This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO , 7 Plaintiff-Appellee, 8

v. NO. 26,897 9 WILLIAM LAROCQUE , 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Neil C. Candelaria, District Judge 13
Gary K. King, Attorney General 14 Santa Fe, NM 15 Max Shepherd, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22

MEMORANDUM OPINION 232 ROBLES, Judge. 1 William Larocque (Defendant) appeals from a judgment and sentence of the 2 district court following a jury trial where he was convicted of second-degree murder, 3 armed robbery, conspiracy to commit arme d robbery, tampering with evidence, and 4 two counts of simple battery. On appeal, De fendant raises three issues: (1) sufficiency 5 of the evidence; (2) ine ffective assistance of counsel; and (3) double jeopardy. 6 Having duly considered Defendant’s arguments, we affirm in part, reverse in part, and 7 remand to the district court. 8 I. BACKGROUND AND FACTS 9 Jennifer Pallulat was knocked to the ground at gunpoint, maced, and robbed of 10 her pay check by a man outside of her wo rkplace in Albuquerque. The robber fled on 11 foot. Several of Pallulat’ s co-workers witnessed the robbery, and some of them 12 chased the robber as he ran away. 13 Two of the pursuers, Casey Dominguez and Charles Dusing, were catching up 14 to the robber. As they neared him, th e robber turned and shot Dominguez in the 15 chest, killing him. Dusing ceased pursuit of the robber to aid Dominguez. The robber 16 continued running, joining another man who had evidently been waiting for him in a 17 nearby arroyo. The two men ran away together. By one eyewitness account, they 18 were laughing. 193 In the ensuing investigation, Pallulat and Dusing worked with police to develop 1 sketches of the robber and the man in the arroyo. Pallulat and another witness, Larry 2 Roche, later identified De fendant from a photo array as the robber. Dusing was 3 unable to identify Defendant from a photo array, but stated at trial that Defendant was 4 the man who shot Dominguez. 5 Defendant argued that this was a case of mistaken identity. In support of his 6 theory, Defendant’s family members testif ied that they believed he was at home 7 during the time of the shooting. Defendantwas convicted of second-degree murder, 8 armed robbery, conspiracy to commit arme d robbery, tampering with evidence, and 9 two counts of simple battery. This appeal followed. 10 II. SUFFICIENCY OF EVIDENCE 11 Defendant argues that insufficient eviden ce was presented at trial to uphold the 12 verdict. 13 Substantial evidence review require s analysis of whether direct or 14 circumstantial substantial evidence ex ists and supports a verdict of guilt 15 beyond a reasonable doubt with respect to every element essential for 16 conviction. We determine whether a rational f actfinder could have found 17 that each element of the crime was established beyond a reasonable 18 doubt. 19 State v. Kent , 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations omitted). 20 A. Conspiracy to Commit Armed Robbery 214 To support a conviction for conspiracy to commit armed robbery, the State was 1 required to show that Defendant knowingl y combined with another to commit an 2 armed robbery. UJI 14-2810 NMRA. At trial, the State presented evidence that, 3 following the robbery, Defendant was joinedby another man who appeared to have 4 been waiting for him, and they ran away together, laughing. 5 The State contends this evidence al one is sufficient to show Defendant 6 knowingly made an agreement with the man in the arroyo to rob someone. The State 7 points out that all parties to a conspiracy n eed not be identified in order to sustain a 8 conviction. See State v. Gonzales , 2008-NMCA-146, ¶ 11, 145 N.M. 110, 194 P.3d 9 725. We note that conspiracy is often shown through inference from the facts and 10 circumstances considered as a whole. State v. Ross , 86 N.M. 212, 214, 521 P.2d 1161, 11 1163 (Ct. App. 1974). 12 Although a jury is able to determin e, based upon circumstantial evidence, 13 whether a mutual agreement was reached, the State presen ted no evidence that there 14 was an agreement betw een the two men. See State v. Sheets , 96 N.M. 75, 78, 628 P.2d 15 320, 323 (Ct. App. 1981) (observing that where a “conspiracy conviction rests entirely 16 upon circumstantial evidence[,] the question is whether the circumstances, shown by 17 all of the evidence, are sufficient for a rational trier of fact to convict). 185 The record does not provide evidence of a mutual design. The evidence 1 consists of only the other man’s presence at a location some distance from the scene 2 of the robbery and the two men’s laughter as they ran away together. The State argues 3 unsuccessfully that the other man’s presence in the arroyo, and the fact that he fled 4 with Defendant, shows beyond a reasonable doubt that the two men agreed to commit 5 the robbery. This evidence is insufficien t to prove beyond a reasonable doubt that the 6 man in the arroyo was more than merely present, or that he did not just passively 7 acquiesce to Defendant’s actions. See State v. Mariano R. , 1997-NMCA-018, ¶ 4, 123 8 N.M. 121, 934 P.2d 315 (holding that passi ve acquiescence of others’ conduct is 9 insufficient to uphold a conviction for conspiracy); State v. Dressel , 85 N.M. 450, 10 451, 513 P.2d 187, 188 (Ct. App. 1973) (stating mere presence at the scene of the 11 crime is insufficient to sustain conspiracy conviction). 12 We hold that the jury could not haverationally inferred from the other man’s 13 location and laughter that the two men knowingly combined to commit an armed 14 robbery. Accordingly, we reverse Defendant’s convicti on for conspiracy to commit 15 armed robbery. 16 B. Tampering With Evidence 17 To prove that Defendant was guilty of the crime of tampering with evidence, 18 the State was required to show beyond a reasonable doubt that Defendant destroyed 196 and/or hid a firearm intending to prevent hi s apprehension, prosecution, or conviction. 1 UJI 14-2241 NMRA. At trial, the State presented evidence that Dominguez was shot 2 with a .32 caliber weapon. The murder w eapon was never recovere d. In Defendant’s 3 home, police located a gun cleaning kit that was appropriately sized for a .32 caliber 4
weapon. 5 State v. Silva , 2008-NMSC-051, ¶ 19, 144 N.M . 815, 192 P.3d 1192, requires 6 a conviction for tampering with evidence tobe overturned when the only evidence is 7 that a weapon was used, and that the weapon was never recovered. Here, there is no 8 evidence to support a finding that Defendant destroyed or hid a weapon with the intent 9 to prevent his apprehension or prosecution. 10 Even viewing the evidence in the light mo st favorable to the verdict, we cannot 11 say that each element of the crime is supported by substantial evidence. See State v. 12 Apodaca , 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994) (holding that an 13 appellate court views the evidence in the lightmost favorable to th e verdict, resolving 14 all conflicts and indulging all reasonable in ferences in favor of the verdict). We 15 therefore reverse Defendant’s conviction for tampering with evidence. 16 C. Second-Degree Murder, Armed Robbery, and Battery 17 To sustain a conviction for second-de gree murder, armed robbery, and two 18 counts of battery, the State was required to prove beyond a reasonable doubt that 197 Defendant, without sufficient provocation, upon a sudden quarrel, or in the heat of 1 passion, killed Dominguez without lawful ju stification or excuse, knowing his actions 2 created a strong probability of death or great bodily harm; that De fendant intentionally 3 and unlawfully touched or applied force toPallulat in a rude, insolent, or angry 4 manner; and that he stole something of value from Pallulat by use or threatened use 5 of force or violence. UJI 14-210 NMRA (second-degree murder); UJI 14-1621 6 NMRA (armed robbery); UJI 14-320 NMRA (battery). 7 On appeal, Defendant does not argue the State failed to show that the above8 listed crimes occurred. Rather, Defendant argues that the State did not sufficiently 9 prove he was the individual who committe d the crimes. Defendant argues that 10 because the witnesses’ descriptions of the robber varied, Defendant’s photo was 11 placed “dead center” in the photo array, and none of the witnesses reported seeing 12 tattoos on the robber, there was no way fo r a rational fact finder to determine 13 Defendant was the robber. 14 “The reviewing court does not weigh the evidence or substitute its judgment 15 for that of the fact finder as long as there is sufficient evidence to support the verdict.” 16 State v. Mora , 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. We do not 17 determine on appeal whether the jury coul d have reached a different decision, only 188 whether substantial evidence supports the verdict. See In re Ernesto M., Jr. , 1996- 1 NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. 2 Defendant was positively identified by three separate witnesses as the robber. 3 We recognize that the eyewitness descrip tions of the robber varied and that one 4 witness, Dusing, was unable to identify De fendant as the robber from the photo array. 5 We are also aware that none of the ey ewitnesses reported s eeing tattoos on the 6 attacker’s arms, and that Defendant’s arms are tattooed. However, “[c]ontrary 7 evidence supporting acquittal does not provide a basis for reversal because the jury 8 is free to reject [the d]efendant’s version of the facts.” State v. Rojo , 1999-NMSC9 001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (filed 1998). 10 It is the province of the jury to de termine the credibilityof the evidence 11 presented, and we will not disturb the jury’s verdict so long as substantial evidence 12 was presented at trial to support the conclusion. See Ernesto M. , 1996-NMCA-039, 13 ¶ 15. We affirm Defendant ’s convictions for armed robbery, second-degree murder, 14 and two counts of battery. 15 III. INEFFECTIVE ASSISTANCE OF COUNSEL 16 Defendant argues on appeal that defens e counsel was deficient for failing to 17 seek suppression of photo array identifications and for failing to request a jury 18 instruction related to eyewitness identifications. 199 To establish a prima facie case of in effective assistance of counsel, [the 1 d]efendant must show that (1) counsel’s performance was deficient in 2 that it “fell below an objective standard of reasonableness”; and (2) that 3 [the d]efendant suffered prejudice in that there is “a reasonable 4 probability that, but for counsel’s unprofessional errors, the result of the 5 proceeding would have been different.” 6 State v. Aker , 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (quoting Lytle 7 v. Jordan , 2001-NMSC-016, ¶¶ 26-27, 130 N.M. 198, 22 P.3d 666). 8 A. Photo Identification 9 Defendant argues that defense counselwas under obligation to attempt to 10 suppress the validity of the eyewitnesses’ identification pursuant to State v. Padilla , 11 1996-NMCA-072, ¶¶ 21-22, 122 N.M. 92, 920 P.2d 1046 (suggesting that effective 12 counsel would have moved to suppress a questionable show-up identification). 13 Padillainvolved a show-up identification wh ere police drove up to the eyewitness 14 with the defendant in th e back of a police car. Id. ¶ 21. At trial, the witness could not 15 identify the defendant as the man he had seen. Id. ¶ 22. We do not find Padillato be 16 convincing in light of the circumstances of the case before us. 17 Here, Defendant was identif ied by two separate witn esses from the photo array. 18 The witnesses’ descriptions of the robber included descriptions of both Caucasian and 19 Hispanic individuals, and both Caucasian and Hispanic individuals were in the array 20 from which the witnesses’ identifications were made. The officer who compiled the 2110 array testified that he chose pictures based on skin tone, facial hair, and facial features, 1 rather than racial make-up. Defendant doe s not directly or expressly attack the photo 2 array itself as being impermissibly suggestive. See State v. Stampley , 1999-NMSC3 027, ¶ 17, 127 N.M. 426, 982 P.2d 477 (determining that a photo array was not 4 impermissibly suggestive where the subjects were the same age, race, and stature, and 5 there was nothing to suggest that differen ces in posture, clothing, and body build were 6 impermissibly suggestive). We perceiveno basis on which De fendant can complain 7 about the identifications made based on the individuals in the array or the position of 8 Defendant in relation to the others. 9 Defense counsel thoroughly cross-examined the officer who compiled the photo 10 array and the witnesses who identified Defendant. The record shows defense counsel 11 was well aware of any possible deficiencies in the identification process and chose to 12 address them by cross-examining the witn esses and the officer who compiled the 13 photo array. For this reason and because De fendant fails to set out any arguable basis 14 on which he could have prevailed on a mo tion to suppress the identifications made 15 after viewing the photo array, we reject Defendant’s implicit arguments that his 16 counsel was not competent and had no percei vable trial strategy or tactic on which 17 to base his failure to seek suppression of the identifications. “On appeal, we will not 1811 second guess the trial strategy and tactics of the defense counsel.” Lytle , 2001- 1 NMSC-016, ¶ 43 (internal quotati on marks and citation omitted). 2 We determine that Defe ndant has not establishe d a prima facie case of 3 ineffective assistance of counsel. Therefore, we need not address whether, but for 4 counsel’s performance, the result of the proceeding would have been different. 5 B. Jury Instructions 6 Defendant argues that he received ineff ective assistance of counsel because his 7 trial attorney failed to request specific inst ructions regarding the validity of eyewitness 8 identifications. Defendant argues convi ncingly on appeal that, in eyewitness 9 identification cases, judicial guidance to th e jury regarding eyewitness identification 10 is warranted. However, as Defendant poi nts out, courts do not universally recognize 11 the need for specific instructions regarding eyewitness identifications. New Mexico 12 does not require such instructions. See State v. Gallegos , 115 N.M. 458, 460, 853 13 P.2d 160, 162 (Ct. App. 1993) (“New Mexico appellate courts have held that the 14 uniform jury instructions on witness credibility and reasonable doubt cover a 15 defendant’s theory of misidentification by an eyewitness.”). Indeed, this Court has 16 concluded that a trial court doe s not err in refusing to give a jury instruction regarding 17 eyewitness identification. State v. Haynes , 2000-NMCA-060, ¶ 23, 129 N.M. 304, 6 18 P.3d 1026. 1912 Based upon our existing law regarding eyew itness identification, we do not see 1 that the defense counsel erred in failing to request a jury instruction specific to 2 eyewitness testimony. Defense counsel fairly and zealously represented Defendant 3 at trial and repeatedly called attention tothe variations in the testimony of the 4 witnesses. The jury was given the Unif orm Jury Instructions regarding witness 5 credibility and reasonable doubt. Defendanthas not demonstrated that defense 6 counsel’s performance fell below that of a reasonably compet ent attorney. We 7 determine that Defendant has not estab lished a prima facie case of ineffective 8 assistance of counsel. 9 IV. DOUBLE JEOPARDY 10 Defendant asserts on appeal that his two convictions for simple battery violate 11 the prohibition against double jeopardy. We review the constitutional question of 12 whether there has been a doubl e jeopardy violation de novo. State v. Andazola , 13 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77. We note, however, that where 14 factual issues are intertwined with the double jeopardy analysis, the trial court’s 15 factual determinations are subject to a de ferential substantial evidence standard of 16 review. State v. Rodriguez , 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737. 17 Defendant argues double jeopardy was violated because he was charged with 18 multiple violations of the same statute based upon a single c ourse of conduct. See 1913 State v. DeGraff , 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61 (holding that 1 there are two types of double jeopardy cases w ith regard to multiple punishments: (1) 2 when a defendant is charged with multiple violations of the same statute based on a 3 single course of conduct referred to as “unit of prosecution” cases; and (2) when a 4 defendant is charged with violations of mu ltiple statutes for th e same conduct referred 5 to as “double-description” cases. (internal quotation marks and c itation omitted)). A 6 unit of prosecution challenge uses a two-step inquiry. First, we ask whether the unit 7 of prosecution is clearly defined by the st atute at issue and, second, whether the 8 charged acts were sufficiently distinct. State v. Stewart , 2005-NMCA-126, ¶ 13, 138 9 N.M. 500, 122 P.3d 1269. 10 Whether a unit of prosecution is clearlydefined in NMSA 1978, Section 30-3-4 11 (1963) is not at issue, the relevant inquiry is whether Defendant’s acts were 12 sufficiently distinct to warrant two counts of battery. To determine whether criminal 13 conduct consists of multiple offenses, we look at six factors: (1) temporal proximity 14 of the acts, (2) location of the victim during each act, (3) existence of an intervening 15 event, (4) sequencing of the acts, (5) th e defendant’s intent, and (6) the number of 16 victims. Herron v. State , 111 N.M. 357, 361, 805 P.2d 624, 628 (1991). 17 Defendant was convicted of two counts of battery for striking Pallulat in the 18 chest and spraying her with mace. Several factors wei gh in favor of Defendant’s 1914 argument. The acts occurred in quick succession, and there was only one victim. The 1 two actions were close together in space and time. However, wehold the actions are 2 sufficiently separate and distinct in nature to constitute separate crimes. See State v. 3 Bernal , 2006-NMSC-050, ¶¶ 20-21, 140 N.M. 644, 146 P.3d 289 (holding that 4 separate robberies occurred where there were two victims who su ffered separate and 5 distinct harms despite the defendant’s single intent); see also Stewart , 2005-NMCA6 126, ¶¶ 15-20 (upholding convictions for two separate counts of battery against a 7 household member where there was little signifi cant change in location, but an assault 8 on another individual was an intervening ev ent such that the jury could have found 9 independent factual bases for the charged offenses). 10 The testimony showed Defendant clearly intended to hit Pallulat and also to 11 spray her with mace. Pallulat suffered two distinct harm s. When she was punched in 12 the chest, she fell to the ground. When sh e was sprayed with mace, her eyes and face 13 burned. In this case, Defendant’s use of a weapon—mace—constitutes an intervening 14 event. Although Pallulat did not move significantly, she did fall to the ground. While 15 this Court has held even prolonged batteries to be one continuous act, i.e. , State v. 16 Mares , 112 N.M. 193, 199-200, 812 P.2d 1341, 1347- 48 (Ct. App. 1991), Defendant’s 17 use of mace renders the second battery su fficiently distinct to support separate 18 convictions. See State v. Cooper , 1997-NMSC-058, ¶¶ 61-62, 124 N.M. 277, 949 1915 P.2d 660 (holding that the use of different weapons supports a finding of discrete 1 acts). We affirm the convictions fo r two separate charges of battery. 2 V. CONCLUSION 3 Based on the foregoing, we reverse Defe ndant’s convictions for conspiracy to 4 commit armed robbery and tampering with ev idence; affirm the convictions for two 5 counts of battery, second-degree murder, and armed robbery; and remand to the 6 district court for resentencing. 7 IT IS SO ORDERED. 8

_______________________________ 9 ROBERT E. ROBLES, Judge 10

WE CONCUR: 11

______________________________ 12 JONATHAN B. SUTIN, Judge 13

______________________________ 14 RODERICK T. KENNEDY, Judge 15