This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-g enerated errors or other deviations from the official paper version filed by the Supreme Court. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Filing Date: August 4, 2016 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4

v. NO. S-1-SC-34984 5 ALEXIAS TORRES, 6 Defendant-Appellant. 7 ORIGINAL PROCEEDING ON CERTIORARI 8 James Waylon Counts, District Judge 9

Marco & Shattuck 10 Joseph E. Shattuck 11 Albuquerque, NM 12 for Appellant 13 Hector H. Balderas, Attorney General 14 Charles J. Gutierrez, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 DECISION 182 VIGIL, Justice. 1 {1} Alexias Torres (Defendant) appeals her convictions of first-degree murder, 2 contrary to NMSA 1978, Section 30-2-1(A) (1994), conspiracy to commit first-degree 3 murder, contrary to NMSA 1978, Secti on 30-28-2(A) (1979), and tampering with 4 evidence, contrary to NMSA 1978, Secti on 30-22-5(A) (2003). Defendant challenges 5 her convictions on four grounds, arguing that: 1) there was insufficient evidence to 6 support any of the three convictions; 2) the trial court abused its discretion under Rule 7 11-403 NMRA by admitting graphic video evidence of Victim dying, as caught by a 8 police officer’s lapel camera; 3) the trial court abused its discretion under Rule 11- 9 404(B)(1) NMRA by admitting evidence that Defendant was carrying a handgun prior 10 to the murder; and 4) there was ineffective assistance of counsel. 11 {2} We reject each of Defendant’s claims of error and affirm her convictions. We 12 render this non-precedential decision becausesettled New Mexico law controls each 13 of the issues Defendant raises. See Rule 12-405(B)(1) NMRA. 14 I. BACKGROUND 15 {3} On June 6, 2011, Melissa Mathis (M athis) and Victim—who were romantic 16 partners for six years cohabiting with one another in Alamogordo—ended their 17 relationship. On June 7, 2011, after the breakup, Mathis asked Victim to move out of 183 her trailer and Victim went to stay at the nearby trailer of her Burger King coworker 1 George Rader (Rader). That evening there was an angry exchangeof text messages 2 between Victim and Mathis involving cross-accusations of infidelity, cross3 accusations of credit card thef t, an accusation that Victim was cooperating with police 4 regarding the aforementioned, and Victim’s request to recover her possessions from 5 Mathis’s trailer. Ultimately, eight police officers would be dispatched to Mathis’s 6 trailer to end a dispute between Mathis and her landlord premised on Victim’s 7 retrieval of her possessions. After the poli ce left, around 9:00 p.m., Mathis sent a text 8 message to “Annette” that “Shit went down,” and a text message to “Tania” “Hey girl 9 shit went down wit [sic] me nshorty [sic] [Victim] again.” 10 {4} In addition to these text messages, at so me point during or after these disputes, 11 Mathis called Defendant. Defendant had stayed with Mathis and Victim for a week 12 the month prior. Mathis testified that she wanted Defendant’s help in selling a 13 television, but she ultimately sold th at television on her own. Nonetheless, 14 Mathis—who had been drinking—paid her fri end “Amy” to drive her to Defendant’s 15 home in Ruidoso. Mathis wanted Defendant’s help so she could “get back on her feet” 16 after her break-up with Victim. She al so suggested Defendant find a job in 17 Alamogordo. 184 {5} Upon arriving at Defendant’s home in Ru idoso, Mathis cried about the breakup 1 and asked Defendant to talk with Victim on her behalf. Amy, Mathis, and Defendant 2 then went to the home of Defendant’s frie nd, Dave Franco, where they met Franco’s 3 nephew Jonathan Montoya. Montoya ultimately agreed to accompany the women on 4 their trip back to Alamogordo. Franc o gave Montoya a handgun, and Mathis 5 “probably” saw Defendant in possession of a gun herself. After about an hour in 6 Ruidoso, Defendant drove Amy, Montoya, and Mathis to a liquor store, and then Amy 7 drove the rest of the way to Alamogordo. In Alamogordo Amy separated from the 8 group while Defendant, Montoya, and Mathis drank a bottle of alcohol in Mathis’s 9 trailer. Amy did not testify at trial. 10 {6} Defendant then drove Mathis and Montoya, in Mathis’s car, to Rader’s trailer 11 to find Victim. Neither Victim nor Rader were home, so the trio instead visited 12 Mathis’s brother-in-law. Mathis and Defe ndant left Montoya in the car as they 13 purchased drugs from the brother-in-law, atwhich point Mathis saw Defendant place 14 either a handgun or remote control in her waistband. Defendant next drove the trio to 15 the Burger King where both Rader and Victim worked. 16 {7} Though Victim was not scheduled to work the graveyard shift between June 7 17 and 8, 2011, she had decided to accompany Rader to his shift because she was nervous 185 about being alone in his trailer. Plus, she was scheduled to work the morning of June 1 8, 2011. Also working were the manager Kiyuni Sweet (Sweet) and Rommie Rogers. 2 {8} Defendant, with Montoya in the passenger seat and Mathis in the back, pulled 3 into the Burger King parking lot around 4:00 a.m. Defendant made a U-turn in the 4 parking lot, causing the vehicle to be parked facing White Sands Boulevard, the main 5 road. At this point, having seen the vehicle arrive, Victim called out to Sweet for help 6 as it approached her. Sweet observed Victim arguing with the vehicle’s occupants, and 7 heard Defendant yell something similar to “Why did you hurt my girl, [Mathis]?” 8 Sweet heard Victim say “I love her,” and thenat that point he walked away toward the 9 back of the store to retrieve a box. After leaving, Sweet heard “a pop,” followed by 10 three more in quick succession. 11 {9} The “pops” were gunshots; Montoya had fired a handgun once into the car’s 12 dashboard, and three times into the pavementat Victim’s feet. One of those three 13 bullets caromed off the pavement and struck Victim harmlessly in the left thigh, and 14 one struck Victim in the right thigh. The bullet striking Victim’s right thigh severed 15 her femoral artery. 16 {10} After the shots were fired Defendant drove away quickly—but did not 17 necessarily “tear[] out of the parking lot”—northbound on White Sands Boulevard. 186 Defendant then headed west for a half-mile before heading north onto a by-pass. At 1 this point a police officer observed Defendantas she drove toward a rural, desolate 2 area that is not on the way to Ruidoso or Mathis’s trailer park . Defendant was then 3 stopped and each occupant arrested. De fendant was not visibly impaired. 4 {11} When police executed a search warrant on Mathis’s vehicle they found the 5 handgun hidden behind the front-center consol e. Four fired cartridges were found 6 inside the casings of the handgun, and te sting confirmed that the bullet found in 7 Victim’s leg was fired by the recovered handgun. While no fingerprints were lifted 8 from the handgun, investigators did procure DNA samples. Analysis of DNA samples 9 taken from the handgun eliminated Defendant and Mathis as contributors. Police also 10 recovered two pairs of gloves from the front passenger seat, and at trial the State 11 elicited testimony that the absence of fingerprints or DNA could be explained by the 12 wearing of such gloves. 13 {12} A police officer responding to the shooti ng at Burger King used a lapel camera 14 to capture footage of Victim bleeding and suffering on the restaurant floor. In the 15 video the officer describes Victim’s injuri es and has Victim identify those responsible 16 for the shooting, but also shows Victim without clothing as emergency personnel 17 work to inspect her injuries. The video wa s admitted into evidence and shown to the 187 jury twice, once during closing argument. 1 {13} Following the incident Defendant claime d no memory of the murder or the 2 events transpiring after she arrived in Alamogordo. Defendant also claimed to have 3 no knowledge of who Victim was. Defendant was convicted of first-degree murder 4 (willful and deliberate), conspiracy to commit first-degree murder (willful and 5 deliberate), and tampering with evidence. 6 II. DISCUSSION 7 A. There Was Sufficient Evidence to Support Defendant’s Convictions of 8 First-degree Murder, Conspiracy toCommit First-degree Murder, and 9 Tampering With Evidence 10 {14} Evidence is sufficient to sustain a convi ction when there exists substantial 11 evidence of a direct or circumstantial nature “to support a verdict of guilt beyond a 12 reasonable doubt with respect to every element essential to a conviction.” State v. 13 Flores , 2010-NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641 (internal quotation marks 14 and citation omitted). “Substantial evidence is relevant evidence that a reasonable 15 mind might accept as adequate to support a conclusion.” State v. Largo , 16 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation mark s and citation omitted). 17 A jury’s verdict “should not be based on speculation, guess or conjecture.” UJI 14- 18 6006 NMRA. “In reviewing whether there was sufficient evidence to support a 198 conviction, we resolve all disputed facts infavor of the State, indulge all reasonable 1 inferences in support of the verdict, and di sregard all evidence and inferences to the 2 contrary.” Largo , 2012-NMSC-015, ¶ 30 (internal quotation marks and citation 3 omitted). 4 i. First-degree Murder 5 {15} Defendant first argues that there was in sufficient evidence to support a verdict 6 of first-degree murder under the State’s theory of accomplice liability. In essence, 7 Defendant characterizes the State’s case at trial as relying on non-existing evidence; 8 that is, the State argued that the absen ce of Defendant’s DNA and fingerprints on the 9 handgun shows that the accomplices must have plotted to commit murder and hide 10 evidence, and thus because Defendant fledthe scene she must be guilty. Further, 11 Defendant argues, the jury wa s asked to make speculative l eaps in order to infer that 12 a plot to kill Victim had been hatched atsome point between Defendant’s departure 13 from Ruidoso and the actual shooting. We c onclude that there was sufficient evidence 14 to support Defendant’s conviction of first-degree murder. 15 {16} A defendant “may be charged with and convicted of the crime as an accessory 16 if he procures, counsels, aids or abets in its commission” by another. NMSA 1978, 17 Section 30-1-13 (1972). 189 For accomplice liability, the State must show not only [that a defendant 1 was] aiding in the commission of the killing[,] but also that the defendant 2 intended that the underlying felony be committed and ‘intended the 3 killing to occur or knew that [he or she] was helping to create a strong 4 probability of death or great bodily harm.’ 5 State v. Fry , 2006-NMSC-001, ¶ 23, 138 N.M. 700, 126 P.3d 516 (quoting UJI 14- 6 2821). Under the law, “a jurycannot convict a defendant on accessory liability for a 7 crime unless the defendant intended the principal’s acts.” State v. Carrasco , 1997- 8 NMSC-047, ¶¶ 7, 9, 124 N.M. 64, 946 P.2d 1075. Thus, the State needed to show that 9 Defendant had the underlying deliberate intent to commit first-degree murder, and 10 aided Montoya in so doing. See State v. Vigil , 2010-NMSC-003, ¶ 15, 147 N.M. 537, 11 226 P.3d 636 (discussing “the two separaterequirements [of accomplice liability], 12 intent by a defendant that another person commit the offense and an act on a 13 defendant’s part to cause the other person to commit it”). 14 {17} “Murder in the first degree is the killi ng of one human being by another without 15 lawful justification or excuse . . . by any kind of willful, deliberate and premeditated 16 killing.” Section 30-2-1(A)(1). “ ‘Deliberate intention’ ” is intention “ ‘arrived at or 17 determined upon as a result of careful thought and the weighing of the consideration 18 for and against the proposed course of action.’ ” State v. Cunningham , 19 2000-NMSC-009, ¶ 25, 128 N.M. 711, 998 P.2d 176 (quoting UJI 14-201 NMRA). 2010 “Though deliberate intent requires a calculate d judgment to kill, the weighing required 1 for deliberate intent may be arrived at in a short period of time.” State v. Guerra , 2 2012-NMSC-027, ¶ 28, 284 P.3d 1076 (internal quotation marks and citation omitted). 3 {18} Jury Instruction No. 21 read in part that 4 [the defendant . . . may be found guiltyof the crime[] of First [-]Murder 5 (Willfull and Deliberate) . . . even though she herself did not do the acts 6 constituting the crime, if . . . 1. Th e defendant intended that the crime be 7 committed; 2. The crime was committed; 3. The defendant helped, 8 encouraged[,] or caused the crime to be committed. 9 {19} Defendant does not cite any controlling caselaw to support her argument that 10 the evidence was insufficient; instead, Defendant lays out the evidence from trial and 11 asks this Court to judge whether a juror’s inference from that evidence to a finding of 12 deliberate intent relied on speculation. We ag ree with the State th at the circumstantial 13 evidence of a plot to kill Victim and th e evidence that Defendant was the get-away 14 driver and engaged in an argument with Vi ctim at the murder scene was sufficient to 15 support the jury’s finding that Defendant wa s guilty of first-degree murder pursuant 16 to a theory of accomplice liability. 17 {20} Though Defendant does not primarily challenge the “help[], encourage[], or 18 cause[]” requirement of Defendant’s convi ction as premised on accomplice liability, 19 we deem that the evidence in support of as much was sufficient. In Carrasco this 2011 Court concluded there was sufficient evidence to support a defendant’s conviction 1 under accessory liability for an attempted convenience store robbery where defendant 2 drove to a store he had worked at for five months prior, parked the car where it could 3 not be seen, waited in the car while his companions attempted the robbery, and was 4 the get-away driver. 1997-NMSC-047, ¶¶ 10-19. As well, in State v. Lucero , this 5 Court deemed evidence of accomplice liability sufficient where a defendant was “the 6 driver of the car, kept the motor running, saw what occurred and drove the get-away 7 car.” 1957-NMSC-062, ¶ 4, 63 N.M. 80, 313 P.2d 1052. 8 {21} Defendant primarily argues that the findi ng of her deliberate intent by the jury 9 was speculative because the ev idence presented at trial was sufficient only to support 10 a finding that Montoya acted unilaterally, and not that a plot to kill Victim had been 11 made amongst the other persons in the car. “Deliberate intent may be inferred from 12 the particular circumstances of killing as proved by the State through the presentation 13 of physical evidence.” State v. Duran , 2006-NMSC-035, ¶ 8, 140 N.M. 94, 140 P.3d 14 515. “Intent is subjective and is almost al ways inferred from other facts in the case, 15 as it is rarely established by direct evidence.” State v. Sosa , 2000-NMSC-036, ¶ 9, 129 16 N.M. 767, 14 P.3d 32. Substantial evidence of deliberation can include “earlier 17 confrontation[s] . . . or other common areas of friction leading to violence,” State v. 1812 Tafoya , 2012-NMSC-030, ¶ 52, 285 P.3d 604, as well as evidence of a defendant’s 1 motive to kill a victim, State v Smith, 2016-NMSC-007, ¶ 20, 367 P.3d 420 (collecting 2 cases, and finding deliberate intent in part where the defendant had a motive to kill the 3 victim, his former girlfriend). It can also include fleeing the scene, disposing of 4 evidence, or concocting false alibis. Flores , 2010-NMSC-002, ¶ 22. 5 {22} In support of the finding of deliberate intent the State points to the direct 6 evidence of a motive to kill Victim, and the circumstantial evidence of a “plot” to kill 7 Victim. From the content of her text messages, Mathis seemingly hit a boiling point 8 in her relationship ri ght before Victim and Mathis’s landlord attempted to retrieve 9 some of Victim’s possessions from Mathis’s trailer. Then, soon thereafter, she called 10 Defendant and traveled to Ruidoso where she was emotional and told Defendant about 11 the breakup. Next, Defendant and Mathis met up with M ontoya, who Mathis saw was 12 in possession of a handgun. They then returned to Alamogordo and sought out Victim. 13 After failing to find Victim at Rader’s trailer, they went to her place of work. First, 14 though, they stopped to purchase drugs and Mathis may have s een that Defendant 15 herself was also in possession of a handgun. Upon arriving at the Burger King, 16 Defendant made a U-turn in the parking lo t so the vehicle was positioned such that a 17 major road could be quickly and easily acce ssed. Defendant then argued with Victim, 1813 inquiring why Victim had hurt Mathis. And, two pairs of gloves were recovered from 1 the passenger seat. The shooting took place in June, which is relevant because as in 2 State v. Durantethe Court of Appeals determined that defendant’s use of a ski mask 3 in July supported an intent to commit aggr avated assault because there was no other 4 explanation for having the mask in July. 1986-NMCA-024, ¶ 15, 104 N.M. 639, 725 5 P.2d 839. From this evidence the jury inferred that Defendant had plotted to kill 6 Victim with deliberate intent. 7 {23} The evidence of the circumstances surrounding Defendant’s presence in the car 8 at that specific Burger King supports the jury’s inference th at Defendant had a 9 deliberate intent to kill Victim. See Carrasco , 1997-NMSC-047, ¶¶ 12-13 (concluding 10 that a reasonable jury could infer deliberate intent from a defendant’s involvement in 11 robbery as a getaway driver); see also State v. Salazar , 1997-NMSC-044, ¶¶ 4, 46, 12 123 N.M. 778, 945 P.2d 996 (concluding that ev idence of the victim and defendant’s 13 troubled relationship history supported inference of motive and deliberate intent, and 14 that pursuit of victim also supported deliberate intent); cf. State v. Begay , 1998- 15 NMSC-029, ¶ 45, 125 N.M. 541, 964 P.2d 102 (carrying a knife throughout the 16 evening supported inference of deliberate intent). The jury was free to reject 17 Defendant’s version of the facts, which suggested unilateral and unsolicited conduct 1814 on the part of Montoya, and it apparently did so. See State v. Rojo , 1999-NMSC-001, 1 ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting acquittal does not 2 provide a basis for reversal because the jury is free to reject [thed]efendant’s version 3 of the facts.”). 4 {24} Defendant’s post-murder conduct further supports the inference of deliberate 5 intent. See, e.g. , Flores , 2010-NMSC-002, ¶ 23 (providing th at “evidence of flight or 6 an attempt to deceive the police may proveconsciousness of guilt” (internal quotation 7 marks and citation omitted)). After the shooting Defendant drove quickly and 8 evasively from the scene of th e crime. There was also tes timony that the driver of the 9 car did not peel off as though she had been spooked or surprised by Montoya’s 10 conduct. As well, the murderweapon was stashed inconspicuously in the vehicle’s 11 center console. Further, De fendant was less than forthc oming during her interviews 12 with police, claiming she had no memory of the events that unfolded upon her arrival 13 in Alamogordo and that she had no knowledge of Victim’s identity. Such evidence of 14 fleeing, hiding evidence, and deceiving inves tigators is sufficient to support a jury’s 15 verdict of first-degree murder under Floressince such evidence establishes 16 consciousness of guilt and s upports an inference of deliberate intent. 2010-NMSC17 002, ¶ 23. As such, we conclude that there was sufficient evidence to support 1815 Defendant’s conviction of first-degree murder, and affirm. 1 ii. Conspiracy to commit first-degree murder 2 {25} Defendant next challenges the suffici ency of evidence in support of her 3 conviction for conspiracy to commit first- degree murder. Defendant argues that the 4 juror’s inference that Defendant, Mathis, and Montoya plotted to kill Victim relies on 5 speculation, as opposed to direct or circumstantial evidence. 6 {26} “Conspiracy consists of knowingly comb ining with another for the purpose of 7 committing a felony . . . .” Section 30-28- 2(A). The agreement can be verbal or 8 inferred from acts suggesting the conspirato r knew of and engage d in the scheme. 9 State v. Trujillo , 2002-NMSC-005, ¶ 62, 131 N.M. 709, 42 P.3d 814. 10 {27} We have already conclude d that there was sufficient evidence to support the 11 jury’s finding of deliberate intent. Much of the evidence that was sufficient to support 12 the jury’s finding of deliberate intent pertai ned to the State’s presentation that there 13 had been a plot to kill Victim, and such evid ence of a plot also inherently supports the 14 jury’s inference that there was a conspiracy. 15 {28} Again, as evidence of the conspiracy and of deliberate intent, the State in part 16 points to Mathis’s breakup with Victim , the post breakup phone call between Mathis 17 and Defendant, the car ride from Ruidoso to Alamogordo, the time spent in Mathis’s 1816 trailer, the time spent looking for Victim atRader’s trailer, M ontoya and Defendant’s 1 alleged possession of a handgun, the manner in which the car was positioned for an 2 easy get-away upon arriving at Burger King, the manner of the get-away, and the 3 recovery of gloves from inside the car. From this evidence the jury inferred that 4 Defendant and the other persons in the car at the Burger King had conspired to kill 5 Victim. We conclude that this evidence is sufficient to support Defendant’s conviction 6 of conspiracy to commit first-degree murder, and affirm. 7 iii. Tampering with evidence 8 {29} Defendant next takes issue with the sufficiency of th e evidence in support of her 9 conviction for tampering with evidence. There is no direct evidence, such as 10 Defendant’s DNA or fingerprints on the recovered weapon, to suggest that Defendant, 11 the driver of the car, hid the weapon hersel f. Thus, this conviction must be analyzed 12 under the framework of accomplice liability in accordance with Jury Instruction 21, 13 using the same standard of review we usedfor first-degree murder and conspiracy to 14 commit first-degree murder. In this instan ce, though, Defendant is arguing that there 15 was insufficient evidence that she “helped, encouraged[,] or caused” Montoya to hide 16 the handgun and tamper with evidence. 17 {30} Under New Mexico law, tampering withevidence is “destroying, changing, 1817 hiding, placing or fabricating any physical evidence with intent to prevent the 1 apprehension, prosecution or conviction of any person or to throw suspicion of the 2 commission of a crime upon another.” Secti on 30-22-5. When direct evidence of an 3 intent to disrupt an investigation is lacking, it is often inferred fro m an overt act of the 4 defendant. Duran , 2006-NMSC-035, ¶ 14. For exampl e, in a case involving death by 5 gunshot to the head, evidence th at the defendant gave a gun tohis brother shortly after 6 the killing, instructed his brother to hold it, and then lied to the police about his 7 knowledge of the gun’s whereabouts was suffi cient evidence of an overt act from 8 which the jury could infer an intent to tamper with evidence. State v. Arellano , 1977- 9 NMCA-126, ¶ 9, 91 N.M. 195, 572 P.2d 223. However, absent both direct evidence 10 of a defendant’s specific intent to tamper and evidence of an overt act from which the 11 jury may infer such intent, the evidence cannot support a tampering conviction. 12 Duran , 2006-NMSC-035, ¶ 15. 13 {31} The State argues that the jury was free to infer that the plot to kill Victim 14 included a contingency plan to hide the handgun after the shooting had taken place. 15 This, it claims, is supported by evidence th at Defendant “helped” Montoya by buying 16 him time to hide the handgun in the center console by driving away from the murder 17 scene into a deserted area. In conjunction with the evidence of a plot to kill Victim, 1818 we conclude that Defendant ’s conduct in driving from the scene and not immediately 1 surrendering to police “helped, encouraged [,] or caused” Montoya to hide the 2 gun—plus, it was hidden inconspicuously in th e center console between the driver and 3 passenger seats, so she likely saw it happening. Finally, there was testimony that 4 Mathis told Montoya to toss the handgun out the window, so a discussion concerning 5 tampering with evidence indeed occurre d as Defendant was driving. Thus, we 6 conclude that the circumstan ces of the murder and tampering establish an “overt act” 7 from which a jury could reasonably infer De fendant’s specific intent for Montoya to 8 tamper with evidence, and affirm. 9 B. Admission of Gruesome Video Evidence Was Not an Abuse of the Trial 10 Court’s Discretion Under Rule 11-403 11 {32} Defendant next argues that the admissi on of the police lapel cam video was 12 unduly prejudicial and cumulative under Ru le 11-403. The video depicts employees 13 and emergency personnel attending to Vic tim’s wounds and asking questions about 14 her attackers. The video is a graphic actual account of Victim’s bleeding and 15 suffering, and at times Victim is uncloth ed while emergency personnel attend to her 16 injuries. 17 {33} Rule 11-403 states that evidence may be excluded “if its probative value is 18 substantially outweighed by the danger of . . . unfair prejudice, confusion [of] the 1919 issues or misleading the jury, [or by consid erations of] undue delay, [waste of time or 1 needless presentation of] cu mulative evidence.” “Because a determination of unfair 2 prejudice is fact sensitive, much leeway is given trial judges who must fairly weigh 3 probative value against probable dangers.” State v. Otto , 2007-NMSC-012, ¶ 14, 141 4 N.M. 443, 157 P.3d 8 (alteration in original ) (internal quotation marks and citation 5 omitted). We review the admission of evidence for abuse of discretion. See State v. 6 Martinez , 1999-NMSC-018, ¶ 31, 127 N.M. 207, 979 P.2d 718 (“The trial court is 7 vested with great discretion in applyi ng Rule [11–403], and it will not be reversed 8 absent an abuse of that discretion.”). 9 {34} “An abuse of discretion occurs when the ruling is clearly against the logic and 10 effect of the facts and circumstances of the case.” State v. Moreland, 11 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185 P. 3d 363 (internal quotation marks and 12 citation omitted). An abuse of discretion is a ruling that is “clearly untenable or not 13 justified by reason.” Id. (internal quotation marks and citation omitted). If there are 14 reasons both for and against a court’s deci sion, there is no abuse of discretion. Id. It 15 is a defendant’s burden to establish that the trial court abused its discretion. State v. 16 Torres , 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20. 17 {35} In admitting the video evidence, the trial court determined: “it is probative of 1820 issues in the case . . . the jury need [not] necessarily be insulated from all the 1 unpleasantness that a murder entails . . . th ere is legitimate evidentiary value to the 2 Video over and above inflaming [the jury’s] passions. . . .” 3 {36} Defendant first argues that because the prejudice substantiallyoutweighed the 4 probative value of the video th e trial court was barred under State v. Martinfrom 5 exercising its discretion to admit th e video. 1984-NMSC-077, ¶ 20, 101 N.M. 595, 6 686 P.2d 937. Martin , though, is inapplicable becau se it involved expanding the scope 7 of cross-examination. Id. (“It is within the discretion of the trial court to expand the 8 scope of cross-examination. Inquiry into additional matters must, however, be 9 conducted as if on direct examination. Rule611(b) does not allow the trial court 10 discretion to admit evidence which is otherwise inadmissible because it is irrelevant, 11 or if the probative value is substantially outweighed by the danger of unfair 12 prejudice .” (emphases added) (citations omitted)). The trial court’s decision to admit 13 the video remains within the sound discretion of the trial court. 14 {37} Defendant’s next argument pertains to the cumulative effect of the video. 15 Defendant argues the video was unnecessary given eyewitness testimony as to the 16 nature of Victim’s death. “[P]hotographs are properly admitted within the discretion 17 of the trial court if they are corroborative of other rele vant evidence adduced at the 1821 trial, even though they may be cumulative.” State v. Ho’o , 1982-NMCA-158, ¶ 19, 99 1 N.M. 140, 654 P.2d 1040 (referencing State v. Upton , 1955-NMSC-087, ¶ 11, 60 2 N.M. 205, 290 P.2d 440; State v. Valenzuela , 1976-NMSC-079, ¶ 8, 90 N.M. 25, 559 3 P.2d 402. The same is true for a corroborating video. See State v. Hernandez , 1993- 4 NMSC-007, ¶ 38, 115 N.M. 6, 846 P.2d 312. Defendant also argues that replaying the 5 video during closing arguments was cumulativ e. While this appears to be duplicative, 6 the video had already been admitted into ev idence, enabling the jury to watch it again 7 at any time should they so choose. Therefore, Defendant’s argument as to the 8 cumulative impact of the video shown during the closing arguments lacks merit. 9 {38} Concluding that the video was not cumu lative, we next address whether the 10 video’s content was so prejudicial that it wa s an abuse of discretion for the trial court 11 to admit it over Defendant’s objection. Weconclude that its admission was not an 12 abuse of discretion because it was probative of an element of th e charged offense of 13 shooting at or from a motor vehicle resulti ng in great bodily harm—that element being 14 a resultant great bodily harm. And, sec ond, a review of New Mexico case law 15 considering the admission of gruesome photographs into evidence indicates a very 16 high bar for demonstrating an abuse of discretion under any Ru le 11-403 challenge. 17 See, e.g. , State v. Saiz , 2008-NMSC-048, ¶¶ 52, 54, 144 N.M. 663, 191 P.3d 521 1822 (holding that the trial court did not abuse its discretion by admitting five gruesome 1 photographs of the victim’s decomposed body, when those photographs aided the 2 pathologist’s testimony), abrogated on other grounds by State v. Belanger, 2009- 3 NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d 783; State v. Mora , 1997-NMSC-060, 4 ¶¶ 54-55, 124 N.M. 346, 950 P.2d 789 (upholding the admission of multiple autopsy 5 photos of child victim on grounds that they were illustrative), abrogated on other 6 grounds by Kersey v. Hatch , 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683; 7 State v. Perea , 2001-NMCA-002, ¶ 22, 130 N.M. 46, 16 P.3d 1105 (holding that a 8 potentially inflammatory photograph of a vic tim’s slashed face was relevant and that 9 its admission was within the discretion of the district court), aff’d in part, vacated in 10 part , 2001-NMSC-026, ¶ 6, 1 30 N.M. 732, 31 P.3d 1006; State v. Boeglin , 1987- 11 NMSC-002, ¶¶ 22-24,105 N.M. 247, 731 P.2d 943 (holding that the admission of a 12 close-up photograph depicting gruesome n eck wounds suffered by the victim was 13 proper to “illustrate, clarify, and co rroborate the testimony of witnesses”); State v. 14 Pettigrew , 1993-NMCA-095, ¶¶ 9-11, 116 N.M. 135, 860 P.2d 777 (holding that 15 photos of the battered victim were relevant to depict the ex tent of the victim’s injuries 16 and to illustrate a physician’ s testimony, and that their admission was not an abuse of 17 discretion); State v. Blakley , 1977-NMCA-088, ¶ 27, 90 N.M. 744, 568 P.2d 270 1823 (holding that admission of photograph of the victim’s body was proper because it 1 “illustrated, clarified, and corroboratedthe testimony of various witnesses”). 2 {39} Here, the trial court carefully cons idered the video under Rule 11-403 and 3 determined that it was probative of issues in the case. Further, the trial court 4 considered the video to be low on the gr uesome scale. Given the precedent in favor 5 of admitting probative, albeit gruesome medi a, we conclude that there was not an 6 abuse of the trial court’s discretion on these facts and affirm. 7 C. Article II, section 24(A)(1) of the New Mexico Constitution 8 {40} Our Constitution provides that victims of certain enumerated crimes, including 9 murder, have “the right to be treated withfairness and respect for [their] dignity and 10 privacy throughout the criminal justice pro cess[.]” N.M. Const. art. II, § 24(A)(1). See 11 also NMSA 1978, § 31-26-2(B) (1994) (“victims of violent crimes are treated with 12 dignity, respect and sensitivity at all stages of the criminal justice process;”). While 13 we have already determined that admission of the video footage of Victim gravely 14 injured and in varying states of undress wa s not an abuse of discretion, it remains 15 unclear whether the district court should have redacted certain portions of the video 16 to preserve Victim’s dignity and privacy . We offer no judgment on the matter, and 17 comment on the issue solely to remind our di strict courts that they are obliged, by our 1824 Constitution and statutes, to consider a victim ’s right to privacy and to be treated with 1 dignity when deciding whether to admit, admit in part, or exclude evidence that 2 implicates those rights. 3 D. Admission of Evidence That Defendant May Have Had a Firearm Prior to 4 the Shooting Was Not an Abuse of theTrial Court’s Discretion Under Rule 5 11-404 6 {41} Defendant next takes issue with admission of evidence that Mathis may have 7 seen her with a handgun in both Ruidoso and the trailer where they bought drugs. 8 Defendant argues that admission of this uncha rged other act is inherently prejudicial, 9 and that under Rule 11-404 the jury was misled in light of its admission. Prior to trial, 10 Defendant sought to prevent introduction of certain counts that had been severed from 11 those related to the murder (Defendant was tried for burglary of Rader’s trailer in a 12 separate trial). The trial c ourt denied Defendant’s motion in limine in part, finding that 13 the State could introduce evidence of the handgun possession as it was relevant to the 14 issues in the murder case. Yet, since the trial court had severed the charge of 15 possession of a firearm by a felon, it ruled that the State could not introduce evidence 16 in the instant murder trial that Defendant was a felon. Defendant essentially argues 17 possession of the handgun is irrelevant to the murder, and only shows Defendant’s 18 propensity to commit crime, because Montoya was in fact the ultimate shooter. We 1925 disagree and conclude that the evidence is relevant for showing more than just 1 propensity. 2 {42} Rule 11-404(B)(1) precludes the admission of evidence of a person’s character 3 by admission of other-act evidence to prove “that on a particular occasion the person 4 acted in accordance with the character.” Yet, evidence of a defendant’s crime, wrong, 5 or other act might still be relevant and admissible if it is offered for another purpose. 6 Rule 11-404(B)(2) (providing, non-exhaustively, a list of permitted uses for prior bad7 acts such as opportunity, intent, preparation, plan, and knowledge). The admission or 8 exclusion of evidence is a decision withinthe sound discretion of the trial court. 9 Martinez , 1999-NMSC-018, ¶ 31. Here we must first consider whether the State 10 introduced evidence of Defendant’s posse ssion of a handgun for a legitimate purpose 11 other than to show character or propensity under Rule 11-404(B)(1), and second 12 whether the probative value was otherwise substantially outwei ghed by the danger of 13 unfair prejudice under Rule 11-403. Otto , 2007-NMSC-012, ¶ 10. 14 {43} The State argues that its theory of th e case was that Defendant possessed the 15 actual murder weapon during the events leading up to the shooting, which is evidence 16 of both conspiracy and deliberate intent tokill Victim. Thus, the State argues evidence 17 of Defendant’s possession of the potential murder weapon was not other-act evidence 1826 and does not implicate Rule 11-404(B). We agree, but note further that even under 1 Rule 11-404(B), admission of the handgun-possession evidence was proper for the 2 purpose of proving Defendant’s intent and knowledge of the plot to kill Victim. In 3 other words, Defendant shared Montoya’s deliberate intent tokill and had knowledge 4 of the crime Montoya was going to commit b ecause they had conspired and developed 5 a plot to kill Victim; her possession of the murder weapon and knowledge of the 6 weapon’s close proximity was evidence of her awareness of, and involvement in, the 7 plan to deliberately kill Victim. See State v. Gaitan , 2001-NMCA-004, ¶¶ 19-24, 130 8 N.M. 103, 18 P.3d 1056 (considering testimony th at a defendant told a co-conspirator 9 to get a gun at a party, and concluding it wa s relevant to his intent on an accomplice 10 liability theory for a killing that occurred af ter the party). Because the evidence of the 11 handgun did not go solely to De fendant’s propensity to commit crime, but rather was 12 introduced for various permissible purpos es, we conclude there was no abuse of 13 discretion by the trial court in allowing suchevidence to be considered by the jury, 14 and accordingly affirm the trial court’s ruling in this regard. 15 E. Ineffective assistance of counsel 16 {44} Defendant lastly argues that there was ineffective assistance of counsel because 17 counsel did not object to the admission of the handgun evidence, and did not call 1827 “Amy,” the person who drove Mathis to Ruidoso, to testify. As mentioned, admission 1 of the handgun evidence was not an abuse of the trial court’s discretion. Further, 2 choosing whether to call a witn ess at trial or not constitu tes legitimate trial strategy. 3 We conclude there was effective assistance of counsel. 4 {45} In order to establish a successful claim of ineffective assistance of counsel, a 5 defendant is required to “first demonstrate error on the part of counsel, and then show 6 that the error resulted in prejudice.” State v. Bernal , 2006-NMSC-050, ¶ 32, 140 N.M. 7 644, 146 P.3d 289. A prima facie case of ineff ective assistance of counsel is made on 8 appeal where: “(1) it appears from the reco rd that counsel acted unreasonably; (2) the 9 appellate court cannot think of a plausible, rational strategy or tactic to explain 10 counsel’s conduct; and (3) the actions of counsel are prejudicial.” State v. Herrera , 11 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (internal quotation marks and 12 citation omitted); see also Bernal , 2006-NMSC-050, ¶ 32. “[A] prima facie case is not 13 made when a plausible, rati onal strategy or tactic can e xplain the conduct of defense 14 counsel.” State v. Richardson , 1992-NMCA-112, ¶ 12, 114 N.M. 725, 845 P.2d 819, 15 abrogated on other grounds by Allen v. LeMaster, 2012-NMSC-001, ¶ 36, 267 P.3d 16 806. 17 {46} In this case, both of the decisions notto object to the handgun evidence and not 1828 to call “Amy” was rational trial strategy taken by defense counsel, in part because we 1 have concluded that the handgun evidence was admissible for proving something 2 other than propensity, and “Amy” may nothave had favorable testimony to the 3 defense. We conclude that trial counselwas not ineffective to Defendant on this 4 record. 5 IV. CONCLUSION 6 {47} We affirm Defendant’s convictions of first-degree murder, conspiracy to 7 commit first-degree murder, and tampering with evidence. Further, while we have 8 misgivings about the use of graphic media potentially implicating a victim’s rights in 9 trial, we conclude the trial court did not otherwise abus e its discretion under Rule 11- 10 403 by admitting the instant graphic video of Victim’s last moments. We also 11 conclude that the trial court did not abuse its discretion by admitting evidence of 12 Defendant’s possession of a handgun lead ing up to the murder, and finally, we 13 conclude defense counsel rendered effective assistance to Defendant. 14 {48} IT IS SO ORDERED. 15

______________________________ 16 BARBARA J. VIGIL, Justice 17 WE CONCUR: 1829 __________________________________ 1 CHARLES W. DANIELS, Chief Justice 2

__________________________________ 3 PETRA JIMENEZ MAES, Justice 4

____________________________________ 5 EDWARD L. CHÁVEZ, Justice 6

____________________________________ 7 JUDITH K. NAKAMURA, Justice 8