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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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

v. NO. 32,829 4 AARON DAUGHERTY, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 Ralph D. Shamas, District Judge 8 McGarry Law Office 9 Kathleen McGarry 10 Glorieta, NM 11 for Appellant 12 Gary K. King, Attorney General 13 M. Victoria Wilson, Assistant Attorney General 14 Santa Fe, NM 15 for Appellee 16 Mary Lynne Newell 17 Silver City, NM 182 for Amicus Curiae 1 New Mexico District Attorneys’ Association 2

DECISION 3 KENNEDY, Justice, sitting by designation. 4 {1} On Defendant’s motion for rehearing, the Decision previously filed in this 5 matter on June 20, 2013, is hereby withdrawn and the following substituted in its 6 place. The motion for rehearing is otherwise denied. 7 {2} On October 22, 2010, a jury convictedDefendant Aaron Daugherty of first8 degree murder in the shooting deaths of his girlfriend, Valerie York, and her friend, 9 Mark Koenig. The district court se ntenced Daugherty to two consecutive life 10 sentences, thus giving this Court exclusive jurisdiction to hear his direct appeal. See 11 N.M. Const. art. VI, § 2 (“Appeals from a judgment of the district court imposing a 12 sentence of death or life imprisonment shall betaken directly to the supreme court.”); 13 accord Rule 12-102(A)(1) NMRA. Defendant argue s that (1) the district court erred 14 in instructing the jury on felony murder as analternative theory to first-degree murder; 15 (2) assuming there was insufficient eviden ce to support a felony murder conviction, 16 the general verdict was tainted and must be overturned; (3) there was insufficient 17 evidence to convict Defendant of willful and deliberate first-degree murder; and (4) 183 the district court abused its discreti on in sentencing Defendant to consecutive 1 sentences rather than concurrent sentences. 2 {3} We find no error or abuse of discretion by the district court. Because we find 3 that there was sufficient evid ence for a jury to find Defendant guilty of felony murder 4 and of willful and deliberate murder, we do not reach the issue of whether the jury’s 5 general verdict for first-degree murder woul d have to be overturned if there had been 6 insufficient evidence to support a felony murd er conviction. This appeal raises no 7 novel issues of law, and we therefore issue this unpublished decision affirming 8 Defendant’s convictions and sentences pursuant to Rule 12-405(B) NMRA. 9 I. BACKGROUND 10 {4} The following evidence was presented at trial. Just before 3:00 a.m. on June 11 13, 2009, a New Mexico State Police officer on patrol in Roswell, New Mexico, heard 12 the sound of gunshots in a residential nei ghborhood. Officers also received a call that 13 someone had fired a gun into a mobile home inthe area. When officers arrived at the 14 mobile home, they found Valerie York and Mark Koenig dead due to gunshot wounds. 15 York’s body was found slumped across the doorway of the mobile home, and 16 Koenig’s was found inside the mobilehome a few feet away from York’s. 17 {5} Defendant and York had been in a re lationship for approximately two years 181 Defendant and York exchanged the following messages: 13 York: “Yeah. And it happened. . . . What can I say?” 14 Defendant: “[F]ucking why?” 15 York: “Honestly, because he showed me some attention.” 16 (The dialogue is taken from the transcri pt of Defendant’s testimony and may not 17 reflect the punctuation as it appeared in the text messages.) 18
2 The parties dispute whether the gun wa s loaded before Defendant pulled it 19 from his closet and headed to Koenig’s home. Defendant’s initial statement to the 20 police indicates that he kept the gun unloaded, but at trial he claimed that he kept the 21 4 prior to the murders, and they had a s on together. On the day of the killings, 1 Defendant picked York up at work and wa s intending to watch movies at home with 2 her. Instead, York told him she was goi ng to Koenig’s, and Defendant remained at 3 home with the couple’s son. Defendant woke up late that night to find that York had 4 not returned home, and he proceeded to walk to Koenig’s mobile home where he 5 witnessed York and Koenig kissing on the porch. Enraged, Defe ndant began walking 6 home and sent York a text message asking, “Are you finished kissing him yet?” In 7 a post-arrest interview, Defendant told officers he tried to calm down on the walk 8 home, and then smoked a ci garette and paced around his house. Defendant then 9 exchanged several more text messages with York, and he claimed that her responses 10 led him to believe she and Koenig had engaged in sexual relations. 1 Defendant 11 claimed he “clicked,” retrieved his gun from a shelf inside his closet, loaded it with 12 ammunition he kept in his car, and drove back to Koenig’s mobile home. 2 13gun loaded and that he was interrupted duri ng his police interview before he had time 19 to clarify that fact for officers. 20 5 {6} When Defendant arrived at Koenig’s mobile home, he walked towards York, 1 cocked the gun, shot at her, and missed. Defendant cocked the gun again and shot 2 York, then cocked it once more and shot at Koenig. Defendant then entered the 3 mobile home and shot each vi ctim again. The eviden ce showed that each victim 4 sustained two shots, but the sequence of the shots could not be inferred from the 5 evidence. York was shot twi ce in the head, and Koenig wa s shot once in the head and 6 once in the neck. The State’s forensic pathologist testified that although all four shots 7 were likely fatal, the evidence was inconclusive as to whether Defendant fired the fatal 8 shots before or after he entered the mobile home. 9 {7} After entering the mobile home and firi ng the second set of shots, Defendant 10 looked at two witnesses who were in the home, told th em he had no problems with 11 them, and walked out. Defendant drove home, picked up his son, and left for his 12 mother’s house in Las Cruces, New Mexico . One of the witnesses called police, 13 identified Defendant as the shooter, and provided a description of Defendant’s car. 14 When officers stopped Defendant, Defendant told them, “I did it. I shot them.” 15 {8} At trial, the State alleged first-degree murder under the alternate theories of 16 willful and deliberate murder and felony murder. The defense called a forensic 176 psychologist who testified that Defendant was overwhelmed with emotion and was 1 therefore provoked into committing the killings . She further tes tified that Defendant 2 did not have a total loss of self control at the time of the shootings but that he “was not 3 in good control.” In rebuttal, the State called a forensic psychologist who testified that 4 Defendant’s actions were premeditated and that the shootings were preceded and 5 accompanied by a series of deliberate and purposeful actions that “required some 6 thought and . . . some planning.” The psychologist based these conclusions on 7 Defendant’s previous self-mutilation and on his comments and acts of rage related to 8 York’s previous infidelity. The psychologi st further testified that Defendant had 9 passed up several opportunities to stop his ac tions and had persis ted, culminating in 10 the final shots he fired on his way out the door to make sure the victims were dead. 11 {9} At trial, the jury was instructed on fe lony murder, with aggravated burglary as 12 the predicate felony, and alternatively on willful and deliberate murder with step13 down instructions for second-degree murder and voluntary manslaughter. The jury 14 found Defendant guilty of two counts of first-degree murder under a general verdict 15 form, and the district court sentenced Defe ndant to two consecutive sentences of thirty 16 years to life in prison. This direct appeal followed. 17 II. THE FELONY MURDER INSTRUCTION 187 {10} Defendant argues the “trial court erred in instructing the jury on felony murder 1 as an alternative theory of first degree murder.” He argues that the State failed to 2 present sufficient evidence of causation of death to justify instructing the jury on 3 felony murder so that consequently aggravated burglary is not an appropriate 4 predicate to felony murder inthis case. Defendant ar gues that the burglary was not 5 a factual predicate to the murd er because “either of the two shots to each victim would 6 have been fatal” and “[t]hevictims were most likely already dead when [Defendant] 7 entered the trailer for the second shots.” Defendant further maintains that the State 8 did not prove the aggravated burglary b ecause “nothing [in the evidence] indicated 9 that [Defendant] went over tothe trailer of the victim with an intent to commit 10 burglary.” 11 {11} New Mexico’s felony murder doctrine is based on the idea that “a killing in the 12 commission or attempted commission of a felony is deservi ng of more serious 13 punishment than other killings in which the killer’s mental state might be similar but 14 the circumstances of the killing are not as grave.” See State v. Ortega , 112 N.M. 554, 15 565, 817 P.2d 1196, 1207 (1991), abrogated on other grounds as recognized by 16 Kersey v. Hatch , 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683. Felony murder 17 consists of a second-degree murder committe d in the course of a dangerous felony. 188 See State v. Campos , 1996-NMSC-043, ¶ 17, 122 N.M. 148, 921 P.2d 1266; NMSA 1 1978, § 30-2-1(A)(2) (1994). “[T]he legislature has elected to treat this species of 2 second-degree murder as murder in the first degree.” State v. Nieto , 2000-NMSC-031, 3 ¶ 13, 129 N.M. 688, 12 P.3d 442. 4 {12} “‘[W]ithout sufficient provocation’ is an essential element of second-degree 5 murder [and therefore of felony murder] wh en the jury is instructed on voluntary 6 manslaughter as a potential lesser-included offense.” State v. Swick , 2012-NMSC7 018, ¶ 55, 279 P.3d 747. And as we recently held in State v. Benjamin Montoya , 8 2013-NMSC-020, ¶ 20, __ P.3d __, “lack of provocation [is] as much an element of 9 second-degree murder as an included offense of felony murder as it [is] of stand-alone 10 second-degree murder.” At trial, the district court instructed the jury on voluntary 11 manslaughter as a step-down to willful and deliberate murder. As a preliminary 12 matter, we note that Defendant did not re quest a felony murder instruction including 13 the element “without sufficient provocation,” and he never raised the issue on appeal. 14 Regardless, we review for f undamental error and conclude that there was insufficient 15 evidence of provocation to entitle Defendant to such an instruction. See State v. Stills , 16 1998-NMSC-009, ¶¶ 36-37, 125 N.M. 66, 957 P. 2d 51 (recognizing the principle that 17 “[m]ere sudden anger or heat of passion will not reduce the killing from murder to 189 manslaughter” and that in order to justif y giving a voluntary manslaughter instruction 1 the trial judge must determine not only that there was evidence Defendant was 2 adequately provoked into a loss of self control but that an “ordinary person of average 3 disposition” in the same situation would havesuffered a loss of se lf control (internal 4 quotation marks and citation omitted)); see also UJI 14-222 NMRA (“The 5 provocation must be such as would aff ect the ability to reason and to cause a 6 temporary loss of self control in an ordinary person of average disposition.”). 7 {13} The evidence in this case di d not create a jury issue on either of the essential 8 elements necessary to justify a jury instruction on whether an intentional homicide 9 could be lawfully mitigated from murder to manslaughter as a result of legally 10 sufficient provocation and loss of control. First, neither the testimony of Defendant’s 11 forensic psychologist nor any other ev idence supported a theory that Defendant 12 personally was provoked into a loss of self control. The psychologist testified that 13 Defendant did not lose his self control; at most, he “was not in good control.” The 14 evidence was undisputed that, after witne ssing York and Koenig kissing on the porch, 15 Defendant returned home, ex changed text messages withYork, spent time thinking, 16 retrieved his gun, drove to Ko enig’s home with a loaded gun, parked his car, got out, 17 walked to the mobile home, and methodically shot each victim—recocking his gun 1810 after each shot and concluding by shooting each victim a final time, ensuring that 1 neither could survive. Second and of equal importance, there was no evidence or 2 reasonable inference from the evidence thatthose same circumstances would have 3 provoked an ordinary person of average disposition into a loss of self control. 4 {14} We address the district court’s denial of Defendant’s motion for a directed 5 verdict and consider the sufficiency of the State’s evidence that the aggravated 6 burglary was a proximate cause of both murd ers. We then turn to a discussion of 7 whether aggravated burglary is an appropriate predicate to felony murder. 8 A. The District Court Did Not Err inDenying Defendant’s Motion for a 9 Directed Verdict. 10 {15} The district court instructed the jury that in order to find Defendant guilty of 11 felony murder with the predicate felony of aggravated burglary, the jury had to find 12 the following beyond a reasonable doubt: (1) Defendant committed aggravated 13 burglary under circumstances or in a manner dangerous to humanlife, (2) Defendant 14 caused the death of each victim during the commission of the aggravated burglary, (3) 15 Defendant did so with the intent to kill or knew his acts created a strong probability 16 of death or great bodily harm, and (4) this happened in New Mexico on or about the 17 date specified in the criminal information. SeeUJI 14-202 NMRA; see also UJI 14- 18 1632 NMRA. The crime of aggravated burgl ary requires “the unauthorized entry of 1911 any . . . dwelling . . . with intent to co mmit any felony or theft therein.” NMSA 1978, 1 § 30-16-4 (1963). The person must either be armed with a deadly weapon, arm 2 himself with a deadly weapon after entering, or commit a battery upon any person 3 while in such place or in entering or leaving such place. Id. 4 {16} Defendant challenges the sufficiency of the evidence establishing causation and 5 intent. Defendant essentially argues that th e district court erred in denying his motion 6 for a directed verdict, given that one vi ew of the evidence would not support a felony 7 murder conviction. 8 {17} “We review denials of directed verdic ts by asking whether sufficient evidence 9 was adduced to support the underlying charge.” State v. Johnson , 2010-NMSC-016, 10 ¶ 57, 148 N.M. 50, 229 P.3d 523 (internal quotation marks and citation omitted). 11 The test for sufficiency of the evidence is whether substantial evidence 12 of either a direct or circumstantial nature exists to support a verdict of 13 guilt beyond a reasonable doubt with resp ect to every element essential 14 to a conviction. . . . [W]e view th e evidence as a whole and indulge all 15 reasonable inferences in favor of th e jury’s verdict while at the same 16 time asking whether any rational trier of fact could have found the 17 essential elements of the crime beyond a reasonable doubt. 18 Id. (internal quotation marks and citation omitted). Where a jury’s verdict is 19 supported by substantial evidence, the existe nce of evidence contrary to the verdict 20 does not require a directed verdict or a reversal of a conviction. See id. ¶¶ 58-59. 213 Additionally, the felony murder analysis is the same whether or not the first 16 shots were fatal. The State presen ted sufficient evidence to prove, beyond a 17 reasonable doubt, that Defendant entered Ko enig’s mobile home while armed with a 18 deadly weapon and with the intent to commit a battery on each of the victims. The 19 predicate crime of aggravated burglary wa s therefore complete at the time Defendant 20 crossed the threshold of the mobile home. Section 30-16-4. 21 12 {18} Defendant argues that the testimony of th e forensic pathologist established that 1 the victims were likely already dead before Defendant entered Koenig’s mobile home. 2 This argument fails, given that the pathologist testified that, although all four shots 3 were probably fatal, the first shots on eachvictim may not have been immediately 4 fatal. Even if Defendant’s first shots at the victims would ultimately have been fatal, 5 Defendant’s subsequent acts to hasten th eir deaths still establish causation and amount 6 to murder. See State v. Adam Montoya, 2003-NMSC-004, ¶ 19, 133 N.M. 84, 61 P.3d 7 793 (“[A]n individual may be a legal causeof death even though other significant 8 causes significantly contributed to the cause of death.”). 3 9 {19} The State also presented sufficient eviden ce to prove that Defendant entered the 10 mobile home and shot at the victims with the intent to kill or that he knew his acts 11 created a strong probability of death or great bodily harm. In determining whether the 12 Defendant made a calculated judgment to kill York and Koenig, the jury was 13 permitted to infer intent fro m circumstantial evidence, as direct evidence of a 14 defendant’s state of mind is not required. See State v. Nathaniel Duran , 1513 2006-NMSC-035, ¶ 7, 140 N.M. 94, 140 P.3d 515 (“Intent is subjective and is almost 1 always inferred from other facts in the cas e, as it is rarely established by direct 2 evidence.” (internal quotation marks and citation omitted)). Defe ndant testified that 3 when he went to shoot York and Koenig, hewas aiming to kill them, stating, “[I]f I’m 4 shooting at something, I’m shooting to kill. ” Defendant’s testimony as well as the 5 testimony of witnesses also established th at Defendant inflicted potentially fatal 6 wounds on his victims before stepping insidethe mobile home to shoot them again. 7 See State v. Flores , 2010-NMSC-002, ¶¶ 21-22, 147 N.M. 542, 226 P.3d 641 (finding 8 an attempt at “overkill” among the eviden ce sufficient to uphold a finding of intent). 9 These facts support a reasonable inference that Defendant entered the mobile home 10 and fired the second set of shots in order to ensure his victims were dead. 11 {20} We conclude that the State presented su fficient evidence at trial to prove that 12 Defendant committed aggravated burglary ina manner dangerous to human life, that 13 the aggravated burglary was a proximate cau se of the murders, and that Defendant 14 entered the mobile home with the intent to shoot and kill the victims once he was 15 inside. Because there was sufficient evid ence for a jury to find beyond a reasonable 16 doubt that the Defendant fired the fatal shot s after he entered the mobile home and that 17 he did so with the intent to kill his victims, we hold that the district court did not err 1814 in denying Defendant’s motion for a directed verdict. 1 B. Using Aggravated Burglary as a P redicate Crime to Felony Murder Did 2 Not Violate the Collateral Felony Doctrine. 3 {21} This Court requested supplemental brie fing to address Defendant’s argument 4 that he did not have the requisite intent to support convictions on the State’s felony 5 murder theory. Specifically, we asked for briefing on the question of whether 6 aggravated burglary is a permissible collateral felony for felony murder, even in cases 7 where the crime intended to be committed upon unauthorized entry of the structure 8 is the same murder that forms the basis of the felony murder conviction. 9 {22} Under the collateral felony doctrine, a person cannot betried for felony murder 10 if the predicate felony is a lesser incl uded offense of second-degree murder. See 11 Campos , 1996-NMSC-043, ¶ 19 (“[T]he appropriate limitation imposed by the 12 collateral-felony doctrine in New Mexico is simply that the predicate felony cannot 13 be a lesser-included offense of second-degree murder.”). In determining whether the 14 collateral felony requirement is met, New Me xico courts must determine whether the 15 predicate felony is a lesser-included offense of second-degree murder. See Campos 16 v. Bravo , 2007-NMSC-021, ¶ 11, 141 N.M. 801, 161 P.3d 846. Facing a related 17 challenge based on the collateral felony doctrine, this Court outlined the proper 18 approach, noting that we are “require[d] . . . to look not to the nature of the act , but 194 The State argues that “[e]ve n if the strict elements test is not applied in the 15 abstract and, instead, the elemen ts are viewed in light of th e State’s theory of guilt, the 16 aggravated burglary . . . is a proper pred icate for felony murder.” The State aptly 17 notes that, even given shared intent between burglary and second-degree murder, 18 burglary requires unauthorized entry of a dwe lling, which is not an element of second19 degree murder, and second-degree murder requires the killing, which is not an element 20 of burglary. 21 15 rather to whether the legislature intended that a particular felony should be able to 1 serve as a predicate to felony murder.” Id. ¶¶ 14-15 (internal quotation marks and 2 citation omitted) (holding that the use of aggravated burglary as predicate felony to 3 felony murder did not violate the collateral felony doctrine, even though the factor 4 raising simple burglary to aggravatedburglary was the c onduct underlying second5 degree murder). 6 {23} Applying the strict elements test, we fi nd that the crime of aggravated burglary 7 is an appropriate predicate to felony murd er. Because it is possible to commit second8 degree murder without ever committing aggravated burglary, it is clear to us that the 9 felony murder statute does not prohibit aggravated burglary from being used as the 10 predicate to felony murder in this case. That is, each crime has at least one element 11 which the other lacks. See id. ¶ 15 (citing NMSA 1978, § 30-16-3 (1971)) (stating 12 that two elements of burglary never cont ained in second-degree murder are (1) the 13 unauthorized entry of a structure, and (2) the intent to commit a felony therein). 4 1416 Therefore, we hold that the district court did not violate the collateral felony doctrine 1 in using aggravated burglary as a predicate crime to the felony murders. 2 III. SUFFICIENCY OF THE EVIDENCE 3 {24} Defendant argues that there was insu fficient evidence to establish beyond a 4 reasonable doubt that he shot York and Koenig with the deliberate intent to kill them. 5 Defendant claims that the evidence “support[s] a rash and impulsive crime as a result 6 of discovered infidelity” but that his actions did not constitute willful and deliberate 7 first-degree murder. 8 {25} “Our substantial evidence review of th e sufficiency of th e evidence to support 9 a conviction must take into account both the jury’s fundamental role as factfinder in 10 our system of justice and the independent responsibility of the courts to ensure that 11 the jury’s decisions are supportable by eviden ce in the record, rath er than mere guess 12 or conjecture.” Flores , 2010-NMSC-002, ¶ 2. “The te st for sufficiency of the 13 evidence is whether substantial evidence of either a direct or circumstantial nature 14 exists to support a verdict of guilty beyond a reasonable doubt with respect to every 15 element essential to a conviction.” State v. Riley , 2010-NMSC-005, ¶ 12, 147 N.M. 16 557, 226 P.3d 656 (internal quotati on marks and citation omitted), overruled on other 17 grounds by Benjamin Montoya , 2013-NMSC-020, ¶ 54. This Court “view[s] the 185 The district court instructed the jury that, in order to find Defendant guilty of 16 first-degree murder, it had to find beyond a reasonable doubt that (1) Defendant killed 17 the victims, (2) he did so with the deliberate intention of taking their lives, and (3) this 18 happened in New Mexico on or about the date specified inthe criminal information. 19 See§ 30-2-1; accord UJI 14-201 NMRA. 20 17 evidence in the light most favorable to the guilty verdict, indulging all reasonable 1 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. 2 Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 3 {26} With the above guidelines in mind, weaddress Defendant’s challenge. Because 4 Defendant admitted to killing the victims, weneed only to consider whether he did so 5 with the deliberate intention of taking their lives. SeeNMSA 1978, § 30-2-1(A)(1) 6 (1994); see also State v. Adonis , 2008-NMSC-059, ¶ 14, 145 N.M. 102, 194 P.3d 717 7 (distinguishing between first- and second-de gree murder based on the level of intent 8 that must be proved). 5 “‘The word deliberate means arrived at or determined upon as 9 a result of careful thought and the weighing of the consideration for and against the 10 proposed course of actions.’” State v. Largo , 2012-NMSC-015, ¶ 32, 278 P.3d 532; 11

seeUJI 14-201. Although deliberate intent re quires a “‘calculated judgment’” to kill, 12 the weighing required for deliberate intent “‘may be arrived at in a short period of 13 time.’” Largo , 2012-NMSC-015, ¶ 32; seeUJI 14-201. 14 {27} In Cunningham , this Court upheld a conviction for willful and deliberate 1518 murder because the defendant shot the vic tim with one gun, retrieved a different gun, 1 and shot the victim a second time. See2000-NMSC-009, ¶¶ 25, 28. This evidence 2 contributed to our holding that “[a] reasonable juror could have concluded that this 3 was an act of a man who had decided as a result of careful thought and the weighing 4 of the consideration that he was going to takethe life of [the victim] . . . by firing the 5 final shot” while the victim was incapacitated and defenseless. Id. ¶ 28 (internal 6 quotation marks and citation omitted). 7 {28} In this case, Defendant also shot and hit his victims befo re taking additional 8 steps and then firing another shot at each of them. It was reasonable for the jury to 9 infer deliberate intent from this s econd round of coup de grace (kill shots), see, e.g. , 10 Flores , 2010-NMSC-002, ¶¶ 21-22 (citing multiple ex amples of juries’ inferences of 11 deliberate intent); and, because Defendant took the same steps with each killing, it was 12 reasonable for the jury to infer deliberate intent for each of them. Defendant also 13 testified that, after seeing the victims ki ssing, he walked home, smoked a cigarette, 14 and exchanged text messages with York before retrievi ng his gun and driving back to 15 Koenig’s mobile home. This series of events implies premeditation and deliberation. 16 Defendant had many opportunities to cool down but, despite this, persisted in 17 gathering his weapon and driving back to Koenig’s mobile home before shooting his 1819 defenseless victims. See State v. Begay , 1998-NMSC-029, ¶¶ 45-46, 125 N.M. 541, 1 964 P.2d 102 (recognizing the fact that the defendant took steps to arm himself as 2 evidence to uphold a finding of deliberation). 3 {29} The jury was free to reject Defendant’s argument that he acted out of emotional 4 distress and not as a result of premeditation and deliberation. Examining the 5 testimony and physical evidence in the light mo st favorable to the jury’s verdict, we 6 find that there was sufficient evidence to convict Defendant of willful and deliberate 7 first-degree murder notwithstanding the existe nce of a contrary vi ew of the evidence. 8 See Cunningham , 2000-NMSC-009, ¶ 30 (“We will not substitute our judgment for 9 that of the trier of fact as long as there is sufficient evidence to support the verdict.”). 10 IV. CONSECUTIVE SENTENCES 11 {30} Defendant argues that the district c ourt abused its discretion in imposing 12 consecutive sentences because it failed to c onsider the mitigating evidence, including 13 Defendant’s past military service, the factthat he lacked a criminal record, his 14 devotion to his child, his age, and his remorse. 15 {31} We review the district court’s se ntencing for abuse of discretion. See State v. 16 Bonilla , 2000-NMSC-037, ¶ 6, 130 N.M. 1, 15 P.3d 491. “Judici al discretion is 17 abused if the action taken by the trial court is arbitrary or capricious . . . . Such abuse 1820 of discretion will not be presumed; it mu st be affirmatively established.” Id. (internal 1 quotation marks and citation omitted). “Apart from double jeopardy considerations, 2 whether multiple sentences for multiple offenses run concurrently or consecutively is 3 a matter resting in the sound discretion of the trial court.” State v. Allen , 2000- 4 NMSC-002, ¶ 91, 128 N.M. 482, 994 P.2d 728 (i nternal quotation marks and citation 5 omitted). 6 {32} Defendant quotes the district court’s statement during sentencing and contends 7 that the district court abused its disc retion when it imposed consecutive sentences 8 because the court was under the mistaken be lief that it was required by law to impose 9 consecutive sentences. We disagree. Af ter considering competing viewpoints from 10 the victims’ and Defendant ’s families and friends re garding sentencing, and 11 specifically whether the life sentences shoul d run concurrently or consecutively, the 12 district court made the following statement when announcing its decision: 13 I have my whole adult life sought to respect and protect the system 14 of justice. In this case, Mr. Daugherty was ably represented. His 15 counsel raised the issues of provocation and the influence of his military 16 service. And the jury heard those things and I believe weighed them. 17 Because of my dedication to the sy stem of justice, I respect the 18 jury’s verdict. And I respect th at they found Mr. Daugherty guilty of 19 two counts of deliberate willful first degree murder. I do not believe that 20 the acts were unitary. I believe thatthere were two lives, two separate 21 lives. 2221 It shall be the judgment and sentence of this court that Aaron 1 Daugherty be confined in the departme nt of corrections for a term of 30 2 years to life as to Count 1 for the deliberate killing of Valerie York, that 3 he be confined to the department of corrections for a period of 30 years 4 to life for the first degree murder of Mark Koenig, and that those 5 sentences be consecutive to one another. 6 I act not from hate. I act from a sense of justice. And I think the 7 families should do likewise. We shall be in recess. 8 We do not interpret the district court to have believed thatit was bound by law to 9 impose consecutive sentences. Instead, after listening to statements from the families 10 and having considered the trial as a whole, the district court exercised its discretion 11 and decided that consecutive sentencing was a just result. The district court did not 12 misapply the law, and therefore it did not abuse its discretion in imposing consecutive 13 sentences for the two murders Defendant committed. 14 V. CONCLUSION 15 {33} For the reasons explained above, we affirm Defendant’s convictions and 16 sentences for first-degree murder. 17 {34} IT IS SO ORDERED. 18

___________________________________ 19 PAUL J. KENNEDY, Justice, 20 sitting by designation 21 WE CONCUR: 2222 ___________________________________ 1 PETRA JIMENEZ MAES, Chief Justice 2

___________________________________ 3 RICHARD C. BOSSON, Justice 4

___________________________________ 5 EDWARD L. CHÁVEZ, Justice 6

___________________________________ 7 CHARLES W. DANIELS, Justice 8