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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-036

Filing Date: August 24, 2012 

Docket No. 30,470

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

PAUL LOVETT,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY

Don Maddox, District Judge

Law Offices of Nancy L. Simmons, P.C.

Nancy L. Simmons

Albuquerque, NM

for Appellant

Gary K. King, Attorney General

Margaret E. McLean, Assistant Attorney General

Santa Fe, NM

for Appellee

OPINION

BOSSON, Justice

{1} Defendant Paul Wayne Lovett was charged with murdering two women in two

separate, unrelated incidents as well as criminal sexual penetration with respect to one of the

victims. Pursuant to Rule 5-203(A) NMRA the two murder charges were joined in one

complaint, indictment or information with the intent to try the two murder charges together

in one trial. Pursuant to Rule 5-203(C) NMRA Defendant moved to sever the two murder

charges into two separate trials. After a hearing, the trial court denied the motion to sever,

and Defendant was subsequently convicted of both counts of first-degree murder in one joint
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trial. We conclude that the trial court committed error when it failed to sever the murder

charges into separate trials. Because the error constituted reversible, non-harmless error in

relation to one of the murder convictions, we vacate that conviction while upholding the

other first-degree murder conviction as well as the conviction for criminal sexual

penetration.

BACKGROUND

{2} On January 16, 2002, a young mother named Elizabeth Garcia worked a late shift at

a gas station in Hobbs, New Mexico. Under circumstances that are still unknown, Garcia

left her workplace sometime before 2:30 in the morning. That afternoon, a local resident

found Garcia dead in a vacant field near a dirt road. 

{3} Approximately sixteen months later, on May 14, 2003, workers found another young

woman, Patty Simon, dead in a caliche pit on the outskirts of Hobbs. On the same day, a

delivery man found Defendant, lying on the side of a road outside of Hobbs, shirtless.

{4} The delivery man’s coworker took Defendant into town. Defendant explained to the

coworker that he had been talking to a girl named Patty at the bowling alley the night before.

According to Defendant, a few guys tried to rough her up and Defendant jumped in. The

next thing he remembered was waking up on the side of the road. Defendant said he had a

knot on his head, he was scratched, and he seemed shaken, so the coworker asked Defendant

if he wanted to seek medical attention, but Defendant refused. After the coworker dropped

Defendant off at his apartment, he reported Defendant’s story to the police.

{5} The police had already started investigating Simon’s death. After hearing about

Defendant’s story, police officers went to his home, arriving before he had changed clothes

or bathed. Defendant was still shirtless and had scratches on his arms and shoulders. He

agreed to an interview with the police, and police obtained a search warrant to take certain

samples from Defendant, including blood, hair, and a penile swab.

{6} Initially, the police only investigated Defendant in relation to the Simon murder; they

did not suspect that he might also be Garcia’s murderer. In fact, when Simon was killed,

the police had no suspects in the Garcia murder. Among others, they had investigated

Stephen DeMoss, who was Defendant’s brother-in-law at the time Garcia was killed. Police

began to investigate Defendant for the Garcia murder only after he began talking about it

during an interview concerning the Simon murder.

{7} Eventually, the State charged Defendant with two counts of first-degree murder, one

count of kidnaping in relation to the Garcia murder, and one count of criminal sexual

penetration in relation to the Simon murder. The indictments were joined under Supreme

Court Rule 5-203 NMRA .

{8} Defendant moved to sever, and the trial court held a hearing on the matter. After the
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 When Defendant’s trial began, both murders with which the State charged him,

murder pursuant to a kidnaping and murder pursuant to a criminal sexual penetration, were

death-penalty eligible. See NMSA 1978, § 31-18-14 (1993) (amended 2009); NMSA 1978,

§ 31-20A-2 (2009), NMSA 1978, § 31-20A-5 (1981).

2

 Both parties failed to cite evidence from the joint trial in their briefs to this Court.

Rather, they cited to the opening and closing statements of the joint trial. See Benavidez v.

City of Gallup, 2007-NMSC-026, ¶ 26, 141 N.M. 808, 161 P.3d 853 (“Statements made

during closing arguments are not evidence . . . .” (citing UJI 13-2007 NMRA)). In order to

verify the assertions made by the parties, this Court was forced to sift through the entire

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hearing, the trial court denied Defendant’s motion to sever in a written order, but without

explaining the basis for its ruling. The case proceeded to a joint trial, and a death-eligible

jury convicted Defendant of two counts of first-degree murder and one count of first-degree

criminal sexual penetration.1 

{9} Because Defendant received life sentences for each murder, he appeals directly to

this Court. See N.M. Const. art. VI, § 2 (“Appeals from a judgment of the [trial] court

imposing a sentence of death or life imprisonment shall be taken directly to the supreme

court.”); accord Rule 12-102(A)(1) NMRA. On appeal, Defendant argues that his motion

for severance was improperly rejected and that the trial court’s failure to sever actually

prejudiced his case. He also argues that the fact that a death-eligible jury reviewed a nondeath eligible murder prejudiced his case. Holding that the trial court’s failure to sever

constituted reversible error, we do not reach Defendant’s second argument.

DISCUSSION

{10} We have previously stated that we review a trial court’s denial of a severance motion

for an abuse of discretion. State v. Dominguez, 2007-NMSC-060, ¶ 10, 142 N.M. 811, 171

P.3d 750. Under certain circumstances like this case, however, the decision to sever may

become mandatory, not discretionary, as we explain in this opinion. Although the trial court

in this case held a hearing on the matter, and apparently reviewed briefing and case law on

the issue, it never explained its decision to deny Defendant’s motion, which makes our task

all the more challenging.

{11} “[O]ne test for abuse of discretion [in a failure to sever case] is whether prejudicial

testimony, inadmissible in a separate trial, is admitted in a joint trial.” Id. (internal citations

and quotation marks omitted). In this case, the State was allowed to introduce in one trial

all the evidence of each separate murder plus the criminal sexual penetration. That evidence

included background testimony by the victims’ family members and friends, numerous

photographs of the respective victims’ crime scenes and mutilated bodies, autopsy reports,

bloody clothing samples, testimony by forensic scientists, and testimony by other experts.

For better understanding, we first review this evidence in greater detail.2

 Then, we consider
voluminous trial record and record proper. We remind counsel of their obligation to cite to

the evidentiary record. 

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if the evidence would have been cross-admissible if the State had tried Defendant separately

for the two murders. In other words, in a separate trial of the Garcia murder, would the State

have been able to present evidence going to the Simon murder, and vice versa? If not, the

court committed error in refusing to sever, and we then determine whether the trial court’s

error was harmless. See generally State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Evidence Presented by the State 

The Garcia Murder

{12} In addition to the basic information about where and when Garcia’s body was found

mentioned above, the State introduced testimony and photographic evidence that Garcia was

brutally murdered. Testimony and photographs documented that Garcia’s killer stabbed her

fifty-six times and slit her throat. Her killer stabbed her chest, abdomen, back, and hip, and

she had other injuries on her hands and arms. Her killer stabbed her with such force that it

broke her bones.

{13} Garcia was clothed when she was stabbed and when she was found. Police found tire

tracks and footprints at the scene. Blood and scrapes on the ground indicated that Garcia had

been dragged from the passenger side of a car. 

{14} Several experts testified about the significance of physical evidence found at the

Garcia murder scene. One testified that, to a reasonable degree of scientific certainty,

Defendant’s semen was found in Garcia’s panties. By contrast, four other suspects,

including Defendant’s former brother-in-law, DeMoss, were excluded as semen contributors.

The tire tracks were consistent with tires on the car that Defendant drove at the time of

Garcia’s murder, and the shoe prints were consistent with the soles of shoes that Defendant

owned at that time.

The Simon Murder

{15} In addition to testimony about where Simon was found and Defendant’s predicament

that morning—claiming to have been with Simon the night before, the State introduced

testimony and photographic evidence documenting the fact that Simon was also brutally

murdered. For example, the State introduced testimony and photographs documenting that

Simon suffered severe, blunt-force trauma to her head and neck. She had a broken nose and

radiating skull fractures. One of her eyes was ruptured, and there were numerous

lacerations, bruises, and other injuries to her arms, hands, and the rest of her body, consistent

with “defensive wounds.” There was a “large, gaping, incised wound or slash across the

upper part of her throat” and obvious injuries to her legs and genitalia. Either the cut to her
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throat or the blunt-force injuries caused Simon’s death.

{16} Unlike Garcia, police found Simon nude from her bra line down. Her shirt was

pulled up over her head. Her legs were spread, and her underwear was around her ankles.

Simon’s injuries were consistent with, but not necessarily conclusive of, a sexual

penetration. No semen was found at the scene.

{17} Simon’s car was parked at the scene, with a lot of blood found in and around it,

including in the trunk. A cigarette butt was found sitting in the opening to the gas tank, and

police collected cigarette butts found on the ground in the area. Only one type of footprint

was found near Simon’s body.

{18} Much of the physical evidence tied Defendant to the Simon murder. Investigators

found Defendant’s shirt, which was bloody, under a pile of rocks near Simon’s body. DNA

on cigarette butts found all around the Simon scene matched Defendant’s DNA. Simon’s

blood was on Defendant’sshoes and underwear. The numerous shoe prints around Simon’s

body were consistent with the shoes Defendant wore that day. A fiber found on Simon’s

hand was consistent with jeans, and Defendant was wearing jeans the day Simon was killed.

Defendant’s underwear had DNA on it that could not exclude Simon, but could not

conclusively be identified as her DNA. DNA found on Defendant’s penis matched Simon

with a high likelihood; the likelihood that someone else would match the DNA collected

from his penile swab was 1 in 410 to 1 in 670.

Defendant’s Prior Statements

{19} The State played a series of videos for the jury that documented interviews between

law enforcement officers and Defendant. The interviews initially focused on Defendant’s

involvement in the Simon murder. During his second interview with police, however,

Defendant began talking about events that had happened around the time Garcia was

murdered.

{20} The first interview took place after the delivery man found Defendant on the side of

the road, the day police began to investigate the Simon murder. In that interview, Defendant

changed his story from what he had told the delivery man’s coworker. Defendant told police

that he and Simon had met at her workplace the day before so that he could buy

methamphetamine. While they met in her car, a man who Defendant did not recognize, but

who Simon knew, approached. The man threatened Simon with a knife and demanded her

drugs. Defendant said he tried to hit the man, but that the man slashed Defendant’s shirt,

causing the scratch marks on Defendant’s torso.

{21} Defendant said the man made Simon drive her car out of town onto a gravel road.

There, the man hit Simon with something, causing her to bleed from the back of her head.

Then, the man forced Defendant to drive with Simon in the passenger seat. At some point,

the man hit Defendant on the back of the head, and the next thing Defendant remembered,
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he was in the trunk of the car, without his shoes. Defendant passed out again and woke up

on the side of the road with his shoes on again.

{22} Over a month later, in a second interview, police asked Defendant to “tell us what

happened . . . from the get go.” Although police were apparently following up on their first

interview about the Simon murder, Defendant eventually answered that “[t]he beginning

goes back, . . . uh, to January 15th of . . . what year was it?” January 15th was the day before

Elizabeth Garcia disappeared from work and then was found murdered. Defendant said that,

on January 15th, his former brother-in-law, DeMoss, had been terrified, afraid that he was

going to be framed for a murder. DeMoss needed DNA to “put there.” Defendant said he

gave DeMoss a condom with his sperm and several pubic hairs—“there’s always a few loose

ones”—in a bag. Defendant told police he thought that DeMoss killed Garcia and that

DeMoss shaved his head the next day because people were after him.

{23} After discussing the Garcia murder, police again questioned Defendant about the

Simon murder. Defendant began the story as he had during his first interview with the

police, but with some additional details: the man who demanded Simon’s drugs had wavy

dirty blond hair and “several people, . . . . in the very beginning told me it was some guy

named James.” In this version of the story, however, the man did not knock Defendant out

and put him into the trunk. Rather, the man made Defendant get into the trunk. Defendant

remembered spending hours in the trunk after the car came to a stop. At some point, after

Simon was killed, the man opened the trunk and ordered Defendant to pull Simon from near

the car to the spot she was later found. Rather than receiving all his scratches from the man

“slashing” him, in this version of the story Defendant told police that he inflicted the

scratches on his own arms in an attempt to kill himself.

{24} Later during the same, second interview, the police suggested to Defendant that

DeMoss was the assailant who tried to rob Simon and then killed her. Soon after, Defendant

changed his story yet again. He maintained much of the initial portion of his story, except

that now DeMoss was the assailant. DeMoss hit Simon’s head with something when the car

made its first stop.

{25} In this version of the story, Defendant was never trapped in the car’s trunk. Instead,

he remained in the car with DeMoss and Simon. When they all arrived at the caliche pit,

Defendant said he just walked away, because he did not want to see what was going to

happen there. Defendant walked back to the site “late, late, late” and saw Simon, but

DeMoss was not there and Defendant did not know how DeMoss had left.

{26} At this point in his interview, the police told Defendant that they thought his DNA

would be identified at the scene of the Simon murder and that he should probably be able to

explain that. In response, Defendant said he had walked back to the site earlier (as opposed

to “late, late, late”) with DeMoss, and gave DeMoss some of his DNA by spitting into a cup.

DeMoss then walked over to Simon with the cup. Because DeMoss did this, Defendant said

he was sure his spit was somewhere around Simon. Defendant maintained that he did not
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have sex with Simon and that he did not see anyone else have sex with Simon.

{27} Returning to the subject of the Garcia murder, Defendant said that he was home the

night Garcia was killed and that he would not have had the physical strength to commit that

crime. He also said DeMoss was angry because DeMoss’s father was interested in Garcia.

{28} Two days later, police interviewed Defendant a third time. During that interview,

Defendant’s story changed yet again. He said that after DeMoss initially injured Simon, she

walked back to the car herself and got into the back seat. She was bleeding a lot, but she was

still conscious and complaining about her head. At the caliche pit, Defendant said that

DeMoss and Simon walked away from the car together; and he walked away from them, not

wanting anything to do with it. He did not see DeMoss again until DeMoss came over and

asked him for spit. Defendant admitted that he was wearing his shoes the whole time and

that he had changed his story about where he walked at the scene.

{29} In addition to Defendant’s videotaped statements to the police, a nurse testified that

she overheard Defendant say that “they were trying to charge him with two capital murders

and they could charge him for ten for all he cared. He only murdered one.” At trial,

Defendant did not testify, and thus, he did not explain the nurse’s testimony or the

inconsistencies in his own recorded statements.

Cross-Admissibility of Evidence if the Two Murders Had Been Tried Separately

{30} We now address whether the evidence admitted against Defendant for each crime

would have been cross-admissible if the State had prosecuted Defendant for the murders

separately. Only relevant evidence is admissible. See NMRA 11-402 (2012). Relevant

evidence has “a tendency to make a fact more or less probable than it would be without the

evidence,” and “is of consequence in determining the action.” NMRA 11-401 (2012).

{31} There are important limitations on admitting relevant evidence. As the Court of

Appeals explained in State v. Jones, “district courts must be careful in admitting

other-bad-acts evidence because of its large potential for prejudice as recognized in the first

sentence of [Rule] 11–404(B), which states a general rule of exclusion of such evidence.”

State v. Jones, 120 N.M. 185, 187, 899 P.2d 1139, 1141 (Ct. App. 1995). Evidence of other

crimes is not admissible to show conformity with those crimes, but may be admitted “for

other purposes, such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity [or] absence of mistake or lack of accident.” Rule 11-404(B) NMRA. This rule is

a product of the “long tradition of courts and commentators expressing fear that jurors are

too likely to give undue weight to evidence of a defendant’s prior misconduct and perhaps

even to convict the defendant solely because of a belief that the defendant is a bad person.”

State v. Ruiz, 2001-NMCA-097, ¶ 13, 131 N.M. 241, 34 P.3d 630 (internal quotations and

citations omitted). 

{32} “If the evidence is probative of something other than propensity, then we balance the
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prejudicial effect of the evidence against its probative value.” Id. ¶ 15. (applying Rule 11-

403). “[C]ourts must not permit a defendant to be embarrassed in his defense by a

multiplicity of charges to be tried before one jury.” State v. Paschall, 74 N.M. 750, 752-53,

398 P.2d 439, 440 (1965).

Identifying Potentially Cross-Admissible Evidence

{33} In order to apply this framework to the case at hand, we asked the parties to clarify

exactly what evidence would or would not have been cross-admissible. Defendant argues

that none of the evidence of one crime was admissible in the trial of the other. Specifically,

he argues that neither the background testimony, such as the circumstances under which the

victims disappeared, the forensic evidence, nor the photographic evidence from one murder

would have been admissible in a trial for the other murder.

{34} We agree with Defendant that certain evidence introduced during the joint trial would

certainly not have been cross-admissible in separate trials. For example, if the State had

tried the Garcia murder separately from the Simon murder, it could have used photographs

of Garcia’s body “to illustrate, clarify and corroborate the testimony of witnesses concerning

the scene of the crime, wounds of the victim and identity of the deceased.” State v. Noble,

90 N.M. 360, 363, 563 P.2d 1153, 1156 (1977). Those same photographs, however, would

certainly not have been admissible in a separate trial of the Simon murder. The same is true

of photographs of Simon; they would not have been admissible in a separate trial for the

Garcia murder. Those photographs do not tend to show motive, opportunity, or any other

relevant fact in relation to the other murder, other than, perhaps, a propensity for violence,

which is an impermissible purpose under our rules. 

{35} To its credit, the State seems to concede that certain evidence of each crime would

not have been cross-admissible. Instead, it cites State v. Gallegos, 2007-NMSC-007, ¶ 45,

141 N.M. 185, 152 P.3d 828, to argue that “[c]omplete cross- admissibility is not required.”

The State misunderstands Gallegos, which is a case we authored after the trial court’s

hearing on Defendant’s motion to sever, but before Defendant’s trial began.

{36} In Gallegos we held that a trial court abused its discretion when it failed to sever

charges involving two different victims because evidence would not have been

cross-admissible at separate trials. 2007-NMSC-007, ¶ 3. Despite that, we upheld one of

the charges because we concluded that the error was harmless, a point we will discuss in

more detail later in this opinion. Id. ¶ 44. Thus, contrary to the State’s representation,

Gallegos stands for the proposition that a lack of complete cross-admissibility did constitute

error, and the charges should have been severed. Ultimately, however, based on the facts

of that case, we held that only one conviction should be reversed and the other constituted

harmless error. 

{37} Because the State does not identify a consequential fact for which much of the badact evidence it proffered during trial might have been permissible under the exceptions to
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Rule 11-404(B), we assume that the general prohibition on propensity evidence applies and

that much of the evidence would have been inadmissible in separate trials under Rule 11-

404(B). Thus, even if hypothetically some evidence of the Garcia murder might have been

relevant to the Simon murder or vice versa, it was unquestionably error to admit all of the

evidence going to both murders in one joint trial.

Applicable Exceptions to Prohibition on Propensity Evidence?

{38} The State also argues that certain evidence was cross admissible for valid purposes

other than conformity or propensity. First, because Defendant disputed his identity as the

perpetrator of the murders, the State asserts that “any evidence establishing Defendant—as

the true perpetrator—was critical and used to refute Defendant’s defense.” The State cites

State v. Peters, 1997-NMCA-084, ¶¶ 11-20, 123 N.M. 667, 944 P.2d 896, to support this

assertion.

{39} The State misunderstands Peters. Peters is about cross-admissibility of evidence

when it suggests that the perpetrator in one crime is the same as the perpetrator in another

crime, because the two crimes were committed with a common modus operandi. See id. ¶¶

14-16, 19-20. Peters does not stand for the proposition that evidence is admissible if it

simply suggests that a particular defendant committed multiple crimes. See id.

{40} Peters explains that evidence is cross-admissible to prove identity when it

“‘demonstrate[s] a unique or distinct pattern easily attributable to one person.’ Relevancy

depends on the degree of similarity.” Id. ¶ 14 (internal citations omitted). Peters was

written about a common modus operandi because the two joined crimes were practically the

same. Both were armed robberies and rapes of elderly female victims, committed in the

victims’ homes at night, using a knife, in the same neighborhood. Id. ¶¶ 3-4, 15. In each

crime the perpetrator entered the women’s homes through a window, hit them in the face or

head, used his knife to control them, tied their hands and feet, gagged them, covered their

faces, raped them, and ejaculated. Id. After each rape, the perpetrator asked each woman

where her purse was, and he took money from each purse. Id. The perpetrator had a

common modus operandi because he committed the crimes using a “signature,” one

recognized not only by police but also by an emergency room nurse who attended to both

victims. Id. ¶¶ 15, 20.

{41} No such signature emerges when we compare the Simon and Garcia murders. The

killer in the Simon and Garcia murders used different weapons, left the victims in different

locations, left entirely different physical evidence at each scene, and inflicted different

wounds on the victims. The crimes were committed in different places sixteen months apart.

The criminal investigators never recognized any pattern in the two crimes until Defendant

spoke up and mentioned Garcia in the context of Simon. Unfortunately for the State, the

pattern Defendant suggested was that his brother-in-law routinely committed murders and

had asked Defendant for DNA to cover his tracks—a pattern unsupported by the evidence;

DeMoss was never charged.
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{42} The State also argues that evidence presented during the joint trial generally showed

that “Defendant harbored the same criminal intent for both murders” and that recurrence of

a similar result tends to establish criminal intent. For example, the State points to an expert’s

testimony that the perpetrator of both crimes “intended to kill the person and probably had

a great deal of emotion.” The State cites to People v. Ewoldt, 7 Cal. 4th 380 (1994), for the

argument that this similarity in the evidence tends to establish criminal intent and thus makes

evidence cross-admissible. 

{43} We disagree. Evidence showing the recurrence of a similar result is just

impermissible propensity evidence described using different words. Further, the Ewoldt case

from California is not on point. Ewoldt held that certain evidence was cross-admissible

because it showed the likelihood that a defendant lacked mistake in committing certain

crimes—that a defendant committed a crime intentionally, not accidentally. Whether the

Garcia and Simon murders were committed intentionally is not at issue in this case.

Defendant does not claim that he accidentally killed Garcia or Simon; he denies killing either

of them. 

{44} Not only is evidence of a similar result not admissible to show lack of mistake, the

fact that a perpetrator had the intent to kill and killed with “a great deal of emotion” is also

not sufficient to establish a modus operandi. As Peters recognized, “[i]t is by adding

circumstance to circumstance that we obtain a composite feature or mark which as a whole

cannot be supposed to be associated with more than a single object.” Id. ¶ 19 (quoting 2

John Henry Wigmore, Evidence § 411 (Chadbourn rev. 1979)). Thus, a similar degree of

intent or emotion used to commit two murders is certainly not sufficient to show identity

when so many of the characteristics of the Simon and Garcia murders differed.

{45} Next, the State points to Defendant’s statement that he only committed one murder,

regardless how many the State charged him with, as admissible in a trial for either murder

to support Defendant’s identity and “consciousness of guilt.” According to the testimony,

Defendant made this statement after the Simon murder and while he was in custody.

Without more information, it is possible that Defendant was referring to the Garcia murder,

the Simon murder, or some other murder. Because it is not clear that this evidence relates

to one crime over another, it is not evidence showing conformity with a prior bad act.

Therefore, we do not consider it in our analysis about cross-admissibility of evidence of one

crime in the trial for another.

{46} The State also argues that evidence from each crime was cross-admissible because

“the entire case connecting Defendant to the murder of [Garcia] grew out of and originated

from the investigation of the death of [Simon].” Specifically, the State cites Defendant’s

statement that the “beginning” of the Simon murder started when Garcia was killed. The

State argues that this statement is cross-admissible to disprove Defendant’s claims that

DeMoss, not Defendant, committed the crimes and that Defendant lacked the opportunity

to commit the crimes. The State does not cite any authority for the proposition that, because

the investigation for one crime derived from the investigation of another, all evidence
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admissible in one of the trials is also admissible in the other. “We assume[,] where

arguments in briefs are unsupported by cited authority, [that] counsel[,] after diligent search,

was unable to find any supporting authority.” Matter of Adoption of Doe, 100 N.M. 764,

765, 676 P.2d 1329, 1330 (1984).

{47} In addition, case law from our Court of Appeals suggests that the State’s logic on this

point is flawed. In Ruiz, the state charged a defendant with a variety of crimes against three

minor girls. 2001-NMCA-097, ¶ 1. The first girl’s statements led police to question the

other two girls. Each victim described incidents that happened at different times and under

different circumstances, but all accounts involved only the accused, all were sexual in nature,

and all took place allegedly in the house of the accused. Id. ¶¶ 2, 4-5. On appeal, the state

argued that “the evidence pertaining to each girl was necessary to rebut [d]efendant’s

position that the events never happened or were due to mistaken perceptions on the part of

three young girls . . . .” Id. ¶ 17. The Court of Appeals’ response applies equally to the case

before us: “[w]hat the State really wanted was an opportunity to bolster the testimony of

the[] three girls.” Id. ¶ 19. There was “no difference between what the [s]tate argue[d] and

the use of that same evidence to show propensity: that Defendant did bad things with one

girl and it was therefore more likely that he did bad things with the others.” Id. ¶ 18. The

convictions in Ruiz were overturned because of the trial court’s failure to sever the charges.

{48} Here, as well, the State wants to enter Defendant’s statements about the Simon

murder in the trial for the Garcia murder, and vice versa, to show his conformity with

character rather than another, permissible purpose. Defendant’s statements bolster the

State’s theory that Defendant has a propensity for lying and committing gruesome murders

against women. Conformity with prior bad acts or with character is not a permissible basis

to admit Defendant’s statements. See Rule 11-404(A)-(B).

Prejudicial Effect Versus Probative Value?

{49} Now we compare any probative value of the evidence of the Garcia and Simon

murders with the prejudicial effect ofthis evidence. Because we have already concluded that

evidence of each murder was not offered for any permissible purpose, the inherent

prejudicial effect of admitting evidence of prior bad acts necessarily outweighs the probative

value of the evidence. 

{50} Even more glaringly, the evidence in this particular case had the potential for

significant prejudicial effect. The State argues that the evidence presented in Defendant’s

trial is distinct from the inflammatory evidence introduced in cases such as Ruiz, which

“involv[ed] minor victims and sexual assaults,” because “the evidence was not used to

bolster the credibility of the victims or merely to show Defendant’s propensity or bad

character.” This argument fails for several reasons. 

{51} First, each murder involved a particularly gruesome killing of a young woman, and

the State charged Defendant with criminal sexual penetration in relation to the Simon
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murder. The trial judge even commented to counsel in relation to some of the photographic

evidence, “I’m very concerned about how much we can lay on this jury. . . . [T]his is very

sensational.” Second, perhaps even more prejudicial to Defendant were Defendant’s

statements about the Simon murder. Defendant’s story changed so many times that, in a trial

for the Garcia murder, a juror could not help but believe that Defendant also lied about his

involvement in that case as well. “Once a liar, always a liar” is exactly the kind of propensity

evidence rule 404(B) is designed to exclude. 

Harmless Error

{52} Because the trial court committed clear error in failing to sever, we proceed to

determine whether the error can be regarded, in either trial, as harmless. Since the time the

parties submitted briefs to this Court, this Court authored State v. Tollardo, which clarified

our harmless-error standard. See 2012-NMSC-008. For nonconstitutional errors, like the

violation of evidentiary rules presented in this case, we ask whether there is a reasonable

probability that the error affected the jury’s verdict. Id. ¶¶ 35, 42, 43.

{53} The State argues that any error was harmless and that Defendant failed to conduct

a harmless-error analysis in his amended brief-in-chief, thus abandoning the issue. While

Defendant did not address “harmless error” by name, he did address “actual prejudice.” In

the context of failure to sever, we have sometimes called the harmless-error analysis a

question of actual prejudice to the accused. See State v. Garcia, 2011-NMSC-003, ¶ 21, 149

N.M. 185, 246 P.3d 1057 (“The failure to sever did not result in any prejudice to Defendant

and the trial court's decision not to sever constitutes harmless error.”); State v. Dominguez,

2007-NMSC-060, ¶ 13, 142 N.M. 811, 171 P.3d 750 (“As we have stated, judicial error by

itself is not necessarily grounds for reversal in the absence of actual prejudice.”). In fact,

in Tollardo we recognized that New Mexico courts have sometimes called harmless error

“prejudice.” See 2012-NMSC-008, ¶ 25 (“Although not always employing the term

‘harmless error,’ New Mexico courts historically evaluated claims of error by inquiring into

how severely the defendant was affected thereby. In State v. Coyle, for example, this Court

considered whether or not a trial error worked a ‘prejudice’ against the defendant . . .”).

Accordingly, Defendant did not abandon the issue of harmless error.

{54} In determining whether error is harmless, “courts should evaluate all of the

circumstances surrounding the error” and should not mechanically apply a multi-factor test.

Id. ¶ 43. That evaluation should include “an examination of the error itself,” including the

source and emphasis on the error. See id. ¶¶ 43-44. Evidence of guilt apart from the error

can provide context but “can never be the singular focus of the harmless error analysis.” Id.

¶ 43. Courts may also consider the weight placed on the erroneously admitted evidence by

the State. Id. ¶ 44. An error may be prejudicial with respect to one conviction, but harmless

with respect to another. Id. ¶ 44 (citing Johnson, 2004–NMSC–029, ¶ 31, 136 N.M. 348,

98 P.3d 998). Thus, courts must separately assess the effect the error may have had on each

of the convictions.
13

{55} Applying this analysis, we first consider the error itself, its source, and the emphasis

placed upon it by the State. Courts may, depending upon the circumstances of the cases

before them, examine “the importance of the [erroneously admitted evidence] in the

prosecution’s case,” as well as “whether the [error] was cumulative” or instead introduced

new facts.” Id. ¶ 43. In this case, the error was the trial court’s failure to sever two murder

prosecutions, each supported by different evidence. Thus, by definition, the error introduced

new facts: all the facts related to the Garcia murder were new facts in the case of the Simon

murder and all the facts related to the Simon murder were new facts in the case of the Garcia

murder.

The Drew Factors

{56} In Gallegos we adopted the “Drew factors” for appellate courts to determine actual

prejudice to an accused in the failure-to-sever context. See 2007-NMSC-007, ¶ 42. As

mentioned earlier, we published Gallegos after the trial court’s hearing on Defendant’s

motion to sever, but before Defendant’s trial ended. We do not know if Gallegos was

brought to the trial judge’s attention during trial. 

[F]actors weighing in favor of prejudice include: (1) the prosecution

intertwining the offenses in opening statement, during its case-in-chief, or in

closing argument; (2) the defendant being found guilty on all counts; (3)

factual similarities linking the offenses; (4) offenses that are inflammatory

in nature; (5) unusually long and complex trials; and (6) a conviction on a

charge where the evidence is thin. On the other hand, factors tending to show

that a defendant was not prejudiced by going to trial on the joined offenses

include: (1) dissimilar offenses such that a jury would not confuse them; (2)

the defendant being acquitted of some charges; and (3) proper jury

instructions that adequately make clear to the jury that it must not consider

evidence inadmissible to a particular count when coming to a verdict on that

count.

Id. ¶ 41 (internal citations omitted). After we applied these factors in Gallegos, we refined

our harmless error analysis in Tollardo; the Drew factors, however, are still relevant to our

harmless-error inquiry. For example, the first Drew factor, how the prosecution intertwined

the cases throughout the trial, may indicate the relative emphasis the State placed on the

error in question in this case. As directed in Tollardo, we do not apply the Drew factors

mechanically. The factors may have varying degrees of relevancy in different cases.

{57} We consider the Drew factors that are relevant to this case to analyze whether the

erroneously admitted evidence from the Garcia murder “probably” affected the jury’s verdict

in the Simon murder. Likewise, we analyze whether the erroneously admitted evidence from

the Simon murder probably affected the jury’s verdict in the Garcia murder. We begin our

analysis by determining whether the State intertwined the facts of the two murders in its

opening statement, its case in chief, or its closing statements.
14

 The State’s Opening Statement

{58} The State immediately intertwined the two cases, beginning with the opening

statement, by telling the jury “this is actually two cases brought together in one.” Although

the State specified which charges were related to each victim, it went on to say that

Defendant “took great steps to conceal his involvement in these crimes,” and that the theme

of the whole trial was “there is nothing that is hidden which will not be revealed.” Thus, by

portraying the crimes as having a common theme, the State demonstrated its reliance on the

jury’s perception that the crimes were related and that Defendant acted similarly in each.

The State then introduced each of the victims by photograph and biographical information

in succession, first Garcia, then Simon.

{59} Rather than describing the evidence supporting a conviction for each murder

separately, the State generally told the story of the two murders through the eyes of the

investigators. First, the prosecutor described the day Garcia was killed and the initial

investigation into her death. Then, after telling the jury that police were unable to determine

Garcia’s murderer, or even match the semen found in her panties with a known suspect, the

State “fast forward[ed]” sixteen months, to Simon’s murder. The State remarked that Simon,

“too, suffered a very, very violent death” and that “significant amounts of blood were found

over a broad area of this crime scene, as well.” Simon’s “throat, too, had been slit.”

{60} The State described Defendant’s apprehension by the police the day that workers

found him on the side of the road and his initial explanation of his predicament. Then,

notably, the prosecutor suggested that police decided to interview Defendant because they

thought he might have had something to do with the Garcia murder in addition to the Simon

murder, a suggestion that is demonstrably false. In the same statement, the prosecutor

confused the names of the victims. The prosecutor told the jury that police did not have any

leads in the Garcia murder, so “when [the police] found out that Elizabeth [Garcia] had

been—I’m sorry—that Patty [Simon] had been killed, that she was left also on the outskirts

of town, that her body was semi-nude, that there were some similarities between the

two—the two crimes, they decided, ‘Why not? Let’s talk to [Defendant].’” 

{61} The evidence, however, was that, over a month after Simon was killed, a police

officer from the Hobbs Police Department who had been working on the Garcia murder

became interested in interviewing Defendant, for vague reasons: he made contact with the

Lea County Sheriff’s Department, he had heard of the death of Simon, and he wanted to help

out with the Simon murder investigation because “we had two young mothers that had been

murdered.”

{62} The State then alternated the substance of its opening argument between discussion

of the two murders. First it described additional evidence that the jury would hear, linking

Defendant to the Garcia murder. After describing the investigation that linked the footprints

and tire tracks found at the Garcia crime scene with Defendant, the State turned back to the

footprints associated with the Simon murder and the ways in which investigators linked
15

footprints from the Simon crime scene to Defendant.

{63} After describing more about the Simon murder crime scene, again the State told the

jury more about what its theory of the case in relation to the Garcia murder. Finally, the

State gave its theory of the case in relation to the Simon case.

 The State’s Case in Chief 

{64} The State also organized its case in chief from the perspective of an investigator, in

general revealing information about the Garcia and Simon murders as the evidence was

discovered by police, chronologically. Thus, rather than first admitting all the evidence

relating to the Garcia murder, concluding that evidence, and then moving on to evidence

pertaining to the Simon murder, the State interspersed the evidence supporting a conviction

for each murder much in the same manner it did during its opening statement. First it

presented background information about each crime. From evidence relating to Garcia’s

disappearance and the scene where she was found, the State moved on to testimony by

Defendant’s wife to whom Defendant was married when Simon was killed, testimony by

witnesses who found Simon’s body, and by the workers who found Defendant on the side

of the road after Simon’s murder. 

{65} The State even separated the testimony of some witnesses into multiple parts, not

necessarily based on the crime about which they were testifying. Defendant objected to this

practice, arguing that recalling witnesses simply provided dramatic effect. The trial court

permitted the State’s format for introducing evidence, despite recognizing its confusing

nature: 

the case is made very complicated by the fact that there are two separate

murder counts being considered and there’s this unusual timing with

the—some 16, 18 months between and then how the case has been developed

by the State, such that I’m going to grant latitude to the State in presenting

this evidence to try to make it in a more presentable but not necessarily a

more dramatic fashion.

{66} Defendant also objected to the State’s plan to present all of Defendant’s recorded

interviews with police at the same time. Although the police interviews were primarily

about the Simon murder, one included a significant discussion of the Garcia murder. The

State argued that Defendant’s statements to the police should be presented at the same time

because “they’re intricate, they’re interwoven, they relate to one another . . . since these

statements are so interrelated, since they contradict each other so much . . . the jury should

have all this evidence presented to them at the same time . . . .” The State’s desire to present

all the statements at once because they were “interwoven,” relating to both the Simon murder

and Garcia murder, illustrates the State’s emphasis on the fact that Defendant faced charges

for two murders, tried together.
16

{67} After playing the video recordings to the jury of Defendant’s statements to the police

that tied him to both crimes, the State essentially alternated between presenting witness

testimony relating to the Garcia murder and evidence relating to the Simon murder.

Testimony about the Simon autopsy was followed by testimony about the footwear worn in

the Garcia murder. Then, testimony about the tire tracks at the Garcia murder scene was

followed by testimony about the shoes worn at the Simon murder scene. Then, expert

testimony about the Garcia autopsy included testimony about the likelihood that larvae may

break down the components of semen (a fact only relevant to the Simon murder). Then,

testimony about the DNA on cigarette butts found at the Simon murder scene, which was

followed by testimony that Defendant’s semen was found in Garcia’s panties, as well as

testimony about where investigators found Simon’s blood, and testimony about whether

investigators found Simon’s DNA on Defendant’s penile swab.

{68} In addition to the order in which the State chose to offer evidence, the State’s case

in chief intertwined the cases at times by confusing them. For example, during one direct

examination the State accidently asked a witness about the site where Garcia’s body was

found (Continental Road), when it meant to ask about the site where Simon’ s body was

found (Shell Road).

The State’s Closing Statement

{69} During closing argument, the State began by explaining the jury instructions for the

Garcia and Simon murders. Right away there was some confusion on the State’s part as to

which instructions applied to which crimes: 

I think I may have gotten it backwards here. One of them is going to be with

respect to Patty Simon, and the other one will be with respect to Elizabeth

Garcia. Okay? I may have a different instruction up here; but you’re going

to have an instruction with you that instead of ‘Patty Simon’ here, it says

‘Elizabeth Garcia.’ Okay? Same elements as the first crime.”

{70} Like it did during its opening statement, the State suggested that police connected the

two murders before they even had their first recorded interview with Defendant. After

discussing the lack of a suspect in the Garcia case at the time Simon was murdered, the

prosecutor said, “[One of the detectives investigating the Garcia murder] thinks to himself,

‘You know what, I need to check [Defendant] out. We have another young woman dead in

a remote area of Hobbs 16 months after—I need to go talk to this guy.’” The mentioned

detective testified during trial that he decided to interview Defendant over a month after the

Simon murder, in order to help with the Simon murder investigation, not because of any

relation to the Garcia murder.

{71} In addition to this misrepresentation, two other aspects of the State’s closing

argument are noteworthy. The State suggested that Defendant’s claim that his brother-inlaw, DeMoss, committed the Garcia murder and then asked Defendant for DNA to cover up
17

the crime was “laughable; laughable, especially when you look at the next case.” Thus, the

State relied upon the jury’s knowledge of the Simon case in order to discredit Defendant in

the Garcia case. Later, after replaying one of Defendant’s statements to the police, the State

suggested that because Defendant was a liar in the Simon murder, he also lied in the Garcia

case. For example, the State pointed out Defendant’s explanation as to how his DNA was

found in Garcia’s panties was the same as his explanation as to why police might also

identify his DNA at the Simon murder scene:

So, once again, we hear the same story. [DeMoss] asked [Defendant]

for DNA, and [Defendant] gave it to him. Fool me once, shame on you. Fool

me twice, shame on me. 

What do you think about that? What do you think about the first time

[Defendant] says, “Well, yeah. [DeMoss] came—I let him borrow my DNA.

That time I gave him some sperm and some pubic hairs, but he was just—he

just told me that someone was going to get killed. This time I know

[DeMoss] actually killed somebody, and then [DeMoss] came to me and said

‘I need some DNA.’ All right. I can just give you spit this time.” Think

about that, ladies and gentleman. Think about it in the context of all the lies

he’s already told, lie after lie after lie after lie.

Each argument against Defendant’s credibility relied on the joinder of the two cases, that the

State tried Defendant for both murders at once.

{72} It is fairly obvious that the State’s opening, closing and case-in-chief placed

significant emphasis on the fact of joinder, that Defendant faced charges for both the Simon

murder and Garcia murder in the same trial. By using evidence of Defendant’s actions and

statements in relation to the Simon murder to prove that he also committed the Garcia

murder, the State relied heavily on the trial court’s erroneous failure to sever in order to

prove its case.

Other Drew Factors

{73} Beyond the State’s significant intertwining of the two cases, several other Drew

factors are relevant in this case and suggest actual prejudice to Defendant. For example, the

jury found Defendant guilty of all three counts against him. Although the State counters that

the trial judge granted a directed verdict on the kidnaping charge, that point is irrelevant.

The Drew factors direct us to consider convictions and acquittals (not directed verdicts)

because they are intended to evaluate whether the State’s presentation of evidence to a jury

caused juror bias. A trial judge’s realization that the State has not provided enough evidence

to sustain a conviction on a particular charge does not provide the same insight about a

jury’s likely bias. 

{74} Another Drew factor suggesting actual prejudice to Defendant is that the State relied
18

on the factual similarities of the offenses during its arguments. For example, in addition to

the other instances mentioned during closing argument, the prosecutor argued that 

[t]here is no question in these two cases these women were deliberately

murdered. The amount and the type of injuries that they suffered can lead to

no other conclusion at all. 

 Despite exploiting joinder in this manner, the State now argues that “the jury was able to

consider and compartmentalize the evidence with respect to each count,” this despite the

State’s efforts to blur those distinctions throughout the trial. The support the State provides

for this sweeping assertion is that “different witnesses testified [concerning] different

offenses, and the issues were relatively simple.” While many witnesses only testified about

one of the murders, our analysis of the State’s presentation of the evidence makes clear that

the State went out of its way to question certain witnesses about both murders and to

intertwine the testimony about each murder.

{75} It is not clear what the State means by the “issues were relatively simple.” The trial

was for two death-penalty-eligible murders. It involved two unrelated victims, different

defenses, dozens of witnesses, and a significant amount of expert testimony. The fact that

the State was confused at times, using the wrong victim’s name, indicating the wrong jury

instruction, and confusing the locations where the victims were found, suggests that the jury

was also confused at times. The trial lasted a full two weeks, not including jury selection

or sentencing. For all these reasons, we disagree that this was a simple case. If the issues

in this trial were simple, it would be difficult to identify a complex case. 

{76} Another Drew factor suggesting actual prejudice to Defendant is that the offenses

were inflammatory in nature. See, e.g., Bracy v. Schomig, 286 F.3d 406, 416 (7th Cir. 2002)

(“The evidence of the Arizona murders was admitted and it was inflammatory. It was the

story of a nasty home invasion resulting in the brutal murder of two people.” (emphasis

added)). Both murders were particularly violent and the evidence included gruesome

photographs of mutilated women. One of the murders involved genital mutilation, as well

as rape. This was not a case about bad checks or trespass.

{77} The State argues that the last Drew factor is present, that “the jury instructions were

adequate,” weighing against a conclusion that Defendant was actually prejudiced. In

support, the State points out that the jury instructions directed the jury to consider each count

separately and there were no juror notes indicating juror confusion. “The risk of prejudice

can be offset by the defendant being acquitted of some charges and ‘proper jury instructions

that adequately make clear to the jury that it must not consider evidence inadmissible to a

particular count when coming to a verdict on that count.’” Gallegos, 2007–NMSC–007, ¶

41. In State v. Paiz, we also noted that such an instruction could have guarded against juror

confusion. See 2011-NMSC-008, ¶ 25, 149 N.M. 412, 249 P.3d 1235. In this case,

however, we fail to understand how adequate jury instructions could cure the likelihood of

juror confusion and bias. During the two week trial, the State relied particularly heavily on
19

the intertwining of the evidence supporting the two murder charges.

Evidence of Defendant’s Guilt, Separate from the Error

{78} As directed by Tollardo, we also consider the evidence of Defendant’s guilt, separate

from the error, in our harmless error analysis. 2012-NMSC-008, ¶ 43. Thus, we consider

the evidence against Defendant in the Garcia murder without evidence of the Simon murder.

Then, we also consider the evidence against Defendant in the Simon murder without

evidence of the Garcia murder.

{79} As mentioned earlier, police did not suspect Defendant in the Garcia murder for over

sixteen months. Only when Defendant suggested to police that his brother-in-law had

planted his sperm at the Garcia crime scene, did police compare the sperm found in Garcia’s

panties with Defendant’s DNA. Before that the police had no match. The match connected

Defendant to Garcia, but not necessarily at the time of her death and not necessarily in a

violent encounter.

{80} Defendant had an alibi in the Garcia case. In his recorded statement, Defendant said

he was home the night Garcia was killed and that he went to physical therapy the next

morning. Defendant’s physical therapist confirmed Defendant’s attendance at 7:45 that

morning and said that he remembered nothing unusual about Defendant during the therapy

session that lasted forty-five minutes to an hour. Defendant’s ex-wife confirmed

Defendant’s presence at home the night Garcia was killed. Defendant’s wife also testified,

however, that she did not know about other things that Defendant was doing around that

time. Thus, evidence corroborated Defendant’s claim of an alibi to a certain extent, although

it was also not categorically confirmed. Significantly, however, without the evidence of the

Simon murder, a jury hearing just the evidence about the Garcia murder would not know that

Defendant repeatedly lied about his involvement in another murder.

{81} Unlike the Simon murder, no evidence at the Garcia murder scene connected

Defendant, specifically, with Garcia’s death. Although Defendant owned shoes and tires at

the time of the crime that were consistent with the shoe and tire prints found near Garcia’s

body, analysts could not compare unique characteristics between the impressions at the

crime scene and Defendant’s shoes and tires because Defendant no longer owned the shoes

or tires.

{82} By contrast, Defendant was undoubtably present when Simon was killed. Not only

did he consistently admit to being present, the physical evidence supported a conclusion that

he was involved in her death. The State’s experts testified that Simon’s blood was on

Defendant’s shoes, shirt, and pants. Defendant’s underwear had DNA on it that could not

exclude Simon as a contributor, and Defendant’s penis had DNA on it that was likely

Simon’s. Physical evidence at that crime scene pointed to Defendant: shoe prints, cigarette

butts, Defendant’s shirt hidden in a pile of rocks, and tracks leading from the crime scene

toward the place Defendant was later found. 
20

{83} The evidence against Defendant in the Simon case was strong in several respects.

There was significant evidence that Defendant lied repeatedly about his involvement in the

Simon murder. The recorded interviews demonstrated that Defendant varied his stories at

the suggestion of the police. A majority of the stories had to be lies. In fact, none of

Defendant’s stories about his involvement in the Simon murder were consistent with the

physical evidence presented.

{84} Considering our analysis of the Drew factors and the evidence of Defendant’s guilt

in each these crimes, we conclude that the trial court’s failure to sever caused Defendant

actual prejudice in relation to his conviction for the Garcia murder. While there was

certainly sufficient evidence to convict Defendant in the Garcia murder, any reasonable

person would conclude, as a reasonable probability, that trying the two murders together

made the Garcia case stronger and Defendant’s conviction more likely. Thus, the trial court

committed reversible error—not harmless error—by failing to sever the two prosecutions,

at least with respect to the Garcia prosecution. 

{85} We cannot conclude, however, that trying the Garcia case alongside the Simon case

affected the jury verdict in the Simon case, at least not to a reasonable probability. It seems

more likely that Defendant stood the same high probability of conviction for the Simon

murder with or without the evidence relating to the Garcia murder. Thus, we only vacate

Defendant’s conviction for first-degree murder in relation to Garcia. See Gallegos,

2007-NMSC-007, ¶ 47 (concluding that a trial court’s failure to sever two joined crimes only

actually prejudiced a defendant in relation to one of the crimes, and thus only reversing the

conviction for which the defendant suffered actual prejudice).

CONCLUSION

{86} For the forgoing reasons, we reverse Defendant’s conviction for first-degree murder

in relation to Garcia and uphold his conviction for first-degree murder and criminal sexual

penetration in relation to Simon.

{87} IT IS SO ORDERED.

____________________________________

RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________

PETRA JIMENEZ MAES, Chief Justice

____________________________________

PATRICIO M. SERNA, Justice
21

____________________________________

EDWARD L. CHÁVEZ, Justice

____________________________________

BARBARA J. VIGIL, Judge

Topic Index for State v. Lovett, No. 30,470

APPEAL AND ERROR

Fundamental Error

Harmless Error

Prejudicial Error 

CRIMINAL LAW

Homicide

Kidnaping

Murder

Sexual Offences

CRIMINAL PROCEDURE

Capital Punishment

Closing Argument

Death Penalty

Joinder of Charges

Opening Statement

Prejudice

Severance

EVIDENCE

Prior Acts or Statements

Probative Value vs. Prejudicial Effect

JUDGES

Abuse of Discretion