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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO. 31,567 4 GEORGE TORRES, 5 Defendant-Appellant, 6 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 J. Richard Brown, District Judge 8 Gary K. King, Attorney General 9 Pranava Upadrashta, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Acting Chief Public Defender 13 Eleanor Brogan, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 FRY, Judge. 18 Defendant appeals his convictions for shooting from a motor vehicle and 19 tampering with evidence. He does not appeal his conviction for consumption of an 202 alcoholic beverage in a motor vehicle on a road. Because we conclude that the 1 instruction given to the jury on the charge of shooting from a motor vehicle rose to the 2 level of fundamental error, we revers e Defendant’s conviction on that charge. 3 Because we find Defendant’s remaining arguments to be without merit, we affirm his 4 remaining convictions and remand for further proceedings on the charge of shooting 5 from a motor vehicle. 6 Fundamental Error in the Jury Instructio n on Shooting From a Motor Vehicle 7 “Shooting . . . from a motor vehicle consis ts of willfully discharging a firearm 8 . . . from a motor vehicle w ith reckless disregard for the person of another .” NMSA 9 1978, § 30-3-8(B) (1993) (emphasis added). The phrasing of the statute, which 10 provides that the defendant’s reckless disreg ard must be for “theperson of another,” 11 indicates that it is the physical person of another—and not that person’s general rights 12 or property—that the statute seeks to protect . This is further reinforced by the fact 13 that the degree of the offense depends on whether the shooting has resulted in injury 14 or great bodily harm to another, and by th e fact that the statute does not specifically 15 mention property or any other rights. See id. However, the uniform jury instruction, 16 rather than retaining this “person of another” phrasing, instead states that in order to 17 convict a defendant of shooting from a moto r vehicle, the state must prove beyond a 18 reasonable doubt that “[t]he defendant willfully shot a firearm from a motor vehicle 193 with reckless disregard for another person .” UJI 14-342 NMRA (emphasis added) 1 (footnotes omitted). This language is sli ghtly more ambiguous than the language in 2 the statute in that its phrasing lacks th e emphasis on the person’s physical well-being 3 that is being disregarded. 4 However, while the phrase “reckless di sregard for another person” in the 5 uniform jury instruction is less precise than the phrase “reckless disregard for the 6 person of another” in the statute, the uni form jury instruction compensates for this 7 slight imprecision by reinforcing the concept of harm to the physical person of another 8 in its definition of recklessness. The instruction’s use notes state that a definition of 9 “reckless disregard” must be provided and specifies the definition from UJI 14-1704 10 NMRA for negligent arson, noting that this definition should be modified by 11 substituting the term “with reckless disregard” for the word “recklessly.” UJI 14-342, 12 [u]se [n]ote 3. The neglig ent arson instruction states: 13 For you to find that the defendant acted recklessly in this case, 14 you must find that he knew that his conduct created a substantial 15 and foreseeable risk, that he disreg arded that risk and that he was 16 wholly indifferent to the conse quences of his conduct and to the 17 welfare and safety of others. 18 UJI 14-1704. Because the mandatory definiti on of reckless disregard makes clear that 19 the substantial and foreseeable risk is to th e “welfare and safety” of others, it indicates 204 that the risk of harm that is encompasse d by the statute is the risk to the physical 1 person of another. 2 Based on the uniform instructions, the jury instruction in this case should have 3 read as follows: 4 For you to find [D]efendant guilty of shooting from a motor 5 vehicle as charged in Count 1, the State must prove to your satisfaction 6 beyond a reasonable doubt each of the following elements of the crime: 7 1. [D]efendant willfully shot a firearm from a motor vehicle 8 with reckless disregard for another person. 9 2. This happened in New Mexicoon or about the 18th day of 10 September, 2009. 11 For you to find that [D]efendant acted with reckless disregard in 12 this case, you must find that heknew that his conduct created a 13 substantial and foreseeable risk, that he disregarded that risk and that he 14 was wholly indifferent to the cons equences of his conduct and to the 15 welfare and safety of others. 16 Rather than giving the definition of “reckle ss disregard” set forth in UJI 14-342 use 17 note 3 and UJI 14-1704, the district court gave the general recklessness instruction 18 contained in UJI 14-133 NMRA. That instru ction states, “For y ou to find that the 19 defendant acted with reckless disregard in this case, you must find that the defendant 20 acted with willful disregard of the rights or safety of others and in a manner which 21 endangered any person or property.” UJI 14-133. And rather than including this 225 definition separately, it listed it as an element of the offense. The jury instruction that 1 was given at trial thus read as follows: 2 For you to find [D]efendant guilty of shooting from a motor 3 vehicle as charged in Count 1, the [S]tate must prove to your satisfaction 4 beyond a reasonable doubt each of the following elements of the crime: 5 1. [D]efendant wil[l]fully shot a firearm from a motor vehicle 6 with reckless disregard for another person; 7 2. For you to find that [D]efendant acted with reckless 8 disregard in this case, you must find that [D]efendant acted with willful 9 disregard of the rights or safety of others and in a manner which 10 endangered any person or property; 11 3. This happened in New Mexicoon or about the 18th day of 12 September, 2009. 13 Defendant did not object to this instru ction but now argues that it constitutes 14 fundamental error warranting reversal. 15 When reviewing a jury instruction fo r unpreserved, fundamental error, the 16 Court begins with the same inquiry as for preserved, reversible error: “whether a 17 reasonable juror would have been confused or misdirected by the jury instruction.” 18 See State v. Barber , 2004-NMSC-019, ¶ 19, 135 N.M. 621, 92 P.3d 633. However, 19 if the answer is yes, “[f]undamental-erro r analysis then requires a higher level of 20 scrutiny.” Id. “If we find error, our obligation is to review the entire record, placing 21 the jury instructions in the context of th e individual facts and circumstances of the 22 case, to determine whether the [d]efendant ’s conviction was the result of a plain 236 miscarriage of justice.” Id. (internal quotation marks and citation omitted). 1 Conviction of a nonexistent crime cons titutes fundamental error per se. See State v. 2 Arredondo , 2012-NMSC-013, ¶ 20, 278 P.3d 517. In addition, a conviction for a 3 crime with which the defendant was not ch arged also constitutes fundamental error. 4 See State v. Davis , 2009-NMCA-067, ¶ 16, 146 N.M. 550, 212 P.3d 438. 5 The instruction given by the districtcourt permitted the jury to convict 6 Defendant based on a determination that he willfully shot from a motor vehicle with 7 a reckless disregard for the property of another. Neither party has pointed this Court 8 to any crime under New Mexico law thatcontains these precise elements. Cf. NMSA 9 1978, § 30-7-4 (1993) (prohibiting the negligent use of a firearm and containing 10 certain provisions that prohibit conduct that endangers property, but containing no 11 provision that matches the jury instruction given here). Theref ore, the instruction 12 permitted Defendant to be convicted of a nonexistent crime, creating fundamental 13 error in Defendant’s trial. And even if there is some other statute not cited by the 14 parties that prohibits such conduct, it was not charged in this case. Accordingly, the 15 error was fundamental and warrants reversal. 16 Defendant claims that even under th e instruction presented, there was 17 insufficient evidence to support his conviction. We will address this argument 18 because it affects whether he may be retried on the charge on remand. See State v. 197 Dowling , 2011-NMSC-016, ¶ 18, 150 N.M. 110, 257 P.3d 930 (stating that double 1 jeopardy does not bar retrial if suffici ent evidence was presented to support a 2 conviction at trial under the erroneous jury instruction). “In reviewing the sufficiency 3 of the evidence, we must view the eviden ce in the light most favorable to the guilty 4 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence 5 in favor of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 6 998 P.2d 176. “The relevant question is whether, after viewing the evidence in the 7 light most favorable to the prosecution, anyrational trier of fact could have found the 8 essential elements of the crime beyond a reasonable doubt.” Id . (alterations, internal 9 quotation marks, and citation omitted). 10 The State was required to prove beyond a reasonable doubt that Defendant 11 willfully shot a firearm from a motor vehi cle with reckless disregard for another 12 person. The jury instruction defined reckle ss disregard as the “willful disregard of the 13 rights or safety of others and in a manner which endangered any person or property.” 14 There was evidence presented at trial that officers heard gunshots and, when they went 15 to investigate, found a vehicle a block awaywith several occupants inside, including 16 Defendant. There were guns in the vehicle, and shell casings thatmatched one of the 17 guns were found outside on the ground. There was evidence that Defendant admitted 18 to the officers that he had fired the gun fro m inside the vehicle. There was evidence 198 that Defendant shot the gun in an area where one could not shoot safely in any 1 direction since the shooting occurred at a roundabout at an intersection of two streets 2 near downtown Artesia, and there was a hotel on one corner, the sheriff’s office on 3 another corner, a restaurant on another co rner, and a house, a doctor’s office, and 4 some businesses on another corner. Although Defendant points out that one of the 5 other people in the car testified that Defe ndant fired from outside of the car and one 6 of the officers testified that the location of the shell casings coul d be consistent with 7 someone standing in place and firing the weapon straight up from the curb, the 8 evidence introduced at trial, when viewed inthe light most favorable to the judgment, 9 supported his conviction. See State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 10 971 P.2d 829 (“Contrary evidence supporting acquittal does not provide a basis for 11 reversal because the jury is free to reject [the d]efendant’s version of the facts.”). It 12 was for the fact finder to resolve any conflic ts in the evidence, and this Court will not 13 reweigh the evidence on appeal. See State v. Mora , 1997-NMSC-060, ¶ 27, 124 N.M. 14 346, 950 P.2d 789 (“The reviewing court does not weigh the evidence or substitute 15 its judgment for that of the fact finder as long as there is sufficient evidence to support 16 the verdict.”), abrogated on other grounds by State v. Frazier, 2007-NMSC-032, ¶ 31, 17 142 N.M. 120, 164 P.3d 1, as recognized in Kersey v. Hatch , 2010-NMSC-020, ¶ 17, 18 148 N.M. 381, 237 P.3d 683. 199 Sufficiency of the Evidence of Tampering With Evidence 1 Defendant asserts that there was insuffi cient evidence to support his conviction 2 for tampering with evidence. The State was required to prove beyond a reasonable 3 doubt that Defendant hid a Gloc k .45 pistol with the intention to prevent himself from 4 being apprehended, prosecuted, or convicted. 5 Evidence was presented at trial that De fendant admitted that he was the one 6 who had shot the Glock and that when the police were stopping the vehicle, he hid the 7 Glock behind the radio in order to keep th e police from finding it. This evidence was 8 sufficient to support Defendant’s conviction for tampering with evidence. 9 CONCLUSION 10 For these reasons, we reverse Defendant ’s conviction for shooting from a motor 11 vehicle, affirm his remaining convictions , and remand for further proceedings on the 12 charge of shooting from a motor vehicle. Because we reverse Defendant’s conviction 13 for shooting from a motor vehicle on the basis of the erroneous jury instruction, we 14 need not address his argument that his c onviction for this crime should be reversed 15 based on what he claims was the erroneous admission into evidence of shell casings 16 the police found on the street. 1710 IT IS SO ORDERED. 1

2 CYNTHIA A. FRY, Judge 3 WE CONCUR: 4

5 JAMES J. WECHSLER, Judge 6

7 J. MILES HANISEE, Judge 8