This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court and does not include the filing date. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Filing Date: November 7, 2013 2 STATE OF NEW MEXICO , 3 Plaintiff-Appellee, 4

v. NO. 33,480 5 LOUIS BENAVIDEZ , 6 Defendant-Appellant. 7

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 8 Eugenio S. Mathis, District Judge 9 Bennett J. Baur, Acting Chief Public Defender 10 B. Douglas Wood, III, Assi stant Appellate Defender 11 Santa Fe, NM 12 for Appellant 13 Gary K. King, Attorney General 14 Yvonne Marie Chicoine, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 DECISION 18 VIGIL, Justice. 192 {1} On September 25, 2009, Louis Benavidez (Defendant) drove to the home of 1 Kevin Duran (Victim) with a gun, called Vic tim outside, and shot him twice, once in 2 the abdomen at point-blank range and once in the back as Victim fled, killing him. A 3 jury convicted Defendant of first-degree murder and tampering with evidence. On 4 appeal, Defendant argues that insufficient evidence supports his convictions and that 5 the district court abused its discretion, both by failing to remedy two instances of 6 alleged jury contamination and by admitting into evidence Victim’s statement 7 identifying Defendant as the shooter. 8 {2} We affirm Defendant’s first-degree murder conviction but hold that 9 Defendant’s tampering with evidence convi ction must be reversed because it is 10 unsupported by sufficient evidence. Defendant’s remaining arguments lack merit. We 11 dispose of Defendant’s appeal by this non-precedential decision because settled New 12 Mexico law resolves the issues raised. See Rule 12-405(B)(1) NMRA. 13 I. BACKGROUND 14 {3} The following account of the events that occurred before, during, and after the 15 shooting is derived from the evidence presented at trial. 16 {4} In September 2009, Victim lived in Las Vegas, New Mexico with his girlfriend 17 Amy and her six children, including her si xteen-year old son Marco. On September 18 23, 2009, two days before the shooting in this case, Defendant and Marco had a fight 193 after someone alleged that Defendant had stolen property from the house where 1 Victim, Amy, and Marco lived. The fight occurred at the house where Defendant’s 2 cousin Adan lived with his wife Colleen , about one block away from Victim’s house. 3 Marco gave Defendant a black eye during the confrontation. 4 {5} Two days later, on the morning of September 25, 2009, Defendant went to the 5 hospital where his former girlfriend Tammy worked, seeking to resume their romantic 6 relationship. Defendant told Tammy thathe had received the black eye in a car 7 accident. Tammy asked Defendant to leave the hospital because she was busy 8 working, and Defendant left . Defendant did not abandon hi s attempt to reconcile with 9 Tammy, however, and he called her that ev ening around 7:30 p.m. after she got off 10 work. Tammy agreed to meetwith Defendant, and they talked outside Defendant’s 11 mother’s house for about half an hour before Tammy went home. 12 {6} After meeting with Tammy, Defendant went to visit Adan and Colleen, arriving 13 between 8:30 p.m. and 8:45 p.m. Defendant’s nephew wa s there, and he goaded 14 Defendant about the black eye, repeatedly asking, “You gonna let that little punk get 15 away with that?” Defendant pu lled a revolver out of a black bag, pointed it at the front 16 door, and walked out of the house, saying he would “be right back.” About ten 17 minutes later, Colleen heard gunshots. 18 {7} Meanwhile, Victim and Amy were sp ending the evening of September 25, 194 2009, packing and moving to a new house withthe help of Marco and two of his 1 friends when Defendant arrived in his wh ite Chevrolet Cavalier at about 9:00 p.m. 2 Marco, who had been cleaning out his room, saw Defendant’s car outside and, 3 anticipating trouble, went to the kitchen and told his moth er that Defendant was there. 4 {8} At the other end of the house, Amy and Victim also saw Defendant arrive. 5 Victim asked Amy who was outside in the white Cavalier, but at that point Amy did 6 not know. Then Amy heard Defendant say, “Primo, come here ,” through an open 7 window. Victim responded, “It’s my primo, Louie,” and he went outside. 8 {9} One of Marco’s friends observed the ex change between Vi ctim and Defendant 9 from inside the house. He saw Victim walk over to Defendant’s car, lean against the 10 frame of the open driver’s side window, and talk to the driver and to Defendant, who 11 was seated in the front passenger seat. S uddenly, Defendant reached across the driver 12 and shot Victim. Victim turn ed away, but Defendant kept shooting as Victim ran up 13 the stairs and back inside the house. 14 {10} Consistent with this testimony, the physi cal evidence at trial demonstrated that 15 Victim was shot twice with pistol ammunition. One bullet entered Victim’s abdomen, 16 hit his liver, and exited his right lower back. A wide area of gunpowder stippling 17 surrounding the entry wound indicated that Vic tim had been shot at close range, from 18 between a few inches to two feet away. A second bullet entered Victim’s right upper 195 back, passed through his right lung, and exited his right shoulder, causing fatal 1 injuries. The injuries Victim suffered fro m this second bullet indicated that Victim 2 may have been shot from behind as he ran, hunched over, away from his attacker, 3 consistent with the account given by Marco’s friend who observed the shooting. 4 {11} Marco, who had remained inside the house near the front door for about five 5 minutes while Victim was outside talking to Defendant, heard gunfire and saw a flash. 6 Worried that Defendant would come after him next, Marco jumped out a window and 7 hid. 8 {12} Amy also heard gunfire and went into th e kitchen, arriving as Victim ran back 9 inside. Amy testified at trial that Victim fell into Amy’s arms and said, “Babe, help 10 me please. Help me babe. Louie just s hot me.” Amy was unable to hold Victim up, 11 and he collapsed on the ground. 12 {13} Marco saw Defendant’s car leave and went back into the house, where he saw 13 Victim laying on the floor, bleeding and unable to talk, with his eyes rolled back and 14 his mouth open. Amy noticed that Victim had stopped breathing, and she called 911, 15 but no one responded. Amy and Marco picked up Victim, carried him to the car, and 16 brought him to the hospital. Medical personne l at the hospital were unable to revive 17 Victim and reported his death to law enforcement at approximately 9:20 p.m. 18 {14} After the shooting, Defendant again s ought out Tammy, this time at her house 196 in Montezuma, New Mexico, about five mile s north of Las Vegas. Defendant arrived 1 at Tammy’s house at about 9:30 p.m. and asked Tammy to let him in, telling her, 2 “They just beat me up.” Tammy, however, thought that Defendant appeared nervous 3 and “not himself,” and she refused to let Defendant in. Speaking through an exterior 4 storm door at her home, Tammy told Defendant, “You look like the [ ] devil’s inside 5 of you.” Defendant left about five minutes after he arrived. Tammy, feeling afraid, 6 called her co-workers at the hospital but was unable to reach anyone. At 9:43 p.m., 7 Tammy sent the following text message toa friend: “Friend loui showed up @ my 8 house all [messed] up I didnt let him in but I am afraid hell come back thank u for 9 your prayers day I am scared.” 10 {15} Around 10:20 p.m., a police officer, who had been alerted by radio that a 11 homicide suspect driving a white Cavalier might be traveling toward Albuquerque, 12 spotted Defendant’s car heading southbound from Las Vegas on I-25 near milepost 13 312. The officer followed Defendant’s vehi cle while waiting for backup to arrive. 14 Defendant continued driving at speeds of up to ninety miles per hour, likely aware that 15 he was being followed by police. Approximately ten minutes later, officers arrested 16 Defendant at milepost 293, about fifty-fivemiles south of Las Vegas. Police never 17 recovered the gun used in the shooting. 18 {16} On December 7, 2009, Defendant was charged by criminal information with an 197 open count of murder and tampering with evidence, along with two other charges that 1 were severed prior to trial and dismissed after trial. 2 {17} While incarcerated awaiting trial, Defendant spoke to three trial witnesses about 3 the murder. First, on July 27, 2010, Defendant spoke to Victim’s brother, who was 4 being held at the same detention center as Defendant, and asked him, “Did you see 5 how I put the hole in your [brother]?” 6 {18} Then, on May 10, 2011, three weeks beforeDefendant’s trial setting of May 31, 7 2011, Defendant entered the visiting area of the detention center while his cousin 8 Adan, who was also incarcerated, was speaking with his wife Colleen. Defendant took 9 the phone from Adan and told Colleen, “Hey, the thirty-first is that thing . . . be 10 down.” Colleen interpreted this to mean th at she should not say anything at the trial 11 that might be detrimental to him. 12 {19} Finally, Defendant’s sister spoke withDefendant on the phone while he was 13 incarcerated, a day or two before she testified on his behalf at trial. Defendant’s sister, 14 who lived in Albuquerque, testified that Defendant visited her there “many, many 15 times” and that it was never “too late” for a visit. 16 {20} Defendant’s case was set for jury trial starting May 31, 2011, but the district 17 court was unable to sit a jury and declared a mistrial. Defendant’s five-day jury trial 18 ultimately began on November 28, 2011. The jury found Defendant guilty of first- 198 degree murder and tampering with evidence. The district court sentenced Defendant 1 to a life sentence for the offens e of first-degree murder plus three years for the offense 2 of tampering with evidence, to be servedconsecutively. Defendant appealed directly 3 to this Court. SeeN.M. Const. art. VI, § 2; Rule 12-102(A)(1) NMRA. 4 II. DISCUSSION 5 A. Sufficiency of the Evidence 6 {21} Defendant’s primary argument on appeal is that the State presented insufficient 7 evidence at trial to support his convictions for first-degree murder and tampering with 8 evidence. “The test for sufficiency of th e evidence is whether substantial evidence of 9 either a direct or circumstantial nature exists to support a verdict of guilt beyond a 10 reasonable doubt with respect to every element essential to a conviction.” State v. 11 Duran , 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks 12 and citation omitted). Evidence is substantial if a reasonable mind would accept it “as 13 adequate support for a conclusion.” State v. Flores , 2010-NMSC-002, ¶ 2, 147 N.M. 14 542, 226 P.3d 641 (internal quotation marks and citation omitted). In reviewing the 15 sufficiency of the evidence on appeal, this Court “must vi ew the evidence in the light 16 most favorable to the guilty verdict, indul ging all reasonable inferences and resolving 17 all conflicts in the evidence in favor of the verdict.” Id. (internal quotation marks and 18 citation omitted). In doing so, we c onsider whether “a rational jury could have found 199 beyond a reasonable doubt the essential facts required for a conviction.” Id. ¶ 3 1 (internal quotation marks and citation omitted). When evaluating whether the jury 2 could have found these essential facts, we consider the totality of the circumstances, 3 including the defendant’s conduct before, during, and after the commission of an 4 offense. See id. ¶¶ 17, 23-24. 5 1. Defendant’s First-Degree Murder Conviction Is Supported by Sufficient 6 Evidence 7 {22} Defendant argues that the evidence at trial was insufficient to support a first8 degree murder conviction. The jury was in structed that, in order to find Defendant 9 guilty of first-degree murder, it had to find that the State proved the following 10 elements beyond a reasonable doubt: (1) De fendant killed Vic tim, (2) “with the 11 deliberate intention to take away” Victim ’s life, (3) on or about September 25, 2009. 12 See UJI 14-201 NMRA. 13 {23} Defendant argues that the State failed to present sufficient evidence to prove 14 that Defendant possessed the requisite intent to commit first-degree murder. Under 15 New Mexico law, “any kind of willful, delib erate and premeditated killing” constitutes 16 first-degree murder. NMSA 1978, § 30-2-1(A)(1) (1994). The State may prove 17 deliberate intent using circumstantial evidence alone. See Flores , 2010-NMSC-002, 18 ¶ 19. The jury usually must infer deliberate intent “from other facts in the case.” Id. 1910 (internal quotation marks and c itation omitted). The district court in this case gave the 1 jury the following uniform jury instruction on willful and deliberate murder: 2 A deliberate intention refers to th e state of mind of the defendant. 3 A deliberate intention may be in ferred from all of the facts and 4 circumstances of the killing. The wo rd deliberate means arrived at or 5 determined upon as a result of careful thought and the weighing of the 6 consideration for and against the propos ed course of action. A calculated 7 judgment and decision may be arrived at in a short period of time. A 8 mere unconsidered and rash impulse , even though it includes an intent 9 to kill, is not a deliberate intenti on to kill. To constitute a deliberate 10 killing, the slayer must weigh and c onsider the question of killing and his 11 reasons for and against such a choice. 12 UJI 14-201. 13 {24} The State presented an abundance of evidence in this case from which the jury 14 could have found that Defendant possessed a deliberate intenti on to kill. First, the jury 15 could have inferred deliberate intent from witness testimony that Defendant displayed 16 a gun at Adan and Colleen’s house before driving to Victim’s home, calling Victim 17 outside, and shooting him. See State v. Salazar , 1997-NMSC-044, ¶ 46, 123 N.M. 18 778, 945 P.2d 996 (discussing the facts that de fendant pursued the victim, pointed the 19 gun, and shot the victim, together constitute d direct evidence of deliberate intention). 20 {25} Additionally, witness testimony establishe d that, after Victim voluntarily went 21 outside and engaged Defendant in conversation, De fendant suddenly reached across 22 the driver and shot Victim at point-blank range. Defendant then shot Victim again 2311 after he turned and tried to escape. The physical evidence of Victim’s wounds 1 indicated that Victim was shot once in th e abdomen at close range and again in the 2 back from farther away, consistent with the State’s theory that Victim was shot from 3 behind as he ran, hunched over, away from his attacker. A reasonable jury could have 4 found deliberate intent from these facts. See State v. Guerra , 2012-NMSC-027, ¶ 29, 5 284 P.3d 1076 (explaining that continuing an attack on a defenseless victim 6 demonstrates deliberate intent); State v. Riley , 2010-NMSC-005, ¶ 20, 147 N.M. 557, 7 226 P.3d 656 (holding that a reasonable jury could find deliberate intent where the 8 defendant fired two shots from less than four inches from the victim’s body, then shot 9 the victim again as he was trying to escape), overruled on other grounds by State v. 10 Montoya , 2013-NMSC-020, ¶ 2, 306 P.3d 426; State v. Garcia , 1980-NMSC-141, ¶ 11 4, 95 N.M. 260, 620 P.2d 1285 (concluding that the jury’s finding of deliberate intent 12 was reasonable where the defendant was the aggressor and the victim tried to run 13 away before the fatal shot). 14 {26} Additionally, the jury could have inferred deliberate intent from Defendant’s 15 demeanor and conduct after the killing. Defendant’s appearance after the killing 16 scared Tammy so muchthat she reached out to co-workers and asked a friend to pray 17 for her. Then, Defendant le ft Las Vegas and drove south at speeds of up to ninety 18 miles per hour while being followed by poli ce. From these facts, a reasonable jury 1912 could have found that Defendant fled the scene of the crime and attempted to evade 1 the police, an inference that Defendant trie d to rebut through his sister’s testimony that 2 Defendant was always welcome at her house, regardless of the time of day. See 3 Flores , 2010-NMSC-002, ¶¶ 22-23 (explaining that fleeing the scene and trying to 4 evade authorities indicate a consciousness of guilt from which a jury may infer 5 deliberate intent). 6 {27} The statements Defendant made whileincarcerated awaiting trial provided 7 additional evidence of Defendant’s lack of remorse and consciousness of guilt. 8 Defendant bragged to Victim’s brother about committing the crime, asking, “Did you 9 see how I put the hole in your [brother]?” See Guerra , 2012-NMSC-027, ¶ 29 10 (concluding that the jury could have inferred deliberate intent from defendant’s lack 11 of remorse for the killing); State v. Roper , 2001-NMCA-093, ¶ 9, 131 N.M. 189, 34 12 P.3d 133 (explaining that bragging about the killing evidenced the defendant’s guilt). 13 Then, three weeks before the May 31, 2011, trial setting, Defendant instructed the 14 State’s witness Colleen to “be down” on the day of trial, ostensibly encouraging her 15 to refrain from saying anything that might hurt Defendant’s case. 16 {28} Based on the totality of th e evidence presented at trial, including the physical 17 evidence and Defendant’s conduct before, duri ng, and after the shooting, we conclude 18 that a reasonable jury could have found thatthe State proved the elements of first- 1913 degree murder beyond a reasonable doubt, incl uding the element of deliberate intent, 1 and we affirm Defendant’s first-degree murder conviction. 2 2. Defendant’s Tampering With Evi dence Conviction Is Not Supported by 3 Sufficient Evidence and Must Be Vacated 4 {29} Defendant argues that the evidence at trial was insufficient to support his 5 tampering with evidence conviction. The St ate concedes that Defendant’s tampering 6 with evidence conviction is not supported by sufficient evidence and should be 7 vacated. Although we need not accept the State’s concession as conclusive, see 8 Guerra , 2012-NMSC-027, ¶ 9, we agree for the reasons that follow. 9 {30} In order for the jury to convict Defendant of tampering with evidence, the State 10 had to prove beyond a reasonable doubt that De fendant (1) “hid the gun”; (2) with the 11 intention of preventing his “apprehension, prosecution, or conviction”; (3) on or about 12 September 25, 2009. See NMSA 1978, § 30-22-5(A) (2003); UJI 14-2241 NMRA. To 13 meet this burden of proof, the State cannot mere ly ask “the jury to infer that an overt, 14 intentional act of hiding the weapon [has] taken place based solely on the fact that the 15 police never found the weapon.” Guerra , 2012-NMSC-027 ¶ 16; see also State v. 16 Silva , 2008-NMSC-051, ¶ 19, 144 N.M. 815, 192 P.3d 1192 (rejecting the State’s 17 argument that the defendant’s “possession of a gun and the police’s inability to find 18 the gun used in the murder constitutes su fficient evidence of [the defendant’s] 1914 tampering”); Duran , 2006-NMSC-035, ¶ 15 (reversing a tampering conviction 1 because the State asked the jury“to speculate that an overt act of destroying or hiding 2 the knife and possibly blood stained clothing had taken place, base d solely on the fact 3 that such evidence was never found”). “[ A]bsent either direct evidence of a 4 defendant’s specific intent to tamper or evidence from which the factfinder may infer 5 such intent, the evidence cannot support a tampering conviction.” Guerra , 6 2012-NMSC-027, ¶ 14 (internal quotation marks and citation omitted). 7 {31} In this case, as in Guerra , Silva , and Duran , police never recovered the murder 8 weapon. Other than the fact that the gun Defendant used to shoot Victim was never 9 located, the State presented no direct or circumstantial eviden ce from which the jury 10 could have found that Defendant hid the gun with the specific intent to prevent his 11 apprehension, prosecution, or conviction. A ccordingly, we conclude that the evidence 12 at trial was insufficient as a matter of law to support Defendant’s tampering with 13 evidence conviction and hold that the conviction must be vacated. 14 B. Alleged Jury Contamination 15 {32} Defendant asserts that two instances of jury contamination deprived him of the 16 right to a fair and impartial jury. See State v. Sanchez , 1954-NMSC-010, ¶ 14, 58 17 N.M. 77, 265 P.2d 684 (“[T]he right to trial by a fair and impartial jury is a 18 fundamental right of the accused.”). More specifically, Defendant contends that the 1915 district court erred by denying his motion for a mistrial and that, at a minimum, the 1 district court should have conducted indivi dual voir dire of the jurors following two 2 situations that arose during the course of trial. 3 {33} The State argues that the district court responded appropriate ly to both alleged 4 instances of jury contamination by giving the jury curative instructions. A district 5 court has “considerable discretion and a variety of remedies to address allegations of 6 juror bias, including individual voir dire, curative instructions, and if necessary 7 dismissal of an affected juror for cause.” State v. Gallegos , 2009-NMSC-017, ¶ 29, 8 146 N.M. 88, 206 P.3d 993. A mistri al is an extreme remedy, State v. Allison , 2000- 9 NMSC-027, ¶ 23, 129 N.M. 566, 11 P.3d 141, and “[c]ourts rarely grant a motion for 10 mistrial based on mere equivocal evidence of possible juror bias or prejudice, even 11 with the potential to negatively impact a trial.” Gallegos , 2009-NMSC-017, ¶ 28. 12 {34} On appeal, we consider whether the district court abused its discretion when it 13 declined either to declare a mistrial or to conduct individual voir dire of the jurors and 14 whether the instances of alleged juror c ontamination “unfairly affected the jury’s 15 deliberative process.” See Montoya , 2013-NMSC-020, ¶ 62 (internal quotation marks 16 and citation omitted); see also State v. Swick , 2012-NMSC-018, ¶ 68, 279 P.3d 747 17 (stating that the district court’s denial of a mistrial is reviewed for abuse of discretion); 18 Gallegos , 2009-NMSC-017, ¶ 24 (recognizing that the district court’s discretion to 1916 conduct individual voir dire in instances of alleged juror bias is “limited only by the 1 essential demands of fairness” (internal quotation marks and citation omitted)). 2 1. The District Court Did Not Abuse Its Discretion When It Denied Defendant’s 3 Motion for a Mistrial and Declined to Voir Dire a Juror After the Juror May 4 Have Seen Defendant in Shackles 5 {35} Defendant asks this Court to grant him a new trial because one juror “possibly 6 saw” Defendant in prisoner restraints as he was boarding a transport van after the 7 court had recessed for the day on November 30, 2011. De fense counsel learned about 8 this incident the next day and brought it to the attention of the district court. 9 {36} After defense counsel raised the issu e, the officer who had transported 10 Defendant explained to the district c ourt what had happened. Before allowing 11 Defendant to board the transport van, the officer had shackled Defendant, then 12 checked the video monitors and looked around to ensure that no one was present. 13 Having seen no one, the officer opened the door s to van. However, as Defendant was 14 climbing into the van, one of the jurors came around the corner and walked between 15 the van and the building. The juror was al one and talking on her cell phone when she 16 walked by. The juror nodded to the officeras she passed. The officer was not sure 17 whether the juror had seen Defendant. 18 {37} After the district court heard the tran sport officer’s account of the incident, 19 Defendant moved for a mistrial, arguing that the juror’s observation of Defendant in 2017 shackles was per se prejudicial and would constitute reversible error on appeal. The 1 court denied Defendant’s motion on the ground that the jury already had heard 2 evidence demonstrating that Defendant was incarcerated, including testimony from 3 three witnesses who had spoken with Defendant while he was incarcerated awaiting 4 trial. Without referencing the incident, th e trial court reminded the jurors of their 5 obligation to leave the court immediately af ter being excused for the day in order to 6 avoid inappropriate inter actions with the parties. 7 {38} On appeal, Defendant contends that th e district court erred by not granting a 8 mistrial and that, even if a mistrial was not the appropriate remedy, the district court 9 should have asked the juror what she had seen and whether it had affected her 10 impartiality. 11 {39} Generally, “a prisoner coming into court for trial is entitled to make his 12 appearance free of shackles or bonds.” State v. Holly , 2009-NMSC-004, ¶ 41, 145 13 N.M. 513, 201 P.3d 844 (internal quotation marks and citation omitted); see also Rule 14 5-115(C) NMRA (“Except by order of the court, the defendant may not appear before 15 the jury in any visible restraint devices, including handcuffs, chains or stun belts, a 16 visible bullet proof vest or any other item which, if visible to the jury, would prejudice 17 the defendant in the eyes of the jury.”). However, a defe ndant’s right to appear free 18 of visible restraints is not absolute. State v. Johnson , 2010-NMSC-016, ¶ 26, 148 1918 N.M. 50, 229 P.3d 523. It must bebalanced against the state’ s interest in maintaining 1 security. State v. Gomez , 1971-NMCA-009, ¶¶ 2-7, 82 N.M. 333, 481 P.2d 412 2 (upholding the district court’s denial of mistrial where jurors had viewed the 3 defendant in handcuffs only as safety requirements demande d, “prior to the beginning 4 of trial and during recess”). In this case, the transport officer shackled Defendant for 5 the purpose of transporting him to the deten tion facility and carefu lly checked the area 6 to ensure that no one was present before allowing Defendant to board the transport 7 van, striking a reasonable balance between safety concerns and the need to prevent 8 any jurors from seeing Defendant. 9 {40} Moreover, this Court has held that a juror’s “inadvertent or insignificant 10 exposure to a defendant in shackles is not su fficiently prejudicial to merit a new trial.” 11 See Holly , 2009-NMSC-004, ¶ 41. In Holly , a situation arose at trial that was similar 12 to the incident in this case. “On the evening of the first day of trial, one member of the 13 jury mayhave seen [the defendant] in handcu ffs as he was escorted back to the 14 detention facility.” Id. ¶ 40 (emphasis added). Rather than calling attention to the 15 incident by questioning the jurors, the distri ct court chose to remedy the situation by 16 repeating the general jury instructions to the jurors. Id. On appeal, this Court 17 concluded that the incident did not cons titute fundamental erro r because “it [was] 18 unclear whether any exposure actually occurred, or if it did, that it was anything more 1919 than inadvertent or insignificant exposure.” Id. ¶ 42 (internal quotation marks and 1 citation omitted). 2 {41} Additionally, New Mexico cases have held that the potential for prejudice 3 caused by a juror’s inadvertent exposure to a defendant in restraints is minimal when 4 the evidence at trial has shown that the defendant is incarcerated. For example, in 5 State v. Mills , 1980-NMCA-005, ¶ 15, 94 N.M. 17, 606 P.2d 1111, at least one juror 6 viewed the defendant in handcuffs while a bailiff was escorting the defendant from 7 the courtroom during a noon recess. The defe ndant moved for a mistrial, arguing that 8 the incident deprived him of a fair trial. Id. The bailiff explained to the district court 9 that he had waited with the defendant “for the time normally required for the departure 10 of jurors,” and “that the view occurred b ecause some jurors had used the restroom 11 before departing.” Id. ¶ 16. The district court ruled that the juror’s observation of 12 defendant in handcuffs was inadvertent and denied the defendant’s motion for a 13 mistrial, reasoning that “any improprietyresulting from the view was harmless” 14 because the evidence at trial showed that the defendant was incarcerated. Id. ¶¶ 16-17. 15 The Court of Appeals affirmed the district court. Id. ¶ 17. 16 {42} In this case, as in Holly , it is not clear whether the juror even noticed Defendant 17 as she passed by the transport van while talking on her cell phone. To the extent that 18 the juror may have seen Defendant, an y exposure was inadvertent and occurred 1920 outside the courtroom. And, as in Mills , the jury had already heard evidence at trial 1 indicating that Defendant was incarcerated. Weconclude that the district court acted 2 within its discretion when it chose to repeat the general jury instructions to the jury, 3 rather than calling additional attention to the incident by questioning the juror, and we 4 hold that the district court did not abus e its discretion by denyi ng Defendant’s motion 5 for a mistrial. 6 2. The District Court Did Not Abuse Its Discretion When It Denied Defendant’s 7 Request to Question the Jurors Regar ding an Unsolicited Remark Made by 8 a Witness After Leaving the Witness Stand 9 {43} At trial on December 1, 2011, defense counsel informed the district court that 10 a witness had made an audible comment while passing by the jury box after leaving 11 the witness stand the previous day. The reco rd reflects three different versions of the 12 witness’s remark: (1) Defendant thought the witness said, “They killed my family”; 13 (2) the bailiff thought the witn ess said something about needing to get back to his 14 family; and (3) the district judge thought he heard the witness say, “Why would they 15 do that to my family?” 16 {44} To remedy the situation, defense counselasked the court to question the jurors 17 to determine what, if anything, they had heard. Instead, to avoid drawing unnecessary 18 attention to anything the wi tness had said, the districtcourt denied Defendant’s 19 request and instructed the jurors to disreg ard anything the witness said after leaving 2021 the witness stand. 1 {45} We conclude that the district court’s curative instruction to the jury was a 2 proper, adequate remedy under the circumst ances. As explained above, the district 3 court has wide discretion to determine how best to addre ss instances of potential juror 4 contamination. See Gallegos , 2009-NMSC-017, ¶ 29. When determining which course 5 of action to take, a district court may di stinguish “between inadvertent remarks made 6 by a witness . . . and similar testimony intentionally elicited by the prosecutor.” State 7 v. Fry , 2006-NMSC-001, ¶ 53, 138 N.M. 700, 126 P.3d 516 (internal quotation marks 8 and citation omitted). Where a witness had made an unsolicited remark, the district 9 court can cure any prejudicial effect by giving the jury a curative instruction. Id. ; see 10 also Callaway v. State , 1990-NMSC-010, ¶¶ 5, 8, 109 N.M. 416, 785 P.2d 1035 11 (explaining that the district court should have admonished the jury to disregard a 12 witness’s unsolicited statement, rather than declaring a mistrial). 13 {46} The witness’s remark in this case wa s neither solicited by the parties nor 14 inherently prejudicial. We hold that the district court did not abuse its discretion when 15 it declined to question the jurors and insteadinstructed the jury to disregard anything 16 the witness said after leaving the witness stand. 17 C. Admission of Victim’s Statement Identifying Defendant as the Shooter 18 {47} Defendant asserts that Victim’s statement identifying Defendant as the shooter 1922 was inadmissible hearsay and argues that th e district court erred by allowing Amy to 1 testify about the statement at trial. De fendant filed a pretrial motion in May 2011 2 seeking to preclude the admission of the statement, but the district court denied the 3 motion and permitted the testimony at trial. 4 {48} “Hearsay consists of an out-of-court statement offered to prove the truth of the 5 matter asserted, and is inadmissible as s ubstantive evidence unless it falls within an 6 exclusion or exception to the hearsay rule.” State v. Largo , 2012-NMSC-015, ¶ 24, 7 278 P.3d 532 (internal quotation marks and citation omitted); accord Rule 11-801(C) 8 NMRA. “We review the admission of ev idence pursuant to an exception or an 9 exclusion to the hearsay rule under an abus e of discretion standard by which deference 10 is given to the district court’s ruling.” Largo , 2012-NMSC-015, ¶ 22. 11 1. Victim’s Statement Was Admissible Under the Dying Declaration Exception 12 to the Hearsay Rule 13 {49} The State argues that Victim’s out-of-c ourt statement identifying Defendant as 14 the shooter was admissible as a dying declaration under Rule 11-804(B)(2) NMRA. 15 Under Rule 11-804(B)(2), a declarant’s st atement made while “under the belief of 16 imminent death” regarding the “cause or circumstances” of the declarant’s death is 17 admissible “if the declarant is unavailabl e as a witness.” The party seeking to 18 introduce a statement as a dyi ng declaration must show “that the declarant made the 1923 statement while conscious and under the realization that death was approaching.” 1 Largo , 2012-NMSC-015, ¶ 26. 2 {50} Defendant argues that the facts do not support a finding that Victim believed 3 his death was imminent at th e time Victim made the statement. We disagree. “[I]f it 4 can reasonably be inferred from the state of the wound or the state of the illness that 5 the dying person was aware of his [or her] danger, then the requirement of impending 6 death is met.” Id. (second alternation in original ) (internal quotation marks and 7 citation omitted). In this case, Victim ran into the house immediately after being shot 8 twice and cried out, “Babe, helpme please. Help me babe. Louie just shot me.” After 9 speaking these words, Victim stopped talking, collapsed on the floor, and stopped 10 breathing. Within about twenty minutes, hospital personnel reported Victim’s death 11 to law enforcement. Under thes e circumstances, we conclude that the district court did 12 not abuse its discretion by finding that Victim was aware of his imminent death, and 13 we hold that Victim’s statement wa s admissible as a dying declaration. 14 2. Victim’s Statement Was Admissible Under the Excited Utterance Exception 15 to the Hearsay Rule 16 {51} The State argues that Victim’s statemen t regarding the identity of his attacker 17 was also admissible under the excited utterance exception to the hearsay rule. An 18 excited utterance is “[a] statement relating to a startling event or condition, made 1924 while the declarant was under the stress or excitement that it caused.” Rule 11-803(2) 1 NMRA. “[I]n order to constitute an exc ited utterance, the declaration should be 2 spontaneous, made before there is time fo r fabrication, and made under the stress of 3 the moment.” State v. Macias , 2009-NMSC-028, ¶ 31, 146 N.M. 378, 210 P.3d 804 4 (internal quotation mark s and citation omitted), overruled on other grounds by State 5 v. Tollardo , 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. When considering whether a 6 statement constitutes an excited utterance under Rule 11-803(2), this Court considers 7 the totality of the circumstances, including how much time passed 8 between the startling event and the statement, and whether, in that time, 9 the declarant had an opportunity for reflection and fabrication; how 10 much pain, confusion, nervousness, oremotional strife the declarant was 11 experiencing at the time of the st atement; whether the statement was 12 self-serving[; and whether the statement was] made in response to an 13 inquiry. 14 Flores , 2010-NMSC-002, ¶ 49 (alteration in original) (internal quotation marks and 15 citation omitted). 16 {52} In this case, Victim voluntarily went out side to talk to his “primo, Louie” and 17 was engaging Defendant in conversation wh en Defendant suddenly shot him twice, 18 causing fatal injuries. Victim identified Defendant as the shooter immediately after 19 this startling event, without time for reflec tion or fabrication. Given the gravity of 20 Victim’s wounds, Victim probably was e xperiencing pain and confusion when he 21 made the statement. We c onclude based on the totality of the circumstances that 2225 Victim’s statement was admissible under the excited utterance exception to the 1 hearsay rule, in addition to the dying declar ation exception to the hearsay rule, and we 2 hold that the district court did not abuse its discretion by admitting the statement. 3 III. CONCLUSION 4 {53} We conclude that sufficient evidence s upports Defendant’s conviction for first5 degree murder, and we affirm that convicti on. However, the State failed as a matter 6 of law to present sufficien t evidence to support Defendant’s conviction for tampering 7 with evidence, and accordingly, we remand to the district court to vacate that 8 conviction. We reject Defendant’s remaining arguments, regarding alleged jury 9 contamination and the admission of evidence, as devoid of merit. 10 {54} IT IS SO ORDERED. 11

______________________________ 12 BARBARA J. VIGIL, Justice 13

WE CONCUR: 14

___________________________________ 15 PETRA JIMENEZ MAES, Chief Justice 1626 ___________________________________ 1 RICHARD C. BOSSON, Justice 2

___________________________________ 3 EDWARD L. CHÁVEZ, Justice 4

___________________________________ 5 CHARLES W. DANIELS, Justice 6