This decision was not selected for publication inthe New Mexico Reports. Please see Rule 12- 1 405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this 2 electronic decision may contain computer-generated errors or other deviations from the official 3 paper version filed by the Supreme Court and does not include the filing date. 4 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 5

STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7

v. NO. 30,913 8

ARTHUR PAUL MARTIN , 9 Defendant-Appellant. 10

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Mark A. Macaron, District Judge 12 The Law Offices of Nancy L. Simmons, P.C. 13 Nancy L. Simmons 14 Albuquerque, NM 15 for Appellant 16

Gary K. King, Attorney General 17 Ralph E. Trujillo, Assistant Attorney General 18 Santa Fe, NM 19for Appellee 1

DECISION 2 SERNA, Justice. 3 I. Introduction 4 {1} Defendant Arthur Paul Martin (“Defendant”) was convicted by a jury of first 5 degree murder of Rodney Mackall (“Vic tim”), armed robbery, evidence tampering, 6 and possession of a firearm by a felon. De fendant appeals his convictions directly 7 to this Court under our mandatory appe llate jurisdiction, Rule 12-102(A)(1) 8 NMRA, on the grounds that the district court fundamentally erred in admitting 9 gang affiliation evidence and testimony in vi olation of Defendant’s Confrontation 10 Clause rights and that the evidence was insufficient for his convictions. Having 11 reviewed the briefs and the record be low, we affirm Defendant’s convictions. 12 II. Background 13 {2} Defendant admitted to killing Victim in the Albuquerque apartment of 14 Warren Ward on or about August 18, 2005. Defendant was at Ward’s apartment 15 when an argument occurred between De fendant and Victim, during which Victim 16 was shot by Defendant in the kitchen witha revolver. Defendant took money from 17 Victim’s person and left the apartment, fleeing to Farmington shortly thereafter. 18 After Defendant departed, Ward enlisted the services of another guest to assist him 19 in dumping Victim’s body, which was discovered the next day. 202 {3} Defendant was arrested in Farmington pursuant to a warrant issued in 1 Bernalillo County on September 8, 2005, after a citizen reported to the Farmington 2 police that Defendant had confided thathe had committed murder and robbery in 3 Albuquerque. After waiving his Miranda ri ghts, Defendant stated that he was 4 present at Ward’s apartment the night of Victim’s murder and had heard gunshots. 5 Defendant was transported to Bernalillo County Detention Center, where he 6 confessed to shooting Victim in the course of an argument and disposing of the 7 gun used in the crime. 8 {4} Defendant did not present evidence at trial, but argued during closing that 9 the killing was in self-defense, and the jurywas so instructed. After deliberation, 10 the jury found Defendant guilty of first degree murder, willful and deliberate, 11 felony murder in the alternative, armed robbery, evidence tampering, and 12 possession of a firearm by a felon. The district court imposed a sentence of life 13 imprisonment plus ten years. 14 III. Analysis 15 {5} Defendant raises three points of error inthis appeal: (1) that the district 16 court fundamentally erred in admitting evidence of Defendant’s gang affiliation; 17 (2) that the district court fundamentally erred in admitting testimony that violated 18 Defendant’s Confrontation Clause rights and, as a result of the issue not being 19 preserved, Defendant was prejudiced by in effective assistance of counsel; and (3) 203 that insufficient evidence was presented at trial to sustain Defendant’s convictions. 1 We review each issue in turn. 2

A. Evidence of Defendant’s Gang Affiliation 3
{6} Defendant argues that the district court erred in admitting evidence of 4 Defendant’s gang affiliation but concedes th at this issue was not preserved. We 5 review issues that were not properly preserved below for fundamental error. State 6 v. Silva , 2008-NMSC-051, ¶ 11, 144 N.M. 815, 192 P.3d 1192. Our fundamental 7 error analysis requires two steps. The first is to determine whether error actually 8 occurred. Id. If there was error, our second step is to determine whether that error 9 was fundamental. Id. Error is fundamental and requires reversal only in extreme 10 cases when “the defendant’s guilt is so questionable that upholding the conviction 11 would shock the conscience,” or “substantial justice has not been served” because 12 “a fundamental unfairness within the system has undermined judicial integrity.” 13 Id. ¶ 13 (internal quotation marks and citation omitted). 14 {7} Gang affiliation evidence was presented at trial to show that Defendant and 15 Victim were members of the same gang and that police investigators used gang 16 tattoos to identify both Defendant and Vi ctim. Defendant argues that admission of 17 this evidence was fundamental error becau se it was character evidence used for 18 propensity purposes in violation of Rule 11-404 NMRA. The State argues that the 194 gang affiliation evidence was properly admitted to show how the investigation 1 proceeded and how Defendant and Victim were identified. Additionally, the State 2 argues that “Defendant waived any clai m against the admission of this evidence 3 because the defense offered its own evidence of . . . gang affiliation.” 4 {8} Rule 11-404 prohibits the admission of character evidence “for the purpose 5 of proving action in conformity therewith on a particular occasion[.]” Under Rule 6 11-404(A), a criminal defendant may admit evidence of a pertinent trait of his or 7 her own character, or the character of th e victim, but doing so opens the door for 8 the prosecution to introduce evidence of the same trait. Rule 11-404(A)(1), (2). 9 Rule 11-404(B) permits the introduction of evidence of “other crimes, wrongs or 10 acts” for purposes “such as proof of motive, opportunity, intent, preparation, plan, 11 knowledge, identity or absence of mistake. ” The State must provide prior notice 12 that evidence of prior bad acts will beused at trial. Rule 11-404(B). If evidence is 13 determined to be admissible under Rule 11-404, it must still withstand the 14 balancing requirements of Rule 11-403 NMRA, under which evidence is excluded 15 if its probative value is substantially outweighed by its prejudicial effect. 16 {9} The trial testimony about gang member ship was first elicited by defense 17 counsel to demonstrate that Victim was a gang member, presumably in support of 18 Defendant’s self-defense theory. Defens e counsel emphasized that Victim was a 19 gang member and posed questions about gang -related activities at Victim’s funeral. 205 Under Rule 11-404(A), Defendant “opene d the door” to gang-related testimony to 1 show that the sole fact of Victim’s gang membership did not prove Defendant’s 2 self-defense theory, as Defendant was a member of the same gang. Cf. State v. 3 Coffin , 1999-NMSC-038, ¶ 34, 128 N.M. 192, 991 P.2d 477 (“[T]estimony on 4 cross-examination concerning the relationship between the two gangs was 5 admissible to rebut the implication from di rect examination that the gang affiliation 6 of [the victim] made it more likely that hewas a first aggressor in the altercation 7 with [the defendant].”). This rebuttal evidence, showing that Defendant and 8 Victim were members of the same gang, need not be excluded under Rule 11-403 9 as its probative value is not “substantially outweighed by the danger of unfair 10 prejudice.” See id. ¶ 35 (finding no unfair prejudice when the defendant raised the 11 issue of gang membership early in the trial and questioned hi s own witnesses about 12 his gang membership). The district court did not err by permitting the State to 13 present gang affiliation evidence to rebut the testimony elicited by Defendant. 14 {10} We may not characterize all of the gang affiliation evidence introduced by 15 the State as rebuttal evidence permitted under Rule 11-404(A). The State 16 presented testimony by gang experts and police officers on gang structure and 17 methods of gang surveillance. Although the introduction of gang affiliation 18 evidence would be prohibited if done so lely for propensity purposes, we have 19 previously held that gang affiliation ev idence is not improper character evidence 206 when it is admitted for one of the valid reasons listed in Rule 11-404. In State v. 1 Nieto , we held that the district court did not abuse its discretion in admitting expert 2 gang testimony, about the defendant’s me mbership in a gang and that gang’s 3 procedures, to show the defendant’s motiv e and intent in murdering his victims. 4 2000-NMSC-031, ¶ 25, 129 N.M. 688, 12 P.3d 442. More recently, in State v. 5 Torrez , we held that expert gang testimony wa s “offered to rebut [the defendant’s] 6 claim of self-defense, and therefore went to his motive,” and was admissible under 7 Rule 11-404(B). 2009-NMSC-029, ¶ 24, 146 N.M. 331, 210 P.3d 228. 8 {11} In this case, the State presented gang affiliation evidence to explain how the 9 Sheriff’s Department Gang Unit investigators used gang tattoos on Victim’s body 10 to identify Victim, and the files the Gang Unit maintains on local gang members 11 and Defendant’s tattoos to identify Defe ndant as a suspect. Testimony about gang 12 structure, specifically that the Kirt TownPiru gang, to which both Defendant and 13 Victim belonged, is a part of the Bloods gang family, provided background to 14 understand the identification process. Additionally, Defendant admitted both to 15 being a gang member and that he fled toFarmington after the murder because he 16 was concerned “that his fellow gang members were after him.” Defendant 17 concedes that testimony of their common gang membership established that 18 Defendant and Victim were acquainted. 19 {12} This gang-related testimony explained the manner in which investigators 207 were able to identify both Victim and Defendant and the reason for Defendant’s 1 presence in Farmington. The list of permissible reasons in Rule 11-404(B) is not 2 exhaustive, and we hold that the district court did not err in admitting gang-related 3 testimony for purposes of establishing identity and to explain why Defendant was 4 arrested in Farmington. While the reco rd does not indicate that the State met its 5 burden of providing notice of the intent to use character evidence for permissible 6 purposes, the failure to do so does not amount to fundamental error requiring 7 reversal, especially considering the amountof gang evidence that was elucidated in 8 Defendant’s own ques tioning and confession. 9 {13} Nor does the admission of this gang affiliation evidence violate Rule 11-403. 10 In Nietowe held that the probative value of the gang evidence to show the 11 defendant’s motive and intent was not substantially outweighed by the danger of 12 the unfair prejudice to the defendant of being associated with a gang. 2000- 13 NMSC-031, ¶ 26. In Torrez , however, we held that the district court abused its 14 discretion by not excluding the gang evidence under Rule 11-403 because there 15 was little probative value when the prosecuti on had not presented evidence that the 16 defendant was a member of a gang at the time of the shooting or that the crime was 17 gang-related. 2009-NMSC-029, ¶ 31. Un like the unduly prejudicial gang-related 18 testimony presented in Torrez , however, in this case the gang affiliation evidence 19 introduced for the limited and specific purposes of identification and reason for 208 Defendant’s presence in Farmington was hi ghly probative. While we continue to 1 recognize the danger of gang-related evidence prejudicing a defendant “by 2 associating the defendant with the gang and describing the gang’s bad acts[,]” 3 Nieto , 2000-NMSC-031, ¶ 25, any prejudice to Defendant was minimal and 4 certainly did not substantially outweigh the probative value of the evidence. We 5 hold that the district court did not err in admitting the gang affiliation testimony, 6 and thus there was no fundamental error requiring reversal. 7 B. Testimony Admitted in Violation of the Confrontation Clause 8
{14} Defendant’s second point of error alleges that his rights under the 9 Confrontation Clause of the Sixth Amendment were violated by the admission of 10 hearsay statements and that the failure of his trial counsel to object to those 11 statements on grounds that they violatedthe Confrontation Clause constitutes 12 ineffective assistance of counsel. The St ate concedes that statements by Ward, in 13 whose apartment the murder was co mmitted, were introduced through the 14 testimony of various law enforcement officers in violation of Defendant’s right to 15 confront witnesses against him. Ward did not testify at trial, but his statement that 16 Defendant killed Victim after an argument in his apartment was introduced through 17 the testimony of Detective Maestas, who interrogated Ward, and Detective 18 Blackmon, who observed a portion of that interrogation. 19 {15} The Sixth Amendment guarantees that all criminal defendants have the right 209 “to be confronted with the witnesses agai nst him.” U.S. Const. amend. VI. The 1 Confrontation Clause prohibits the use in trial of “out of court testimonial 2 statements . . . unless the witness is unavailable and the defendant had a prior 3 opportunity to cross-examine the witness, regardless of whether such statements 4 are deemed reliable by the court.” State v. Zamarripa , 2009-NMSC-001, ¶ 23, 145 5 N.M. 402, 199 P.3d 846 (citingCrawford v. Washington , 541 U.S. 36, 68 (2004)). 6 {16} Our manner of analyzing the effect of the Confrontation Clause violation 7 depends on whether the error was preserve d. Generally, we review a claim that 8 hearsay evidence was admitted in violati on of the Confrontation Clause de novo. 9 Zamarripa , 2009-NMSC-001, ¶ 22. However, if the error was not properly 10 preserved at trial, our review is for fundamental error. Silva , 2008-NMSC-051, ¶ 11 11. “To preserve a question for review it must appear that a ruling or decision by 12 the district court was fairly invoked[.]” Rule 12-216(A) NMRA. Although 13 Defendant objected to the admission of Ward’s statements through the testimony 14 of Detectives Maestas and Blackmon, he did so on grounds that the testimony 15 constituted hearsay. Defendant never objected on grounds that the testimony 16 violated the Confrontation Clause. Becausethis issue was not properly preserved 17 in the district court, our review is for fundamental error. See Silva , 2008-NMSC18 051, ¶ 10 (finding that the defendant did not preserve his Confrontation Clause 19 claim by objecting that testimony violated his Fifth Amendment rights and 2010 inquiring into the scope); see also State v. Trujillo , 2002-NMSC-005, ¶ 13, 131 1 N.M. 709, 42 P.3d 814 (declining to address the defendant’s Confrontation Clause 2 claim that was not preserved through objections to testimony on hearsay and 3 impeachment grounds); State v. Mora , 1997-NMSC-060, ¶ 47 n.1, 124 N.M. 346, 4 950 P.2d 789 (declining to address the defe ndant’s Confrontation Clause claim 5 because no specific objection was made). 6 {17} As noted above, the State concedes thatWard’s statements were admitted in 7 violation of Defendant’s Confrontation Cl ause rights. Therefore, we may proceed 8 directly to the second step of our anal ysis, whether the error that occurred was 9 fundamental. See supra¶ 6. As discussed above, error is fundamental and 10 requires reversal only when affirming a conviction would “shock the conscience,” 11 because Defendant’s guilt is so questionable, or when the error is the result of “a 12 fundamental unfairness within the system [that] has undermined judicial integrity.” 13 Silva , 2008-NMSC-051, ¶ 13 (internal quotation marks and citation omitted). 14 {18} “[T]he loss of the fundamental right to cross-examine is not necessarily 15 fundamental error.” Id. ¶ 15. In this case, the evidence presented supports 16 Defendant’s convictions even without consideration of Ward’s statements. 17 Defendant admitted shooting Victim during an argument. The admission of 18 Ward’s statements of the same in no way renders the jury’s determination of 19 Defendant’s guilt so questionable that our conscience is shocked. The fact that 2011 Ward’s statements were cumulative of De fendant’s own confession also indicates 1 an absence of a “fundamental unfairne ss” that would undermine the judicial 2 integrity of Defendant’s trial. We hold that the error in admitting Ward’s 3 statements in violation of Defendant ’s Confrontation Clause rights was not 4 fundamental and thus does not require reversal. 5 {19} Defendant argues that the failure of his trial counsel to object to the 6 Confrontation Clause violation constitute s ineffective assistance of counsel. We 7 apply a de novo standard of review to clai ms of ineffective assistance of counsel. 8 Lytle v. Jordan , 2001-NMSC-016, ¶ 28, 130 N.M. 198, 22 P.3d 666. To establish 9 a prima facie case of ineffective assistan ce of counsel, Defendant bears the burden 10 of showing that his trial counsel committed error and that the error was prejudicial. 11 State v. Gonzales , 2007-NMSC-059, ¶ 14, 143 N.M. 25, 172 P.3d 162. “There is a 12 general presumption that trial couns el provided effective assistance.” Id. The 13 standard for determining whether trial counsel erred is whether “counsel’s 14 representation fell below an objectiv e standard of reasonableness.” Lytle , 15 2001-NMSC-016, ¶ 26 (quotingStrickland v. Washington , 466 U.S. 668, 688 16 (1984)). If the claimed error can be justified as a trial tactic or strategy, the error is 17 not unreasonable. Id. 18 {20} To meet his burden on the first prong, that his counsel committed error, 19 Defendant argues that “[a] reasonably comp etent attorney, familiar with applicable 2012 law, would simply not have failed to at least preserve an objection to the use of 1 statements [that were testimonial and had not been cross-examin ed] at trial.” We 2 disagree. Defendant argued throughout the case that he shot Victim in self3 defense, and Ward’s statement that anargument occurred between Defendant and 4 Victim tends to support the theory that De fendant acted in self-defense. Therefore, 5 the failure of Defendant’s trial counsel to object to the admission of Ward’s 6 statements may be justified as a trial t actic to bolster Defendant’s self-defense 7 argument. See State v. Allen , 2000-NMSC-002, ¶ 115, 128 N.M. 482, 994 P.2d 8 728 (filed 1999) (“Failure to object to every instance of objectionable evidence [or 9 argument] does not render counsel ineffectiv e; rather, failure to object falls within 10 the ambit of trial tactics.” (internal quotation marks and citation omitted) 11 (alteration in original)). Because we find that Defendant has not carried his burden 12 on the first prong of his ineffective assistance of counsel claim, we do not proceed 13 to the second. Defendant has not shown that he was without reasonably effective 14 assistance of counsel at trial, and thus hi s claim of ineffective assistance of counsel 15 fails. 16 C. Sufficiency of the Evidence 17
{21} For his third and final point of error inthis appeal, Defendant argues that the 18 evidence was insufficient to support his c onvictions of first degree murder, armed 19 robbery, and evidence tampering. Defendant submits this argument pursuant to 2013 State v. Franklin , 78 N.M. 127, 428 P.2d 982 (1967), and State v. Boyer , 103 N.M. 1 655, 712 P.2d 1 (Ct. App. 1985). 2 {22} When we review whether the evidence presented at trial was sufficient for 3 conviction, we look at “whether substantial evidence of either a direct or 4 circumstantial nature exists to support a verdict of guilty beyond a reasonable 5 doubt with respect to every element essential to a conviction.” State v. Sutphin , 6 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We “view the evidence in the 7 light most favorable to the [State], reso lving all conflicts therein and indulging all 8 permissible inferences therefrom in favor of the verdict.” Id. We do not weigh the 9 evidence or substitute our judgment for thatof the jury; we reverse a verdict for 10 insufficient evidence only when no reasonable jury could find guilt beyond a 11 reasonable doubt based on the evidence, “o f either a direct of circumstantial 12 nature[,]” presented. State v. Perea , 2008-NMCA-147, ¶ 5, 145 N.M. 123, 194 13 P.3d 738. 14 {23} Defendant argues that the evidence does not support his first degree murder 15 conviction because “the evidence adduced at trial implicated [] Ward just as 16 heavily, if not more heavily, as the mu rderer” and “Defendant’s own statement 17 indicated that he acted in self-defense.” The jury was instructed on deliberate 18 intent first degree murder and felony murderin the alternative, with armed robbery 19 as the predicate felony, as well as self-d efense; guilty verdicts were returned on 2014 both counts. A conviction for deliberate intent first degree murder required the 1 State to prove beyond a reasonable doubt that Defendant killed Victim; that 2 Defendant had a deliberate intention to do so; and that Defendant was not acting in 3 self-defense. NMSA 1978, Section 30-2-1 (1994); see also UJI 14-201 NMRA. 4 The alternative charge of felony murd er required the State to prove beyond a 5 reasonable doubt that Defendant robbed Victim “under circumstances or in a 6 manner dangerous to human life;” that Defendant caused Victim’s death during the 7 robbery; that Defendant “intended to kill or knew that his acts created a strong 8 probability of death or great bodily harm[;]” and that Defendant did not act in self9 defense. Section 30-2-1; UJI 14-202 NMRA. 10 {24} Defendant confessed to shooting Vic tim in the course of an argument. 11 Defendant acknowledged that Victim was unarmed, but stated that Victim was 12 moving towards Defendant in a manner indicating the argument was about to 13 become physical, so Defendant withdrew a gun from his pocket and shot Victim 14 twice. The forensic expert testifie d that Victim, who was much taller than 15 Defendant, was shot from close range and in quick succession to the top of the 16 head and the shoulder, indicating th at the assailant was holding the gun over 17 Victim. Because Victim was taller than Defendant, this evidence would permit the 18 jury to infer that Victim was sitting orotherwise positioned at a lower level than 19 Defendant, and thus not moving towards him. The multiple gunshots fired at close 2015 range on an unarmed victim permitted the jury to conclude Defendant acted with 1 deliberate intent in shooting Victim. Cf. State v. Sosa , 2000-NMSC-036, ¶¶ 12-13, 2 129 N.M. 767, 14 P.3d 32 (discussing evidence sufficient for a conviction of 3 deliberate intent first degree murder). Although Defendant argued that he acted in 4 self-defense, the jury was free to reject th is version of events based on the evidence 5 presented. State v. Hunter , 2001-NMCA-078, ¶ 16, 131 N.M. 76, 33 P.3d 296. 6 There was sufficient evidence for the jury to convict Defendant of deliberate intent 7 first degree murder. 8 {25} To convict Defendant of armed robbery, the predicate felony for the felony 9 murder charge, the State was required to prove beyond a reasonable doubt that 10 Defendant took and carried away money from Victim; that Defendant was armed; 11 and that the money was taken by threatened force or violence. NMSA 1978, § 30- 12 16-2 (1973); see also UJI 14-1621 NMRA. Defendant admitted to having a gun 13 and shooting Victim. Evidence was presented through the testimony of multiple 14 witnesses that Defendant absconded th e crime scene with money taken from 15 Victim’s body. We find that the eviden ce was sufficient for a reasonable jury to 16 convict Defendant of armed robbery and thus felony murder. 17 {26} To convict Defendant of evidence tampering, the State was required to prove 18 beyond a reasonable doubt that Defendant hid or placed the firearm used in 19 Victim’s murder with another individual and that Defendant “intended to prevent 2016 the apprehension, prosecution or conviction of himself[.]” UJI 14-2241 NMRA; 1 see also NMRA 1978, § 30-22-5 (2003). Defendant admitted that he gave the 2 murder weapon to a friend for disposal before leaving Albuquerque. He now 3 argues, without citation, that his statement alone “is not sufficient to sustain a 4 conviction for tampering with evidence as a matter of law.” We disagree. We 5 have long said that “the testimony of a single witness may legally suffice as 6 evidence upon which the jury may found a verdict of guilt.” State v. Hunter , 37 7 N.M. 382, 384, 24 P.2d 251, 252 (1933). The jury had sufficient evidence to 8 convict Defendant of evidence tampering. 9 IV. Conclusion 10 {27} Defendant’s convictions are affirmed. 11 {28} IT IS SO ORDERED

. 12

_________________________________ 13 PATRICIO M. SERNA, Justice 14

15 WE CONCUR: 16

_________________________________ 17 CHARLES W. DANIELS, Chief Justice 1817 _________________________________ 1 PETRA JIMENEZ MAES, Justice 2

_________________________________ 3 RICHARD C. BOSSON, Justice 4

_________________________________ 5 EDWARD L. CHÁVEZ, Justice 6