This decision of the Supreme Court of New Mexico was not selected for publication in 

the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the 

citation of unpublished decisions. Electronic decisions may contain computergenerated errors or other deviations from the official version filed by the Supreme Court.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: February 20, 2020

No. S-1-SC-36782

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

WILLIAM YORK,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Brett Loveless, District Judge

Bennett J. Baur, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General

Maha Khoury, Assistant Attorney General

Santa Fe, NM

for Appellee

DECISION

VIGIL, Justice.

{1} In this direct appeal, Defendant William York asks this Court to reverse his 

convictions of first-degree murder and conspiracy to commit first-degree murder. 

Broadly, Defendant argues that the State failed to present sufficient evidence to sustain 

his convictions. In addition, Defendant asserts that the district court erred in admitting 

his co-defendant’s alleged out-of-court accusation against him, admitting certain 

evidence of his drug use, excluding evidence of his co-defendant’s guilty plea, 
instructing the jury on accomplice liability, and sentencing him in violation of the 

principles of double jeopardy. For the following reasons, we reject Defendant’s 

arguments and affirm his convictions and sentences.

I. Background

{2} Defendant was convicted of first-degree murder, conspiracy to commit firstdegree murder, and tampering with evidence. The events leading to the murder center 

on a dispute between Steve Maliq Swayne and Cory Coyner (Victim). The evidence 

showed that Defendant conspired with Swayne to kill Victim at Michele Freer’s 

apartment. Both Swayne and Freer were indicted on counts of first-degree murder and 

pleaded to various crimes associated with the killing. Of the trio, only Defendant went to 

trial. The evidence tells the following story.

{3} Swayne was a drug dealer whose customers included Victim, Defendant, and 

Freer. According to the testimony of Victim’s fiancé, there was a dispute between 

Swayne and Victim over a debt Swayne owed Victim. When Swayne failed to repay the 

debt, Victim stole a set of Swayne’s guns. 

{4} On the morning of the killing, Defendant and Swayne were at Freer’s apartment. 

Victim stopped by the apartment to speak with Swayne and buy drugs for his friend, 

Nicole Chavez. According to Defendant, after Victim arrived, Swayne pulled Defendant 

into a bedroom and explained that Victim was the one who had stolen from him. 

Swayne then gave Defendant a gun and told him to accompany Victim on a drug deal. 

Freer testified that she heard Swayne tell Defendant, “You got this” or “You got it.”

Before leaving for the drug deal, Defendant pulled out the gun, fired in the direction of 

Victim’s feet, and said, “You don’t mess with my boy. You don’t fuck with my friends.” 

Defendant and Victim then left the apartment and joined Chavez, who was waiting for 

Victim in his truck. 

{5} According to Chavez, Victim drove to a motel where he needed to “pick up 

something” for Swayne. Once Victim exited the vehicle, Defendant turned to Chavez 

and told her that he “didn’t keep any witnesses.” When Victim returned to the truck, 

Chavez noticed that Defendant had a gun in his lap. Defendant told police that he 

warned Victim not to do anything stupid and told him that if he did, Defendant would “put 

one in [him] real quick[.]” Chavez testified that on the way back to Freer’s apartment, 

Defendant called Swayne and told him, “I have him in the car. Are you ready to do this 

now?”

{6} According to Freer, when Victim and Defendant returned to her apartment Victim 

seemed “worried” and Defendant was “[p]hysically spastic.” Freer testified that 

Defendant was aggravated and kept saying how much he liked Victim’s truck. Victim 

asked Defendant not to take his truck, apologized to Swayne for stealing from him, and 

told the group that he was going to start school and start a new life. After Victim 

apologized, Freer noticed Swayne and Defendant make “noticeable” eye contact. She 

called the eye contact “an acknowledgement.” 
{7} Freer testified that Victim then asked to use the restroom, and Defendant 

followed behind him. Moments later, Freer heard a gunshot and Defendant returned 

from the bathroom demanding that everyone leave immediately and saying, “He’s gone, 

let’s go.” Swayne responded, “Dude, dude, now?” Defendant, Swayne, and Freer left 

the apartment, piled into Victim’s truck, and Defendant drove the group away. 

{8} The jury convicted Defendant of first-degree, willful and deliberate murder, 

contrary to NMSA 1978, Section 30-2-1(A)(1) (1994); conspiracy to commit first-degree 

murder, contrary to NMSA 1978, Section 30-28-2 (1979); and tampering with evidence, 

contrary to NMSA 1978, Section 30-22-5 (2003). Defendant appeals his convictions of 

first-degree murder and conspiracy to commit first-degree murder pursuant to this 

Court’s jurisdiction under Article VI, Section 2 of the New Mexico Constitution and Rule 

12-102(A)(1) NMRA. As the questions of law presented in this appeal are sufficiently 

answered by New Mexico precedent, we exercise our discretion under Rule 12-

405(B)(1) NMRA to explain our conclusions by way of this non-precedential decision.

II. Discussion

{9} Defendant makes a number of arguments on appeal. We first address his claims 

that the district court erred when it (A) admitted a statement allegedly made by his codefendant in violation of Defendant’s rights under the Confrontation Clause; (B) 

admitted Defendant’s police interview over objection that it was irrelevant and more 

prejudicial than probative; (C) excluded evidence that his co-defendant pleaded guilty to 

second-degree murder for the death of Victim; (D) instructed the jury on accomplice 

liability absent evidence to support an accomplice theory; and (E) “enhanced” 

Defendant’s sentence for a crime resulting in the death of a human being in violation of 

his rights under the Double Jeopardy Clause. We then address Defendant’s argument 

that the State failed to present sufficient evidence to support his convictions. In 

accordance with the applicable legal standards of review, our examination of the 

proceedings and evidence presented at trial leads us to reject Defendant’s arguments 

on appeal and affirm his convictions and sentences. 

A. Confrontation Clause

{10} We turn first to Defendant’s argument under the Confrontation Clause. The 

Confrontation Clause of the Sixth Amendment of the United States Constitution “bars 

the ‘admission of testimonial statements of a witness who did not appear at trial unless 

he was unavailable to testify, and the defendant had had a prior opportunity for crossexamination.’ ” State v. Lopez, 2007-NMSC-037, ¶ 19, 142 N.M. 138, 164 P.3d 19 

(quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004)). Defendant asserts that 

his confrontation rights were violated when he was unable to cross-examine Swayne, 

his co-defendant, about what Swayne apparently told an investigating police officer 

about the murder. 

{11} In order to assess whether the admission of Swayne’s apparent statement to 

police violated Defendant’s confrontation rights, we must unpack a question asked by 
Officer Joshua Brown when he interviewed Defendant following the murder. The State 

introduced a redacted recording of that interview into evidence during Officer Brown’s 

testimony. In the interview, Officer Brown asked, “[W]hy would they tell me that you 

were the trigger man?” Defendant’s answer inferred that the term “they” in Officer 

Brown’s question referred to Swayne and Freer. By asking why “they [would] tell me you 

were the trigger man,” Officer Brown was implicitly saying that Swayne and Freer 

accused Defendant of the murder. Defendant argues that this implicit accusation was an 

out-of-court statement by a witness who did not testify (Swayne). Therefore, Defendant 

claims the admission of Officer Brown’s question violated his right to confront Swayne at 

trial. 

{12} We review claimed violations of the Sixth Amendment right to confrontation de 

novo. State v. Tollardo, 2012-NMSC-008, ¶ 15, 275 P.3d 110. Because Defendant 

failed to adequately preserve this issue at trial, we review for fundamental error. See 

State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633.

1. Preservation

{13} Defendant did not preserve his argument under the Confrontation Clause 

because he failed to object specifically to the admission of Officer Brown’s triggerman 

question on confrontation grounds. “In order to preserve an error for appeal, it is 

essential that the ground or grounds of the objection or motion be made with sufficient 

specificity to alert the mind of the trial court to the claimed error or errors, and that a 

ruling thereon then be invoked.” State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 

993 P.2d 1280 (internal quotation marks and citation omitted); see also Rule 12-321(A) 

NMRA (“To preserve an issue for review, it must appear that a ruling or decision by the 

trial court was fairly invoked.”). At no point during the trial in this case did Defendant 

object to the particular portion of the interview when Officer Brown asked why “they” had 

called Defendant the trigger man. Instead, Defendant raised only general objections to 

the admission of the entire recorded interview, and he did so on three occasions. 

{14} Defendant’s first general objection came the day before the jury heard the 

recorded police interview. Defendant objected to the admission of the recording on 

hearsay grounds related to “probably like [twenty] or more statements” throughout the 

interview, including double hearsay within the officers’ questions. The district court 

reviewed the interview recording and identified several issues from the bench, including 

a potential violation of the right of confrontation. Specifically with respect to the 

triggerman question, the district court noted that the term “they” presumably referred to 

Swayne and Freer and that because Swayne did not testify, admission of this portion of 

the interview “would arise to a [C]onfrontation [C]lause problem.” The district court then 

sustained Defendant’s objection to the admission of the interview recording in the form it 

was initially presented by the State.

{15} The State then asked the district court if it could introduce a version of the

interview that would “exclude those statements that the Court ha[d] found objectionable 

or otherwise inadmissible.” To accommodate this request, the district court ordered the 
parties to review a transcript of the interview together during a recess and stipulate to 

those portions of the interview they deemed to be admissible. The district court then 

directed the parties to make specific objections to any portions of the interview that 

remained in dispute. The district court explicitly instructed the parties to go line by line 

through the transcript of the recording and then “actually point to me what exactly I’m 

deciding.” 

{16} When the district court returned from recess, the State reported that the parties 

were unable to agree on admissibility. Although the district court had given Defendant 

ample opportunity to formulate specific objections to particular lines of the interview 

transcript, Defendant did not raise an objection to the triggerman question at this time. 

Rather, Defendant raised a second general objection on the basis that “there are some 

pages [where the officer] starts discussing what Swayne said, which is hearsay and 

confrontation. There’s a lot of ‘they,’ as the Court noted in some of that, also.” 

Acknowledging that the parties were at an impasse, the district court decided to go 

through the transcript of the interview on its own and “mark up” and “highlight what’s in, 

what’s out.” The district court said it would do so with the general objections in mind, 

including hearsay and “some confrontation mixed in there.”

{17} Before the jury was brought in the next day, the district court presented its 

marked-up version of the interview transcript revealing the necessary redactions based 

on Defendant’s general objections, and it reminded the parties that it had pressed them 

for “specific objections as to particular portions.” The district court’s marked-up 

transcript was then used to redact the interview recording based on what the court 

determined to be inadmissible.

{18} After the redaction was completed, Defendant made his final general objection to 

the admission of the recorded interview but again failed to raise a specific objection that 

the triggerman question violated his rights under the Confrontation Clause. Ultimately, 

the triggerman question was played for the jury, and Defendant did not object. 

{19} Despite being given several opportunities by the district court, Defendant failed to 

specifically object to the triggerman question as a violation of his rights under the 

Confrontation Clause. It is incumbent upon the parties to direct the district court to 

specific objections, rather than relying on the district court to identify on its own what 

parties may find objectionable. Because Defendant failed to make a specific objection to 

the triggerman question he challenges before us now, we conclude that he failed to 

preserve this issue. Since the issue was not preserved, we review Defendant’s claimed 

violation of his confrontation rights for fundamental error. See Barber, 2004-NMSC-019, 

¶ 8.

2. Admission of the triggerman question was not fundamental error

{20} In reviewing the admission of the triggerman question for fundamental error 

under the Confrontation Clause, “we first determine if error occurred; if so, we next 

determine whether that error was fundamental.” State v. Astorga, 2015-NMSC-007, ¶ 
14, 343 P.3d 1245 (internal quotation marks and citation omitted). To implicate the 

Confrontation Clause, the out-of-court statement at issue must be “both testimonial and 

offered to prove the truth of the matter asserted.” State v. Navarette, 2013-NMSC-003, 

¶ 7, 294 P.3d 435. Statements of a co-defendant “elicited by police officers investigating 

[a crime] are testimonial.” State v. Lopez, 2007-NMSC-049, ¶ 14, 142 N.M. 613, 168 

P.3d 743.

{21} Defendant argues that his rights under the Confrontation Clause were violated by 

the admission of the triggerman question because he was unable to cross-examine 

Swayne regarding his apparent out-of-court accusation to police that Defendant killed 

Victim. The State does not directly rebut Defendant’s claim of error but instead asserts 

that any error in the admission of the triggerman question was harmless. Based on this 

posture, and because we lack sufficient information in the record to assess the 

circumstances under which Swayne allegedly accused Defendant of being the trigger 

man, we assume without deciding that the admission of Officer Brown’s question 

violated Defendant’s confrontation rights. We now consider whether this assumed 

constitutional violation was fundamental error.

Under the doctrine of fundamental error, an appellate court has the 

discretion to review an error that was not preserved in the trial court to 

determine if a defendant’s conviction shock[s] the conscience because 

either (1) the defendant is indisputably innocent, or (2) a mistake in the 

process makes a conviction fundamentally unfair notwithstanding the 

apparent guilt of the accused. 

Astorga, 2015-NMSC-007, ¶ 14 (alteration in original) (internal quotation marks and 

citation omitted).

{22} Despite the admission of the triggerman question, Defendant’s convictions do not 

shock the conscience of this Court. First, Defendant is not “indisputably innocent.” Id. As 

we will explain, the properly admitted evidence was sufficient to support Defendant’s 

convictions. Second, the admission of the triggerman question does not make the 

conviction “fundamentally unfair notwithstanding the apparent guilt of the accused.” Id.

Before redacting the interview, the district court thoroughly reviewed the transcript of the 

recorded interview and discussed Defendant’s objections at length with the parties in an 

effort to allow both sides to fairly present and object to the proffered evidence. Any error 

based on the admission of Officer Brown’s question—“[W]hy would they tell me you 

were the trigger man?”—in the redacted version of the interview that was ultimately 

admitted into evidence does not invite doubt as to the fundamental fairness of 

Defendant’s convictions. Because there was overwhelming evidence of Defendant’s 

guilt, and the district court took great care in reviewing and redacting the interview 

transcript, Defendant’s convictions do not shock our conscience. We therefore conclude 

that the assumed violation of Defendant’s confrontation rights was not fundamental 

error requiring reversal of his convictions.

B. Admission of Defendant’s Police Interview
{23} Defendant argues that references to his drug use within the recorded police 

interview were admitted in violation of Rules 11-403 and 11-404(B) NMRA. The district 

court redacted the police interview based on Defendant’s objections to relevancy and 

prejudice related to his drug use. Defendant asserts that the district court did not 

remove “over twenty references to drug use,” and those references were “highly 

prejudicial.” We review the admission or exclusion of evidence for abuse of discretion, 

see State v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641, and we 

address each alleged rule violation in turn. 

{24} First, under Rule 11-403, a “court may exclude relevant evidence if its probative 

value is substantially outweighed by the danger of unfair prejudice.” Since assessing the 

risk of unfair prejudice is highly fact-determinative, “much leeway is given trial judges 

who must fairly weigh probative value against probable dangers.” State v. Otto, 2007-

NMSC-012, ¶ 14, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation 

omitted). 

{25} At trial, the district court explained that it did not remove every reference to 

Defendant’s drug use from the recorded interview because those references “seemed to 

provide a complete picture, the context of what was happening that day.” Specifically in 

regard to the Rule 11-403 prejudice analysis, the district court stated that the prejudice 

caused by references to Defendant’s drug use “certainly was reduced when you 

compare it to the relevance.”

{26} Giving just leeway to the decision of the district court, we conclude that admitted 

references to Defendant’s drug use in the recorded interview were not unduly prejudicial 

and did not violate Rule 11-403. The prejudicial effect of these references was minimal 

as evidence of drug use pervaded the trial. Each person present on the day of the killing 

(Defendant, Victim, Swayne, Freer, and Chavez) all used or sold drugs. In particular, 

evidence of Defendant’s own drug use had already been introduced through witness 

testimony by the time the jury heard the recorded police interview. Evidence was 

presented that Defendant accompanied Victim to a drug deal in the hours leading up to 

Victim’s death. Freer testified that Defendant was “very much high” and acting 

“[t]weaked” before he shot Victim. Because Defendant was not unduly prejudiced, we 

conclude that the district court did not abuse its discretion in admitting certain 

references to Defendant’s drug use in the recorded interview.

{27} In addition to arguing the prejudicial effect of the references to his drug use in the 

recorded interview, Defendant asserts that those references should have been excluded 

as inadmissible propensity evidence under Rule 11-404(B). Pursuant to that rule, 

“[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a 

person in order to show action in conformity therewith.”

{28} Defendant’s argument for exclusion of evidence of his drug use under Rule 11-

404(B) is unavailing. Evidence of prior bad acts is inadmissible to show the defendant’s 

“disposition to commit the crime charged.” State v. Lucero, 1992-NMCA-107, ¶ 9, 114 

N.M. 489, 840 P.2d 1255 (emphasis added). Had this been a trial for drug crimes, then 
references to Defendant’s drug use would likely be inadmissible to demonstrate 

Defendant’s propensity to violate drug laws. Here, however, Defendant was not charged 

with a drug-related offense; he was charged with murder, conspiracy to commit murder, 

assault, and tampering with evidence. References to Defendant’s drug use do not 

reveal a propensity or disposition to commit the violent crimes charged. Therefore, the 

district court did not abuse its discretion in admitting evidence of Defendant’s drug use 

within the recorded police interview.

C. Co-Defendant’s Plea and Disposition Agreement

{29} Swayne pleaded guilty to second-degree murder and conspiracy to commit firstdegree murder for the death of Victim. At trial, Defendant sought to admit Swayne’s plea 

and disposition agreement to support the defense’s theory that Defendant was not the 

one who killed Victim. The district court ruled in limine that the plea and disposition was 

inadmissible hearsay and could not be admitted. In addition, the district court ruled that 

Swayne’s plea and disposition agreement was not relevant because he pleaded guilty 

under an aiding and abetting theory. In that respect, because he pleaded guilty as an 

accomplice to the murder, Swayne’s plea did not make it less probable that Defendant 

actually fired the shot that killed Victim. 

{30} Defendant argues that the district court’s exclusion of Swayne’s guilty plea 

violated his constitutional right “to present a complete defense,” Holmes v. South 

Carolina, 547 U.S. 319, 324 (2006), and he asks this Court to review the exclusion of 

the plea under a de novo standard. See State v. Attaway, 1994-NMSC-011, ¶ 8, 117 

N.M. 141, 870 P.2d 103 (applying a de novo standard to threshold constitutional 

issues). We disagree. The exclusion of Swayne’s plea did not deny Defendant the 

opportunity to present a complete defense. Defendant could have called Swayne to 

testify and questioned him regarding his role in the killing. Since Swayne had already 

pleaded guilty, he did not have a Fifth Amendment right not to testify. See State v. 

Ramirez, 2011-NMSC-025, ¶ 8, 149 N.M. 698, 254 P.3d 649. For this reason, the 

exclusion of the plea did not foreclose Defendant’s ability to present evidence of 

Swayne’s guilt and therefore did not violate Defendant’s constitutional right to present a 

complete defense. Accordingly, we review the exclusion of Swayne’s plea for an abuse 

of discretion. See State v. Montoya, 2014-NMSC-032, ¶ 15, 333 P.3d 935. 

{31} “An abuse of discretion occurs when the ruling is clearly against the logic and 

effect of the facts and circumstances of the case. We cannot say the trial court abused 

its discretion by its ruling unless we can characterize it as clearly untenable or not 

justified by reason.” State v. Aguilar, 2019-NMSC-017, ¶ 28, 451 P.3d 550 (internal 

quotation marks and citation omitted).

{32} We conclude that the district court did not abuse its discretion when it excluded 

Swayne’s guilty plea and disposition agreement because Swayne’s plea was 

inadmissible hearsay that did not meet an exception. It is well established that a codefendant’s guilty plea is hearsay if offered as substantive evidence. See Tollardo, 

2012-NMSC-008, ¶¶ 18, 20. Nonetheless, a co-defendant’s guilty plea may be 
admissible to impeach the testimony of a co-defendant, id. ¶ 20, but because Swayne 

did not testify at Defendant’s trial, his plea could not be admitted to impeach him. We 

conclude therefore that the district court did not abuse its discretion by excluding 

Swayne’s plea and disposition agreement on hearsay grounds. Because we reach this 

conclusion, we need not address Defendant’s remaining claims of error on this issue.

D. Accomplice Liability

{33} At trial, Defendant objected to instructing the jury on accomplice liability, arguing 

that the State had failed to put on evidence to support a theory that Defendant was an 

accessory to the killing. Defendant maintains this argument on appeal and further 

contends that the jury was confused or misdirected by the instructions on accomplice 

liability. We conclude that the jury was properly instructed on accomplice liability and 

there is no indication of juror confusion based on the instructions given.

1. Accessory instruction

{34} We consider the “propriety of jury instructions given or denied . . . a mixed 

question of law and fact” that we review de novo. State v. Henley, 2010-NMSC-039, ¶ 

12, 148 N.M. 359, 237 P.3d 103 (internal quotation marks and citation omitted). The 

accessory instruction given in this case explained that Defendant may be found guilty of 

a crime even if Defendant did not do the physical act of the crime, as long as the State 

proved beyond a reasonable doubt that (1) “[D]efendant intended that the crime be 

committed;” (2) “the crime was committed;” and (3) “[D]efendant helped, encouraged or 

caused the crime to be committed.” The instruction given was the uniform jury 

instruction on accomplice liability in use at the time of Defendant’s trial, UJI 14-2822 

NMRA (2017). The first use note to this UJI states that the instruction should be used “if 

the evidence supports liability as [a] . . . co-conspirator regardless of whether 

conspiracy is charged[.]” 

{35} There is no “distinction between accessory and principal liability” in New Mexico. 

State v. King, 2015-NMSC-030, ¶ 21, 357 P.3d 949. A charge against a defendant as a 

principal includes “a corresponding accessory charge” if supported by the evidence at 

trial. Id. (internal quotation marks omitted). 

{36} As we explain later in this decision, there was sufficient evidence to support 

Defendant’s conviction for conspiracy to commit first-degree murder. Since the evidence 

supported the conspiracy charge, it was sufficient to support an accessory charge to 

correspond with the charge that Defendant was the principal perpetrator of the murder. 

UJI 14-2822 NMRA (2017). Thus, in accordance with the first use note of the UJI and 

applicable precedent, the district court was correct to instruct the jury on accomplice 

liability. 

2. Jury confusion
{37} We turn to Defendant’s argument that the jury was confused by the accessory 

instruction. We review preserved issues related to defective jury instructions for 

reversible error, asking “whether a reasonable juror would have been confused or 

misdirected by the jury instruction.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 

258, 34 P.3d 1134 (internal quotation marks and citation omitted). “[J]uror confusion or 

misdirection may stem . . . from [(1)] instructions that are facially contradictory or 

ambiguous, . . . [or (2)] instructions which, through omission or misstatement, fail to 

provide the juror with an accurate rendition of the relevant law.” Id.

{38} Defendant does not assert that the accessory instruction was “facially 

contradictory or ambiguous,” nor does he argue that the instruction “fail[ed] to provide 

. . . an accurate rendition of the relevant law.” Id. Instead, Defendant claims the jury 

must have been confused on the proper application of accomplice liability because it 

asked the district court a question during deliberations. 

{39} The jury sent the district court a note asking whether it could convict Defendant 

of murder on an accomplice theory even if it believed that Defendant “did not personally 

kill the victim.” While this question may reveal general confusion regarding accomplice 

liability, there is no evidence that the confusion stemmed from an error in the 

instructions given. Accordingly, we reject Defendant’s argument that the accessory 

instruction confused or misled the jury.

E. Double Jeopardy

{40} Defendant argues that his fifteen-year sentence for conspiracy to commit firstdegree murder violated the prohibition against multiple punishments for the same 

conduct under the United States and New Mexico constitutions. See State v. Torres, 

2018-NMSC-013, ¶¶ 15-16, 413 P.3d 467 (explaining that double jeopardy can be 

violated when “a defendant is convicted under different statutes but the same criminal 

conduct is the basis underlying the multiple charges”). Under the sentencing statute, a 

second-degree felony that results in death carries a longer sentence than a seconddegree felony that does not result in death. NMSA 1978, § 31-18-15(A)(4), (7) (2016). 

Defendant contends that he was impermissibly punished twice for the death of Victim: 

once for the first-degree murder and once for the conspiracy to commit first-degree 

murder, which is a second-degree felony resulting in death. For the reasons that follow, 

we reject this argument and affirm Defendant’s sentences.

{41} Whether Defendant’s sentences violate double jeopardy is a question of law 

which we review de novo. State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. The 

Double Jeopardy Clause of the United States Constitution, incorporated to the states in 

Benton v. Maryland, 395 U.S. 784, 794 (1969), provides that “[n]o person shall . . . be 

twice put in jeopardy of life or limb[.]” U.S. Const. amend. V. Similarly, the New Mexico 

Constitution states that “[n]o person shall . . . be twice put in jeopardy for the same 

offense[.]” N.M. Const. art. II, § 15. To determine whether double jeopardy has been 

violated under a theory of unitary conduct, as Defendant argues, the Court asks (1) 

“whether the conduct underlying the offenses is unitary, i.e., whether the same conduct 
violates both statutes” and (2) whether “the legislature intended to create separately 

punishable offenses” in the statutes at issue. Swafford v. State, 1991-NMSC-043, ¶ 25, 

112 N.M. 3, 810 P.2d 1223. If the conduct is unitary, and the Legislature did not intend 

to create separately punishable offenses, then “the double jeopardy clause prohibit[s] 

multiple punishment in the same trial.” Id. However, “[i]f the Legislature clearly 

authorized multiple punishments the analysis is over, and there is no double jeopardy 

violation.” Torres, 2018-NMSC-013, ¶ 21. Defendant argues that his sentence for the 

conspiracy conviction was “enhanced” based on the death of Victim, thereby punishing 

him twice for the same conduct of killing Victim. We disagree for two reasons.

{42} First, we conclude that the conduct underlying Defendant’s convictions and 

sentences for murder and conspiracy was not unitary. There are two instances of 

criminal conduct at issue here. The first is the act of shooting and killing Victim, for 

which Defendant was convicted of first-degree murder. The second is the act of 

engaging in a conspiracy, which is defined as “knowingly combining with another for the 

purpose of committing a felony.” Section 30-28-2(A). Because the conspiracy in this 

case resulted in the death of Victim, Defendant was punished more severely for the act 

of conspiring to kill. See Section 31-18-15(A)(4). As we have stated, the “resulting in 

death” language of Section 31-18-15(A)(4) is merely a factual consequence of a crime 

and does not describe conduct. See State v. McDonald, 2004-NMSC-033, ¶ 18, 136 

N.M. 417, 99 P.3d 667. Defendant was appropriately punished for each act of criminal 

conduct.

{43} Second, we conclude that Defendant’s conspiracy sentence was not “enhanced” 

due to the death of Victim. Rather, Defendant received the appropriate basic sentence 

for a second-degree felony that resulted in death. Conspiracy to commit first-degree 

murder is a second-degree felony. Section 30-28-2(B)(1). The basic sentence for a 

second-degree felony is nine years imprisonment. Section 31-18-15(A)(7). The basic 

sentence for a second-degree felony that results in the death of a human being is fifteen 

years imprisonment. Section 31-18-15(A)(4). The Legislature clearly intended to punish 

felonies that resulted in death more severely than felonies that did not. See State v. 

Franco, 2016-NMCA-074, ¶¶ 21, 28, 31, 387 P.3d 279, cert. denied, (S-1-SC-35986, 

Aug. 1, 2016). 

{44} Because the conduct underlying his convictions and sentences for first-degree 

murder and conspiracy to commit first-degree murder was not unitary, and because the 

Legislature intended harsher punishments for crimes resulting in death, we conclude 

that Defendant’s rights under the Double Jeopardy Clause were not violated. 

Accordingly, we affirm his sentences.

F. Sufficiency of the Evidence

{45} Defendant argues that the State failed to present sufficient evidence that (1) 

Defendant acted with the deliberate intent required of first-degree murder, (2) Defendant 

was engaged in a conspiracy to kill Victim, and (3) Defendant acted as an accomplice. 

Our review of the sufficiency of the evidence is “highly deferential” to the verdict. State 
v. Dowling, 2011-NMSC-016, ¶ 20, 150 N.M. 110, 257 P.3d 930. Accordingly, we ask 

“whether substantial evidence of either a direct or circumstantial nature exists to support 

a verdict of guilt beyond a reasonable doubt with respect to every element essential to a 

conviction.” Id. (internal quotation marks and citation omitted). Substantial evidence is 

relevant evidence that “a reasonable mind might accept as adequate to support a 

conclusion[.]” State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 

(internal quotation marks and citation omitted). 

Evidence is viewed in the light most favorable to the guilty verdict, 

indulging all reasonable inferences and resolving all conflicts in the 

evidence in favor of the verdict. In particular, New Mexico appellate courts 

will not invade the jury’s province as fact-finder by second-guessing the 

jury’s decision concerning the credibility of witnesses, reweighing the 

evidence, or substituting its judgment for that of the jury. So long as a 

rational jury could have found beyond a reasonable doubt the essential 

facts required for a conviction, we will not upset a jury’s conclusions.

State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (alterations, 

internal quotation marks, and citations omitted). 

1. Deliberate intent to kill

{46} Defendant argues that the State failed to show that he had the deliberate 

intention to kill Victim. The jury was instructed that a deliberate intention is one that is 

“arrived at or determined upon as a result of careful thought and the weighing of the 

consideration for and against the proposed course of action.” The jury instructions 

further explained that “[a] calculated judgment and decision may be arrived at in a short 

period of time” and that “[a] mere unconsidered and rash impulse, even though it 

includes an intent to kill, is not a deliberate intention to kill.” Finally, the jury was 

instructed that “[t]o constitute a deliberate killing, the slayer must weigh and consider 

the question of killing and his reasons for and against such a choice.”

{47} We have held that evidence of deliberate intent “can include earlier 

confrontations or other common areas of friction leading to violence, or fleeing the 

scene, disposing of evidence, or concocting false alibis[.]” State v. Smith, 2016-NMSC007, ¶ 20, 367 P.3d 420 (alterations, omissions, internal quotation marks, and citations 

omitted). Motive and manner of killing can also support a finding of deliberate intention. 

E.g., id. ¶¶ 20-22; State v. Rojo, 1999-NMSC-001, ¶ 24, 126 N.M. 438, 971 P.2d 829. 

{48} We conclude in this case that the State presented sufficient evidence to prove 

that Defendant had the deliberate intention to kill Victim. First, Defendant’s own 

statements reflect premeditation and deliberate intent. Defendant told Victim while in his 

truck that he would “put one in [him] real quick” and he told Chavez that he did not 

“keep any witnesses.” According to Chavez’s testimony, on their way back to Freer’s 

apartment, Defendant called Swayne and said, “I have him in the car. Are you ready to 

do this now?” Second, Defendant’s prior confrontation with Victim supports a finding of 
deliberate intent. According to Freer, Defendant shot at Victim’s legs, threatening Victim 

by saying, “You don’t mess with my boy. You don’t fuck with my friends.” Finally, 

Defendant had several plausible motives to kill Victim. Defendant may have wanted 

revenge for his friend Swayne after Victim stole from Swayne. He may have wanted to 

take Victim’s truck. He may have been paid to do the murder by Swayne, as Swayne 

gave him the money from the drug deal just before Victim was shot. The evidence 

supports any one of these motives and those motives, in turn, support a finding of 

Defendant’s deliberate intention to kill Victim.

2. Conspiracy 

{49} Defendant argues that the State did not present sufficient evidence of a 

conspiracy between Defendant and Swayne to kill Victim. To find Defendant guilty of 

conspiracy to commit first-degree murder, the jury was instructed that it must find that 

“[D]efendant and another person by words or acts agreed together to commit first 

degree murder by a deliberate killing . . . [and D]efendant and the other person intended 

to commit first degree murder by a deliberate killing.” To prove conspiracy it is not 

necessary “to prove a formal agreement to accomplish the illegal act. The crime of 

conspiracy is rarely susceptible of proof by direct evidence. Nevertheless, it can be 

established by circumstantial evidence.” State v. Deaton, 1964-NMSC-062, ¶ 5, 74 N.M. 

87, 390 P.2d 966. The agreement underlying a conspiracy is “generally a matter of 

inference deduced from the facts and circumstances, and from the acts of the person 

accused done in pursuance of an apparent criminal purpose.” Id. ¶ 6.

{50} Viewing the evidence in the light most favorable to the jury’s verdict, we conclude 

that the State presented sufficient evidence to support Defendant’s conviction of 

conspiracy to commit first-degree murder. First, according to Defendant’s own version 

of events, Swayne told Defendant that he had been wronged by Victim and asked 

Defendant to come to Freer’s apartment on the day of the killing. Swayne then gave 

Defendant a gun and told him to threaten Victim while accompanying Victim on a drug 

deal. Next, Chavez testified that Defendant called Swayne to ask if he was “ready to do 

this” as Victim and Defendant drove back to Freer’s apartment. Finally, Freer testified 

that she watched Defendant and Swayne communicating in hushed tones and body 

language, and that at one point before the killing, Swayne told Defendant, “You got this” 

or “You got it.” Immediately before the killing, Freer testified that Swayne and Defendant 

made acknowledging eye contact. All this evidence leads to a supported inference that 

Swayne and Defendant had a mutual design to kill Victim. 

3. Accomplice liability

{51} Defendant argues that the State failed to prove that he was an accomplice to the 

murder, so the jury should not have been instructed on accomplice liability. A conviction 

on an accomplice theory cannot be based in mere speculation. State v. Vigil, 2010-

NMSC-003, ¶ 19, 147 N.M. 537, 226 P.3d 636. However, “evidence of aiding and 

abetting may be as broad and varied as are the means of communicating thought from 

one individual to another; by acts, conduct, words, signs, or by any means sufficient to 
incite, encourage or instigate commission of the offense.” Id. (internal quotation marks 

and citation omitted). As we have noted herein, a charge against a defendant “as a 

principal include[s] a corresponding accessory charge, assuming the evidence at trial 

support[s] the charge.” King, 2015-NMSC-030, ¶ 21 (internal quotation marks and 

citation omitted).

{52} In this case, the same evidence supporting the conspiracy supports a theory of 

accomplice liability. The State was not required to give the jury a theory of the case in 

which Defendant was both the principal and the accessory. We therefore conclude that 

sufficient evidence supports Defendant’s first-degree murder conviction under a theory 

of accomplice liability.

III. Conclusion

{53} We conclude that Defendant received a fair trial, his sentences do not offend the 

principles of double jeopardy, and his convictions are supported by sufficient evidence. 

We therefore affirm Defendant’s convictions and corresponding sentences.

{54} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice