1

Certiorari Denied, December 4, 2013, No. 34,389

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-007

Filing Date: October 7, 2013

Docket No. 31,874

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ISRAEL HERRERA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY

Charles C. Currier, District Judge

Gary K. King, Attorney General

Ann M. Harvey, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender

Karl Erich Martell, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

KENNEDY, Chief Judge.

{1} Israel Herrera (Defendant) raises a number of challenges to his convictions for

second-degree murder and third-degree tampering with evidence. Defendant’s most

substantive argument is his contention that his conviction for third-degree tampering with

evidence violated his constitutional rights to due process and trial by jury because the jury

was not instructed that it must find that the evidence Defendant tampered with related to a
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capital, first- or second-degree crime, which is an essential element of the crime of thirddegree tampering. However, Defendant failed to preserve this claim of error, and we

conclude the error was not fundamental where it was undisputed that the evidence he

tampered with related to the second-degree murder that the jury found him guilty of

committing. Thus, finding no other error, we affirm Defendant’s convictions.

I. BACKGROUND

{2} Defendant was at home one evening with his girlfriend and her child when someone

began pounding on their front door. It was a friend of Defendant, who demanded that he be

let in. Defendant and his girlfriend testified that the friend was shouting and swearing. They

testified that they told the friend to go away, but he continued to pound on the door and shout

for several minutes. Defendant claimed that his friend was angry and agitated and was

behaving in a way that Defendant had never seen him behave before. Defendant stated he

heard the friend say that he was going to spray Defendant’s house with bullets. When

Defendant heard this, he picked up a gun. Defendant watched his friend leave and go back

to a van parked out on the street. Defendant stated he saw that his friend did not have a gun,

but, as his friend got into the van and started backing out, he leaned over in a way that made

Defendant believe that he was reaching under the seat. Defendant assumed that his friend

was reaching for a gun, and Defendant fired one shot at him. Defendant went back inside

and told his girlfriend to leave. Then, he went outside to the backyard and put the gun in a

crawlspace underneath the house. He was walking around outside when the police arrested

him and informed him that his friend was dead. 

{3} Defendant was charged with first-degree murder and third-degree tampering with

evidence, which involves tampering with evidence of a capital crime or of a first- or seconddegree felony. At trial, Defendant did not dispute that he shot his friend, but argued that the

killing was justified by self-defense. In the alternative, he argued that the killing was

mitigated by sufficient provocation, such that he could only be found guilty of manslaughter.

The jury found him guilty of second-degree murder and guilty of third-degree tampering

with evidence. Defendant appeals.

II. DISCUSSION

A. Defendant’s Right to Have the Jury Find All Elements of the Offense of ThirdDegree Tampering With Evidence

{4} Based on Defendant’s act of attempting to hide the gun involved in the shooting, he

was charged with third-degree tampering with evidence, which applies when a defendant has

tampered with evidence relating to a capital crime or of a first- or second-degree felony.

NMSA 1978, § 30-22-5(A), (B)(1) (2003). At trial, the jury was provided with an

instruction on tampering that required it to find that Defendant hid the gun in an effort to

avoid being prosecuted, but did not require it to find that the evidence that was tampered

with related to a first- or second-degree felony. Defendant contends that because the jury
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did not find that his act of hiding evidence related to a first- or second-degree felony, his

conviction for third-degree tampering with evidence violated his Sixth Amendment right to

have a jury find all facts necessary to the conviction. “We review this constitutional issue

de novo.” State v. Alvarado, 2012-NMCA-089, ¶ 5, ___ P.3d ___. However, because

Defendant concedes that this issue was not preserved, we will reverse only if any error rose

to the level of fundamental error. See State v. Sandoval, 2011-NMSC-022, ¶ 15, 150 N.M.

224, 258 P.3d 1016. We conclude that, although the jury instruction omitted an essential

element of the crime, the error was not fundamental under the circumstances of this case.

{5} New Mexico’s statute criminalizing tampering with evidence imposes different

sentences depending on the type of crime that the tampering was done to conceal.

Subsection (A) sets out the elements common to all degrees of tampering. Subsection (A)

describes the conduct that constitutes the basic act of tampering with evidence and states:

Tampering with evidence consists of destroying, changing, hiding, placing[,]

or fabricating any physical evidence with intent to prevent the apprehension,

prosecution[,] or conviction of any person or to throw suspicion of the

commission of a crime upon another.

Section 30-22-5(A).

{6} Subsection (B) provides that tampering with evidence may be a petty misdemeanor,

a misdemeanor, or a third- or fourth-degree felony, depending on the crime that the

tampered-with evidence relates to. Subsection (B) states:

Whoever commits tampering with evidence shall be punished as follows:

(1) if the highest crime for which tampering with evidence is

committed is a capital or first[-]degree felony or a second[-]degree felony,

the person committing tampering with evidence is guilty of a third[-]degree

felony;

(2) if the highest crime for which tampering with evidence is

committed is a third[-]degree felony or a fourth[-]degree felony, the person

committing tampering with evidence is guilty of a fourth[-]

degree felony;

(3) if the highest crime for which tampering with evidence is

committed is a misdemeanor or a petty misdemeanor, the person committing

tampering with evidence is guilty of a petty misdemeanor; and

(4) if the highest crime for which tampering with evidence is

committed is indeterminate, the person committing tampering with evidence

is guilty of a fourth[-]degree felony. 
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Section 30-22-5(B). The determination pursuant to Subsection (B) that the act of tampering

is a petty misdemeanor, a misdemeanor, or a third- or fourth-degree felony determines the

sentence that is authorized by law. See NMSA 1978, § 31-18-15 (2007) (establishing the

basic sentences and fines for felonies); NMSA 1978, § 31-19-1 (1984) (establishing the

sentences and fines for petty misdemeanors and misdemeanors).

{7} Defendant was charged with tampering with evidence of a capital crime or first- or

second-degree felony as prohibited by Section 30-22-5(B)(1). At trial, the district court

instructed the jury that, in order to convict Defendant of tampering with evidence, it had to

find the basic facts that constitute tampering under Subsection (A). The instruction did not

require the jury to find that Defendant’s act of tampering with evidence related to a capital

crime or a first- or second-degree felony. The instruction, which tracked Uniform Jury

Instruction 14-2241 NMRA, simply stated:

For you to find . . . [D]efendant guilty of tampering with evidence as

charged . . . , the [S]tate must prove to your satisfaction beyond a reasonable

doubt each of the following elements of the crime:

1. [D]efendant hid a firearm;

2. [D]efendant intended to prevent the apprehension,

prosecution[,] or conviction of himself;

3. This happened in Chaves County, New Mexico, on or about

the 22nd day of November[] 2010. 

The issue on appeal is whether the omission of the element that the gun was evidence of a

capital crime or a first- or second-degree felony violated Defendant’s right to have a jury

find all elements of the offense beyond a reasonable doubt where the conviction and

sentence entered by the district court was for the offense of third-degree tampering with

evidence.

{8} The right to a trial by jury is guaranteed by the Sixth Amendment to the United States

Constitution, which applies to the states through the Fourteenth Amendment. State v. Grace,

1999-NMCA-148, ¶ 5, 128 N.M. 379, 993 P.2d 93. The Fourteenth Amendment’s Due

Process Clause prohibits a conviction, except upon a finding of every element of the offense

beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). “Taken together,

these rights indisputably entitle a criminal defendant to a jury determination that he is guilty

of every element of the crime with which he is charged, beyond a reasonable doubt.”

Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (alteration, internal quotation marks, and

citation omitted). A fact is an element of a crime when it increases the legally prescribed

punishment. Alleyne v. United States, ___ U.S. ___, ___, 133 S. Ct. 2151, 2155 (2013)

(“Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.”).
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{9} The United States Supreme Court has held that, when a statute provides a general

definition of prohibited conduct and then lists a set of stepped sentences that increase based

on additional factors, any factor listed in the sentencing section of the statute that increases

the prescribed sentence is an element of the offense that must be found by a jury beyond a

reasonable doubt. In Jones v. United States, 526 U.S. 227 (1999), the Supreme Court

examined the federal carjacking statute to determine whether the portions of the statute

setting different punishments were elements that must be found beyond a reasonable doubt

by a jury, or mere sentencing factors that could be found by the district court. The

carjacking statute began with a general section that defined the basic conduct of taking a

motor vehicle by force that constitutes carjacking. Id. at 230. This definitional section was

followed by three subsections that described the maximum level of punishment to be applied

based on different factors. Id. The first of these, Subsection (1), stated that anyone who

committed the basic act of carjacking as described in the definitional section would be

imprisoned up to a maximum of fifteen years. Id. Subsection (1) thus set the basic sentence

for the offense. Subsections (2) and (3), however, provided for increased sentences based

on other factual scenarios. Subsection (2) stated that, if the carjacking resulted in serious

bodily injury, the perpetrator would be imprisoned up to a maximum of twenty-five years.

Id. Subsection (3) stated that, if the carjacking resulted in death, the perpetrator would be

imprisoned for “any number of years up to life[.]” Id.

{10} At the trial in Jones, the jury instruction tracked the definitional section of the statute.

Id. at 231. The jury found the defendant guilty of the the elements of the offense, which

would have supported a sentence of not more than fifteen years imprisonment, pursuant to

Subsection (1). However, at sentencing, the district court found that the evidence at trial

demonstrated that the defendant had caused the victim to bleed profusely and to suffer

numbness in his ear and permanent hearing loss, such that the defendant could be sentenced

under Subsection (2) for carjacking causing serious bodily injury. Id. The district court

believed that the bodily injury requirement of Subsection (2) merely involved a sentencing

factor and not an element of an offense, such that this finding need not have been made by

the jury. Id.

{11} The Supreme Court reversed. Id. at 232. Because the factual situations described

in Subsections (2) and (3) increased the possible penalty from the basic maximum of fifteen

years, the Supreme Court, as a matter of statutory construction, concluded that Congress

intended these factors to be elements of the offense and not mere sentencing factors. Id. at

232-39. Although the Court noted that a contrary interpretation would be reasonable if one

were to look solely at the language of the statute, it held that such an interpretation was

constitutionally prohibited because to read Subsection (2) and Subsection (3) as merely

containing sentencing factors would run afoul of the constitutional guarantees of due process

and trial by jury. Id. at 239-52. Jones stated that these constitutional guarantees require that

“any fact (other than [a] prior conviction) that increases the maximum penalty for a crime

must be charged in an indictment, submitted to a jury, and proven beyond a reasonable

doubt.” Id. at 243 n.6. Therefore, the sentence imposed by the district court was invalid.
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{12} Following Jones, the Supreme Court, looking at a different criminal statute, again

identified any factor that increases the sentence for an offense as an element that must be

found by a jury beyond a reasonable doubt. In Alleyne, the statute at issue was the federal

law prohibiting a person from using or carrying a firearm in relation to a crime of violence.

___ U.S. at ___, ___, 133 S. Ct. at 2152, 2155. That statute provided that anyone who used

or carried a firearm in relation to a crime of violence would

(i) be sentenced to a term of imprisonment of not less than [five] years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment

of not less than [seven] years; and 

(iii) if the firearm is discharged, be sentenced to a term of imprisonment

of not less than [ten] years.

Id. at ___, 133 S. Ct. at 2155-56 (internal quotation marks and citation omitted). Unlike the

statute at issue in Jones, this statute had no maximum penalty listed for any of the three

options, such that a person sentenced under Subsection (i) could be sentenced to a term of

imprisonment as high as someone sentenced under Subsections (ii) or (iii). Instead, each

subsection imposed a different statutory minimum. As in Jones, however, the Supreme

Court held that because the facts contained in Subsections (ii) and (iii) increased the

prescribed sentencing range from the basic sentence set in Subsection (i), these facts were

elements of the statute that must be submitted to the jury and found beyond a reasonable

doubt. Alleyne, ___ U.S. at ___, 133 S. Ct. at 2158. Unlike Jones, which relied both on a

legislative intent rationale and a constitutional one, Alleyne was purely based on

constitutional reasoning.

{13} Pursuant to Jones and Alleyne, it is clear that the factors listed in Subsection (B) of

New Mexico’s tampering with evidence statute are elements of the offense for purposes of

the Sixth and Fourteenth Amendments. These factors involve factual determinations about

what type of crime the tampering was intended to conceal and are linked to increasing levels

of punishment—from that imposed for a petty misdemeanor all the way up to that imposed

for a third-degree felony. Therefore, they must be interpreted as elements of the offense,

rather than mere sentencing factors, in order to avoid violations of the constitutional right

to due process and the right to a jury trial.

{14} Our conclusion that the type of crime that the tampering is intended to conceal under

Subsection (B) is an element that must be found beyond a reasonable doubt by the jury is

consistent with the conclusion we reached in a slightly different context in Alvarado. There,

the defendant was charged with first-degree murder and tampering with evidence. 2012-

NMCA-089, ¶ 1. He was acquitted of the murder, but found guilty of the tampering charge.

Id. ¶ 4. Because the district court believed that the defendant could not be found guilty of

tampering with evidence of a crime of which he had been acquitted, the district court refused

to sentence him for third-degree tampering with evidence of the murder and instead
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We recognize the fact that the tampering relates to an indeterminate crime may itself

be an element of the offense that must be found by the jury beyond a reasonable doubt, since

this fact increases the punishment to that set for a fourth-degree felony, whereas, the crime

is only a petty misdemeanor if the tampering relates to a misdemeanor or petty misdemeanor.

See § 30-22-5(B)(3), (4). However, the defendant in Alvarado did not file a cross-appeal in

order to make that argument, and Defendant does not make it here. Accordingly, we need

not resolve this question. See In re Doe, 1982-NMSC-099, ¶¶ 2-3, 98 N.M. 540, 650 P.2d

824 (cautioning that an appellate court should not reach issues that the parties have failed

to raise in their briefs).

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sentenced him for fourth-degree tampering with evidence of an indeterminate crime. Id.

The state appealed. Id. ¶ 5. On appeal, this Court agreed that the district court’s reasoning

was erroneous, but affirmed the fourth-degree tampering conviction under another rationale.

Id. ¶¶ 8, 16. We held that, when a defendant is charged with third-degree tampering with

evidence of a capital crime or a first- or second-degree felony, the constitutional rights to due

process and to a jury trial require the state to prove, beyond a reasonable doubt, that the

evidence with which the defendant tampered related to an offense of those types. Id. ¶ 16.

Because the jury had not been so instructed, we agreed with the defendant’s argument that

he could only be sentenced with fourth-degree tampering with respect to an indeterminate

crime.1 Id.

{15} The State argues that Alvarado is limited to circumstances in which a defendant has

been acquitted of the offense that the tampering was intended to conceal, but it provides no

persuasive rationale for this assertion. Alvarado was based on the same constitutional

principles at issue in this case, and its reasoning applies here. In Alvarado, we held that,

although the state presented evidence that would support a finding that the guns the

defendant tampered with were the guns used in the killing, the Court would not draw such

an inference from the jury’s verdict since the jury was not asked to determine whether the

guns were the same guns used in the killing and, theoretically, the jury could have believed

that the defendant tampered with evidence of a different specific crime or of an

indeterminate crime. Id. ¶ 15. The same rule applies in this case. Although Defendant was

found guilty of the second-degree murder, the district court could not simply assume that the

jury determined that the tampering related to that offense where the jury could have

theoretically found that he tampered with evidence of an indeterminate offense or of some

other specific offense. Defendant’s right to have the jury find, beyond a reasonable doubt,

all of the elements of the offense was violated by the entry of a conviction for which the jury

had not been instructed on all of the essential elements.

{16} We recognize that there is language in a number of New Mexico Supreme Court

cases that suggests that the factors in Subsection (B) of the tampering statute are not

essential elements of the offense, but those cases do not address the issue that we resolve

today and are, therefore, not controlling. See State v. Gamlen, 2009-NMCA-073, ¶ 15, 146

N.M. 668, 213 P.3d 818 (“It is well established that cases are not authority for propositions
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not considered.” (internal quotation marks and citation omitted)). In State v. Jackson, our

Supreme Court examined the question of whether the tampering with evidence statute

requires that the defendant tamper with evidence of a legislatively defined crime.

2010-NMSC-032, 148 N.M. 452, 237 P.3d 754. Relying on principles of statutory

construction, Jackson held that it does not. Id. ¶ 9. In doing so, Jackson characterized

Subsection (A) of the tampering statute as setting forth the “elements of the offense” and

Subsection (B) as merely establishing “levels of punishment.” Id. ¶¶ 8, 20. Despite this

language, Jackson does not control our analysis in this case. Jackson came to the Court on

a pretrial Foulenfont motion, which permits a defendant to make a legal argument that the

facts alleged by the state, even if proven, would not constitute a crime under the applicable

law. Jackson, 2010-NMSC-032, ¶ 4 n.1. The question on appeal in Jackson was not which

elements of the offense had to be proven beyond a reasonable doubt, and nowhere did

Jackson discuss the constitutional implications of characterizing some portions of the statute

as elements and others as levels of punishment. Instead, Jackson looked narrowly at the

question of whether tampering requires an identifiable underlying crime and determined that

it does not because the plain language of Subsection (B) permits a conviction for tampering

with evidence of an “indeterminate” offense. Id. ¶ 21 (internal quotation marks and citation

omitted). Jackson’s conclusion is unaffected even if the factors in Subsection (B) are

characterized as “elements” rather than just levels of punishment. Accordingly, we conclude

that Jackson’s characterization does not determine the question at issue in this case. The

other cases that have discussed the elements of tampering with evidence with reference only

to Subsection (A) have also not addressed the question at issue here and are therefore not

binding for the same reason. See State v. Garcia, 2011-NMSC-003, ¶ 13, 149 N.M. 185, 246

P.3d 1057; State v. Rudolfo, 2008-NMSC-036, ¶ 31, 144 N.M. 305, 187 P.3d 170; State v.

Duran, 2006-NMSC-035, ¶ 14, 140 N.M. 94, 140 P.3d 515; State v. Johnson,

2004-NMSC-029, ¶ 52, 136 N.M. 348, 98 P.3d 998; State v. Rojo, 1999-NMSC-001, ¶ 25,

126 N.M. 438, 971 P.2d 829.

{17} Although we hold that the failure to instruct the jury on one of the elements of the

offense of third-degree tampering with evidence was error because it offended Defendant’s

rights under the Sixth and Fourteenth Amendments of the United States Constitution, we

cannot conclude that the unpreserved error was fundamental. “The rule of fundamental error

applies only if there has been a miscarriage of justice, if the question of guilt is so doubtful

that it would shock the conscience to permit the conviction to stand, or if substantial justice

has not been done.” State v. Orosco, 1992-NMSC-006, ¶ 12, 113 N.M. 780, 833 P.2d 1146.

Although the omission of an essential element of an offense will often be found to be

fundamental error, see State v. Barber, 2004-NMSC-019, ¶ 20, 135 N.M. 621, 92 P.3d 633,

this is not always so, see Orosco, 1992-NMSC-006, ¶ 12. If it is clear that the missing

element was established by the evidence at trial, the fact that the jury was not instructed on

the element is not considered fundamental error. Id. In evaluating this question, we examine

“the entire record, placing the jury instructions in the context of the individual facts and

circumstances of the case, to determine whether the [d]efendant’s conviction was the result

of a plain miscarriage of justice.” Barber, 2004-NMSC-019, ¶ 19 (internal quotation marks

and citation omitted).
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{18} Here, we conclude that it was not. At trial, Defendant testified that, on the evening

in question, he took his gun, shot once at the victim, and then took the same gun outside to

the backyard and placed it under the house. The jury found, beyond a reasonable doubt, in

doing so, Defendant hid the gun with the intent to prevent his apprehension, prosecution, or

conviction. Separately, it also found, beyond a reasonable doubt, the act of shooting and

killing the victim was second-degree murder, not manslaughter, and not justified by selfdefense. As the only evidence at trial was that Defendant’s act of hiding the gun was related

to his act of shooting the victim and, as the jury concluded beyond a reasonable doubt that

the shooting constituted a second-degree felony, the facts at trial established that the

tampering related to a second-degree felony. Accordingly, the omission of this element from

the jury instruction was not fundamental error. See United States v. Cotton, 535 U.S. 625,

632-33 (2002) (declining to reverse an unpreserved Apprendi error because the evidence of

the element that was omitted from the jury instruction “was overwhelming and essentially

uncontroverted” (internal quotation marks and citation omitted) and therefore its omission

“did not seriously affect the fairness, integrity, or public reputation of judicial proceedings”).

B. A Witness’s Comment on Defendant’s Exercise of His Right to Remain Silent

{19} During cross-examination of the detective who was testifying for the State,

Defendant’s attorney asked the detective whether a knife had been found in the alley behind

Defendant’s house. The detective said that a knife may have been found and then stated:

“[T]he only reason I remember there might have been a knife is because . . . [Defendant] had

a cut [o]n his foot and he told me that he jumped over the fence and he told me he cut his

foot with that knife.” Defendant’s counsel asked: “[Defendant] told you that?” The

detective answered: “This is after he was read his rights.” At this point, Defendant’s

counsel objected and moved for a mistrial. Although it is not clear from the record that the

witness actually testified that Defendant invoked his right to remain silent, the parties and

the district court treated the testimony as if this was the case. The district court denied the

motion.

{20} Defendant argues that, pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127,

428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, the district

court erred in denying his motion for a mistrial. We review the denial of a mistrial for an

abuse of discretion. State v. O’Neal, 2008-NMCA-022, ¶ 28, 143 N.M. 437, 176 P.3d 1169.

The legal question of whether there has been an improper comment on a defendant’s silence

is reviewed de novo. State v. Pacheco, 2007-NMCA-140, ¶ 8, 142 N.M. 773, 170 P.3d

1011.

{21} The Fourteenth Amendment’s Due Process Clause protects against prosecutorial

comment on a defendant’s post-Miranda exercise of his Fifth Amendment right to remain

silent. See State v. DeGraff, 2006-NMSC-011, ¶ 12, 139 N.M. 211, 131 P.3d 61. Therefore,

a prosecutor is not permitted to elicit statements from a witness that the defendant invoked

his right to remain silent and is not permitted to use a defendant’s silence to impeach his

credibility or create an inference of guilt in the minds of the jury. State v. Foster, 1998-
10

NMCA-163, ¶ 11, 126 N.M. 177, 967 P.2d 852.

{22} Here, however, the prosecutor did not elicit the comment. Defendant’s attorney did.

Recognizing this flaw in his argument, Defendant asserts that, under State v. Wisniewski, the

detective was part of the prosecution team and his comment can therefore be attributed to

the prosecutor. 1985-NMSC-079, ¶ 21, 103 N.M. 430, 708 P.2d 1031. Wisniewski holds

that law enforcement personnel are part of the prosecution team for purposes of the

Fourteenth Amendment’s due process requirement that the prosecution provide exculpatory

material to a defendant prior to trial. Id. Defendant provides no authority to support his

contention that the rule is the same for purposes of commenting upon a defendant’s exercise

of his Fifth Amendment right to remain silent. Absent such citation, we may assume no such

authority exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d

1329. In addition, in other circumstances where a witness for the state has made an isolated

and unsolicited comment related to a defendant’s exercise of his right to remain silent, such

a comment has not required reversal on appeal. See State v. Baca, 1976-NMSC-015, ¶ 5, 89

N.M. 204, 549 P.2d 282 (holding that reversal was not warranted when a detective made an

isolated, unsolicited comment referring to the defendant’s post-Miranda refusal to speak

with the police); State v. Wildgrube, 2003-NMCA-108, ¶¶ 23-24, 134 N.M. 262, 75 P.3d 862

(holding that when a police officer made an unsolicited comment regarding the defendant’s

post-Miranda silence and the prosecutor did not exploit the reference by a

sking related questions or referring to it in closing argument, there was no prosecutorial

misconduct requiring reversal). Accordingly, Defendant has failed to demonstrate error on

this basis.

C. Admission of Evidence That Defendant Had Ammunition for Multiple Weapons

{23} At trial, a crime scene technician testified that she observed a variety of different

types of ammunition at Defendant’s home. Some of this ammunition fit the kind of gun that

was used in this case. Defendant did not object to this testimony at the time it was offered.

Later, outside of the presence of the jury, the parties made arguments about the admissibility

of certain exhibits, including a photograph of some of the ammunition, as well as the

ammunition itself. At that point, Defendant belatedly moved to strike the technician’s

testimony on grounds of relevance. He also argued that the photograph and the ammunition

should not be admitted. The district court admitted the ammunition itself and stated that the

photograph of the ammunition could be used at trial, but not admitted as an exhibit. The

technician then testified again about the three different kinds of ammunition, stating that

only one of them could be fired from the gun used in this case.

{24} Defendant asserts that, pursuant to Franklin and Boyer, the district court abused its

discretion in admitting the evidence relating to the bullets that could not be fired from the

gun that was used in this case. However, Defendant provides no rationale in support of this

assertion and provides no authority that would demonstrate that the district court’s admission

of this evidence constituted reversible error. Accordingly, we decline to address this

argument. See State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181
11

(explaining that this Court does not review unclear or undeveloped arguments).

D. Claims of Error in the Jury Instructions

1. Imperfect Self-Defense

{25} Before the case was submitted to the jury, Defendant asked the district court to

instruct the jurors on his claim of imperfect self-defense. The district court refused because,

under New Mexico case law, no such instruction is warranted. Defendant asserts that the

district court erred in refusing to provide the requested instruction. “The propriety of jury

instructions given or denied is a mixed question of law and fact.” State v. Lucero, 2010-

NMSC-011, ¶ 11, 147 N.M. 747, 228 P.3d 1167 (internal quotation marks and citation

omitted). We review such questions de novo. Id.

{26} “Imperfect self-defense occurs when [a person] uses excessive force while otherwise

lawfully engaging in self-defense.” State v. Henley, 2010-NMSC-039, ¶ 20, 148 N.M. 359,

237 P.3d 103. However, in New Mexico, imperfect self-defense is not considered to be a

true affirmative defense for which a defendant is entitled to an instruction. As our Supreme

Court has explained, the term “imperfect self-defense” is misleading because, when a person

kills another while engaging in imperfect self-defense, the killing is not legally justified.

State v. Abeyta, 1995-NMSC-051, ¶ 17, 120 N.M. 233, 901 P.2d 164, abrogated on other

grounds by State v. Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266. Instead, a

claim of imperfect self-defense “simply presents an issue of mitigating circumstances that

may reduce murder to manslaughter.” Id. Because it is not a true affirmative defense, our

Supreme Court has held that no imperfect self-defense instruction is warranted. Id. ¶ 17 n.4

(“Since 1917 this ‘imperfect’ self-defense has been adequately covered under our jury

instructions on manslaughter. We see no reason to change our jury instructions to

accommodate a new phrase covering a legal concept that has long been a part of New

Mexico law.”). Instead, any issues raised by a defendant’s claim of imperfect self-defense

are properly addressed if the jury is instructed on voluntary manslaughter. Id. The jury in

this case was so instructed, and Defendant was permitted to argue that, if he used excessive

force in response to any threat posed by the victim, the jury should find him guilty of

voluntary manslaughter, rather than murder. The district court did not err in denying

Defendant’s proposed instruction on imperfect self-defense.

2. Voluntary Manslaughter

{27} Defendant also asserts that the district court created a fundamental error at trial when

it failed to instruct the jury that the State was required to disprove that he acted in selfdefense as one of the elements of voluntary manslaughter. However, Defendant was not

convicted of voluntary manslaughter, and this Court will not review an error in an instruction

on a crime of which he was not convicted. See State v. Benally, 2001-NMSC-033, ¶ 10 n.1,

131 N.M. 258, 34 P.3d 1134 (declining to address a claim of error in a voluntary

manslaughter instruction when the defendant was not found guilty of voluntary manslaughter
12

and was instead found guilty of second-degree murder); State v. Cunningham,

2000-NMSC-009, ¶¶ 7, 8 n.3, 128 N.M. 711, 998 P.2d 176 (refusing to review a claim of

fundamental error in the omission of the element negating self-defense in a voluntary

manslaughter instruction when the defendant was not found guilty of voluntary manslaughter

and was instead convicted of first-degree murder). This is not a circumstance where the

instruction was so defective that it amounted to no instruction on voluntary manslaughter.

Cf. State v. Benavidez, 1980-NMSC-097, ¶ 5, 94 N.M. 706, 616 P.2d 419 (holding that the

defendant’s first-degree murder conviction must be reversed based on the district court’s

error in refusing to give an instruction on voluntary manslaughter).

3. Sufficiency of the Evidence

{28} Defendant contends that there was insufficient evidence to support his convictions

for second-degree murder and for third-degree tampering with evidence. “In reviewing the

sufficiency of evidence used to support a conviction, we resolve all disputed facts in favor

of the [s]tate, indulge all reasonable inferences in support of the verdict, and disregard all

evidence and inferences to the contrary.” Rojo, 1999-NMSC-001, ¶ 19. “It is [the appellate

courts’] duty to determine whether any rational jury could have found the essential facts to

establish each element of the crime beyond a reasonable doubt.” State v. Dowling, 2011-

NMSC-016, ¶ 20, 150 N.M. 110, 257 P.3d 930.

{29} With respect to Defendant’s conviction for second-degree murder, the State was

required to prove, beyond a reasonable doubt, Defendant killed the victim by acts that (1)

he knew created a strong probability of death or great bodily harm, (2) he did so without

sufficient provocation, and (3) he did not act in self-defense. The jury was instructed that

the killing in this case was in self-defense if (1) there was an appearance of immediate

danger of death or great bodily harm to Defendant or his family as a result of the victim’s

actions, (2) Defendant was in fact put in fear and killed the victim because of this fear, and

(3) a reasonable person in the same circumstances would have acted as Defendant did. It

was instructed that sufficient provocation “can be any action, conduct[,] or circumstances

which arouse anger, rage, fear, sudden resentment, terror[,] or other extreme emotions” so

long as the provocation was such that it would cause an ordinary person of average

disposition to temporarily lose self-control and would affect that person’s ability to reason.

It was also instructed that provocation is not legally sufficient if an ordinary person would

have “cooled off” before acting.

{30} Defendant contends that the evidence was insufficient to support his convictions

because there was testimony that the victim came to Defendant’s house and threatened to

shoot at the house, then went back to his car and, as he was driving away, leaned down in

such a manner that Defendant believed the victim was reaching for a gun. As a consequence,

Defendant suggests that either self-defense or sufficient provocation was established as a

matter of law. However, Defendant’s view of the evidence is in the light most favorable to

himself, rather than the light most favorable to the verdict, which is contrary to the manner

in which it must be viewed on appeal. At trial, Defendant testified that he did not actually
13

see the victim with a gun, and evidence was presented from which the jury could reasonably

conclude that the victim was shot in the back as he was driving away from Defendant’s

house. Furthermore, the only evidence that the victim threatened to shoot at the house came

from the testimony of Defendant and his girlfriend, and the jury was not required to credit

this evidence. See Rojo, 1999-NMSC-001, ¶ 19 (stating that “[c]ontrary evidence supporting

acquittal does not provide a basis for reversal because the jury is free to reject [the

d]efendant’s version of the facts”). Accordingly, there was sufficient evidence to permit a

reasonable jury to determine that Defendant was not acting in self-defense or as a result of

legally sufficient provocation.

{31} With respect to his conviction for third-degree tampering with evidence, although we

have concluded that the instruction on this charge was improper because it did not instruct

the jury that it must find that Defendant’s tampering related to evidence of one of the types

of offenses listed in Section 30-22-5(B), we nevertheless assess the sufficiency of the

evidence with reference to the jury instructions that were provided at trial. See Dowling,

2011-NMSC-016, ¶ 18 (“[The appellate courts] review [the d]efendant’s [sufficiency] claim

under the erroneous instruction provided to the jury at trial.”). The jury instruction provided

that the State was required to prove, beyond a reasonable doubt, Defendant hid the gun with

the intent to prevent his apprehension, prosecution, or conviction. Defendant contends that

his testimony that he hid the gun “under the house because he was nervous and really did not

know what was going on” established that he did not act with the necessary intent. Again,

Defendant’s argument fails to account for the proper standard of review on appeal, as he asks

this Court to view the evidence in the light most favorable to himself. A person’s intent may

be established based upon circumstantial evidence. State v. Guerra, 2012-NMSC-027, ¶ 13,

284 P.3d 1076 (stating that “intent is subjective and is almost always inferred from other

facts in the case, as it is rarely established by direct evidence” (alteration, internal quotation

marks, and citation omitted)). Defendant testified that he shot at the victim and then went

and placed the gun under the house. An officer testified that the gun was found in a

crawlspace under the house that was concealed behind a dog house and near a gate where

a dog had been chained. Another officer testified that, after Defendant was arrested, he

made a phone call from the detention center in which he told a person to have someone “go

underneath the house . . . where the black dog was . . . because he had a water leak.” Taken

together, this evidence supports an inference that Defendant hid the gun with the intent to

prevent his apprehension, prosecution, or conviction.

III. CONCLUSION

{32} Because the only error that Defendant has established on appeal was not preserved

at trial and it did not constitute fundamental error, we affirm Defendant’s convictions.

{33} IT IS SO ORDERED.

____________________________________

RODERICK T. KENNEDY, Chief Judge
14

WE CONCUR:

____________________________________

MICHAEL D. BUSTAMANTE, Judge

____________________________________

JONATHAN B. SUTIN, Judge

Topic Index for State v. Herrera, No. 31,874

APPEAL AND ERROR

Fundamental Error

Preservation of Issues for Appeal

Standard of Review

Substantial or Sufficient Evidence

CONSTITUTIONAL LAW

Due Process

Self-Incrimination

CRIMINAL LAW

Elements of Offense

Murder

Tampering with Evidence

Voluntary Manslaughter

CRIMINAL PROCEDURE

Jury Instructions

Misconduct by Prosecutor

Mistrial

Right Against Self-Incrimination

Right to Trial by Jury

Search and Seizure

Self Defense

Witnesses