This decision was not selected for publication in the 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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. 32,911 4 ANTHONY CASILLAS, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Robert S. Orlik, District Judge 8

Liane E. Kerr, LLC 9 Liane E. Kerr 10 Albuquerque, NM 11 for Appellant 12 Gary K. King, Attorney General 13 Olga Serafimova, Assist ant Attorney General 14 Santa Fe, NM 15 for Appellee 16

DECISION 17 VIGIL, Justice. 182 {1} Defendant Anthony Casillas (“Defendant”) appeals to this Court from two 1 consecutive life imprisonment sentences, pl us a five and a half year sentence, 2 stemming from convictions fo r two counts of first degree murder and one count of 3 felon in possession of a firearm. These se ntences are in connection with the shooting 4 deaths of Gary Payne (“Payne”) and Meli ssa Ward (“Ward”). On appeal, Defendant 5 raises seven issues he argues justify a reversal of his convictions. We reject each of 6 Defendant’s arguments and affirm his convictions. 7 I. BACKGROUND 8 {2} Defendant was charged and ultimately convicted for the September 25, 2008, 9 murders of Payne and Ward. Defendant and Ward were passengers in a van driven 10 by Payne when Defendant shot both Payneand Ward in the head from behind, 11 subsequently causing the van to crash into a brick wall. Payne was discovered in the 12 driver’s seat of the van, while Ward was found on the floor of the van behind the 13 passenger’s seat. Both died from gunshot wounds to the head. On the night of the 14 accident, eyewitness Brandon Parker (“Parker”), who was acquainted with Payne, 15 observed Payne driving the van down the street. He later heard two gunshots and saw 16 two flashes inside the van, then heard a loud crash as the van collided with a brick 17 wall. When Parker and several others ran to the site of the accident, Parker’s cousin 18 “Kiree” (“Kiree”) indicated he saw someone flee from the scene of the crash. He 193 asked Parker, “Did you see that person running?” 1 {3} A first responder discovered the murder weapon in the van. It was a black, 2 High Point .380 ACP handgun. The slide wa s locked in the back position and the 3 magazine was empty, indicating that only th e two bullets used to kill Payne and Ward 4 had been in the gun. Police determined thatPayne was shot first while he drove the 5 van. Ward was sitting in the front passenger seat and was shot on th e left side of her 6 face when she turned towards Payne after hewas shot. Two bulle t casings were found 7 in the cargo area of the van. Since th e crash rendered the van’s doors inoperable, 8 evidence indicated that the shooter moved Ward’s body to the backseat and kicked out 9 the passenger window to escape. Defendant’s blood and Payne ’s blood were found 10 on the outside of the vehicle on the passenger’s side. Defendant’s fingerprints were 11 found on the magazine of the murder weapon, and a bag with some of his personal 12 effects was discovered in the van. A trail of Defendant’s blood led from the crash site 13 to apartment 6 of the nearby Clovis Apartments. Payne’s blood wa s later found in the 14 apartment, although he had purportedly never been there and was unacquainted with 15 the apartment’s primary occupant , Sabrina Martinez (“Martinez”). 16 {4} Defendant frequently stayed at Martinez’ s apartment, which she occupied with 17 Defendant’s cousin, Adrian Casillas (“Adrian”). On the night of the murders, 18 Martinez was in her apartment watching tele vision with Adrian and her son when she 194 heard two gunshots and a loud noise, followe d by people screaming. A few minutes 1 later, Defendant knoc ked on her door. When he came in side the apartment, he began 2 pacing while repeating to hims elf, “What did I just do?” and “I’m sorry.” Martinez 3 said he appeared to be in shock and wa s not acting normally. A dinner-plate sized 4 stain of wet blood covered his shirt, and he had a cut on his hand. Defendant took a 5 shower, changed into clean clothes, and after briefly watching television with the 6 others, went to bed. The ne xt day, Martinez and Adrian gave Defendant a ride to his 7 cousin Mary Helen Roman’s (“Roman”) house, and he took a bag of clothes with him. 8 Martinez immediately returned home and cl eaned her apartment, but did not find 9 Defendant’s bloody shirt. 10 {5} That day, Defendant’s girlfriend, Pri scilla Carrasco (“Carrasco”), who was 11 staying at Roman’s house, agreed to go toRoswell, New Mexico, with him after he 12 confided to her and Roman that he had b een in a fight and needed to leave town. 13 Defendant did not have a bag of clothing with him when he entered Roman’s house, 14 and did not put anything in Carrasco’s car. Once in Roswe ll, Defendant left Carrasco 15 at a friend’s home, whom Carrasco did not know, and Defendant did not return. 16 Several days after abandoning Carrasco in Roswell, Defendant turned himself in at the 17 Roswell police station. He was subsequen tly charged with two counts of first degree 18 murder in violation of NMSA 1978, Secti on 30-2-1(A)(1), one count of tampering 195 with evidence in violation of NMSA1978, Section 30-22-5 and one count of 1 possession of a firearm or destructive de vice by a felon in violation of NMSA 1978, 2 Section 30-7-16. 3 {6} Before Defendant’s first trial, he madeseveral phone calls from jail to Carrasco, 4 warning her not to say anything to the po lice and to tell his uncle Steven Casillas 5 (“Steven”) to “kick everyone” at work who said Defendant was th e killer. Defendant’s 6 family also called Carrasco a “snitch” and a “cop-calling bitch.” Additionally, 7 Martinez’s tires were slashed after arguing with Defendant’s cous in about testifying. 8 During the first trial, Steven was beatenand threatened on the morning he was to 9 testify. When he collapsed on the stand due to his injuries, the judge granted a 10 mistrial. Due to local media coverage following the mistrial, the judge ordered a 11 change in venue from Curry County to Roosevelt County. 12 {7} During Defendant’s second trial, Steven tes tified again. He testified that he also 13 worked with Payne and Defe ndant, and had served time in prison for murder. The 14 State asked him if Defendant said that were he to be in carcerated, he wanted it to be 15 for murder. Steven responded in the negative. The State pressed Steven on this issue, 16 which prompted defense counsel to object and move for a mistrial on the grounds of 17 prosecutorial misconduct by the State. The trial court denied the motion and 18 admonished the State to accept the answer that Steven gave and to discontinue the line 196 of questioning. Steven did testify thatDefendant often carried a black .380 handgun 1 in the back of his pants. Martinez and Carrasco corroborated this testimony by 2 testifying that they had also seen Defendant with Adrian’s black semi-automatic gun, 3 though they never saw Defendant with a gun after the murders. Defendant had access 4 to Adrian’s gun whenever he wanted to use it. 5 {8} Also during the second trial, State w itness Detective Sandy Loomis (“Loomis”) 6 was recognized as an expert despite de fense counsel’s objections that he was 7 unqualified in blood evidence and that his te stimony would contain hearsay. Loomis’ 8 testimony largely concerned blood spatter an alysis to reconstruct the crime scene. 9 Defense counsel objected on the basis thatLoomis’ testimony was based on hearsay 10 and that he was providing a “theory” of the case that would divest the jury of its duty 11 to determine what happened. 12 {9} Finally, the State adducedat the second trial that Defendant was acquainted 13 with Payne through work. They had an acrimonious relationship, and argued over 14 money on the day of the murders. Payne refused to loan De fendant $5.00, despite 15 owing him that amount from a bet. Afte r Payne refused to give Defendant $5.00, 16 Defendant said he would just take it, to which Payne replied that Defendant would 17 take “nothing but an ass-kicking.” Another cause of discord between Defendant and 18 Payne were Payne’s comments about havi ng sex with underage Mexican prostitutes, 197 which angered Defendant. 1 II. DISCUSSION 2 {10} Defendant was charged withand convicted on two counts of first degree murder 3 in violation of NMSA 1978, Section 30-2- 1(A)(1); one count of tampering with 4 evidence in violation of NMSA 1978, Sec tion 30-22-5; and one count of possession 5 of a firearm by a felon in violation of NMSA 1978, Section 30-7-16. On appeal he 6 raises seven issues, asking the Court to cons ider whether: (1) the trial court erred in 7 recognizing Detective Loomis as an expert and allowing him to speculate on the 8 evidence; (2) the State violated Defendant’s rights to due proce ss and a fair trial by 9 making repeated referrals to uncharged criminal conduct; (3) it was error to ask the 10 trial court to take judicial notice of worldwide population numbers; (4) Defendant’s 11 rights to confrontation were violated by admitting evidence of an absent witness’s 12 statements and hearsay testimony; (5) cons ecutive life sentences violate the separation 13 of powers by divesting the Parole Board of its obligations; (6) cumulative errors were 14 compounded by the prosecution’s unprofessional conduct and burden-shifting; and 15 (7) the evidence was insufficient to support a conviction of first-degree murder and 16 tampering with evidence. We addre ss each of Defendant’s issues below. 17 A. THE TRIAL COURT DID NOT ERR IN RECOGNIZING DETECTIVE 18 LOOMIS AS AN EXPERT. 198 {11} Defendant argues that the trial court erred in recognizing Loomis as an expert, 1 and further contends that Loomis was allowed to speculate on the evidence by 2 providing a theory of the case. He asserts that Loomis was not qualified in the area 3 of reconstruction and that the testimony given was not intended to assist the trier of 4 fact. Finally, Defendant argues that allowing L oomis to testify as to his theory of the 5 case violated the Due Process Clause because it allowed the jury to find him guilty by 6 simply substituting his conduct with Loomis ’ testimony in order to reach conclusions 7 about his mental state. 8 {12} We review the qualification of an expert and admission of expert testimony for 9 an abuse of discretion. State v. Alberico , 116 N.M. 156, 169, 861 P.2d 192, 205 10 (1993). Rule 11-702 NMRA provides that “[a] witness who is qualified as an expert 11 by knowledge, skill, experience, training, or education may testify in the form of an 12 opinion or otherwise if the expert’s sc ientific, technical, or other specialized 13 knowledge will help the trier of fact to understand the evid ence or to determine a fact 14 in issue.” We stated in State v. Alberico that the rule creates three prerequisites for 15 admission of expert testimony: (1) the e xpert must be qualified; (2) the expert’s 16 testimony must assist the trier of fact; and (3) the expert may only testify as to 17 scientific, technical or specialized knowledge. 116 N.M. at 162, 861 P.2d at 202. 18 {13} The trial court did not abuse its discreti on in qualifying Loomis as an expert in 199 crime scene investigation. He testified th at he had over thirty years experience as a 1 law enforcement officer, the majority of which was spent as an investigator. In that 2 time, he testified that he had extensive tr aining in criminal investigation, including 3 course work in shooting reconstruction and blood splatter analysis and interpretation. 4 Finally he testified that he was previously qualified as an expert in the Ninth Judicial 5 District. Based on this testimony, the trial court judge had sufficient information upon 6 which to soundly use its discretion to qualif y Loomis as an e xpert under Rule 11-702. 7 {14} With regard to the second and third prerequisites, Loomis testified to technical 8 and specialized knowledge rega rding the blood trail that led from the crime scene to 9 Martinez’s apartment. This information would certainly assist the trier of fact in 10 determining the connection between the apartment and the crime. Therefore, he met 11 the requirements under the rule, and the trial court judge appropriately admitted his 12 testimony as an expert. 13 {15} Defendant’s due process argument is not well taken, as we do not agree that 14 Loomis’ testimony improperly relieved th e State from proving beyond a reasonable 15 doubt that he committed the crimes charged. Loomis testified, in pertinent part, that 16 based on the evidence he both collected and reviewed: the van crashed; a third 17 person, who was in the van, exited it through the passenger window; based on a trail 18 of blood found, the third person traveled from the van to Martinez’s apartment; and 1910 that a sample of Payne’s blood, as conf irmed by lab reports, was located in the 1 apartment. He also testified that a bag was found in Payne’s van containing tattoo 2 templates, including a temp late matching a tattoo on Defendant’s chest; and that 3 Defendant’s bloody clothes were not found. This tes timony was properly admitted, 4 and it still left the jury to determine both its probative value and credibility. At no 5 time did Loomis state that he believed Defendant to be guilty of the crimes, nor did 6 he state generically that the evidence proved guilt. As such, we do not believe 7 Defendant’s due process rights have been violated. 8 B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN 9 ADMITTING TESTIMONY RE GARDING DEFENDANT’S 10 POSSESSION OF A GUN BEFORE THE CRIME AT ISSUE AND DID 11 NOT ABUSE ITS DISCRETION IN ADMITTING TESTIMONY 12 REGARDING THREATS MADE TO MARTINEZ AND CARRASCO. 13 {16} Defendant contends that hi s rights to due process and a fair trial were violated 14 by the State’s repeated referrals to uncha rged criminal conduct during the course of 15 the trial, specifically Defendant’s prio r possession of a gun by a felon and witness 16 intimidation. Specifically, he asserts thatthe trial court erred in admitting testimony 17 from Martinez, Carrasco and Steven thateach had seen him with a black handgun 18 prior to the killings of Payne and Ward. De fendant further contends that it was error 19 to admit the testimony of Martinez that the tir es of her vehicle were slashed so as to 20 dissuade her from testifying against him. 2111 {17} While the State’s witnesses testified to having seen Defendant with a gun, none 1 positively identified the gun used in the murd er as the gun Defendant previously had 2 in his possession. Defendant argues that introducing evidence of his prior possession 3 of a gun, without conclusively identifying it as the same gun used in the murders, 4 served only to characterize th e him as a bad person. As such, Defendant argues that 5 it was propensity evidence and the repeatedreferences to past gun possession were 6 introduced to show conformance, as was the testimony regarding the intimidation of 7 witnesses. On these grounds, Defendant contends generically that the State violated 8 his right to a fair trial by repeatedly referring to uncharged criminal conduct. The 9 crux of his argument is that all of this testimony was prejudicial propensity evidence 10 offered by the State to paint Defendant in a negative light and infer his guilt, which 11 he contends is a violation of Rule 11-404(B) NMRA. 12 {18} Under Rule 11-404(B), evidence of prior bad conduct is not admissible to show 13 that on a particular occasion, the defendant has acted in accordance with his prior bad 14 acts. The Rule does provide however, that evidence of prior bad acts is admissible to 15 prove such things as “motive, opportun ity, intent, preparation, plan, knowledge, 16 identity, absence of mistake, or lack of accident.” Rule 11-404(B)(2). “We review 17 a trial court’s decision to admit ev idence under Rule 11-404(B) for abuse of 18 discretion, which occurs when the court’s ru ling is clearly against the logic and effect 1912 of the facts and circum stances of the case.” State v. Sena , 2008-NMSC-053, ¶12, 144 1 N.M. 821, 192 P.3d 1198 (internal quotation marks and citation omitted). “If the 2 evidence is probative of something other than propensity, then we balance the 3 prejudicial effect of the eviden ce against its probative value.” State v. Lovett , 2012- 4 NMSC-036, ¶ 32, 286 P.3d 265 (internal quotation marks and citation omitted). 5 {19} The trial court did not abuse its discretion where it admitted testimony 6 regarding Defendant’s possession of a handgun prior to the murders of Payne and 7 Ward. As the State points out in its answerbrief, this testimony was not offered to 8 show that Defendant had a propensity to carry a gun, therefore he must have been 9 carrying a gun on the night Payne and Ward were murdered. Rather, it was offered 10 as circumstantial evidence to connect Defendant to the gun used in the murders and 11 found at the scene of the crime. While circumstantial evidence may be of weaker 12 evidentiary value, there was no unfair prejudice in admitting this testimony, as 13 ultimately there was fingerprint evidence that connected Defendant to the murder 14 weapon. 15 {20} With respect to the testimony from Martinez that she was discouraged from 16 testifying when her tires were slashed, th ere does not appear to be a Rule 11-404(B) 17 issue here. None of the testimonial evidence regarding the slashing of her tires 18 indicated that Defendant was personally re sponsible, so it is unclear how it would be 1913 used to show Defendant’s criminal propens ity. We are also not convinced that its 1 probative value, whatever it may have been, was outweighed by any prejudice to 2 Defendant. That there wa s evidence that Defendant made phone calls from jail to 3 Carrasco, directing her to refrain from testifying, as well to convince others to refrain, 4 was sufficient to show that he was atte mpting to prevent certain witness testimony, 5 irrespective of Martinez’s statements. 6 C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT 7 TOOK JUDICIAL NOTICE OF THE WORLDWIDE POPULATION 8 NUMBERS OFFERED BY THE STATE. 9 {21} Defendant argues it was error for the trial court to take judicial notice of 10 worldwide population numbers. The State asked the trial court to take judicial notice 11 of the world population in order for its e xpert witness to testify as to ethnic 12 populations. Defense counsel objected, and he was overruled. The trial court took 13 judicial notice of the world population and read the following to the jury: “In 14 accordance with documentation provided from Princeton University, the current 15 population of the entire world appears to be approximately 6,908,688,000.” On 16 appeal, Defendant contends that an approximation cannot be used to take judicial 17 notice, and notes that various sources lis ted different worldwide population estimates. 18 For example, the U.S. Census Bureau es timated the world population in August 2010 19 to be 6,860,686,158. The Defendant argues that prejudice is apparent since “the 2014 population numbers were used by the St ate to bolster it’s [sic] DNA expert’s 1 testimony as to the data presented to the jury.” Since the world’s population is not 2 capable of accurate determination, and any number would amount to nothing more 3 than a “guesstimate,” the Defendant argues that it must necessarily be error to take 4 judicial notice of the world’s population. 5 {22} Rule 11-201(B) NMRA allows a court to take judicial notice of an adjudicative 6 fact, which: “(1) is generally known w ithin the court’s territorial jurisdiction, 7 (2) can be accurately and readily determined from sources whose accuracy cannot 8 reasonably be questioned, or (3) notice is provided for by statute.” We find that the 9 second requirement was met in this case, and in so doing, recognize the inherent 10 impossibility in a reliable source reporting a single, static number reflecting the 11 world’s population. For this reason, De fendant’s argument that the figure noticed 12 below was an approximation subject to dispute is not well taken. The figure reported 13 here is as accurate as possible under the circumstances and comes from one of the 14 nation’s most reputable universities, thus the trial court appropriately used its 15 discretion in noticing it. 16 {23} Further, there is no showing of prejudi ce to Defendant from the trial court’s 17 notice of the Princeton figure. Significan tly, the jury was not bound by the worldwide 18 population judicially noticed in this case. While in civil cases any judicially noticed 1915 fact must be accepted as true, in a criminal trial the jury “may, but is not required to, 1 accept as conclusive any fact judiciallynoticed.” Rule 11-201(F), NMRA. Because 2 the jury was not required to accept the judici ally noticed fact, and because there is no 3 indication of a reasonable probability that the world’s purported population 4 contributed to Defendant’s conviction, the admission of the world’s population was 5 not prejudicial. 6 D. DEFENDANT’S RIGHTS TO CONFRONTATION WERE NOT 7 VIOLATED BY THE TRIAL COURT’S ADMISSION OF EVIDENCE 8 OF ADRIAN’S STATEMENT AND HEARSAY TESTIMONY THAT 9 KIREE SAW SOMEONE LEAVE THE SCENE OF THE CRIME. 10 {24} Defendant next contends that his rights to confrontation were violated in two 11 ways: (1) allowing hearsay testimony that Kiree saw someone l eave the crash site, 12 and (2) the acknowledgment of Adrian’s interviews with police officers. The State 13 did not call Kiree as a witness, and Adrian could not be located to testify. Parker’s 14 testimony regarding Kiree’s exclamation was allowed into the record as an excited 15 utterance and a present sense impression. After a police officer testified to having 16 interviewed Adrian following the murders, defense counsel moved for a mistrial and 17 prosecutorial misconduct, both of which were denied. Howe ver, the trial court did not 18 allow further inquiry into the content of the interviews, and in structed the jury to 19 disregard the question regarding the interviews. 2016 {25} The Sixth Amendment’s Confrontati on Clause states, “In all criminal 1 prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses 2 against him . . . .” U.S. CONST. amend. VI . A crucial element of the Confrontation 3 Clause is that admissions of ex-parte examinations as evidence against the accused are 4 barred. Crawford v. Washington , 541 U.S. 36, 68 (2004). The Sixth Amendment 5 prohibits testimonial statements made out side of court where a defendant has not 6 previously had the opportunity to cross-examine the accuser. Id . at 50-51. While the 7 Supreme Court of the United States has ne ver conclusively defi ned “testimonial,” at 8 a minimum it includes “police interrogations ” and “statements that were made under 9 circumstances which would lead an objectiv e witness reasonably to believe that the 10 statement would be available for use at a later trial.” Id . at 52, 68. Because an accuser 11 who makes a formal statement to government officers bears “testimony” in a way that 12 a person making a casual remark to another person does not, both this Court and the 13 United States Supreme Court limit the Conf rontation Clause’s reach to testimonial 14 statements. Id. at 68. 15 {26} With respect to the officer’s testimony th at he interviewed Adrian, there is no 16 Confrontation Clause issue because Defendant does not ch allenge any statement made 17 by Adrian. He simply challenges the officer’s testimony that he interviewed Adrian. 18 The testimony Defendant challenges did not constitute the statement of an absent 1917 witness who could not be con fronted during trial. As su ch, Defendant’s confrontation 1 rights were not violated because there wa s no admitted testimony of a witness he had 2 no opportunity to confront. 3 {27} Kiree’s statement to Parker was not te stimonial in nature because it was an 4 informal statement made to Parker that c ould not have reasonabl y been believed to be 5 available for use at a later trial. Therefore, the Confrontation Clause is not implicated. 6 As such, the admissibility of Kiree’s st atement is examined under the rules of 7 evidence. State v. Aragon , 2010-NMSC-008, ¶ 6, 147 N.M. 474, 225 P.3d 1280, 8 overruled on other grounds by State v. Tollardo (2010) (citing Davis v. Washington , 9 547 U.S. 813 (2006)). We review the admissi on of evidence for abuse of discretion 10 and note that trial courts have “broad latitude in exercising their discretion under this 11 rule.” State v. Chavez , 2008-NMCA-125, ¶ 9, 144 N.M. 849, 192 P.3d 1226 (citing 12 State v. Salgado , 1999-NMSC-008, ¶¶ 5- 6, 126 N.M . 691, 974 P.2d 661). An abuse 13 of discretion occurs “when the ruling is clearlyagainst the logic and effect of the facts 14 and circumstances of the case,” and “[w]e cannot say the [distric t] court abused its 15 discretion by its ruling unless we can char acterize it as clearly untenable or not 16 justified by reason.” State v. Telles , 2011-NMCA-083, 150 N.M. 465, 261 P.3d 1097 17 (citing State v. Rojo , 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (1998) 18 (internal quotation marks and citation omitted)). 1918 {28} Hearsay is an out-of-court statement (an oral or written assertion) by a person 1 offered into evidence to prove the truth of the matter asserted in the statement. See 2 Rule 11-801(A)(1)-(C) NMRA. Rule 11-803 NM RA provides that the following are 3 not excluded by the rule against hearsay, regardless of whether the declarant is 4 available as a witness: “(1) Present Sense Impression. A statement describing or 5 explaining an event or condition, made wh ile or immediately after the declarant 6 perceived it; (2) Excited Utterance. A st atement relating to a startling event or 7 condition, made while the declarant was under the stress or excitement that it caused.” 8 We conclude that the trial court judge did not abuse his discretion in admitting Kiree’s 9 statement into evidence becau se the statement was equallyadmissible as either a 10 present sense impression or an excited utterance. 11 {29} The elements of present sense impre ssions and excited utterances overlap 12 considerably, with the most significant difference being the time lapse allowable 13 between the event and the statement. Fe d. R. Evid. 803(1)-(2) advisory committee’s 14 notes. Excited utterance and present sense impression differ in th at “excited utterance 15 requires a reasonable inference that emoti onal stress has contributed to the making of 16 the statement, while present sense impre ssion requires instead that the statement be 17 substantially contemporaneous with the event it is describing or explaining.” State v. 18 Flores, 2010-NMSC-002, ¶ 52, 147 N.M. 542, 226 P.3d 641 (2010). 1919 {30} The underlying theory in allowing a present sense impression exception to 1 hearsay is that “substantial contemporane ity of event and statement negate the 2 likelihood of deliberate or cons cious misrepresentation.” Id . In order for a statement 3 to be admissible under the present sense impression exception to the hearsay rule, the 4 statement must be one that: “describes or explains the event or condition, and it must 5 be made very close in time to the event that the statemen t describes. The judge must 6 decide if the time element affects the st atement’s reliability and if there is any 7 apparent motive to lie.” State v. Chavez , 2008-NMSC-125, ¶ 9, 144 N.M. 849, 192 8 P.3d 1226 (citing State v. Perry , 95 N.M. 179, 180-81, 619 P. 2d 855, 856-57 (Ct. App. 9 1980)). It is immaterial under the presen t sense impression exception to the hearsay 10 rule that the declarant is unavailable to testify. Id

. 11 {31} By comparison, the underlying theory to the excited utterance exception to the 12 hearsay rule is that “the exciting event induced the declarant’s surprise, shock, or 13 nervous excitement which temporarily stills capacity for conscious fabrication and 14 makes it unlikely that the speaker woul d relate other than the truth.” Telles , 2011- 15 NMCA-083, ¶ 9 (citing State v. Macias , 2009-NMSC-028, ¶ 30, 146 N.M. 378, 210 16 P.3d 804 (internal quotation marks and citati on omitted)). This Court has noted that 17 the meaning of “excited” is not restricted by “any narrow require ment of a frenzied 18 or hyperactive state.” Flores , 2010-NMSC-002, ¶ 48. The totality of the circumstances 1920 is evaluated, including how much time el apsed between the startling event and the 1 statement, and whether, during that time, “the declarant had an opportunity for 2 reflection and fabrication; how much pain, confusion, nervousness, or emotional strife 3 the declarant was experiencing at the time of the statemen t; whether the statement was 4 self-serving; and whether the statement wa s made in response to an inquiry.” Telles , 5 2011-NMCA-083, ¶ 9. Additionally, “the excited utterance doctrine [is] not so much 6 limited in time as it [is limited] to the emotional state of the declarant when making 7 the out-of-court declaration.” State v. Mares , 112 N.M. 193, 201, 812 P.2d 1341, 8 1349 (Ct. App. 1991). The time sequence “continues as long as the declarant is under 9 the stress and strain of the excitement caused by the event,” and “admissibility 10 depends more on circumstances than on time.” State v. Maestas , 92 N.M. 135, 140, 11 584 P.2d 182, 187 (Ct. App. 1978). 12 {32} Based on the circumstances inthis case, we conclude that the trial court judge 13 exercised his discretion reasonably in allo wing Kiree’s statement into evidence under 14 either a present sense impre ssion or excited utterance excep tion to hearsay. The facts 15 of the case demonstrate that gunshots rang out before the van crashed into the brick 16 wall and that Parker and Kiree were among the first on the scene. They witnessed 17 Payne in the process of exsanguination, and saw a female’s dead body in the backseat 18 of the van, all while people were screaming. Kiree’s que stion posited to Parker (“Did 1921 you see that person running?”) satisfies the present sense impression exception to 1 hearsay because it necessarily implies that the man had fled just moments before. 2 Kiree had no discernible self-interest whenhe asked the question, and his question 3 clearly described what he had just witnessed. 4 {33} Kiree’s statement is likewise admissibl e under an excited utterance exception 5 to hearsay. The unexpected gunshots and cr ash, coupled with the gory discovery of 6 two bloody victims accompanied by screami ng onlookers, created an atmosphere of 7 panic and stress. The chaos following th e crash was ongoing when Kiree asked Parker 8 if he had seen a man running away, and it is unlikely that Kiree would have the ability 9 to fabricate a lie under the circumstances. Thus, Kiree’s question was admissible as 10 either a present sense impression or excited utterance. 11 E. THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE LIFE 12 SENTENCES DID NOT VIOLATE SEPARATION OF POWERS BY 13 DIVESTING THE PAROLE BOARD OF ITS OBLIGATIONS

. 14 {34} Defendant argues that the trial court’ s imposition of consecutive life sentences 15 violated the separation of powers doctrine b ecause the Parole Board is the appropriate 16 power to determine whether Defendant earne d the right to parole after the first 17 sentence ran. After Defendant was found gu ilty on all four counts, the State argued 18 that the trial court should, in its discre tion, run the two life sentences consecutively 19 rather than concurrently. At the time of his sentencing, Defendant was a 24-year-old 2022 male who had multiple run-ins with the law and a history of victimizing people, 1 including aggravated battery on a police offi cer while he was in jail. While the 2 Defense rejected the State’ s characterization of Defendant as remorseless, it also 3 argued that the goal of rehabilitation would not be served with consecutive life 4 sentences, since the impossibility of parolefor good behavior takes away prisoners’ 5 incentive to better themselves. Nonethele ss, the trial court ordered consecutive life 6 sentences, and denied the Defendant’s request for bond upon appeal. 7 {35} We review a trial court’s sentenci ng for an abuse of discretion. State v. Bonilla , 8 2000-NMSC-037, ¶ 6, 130 N.M. 1, 15 P.3d 491. “The trial court has discretion to 9 require [consecutive sentences],” unless otherwise proscribed by statute. State v. 10 Jensen , 1998-NMCA-034, ¶ 21, 124 N.M. 726 (internal quotation marks and citation 11 omitted). 12 {36} There is no statute which expressly prohibits the imposition of consecutive 13 sentences for the crimes Defendant was f ound to have committed. Therefore it was 14 well within the trial court’s discreti on to impose consecutive sentences on the 15 Defendant. We see no facts in the recordthat would indicate that doing so was 16 unreasonable. With respect to Defendant’s argument that the Parole Board has been 17 divested of its duty, we disagree. The Parole Board has not been removed from the 18 process, Defendant’s paroledate, upon which the Parole Board will presumably serve 1923 its function, has simply been set at a later time. 1 F. THERE WERE NO CUMULATIVE ERRORS THAT WERE SO 2 PREJUDICIAL TO DEFENDANT THAT HE WAS DEPRIVED OF A 3 FAIR TRIAL. 4 {37} Defendant contends he was prejudiced by commutative errors that deprived him 5 of a fair trial. He asserts the errors that occurred were: (1) the State repeatedly 6 attempted to shift the burden of proof to Defendant by improperly asking witnesses 7 whether Defendant had ever asked for additi onal lab testing on evidence; (2) the State 8 acted unprofessionally in front of the jury by referring to defense counsel as a 9 “criminal defense attorney,” so as to impl y that defense counselwas a criminal; (3) 10 the State improperly remarked “this is ge tting ridiculous” when objecting to defense 11 counsel’s questioning of an e xpert witness; and (4) the State improperly asked Steven 12 if Defendant ever told him that if he went to prison, he wanted it to be for murder. 13 Recognizing that, individually, none of these instances provides grounds for reversal, 14 Defendant asserts that in total they amount to prejudicial error that deprived him of 15 a fair trial. 16 {38} With respect to the first matter, Defendant contends there was error where the 17 State improperly shifted the burden of proof by asking witnesse s whether Defendant 18 ever requested additional lab testing on certain evidence. During cross-examinations, 19 defense counsel asked the St ate’s expert witnesses whether additional testing was 2024 done on hair samples and whether cadaver studies for .380 automatic weapons were 1 conducted. When the State asked the witn esses on re-direct whether Defendant had 2 requested such additional te sting, defense counsel object ed, stating Defendant had no 3 obligation to prove the State’s case. 4 {39} In addition to evidentiary burden shif ting, Defendant alleges the State acted 5 unprofessionally in front of the jury. Th e State repeatedly referred to defendant’s 6 counsel as a “criminal defense lawyer,” impl ying to the jury that he was a criminal. 7 The trial court advised both counsel to act professionally and move on. 8 {40} During the State’s questioning of Steven, Steven said Defendant had never told 9 him what he would want to go to prison for, contradicting his testimony in his 10 deposition. When Steven said he did not recall whether Defendant ever said he 11 wanted to go to prison for murder, defense counsel moved for a mistrial based on 12 prosecutorial misconduct because the witne ss’s answer was in the negative but the 13 State continued asking leading questions. The trial court admonished the State that 14 the record would reflect the witness’s answ er in the negative. Believing the damage 15 was already done, defense couns el requested and received a curative jury instruction 16 to disregard the last question asked. Whenthe jury returned, the State asked Steven 17 if Defendant was “proud” thathis uncle went to prison for murder, and an objection 18 was sustained. 1925 {41} Finally, during the Defense’s cross-examin ation of the State’s expert witness 1 on fingerprint analysis, defense counsel in timated that the witness’s report was only 2 as accurate as the reports gi ven to her, and he asked, “You don’t think that people are 3 killed twice, do you?” The State objected, “This is getting ridiculous!” While the 4 State admits that this outburst was inappr opriate, the State argues it was an isolated 5 incident. 6 {42} We find grounds for reversal “when the cumulative impact of errors [that] 7 occurred at trial was so prejudicial that th e defendant was deprived of a fair trial.” 8 State v. Ashley , 1997-NMSC-049, ¶ 21, 124 N.M. 1, 946 P.2d 205 (internal quotation 9 marks and citation omitted). “We must consider whether, taken as a whole, the 10 prosecutor’s misconduct deprived de fendant of a fair trial.” Id. Based on the record 11 before us, we do not agree that Defendant was deprived of a fair trial. The trial court 12 is tasked with managing its court room, and where these instances occurred, the record 13 reflects that it properly admonished the State and directed it to act professionally or 14 otherwise properly instructed th e jury to disregard the allegedly prejudicial statements. 15 Defendant is correct that individually noneof these instances amount to prejudicial 16 error, but he fails to show how they cumulatively amounted to an unfair trial. The 17 record reflects that the trial proceeded according to th e rules and the law, Defendant 18 had an opportunity to test the State’s case, and he had a fair opportunity to put on his 1926 own defense. In our view, there was no commutative error. Defendant had a fair trial. 1 G. THE EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT TO 2 SUPPORT DEFENDANT’S CONVICTIONS

. 3 {43} Lastly, Defendant argues that the eviden ce at trial was insufficient to find him 4 guilty of first degree murder and tampering w ith evidence. He asserts the State failed 5 to establish any deliberation or premeditati on with respect to the first degree murder 6 conviction, and that the State failed to prove that Defendant tampered with evidence, 7 where only one witness testified that sh e thought he had bloody clothing in a bag 8 when he left Martinez’s apartment. For th ese reasons, he asks that we reverse his 9 convictions on both counts. We decline to do so. 10 {44} When asked to review the sufficiency of the evidence: 11 [W]e view the evidence inthe light most favorable to the guilty verdict, 12 indulging all reasonable inferences and resolving all conflicts in the 13 evidence in favor of the verdict. The relevant que stion is whether, after 14 viewing the evidence in the light mo st favorable to the prosecution, any 15 rational trier of fact could have found the essential elements of the crime 16 beyond a reasonable doubt. 17 State v. Gallegos , 2009-NMSC-017, ¶ 30, 146 N.M . 88, 206 P.3d 993 (internal 18 quotation marks and citation omitted). Further, “[b]ecause [we] do[] not enjoy the 19 same exposure to the evidence and witnesses as the jury at trial, our review for 20 sufficiency of the evidence is deferential to the jury’s findings.” State v. Garcia , 21 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057. “[We] w ill not invade the jury’s 2227 province as fact-finder by second-guess[ing] the jury’s decision concerning the 1 credibility of witnesses, reweigh[ing] the evidence, or substitut[ing] [our] judgment 2 for that of the jury.” Id. (internal quotation marks and citation omitted). Finally, “we 3 review whether substantial evidence of either a direct or circumstantial nature exists 4 to support a verdict of guilt beyond a reasonable doubt with respect to every element 5 essential to a conviction.” Id. (internal quotation marks and citation omitted). 6 {45} The record reflects that there was direct or circumstantial evidence to support 7 the jury’s finding that Defendant was guilty of first degree murder and tampering with 8 evidence. With respect to the former, there was direct evidence that Defendant was 9 in Payne’s van at the time of the murders, that a gun with his fingerprints on it was 10 used to kill Payne and Ward, and that he exited the van and traveled to Martinez’s 11 apartment. Direct eviden ce also showed that Gary Payne’s blood was found in that 12 apartment, despite Martinez testifying that she did not know him, and that he had 13 never been in her apartment. Both circ umstantial and direct evidence support the 14 jury’s finding of premeditation or deliber ation, where Payne and Defendant had a 15 contentious relationship, De fendant went into Payne’s van with a loaded handgun and 16 both Payne and Ward were shot from behind with that handgun. Based on this 17 evidence we uphold the jury’s findings and affirm Defendant’s first degree murder 18 conviction. 1928 {46} With respect to the tampering with evidence conviction, direct evidence 1 supports the jury’s logical inference that Defendant disposed of, or otherwise 2 tampered with, the bloody clothes Martinez te stified Defendant wore to her apartment 3 on the night of the murder. Martinez testifie d that the next day, Defendant left her 4 apartment with a bag, which contained clothe s. Finally, she testif ied that she returned 5 to her apartment after dropping Defendant o ff, cleaned the apartment and did not find 6 any bloody clothing. Carrasc o testified that when De fendant arrived (upon being 7 dropped off by Martinez), he was not carrying anything and had no blood on his 8 clothes. From this evidence, the jury could rationally have concluded that Defendant 9 disposed of his bloody clothing. The bloody clothes were in Martinez’s apartment 10 while Defendant was there, he left the ap artment with a bag, and the bloody clothes 11 were never seen again. This evidence is sufficient for the jury to have made its 12 determination, and we will not disturb its finding. 13 III. CONCLUSION 14 {47} The record reflects that Defendant had a fair trial, where evidence was produced 15 that supports the jury’s finding of guilt. Further, there was no error or prejudice 16 sufficient to warrant reversing Defendant’s convictions. Based on our findings above, 17 we affirm all of Defendant’s convictions. 18 {48} IT IS SO ORDERED. 1929 ______________________________ 1 BARBARA J. VIGIL, Justice 2 WE CONCUR: 3

___________________________________ 4 PETRA JIMENEZ MAES, Chief Justice 5

___________________________________ 6 RICHARD C. BOSSON, Justice 7

___________________________________ 8 EDWARD L. CHÁVEZ, Justice 9

___________________________________ 10 CHARLES W. DANIELS, Justice 11