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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: November 13, 2023

No. S-1-SC-39372

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

LUIS JIMENEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY

James M. Hudson, District Judge

Bennett J. Baur, Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General

Emily C. Tyson-Jorgenson, Assistant Attorney General

John Kloss, Assistant Attorney General

Santa Fe, NM

for Appellee

DECISION

BACON, Chief Justice.

{1} A jury convicted Defendant Luis Jimenez of first-degree felony murder for his 

participation in a home burglary that resulted in the death of Saul Sanchez (Victim). On 

direct appeal, Defendant argues that his conviction should be overturned because it 

was not supported by sufficient evidence. He further argues that the district court 

improperly admitted photographs and failed to instruct the jury that an accomplice’s 
testimony should be viewed with skepticism. We conclude that Defendant’s conviction is 

supported by substantial evidence, the admission of the photographs was harmless, 

and there was no instructional error. Exercising our discretion under Rule 12-405(B) 

NMRA to dispose of this appeal by nonprecedential decision, we affirm.

I. BACKGROUND

{2} Defendant concedes that he and another man, Joseph Barnhill, broke into a 

house to steal jewelry and other valuables. No one was home when they first entered, 

but as they were ransacking the house, a car pulled into the driveway. Defendant 

maintains that he ran away when he heard the car, while Barnhill stayed behind. 

According to Defendant, it was Barnhill, not Defendant, who shot Victim when Victim 

entered the house.

{3} The evidence against Defendant included eyewitness testimony describing the 

clothing and build of the masked man or men whom Victim’s wife and daughters saw 

running from the scene; forensic evidence linking Defendant to the deadly bullet and 

other items found on the scene; surveillance footage of the getaway car that was linked 

to Defendant; Defendant’s own admissions to participating in the burglary; and the 

testimony of the accomplice, Barnhill, that directly implicated Defendant as the man who 

pulled the trigger.

{4} The jury was given two separate instructions on first-degree felony murder. 

Under the first instruction, the jury could convict if it found Defendant guilty as the 

principal—that is, if it found that Defendant killed Victim. Under the second instruction, 

the jury could convict if it found Defendant guilty as an accomplice—that is, if it found 

that another person killed Victim while Defendant “helped, encouraged, or caused the 

killing to be committed.” The jury was given a general verdict form that did not specify 

whether the jury was convicting Defendant as the principal or an accomplice. The jury 

convicted Defendant of first-degree felony murder and aggravated burglary. The district 

court sentenced Defendant to life imprisonment.

II. DISCUSSION

{5} Defendant raises three issues on appeal: (1) sufficiency of the evidence for 

felony murder; (2) evidentiary error; and (3) instructional error. Defendant raises two 

separate sufficiency challenges. First, he argues that the State did not prove that he 

acted as the principal because that theory was only proven through the inherently 

unreliable testimony of his accomplice. Second, he argues that the State did not prove 

that he acted as an accomplice because he did not have the requisite mens rea—

Defendant asserts that there was no evidence of his intent to kill or that he “helped, 

encouraged, or caused the killing.” The asserted evidentiary error is the admission of 

photographs of certain frames of surveillance video purporting to show Defendant in a 

jewelry store after the murder. The asserted instructional error is the district court’s 

failure to provide the jury with a cautionary instruction on accomplice testimony. For the 

following reasons, we reject Defendant’s arguments.
A. Standard of Review

{6} Our standard of review for sufficiency of the evidence is highly deferential to the 

jury’s verdict.

We review whether substantial evidence of either a direct or circumstantial 

nature exists to support a verdict of guilt beyond a reasonable doubt with 

respect to every element essential to a conviction. Evidence is viewed in 

the light most favorable to the guilty verdict, indulging all reasonable 

inferences and resolving all conflicts in the evidence in favor of the verdict. 

In particular, New Mexico appellate courts will not invade the jury’s 

province as fact-finder by second guessing the jury’s decision concerning 

the credibility of witnesses, reweighing the evidence, or substituting its 

judgment for that of the jury. So long as a rational jury could have found 

beyond a reasonable doubt the essential facts required for a conviction, 

we will not upset a jury’s conclusions.

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

(citations omitted).1

{7} We review evidentiary rulings for abuse of discretion. State v. Jesenya O., 2022-

NMSC-014, ¶ 10, 514 P.3d 445. “An abuse of discretion occurs when the evidentiary 

ruling is clearly against the logic and effect of the facts and circumstances of the case. 

We cannot say the district court abused its discretion by its ruling unless we can 

characterize it as clearly untenable or not justified by reason.” Id. (text only) (citation 

omitted). “Improperly admitted evidence is not grounds for a new trial unless the error is 

determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110. 

Unpreserved claims of instructional error are reviewed for fundamental error. State v. 

Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258.

{8} Under these standards, we address each of Defendant’s arguments in turn.

B. Substantial Evidence Supports Defendant’s Conviction for Felony Murder

{9} Defendant was convicted of felony murder through a general verdict where the 

jury could have determined his liability as either principal or accomplice. Because either 

theory would support the conviction, the conviction will withstand a sufficiency challenge 

unless neither theory was supported by substantial evidence. See State v. Salazar, 

1997-NMSC-044, ¶ 43, 123 N.M. 778, 945 P.2d 996 (“[D]ue process does not require a 

general verdict of guilt to be set aside so long as one of the two alternative bases for 

conviction is supported by sufficient evidence.”).

{10} To support Defendant’s conviction for felony murder under a theory of principal 

liability, the State had to prove each of the following elements beyond a reasonable 

 

1The “(text only)” parenthetical indicates the omission of nonessential punctuation marks—including 

internal quotation marks, ellipses, and brackets—that are present in the text of the quoted source, leaving 

the quoted text otherwise unchanged.
doubt: (1) Defendant “committed the crime of aggravated burglary under circumstances 

or in a manner dangerous to human life,” (2) Defendant caused Victim’s death “during 

the commission of aggravated burglary,” (3) Defendant “intended to kill or knew that his 

acts created a strong probability of death or great bodily harm,” and (4) the crime 

happened in New Mexico on the date in question.

{11} Defendant argues that there was insufficient evidence under this theory because 

“the State failed to prove [that Defendant] was the shooter when such evidence was 

based entirely on the self-serving testimony of Mr. Barnhill.” Defendant asserts that 

Barnhill’s testimony is “the only evidence” that Defendant shot Victim, and “[a]ll of the 

physical, forensic, and unbiased eyewitness evidence established that [Barnhill] was the 

shooter, not [Defendant].”

{12} Barnhill testified that when Defendant came out of the house after the burglary, 

Defendant said that he “just hurt somebody, killed somebody,” then pulled out a gun 

and put it back in his pocket. The testimony of an accomplice is competent evidence, 

and we do not reweigh that evidence on appeal. See Rule 11-601 NMRA (“Every 

person is competent to be a witness unless these rules provide otherwise.”); State v. 

Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (“This court does not 

weigh the evidence and may not substitute its judgment for that of the fact finder.”). We 

do not look to contrary evidence “to determine if there was another hypothesis that 

would support innocence.” State v. Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 

P.3d 72. The credibility of Barnhill’s testimony was a question for the jury. See UJI 14-

5020 NMRA (noting that the jurors “alone are the judges of the credibility of the 

witnesses and the weight to be given to the testimony of each of them”). Thus, even if 

Defendant was correct in his assertion that no other evidence supports his conviction as 

the principal, Barnhill’s testimony provided substantial evidence that Defendant was the 

shooter.

{13} Moreover, Defendant is not correct in denying the existence of other evidence 

that he shot Victim. The State presented evidence that a spent shell casing found in 

Defendant’s house was fired from the same gun that was used to kill Victim. From this 

evidence, the jury could draw a reasoned inference that the murder weapon belonged to 

Defendant. Three other eyewitnesses described the suspect as wearing dark clothing, 

which Defendant admitted that he was wearing. From this evidence, the jury could draw 

a reasoned inference that the eyewitnesses saw Defendant in the house after the 

shooting. Viewing this evidence in the light most favorable to the verdict, as we must 

pursuant to Garcia, 2011-NMSC-003, ¶ 5, we conclude that substantial evidence 

supports the felony murder conviction under a principal liability theory.

{14} Because there was substantial evidence to support the felony murder conviction 

under the State’s theory that Defendant acted as the principal, the conviction is 

supported by sufficient evidence. Salazar, 1997-NMSC-044, ¶ 43. We need not address 

Defendant’s additional argument that there was insufficient evidence under the 

alternative theory. See Salazar, 1997-NMSC-044, ¶ 43 (A general verdict does not 

violate due process “so long as one of the two alternative bases for conviction is 

supported by sufficient evidence.”).
C. The Admission of Photographs of Surveillance Video Was Harmless Error

{15} Defendant argues that it was error to admit photographs taken from a jewelry 

store’s surveillance video that purport to show Defendant at the jewelry store after the 

murder. The photographs were admitted under a “silent witness” theory of 

authentication, wherein “the photographic evidence is a ‘silent witness’ which speaks for 

itself, and is substantive evidence of what it portrays independent of a sponsoring 

witness.” State v. Henderson, 1983-NMCA-094, ¶ 8, 100 N.M. 260, 669 P.2d 736. The 

State did not introduce the photographs through the testimony of a jewelry store 

employee with knowledge of the surveillance video recording system; instead, the 

photographs were introduced through the testimony of a police officer who 

photographed certain still frames of surveillance video from the jewelry store.

1. The admission of the photographs was error

{16} The admission of these photographs was error because they were not properly 

authenticated. Photographic evidence offered under a “silent witness” theory, such as 

the photographs in this case, must “be authenticated by the testimony of a witness with 

knowledge that the thing is what it purports to be.” State v. Imperial, 2017-NMCA-040, ¶ 

29, 392 P.3d 658 (text only) (citation omitted); see also Rule 11-901 (B)(1) NMRA. 

Thus, a witness who is familiar with the capabilities and normal use of the surveillance 

video is qualified to lay this type of foundation. See, e.g., Imperial, 2017-NMCA-040, ¶ 

31 (holding that surveillance video was authenticated by a Wal-Mart employee who 

identified the video as being from her store and testified about the store’s video 

capabilities and procedures).

{17} In this case, however, the officer did not testify that he was familiar with the 

jewelry store’s surveillance video capabilities or normal use. He simply testified that 

when he arrived at the jewelry store, he saw someone trying to download the video and 

he “[thought] there was some computer[] somewhere and the video monitor that they 

were . . . trying to download . . . from,” but he “[did not] recall if [the video] was paused 

or if it was in the loop playing” or if he saw “more than one video.” Taken as a whole, 

this testimony did not provide an adequate foundation from which the jury could 

conclude that the photographs were an accurate recording of what they purported to be. 

See State v. Heh, A-1-CA-37243, mem. op. ¶ 26 (N.M. Ct. App., Jan. 6, 2021) 

(nonprecedential) (holding that the police officer’s testimony alone could not properly 

authenticate the gas station surveillance video); see also City of Las Cruces v. 

Rodriguez, A-1-CA-32904, mem. op. ¶¶ 18-19 (N.M. Ct. App., Oct. 16, 2014) 

(nonprecedential) (holding that police officer testimony alone could not authenticate 

documents generated by a third party).

2. The error was harmless

{18} “We review improperly admitted evidence for non-constitutional harmless error.” 

State v. Serna, 2013-NMSC-033, ¶ 22, 305 P.3d 936. “[N]onconstitutional error is 

harmless when there is no reasonable probability the error affected the verdict.” 

Tollardo, 2012-NMSC-008, ¶ 36 (text only) (emphasis and citation omitted). When 
determining whether the error affected the verdict, we “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 (text only) (citation omitted). 

“Defendant bears the initial burden of demonstrating that he was prejudiced by the 

error.” State v. Astorga, 2015-NMSC-007, ¶ 43, 343 P.3d 1245.

{19} Defendant contends that this error was not harmless because it bolstered 

Barnhill’s testimony that Defendant sold the stolen jewelry after the incident and 

because it undermined his own credibility in that his confession to police did not mention 

his trip to the jewelry store. These contentions do not lead us to conclude that the 

admission of the photographs was prejudicial. The photographs merely demonstrated 

Defendant’s presence in the jewelry store after the crime, which supported an inference 

that he committed the burglary. But that inference was of marginal importance 

compared to the other evidence directly supporting the charge based on Defendant’s 

behavior before and during the crime—most crucially, Defendant’s own confession to 

committing the burglary and Barnhill’s testimony about the burglary. Ample physical 

evidence also linked Defendant to the aggravated burglary. We conclude that there is 

no reasonable probability that the photographs affected the verdict. Thus the admission 

of the photographs was harmless error.

D. There Was No Fundamental Error in the Jury Instructions

{20} Defendant maintains that the district court should have instructed the jury that the 

testimony of an accomplice must be corroborated and viewed with caution. Defendant 

acknowledges that he did not proffer such an instruction at trial, and so we review this 

unpreserved issue for fundamental error. See Benally, 2001-NMSC-033, ¶ 12.

{21} There was no fundamental error in the jury instructions given. New Mexico law in 

this area is well settled. This Court determined that no cautionary instruction on 

accomplice testimony should be given in State v. Sarracino, 1998-NMSC-022, ¶¶ 12-19, 

125 N.M. 511, 964 P.2d 72. We determined that such an instruction should not be given 

because it improperly calls on “the jury to consider the testimony of the particular 

witness as suspect and to weigh the testimony of the particular witness differently than 

the testimony of other witnesses.” Id. ¶ 17 (text only) (citation omitted). In that case, we 

held that the general instruction on witness credibility, UJI 14-5020, id. ¶ 8, adequately 

instructs the jury on how to evaluate the credibility of any witness. Sarracino, 1998-

NMSC-022, ¶ 17. And our jury instructions incorporate Sarracino’s holding. UJI 14-5015 

NMRA sets forth a cautionary instruction on accomplice testimony for which the use 

notes state, “No instruction on this subject shall be given.” See Delfino v. Griffo, 2011-

NMSC-015, ¶ 19, 150 N.M. 97, 257 P.3d 917 (“Use notes, though not part of the statute 

or jury instruction, are adopted by this Court and binding on the district courts.”) It was 

not fundamental error for the district court to fail to provide an instruction that is explicitly 

prohibited by our case law and uniform jury instructions.
III. CONCLUSION

{22} For the reasons stated, we reject Defendant’s arguments that his first-degree 

felony murder conviction was not supported by sufficient evidence and that evidentiary 

or instructional error warrants a new trial. We affirm.

{23} IT IS SO ORDERED.

C. SHANNON BACON, Chief Justice

WE CONCUR:

MICHAEL E. VIGIL, Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice