This decision was not selected for publication inthe New Mexico Reports. Please see Rule 12-405 1 NMRA for restrictions on the citation of unpublished decisions. Please also note that this 2 electronic decision may contain computer-generated errors or other deviations from the official 3 paper version filed by the Supreme Court and does not include the filing date. 4 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 5 Opinion Number: 6 Filing Date: 7 NO. 30,847 8 STATE OF NEW MEXICO , 9 Plaintiff-Appellee, 10

v. 11 GABRIEL GEORGE QUINTANA , 12 Defendant-Appellant. 13

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 14 Timothy L. Garcia, District Judge 15

Hugh W. Dangler, Chief Public Defender 16 Karl Erich Martell, Assi stant Appellate Defender 17 Santa Fe, NM 18 for Appellant 19 Gary K. King, Attorney General 202 Nicole Beder, Assistant Attorney General 1 Santa Fe, NM 2 for Appellee 3 DECISION 4 BOSSON, Justice. 5 BACKGROUND 6 {1} Gabriel (Defendant) and Marisela Quintana were married in 2003. In June 7 2005, Marisela left Defendant and moved in with her parents two miles away. In 8 August of that year, Marisela obtained anorder of protection barring Defendant from 9 any contact with her or the couple’s children. Defendant violated the order by 10 physically confronting Marisela at her pl ace of work, and, on September 4, by going 11 to her parents’ home in an attempt to remove the children. 12 {2} On the morning of September 5, 2005, Marisela left for work in her two-door 13 Chevrolet Cavalier, accompanied by her moth er Elisa Apodaca. As they approached 14 the main highway, Defendant emerged from the bushes and stood in front of the car 15 wearing black pants and a black jacket. Hewas angry and said he wanted to get 16 back together with Marisela. Elisa told Defendant that Marisela did not want to be 17 involved with him any longer. Marisela asked Defendant to move, but he persisted, 18 ultimately opening the car door, entering the rear of the car, and attacking Marisela. 193 He stabbed her in the leg, arms, back, breast and face. The wounds were not life 1 threatening. 2 {3} When Defendant finally relented, Mari sela locked the doors and started to 3 drive to the highway to look for help. Ho wever, she noticed that Elisa was no longer 4 in the vehicle, and as she drove away, Marisela observed Defendant in the driveway 5 with his hand raised above Elisa. Marisela arrived at the home of her neighbors, 6 who helped contact the police and paramedics. 7 {4} Elisa died at the scene, sustaining at least nine stab wounds, several of which 8 penetrated deep within vital areas of her body cavity. She also suffered several 9 defensive wounds. She died as a result of blood loss from a combination of the 10 wounds, the most severe of which severed her aorta. 11 {5} Approximately twelve hours after th e attack, police received a tip from 12 Defendant’s brother, Carlos Heredia, stating that Defe ndant was at their parents’ 13 house changing clothes. Defendant was apprehended in the vicinity shortly 14 thereafter wearing a blue T-shirt, dark sweatpants, and boots. His clothes were wet 15 from the waist down, and appeared soiled and littered with stickers. There was no 16 blood on Defendant’s clothing at the time of his arrest. Whether these were the 17 same clothes he wore at the time of the attack is a matter of some dispute, though the 184 fact is not dispositive. 1 {6} The police investigation revealed two additional sets of facts relevant to our 2 consideration regarding Defe ndant’s conduct between the time of the attack and his 3 apprehension. First, another of Defe ndant’s brothers, Librado Heredia, told 4 investigators that Defendant had contacted him, admitting that he had stabbed 5 Marisela and Elisa, and re questing money to go to San Diego. State Police Officer 6 Lorenzo Aguirre testified at trial that Librado had reported the same to him when he 7 arrived at the home of Defendants’ parents on the morning of September 5. 8 {7} Second, at about 7:00 a.m. on the day of the attack, a janitorial worker 9 observed an occupied white Ford truck near the restrooms in a no-camping area at 10 Abiquiu Dam. He observed the same truc k in the same location the following day, 11 and reported the vehicle to Ranger Phil Martinez. On Wednesday, two days after 12 the attack, Ranger Martinez inspected the vehicle and discovered a receipt and a torn 13 photograph of Defendant’s family in a garbage bag in th e bed of the truck. Ranger 14 Martinez then contacted law enforcement, which later verified that the truck was 15 registered to Defendant. They then obt ained a warrant and searched the truck, 16 finding nothing of significant evidentiary value. 17 {8} Defendant was convicted by a jury in the First Judicial District Court of the 185 following criminal offenses: murder in th e first degree of Elisa Apodaca; attempted 1 murder in the second degree of Marisela Quintana; aggravated battery against a 2 household member, Marisela Quintana; tamp ering with evidence; and violation of 3 an order of protection. He was sentenced to life imprisonment for first-degree 4 murder, three years consecutive for atte mpted second-degree murder, three years 5 consecutive for tampering with evidence, three years concurrent for aggravated 6 battery, and 364 days concurrent for violating the order of protection. Defendant 7 comes before this Court on direct app eal, pursuant to Rule 12-102(A)(1) NMRA. 8 DISCUSSION 9 Defendant’s conviction for aggravated battery violates the Double Jeopardy 10 Clause because it is a lesser included o ffense of the felony murder conviction. 11 {9} Defendant was convicted of first-degree murder on a general jury verdict 12 which did not indicate the theory of murder—deliberate or felony—upon which the 13 jury relied. See NMSA 1978, § 30-2-1(A)(1) & (2) (1994). He was also convicted 14 of the predicate to the felony murder: aggravated battery against a household 15 member. NMSA 1978, § 30-3-16(C) (1995). Defendant argues th at conviction for 16 both offenses violates the double jeopardy provisions of both the United States 17 Constitution and the New Mexico Constitu tion. The parties agree that the 18 underlying felony of aggravated batteryagainst a household member must be 196 vacated. While we are not bound to accept the State’s concession, see State v. 1 Foster , 1999-NMSC-007, ¶ 25, 126 N.M. 646, 974 P.2d 140, we agree that the 2 aggravated battery convicti on should be vacated. Whether constitutional protections 3 under the Double Jeopardy Clause have been violated is a question of law which we 4 review de novo. State v. Saiz , 2008-NMSC-048, ¶ 22, 144 N.M. 663, 191 P.3d 521, 5 abrogated on other grounds by State v. Belanger , 2009-NMSC-025, ¶ 36 n.1, 146 6 N.M. 357, 210 P.3d 783. 7 {10} We have held that general jury verdict forms allowing for conviction for 8 deliberate or felony murder are permissible, where the jury is not able to agree on 9 a single theory, provided the defendant is not ultimately convicted for both offenses. 10 See Griffin v. United States , 502 U.S. 46, 49-51 (1992); State v. Salazar , 11 1997-NMSC-044, ¶ 32, 123 N.M. 778, 945 P.2d 996. However, we have also made 12 clear that where conviction relies on a general jury verdict of this kind, the defendant 13 cannot also be convicted of the predicate felony to the felony murder charge without 14 compromising double jeopardy protections. See State v. Gonzales , 2007-NMSC15 059, ¶¶ 6-10, 143 N.M. 25, 172 P.3d 162; see also Foster , 1999-NMSC-007, ¶ 28 16 (“[W]e must presume that a conviction under a general verdict requires reversal if 17 the jury is instructed on an alternative basis for the conviction that would result in 187 double jeopardy, and the record does not di sclose whether the jury relied on this 1 legally inadequate alternative.). 2 {11} It is also clear that the Legislature did not intend felony murder and the 3 predicate felony to constitute separately punishable offenses. We discussed this 4 issue in State v. Contreras , 120 N.M. 486, 490-91, 903 P.2d 228, 232-33 (1995), 5 consistent with the United States Supreme Court’s analysis in Whalen v. United 6 States , 445 U.S. 684, 694 (1980), and resolved the issue unequivocally in State v. 7 Frazier , 2007-NMSC-032, ¶ 26, 142 N.M. 120, 164 P.3d 1 (“When the State is 8 permitted to elevate what would otherwise be a second-degree murder to first-degree 9 murder, with the attendant increase in puni shment, based on the fact that the killing 10 happened during the commission of a felony, the felony should be subsumed by the 11 first-degree murder.”). 12 {12} Assuming, as we must, that the jury convicted on a felony murder theory, the 13 present case is controlled by the same rationale as Foster , Contreras , and Frazier

. 14 As in those cases, Defendant was convictedof both felony murder and the predicate 15 felony—here, aggravated battery agains t a household member . Because Elisa’s 16 murder occurred during the commission of th e aggravated battery against Marisela, 17 the underlying conduct was subsumed within the felony murder charge. As we 188 explained in Frazier , our Legislature did not intend the paradoxical outcome of 1 imposing a greater sentence on a defendant convicted of felony murder than on a 2 defendant convicted of first-degree premeditated murder, where the very basis for 3 the elevated felony murder punishment is the commission of the predicate felony. 4 2007-NMSC-032, ¶¶ 9-10. The practical e ffect of affirming the trial court’s 5 sentencing on both charges would be to twice punish Defendant for the same 6 offense, in direct contravention of the United States and New Mexico Constitutions. 7 We therefore reverse Defendant’s convic tion for aggravated battery against a 8 household member. 9 Defendant’s conviction for tampering wi th evidence was supported by sufficient 10 evidence. 11 {13} Defendant challenges the sufficiency of the evidence supporting his tampering 12 with evidence conviction. Our standard of review is “whether substantial evidence 13 of either a direct or circumstantial nature exists to support a verdict of guilt beyond 14 a reasonable doubt with resp ect to every element essential to a conviction.” State 15 v. Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). In making our 16 determination, we view the evidence “i n the light most favorable to the guilty 17 verdict, indulging all reasona ble inferences and resolving all conflicts in the 18 evidence in favor of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 199 N.M. 711, 998 P.2d 176. 1 {14} The crime of tampering with eviden ce consists of “destroying, changing, 2 hiding, placing or fabricating any physical evidence with intent to prevent the 3 apprehension, prosecution or conviction of any person or to throw suspicion of the 4 commission of a crime upon another.” NMSA 1978, § 30-22-5(A) (2003). Thus, 5 a tampering with evidence conviction requires proof of two elements: “(1) the 6 specific intent of [the d]efendant to disrupt the police investigation; and (2) that [the 7 d]efendant actively destroyed or hid physical evidence.” State v. Duran , 2006- 8 NMSC-035, ¶ 14, 140 N.M. 94, 140 P.3d 515 (internal quotation marks omitted). 9 Moreover, “[w]hen there is no other evidence of the specific intent of the defendant 10 to disrupt the police investigation, intent is often inferred from an overt act of the 11 defendant.” Id. With respect to each element of the statute, we conclude that the 12 jury’s verdict was supported by sufficient evidence. 13 {15} Duran is similar to this case in several respects. It involved a tampering 14 conviction for destroying or hiding a kni fe and bloody clothing in connection with 15 a stabbing murder. And, like the present case, no bloody clothes or knife were ever 16 found. In Duran , we rejected the inference that a knife and bloody clothes must 17 have existed, and that since no knife or clothes were found, they must have been 1810 destroyed or hidden. 2006-NM SC-035, ¶ 15. We held that, while both the overt act 1 and the intent can be inferred, some direct or circumstantial evidence is required. Id. 2 There must be more than th e naked absence of the evid ence in question. We also 3 clarified the nature of such additional ev idence necessary to draw a permissible 4 inference: 5 Statements by defendants and witn esses regarding the disposition of 6 evidence may allow a juryto reasonably infer an overt act and intent, 7 as may many other kinds of circum stantial evidence that would tend to 8 prove a defendant acted to tamper with evidence and in so acting 9 intended to thwart a police investigation. 10 Id. ¶ 16. 11 {16} Important distinctions between the present case and Duranguide us to a 12 different outcome in favor of the State. Most importantly, in this case there are 13 “statements by witnesses . . . regarding the disposition of evidence,” specifically 14 Defendant’s brother, Carlos, who told police that Defendant was going to their 15 parents’ home to change clothes . Also, Defendant’s clothe s were wet at the time of 16 his arrest, which a reasonable juror might in terpret as evidence that he attempted to 17 wash away blood stains. Additionally, according to eyewitness testimony, 18 Defendant was wearing a black jacket inside- out at the time of th e attack, but he was 19 arrested wearing a blueT-shirt. A reasonable juror could infer from this evidence 2011 that Defendant changed clothes, and even that he wore the jacket inside-out with the 1 intent to later conceal evidence of the att ack. While these are certainly not the only 2 inferences that a reasonable juror could dr aw from the evidence, they are permissible 3 inferences, and sufficient to support a conviction for tampering. See State v. Rojo , 4 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting 5 acquittal does not provide a ba sis for reversal because the jury is free to reject 6 Defendant's version of the facts.”). 7 {17} Defendant argues that Carlos’s statements were inadmissible hearsay in 8 violation of Rules 11-801 and 11-802 NM RA; and un-confronted testimony, in 9 violation of the Sixth Amendment to the United States Constitution as interpreted 10 in Davis v. Washington , 547 U.S. 813 (2006). Defendant did not preserve these 11 challenges below, and now argues that admission of the evidence constituted plain 12 error. We disagree, but further disc ussion is not warranted because Carlos’s 13 statements were not, as Defendant asserts, the “only” evidence that Defendant 14 changed his clothes. Other evidence, including eyewitness testimony regarding his 15 clothing at the time of the attack, woul d be sufficient even without Carlos’s 16 statement to the police. 17 {18} In contrast to the permissible inferen ce of tampering that can be drawn from 1812 evidence regarding Defendant’s clothes, th e same inference is not permissible with 1 regard to the knife used in the attack. As in Duran , the weapon used to attack 2 Marisela and Elisa was never found. Eyewitness testimony proved that the knife 3 existed, but this alone does not provi de a meaningful distinction with Duran , where 4 there was little doubt that a killing instrument existed . What was missing in Duran , 5 and what is missing here, is direct or ci rcumstantial evidence that Defendant actively 6 hid, destroyed or otherwise tampered with the knife. See Duran , 2006-NMSC-035, 7 ¶ 15. Unlike evidence of changing or washing clothing, nothing in the record 8 provides a reasonable juror with a basis upon which to infer both an overt act of 9 tampering with the knife and the requisite intent to tamper. Id . The knife simply has 10 not been found, which puts this aspect of the case squarely in line with our opinion 11 in Duran

. 12 {19} However, since the jury instruction required a finding that “the defendant 13 changed or hid his clothing and/or knife,” we assume that the jury based its verdict 14 on the option supported by sufficient evidence—the clothing. See Griffin , 502 U.S. 15 at 59; see also State v. Olguin , 120 N.M. 740, 741, 906 P.2d 731, 732 (1995) ("[D]ue 16 process does not require a guilty verdict to be set aside if an alternative basis of 17 conviction is only factually inadequate to support a conviction."). Accordingly, the 1813 tampering conviction is supported by suffici ent evidence, and we reject Defendant’s 1 challenge on this ground. 2 {20} Although we conclude that the State’s evidence in this case was sufficient to 3 support a conviction for tampering, we note an inconsistency between the statute and 4 the jury instructions that creates a potential for juror confusion. The jury 5 instructions that were given in this case accurately follo w the Uniform Jury 6 Instructions for tampering with evidence: 7 1. The defendant changed or hid his clothing and/or knife; 8 2. The defendant intended to prevent the apprehension, prosecution, 9 or conviction of himself; 10 3. That this happened in New Me xico on or about September 5, 2005. 11 See UJI 14-2241 NMRA. In the statute, the mens reaexplicitly modifies the actus 12

reus : “destroying, changing, hiding . . . with intent to prevent the apprehension, 13 prosecution or conviction of [the defendant].” Section 30-22-5 (emphasis added). 14 However, in the jury instruction, the in tent requirement stands alone, lending itself, 15 incorrectly, to a potential interpretation that anyevidence that the defendant intended 16 to prevent his own apprehension would satisfy the mens rearequirement of the 17 statute. The distinction is subtle but crucial, because our case law allows intent to 18 tamper to be inferred from an overt act. See Duran , 2006-NMSC-035, ¶ 14. Duran 19 was careful to clarify, however, that th e “overt act” from which intent could be 2014 inferred must be an act of tamp ering; that is, “an overt act to destroy or hide 1 [evidence].” Id. ¶ 13. 2 {21} The trial court properly denied Defendant’s motion to dismiss the tampering 3 charge, consistently relying, as we havehere, on evidence pertaining to clothing to 4 support a conviction. However, on appeal the State focu ses on evidence of flight as 5 circumstantial evidence of tampering, argui ng that “[h]ere, . . . the evidence made 6 plain that [D]efendant sought to flee the jurisdiction, . . ., and there can thus be no 7 doubt that his conduct satisfied the intent to prevent the apprehension, prosecution, 8 or conviction of himself . . . .” (Internal quotation marks omitted.) Evidence of 9 flight, when considered with evidence of changed or wet clothing, is at least 10 consistent with an intent to tamper with ev idence. A reasonable juror might assume 11 that an assailant on the run would elect to change his clothes before departing. 12 However, while an intent to flee is consistent with , it is not independently probative 13 of , an intent to tamper. Since the jury in structions do not insist upon the distinction, 14 a juror might look to the plain language and mistakenly assume, as the State has in 15 its brief, that evidence of flight alone satisfies the intent element of the tampering 16 statute. Instead, the State must prove in tent first by evidence of tampering without 17 resort to secondary evidence like flight. The point is not dispositive here because 1815 of sufficient additional evidence. N onetheless, we submit the matter for 1 consideration by the Uniform Jury Instru ctions for Criminal Cases Committee in 2 light of the potential for future error. 3 {22} Finally, while we commend and enc ourage vigorous representation in 4 advocacy, we remind the State of the need to represent the facts accurately to this 5 Court. SeeRule 16-303(A)(1) NMRA. In three separate instances, the State’s brief 6 makes reference to a murder weapon in the abandoned truck: “While on the run, 7 [D]efendant left the murder weapon in hi s truck, which he abandoned at Abiquiu 8 Dam.”; “[D]efendant sought to flee the jurisd iction, after abandoning his truck with 9 the knife in it.”; and “And this, in combination with[D]efendant’s leaving the knife 10 he used in the attack in the truck he abandoned . . . .” The State’s citations to the 11 record do not support these statements. What was found in the truck was a utility 12 knife, and nothing we have been alerted toin the record sugge sts that this utility 13 knife was the murder weapon. Indeed, th e murder weapon was much bigger. Part 14 of the State’s case at trial relied on Marise la’s testimony that Defendant stabbed her 15 with a knife she had given him, which wa s not the utility knife. The State also put 16 on forensic evidence of knife wounds on Elis a that exceeded nine inches in depth, 17 far larger than a utility knife. Simply put, the State’s effort to tie the murder weapon 1816 to the utility knife found in the abandoned truck finds absolutely no support in the 1 record. 2 DEFENDANT’S REMAINING ARGUMENTS LACK MERIT 3 The trial court properly denied Defe ndant’s motion to suppress evidence 4 acquired during Ranger Martinez’ warrantless search of his truck. 5 6 {23} Defendant argues that the trial court erred in denying a motion to suppress 7 evidence found in a garbage bag in the back of Defendant’s truck. He claims that 8 since Ranger Martinez is a government agent, his failure to obtain a search warrant 9 prior to opening the garbage bag violatedDefendant’s rights under both the Fourth 10 Amendment to the United States Constituti on and Article II, S ection 10 of the New 11 Mexico Constitution. In reviewing a trial court’s ruling on a motion to suppress 12 evidence, findings of fact are reviewed to determine if they are supported by 13 substantial evidence and legal conc lusions are reviewed de novo. State v. 14 Vandenberg , 2003-NMSC-030, ¶ 17, 134 N.M. 566, 81 P.3d 19. 15 {24} In order to successfully challenge a search under the United States and New 16 Mexico Constitutions, a defendant must demonstrate that he had an actual, 17 subjective expectation of privacy in the pl ace searched that society is prepared to 18 recognize as reasonable. See Katz v. United States , 389 U.S. 347, 361 (1967); State 19 v. Ryan , 2006-NMCA-044, ¶ 19, 139 N.M. 354, 132 P.3d 1040. Unlike the United 2017 States Constitution, the New Mexico Cons titution has been interpreted to recognize 1 a legitimate expectation of privacy in one ’s garbage, where that garbage has been 2 concealed from plain view. See State v. Granville , 2006-NMCA-098, ¶ 24, 140 3 N.M. 345, 142 P.3d 933. However, “one can re linquish this expectation if he or she 4 abandons the property.” State v. Celusniak , 2004-NMCA-070, ¶ 25, 135 N.M. 728, 5 93 P.3d 10. “‘Abandonment is an ultim ate fact or conclusion based upon a 6 combination of acts and intent,’” id. ¶ 26 (quoting State v. Clark , 105 N.M. 10, 13, 7 727 P.2d 949, 952), and “[i]ntent ‘may beinferred from word s spoken, acts done, 8 and other objective facts,’” State v. Guebara , 119 N.M. 662, 665, 894 P.2d 1018, 9 1021 (Ct. App. 1995) (quoting United States v. Colbert , 474 F.2d 174, 176 (5th 10 Cir.1973)). The party seeking to prove abandonment must show this intent by 11 “‘clear, unequivocal and decisive evidence.’” Celusniak , 2004-NMCA-070, ¶ 26 12 (quoting Clark, 105 N.M. at 13, 727 P.2d at 952). 13 {25} For constitutional purposes, Ranger Martinez was acting as a government 14 agent when he opened the garbage bag in the back of Defendant’s truck. The 15 garbage bag was closed and within the be d of Defendant’s truck, suggesting that 16 Defendant intended to conceal the contents from plain view. However, substantial 17 evidence indicated that Defendant had ab andoned his truck, forfeiting any legitimate 1818 expectation of privacy he may have had in the garbage bag. The truck was left in a 1 public parking lot where overnight parki ng was prohibited. Defendant was later 2 apprehended on foot with th e apparent goal of fleeing th e jurisdiction, suggesting 3 that he intended to abandon the truck wh en he parked at Abiquiu Dam. In State v. 4 Esguerra , 113 N.M. 310, 314, 825 P.2d 243, 247 (Ct. App. 1991), we found 5 abandonment where the defendant had discarded a knapsack in a public parking lot 6 in the course of flight from prosecution. In that case, the item was recovered almost 7 immediately, whereas here the truck remained untouched for two days before Ranger 8 Martinez opened the garbage bag. 9 {26} When viewed in the light most favorable to the trial court’s ruling, substantial 10 evidence supported a conclusion that the truck had been abandoned. As such, 11 Defendant had no legitimate exp ectation of privacy in the truck or its contents, and 12 thus, he has no standing to assert a violation of his constitutional right to be free 13 from unreasonable search. We need notreach the question of whether an 14 unconstitutional search would warrant a new trial. However, we note that even if 15 the search of the garbage bag were unconstitutional, admission of the two items of 16 evidence that were recovered—a receipt and a torn family photo—would have been 17 harmless error. See State v. Downey , 2008-NMSC-061, ¶ 39, 145 N.M. 232, 195 1819 P.3d 1244 (“[E]rror in the admission of eviden ce in a criminal trial must be declared 1 prejudicial and not harmless if there is a reasonable possibility that the evidence 2 complained of might have contributed to the conviction.” (Quoting State v. 3 Fairweather , 116 N.M. 456, 461, 863 P.2d 1077, 1082 (1993).)). 4 {27} Finally, Defendant argues that the poli ce did not have jurisdiction to execute 5 a search warrant upon the truck because the truck sat on federal property. However, 6 in the absence of any factual record sugge sting a federal assertion of exclusive law 7 enforcement jurisdiction over Abiquiu Dam, we indulge in the presumption that the 8 police acted with lawful authority when they seized the truck. See State ex rel. 9 Children, Youth & Families Dep’t v. Debbie F. , 120 N.M. 665, 667, 905 P.2d 205, 10 207 (Ct. App. 1995) (“[T]he ‘exclusive jurisdiction’ provided for in the United 11 States Constitution, art. I, § 8, cl. 17, is not an absolute prohibition against the 12 application of state laws. Rather, its purpose is to protect the federal government 13 against conflicting regulations.”). Furthermore, since the ev idence recovered from 14 the truck was insignificant to the ultimate convictions, any error in admitting such 15 evidence would have been harmless. Fairweather , 116 N.M. at 461, 863 P.2d at 16 1082. 17 Evidence was sufficient to support the convictions for aggravated battery 18 against a household member, attempted second-degree murder, first-degree 1920 murder, and violation of an order of protection. 1 {28} Defendant challenges his convictions for aggravated battery against a 2 household member, attempted second-degree murder, first-degree murder and 3 violation of a protective order, pursuant to State v. Franklin , 78 N.M. 127, 428 P.2d 4 982 (1967), and State v. Boyer , 103 N.M. 655, 712 P.2d 1 (C t. App. 1985). He 5 asserts that the evidence produced at trial was insufficient to support a guilty verdict 6 on those charges. 7 {29} The jury was properly charged with the elements of each offense. See§ 8 30-3-16(A)&(C) (aggravated battery against a household member); § 30-28-1 9 (attempt to commit a felony); § 30-2-1(B) (murder in the second degree); § 30-2-1 10 (A)(1)&(2) (murder in the first degree); § 40-13-6 (family violence protection 11 order). After reviewing De fendant’s limited argument on this point, we are satisfied 12 that the evidence, as summarized herein , was more than sufficient to support each 13 of the convictions. We affirm the convi ctions for first-degree murder, attempted 14 second-degree murder and violation of a protective order. As discussed earlier, the 15 aggravated battery against a household member conviction is reversed on double 16 jeopardy grounds. 17 The trial court did not err in denying the motion to dismiss the indictment. 1821 {30} Defendant’s next claim is also asserted pursuant to Franklin , 78 N.M. 127, 1 428 P.2d 982 and Boyer , 103 N.M. 655, 712 P.2d 1. He argues that the indictment 2 against him should have been dismissed becauseof the errors alleged in his pre-trial 3 motion to dismiss the indictment. That motion alleged procedural errors involving 4 proof of the number of grand jurors finding probable cause, the secrecy of the 5 proceedings, the testimony of the prosecutor, and the use of an interpreter. The 6 motion also alleged substantive errors i nvolving competence of the evidence and the 7 nature of the charges. We reject De fendant’s claim on both procedural and 8 substantive grounds. 9 {31} In a recent opinion, we outlined the procedure a defendant must follow to 10 challenge a grand jury indictment. In Jones v. Murdoch , 2009-NMSC-002, ¶¶ 33- 11 41, 145 N.M. 473, 200 P.3d 523, we established a pre-indictment procedure by 12 which a defendant can ensure that exculpatory evidence comes before the grand jury. 13 Our concern in that case was “the very real damage that an ill-advised indictment 14 may inflict on a target’s reputation even if th e indictment is later dismissed or if the 15 accused is innocent.” Id. ¶ 2. For all other post-indictment challenges, we reiterated 16 the statutory requirement that “a target-turned-defendant must establish bad faith on 17 the part of the prosecutor as a prere quisite to obtaining a dismissal of the 1822 indictment.” Id. ¶ 19; see NMSA 1978, § 31-6-11(A) (2003). 1 {32} The record does not reveal the trial court’s ruling on Defendant’s post2 indictment challenge, but the point is irrelevant because the motion was filed, 3 without waiver from the court, well be yond 90 days after his arraignment. SeeRule 4 5-601(D) NMRA (pretrial motions of this nature must be filed w ithin 90 days of the 5 arraignment absent a waiver of the time requirements by the court upon a showing 6 of good cause); see also State v. Vallejos , 1998-NMCA-151, ¶ 126 N.M. 161, 164, 7 967 P.2d 836, 839 (Ct. App. 1998) (“[W]e agree with the trial court that the motion 8 [challenging indictment] was untimely, and we affirm on this basis.”). 9 {33} Defendant also failed to es tablish, either in his initial motion or his appeal to 10 this Court, bad faith on behalf of the prosecuting attorney during the grand jury 11 proceedings. As we held in State v. Gallegos , 2009 -NMSC- 017, ¶ 11, 146 N.M. 12 88, 206 P.3d 993, “‘[i]n the absence of prosecutorial bad faith, there is no clear 13 statutory authority for judicial review, . . . [and] in the absence of clear statutory 14 authority for judicial review, . . . the grand jury’s determination of probable cause 15 is conclusive.” Id. ¶ 11 (quoting State v. Romero , 2006-NMCA-105, ¶ 8, 140 N.M. 16 281, 142 P.3d 362). Finally, any challenge to an indictment implicitly assumes that, 17 absent the challenged event or conduct, there would not have been a finding of 1823 probable cause to warrant further prosecuti on. After a trial on the merits, however, 1 “‘any question of probable cause is nece ssarily obviated’ by the jury’s finding of 2 guilt.” Gallegos , 2009-NMSC-017, ¶ 19 (quoting State v. Ulibarri , 2000-NMSC3 007, ¶ 2, 128 N.M. 686, 997 P.2d 818). Similarly, any error with regard to the 4 charges has since been cured by proper juryinstruction and by our treatment of the 5 convictions in this Decision. By affirming Defendant’s convictions, we have 6 affirmed the jury’s findings not only of probable cause, but of guilt beyond a 7 reasonable doubt. See Ulibarri , 2000-NMSC-007, ¶ 2. 8 The trial court did not err in ruling onpre-trial discovery requests. 9 {34} Defendant’s remaining argument is that the trial court erre d in failing to make 10 additional members of the victims’ familyavailable for interviews. We review 11 challenges to a trial judge’s discovery rulings under an abuse of discretion standard, 12 and then only when the issue has been properly preserved. State v. Desnoyers , 2002- 13 NMSC-031, ¶ 132 N.M. 756, 768, 55 P.3d 968, 980 (2002) (“The granting or denial 14 of discovery in a criminal case ‘is a matter peculiarly within the discretion of the 15 trial court’ which we revi ew under an abuse of discre tion standard.” (Quoting State 16 v. Bobin , 103 N.M. 375, 377, 707 P.2d 1185, 1187 (Ct. App. 1985).)); State v. 17 Varela , 1999-NMSC-045, ¶ 25, 128 N.M. 455, 993 P.2d 1280 (“In order to preserve 1824 an error for appeal, ‘it is essential that the ground or grounds of the objection or 1 motion be made with sufficient specificity toalert the mind of the trial court to the 2 claimed error or errors, and that a ruli ng thereon then be invoked.’” (Quoting State 3 v. Lopez , 84 N.M. 805, 809, 508 P.2d 1292, 1296 (1973).)). Defendant failed to 4 preserve this argument below and cites no authority other than Franklinand Boyer 5 for the proposition that the trial court abusedits discretion. Wetherefore conclude 6 that this argument lacks merit. 7 CONCLUSION 8 {35} We reverse Defendant’s conviction for aggravated battery against a household 9 member, we affirm the remaining convictions and remand to the district court for 10 entry of an amended judgment and sentence consistent with this Decision. 11 {36} IT IS SO ORDERED

. 12

13 RICHARD C. BOSSON, Justice 1425 WE CONCUR: 1

2 EDWARD L. CHÁVEZ, Chief Justice 3

4 PATRICIO M. SERNA, Justice 5

6 PETRA JIMENEZ MAES, Justice 7

8 CHARLES W. DANIELS, Justice 9