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 Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions.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-generated 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: May 19, 2016 2

STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4

v. NO. S-1-SC-35356 5 ROBERT EARLEY, 6 Defendant-Appellant. 7

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Jane Shuler Gray, District Judge 9 Robert E. Tangora, L.L.C. 10 Robert E. Tangora 11 Santa Fe, NM 12 for Appellant 13 Hector H. Balderas, Attorney General 14 Steven H. Johnston, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 172 DECISION 1 DANIELS, Chief Justice. 2 {1} Robert Glenn Earley, convicted by a jury of first-degree murder, tampering with 3 evidence, and kidnapping, raises eight issues on direct appeal to this Court: (1) the 4 trial court erred by denying De fendant’s motion to suppress three statements he made 5 to law enforcement officers, (2) the trial court erred by denying Defendant’s motion 6 for a continuance, (3) the trial court erred by admitting graphic crime scene and 7 autopsy photographs, (4) the trial court erred by limiting testimony of Defendant’s 8 pharmacology expert, (5) the trial court erre d in disallowing Defendant to recall his 9 pharmacology expert to answer the State’s rebuttal testimony, (6) th e trial court erred 10 by excluding testimony of Defendant’s mother about statements the victim Emily 11 Lambert made to her, (7) evidence to support the jury’s verdicts was insufficient, and 12 (8) the trial court’s errors taken togeth er constitute cumulative error. We affirm 13 Defendant’s convictions by nonprecedential decision. See Rule 12-405(B) (“The 14 appellate court may dispose of a case by nonprecedential order, decision or 15 memorandum opinion . . . [where t]he issues presented have been previously decided 16 . . . [, t]he presence or absence of substantial evidence disposes of the issue . . . [, or 173 t]he issues presented are manifestly without merit.”). 1 I. BACKGROUND 2 {2} Late on March 1, 2014, De fendant and his girlfriend Emily Lambert began to 3 argue while drinking together at the BlueCactus Lounge located within the Stevens 4 Inn in Carlsbad, New Mexico. Lambert left the lounge angry but later returned to the 5 hotel for her belongings and announced thatshe was leaving Defendant. As a result, 6 the two started to fight again. During the argument, Lambert bit Defendant on the arm, 7 and Defendant responded by hitting her. He then proceed ed to kick Lambert several 8 times in the face and head until she was “knocked out” but still breathing. 9 {3} Defendant placed the unconscious Lambert in the car and drove her behind a 10 private residence 11.7 miles from the hotel on Potash Mines Road. Lambert was still 11 unconscious when Defendant grabbed an ai r pump from the vehicle and hit her with 12 it multiple times. He then wrapped a rope around Lambert’s neck, attached the other 13 end of the rope to his car, and dragged her behind a barn to remove her from the area 14 in back of the house where she might be seen. Because Lambert “looked pretty bad” 15 and appeared not to be breathing, Defendant “hit her with[a] bar a couple of times” 16 to ensure she would not suffer or “freeze to death.” Defendant then left Lambert’s 17 body and returned to his hotel room to sleep , disposing of the bar on his return route. 18 {4} When Defendant awoke in the morning on March 2, 2014, he returned to the 194 Potash Mines Road property to see if Lambert was moving, and she was not. He 1 disposed of the rope “to cover [his] track s.” Later that morning, Defendant called 911 2 and reported Lambert missing, explaining to the dispatcher that Lambert never 3 returned to the Stevens Inn after telli ng Defendant she was leaving the bar with 4 another man. 5 A. The Police Investigations 6 {5} Officer David Williams responded to th e 911 call on that same day in the 7 afternoon and met with Defendant outside his Stevens Inn hotel room to take a 8 missing persons report. Defendant recounted that he and Lambert had a verbal 9 altercation on the prior night at the hotellounge and that Lambert became upset and 10 left with another man. During the interv iew, Officer Williams did not observe any 11 signs that Defendant was intoxicated. The o fficer returned to the Stevens Inn on the 12 next day to follow up on the case and learned that Lambert had not returned. 13 {6} On the same morning, Detective Robert Scott Naylor and Sergeant Blaine 14 Rennie of the Carlsbad Police Department we re assigned to investigate the case. The 15 two officers met with Defendant, as the orig inal reporting party, at his hotel room. 16 Once again, Defendant claimed that he had an argument with his girlfriend and that 17 she left the hotel bar with another man and never returned. After speaking with 18 Defendant, the officers requested consent to search Defendant’s vehicle that was 195 parked by an oil rig on a county road approxi mately thirty miles from the Stevens Inn. 1 Defendant consented to the search and pr ovided officers with his vehicle key and 2 directions to the vehicle. 3 {7} Upon returning to the hotel, the officer s requested that Defendant accompany 4 them to make a recorded statement at th e police station, and he agreed. Officers 5 transported Defendant, unrestrained, to the station because he did not have a car. At 6 the police station, Defendant provided Renni e with a recorded statement, reiterating 7 that he and Lambert argued at the hotel bar and that she left, but this time he said that 8 he did not actually see her leave with another man. Rennie asked Defendant if he 9 would be willing to take a polygraph examination on the following day, and again 10 Defendant agreed. When the interview conc luded, an officer drove Defendant back 11 to the Stevens Inn. Officers conducted surv eillance of Defendant ’s room overnight. 12 Neither officer identified signs of impairme nt in Defendant throughout their first day 13 of encounters with him. 14 {8} On the following morning, March 4, 2014, Defendant contacted Rennie to 15 request a ride to the police station to participate in the polygraph exam. At 16 approximately 10:00 a.m., Tim Argo of the Artesia Police Department administered 17 a polygraph exam to Defendant at th e Carlsbad Police Department. Before 18 commencing, Argo reviewed a “Consent for Polygraph Examination” form with 196 Defendant. In addition to a waiver of liability for the exam itself, the form also 1 included an advisement of the polygraph examinee’s Miranda rights. Defendant 2 consented to the polygraph exam and indi cated that he understood his rights and 3 wished to proceed. During an intervie w before the polygr aph exam, Defendant 4 responded in the negative to standard questions regardi ng whether he was under the 5 influence of illicit drugs, alcohol, or prescription medication. Argo did not identify 6 any signs of impairment in Defendant. The exam lasted several hours, at the end of 7 which Argo informed Defendant that he had failed and that Rennie wished to speak 8 with him. 9 {9} After Argo notified Rennie and Naylor that Defendant failed the polygraph 10 exam, the officers gave Defendant a break and lunch, and then both officers returned 11 to interview him. The officer s did not repeat Defendant’s Mirandarights prior to 12 conducting the postpolygraph-exam interv iew. During this interview, Defendant 13 provided a second version of events. This time he claimed that when Lambert left the 14 bar she got into another man’s truck and that Defendant fo llowed her and the 15 unidentified man in his own vehicle to a “ housing . . . area.” Defendant said that when 16 he pulled up behind the other vehicle, the man came after him with a pipe and 17 Lambert jumped in between the two men, wh ich caused the man to hit her in the head 18 with the pipe. Defendant stated that he got back into his vehicle and fled. When the 197 interview ceased, Defe ndant directed Rennie, Naylor, and another officer to the 1 housing location on Potash Mines Road. 2 {10} At the residence, Defendant waited in the driveway, outside the patrol unit, 3 while the three officers proceeded further onto the property and discovered Lambert’s 4 body. Rennie walked back to Defendant and advised him that the officers found 5 Lambert. While the other officers secure d the crime scene, Naylor transported 6 Defendant to the Carlsbad Police Stati on for additional questioning. Prior to 7 conducting the brief interview, Nayl or again read Defendant his Mirandarights, and 8 Defendant acknowledged that he understood those rights and agreed to speak with 9 Naylor. Defendant repeated the version of events provided in the interview conducted 10 in the early afternoon after the polygraph ex am. The interview began at 5:49 p.m. and 11 lasted twenty-six minutes. 12 {11} A short time later, at approximately 7:15 p.m., Detective Sergeant Allen 13 Sanchez entered the interview room to further question Defe ndant. Sanchez did not 14 readvise Defendant of his Mirandarights prior to conducting the interview, though 15 he was aware an officer had provided Defendant with the Mirandawarnings earlier. 16 Sanchez did not observe any signs that De fendant was impaired during the course of 17 conducting the interview. This time, Defendant confessed to a third version of events 18 where during a struggle with Lambert he ki cked her in the headmultiple times until 198 she was unconscious, took her to the reside nce on Potash Mines Road, beat her with 1 an air pump when she regained consciousness, dragged her body, and left her. 2 Defendant then guided Sanch ez and Rennie to locations wh ere he had placed evidence 3 of the crime. He first directed the offi cers to the rope and a bag with Lambert’s 4 clothes. However, because hewas unable to lead officers to the air pump that evening, 5 Defendant volunteered to help the officers locate it on the next day. 6 {12} On the following morning, March 5, 2014, Sanchez retrie ved Defendant from 7 the jail, and they located the air pump th at matched the description Defendant had 8 provided. On the way back to the jail, Defendant spontan eously began giving Sanchez 9 new information about the crime. Sanchez allowed him to speak but did not ask any 10 questions until they returned to the jail. Outside the jail, Sanchez asked for 11 Defendant’s permission to record a statement pertaining to the new information. 12 Sanchez again advised Defendant of his Mirandarights, and Defendant responded that 13 he understood them. Defendantexpounded on details he had previously provided and 14 admitted that Lambert never regained consciousness at the Potash Mines Road 15 property, contrary to the statement he madeon the previous day that he beat Lambert 16 again at the property when she regained consciousness and they resumed fighting. 17 B. Court Proceedings 18 {13} On March 14, 2014, the State charged Defe ndant with first-degree murder, first- 199 degree kidnapping, and tampering with eviden ce. At the conclusion of a nearly three1 week jury trial, Defendant was convictedof all three charges. The jury also 2 unanimously found that Defendant murdered Lambert with the intent to kill in the 3 commission of the kidnapping, an aggravating circumstance for sentencing purposes 4 under NMSA 1978, Section 31-20A-5(B) ( 1981). Defendant was sentenced to life 5 imprisonment without the possibility of parole. He now appeals his convictions 6 directly to this Court pursuant to Article VI, Section 2 of the New Mexico 7 Constitution, which states that “[a]ppeals from a judgment of the district court 8 imposing a sentence of death or life impris onment shall be taken directly to the 9 supreme court.” The facts relevant to the trial court’s rulings challenged on appeal are 10 developed further below. 11 II. DISCUSSION 12 A. Defendant’s Motion to Suppress His Statements to Law Enforcement 13 Officials 14 {14} Prior to trial, Defendant moved to suppress one postpolygraph-exam statement 15 he made to law enforcement on March 4, 2014, as evidence obtained in violation of 16 Miranda v. Arizona , 384 U.S. 436 (1966), and two additional statements made on the 17 same date as fruits of the first unlawfully obtained statement. See State v. King , 2013- 18 NMSC-014, ¶ 3, 300 P.3d 732 (“In Miranda , the United States Supreme Court 1910 articulated a warning that law enforcement must give to a suspect before the suspect 1 can be subjected to a custodial interrogation without compromising the suspect’s 2 privilege against self-incrimination.” (citing Miranda , 384 U.S. 478-79)). Defendant 3 primarily contended that he did not volunt arily, knowingly, and intelligently waive his 4 Miranda rights prior to making his first pos tpolygraph-exam statement “because he 5 was coming out from under the influence of alcohol” after “four days of continuous 6 drinking.” Following a suppression hearing, th e trial court disagreed and denied the 7 motion, finding that Defendant was not incustody until officers discovered Lambert’s 8 body on the afternoon of March 4, 2014, and wa s not impaired when speaking to law 9 enforcement during periods of custodial interrogation. 10 {15} On appeal, Defendant abandons his ar gument that the first statement was 11 involuntary based on intoxication. See State v. Correa , 2009-NMSC-051, ¶ 31, 147 12 N.M. 291, 222 P.3d 1 (“On appeal, issues notbriefed are considered abandoned.”). 13 Rather, Defendant asserts the trial court erred because the first interview was custodial 14 and unwarned, rendering the remaining statements inadmissible as fruits of the 15 poisonous tree. To support his contention that he was in custody for Miranda 16 purposes, Defendant notes that he was interv iewed at the police st ation and “badgered 17 by his interrogators” such that “no reas onable person would feel free to leave.” 18 Defendant does not challenge other statemen ts that he made to law enforcement on 1911 March 2, 3, or 5, 2014. 1 {16} “In reviewing a trial court’s denial of a motion to suppress, we observe the 2 distinction between factual determinations which are subject to a substantial evidence 3 standard of review and application of law to the facts[,] which is subject to de novo 4 review.” State v. Nieto , 2000-NMSC-031, ¶ 19, 129 N.M . 688, 12 P.3d 442 (alteration 5 in original) (internal quotation marks and citation omitted). Determining whether a 6 police interview constitutes custodial interrogation for Mirandapurposes requires the 7 application of law to facts. Id. We therefore review the trial court’s determination de 8 novo, while giving deference to the court’s factual findings. Id. 9 1. March 4, 2014, postpolygraph-exam statement to Sergeant Rennie and 10 Detective Naylor 11 {17} At issue is whether Defendant was in custody, thereby requiring a Miranda 12 advisement, when Sergeant Rennie and Detective Naylor interviewed him following 13 the failed polygraph exam. “A suspect’s Mirandarights attach only when he is the 14 subject of a ‘custodial interrogation.’” Nieto , 2000-NMSC-031, ¶ 20 (citation 15 omitted). “[W]hether or not an interview is custodial depends on whether there was 16 a formal arrest or re straint on freedom of movement of the degree associated with a 17 formal arrest.” Id. (internal quotation marks and citation omitted). “A suspect is also 18 considered in custody if a reasonable person w ould believe that he or she were not free 1912 to leave.” State v. Munoz , 1998-NMSC-048, ¶ 40, 126 N.M. 535, 972 P.2d 847. This 1 is an objective determination, and “the actual subjective beliefs of the defendant and 2 the interviewing officer on whether the defe ndant was free to leave are irrelevant.” Id. 3 (internal quotation marks and citation omitted). 4 {18} In Nieto this Court determined that offi cers were not constitutionally required 5 to advise the defendant of his Mirandarights prior to questioning in a murder case. 6 See 2000-NMSC-031, ¶¶ 20-21. Though the de fendant was questioned in the 7 detective’s small office with his back to th e wall, an officer was situated between the 8 defendant and the doorway, and the office door was closed, the Court determined that 9 these factors alone did not indicate that th e “[d]efendant’s free dom of movement was 10 restricted to an extent consistent with a formal arrest.” Id. ¶ 21. Rather, those facts 11 combined with the trial court’s findings that the defendant agreed to accompany 12 officers to the police station when asked, th at he was free to leave or terminate the 13 interview, and that he was provided with tr ansportation to and from the police station 14 were “consistent with routine, non-custodial police questioning.” Id. As a result, this 15 Court affirmed the trial court’s ruling th at the interview was noncustodial and that 16 Mirandawarnings were unnecessary. See id. 17 {19} In the present case, a number of facts could support Defendant’s contention that 18 he was in custody during the postpolygr aph-exam interview: Defendant was 1913 questioned at the police station, the interv iew lasted several hour s, and Defendant was 1 escorted by an officer at all times while at the police station. See Munoz , 1998-NMSC2 048, ¶¶ 42-43 (recognizing that the location and duration of the interrogation, as well 3 as the fact that the defendant was the focu s of the police investigation, could support 4 a conclusion that the defendant was in cu stody but concluding that additional evidence 5 in the record failed to demonstrate the defe ndant’s freedom as restricted in any way 6 associated with formal arrest to constitute custody for Mirandapurposes). 7 {20} In this case as well, additional eviden ce presented at the suppression hearing 8 supports the trial court’s ultimate determin ation that Defendant was not in custody 9 during the postpolygraph-exam interview. Defendant initiated c ontact with police 10 officers by filing a missing persons report. Officers then asked Defendant to 11 participate in a polygraph exam at the police station, and he agreed to do so. On the 12 morning of the exam, Defendant called Renni e’s cell phone to request a ride to the 13 police station for the exam because he did not have a vehicle, and the officer 14 responded by providing trans portation for Defendant. During the postpolygraph-exam 15 interview, officers provided Defendant withfood, and Defendant took cigarette and 16 bathroom breaks at will. An officer escorted Defendant during these breaks, in part 17 to open the hallway door that automatically locked upon entering the bathroom. 18 Officers did not block access to the door of the interview room. Rennie and Naylor 1914 testified that Defendant was free to l eave at the time of the postpolygraph-exam 1 interview. Defendant was not physically restrained at any time during the interview, 2 his freedom of movement was not restrictedin any significant way, and a review of 3 the record does not reveal evidence that the officers’ interview method or the 4 interview environment was unduly coercive. See State v. Chamberlain , 1991-NMSC5 094, ¶ 17, 112 N.M. 723, 819 P.2d 673 (noting that Mirandawarnings are not 6 required “every time the police interv iew a suspect, even though there may be 7 coercive aspects to the ques tioning; a coercive environment requiring warnings occurs 8 only where there has been su ch a restriction on a person’s freedom as to render him 9 in custody .” (emphasis added) (internal quot ation marks and citation omitted)); State 10 v. Swise , 1983-NMSC-071, ¶ 12, 100 N.M. 256, 669 P.2d 732 (concluding that the 11 defendant was not in custody for Miranda purposes and noting that evidence 12 “reflect[ed] no coercive atmosphere against which Miranda was developed to 13 protect”). As in Nieto , these facts are indicative of routine, noncustodial police 14 questioning. We affirm the trial court’s ruling that the May 4, 2014, postpolygraph15 exam interview at the police station was noncustodial and that the officers were not 16 constitutionally required to provide Defendant with Mirandawarnings. 17 2. March 4, 2014, statements to Det ective Naylor and Detective Sanchez 18 {21} Defendant claims the statements he ma de to Detective Naylor and Detective 1915 Sanchez later on March 4, 2014, following the discovery of Lambert’s body at the 1 Potash Mines Road property must be suppressed as fruits of the first postpolygraph2 exam statement he alleges to have beenunlawfully procured. Because we conclude 3 that the trial court did not err by admitting Defendant’s firs t postpolygraph-exam 4 statement, Defendant’s argument fails. Moreover, Naylor again read Defendant his 5 Mirandarights prior to questioning him at 5:49 p.m. Defendant acknowledged that 6 he understood his rights and agreed to speak with Naylor. A short time later, Detective 7 Sanchez entered the interview room to continue questioning Defendant on the same 8 matter, but he did not readvise Defendant of his Mirandarights. 9 {22} “A confession is not necessarily invalid because [Miranda ] warnings . . . were 10 not given in full each time the interrogation process was resumed after interruption.” 11 State v. Gilbert ( Gilbert I ), 1982-NMSC-095, ¶ 12, 98 N.M. 530, 650 P.2d 814. In 12 Gilbert I, this Court held that officers were not required to provide the defendant with 13 “a second fresh and full Mirandawarning” prior to a second interrogation when he 14 had been advised of these rights twice th at same day, “as recently as four hours 15 before,” and when he expressed that he understood those rights. Id. 16 {23} In this case, Defendant’s statements to Sanchez a short time after he was 17 questioned by Naylor were not rendere d inadmissible by Sanchez’s failure to 18 separately advise Defendant of his Mirandarights before continuing the questioning. 1916 Defendant already had been advised of his rights prior to the polygraph exam at 1 approximately 10:00 a.m. and again whenNaylor interviewed him at 5:49 p.m. 2 Following each set of warnings, Defendant i ndicated that he understood his rights and 3 wished to proceed. After Naylor complete d his brief twenty-six minute interview, 4 Sanchez resumed questioning an hour later at approximately 7:15 p.m. The character 5 of the interrogation did not change; Sanchez entered the interview room soon after 6 Naylor and questioned Defendant in th e same manner and on the same matter. 7 Accordingly, we conclude that the trial court did not err by admitting Defendant’s 8 March 4, 2014, statements into evidence. 9 B. Defendant’s Motion for a Continuance 10 {24} Defendant claims that the trial court erred by refusing to grant his motion for 11 a continuance. “The grant or denial of a continuance is within the sound discretion of 12 the trial court, and the burden of estab lishing abuse of discretion rests with the 13 defendant.” State v. Salazar , 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135; see 14 also State v. Smith , 1979-NMSC-020, ¶ 13, 92 N.M. 533, 591 P.2d 664 (“The standard 15 of review on a denial for a motion for conti nuance is whether the trial court abused its 16 discretion to the prejudice or injury of the defendant.”). When evaluating a trial court 17 decision granting or denying a motion for continuance we look to a number of factors 18 including 1917 “the length of the requested delay, the likelihood that a delay would 1 accomplish the movant’s objectives, the existence of previous 2 continuances in the same matter, the degree of inconvenience to the 3 parties and the court, the legitimacy of the motives in requesting the 4 delay, the fault of the movant in causing a need for the delay, and the 5 prejudice to the movant in denying the motion.” 6 State v. Gallegos , 2011-NMSC-027, ¶ 66, 149 N.M. 704, 254 P.3d 655 (quoting State 7 v. Torres , 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20). 8 {25} In applying these factors to the present cas e, we conclude thatthe trial court did 9 not abuse its discretion in its ruling on Defendant’s motion for a continuance. On 10 January 29, 2015, Defendant moved to continue the trial then scheduled for March 16, 11 2015. In the motion and at a hearing on the matter, defense counsel requested that the 12 court continue trial to August 2015, noting several reasons for the request including 13 more time to accommodate defense counsel s’ overloaded schedules, more time to 14 allow newly assigned counsel acting as second chair to prepare for trial, more time to 15 ascertain the proper procedures in a case with a potential sentence of life 16 imprisonment without parole, more time to finalize supplemental jury questionnaires, 17 and time to resolve several discovery matters . On appeal, Defendant asserts that the 18 request had a sound basis and posed no inconvenience. De fendant does not articulate 19 the prejudice that resulted from the trial court’s denial of his motion. 20 {26} The record indicates that any concerns pertaining to discovery were resolved 2118 at the hearing on the motion for continuance. At the same hearing, former defense 1 counsel also testified pertaining to case information that she transferred to new 2 counsel when she left the Office of the Pub lic Defender, stating that counsel serving 3 as first chair was originally her second chai r and was at all times privy to case-related 4 information. She stated that the case was on schedule to move to trial when she left 5 on December 26, 2014. The trial court noted it had initially set trial for January 2015 6 and then moved the setting to March 2015 to accommodate a request from defense 7 counsel. The court did not be lieve it had another available setting for a year and 8 expressed concern that Defendant would remain incarcerated during that time. 9 Importantly, the trial court did not wholly deny Defendant’s request but rather granted 10 a partial continuance to acco mmodate defense counsels’ schedules and workloads by 11 moving the trial from the middle of March to th e end of April. In this case, there is no 12 showing that the trial court’s decision prej udiced Defendant, and the record reveals 13 that the trial court did not abuse its discre tion. Accordingly, we uphold the trial court’s 14 ruling. 15 C. Admission of Certain Crime Scene and Autopsy Photographs 16 {27} Defendant asserts that th e trial court improperly ad mitted six graphic autopsy 17 photographs of Lambert, claiming they wereredundant and irrelevant and should have 18 been excluded because th e danger that the photographs would unfairly prejudice 1919 Defendant substantially outweighed their probative value. For similar reasons, 1 Defendant also asserts that the trial c ourt improperly admitted twelve crime scene 2 photographs. 3 {28} “We review a trial court’s exercise of discretion in admitting allegedly 4 prejudicial photographs under an abuse of discretion standard.” State v. Saiz , 2008- 5 NMSC-048, ¶ 53, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State 6 v. Belanger , 2009-NMSC-025, ¶ 36 & n.1, 146 N.M. 357, 210 P.3d 783. “Photographs 7 are relevant and admissible for the purpos e of clarifying and illustrating testimony.” 8 State v. Gilbert ( Gilbert II ), 1983-NMSC-083, ¶ 43, 100 N.M. 392, 671 P.2d 640. 9 “The court may exclude relevant eviden ce if its probative value is substantially 10 outweighed by a danger of . . . unfair prejudice.” Rule 11-403 NMRA. 11 {29} In this case, the contested photographs wererelevant to the State’s case at trial. 12 The physician-employee of the Office of th e Medical Investigator who processed 13 Lambert’s autopsy referred to the photographs in his medical testimony to establish 14 Lambert’s cause and manner of death. Healso relied on photographs showing portions 15 of Lambert’s body with redness in her abrasions to demonstrate that Lambert was still 16 alive when Defendant brought her to the Potash Mines property and dragged her 17 behind the barn. Additionally, the State o ffered the disputed crime scene photographs 18 as relevant to reconstruction of the crime scene, in conjunction with testimony from 1920 the officer who managed the crime scene investigation and reconstruction team. 1 {30} The admitted photographs were not unduly prejudicial to Defendant. The trial 2 court held hearings, outside the jury’s pres ence, on defense counsel’s objections to the 3 photographs. Prior to trial, the State voluntarily cropped certain photographs and 4 omitted others to reduce potentially inflammatory effects. The trial court further 5 requested that the State crop portions of some of the remaining contested photographs 6 and, in one instance, excluded a photograph. The trial court proceeded cautiously by 7 holding hearings outside the jury’s presence and reviewing each disputed photograph 8 both for relevance and for potential prejudice. See Saiz , 2008-NMSC-048, ¶ 54 9 (concluding that a trial court did not abuse its discretion in admitting probative 10 graphic photographs of the victim’s body because the trial judge “proceeded 11 cautiously and prudently” by considering the basis for the Rule 11-403 decision 12 outside the jury’s presence and by carefully selecting some photographs to admit 13 while excluding others). We conclude that the trial court did not abuse its discretion 14 by admitting the contested autopsy and crime scene photographs. 15 D. Limitation on the Testimony of Defendant’s Pharmacology Expert 16 {31} Defendant next contends that the trial court erred in restricting the testimony 17 of defense expert Dr. Jose O. Rivera. Defendant’s entire defense rested on his claim 18 of voluntary intoxication and subsequent inability to form the specific intent required 1921 to sustain a first-degree murder convic tion. Defendant proffered Dr. Rivera’s 1 testimony to demonstrate the effects of al cohol consumption and energy drinks on a 2 person given a number of variables such as person’s “age, weight, speed of drinking, 3 and whether any food was consumed.” Defendant also sought to solicit Dr. Rivera’s 4 opinion, through a series of hypotheticalfact patterns based on the underlying 5 circumstances of this case, regarding Defendant’s possible blood alcohol 6 concentration (BAC) and ability to plan and weigh consequences on the night of the 7 homicide. 8 {32} The day before trial, the State filed a Daubert motion to exclude Dr. Rivera’s 9 testimony in its entirety, arguing in relevant part that Dr. Rivera’s opinions were based 10 on assumptions and insufficient facts and were therefore “speculative and 11 conjectural.” The trial court initially addresse d the matter in a pretrial hearing on April 12 29, 2015, but did not rule at that time, preferring instead to hear from Dr. Rivera 13 himself prior to allowing or limiting his testimony for the jury. Accordingly, prior to 14 Dr. Rivera’s testimony, the trial court qualified him as an expert and found his 15 methodology reliable but expre ssed its concern that the factual foundation for his 16 testimony was highly subjective as to the amount of alcohol Defendant actually 17 consumed. As a result, the trial court limite d Dr. Rivera’s testimony to the effects of 18 alcohol consumption on a hypothetical person of a similar height, weight, and age as 1922 Defendant if that hypothetical person consumed what Defendant claimed he 1 consumed. The trial court limited the State’s rebuttal expert similarly. 2 {33} We review a trial court’s decision to admit or exclude expert testimony for an 3 abuse of discretion. State v. Guerra , 2012-NMSC-014, ¶ 36, 278 P.3d 1031; see also 4 State v. Downey , 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244 (“An abuse 5 of discretion arises when the evidentiary ru ling is clearly contrary to logic and the 6 facts and circumstances of the case.” (internal quotation marks and citation omitted)). 7 We assume without deciding that the trial court properly qualified Dr. Rivera as an 8 expert witness and that the methodology this expert utilized for calculating BAC was 9 valid. The narrow question before this Court, then, is whether the trial court abused 10 its discretion by limiting Dr. Rivera’s tes timony based on concerns that the factual 11 basis for the testimony was deficient as to what Defendant himself ingested on the 12 night in question. 13 {34} Rule 11-702 NMRA governs the admission of expert testimony or other 14 scientific evidence. “[F]or scientific ev idence to be admissible under Rule 11-702, the 15 reasoning or methodology underlying the tes timony [must not only be] scientifically 16 valid, it also must be properly

. . . applied to the facts in issue .” Downey , 2008- 17 NMSC-061, ¶ 30 (second alterati on in original) (internal quotation marks and citation 18 omitted). “Expert testimony may be received if, and only if, the expert possesses such 1923 facts as would enable him to expre ss a reasonably accurate conclusion as 1 distinguished from mere conjecture.” Id. ¶ 32 (internal quotati on marks and citation 2 omitted). “Experts may, and often do, base their opinions upon factual assumptions, 3 but those assumptions in turn must fi nd evidentiary foundation in the record.” Id. ¶ 34. 4 {35} In Downey , this Court concluded that the trial court improperly admitted the 5 state’s expert testimony utilizing retrograde extrapolation because the extrapolation 6 was “predicated on factual assumptions unsupported by the record.” Id. ¶¶ 1, 13 7 (“[R]etrograde extrapolation . . . calculate s an individual’s prior BAC level on the 8 basis of a subsequently administered BAC test.”). The state in that case failed to 9 produce evidence, even circumstantial evid ence, regarding when the defendant last 10 consumed alcohol or how much alcoholthe defendant consumed, rendering the 11 expert’s underlying assump tions “mere guesswork” and the conclusions “mere 12 conjecture.” Id. ¶¶ 34, 36. 13 {36} In contrast, this Court determined in State v. Hugheythat the expert witness 14 possessed sufficient facts in support of the conclusion that the defendant was at her 15 peak alcohol level at the time the accident occurred to then accurately apply retrograde 16 extrapolation. See 2007-NMSC-036, ¶ 15, 142 N.M. 83, 163 P.3d 470; see also 17 Downey , 2008-NMSC-061, ¶ 37 (distinguishing Hughey ). The expert testified about 18 the generally accepted time for an individual to reach a peak alcohol level and then, 1924 “working from the assumption that [the d] efendant stopped drinking at 8:30 p.m., as 1 she told police,” concluded as to when the defendant likely reached her peak alcohol 2 level. Hughey , 2007-NMSC-036, ¶ 15. 3 {37} In this case, Defendant and the Stat e presented conflicting circumstantial 4 evidence surrounding Defendant’s alcohol consumption and level of intoxication. The 5 evidence included witness testimony from employees and patrons of the Blue Cactus 6 Lounge, officers who intervie wed and interacted with Defendant, and Defendant’s 7 own videotaped statements. The parties also stipulated to the admission of restaurant 8 receipts detailing alcohol Defendant and Lambert purchased on the night of the 9 homicide, and the State introduced recei pts similarly detailing alcohol purchased 10 specifically from the Blue Cactus Lounge. Dr . Rivera testified that he reviewed 11 transcripts and videos as the basis fo r his expert opinion testimony but did not 12 indicate, nor does the recordshow, that he examined or interviewed Defendant, 13 reviewed Defendant’s history of alcoholuse, or reviewed Defendant’s medical 14 records. Unlike in Downeyand Hughey , here there was no BAC determination for 15 Defendant at any time from wh ich an expert could extrapolate a more accurate BAC 16 estimate pertinent to the time the homicide occurred. 17 {38} Given that Dr. Rivera, like the expert in Downey , did not have the facts 18 necessary to speak specifically to Defendant’s level of intoxication on the night of the 1925 homicide, the trial court did not abuse its discretion in limiting his testimony to the 1 effects of alcohol on a hypothetical person bearing the same characteristics as 2 Defendant under the circumstances of this cas e. To be certain, the trial court could 3 have allowed Dr. Rivera to testify, as the expert in Hugheydid, that he was working 4 from the assumption that the facts were as Defendant reported them. Nevertheless, 5 through Dr. Rivera’s testimony, Defendant wa s able to present the same information: 6 that if a male sharing Defendant’s char acteristics consumed the number and type of 7 drinks Defendant claimed he consumed over a twelve-hour period, he would have a 8 BAC of at least 0.35 milligrams in 100 milliliters of blood at the time of the murder. 9 Dr. Rivera opined that at that level, sucha person would be se verely impaired and 10 unable to plan and properly weigh the consequences of his actions. Defendant does 11 not state how he was prejudiced by the hypothetical framing of the testimony under 12 an assumption of the facts as Defendant perceived them, nor does the record reflect 13 that Defendant was prejudiced in any way by the trial court’s ru ling. Given defense 14 counsel’s statement in opening argument th at Dr. Rivera would testify about the 15 effects of alcohol on a “person who has the height and weight of Robert Earley” and 16 the evidence both parties presented to th e jury throughout the trial pertaining to 17 Defendant’s alcohol us e and consumption, a reasonable jury could easily make the 18 inference from the hypothetical person to Defe ndant. Accordingly, the trial court did 1926 not abuse its discretion in limiting Dr. Rivera’s testimony. 1 E. Denial of Defendant’s Motion to Allow Testimony in Answer to the State’s 2 Rebuttal Testimony 3 {39} “[W]hat shall be permitted to go to the jury as rebuttal testimony is a matter 4 entirely within the discretion of the trial court, and this discretion will not be disturbed 5 except for gross abuse.” State v. Johnson , 1983-NMSC-043, ¶ 27, 99 N.M. 682, 662 6 P.2d 1349 (alteration in original) (internal quotation marks and citation omitted). A 7 review of the record indicates that the trial court did not abuse its discretion in 8 disallowing Defendant from recalling Dr. Rivera at the conclusion of the rebuttal 9 testimony of State expert Dr. Hwang. 10 {40} Defendant sought to answer the rebuttal with expert testimony to challenge the 11 narrow issue of the rate of alcohol me tabolism Dr. Hwang chose to use in his 12 calculations. Prior to Dr. Rivera’s testim ony, Defendant learned of the difference in 13 the two experts’ opinions regarding the rate at which the body metabolizes alcohol. 14 The trial court therefore allowed Dr. Rivera to testify in the case in chief that the 15 metabolism rate Dr. Hwang utilized was unsupported by the scientific literature, 16 leaving open the possibility that if Dr. Hwang presented unexpected testimony, 17 defense counsel could addre ss the matter at that time. Dr. Rivera did testify that 18 experts in his field would not use the maximum metabolism rate that Dr. Hwang used 1927 as a standard, a rate he char acterized as “extreme.” In addition, defense counsel cross1 examined Dr. Hwang on this issue. Conse quently, Defendant was not denied the 2 opportunity to introduce Dr. Rivera’s tes timony, and any further testimony in answer 3 to the State’s rebuttal would have been merely confirmatory. See State v. Doe , 1983- 4 NMCA-012, ¶¶ 10-11, 99 N.M. 456, 659 P.2d 908 (“If evidence sought to be 5 introduced [in answer to the State’s rebuttal witness] is . . . merely cumulative or 6 confirmatory, its admission is within the di scretion of the trial court.”). We hold the 7 trial court properly exercised its discretion. 8 F. Exclusion of Testimony Concernin g Lambert’s Statement to Defendant’s 9 Mother 10 {41} Defendant sought to introduce testimony of his mother, Donna Earley, that 11 Lambert previously told her that Lambert and her ex-husband “had frequent domestic 12 issues that turned physical” and that she was proud of “putt[ing] [him] down on the 13 ground.” Defendant claimed Lambert’s comme nts were relevant and admissible to 14 illustrate Defendant’s state of mind on the night Lambert was murdered. Defendant 15 further argued that the State had placed Lambert’s character into evidence, thereby 16 opening the door for Defendant to counter thatinformation. He claimed the statements 17 were admissible under an exception to the hearsay rule as statements against 18 Lambert’s interest. The trial court disagreed and prohibited Ms. Earley’s testimony 1928 about Lambert’s statements as impermissible hearsay and irrelevant to Defendant’s 1 claims that he lacked the specifi c intent for first-degree murder. 2 {42} We examine the admission or exclusion of evidence for abuse of discretion. See 3 State v. Flores , 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641. Pursuant to Rule 4 11-404(A)(1) NMRA, generally “[e]vidence of a person’s character or character trait 5 is not admissible to prove that on a partic ular occasion the person acted in accordance 6 with the character or trait.” In criminal cases, however, anexception exists that allows 7 a defendant to offer “evidence of a victim’s pertinent trait” for the purpose of proving 8 that the victim acted in conformity with that trait on a particul ar occasion. Rule 11- 9 404(A)(2)(b). Rule 11-405(B) NMRA concerns methods for proving character and 10 provides that in cases in which “a person’s ch aracter or character tr ait is an essential 11 element of a charge, claim, or defense, th e character or trait may also be proved by 12 relevant specific instances of [the person’s] conduct,” in addition to proof in the form 13 of reputation or opinion testimony. For exampl e, “[w]hen a defendant is claiming self14 defense, his or her apprehension of the vic tim is an essential element of his or her 15 claim,” and consequently, “under Rule 11- 405(B), evidence of specific instances of 16 the victim’s prior violent conduct of whic h the defendant was aware may be admitted 17 to show the defendant’s fear of the victim.” State v. Armendariz , 2006-NMSC-036, 18 ¶ 17, 140 N.M. 182, 141 P.3d 526, overruled on other grounds by State v. Swick , 1929 2012-NMSC-018, ¶ 31, 279 P.3d 747. Here, Defendant has not raised a theory of self1 defense, and Lambert’s character is not anessential element of Defendant’s voluntary2 intoxication defense. The trial court co rrectly ruled that testimony pertaining to 3 Lambert’s statement was irrele vant to Defendant’s claims. 4 {43} Moreover, Lambert’s statement to Ms. Earley is inadmissible hearsay. Hearsay 5 is an out-of-court statement that is later “offer[ed] in evidence to prove the truth of the 6 matter asserted.” Rule 11-801(C) NMRA. “The hearsay rule excludes from admissible 7 evidence statements that are inherently untrustworthy because of the risk of 8 misperception, failed memory, insi ncerity, ambiguity, and the like.” State v. Mendez , 9 2010-NMSC-044, ¶ 19, 148 N.M. 761, 242 P. 3d 328. Nevertheless, our rules of 10 evidence provide exceptions to th e inadmissibility of hearsay. See Rule 11-802 11 NMRA. One such exception is Rule 11-804( B)(3) NMRA, which provides that the 12 rule against hearsay does not exclude a statement against the declarant’s interest if the 13 declarant is unavailable. A statement against interest is defined as a “statement . . . 14 [that] was so contrary to the declarant’s proprietary or pecuniary interest or [that] had 15 so great a tendency to invalidate the decl arant’s claim against someone else or to 16 expose the declarant to civ il or criminal liability.” Id. This exception has no 17 application here. There is no evidence thatLambert’s alleged statement was against 18 any proprietary or pecuniary interest, nor would the statement have exposed Lambert 1930 to civil or criminal liability. Importantly, the record is devoid of “circumstantial 1 guarantees of reliability sufficient to make the statement[] trustworthy and 2 admissible.” Mendez , 2010-NMSC-044, ¶ 19. Consistent with Rule 11-804(B)(3), the 3 trial court properly rejected Defendant’s argument. 4 G. Sufficiency of Evidence to Support Defendant’s Convictions 5 {44} In reviewing the sufficiency of the evid ence, we consider the evidence “in the 6 light most favorable to the State, resolv ing all conflicts and making all permissible 7 inferences in favor of the jury’s verdict.” Id. ¶ 42 (internal quotation marks and 8 citation omitted). The test for sufficiency of the evidence is whether substantial 9 evidence exists that would allow a rational jury to find each element of the crime 10 established beyond a reasonable doubt. See Id. 11 1. Sufficient evidence supports Defendant’s deliberate intent to commit first12 degree murder 13 {45} Defendant argues that this Court should reverse his conviction for first-degree 14 murder because there was in sufficient evidence to support deliberate intent to commit 15 murder as opposed to the killing being the re sult of a rash impulse. To establish first16 degree deliberate murder, the State was required to prove beyond a reasonable doubt 17 that Defendant killed Lambert with the delib erate intention to take away her life and 18 that he was not intoxicated to the extent of being incapable of forming this intent. See 1931 NMSA 1978, § 30-2-1(A)(1) (1994) (“Murder in the first degree is the killing of one 1 human being by another . . . by any kind of willful, deliberate and premeditated 2 killing.”); UJI 14-201 NMRA (“The word delib erate means arrived at or determined 3 upon as a result of careful thought and the weighing of the consideration for and 4 against the proposed course of action,” and “a deliberate intention to kill” requires a 5 “calculated judgment” to kill, although it “m ay be arrived at in a short period of 6 time.”). “[I]f the State merely proves thatthe accused acted rashly or impulsively, 7 rather than deliberately, and if the accused acted intentionally and without justification 8 or provocation, then the facts would only support second-degree murder.” State v. 9 Adonis , 2008-NMSC-059, ¶ 16, 145 N.M. 102, 194 P.3d 717. 10 {46} Defendant relies on State v. Garcia , 1992-NMSC-048, 114 N.M. 269, 837 P.2d 11 862, to argue there was insufficient eviden ce to prove the requisite mens rea beyond 12 a reasonable doubt to sustain a conviction fo r deliberate-intent, first-degree murder. 13 In Garcia , this Court held that not only was evidence insufficient to support an 14 inference of deliberate intention in the stabbing death of the victim but that “[t]here 15 was no evidence to support the jury’s conclu sion that . . . [the defendant] decided to 16 stab [the victim] as a result of careful thought; that he weighed the considerations for 17 and against his proposed course of action; and that he weighed and considered the 18 question of killing and his reasons for and against this choice.” Id. ¶ 28. The state’s 1932 evidence demonstrating that the defendant and the victim argue d, reconciled, and 1 argued again, ultimately resulting in the defe ndant stabbing the victim to death, was 2 “consistent with a rash and impulsive killing” rather than a deliberate killing. See id. 3 {47} The circumstances of this case ar e vastly distinct from those of Garcia , and this 4 Court has concluded there was sufficient evid ence for a rational jury to infer deliberate 5 intent under factual circumstances similar to those here. For example, in State v. 6 Duran , this Court concluded that a reasonable jury could infer deliberate intent based 7 on evidence of a prolonged struggle, the larg e number of the victim’s wounds, and the 8 defendant’s own statements. See 2006-NMSC-035, ¶¶ 9, 11, 140 N.M. 94, 140 P.2d 9 515; see also State v. Astorga , 2015-NMSC-007, ¶ 65, 343 P.3d 1245 (concluding that 10 the jury could have found that evidence of the defendant’s actions, including his own 11 statements after the killing, aided in proving deliberate intention); Flores , 2010- 12 NMSC-002, ¶ 22 (concluding that there was sufficient evidence of deliberate intent 13 where the defendant stabbed the victim w ith a screwdriver “so many times that it 14 evidenced an effort at overkill”); State v. Cunningham , 2000-NMSC-009, ¶ 28, 128 15 N.M. 711, 998 P.3d 176 (concluding that eviden ce of the defendant returning to his 16 vehicle to fire the fatal shot when the vi ctim was incapacitated and defenseless could 17 support a reasonable juror’s inference of deliberation). Further, “[n]ot only may 18 Defendant’s acts before and during the crime provide evidence of intent, [but] 1933 evidence of flight or an attempt to d eceive the police may prove consciousness of 1 guilt.” Flores , 2010-NMSC-002, ¶ 23 (internal quotation marks and citation omitted). 2 {48} In this case, the State presented substan tial evidence at trial to raise a reasonable 3 inference of deliberate intent. The jury c ould have found that De fendant (1) was upset 4 by Lambert’s threats to leave following their argument, (2) rendered Lambert 5 unconscious with multiple kicks to the h ead, (3) placed Lambert, unconscious and 6 defenseless but still alive, in the vehicle and drove her to the more remote location 7 11.7 miles from the hotel to finish killing her, (4) beat Lambert severely with an air 8 pump causing the plastic to splinter and break, (5) affixed one end of a rope to his car 9 and another to Lambert’s neck to drag her out of sight behi nd the barn, (6) then 10 proceeded, by his own admission, to beat Lambert to death w ith a “bar,” (7) left the 11 scene of the incident, (8) began getting ri d of the evidence as he drove away, (9) 12 returned the following morning to check on Lambert’s body, and (10) tried to deceive 13 authorities by filing a missing persons report and then providing several different 14 stories about what happened on the night in question. 15 {49} The complexity of these extended activ ities also belies Defe ndant’s contention 16 that he could not have formed specific in tent due to voluntary intoxication. The jury 17 also heard evidence from both parties regarding Defendant’s leve l of intoxication on 18 the night of the homicide and was free to re ject Defendant’s version of the facts. See 1934 State v. Sutphin , 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that 1 “[t]he fact finder may reject defendant’s version of the incident”). Reviewing the 2 evidence in the light most favorable to th e guilty verdict, we hold that there was 3 sufficient evidence to support the jury’s conclusion that Defe ndant killed Lambert 4 with the requisite deliberate intent to support a first-degree murder conviction. 5 2. Sufficient evidence supports Defendant’s kidnapping conviction 6 {50} To support a kidnapping conviction under New Mexico law, the State must 7 prove an “unlawful taking, re straining, transporting or confining of a person by force, 8 intimidation or deception, with intent . . . to inflict death, physical injury or a sexual 9 offense.” NMSA 1978, § 30-4-1(A)(4) (2003); see also UJI 14-403 NMRA. Relying 10

on State v. Jacobs , 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, for the proposition 11 that the State “must show that the defe ndant’s actual purpose was different from the 12 reason the defendant and alle ged victim voluntarily associated with each other,” 13 Defendant claims the State failed to meet its burden. This argument is entirely without 14 merit. 15 {51} The jury could have inferred from th e State’s evidence that any voluntary 16 association between Defendant and Lambert ceased in the hotel room when the couple 17 began arguing and Defendant administered several blows to Lambert’s head, knocking 18 her unconscious. See State v. Ortega , 2014-NMSC-017, ¶ 23, 327 P.3d 1076 1935 (“Kidnapping may occur once the [v]ictim’s phys ical association with [the d]efendant 1 [is] no longer voluntary.” (alterations in original) (internal quotation marks and 2 citation omitted)). And the jury verdict for kidnapping was supported by substantial 3 evidence. The State presented eviden ce that Defendant placed the unconscious 4 Lambert in a vehicle and transported her from the Stevens Inn to the location on 5 Potash Mines Road 11.7 miles away where heproceeded to beat her with an air pump, 6 drag her behind a barn by tying one end of rope to her neck and the other to the 7 vehicle, and then hit her repeatedly w ith a “bar.” The State presented medical 8 testimony that Lambert was still alive whenDefendant transported her from the hotel 9 to the Potash Mines Road property. The St ate’s medical expert also testified that 10 Lambert was still alive when she incurred inju ries consistent with the cause of her 11 death, blunt trauma and ligature strangulation. We conclude there was sufficient 12 evidence at trial to support Defendant’s kidnapping conviction. 13 3. Sufficient evidence supports Defendant’s conviction for tampering with 14 evidence 15 {52} Defendant appeals his conviction fo r tampering with evidence under NMSA 16 1978, Section 30-22-5 (2003), arguing that th ere was insufficient evidence to support 17 his conviction on this charge. The State had to prove the following elements beyond 18 a reasonable doubt to convict Defendantof tampering with the evidence: 1936 1. [D]efendant placed the pump or rope; 1 2 2. [By doing so, D]efendant intende d to prevent the apprehension, 3 prosecution or conviction of himself for murder; 4 5 3. [D]efendant was not intoxicated from the use of alcohol at the 6 time the offense was committed to the extent of being incapable 7 of forming an intention to prev ent the apprehension, prosecution 8 or conviction of himself for murder. 9 10 4. This happened in New Mexi co on or about March 2, 2014. 11 See § 30-22-5(A); UJI 14-2241 NMRA. 12 {53} “Tampering with evidence is a specific inte nt crime,” and the State must present 13 “sufficient evidence from whic h the jury can infer that the defendant acted with an 14 intent to prevent ‘apprehension, prosecution, or conviction of any person or to throw 15 suspicion of the commission of a crime upon another.’” State v. Silva , 2008-NMSC16 051, ¶ 18, 144 N.M. 815, 192 P.3d 1192 (quoti ng § 30-22-5(A)). “When there is no 17 other evidence of the specific intent of the defendant to disrupt the police 18 investigation, intent is often inferre d from an overt act of the defendant.” Duran , 19 2006-NMSC-035, ¶ 14. 20 {54} In this case, there is sufficient evid ence from which a reasonable jury could 21 conclude that Defendant placed the air pump and rope in locations outside of 22 Carlsbad, New Mexico, with the intent to prevent his own prosecution, apprehension, 23 or conviction. Defendant, by his own admission, sought to “cover [his] tracks” by 2437 locating the rope and throwing it on the side of the road, disposing of his bloody pants 1 in a gas station dumpster, wiping blood o ff the hotel room walls, and throwing away 2 Lambert’s dress. Defendant further admitted th at he threw the “bar ” off to the side of 3 the road when leaving the s cene of the homicide. Defendant described to officers how 4 he disposed of the evidence, and he led officers to the locations where he had placed 5 the rope, a bag with Lambert’s clothing, and the air pump. Accordingly, we affirm 6 Defendant’s tampering conviction. 7 H. Cumulative Error 8 {55} Finally, Defendant contends his convicti ons should be reversed because errors 9 raised in this case “accumu late[d] to the point of rendering the verdict inherently 10 unreliable.” “The doctrine of cumulative e rror applies when multiple errors, which by 11 themselves do not constitute reversible error, are so serious in th e aggregate that they 12 cumulatively deprive the defe ndant of a fair trial.” State v. Roybal , 2002-NMSC-027, 13 ¶ 33, 132 N.M. 657, 54 P.3d 61. “The cumulative error doctrine is strictly applied and 14 may not be successfully invoked if the reco rd as a whole demonstrates the defendant 15 received a fair trial.” State v. Guerra , 2012-NMSC-014, ¶ 47, 278 P.3d 1031 (internal 16 quotation marks and citation omitted). We c onclude that Defendant received a fair 17 trial, and we have determin ed that there was no error. “[W]here there is no error to 18 accumulate, there can beno cumulative error.” State v. Samora , 2013-NMSC-038, ¶ 1938 28, 307 P.3d 328 (internal quotation mark s and citation omitted). Accordingly, 1 Defendant’s cumulative error claim is meritless. 2 III. CONCLUSION 3 {56} We hold that Defendant’s claims lack merit and affirm De fendant’s convictions 4 for first-degree murder, kidnapping, and tampering with the evidence. 5 {57} IT IS SO ORDERED. 6

__________________________________ 7 CHARLES W. DANIELS, Chief Justice 8 WE CONCUR: 9

___________________________________ 10 PETRA JIMENEZ MAES, Justice 11

___________________________________ 12 EDWARD L. CHÁVEZ, Justice 13

___________________________________ 14 BARBARA J. VIGIL, Justice 15

___________________________________ 1639 JUDITH K. NAKAMURA, Justice 1