This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. A-1-CA-34380 4 DEMETRIO STOGDEN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 Jerry H. Ritter, Jr., District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Jacqueline Rose Medina, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 C. David Henderson, Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VIGIL, Judge. 191 Note that Section 30-7-16 was amende d at N.M. Laws 2018, ch. 74, but the 18 amendment was not in place at the time this case arose, so Defendant’s claim and our 19 analysis is governed by the 2001 version of the statute. 20 2 {1} Defendant appeals from a jury verdict convicting him of one count of 1 conspiracy to commit aggravated assault w ith a deadly weapon in violation of NMSA 2 1978, Section 30-3-2(A) (1963) and NMSA 1978, Section 30-28-2 (1979), conspiracy 3 to commit shooting at or from a motor vehi cle, not resulting in great bodily harm, in 4 violation of NMSA 1978, Section 30-3-8(B) (1993) and Section 30-28-2, and receipt, 5 transportation or possession of a firearm by a felon in violation of NMSA 1978, 6 Section 30-7-16 (2001). 1 Defendant argues: (1) two c onspiracy convictions arising 7 from only one agreement between he and his passenger to fireshots at Victim violate 8 double jeopardy; (2) the district court abused its discretion in permitting cross9 examination and closing argument concerning Defendant’s gang affiliation; (3) 10 fundamental error resulted from the pros ecutor’s comments during closing argument 11 that Defendant invoked the Fifth Amendment during cross-examination; and (4) 12 fundamental error resulted from giving the in struction on the definition of constructive 13 possession. We affirm in part and reverse in part. Because this is a memorandum 14 opinion and the parties are familiar with the facts and pro cedural posture of the case, 15 we set forth only such facts and law as are necessary to decide the merits. 16 BACKGROUND 173 {2} Defendant’s charges stemmed from anincident during which gunshots were 1 fired from a vehicle driven by Defendant atanother vehicle being driven by Victim. 2 DISCUSSION 3 I. Defendant’s Multiple Conviction s for Conspiracy Violated Double 4 Jeopardy 5 {3} Defendant was convicted of both conspir acy to commit aggravated assault with 6 a deadly weapon and conspiracy to commit shooting at or from a motor vehicle 7 stemming from the drive-by-shooting. Defendantargues, and the State agrees, that one 8 conspiracy conviction against Defendant should be vacated on double jeopardy 9 grounds, pursuant to State v. Gallegos , 2011-NMSC-027, 149 N.M. 704, 254 P.3d 10 655. We agree. 11 {4} Double jeopardy presents a question of law subject to de novo review on 12 appeal. Id. ¶ 51; State v. Rodriguez , 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 13 737 (“We generally review double jeopardy claims de novo. However, where factual 14 issues are intertwined with the double jeopardy analysis, we review the trial court’s 15 fact determinations under a deferential substantial ev idence standard of review.” 16 (citations omitted)). 17 {5} In Gallegos , our Supreme Court determined thatbased on the “text, history, and 18 purpose of our conspiracy statute . . . the Legislature established . . . a rebuttable 19 presumption that multiple crimes are the object of only one, overarching, 204 conspiratorial agreement subject to one, severe punishment set at the highest crime 1 conspired to be committed. ” 2011-NMSC-027, ¶ 55. “At trial, the state has an 2 opportunity to overcome the Legislature’s presumption of singularity, but doing so 3 requires the state to carry a heavy burden.” Id. 4 {6} In determining whether the State has overcome the Legislature’s presumption 5 of singularity and demonstrated the exis tence of more than one conspiracy, our 6 Supreme Court has adopted a multi-factor to tality of the circumstances test used by 7 federal courts. Id. ¶¶ 42, 56. The factors used to determine the number of agreements 8 are whether: 9 (a) the location of the two alleged conspiracies is the same; (b) there is 10 a significant degree of temporal overlap between the two conspiracies 11 charged; (c) there is an overlap of personnel between the two 12 conspiracies (including unindicted as well as indicted co[-]conspirators); 13 and (d) the overt acts char ged and (e) the role pl ayed by the defendant in 14 the alleged conspiracies are similar. 15 Id. ¶ 42, 56 n.3 (stating that “[w]hile New Mexico law doe s not require the existence 16 of an overt act, our courts may still rely on this factor to help determine whether a 17 defendant entered into one or more conspiratorial agreements” (alterations, internal 18 quotation marks, and citation omitted)). 19 {7} The evidence at trial was that during the month of January 2013 Defendant was 20 living in a house owned by Stacy Northrup and her husband, Robert Northrup, both 21 of whom were in custody at the time. Victim was related to the Northrups. On the day 225 of the shooting, Defendant was involved in two confrontations with members of the 1 Northrup family. During the second confrontation, members of the Northrup family 2 attempted to forcefully enter the home. Victim was present, made eye contact with 3 Defendant, and may have con fronted Defendant in the backyard of the house. The 4 Northrups called the police for assistance in ejecting Defendant from the house, but 5 left after the police confirmed that Stacy Northrup had given Defendant permission 6 to reside in the house. 7 {8} Later that evening, Defendant drove to pick up an unidentified passenger, and 8 they discussed Defendant’s confrontati ons with the Northrups and the police. 9 Defendant and his passenger saw Victim driving and proceeded to follow him, 10 paralleling and tailgating Vic tim. Shots were then fired from Defendant’s vehicle that 11 struck Victim’s vehicle. After the shots were fired, Defendant and his passenger left 12 the scene. Live rounds were found in the back of Defendant’s vehicle. 13 {9} Applying the totality of circumstances test to these facts, we conclude that the 14 evidence at trial established the existence of only one conspiracy. First, the location 15 of the two charged conspiracies was the same and overlapped temporally. The direct 16 and circumstantial evidence showed that the agreement between Defendant and his 17 passenger to shoot at Victim from within De fendant’s vehicle was formed at the same 18 time while Defendant and his passenger drove togeth er discussing Defendant’s 196 confrontations with Victim and Vi ctim’s family earlier that day. See State v. Trujillo , 1 2002-NMSC-005, ¶ 62, 131 N.M. 709, 42 P. 3d 814 (stating that the “agreement” 2 necessary to establish a conspiracy “may be established by circumstantial evidence”). 3 Second, the personnel involve d in both charged conspiracies, Defendant and his 4 passenger, were the same. Finally, the overtacts and Defendant’s role in the two 5 charged conspiracies were the same. Speci fically, Defendant’s role in both of the 6 charged conspiracies was to function as th e driver of the vehicle from which shots 7 were to be fired at Victim, following Victim, paralleling and tailgating Victim’s 8 vehicle, and positioning the vehicle in a manner in which shots could be fired at 9 Victim. 10 {10} Under these facts, we conclude that De fendant’s convictions for conspiracy to 11 commit aggravated assault and conspiracy to shoot at or from a motor vehicle violated 12 Defendant’s right to be free from double jeopardy. As such, one of Defendant’s 13 conspiracy convictions, both of which werepredicated upon fourth degree felonies, 14 must be reversed. See Section 30-3-2 (“Whoever commits aggravated assault is guilty 15 of a fourth degree felony.”); Section 30- 3-8(B) (“Whoever commits shooting at or 16 from a motor vehicle that does not result ingreat bodily harm to another person is 17 guilty of a fourth degree felony.”). 18 II. Admission of Evidence and the Prosecutor’s Closing Argument 19 Concerning Defendant’s Gang Affiliation 207 {11} Relying on Rules 11-403, 404 NMRA, Defendant next claims that the district 1 court abused its discretion “in permitting ex tensive cross-examination [of him] and 2 closing argument concerning [his] gang affiliation given the lack of evidence that the 3 shooting was gang-related[.]” The State res ponds that this claim was not preserved. 4 We agree. 5 {12} Rule 11-103(A)(1)(a) NMRA requires that in order to preserve a claim for 6 error, a party must make a timely objecti on. “Generally, evidentiary objections must 7 be made at the time the evidence is offered.” State v. Neswood , 2002-NMCA8 081, ¶ 18, 132 N.M. 505, 51 P.3d 1159. 9 {13} Here, during direct examination, Defendanttestified that he would not name his 10 passenger because the passenger is a “knucklehead, and if I was to bring up his name, 11 I wouldn’t want no harm to my mom orfamily.” During cross-examination, the 12 prosecutor explored Defendant’s reasons fo r refusing to identify his passenger, which 13 included questions concerning Defendant’s gang aff iliation. Without objection, 14 Defendant testified that he had been affiliated with the East Si de Locos gang and that 15 he had disclosed this fact to law enforcement in association with their investigation 16 into the shooting. Defendant further testif ied, without objection, that he was still 17 affiliated with the East Side Locos gang on the night of the shooting. When defense 18 counsel did finally object to the prosecuto r’s question “Now whatdoes the term gang- 198 banging mean to you as a gang member?”, De fendant had already conceded that gang 1 members adhere to a “credo” of “[n]ever snitch[ing.]” 2 {14} Under these circumstances, “the horse was already out of the barn when [the 3 d]efendant tried to shut the door” to the jury hearing evidence of his gang affiliation. 4 See Neswood , 2002-NMCA-081, ¶ 18. Defendant should have objected immediately 5 to the prosecutor’s inquiry into Defendant ’s history as a gang member. Defendant, by 6 his testimony on direct, opened the door to cross-examination concerning his gang 7 affiliation. Furthermore, defense counsel ’s objection to the prosecutor’s cross8 examination on this issue was untimely and therefore will not be considered for the 9 first time on appeal. See State v. Gilbert , 1983-NMSC-083, ¶ 30, 100 N.M. 392, 671 10 P.2d 640 (“A defendant cannot be heard to co mplain on appeal that he was prejudiced 11 by evidence which he intr oduced into the case.”). 12 {15} Defendant also takes issue with the prosecutor’s reference to the evidence of 13 Defendant’s gang affiliation in closing argument. The prosecutor argued that the case 14 was about “disrespect. Not in our eyes; in the eyes of an [East Side Locos] gang 15 member” and what disres pect means to them. The prosecutor continued, “Do we 16 understand how gangsters act, feel, what things mean? Do they understand the 17 innocent public. Absolutely not.” The prosecutor later referenced the evidence of 18 Defendant’s gang involvement as “disturbing.” Defendant did not object to these 199 statements; he therefore, failed to preserve a claim of error for appeal. See Rule 11- 1 103(A)(1)(a); Neswood , 2002-NMCA-081, ¶ 18. 2 III. The Prosecutor’ s Comments in Closing Argument Concerning Defendant’s 3 Invocation of the Fifth Amendment Di d Not Give Rise to Fundamental 4 Error 5 {16} Defendant claims next that “[f]undame ntal error arose when the prosecutor 6 argued during closing argument that [Defendant] invoked his Fifth Amendment 7 privilege against self-incrimination[.]” 8 {17} “The doctrine of fundamental e rror applies only under exceptional 9 circumstances and only to prevent a miscarriage of justice.” State v. Barber , 2004- 10 NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. Error that is fundamental: 11 must go to the foundation of the case or take from the defendant a right 12 which was essential to his defense and which no court could or ought to 13 permit him to waive. Each case will of necessity, under such a rule, stand 14 on its own merits. Out of the fact s in each case will arise the law. 15

Id. (internal quotation marks and citation omitted). “Prosecutorial misconduct rises to 16 the level of fundamental error when it is so egregious and had such a persuasive and 17 prejudicial effect on the jury’s verdict that the defendant was deprived of a fair trial. 18 An isolated, minor impropriety ordinarily is not sufficient to warrant reversal, because 19 a fair trial is not necessarily a perfect one.” Trujillo , 2002-NMSC-005, ¶ 52 (internal 20 quotation marks and citation omitted); see State v. Sosa , 2009-NMSC-056, ¶ 35, 147 2110 N.M. 351, 223 P.3d 348 (“Fundamental error occurs when prosecutorial misconduct 1 in closing statements compromises a de fendant’s right to a fair trial[.]”). 2 {18} We first give context to the claim. In his opening statement, defense counsel 3 told the jury that Defendant’s passenger was the individual who fired the gun at 4 Victim and: 5 unfortunately or otherwise [Defendant] lives by a code of conduct and 6 would not and has not provided the name of his passenger, even though 7 it would enable the government to actually charge the guy who did this 8 and it would answer questions put to[Defendant] repeatedly [by law 9 enforcement]. 10 As stated above, during direct examination, Defendant refused to identify his 11 passenger. On cross-examination, when asked to identify hi s passenger, Defendant 12 testified that he was pleading “the Fifth. ” Defendant answered yes to a follow-up 13 question by the prosecutor regarding whether he refused to “sn itch” on his passenger 14 out of fear of getting in “trouble or hurt. ” Defendant also stated on multiple occasions 15 during cross-examination that the reason he would not identif y his passenger was 16 because he did not want anything to happen to his family. 17 {19} During closing argument, the prosecutor referred to Defendant’s testimony that 18 he was pleading the “Fifth” to revealing the identity of his passenger, arguing that: 19 In the context of [Defendant’s] re fusal to give you information, he 20 feigned. And we knew this from the beginning of this trial, the defense 21 told us he’s not going to tell. He ’s not going to reveal the passenger’s 22 name. And I guess the question is w hy does that matter to you in the 2311 determination of the [Defendant] shooting the gun. Well, its called a 1 . . . hide the ball situation. He plead ed the Fifth. The Fifth. We all watch 2 TV. The Fifth means that I don’t have to say something that 3 will . . . cause me to be found guilty. . . . And when I asked him, so by 4 revealing your passenger’s name, th at will provide the State with 5 evidence against you—yeah. 6 Defense counsel objected, arguing that the prosecutor’s characterization of 7 Defendant’s testimony—that Defendant pleaded the Fifth to avoid incriminating 8 himself—was inaccurate since Defendant also testified that he was pleading the Fifth 9 to avoid incriminating his passenger. 10 {20} The district court said that if Defendant“truly sincerely pled the Fifth,” the 11 prosecutor could not argue it in closing, but that he did not be lieve that Defendant 12 “truly sincerely pled the Fifth.” The prosecutor responded that even assuming 13 Defendant did actually intend to invoke his Fifth Amendment privilege against self14 incrimination, Defendant waived the priv ilege by taking the st and. Defense counsel 15 answered that “we know that [Defendant] is not a legal scholar. He may have said 16 something out of relative ignorance about pleading the Fifth, but he was given an 17 opportunity to clarify what he meant by that. He clearly said he meant if he revealed 18 the identity of the passenger, it would incriminate the passenger.”Overruling the 19 objection, the district court stated that the prosecutor was entitled to argue the 20 evidence, including Defendant’s statemen ts, “contradictory as they are.”The 2112 prosecutor proceeded to argue that Defendant was hiding behind a code of silence that 1 gang members have in order to keep evidence from the jury. 2 {21} We begin by acknowledging that Defendant’s cross-examination testimony 3 pleading the “Fifth” was unclear about wh ether he intended to invoke his Fifth 4 Amendment privilege against self-incrimination or instead meant only to convey that 5 he was refusing to answer the prosecutor’ s question concerning the identity of his 6 passenger. But even assumi ng that Defendant did intend to invoke his Fifth 7 Amendment privilege against self-incrimination, as the State argued below and in its 8 brief on appeal, Defendant waived the privilege and opened himself to cross9 examination on matters reasonably related tohis direct testimony by taking the stand 10 and testifying in his own defense, incl uding his reasons for not identifying his 11 passenger. See State v. Allen , 1978-NMCA-054, ¶ 16, 91 N.M. 759, 581 P.2d 22 12 (stating that “[e]xcept as limited by our evidence rules, a defendant waives his 13 privilege against self-incrimination when he testifies on his own behalf . . . [; and the 14 d]efendant cannot claim the privilege agai nst self-incrimination on matters reasonably 15 related to the subject matter of his direct examination, and th is includes impeachment 16 by proof of prior convictions and the like”). 17 {22} Additionally, it is well-established that “[d]uring closing argument, both the 18 prosecution and defense are permitted widelatitude, and the trial court has wide 1913 discretion in dealing with and controlling closing argument.” State v. Smith , 2001- 1 NMSC-004, ¶ 38, 130 N.M. 117, 19 P.3d 254 (i nternal quotation marks and citation 2 omitted). This rule is limited by the requireme nt that prosecutors’ “remarks . . . must 3 be based upon the evidence or be in response to the defendant’s argument.” Id. 4 {23} Defendant testified during direct examin ation that he would not identify his 5 passenger. On cross-examination, Defendant continued to refuse to identify his 6 passenger, pleading the “Fifth” in one inst ance, citing fear of getting in “trouble or 7 hurt” in another, and in order to protect his mother and family in yet another instance. 8 Under these facts, the prosecutor’s refere nce to Defendant pleading the “Fifth” in 9 closing argument was not improper. The re ference was based on Defendant’s cross10 examination testimony, admitted with no objection, concerning Defendant’s reasons 11 for not identifying his passenger, and neither went to the foundation of the case nor 12 deprived Defendant of a fair trial. 13 {24} Accordingly, we reject Defendant’s claim of fundamental error under this point. 14 IV. The Instruction on ConstructivePossession Did Not Give Rise to 15 Fundamental Error 16 {25} Defendant’s final claim is that giving the jury an instruction on constructive 17 possession as set forth in UJI 14-130 NMRA amounted to fundamental error. 18 Defendant did not object to the giving of this instruction to the jury. However, 19 Defendant now argues that “[ t]here was no evidence of anagreement for [Defendant] 2014 to possess or exercise control over the gun us ed by the passenger” to shoot at Victim. 1 Without any such evidence, Defendant contends, “instructing the jury on constructive 2 possession of a firearm[, pursuant to UJI 14-130] permitted it to find [Defendant] was 3 guilty of being a felon in possession simp ly for conspiring with” passenger to shoot 4 at Victim. We disagree. 5 {26} “The standard of review we apply to jury instruc tions depends on whether the 6 issue has been preserved. If the error has been preserved we review the instructions 7 for reversible error. If not, we review for fundamental error.” State v. Benally , 2001- 8 NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (citations omitted). “The doctrine of 9 fundamental error applies only under excepti onal circumstances and only to prevent 10 a miscarriage of justice.” Barber , 2004-NMSC-019, ¶ 8. “An error is fundamental 11 when it goes to the foundation or basis of a defe ndant’s rights.” State v. Anderson , 12 2016-NMCA-007, ¶ 8, 364 P.3d 306 (internal quotation marks and citation omitted). 13 This Court “will not uphold a conviction if an error implicated a fundamental 14 unfairness within the system that woul d undermine judicial integrity if left 15 unchecked.” Id. (internal quotation marks and citation omitted omitted). 16 {27} “For fundamental error to exist, the instruction given must differ materially 17 from the uniform jury instruction, omit essential elements, or be so confusing and 18 incomprehensible that a court cannot be certain that the juryfound the essential 1915 elements under the facts of the case.” State v. Caldwell , 2008-NMCA-049, ¶ 24, 143 1 N.M. 792, 182 P.3d 775 (internal quotation marks and citations omitted). Whether a 2 particular jury instruction was properly gi ven “is a mixed question of law and fact” 3 that the appellate courts review de novo. State v. Lucero , 2010-NMSC-011, ¶ 11, 147 4 N.M. 747, 228 P.3d 1167 (internal quotation marks and citation omitted). 5 {28} Under the facts we have already described, the jury’s receipt of UJI 14-130 6 possession did not give rise to fundamental error. The instruction merely informed 7 the jury on the elements of constructive po ssession of the firearm in the vehicle. The 8 fact that the firearm may not have beenon Defendant’s person or Defendant actually 9 did not fire shots at Victim does not negate possession as a matter of law. See State 10 v. Jimenez , 2017-NMCA-039, ¶ 48, 392 P.3d 668 ( holding that “the [s]tate may 11 proceed on a theory of constructive possession, whereby it must prove that, even if the 12 firearm is not in [d]efendant’s physical presence, he knows what it is and where it is 13 and he exercises control over it” (alterations, omission, in ternal quotation marks, and 14 citation omitted)). 15 CONCLUSION 16 {29} We affirm in part and reverse in part. We therefore re mand to the district court 17 to vacate of one of Defendant’s conspir acy convictions in accordance with this 18 opinion. 1916 {30} IT IS SO ORDERED. 1

_______________________________ 2 MICHAEL E. VIGIL, Judge 3 WE CONCUR: 4

____________________________ 5 M. MONICA ZAMORA, Judge 6

___________________________ 7 STEPHEN G. FRENCH, Judge 8