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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. No. A-1-CA-34945 4 JOE RAY BARELA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Briana H. Zamora, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Laurie K. Blevins, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 J.K. Theodosia Johnson, Assi stant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VIGIL, Judge. 192 {1} Defendant Joe Ray Barela was found guilty by a jury of one count of auto 1 burglary, one count of robbery, one count of tampering with evidence, one count of 2 fraudulent use of an illegally obtained credit card (over $250 but less than $500), 3 conspiracy to commit fraudulent signing of credit card or sales slips, two counts of 4 possession of methamphetamine, one count of possession of drug paraphernalia, and 5 one count of possession of marijuana. 6 {2} Defendant appeals, making six arguments : (1) the evidence was insufficient to 7 support his convictions for tampering with evidence, robbery, and auto burglary; (2) 8 the jury was not instructed on all of the essential elements for conspiracy to commit 9 fraudulent signing of a credit card or sales slips; (3) the district court erred in 10 admitting into evidence: (a) a Walmart receipt and testimony indicating Victim’s 11 credit card number and showing the alleged fraudulent credit card transaction, and (b) 12 narrative testimony about what was depicted in a surveillance video; (4) his 13 convictions for (a) two counts of posse ssion of methamphetamine, and (b) robbery 14 and auto burglary violate double jeopardy; (5) his right to confront witnesses against 15 him was violated when the prosecutor e licited testimony about Detective Perea’s 16 interview with the other suspect who is Defendant’s mother; and (6) his sentencing 17 hearing was tainted by inadmissible eviden ce and his sentence constitutes cruel and 18 unusual punishment. We affirm in part and reverse in part. 193 BACKGROUND 1 {3} As Victim sat in her vehicle parked in the driveway of her home, a “young 2 man” later identified as Defendant, reachedinto her open car door and took her purse. 3 Approximately an hour later, Defendant and his mother used Victim’s credit card to 4 purchase some jewelry from Walmart. Defe ndant and his mother returned to the 5 Walmart two days later and attempted to return the jewelry with the original purchase 6 receipt. Defendant and his mo ther were arrested by Walmart field officers, taken to 7 the Albuquerque Police Department station, and interviewed by Detective Perea, who 8 was investigating the robbery. Detective Perea also obtained a search warrant for 9 Defendant’s vehicle, in which methamphetamine and marijuana were found. Jewelry 10 purchased from Walmart with Victim’s credit card was also recovered from 11 Defendant. We discuss additional facts as necessary to address Defendant’s arguments 12 on appeal. 13 DISCUSSION 14 I. Sufficiency of the Evidence 15 {4} Defendant argues that the evidence was insufficient to support his convictions 16 for auto burglary, robbery, and tampering with evidence. We disagree. 17 {5} In reviewing a defendant’s challenge to the sufficiency of evidence, the 18 appellate courts “view the evidence in the light most favorable to the guilty verdict, 194 indulging all reasonable inferen ces and resolving all conflicts in the evidence in favor 1 of the verdict.” State v. Carrillo , 2017-NMSC-023, ¶ 42, 399 P.3d 367 (internal 2 quotation marks and citation omitted). The central consideration in a sufficiency of 3 the evidence review is whether substantial direct or circumstantial evidence exists to 4 support a verdict beyond a reasonable doubt as to all essential elements of the crimes 5 for which the defendant was convicted. State v. Suazo , 2017-NMSC-011, ¶ 32, 390 6 P.3d 674. In jury trials, the jury instructi ons are the law of the case against which the 7 sufficiency of the evidence supporting the jury’s verdict is to be measured. State v. 8 Duttle , 2017-NMCA-001, ¶ 18, 387 P.3d 885. 9 A. Auto Burglary 10 {6} Defendant contends that the State’s evidence failed to prove auto burglary 11 because Victim’s car door was open when hereached in to take her purse. The jury 12 was instructed, in pertinent part that to find Defendant guilty of auto burglary, the 13 State was required to prove to its satisfaction beyond a reasonable doubt that 14 Defendant “entered a vehicle without authorization[.]” 15 {7} The evidence was that as Victim sat in side her car in her driveway, a “young 16 man” later identified as Defendant reachedinto Victim’s car through her open door, 17 across her seat, and took her purse. Victim did not give Defendant permission to reach 18 into her vehicle. This evidence was suffi cient to establish an unlawful entry into 195 Victim’s car notwithstanding that the door was open. See State v. Office of the Pub. 1 Def. ex rel. Muqqddin , 2012-NMSC-029, ¶ 48, 285 P.3d 622 (“[A] burglary can be 2 committed through an open window.”). 3 B. Robbery 4 {8} Defendant contends that the State’s evidence failed to prove that Defendant 5 took Victim’s purse by threat of force b ecause Victim testified that by the time 6 Defendant grabbed her purse, she “had no time to be afraid.” The jury was instructed 7 in pertinent part that to find Defendant guilty of robbery, the State was required to 8 prove to its satisfaction beyond a reasonabl e doubt that Defendant took Victim’s purse 9 “by threatened force or viol ence[.]” The evidence was that as Defendant reached into 10 Victim’s car to take her purse , he told her, “Just give me your purse and you won’t get 11 hurt.” Under our standard of review, this was substantial evidence that Defendant took 12 Victim’s purse by threatened force or violence. 13 C. Tampering with Evidence 14 {9} Defendant contends that the State’s evidence failed to prove that Defendant 15 took an overt act to disrupt an investigatory process. 16 {10} The jury was instructed in pertinent part that to find Defendant guilty of 17 tampering with evidence, the State was re quired to prove to its satisfaction beyond a 18 reasonable doubt that Defendant “hid or reversed a vehicle to conceal a license 196 plate[,]” and that Defendant “intended toprevent the apprehension, prosecution or 1 conviction of [Defendant] to create the false impression that another had committed 2 a crime.” 3 {11} The evidence was that as Defendant arrived at Victim’s home, he pulled his 4 vehicle over on the side of the street, blocking Victim’s car, without pulling into 5 Victim’s driveway. After taking Victim’s pur se, Defendant got back in his vehicle and 6 drove in reverse “all the way down the street and out of sight.” Victim testified that 7 she “got out of the car, and I thought well, I will get his license plate number[.]” 8 However, because the license plate on De fendant’s vehicle was located on the back 9 of the vehicle, as is the case for all vehicl es registered in New Mexico, Victim could 10 not see the license plate number as he fled. 11 {12} We agree with the State that Defendant ’s conduct in fleeing the scene in this 12 way “require[d] deliberate steps: putting the vehicle into reverse; looking at the rear 13 view mirrors and out the back window; maintaining a straight course in reverse to 14 avoid swerving off the roadway. Anyone who has ever driven understands it is 15 impossible to drive backwards accidently.” Further, considering the placement of the 16 license plate on the back of his vehicle, Defendant’s fleeing of the scene of the purse 17 snatching by backing all the way down the street until he was out of sight was 187 consistent with an attempt to prevent Vi ctim and law enforcement from being able to 1 identify and apprehend him. 2 {13} This evidence supports a jury finding that by these overt acts, Defendant 3 intended to prevent his apprehension, prosecution, conviction, or to create the false 4 impression that another had snatched Victim’s purse. See State v. Schwartz , 2014- 5 NMCA-066, ¶ 35, 327 P.3d 1108 (“Tampering with eviden ce is a specific intent 6 crime, requiring sufficient evidence from whic h the jury can infer that the defendant 7 acted with an intent to prevent apprehension, prosecution, or conviction of any person 8 or to throw suspicion of the commission of a crime upon another.” (internal quotation 9 marks and citations omitted)); see also State v. Garcia , 2011-NMSC-003, ¶ 13, 149 10 N.M. 185, 246 P.3d 1057 (stating that when there is no other evidence of the specific 11 intent to disrupt the police investigation, intent is often inferre d from an overt act of 12 the defendant). 13 II. Jury Instruction on Conspiracy 14 {14} The Use Note to the Uniform Jury Instruction on conspiracy, UJI 14-2810 15 NMRA, requires that in additi on to the essential elements of conspiracy, the essential 16 elements of the underlying felony must be in cluded in the instructions to the jury. 17 Because the essential elements for fraudulent signing of a credit card or sales slip were 18 not given to the jury, Defendant contends, and the State concedes, that his conviction 198 for conspiracy to commit fraudulent signing of a credit card or sales slip must be 1 reversed. We agree. 2 {15} “This Court . . . is not bound by the [s ]tate’s concession and we conduct our 3 own analysis.” State v. Caldwell , 2008-NMCA-049, ¶ 8, 143 N.M. 792, 182 P.3d 775. 4 Defendant failed to object to the district c ourt’s failure to include in the instructions 5 given to the jury an instruction containi ng the essential elements of fraudulent signing 6 of a credit card or sales slips. We therefore reviewDefendant’s challenge for 7 fundamental error. See State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 8 P.3d 1134 (stating that when the error in jury instructions has not been preserved, 9 appellate review is limited toreview for fundamental erro r). “For fundamental error 10 to exist, the instruction given must differ materially from the uniform jury instruction, 11 omit essential elements, or be so confusi ng and incomprehensiblethat a court cannot 12 be certain that the jury found the essential elements under the facts of the case.” 13 Caldwell , 2008-NMCA-049, ¶ 24 (internal quotation marks and citations omitted). 14 Whether a particular jury instruction was properly given “is a mi xed question of law 15 and fact” that the appellatecourts review de novo. State v. Lucero , 2010-NMSC-011, 16 ¶ 11, 147 N.M. 747, 228 P.3d 1167 (internal quotation marks and citation omitted). 17 {16} The jury instruction on conspiracy given tothe jury stated that in order to find 18 Defendant guilty of conspiracy to commit fraudulent signing of credit cards or sales 199 slips, the State was required to prove be yond a reasonable doubt that: (1) “[D]efendant 1 and another person by words or acts agreedtogether to commit fraudulent signing of 2 credit cards or sales slips”; (2) “[D]efe ndant and another pers on intended to commit 3 fraudulent signing of credit cards or sales slips”; and (3) “Thi s happened in New 4 Mexico on or about the 30th day of June , 2014.” Use Note 1 to UJI 14-2810 requires 5 that the jury also be given “the essential elements other than venue immediately after” 6 the conspiracy instruction “unless they are covered by essential element instructions 7 relating to the substantive offenses.” 8 {17} No instruction on the essential elemen ts of fraudulent signing of a credit card 9 or sales slips, as stated in UJI 14-1688 NMRA, was included anywhere in the jury’s 10 instructions. Thus, the jury was not instru cted on essential elements of the crime of 11 conspiracy to commit fraudulent signing of a credit card or sales slips, giving rise to 12 fundamental error. See Benally , 2001-NMSC-033, ¶¶ 16-20, 22 (concluding that the 13 failure to include the essential element of unlawfulness in the instruction given to the 14 jury for second-degree murder gave rise tofundamental error and warranted reversal 15 of defendant’s conviction on that count). Defendant’s convicti on for conspiracy to 16 commit fraudulent signing of a credit card or sales slips must therefore be reversed. 17 III. Admission of Evidence 1810 {18} Under this point, we discuss Defendant’s c ontentions that the district court erred 1 in allowing certain evidence to be admitted at trial. “We review the admission of 2 evidence under an abuse of discretion standard and will not reverse in the absence of 3 a clear abuse.” State v. Lopez , 2018-NMCA-002, ¶ 30, 410 P.3d 226 (internal 4 quotation marks and citation omitted). “An abuse of discretion occurs when the ruling 5 is clearly against the logic and effect of the facts and circum stances of the case.” Id. 6 (internal quotation marks and citation omitte d) “We cannot say that the trial court 7 abused its discretion by its ruling unless we can characterize the ruling as clearly 8 untenable or not justified by reason.” Id. (alteration omitted); see State v. Garcia , 9 2016-NMCA-044, ¶ 8, 370 P.3d 791 (stating that “when there is no evidence that 10 necessary foundational requirements are met [to support admission of evidence], an 11 abuse of discretion occurs”). 12 A. Evidence That Victim’s Credit Card Was Used 13 {19} Defendant argues that the district c ourt erred in admitting a Walmart receipt 14 obtained from Defendant and Defendant ’s mother showing a June 30, 2014 15 transaction for jewelry and the last four di gits of a credit card number, together with 16 Detective Perea’s testimony that the numbers on the receipt are the last four digits of 17 Victim’s credit card number. 1811 {20} At trial, Victim testified, without objec tion, that after her purse was snatched, 1 her credit card was used before she was able to cancel it. Detective Perea also 2 testified, without objection, that Defendant’s mother used Victim’s credit card to 3 purchase jewelry at Walmart on June 30, 2014. As a result, by the time Defendant 4 objected to the admission of the Walmart receipt and Detective Perea’s testimony that 5 the numbers on the receipt matched the last four numbers on Victim ’s credit card, the 6 jury had already heard evidence that Vic tim’s credit cards had been used in a 7 transaction that she had not authorized. The receipt and Detective Perea’s testimony 8 concerning Victim’s credit card number weretherefore cumulativ e of prior evidence 9 that was admitted without objection. See State v. Aaron , 1984-NMCA-124, ¶ 28, 102 10 N.M. 187, 692 P.2d 1336 (stating that “[c]umul ative evidence, evenif prejudicial, 11 may be admitted in the discretion of the trial court”). Defendant alsofails to otherwise 12 show that he was prejudiced by the admissi on of the evidence of Victim’s credit card 13 number and use. Under these circumstan ces, we see no reasonable probability that 14 admission of this evidence c ontributed to Defendant’s convictions. Therefore, even 15 assuming error in the admission of the Walmart receipt and Detective Perea’s 16 testimony that the numbers on the receipt are the last four digits of Victim’s credit 17 card, any such error was harmless. See Carrillo , 2017-NMSC-023, ¶ 39 (“Improperly 18 admitted evidence is not grounds for a new trial unless the error is determined to be 1912 harmful.”(internal quotation marks and citation omitted)); State v. Astorga , 2015- 1 NMSC-007, ¶ 43, 343 P.3d 1245 (“Absent a constitutional violation, we look to 2 whether there is a reasonable probability th at the error affected the verdict.”). 3 B. Narrative Testimony of the Surveillance Video 4 {21} Defendant argues that the district c ourt erred in permitting Officer Meyer to 5 testify about what was occurring in the Walmart surveillance video as it was played 6 to the jury. Defendant contends that allowi ng Officer Meyer to testify about what was 7 occurring on the video was inadmissible becau se she was not present when the video 8 was taken and had no personal knowledge of the events it depicted. Because the jury 9 was just as capable of watching the video and drawing its own c onclusions about what 10 was being depicted, Defendant contends that Officer Meyer’s opinions about what 11 was depicted was not helpful to a factual issue in dispute and invaded the province of 12 the jury. 13 {22} The State published home and Walmart surveillance videos to the jury and 14 Officer Meyer provided contemporaneous testimony regarding what the jury was 15 viewing. As the home surveillance video play ed for the jury, Officer Meyer testified 16 without objection: 17 This is [Victim’s] front driveway. And it appears that she’s pulled into 18 her driveway there and she is parki ng. That’s on James Street. And she 19 in on the south side of the road. At this time, that’s the gray Jeep that she 2013 is describing, with the male exiting and him getting back into the vehicle 1 and he’s leaving. 2 The prosecutor then asked Officer Meyer “[b]ased upon the observation of the video, 3 what stood out to you?” Officer Meyer answered, the male subject’s “clothing. Being 4 that I didn’t have a visual of his face, other than what [Victim] described, his clothing 5 and his vehicle. . . . He [was] wearing l ong, look[ed] like, denim shorts, like really 6 long, with socks and a long kind of bigger, oversized [white] T-shirt. . . . The vehicle 7 look[ed] like a dark gray, with almost gr ay or black border all the way around the 8 Jeep. . . . It look[ed] like a Jeep Cherokee.” Officer Meyer also testified that the 9 description of the vehicle she observed matched “[a]lmost exactly” the description 10 provided by Victim. 11 {23} While clips from the Walmart surveillan ce videos were played to the jury, 12 Officer Meyer testified “[t]his is the jewe lry counter at the Walmart. As you can see, 13 there’s a male subject with a white T-shirt and long shorts with socks that’s matching 14 the description” of the purse snatcher. Officer Meyer continued that based on her 15 observation of the video, the male subject matching the description of the purse 16 snatcher appeared to be exchanging words w ith a female wearing a pink or reddish top 17 and that they met up a couple times near th e jewelry counter. Officer Meyer testified 18 that at a certain point in the video, “thereis a transaction going through at the jewelry 19 counter with the clerk and the female inthe pink shirt.” Officer Meyer thereafter 2014 testified that the same female appeared to purchase more items at the Walmart front 1 checkout counters, that she then exited the front of the store, and that this female 2 entered the passenger side of a gray Jeep Ch erokee that matched the description of the 3 purse snatcher’s vehicle. 4 {24} Defendant’s objection to the testimony while the Walmart video was being 5 played was that “[t]he video speaks fo r itself.” Defendant argues on appeal that 6 Officer Meyer’s narrative “told the jury that ambiguous actions were crimes” and 7 “conclusively identified” Defendant. Defendant contends the narrative was 8 inadmissible and that “[t]he jury should havebeen allowed to watch [the video] and 9 draw its own conclusions regarding the id entity of the person in the video and his 10 actions instead of being told they werewitnessing [Defendant] commit a crime.” 11 {25} Even if we assume the district court erred in allowing Officer Meyer to give the 12 narrative while the Walmart video was play ed and that Defendant preserved the 13 argument he now makes on appeal, the error was harmless. As we have already noted, 14 Victim testified, without objection, that her credit cards were used before she could 15 cancel them, that the receipt collected from Defendant and his mother had four digits 16 that matched Victim’s credit card number, and that the receipt showed a transaction 17 for jewelry which was time-stamped as occurring at the same time as the transaction 18 in the surveillance video. Officer Perea al so testified, without objection, that upon 1915 viewing the Walmart surveillance video, the “female purchasing the . . . . jewelry from 1 Walmart” was identified as a suspect for the fraudulent use of Victim’s credit card. 2 {26} Importantly, Defendant stipulated to hi s own identity as the person identified 3 as a suspect in Victim’s case. During Offi cer Meyer’s re-direct testimony and after a 4 brief voir dire by defense counsel about the basis of her familiarity with Defendant, 5 Defendant stipulated to the officer identif ying him as a suspect identified in the case. 6 The district court then instructed the jurythat “[t]he parties have stipulated and, 7 therefore, you can consider it as a fact in evidence in this case that the witness has 8 identified the defendant Joe Ray Barela.” The prosecutor asked, “for clarification, the 9 individual seated here today, was this the individual you saw on additional Walmart 10 surveillance that particular day on June30, 2014?” and without objection, Officer 11 Meyer answered, “Yes.” Further, during Detective Perea’s direct testimony, the 12 prosecutor asked whether he had arrested a suspect in Victim’s case, and he replied 13 “[t]hat was [Defendant].” Defense counsel did not object and again remarked, “[w]e 14 will stipulate to . . . [D]efendant.” 15 {27} Finally, Officer Meyer was subsequentlyrecalled to testify and was asked by 16 the prosecutor if, when she watched the Walmart surveillance videos, whether she was 17 able to clearly see the face of the male subject that fit the description of the purse 1816 snatcher. Detective Perea answ ered, “Yes[,]” and that it was Defendant. Defendant did 1 not object to this additional testimony. 2 {28} We conclude that in the foregoing c ontext and by stipulating to Defendant’s 3 identity and failing to object to Officer Meyer and Detective Perea’s identification of 4 Defendant, the error, if any, in allowing Officer Meyer to give a narrative while the 5 Walmart video was being played for the jury was harmless. 6 IV. Double Jeopardy 7 {29} Defendant argues that his convictions for: (1) two counts of possession of 8 methamphetamine, and (2) robbery and au to burglary each violate double jeopardy. 9 “We review double jeopardy claims de novo.” State v. Sena , 2018-NMCA-037, ¶ 34, 10 419 P.3d 1240. 11 A. Two Convictions for Possession of Methamphetamine 12 {30} After Defendant was arrestedat the Walmart, Defendant’s vehicle was secured 13 and Detective Perea obtained a warrant to search Defendant’s vehicle. Within the 14 vehicle Officer Perea found a small baggy of methamphetamine and a syringe 15 containing methamphetamine residue. On th e basis of this evidence Defendant was 16 convicted of two separate counts of possession of methamphetamine. See State v. 17 Wood, 1994-NMCA-060, ¶¶ 2-3, 12, 117 N.M. 682, 875 P.2d 1113 (affirming 18 conviction for possession of cocaine where syringes had no visible trace of cocaine 1917 but tested positive for cocaine in an amountless than 0.0001 gram). Defendant argues 1 that there was only one possession of meth amphetamine, and as such, one of his 2 convictions for possession of methamphetamine must be vacated. We agree. 3 {31} In State v. Quick , a search of the defendant’s bedroom resulted in the discovery 4 of a container with 7.03 grams of meth amphetamine, a quantity which was suggested 5 was indicative of distribution; a container with 2.71 grams of methamphetamine; a 6 container with 0.61 grams of methamphetami ne, and other items indicative of drug use 7 and sales. 2009-NMSC-015, ¶ 3, 146 N.M. 80, 206 P.3d 985. The defendant was 8 convicted of simple possession of methamphetamine and possess ion with intent to 9 distribute methamphetamine, and contended that the two convictions violated her right 10 to be free from double jeopardy. Id. ¶ 1. Our Supreme Court concluded that “the entire 11 quantity of a particular controlled subs tance under one person’ s control at any one 12 time defines the possession.” Id. ¶ 17. Our Supreme Court c oncluded that because the 13 defendant’s single possession of the multiplecontainers of methamphetamine “cannot 14 reasonably be parsed into multiple possessions, double jeopardy prevents [the 15 defendant] from being convicted of both possession and possession with intent to 16 distribute.” Id. ¶ 21. 17 {32} The reasoning of Quick compels us to conclude that there was only one 18 possession of methamphetamine in this case. In Quick , our Supreme Court held that 1918 the defendant’s simultaneous possession of three containers of methamphetamine 1 constituted one possession. Here, Defendantsimultaneously possessed two containers 2 of methamphetamine, the syringe with residue and a baggy. One of Defendant’s 3 convictions for possession of methamphetamine therefore violated double jeopardy 4 and must be vacated. 5 B. Convictions for Robbery and Auto Burglary 6 {33} Defendant also argues that his convictions for robbery and auto burglary, which 7 stemmed from the same conduct and both cons titute crimes against property, subjected 8 him to multiple punishments under different statutes, and as such, one conviction 9 should be vacated. We disagree. 10 {34} Even where the same conduct results in the commission of robbery and auto 11 burglary, because these are separate and dis tinct crimes with differing elements, there 12 is no double jeopardy prohibition against convicting Defendant of both crimes. See 13 State v. Deats , 1971-NMCA-089, ¶ 22, 82 N.M. 711, 487 P.2d 139 (concluding that 14 convictions for burglary and larceny arisi ng out of the same event do not violate 15 double jeopardy); see also State v. McAfee , 1967-NMSC-139, ¶¶ 15-18, 78 N.M. 108, 16 428 P.2d 647 (same). This is a “double descrip tion” case, which looks to whether the 17 Legislature intended to punish the offenses separately since De fendant’s conduct here 18 is clearly unitary. See State v. Silvas , 2015-NMSC-006, ¶ 9, 343 P.3d 6 16. Because 1919 the statutes do not clearly prescribe multiple punishments, we apply the rule of 1 statutory construction established in Blockburger v. United States , 284 U.S. 299 2 (1932). See State v. Swick , 2012-NMSC-018, ¶ 11, 279 P.3d 747. Under Blockburger , 3 we look to see whether each statute requires proof of a fact that the other does not. See 4 Swick , 2012-NMSC-018, ¶ 12. “If one statute requires proof of a fact that the other 5 does not, then the Legislature is presumed to have intended a separate punishment for 6 each statute without offending principles of double jeopardy.” Silvas , 2015- 7 NMSC-006, ¶ 12. This is the same test used in Deatsand McAfee . Robbery requires 8 proof an actual “theft of anything of valu e” from a person “by use or threatened use 9 of force or violence[,]” NMSA 1978, § 30-16-2 (1973), but burglary requires neither 10 an actual theft or the use of a threat of force or violence. Rather, burglary only 11 requires “unauthorized entry[,]” including into a vehicle, “with the intent to commit 12 any felony or theft therein.” NMSA 1978, Section 30-16-3 (1971). We therefore 13 presume that the Legislature intended a separate punishment for each statute without 14 offending principles of double jeopardy, and Defendant’s convicti ons for robbery and 15 burglary do not violate double jeopardy. 16 V. Confrontation Clause Claim 17 {35} Defendant and his mother both gave st atements to Detective Perea following 18 their arrest. Defendant’s redacted statement was introduced into evidence through 1920 Detective Perea. The prosecutor then aske d Detective Perea if Defendant’s mother, 1 who passed away before the trial, related how she came into possession of Victim’s 2 credit cards and if she later changed that story because the first was not true. Detective 3 Perea simply answered, “Yes” and did not te stify to what she specifically said. The 4 prosecutor then asked Detective Perea, “Without saying what she said, did the story 5 that she gave you match what [Defendant ] told you in his interview?” Defendant 6 objected, stating that the question s ought to elicit impermissible impeachment 7 testimony by Detective Perea commenting on the truthfulness of Defendant and his 8 mother. The district court overruled Defendant’s objection. The prosecutor then asked 9 Detective Perea again whether the statement Defendant gave duri ng his interview was 10 consistent with the statement given by his mother during her interview, to which the 11 detective answered, “No.” 12 {36} Defendant contends that allowing Detective Perea to answer whether the 13 statements by Defendant and his mother were consistent violated his constitutional 14 confrontation rights. The State responds thatwith regard to th e testimony challenged 15 by Defendant, Defendant failed to preserve a confrontation clause error and has 16 therefore waived the objection fo r appellate purposes. We agree. 17 {37} Rule 11-103(A)(1) NMRA requires that in order to preserve a claim for error, 18 a party must make a timely objection and state the specific ground for the objection, 1921 unless it is apparent from the context. Additi onally, “[t]he issue of denial of the right 1 to confrontation may not be rais ed for the first time on appeal.” State v. Lucero , 1986- 2 NMCA-085, ¶¶ 12, 104 N.M . 587, 725 P.2d 266. In Lucero , we determined that the 3 defendant’s hearsay objection to the admissi on of his co-defendant’s confession was 4 insufficient to preserve a confrontation cl aim where he merely objected that admission 5 of the statement did not fall within a hearsay objection. Id. ¶¶ 15-17. Here, 6 Defendant’s objection that the prosecuto r’s question sought to elicit improper 7 impeachment testimony was likewise insuffici ent to preserve a confrontation clause 8 claim. 9 VI. Defendant’s Sentence 10 {38} Defendant’s final argument, pursuant to State v. Franklin , 1967-NMSC-151, 11 ¶¶ 9-10, 78 N.M. 127, 428 P.2d 982 and State v. Boyer , 1985-NMCA-029, ¶ 17, 103 12 N.M. 655, 712 P.2d 1, is that his senten ce constitutes cruel and unusual punishment. 13 Defendant’s argument is that his sentence tofifty years of incarceration as a habitual 14 offender is grossly disproportionate to his crimes and that his sentencing hearing was 15 tainted by inadmissible evidence in the form of a letter from the alleged victim of a 16 crime for which Defendant was acquitted. For the following reasons, we reject 17 Defendant’s arguments under this point. 1822 {39} While we review the constitutional issu e of whether punishment is cruel and 1 unusual de novo, sentencing, in the absence of a challenge to the constitutionality of 2 the sentencing statute at issue, is revi ewed only for an abuse of discretion. State v. 3 Dwyer , No. 33,234, dec. ¶ 11 (N.M. Sup. Ct. Mar. 21, 2013) (non-precedential); State 4 v. Lindsey , 2017-NMCA-048, ¶ 22, 396 P.3d 199. 5 {40} Defendant does not challenge the constitu tional validity of the statutes under 6 which he was sentenced, and Defendant’s sentence was not clearly against the logic 7 and effect of the facts and circumstances of the case. At his sentencing hearing, 8 Defendant objected to the admission of the le tter from the alleged victim of a violent 9 felony for which he was acqu itted. The district court re sponded that the letter had not 10 been put in the record and th at the court would not consider the letter in its sentencing, 11 since Defendant was acquitted of the alleged crime. This action of the district court 12 adequately assured that the letter did not taint Defendant’s sentencing. The district 13 court also determined that Defendant had three previous felony convictions that could 14 be used to enhance Defendant’s sentence by eight years per charge. See NMSA 1978, 15 § 31-18-17(C) (2003) (stating that if an individual has three prior felony convictions, 16 the “basic sentence shall be increased by eight years. The sentence imposed by this 17 subsection shall not be suspe nded or deferred.”). At this point, as the State points out, 18 the district court “had very little discretion regarding the sentences [it] had to impose.” 1923 Furthermore, with what little discretion th e district court had, it was exercised in 1 Defendant’s favor. Specifically, the districtcourt allowed Defendant’s robbery and 2 auto burglary sentences, as well as Defendant’s possession of marijuana and 3 paraphernalia charges, to be served concurrently. 4 CONCLUSION 5 {41} Defendant’s conviction for conspiracy to fraudulently sign a credit card or sales 6 slip and one conviction for possession of methamphetamine are vacated. We affirm 7 the remainder of Defendant’s convictions and remand for re-sentencing in accordance 8 with this opinion. 9 {42} IT IS SO ORDERED. 10

11 MICHAEL E. VIGIL, Judge 12

WE CONCUR: 13

14 M. MONICA ZAMORA, Judge 15

16 JULIE J. VARGAS, Judge 17