court does not 9 evaluate the evidence to determine whether some hypothesi s could be designed which 10 is consistent with a finding of innocence.”). 11 A reversal of Defendant’s conviction woul d not preserve the interests of justice 12 where no rational jury could have conc luded that Defendant committed the acts 13 underlying his kidnapping convic tions without also determining that those acts were 14 performed in an excessive or unjustifiable manner that went beyond the reasonable 15 bounds of lawful parental care and custodial discipline. See Orosco , 113 N.M. at 784, 16 833 P.2d at 1150 (“The [district] court’s erro r in failing to instruct on an essential 17 element of a crime for which defendant ha s been convicted, where there can be no 18 dispute that the element was established, therefore does not require reversal of the 1913 conviction.”). Therefore, fundamental erro r has not been established, and we do not 1 reverse Defendant’s kidnapping c onvictions despite the district court’s failure to give 2 a specific instruction on unlawfulness. Id. at 113 N.M. at 786, 833 P.2d at 1152 (“It 3 cannot be said that every failure to instru ct on an essential element necessarily renders 4 a trial fundamentally unfair. We are theref ore justified in examining the facts in each 5 case to determine whether the error in the instructions rose to the level of fundamental 6 error so as to justify reversal.”). In addition, the evidence of Defendant’s unlawful 7 confinement of Rikki and Joseph was sufficien tly established in the record at trial. 8 B. Double Jeopardy 9 We next address Defendant’s contention that his convictions for conspiracy to 10 commit kidnapping and conspiracy to commit intentional child abuse violate double 11 jeopardy protections because the evid ence at trial did not support separate 12 conspiratorial agreements to support more than one count of conspiracy. We review 13 the constitutional question of whether there has been a double jeopardy violation de 14

novo. State v. Andazola , 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77. This 15 includes double jeopardy challenges involvi ng multiple conspiracy charges. State v. 16 Gallegos , 2011-NMSC-027, ¶¶ 50-51, 149 N.M. 704, 254 P.3d 655. We note, 17 however, that where factual issues are intertwined with the double jeopardy analysis, 18 the factual determinations made during the trial are subject to a de ferential substantial 1914 evidence standard of review. State v. Rodriguez , 2006-NMSC-018, ¶ 3, 139 N.M. 1 450, 134 P.3d 737. 2 Defendant argues that double jeopardy wa s violated because he was charged 3 with multiple violations of the same statute based upon a single course of conduct. 4 See Gallegos , 2011-NMSC-027, ¶¶ 28-50 (recognizing th e unit of prosecution test for 5 multiple charges under the conspiracy statute); State v. DeGraff , 2006-NMSC-011, 6 ¶ 25, 139 N.M. 211, 131 P.3d 61 (holding that there are two types of double jeopardy 7 cases with regard to multiple punishments: (1) when a defendant is charged with 8 multiple violations of the same statute ba sed on a single course of conduct referred to 9 as “unit of prosecution” cases; and (2) when a defendant is charged with violations of 10 multiple statutes for the same conduct re ferred to as “double-description” cases 11 (internal quotation marks and citation omitted)). It is not disputed that we are dealing 12 with a unit of prosecution case. The St ate, however, responds that double jeopardy 13 was not violated because “[e]ach decisi on to bind and release Rikki and Joseph, 14 accompanied by decisions of how to bind them, where to bind them, how long they 15 should remain bound, whether to deny them food and water while bound, and whether 16 to bind them so tightly [that] injury was inescapable, constituted a distinct conspiracy 17 in pursuit of a distinct purpose[.]” Under th e facts of this case, we disagree with the 18 State. 1915 A unit of prosecution challenge uses a two- step inquiry. First, we ask whether 1 the unit of prosecution is clearly defined by the statute at issue and, second, whether 2 the charged acts were suffici ently distinct to justify multiple punishments under the 3

same statute. State v. Swick , 2012-NMSC-018, ¶ 33, 279 P.3d 747; State v. Stewart , 4 2005-NMCA-126, ¶ 13, 138 N.M. 500, 122 P.3d 1269. In this case, the first inquiry, 5 whether a unit of prosecution is clearly defined in NMSA 1978, Section 30-28-2 6 (1979), is not at issue. The only issue is whether the acts of conspiracy were 7 sufficiently distinct to justify multiple punishments under the same statute. State v. 8 Bahney , 2012-NMCA-039, ¶ 17, 274 P.3d 134 (stati ng that “if no legislative guidance 9 is apparent, [the court must determine] whether a defendant’s acts are separated by 10 sufficient indicia of distinctness to justify multiple punishments under the same 11 statute” (internal quotation marks and citation omitted)), cert. denied , 2012- 12 NMCERT-003, (No. 33,448, March 8, 2012). 13 Under Gallegos , we recognize that “the Legisl ature established what we will 14 call a rebuttable presumption that multiple crimes are the object of only one, 15 overarching, conspiratorial agreement subj ect to one, severe punishment set at the 16 highest crime conspired to be committed. ” 2011-NMSC-027, ¶ 55. Our Supreme 17 Court adopted “the totality of the circumstan ces test utilized by the federal circuits in 18 announcing the nature of evidence required to overcome the presumption.” Bahney , 1916 2012-NMCA-039, ¶ 17 (alternati on, internal quotation mark s, and citation omitted). 1 The federal test analyzes whether: 2 (a) the location of the two alleged c onspiracies is the same; (b) there is 3 a significant degree of temporal overlap between the two conspiracies 4 charged; (c) there is an overl ap of personnel between the two 5 conspiracies (including unindicted as well as indicted co-conspirators); 6 and (d) the overt acts charged and (e ) the role played by the defendant 7 in the alleged conspiracies are similar. 8 Gallegos , 2011-NMSC-027, ¶ 42 (alterations, internal quotation marks, and citation 9 omitted). Where a conspiracy involves a c ontinuing crime, it may last for years and 10 involve numerous substantive offenses th at end only when “the purposes of the 11 conspiracy have been accomplished or abandoned.” Id. ¶ 46 (internal quotation marks 12 and citation omitted). Thus, our first inquiry is to determine “theprecise nature and 13 extent” of the agreement between Defendant and Sarah Burton-Hepple that “embraces 14 and defines its object[ives].” Id. ¶ 37 (internal quotation marks and citation omitted). 15 The evidence in this case fails to rebut the presumption that Defendant and his 16 wife had one agreement to continuously bind and restrain Rikki and Joseph in an 17 excessive and unjustifiable manner. With re gard to the unlawful confinement of the 18 children, Defendant’s actions were an overlapping and continuous series of related 19 events. The fact that the confinement included two victims and occurred over a 20 significant period of time does not on its own rebut the singular conspiracy 21 presumption. Instead, each decision to bi nd and release Rikki and Joseph, as well as 2217 the accompanying decisions related to the details of confinement, occurred in pursuit 1 of a single parental objective, and cannot be meaningfully distinguished in a way that 2 would justify multiple conspiracies under the precedent established in Gallegos . We 3 therefore vacate Defendant’s conviction for conspiracy to commit intentional child 4 abuse because it was part of the singular conspiracy to excessively confine the 5 children that was also the basis for the mo re serious conspiracy to commit kidnapping 6 offense. 7 We next address Defendant ’s argument, pursuant to Franklinand Boyer , that 8 one of his convictions for kidnapping and his conviction for conspiracy to commit 9 kidnapping should be vacated on doubl e jeopardy unitary conduct grounds. 10 Defendant’s kidnapping convic tions involved two victims who suffered separate and 11 distinct harm, and do not violate double jeopardy. See State v. Bernal , 2006-NMSC12 050, ¶ 20, 140 N.M. 644, 146 P.3d 289; State v. Barr , 1999-NMCA-081, ¶ 18, 127 13 N.M. 504, 984 P.2d 185 (recognizing that the presence of multiple victims is the most 14 salient distinctness factor giving rise to mu ltiple offenses). Inaddition, Defendant’s 15 argument that his conspiracy conviction should have merged with the completed 16 offense is inconsistent with New Mexico law. See State v. Armijo , 90 N.M. 12, 15, 17 558 P.2d 1151, 1154 (Ct. App. 1976) . Defendant’s argument is without merit, and we 18 will not address it further. 1918 C. Sufficiency of the Evidence 1 We now address Defendant’s argument on appeal that there was not sufficient 2 evidence before the jury to support his convictions. In reviewing the sufficiency of 3 the evidence in a crimin al case, “we first view the evid ence in the light most favorable 4 to the state, resolving all conflicts and i ndulging all permissible inferences in favor of 5 the verdict.” Gallegos , 2011-NMSC-027 ¶ 15 (alterations, internal quotation marks, 6 and citations omitted). Then “we must determine whether substantial evidence, either 7 direct or circumstantial, exists to s upport a verdict of guilty beyond a reasonable doubt 8 for every element essential to a conviction.” State v. Jacobs , 2000-NMSC-026, ¶ 22, 9 129 N.M. 448, 10 P.3d 127; Gallegos , 2011-NMSC-027, ¶ 15. Appellate courts “do 10 not search for inferences supporting a contrary verdict or re-weigh the evidence.” 11 State v. Graham , 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285. We recognize 12 that the jury’s fundamental role is that of fact finder and that it is the “responsibility 13 of the courts to ensure the jury’s decisi ons are supportable by evidence in the record, 14 rather than mere guess or conjecture.” Gallegos , 2011-NMSC-027, ¶ 15 (internal 15 quotation marks and citation omitted). 16 With regard to Defendant’s claim thathis convictions were not supported by 17 sufficient evidence, we note that Defendant supports his argument by merely reciting 18 the elements of each convicted offense. Defendant does not further develop this 1919 argument by discussing the eviden ce presented at trial or its insufficiency to meet the 1 recited statutory elements. While this C ourt’s policy is to refrain from reviewing 2 “unclear or undeveloped arguments which require us to guess at what parties’ 3 arguments might be[,]” we note that in this case, the facts regarding the excessive 4 confinement of Rikki and Joseph were suffi ciently established in the record and 5 provide substantial evidence to support Defendant’s convictions. State v. Fuentes , 6 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181. 7 D. Expert Testimony 8 Defendant asks this Court to reverse his convictions and remand his case for 9 retrial because the district court allowed expert testimony regarding Joseph’s injuries 10 from Dr. Campbell, a forensic physician. Defendant asserts that Dr. Campbell’s 11 testimony was admitted in error because she was not trained or certified as a forensic 12 pathologist. The district court allowe d the testimony, findi ng that Defendant’s 13 concerns went to the weight of her te stimony rather than its admissibility, and 14 specifying that her testimony be couched in terms of medical probability. The 15 admission of expert testimony is within the sound discretion of the district court and, 16 absent an abuse of discretion, will not be reversed by this Court on appeal. State v. 17 Alberico , 116 N.M. 156, 169, 861 P.2d 192, 205 ( 1993). Rule 11-702 NMRA requires 18 three prerequisites for admission of expert te stimony: (1) the expert must be qualified; 1920 (2) the scientific evidence must assist the trier of fact; and (3) the expert may only 1 testify to “scientific, technical or other specialized knowledge.” Alberico , 116 N.M. 2 at 166, 861 P.2d at 202 (internal quot ation marks and citation omitted). 3 Dr. Campbell explained her training and e xperience as a forensic pediatrician 4 and child abuse expert before the district court recognized her as an expert witness. 5 Dr. Campbell explained that her training in cluded wound identification and that her 6 evaluations were of living children. She further explained that she was not trained or 7 certified as a forensic pathologist and that a forensic pathologist examines the dead, 8 rather than the living. Defendant has argued that Dr. Campbell did not have specific 9 training in evaluating wounds from a fore nsic pathology perspective. Again, 10 Defendant failed to elaborate or develop this argument regarding why Dr. Campbell’s 11 qualifications as a forensic pediatrician were insufficient to assist the jury in 12 determining the causes of Joseph’s injuri es or why the field of pathology was 13 necessary to qualify Dr. Campbell as an expert in forensic pedi atrics and general 14 medicine. Again, this Court does not re view unclear or undeveloped arguments. See 15 Fuentes , 2010-NMCA-027, ¶ 29. As such, we will not consider this argument further. 16 E. Remaining Claims of Error 17 Defendant raises several additional claims of error under Franklin , 78 N.M. at 18 129, 428 P.2d at 984 (advising appellate counsel to advan ce a defendant’s arguments 1921 even if their merits are questionable) and Boyer , 103 N.M. at 659, 712 P.2d at 5 1 (recognizing that an attorney should present a client’s contentions even if counsel has 2 no faith in them). Defendant raises challenges to the jury instructions, the special 3 verdict form, the district court’s failure to grant Defendant’s reque st for a continuance, 4 and finally he argues that his verdicts were inconsistent. We have considered 5 Defendant’s remaining arguments and agree with the State regarding each of these 6 issues. We determine that Defendant’s remaining arguments are without merit and 7 find it unnecessary to disc uss them further. See State v. Telles , 2011-NMCA-083, ¶ 8 25, 150 N.M. 465, 261 P.3d 1097. 9 CONCLUSION 10 For the foregoing reasons, we reverse Defendant’s conviction for conspiracy 11 to commit intentional child abuse and affirm Defendant’s convictions for kidnapping 12 and conspiracy to commit kidnapping. We remand this matter to the district court for 13 dismissal of the conspiracy to commit intentional child abuse and for any further 14 proceedings that are necessaryto effectuate our decision. 15 IT IS SO ORDERED. 16

___________________________________ 17 TIMOTHY L. GARCIA, Judge 18

WE CONCUR: 1922 ____________________________________ 1 RODERICK T. KENNEDY, Chief Judge 2

____________________________________ 3 MICHAEL E. VIGIL, Judge 4