This decision was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. 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 and does not include the filing date.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number: 2 Filing Date: 5-21-12 3

NO. 31,858 4 STATE OF NEW MEXICO, 5 Plaintiff-Appellee, 6

v. 7 BEAU JAMES MUSACCO, 8 Defendant-Appellant. 9

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Ross C. Sanchez, District Judge 11

Jacqueline L. Cooper, Chief Public Defender 12 William A. O’Connell, Assist ant Appellate Defender 13 Santa Fe, NM 14for Appellant 1

Gary K. King, Attorney General 2 Joel Jacobsen, Assistant Attorney General 3 Santa Fe, NM 4 for Appellee 5 DECISION 6 MAES, Chief Justice. 7 {1} Following a jury trial, Beau James Mus acco (Defendant) was sentenced to life 8 imprisonment for two convictions of willf ul and deliberate first degree murder, 9 eighteen months for tampering with ev idence, and 364 days for concealing his 10 identity. Defendant appeals direc tly to this Court pursuant to Rule 12-102(A)(1) 11 NMRA, which allows for an appeal of a sentence of life imprisonment to be taken 12 directly to this Court. 13 I. FACTUAL AND PROCEDURAL BACKGROUND 14 {2} About an hour after midnight on New Y ear’s Day 2007, the Albuquerque Police 15 Department (APD) responded to what initiallyappeared to be two separate accidents 16 near the intersection of I-40 and CarlisleBlvd. in Albuquerque. The first accident 17 involved Defendant’s vehicle, which hit a light pole. One of the first officers at the 18 scene observed more than two sets of shoe prints in the snow, all of which led away 192 from Defendant’s vehicle. Defendant’s blood was later found on the trunk and on the 1 rear passenger door of his vehicle. 2 {3} The second accident involved a Ford E xplorer (Explorer), which was found on 3 the median at the top of the I-40 off-ramp, approximately fifty yards away from 4 Defendant’s vehicle. Inside the Explorerwere the bodies of Linda Gilkey (Gilkey) 5 and Nancy Parker Davidson (Davidson) (co llectively “Victims”). Gilkey had been 6 shot in the back of the head , and Davidson had been shot inthe left jaw. One side of 7 the Explorer was scratched, suggesting that it either had sideswiped something or had 8 been sideswiped. The Explorer’s tire tr acks suggested that the vehicle had stopped 9 and backed up a short distance on the off-ramp, pulling slightly to the side, before 10 stopping on the median. 11 {4} APD investigators found a set of shoe prints leaving the Explorer, which headed 12 west and ended at the Carlisle intersection. APD followed the shoe prints and found 13 a gun that matched the bullet casings found inthe Explorer. Offi cer Carter, a canine 14 handler for the Albuquerque SWAT section who had been trained in “man-tracking,” 15 found a second set of shoe prints. These s hoe prints were madeby a different set of 16 shoes and ultimately ended at the Econo Lodge Inn (Inn). This second set of shoe 17 prints was also accompanied by blood drops. 18 {5} Once at the Inn, APD began searchi ng for blood on the Inn’s exterior door 19 handles. APD found blood on the exterior handle of Room 216 (the motel room). A 203 member of the SWAT team telephoned the motel room and spoketo Margo Watson 1 (Watson), an acquaintance of Defendant . A while later, Watson and Defendant 2 walked out of the room and were taken into custody. APD officers then performed 3 a protective sweep of the motel room. After the protective sweep, Officer Carter 4 entered the motel room to verify that the tread pattern from a pair of boots matched 5 the shoe prints he had been following. Defendant and Wats on were subsequently 6 transported to an APD station house where Detective O’Neil swabbed Defendant’s 7 hands for DNA evidence. 8 {6} In March 2007, prior to trial, the Stat e filed a motion for a buccal swab (March 9 2007 mouth swab) of Defendant. The motion stated that “[ m]aterial evidence in this 10 cause consists of blood evidence which was collected in multiple areas at the crime 11 scene,” which could belong to Defendant. The motion was granted after Defendant 12 stipulated that the discovery provided by th e State established probable cause that the 13 evidence collected at the crime scene could belong to Defendant. 14 {7} Defendant filed two pretrial motions to suppress evidence. In the first motion, 15 Defendant asserted that his federal and state constitutional rights were violated when 16 on January 1, 2007, Detective O’Neil swabbed Defendant’s hands for DNA evidence 17 without first obtaining a warrant. Defendant asked the district court to exclude all 18 testimony and evidence derived from Defendant’s DNA swabs collected on both 19 January 1, 2007, and July 12, 2007. In particular, Defendant asked that the DNA 204 profile obtained pursuant to the court-orde red buccal swab be suppressed in light of 1 the warrantless January 1, 2007, hand swab. In the second motion, Defendant asserted 2 that his federal and state constitutional rights were violated when, following a 3 protective sweep, Officer Carter entered the motel room without a warrant and 4 examined the tread on a pair of boots. De fendant further requested that the district 5 court suppress the items of clothing, phot ographs, plastic leis, currency and other 6 documents that were found in the motel room. The district court denied both of 7 Defendant’s motions to suppress. 8 {8} Following a jury trial, Defendant was sentenced to life imprisonment for the 9 two willful and deliberate first degree murder charges, eighteen months for the 10 tampering with evidence charge, and 364 daysfor the concealing of identity charge. 11 Defendant appeals his convictions directly to this Court. We exercise appellate 12 jurisdiction where life imprisonment has been imposed. N.M. Const. art. VI, § 2; Rule 13 12-102(A)(1) NMRA (appeal from sentence of life imprisonment taken directly to 14 Supreme Court). 15 {9} Defendant raises four issu es on appeal: (1) Officer Carter’s entry into the motel 16 room to search for evidence violated De fendant’s constitutional rights because it was 17 not pursuant to a warrant or justified by anexception to the warrant requirement; (2) 18 Detective O’Neil’s swabbing of Defendant’s hands for DNA evidence violated 19 Defendant’s constitutional rights because th e swabbing was not pursuant to a warrant 205 or justified by an exception to the warrant requirement; (3) the trial court erred in 1 admitting the boots seized from Defendant’s motel room into evidence because the 2 State failed to establish an adequate chain of custody; and (4) there was insufficient 3 evidence to support Defendant’s first degree murder conviction. 4 II. DISCUSSION 5 A. Neither The Warrantless Entry i nto Defendant’s Motel Room nor The 6 Swabbing of Defendant’s Hands for DNA Evidence Violated Defendant’s 7 Constitutional Rights because Both W ere Justified by Exigent Circumstances

. 8
{10} Appellate review of a motion to suppre ss presents this Court with a mixed 9 question of law and fact. State v. Leyva , 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 10 P.3d 861. We review the fact s in the light most favorab le to the prevailing party, 11 giving deference to the district court’s findings of fact that are supported by 12 substantial evidence. State v. Urioste , 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 13 964. We review the legal determinations de novo. Id. 14 {11} Defendant’s motion to suppress the hand swab and motion to suppress the 15 search of the motel room each claimed th at the searches were illegal under both the 16 United States Constitution and the New Mexi co Constitution. The trial court denied 17 both of Defendant’s motions to suppress, but did not specify whether the ruling was 18 based on the exigent circumstance excepti on under the Fourth Amendment to the 19 United States Constitution or under Artic le II, Section 10 of the New Mexico 20 Constitution. The trial court did, however , rely on the Court of Appeals case of State 216 v. Valdez to reach its conclusion that exigent circumstances were present, which 1 justified the warantless search. 111 N.M. 438, 441, 806 P.2d 578, 581 (Ct. App. 2 1990) (“The test to determine if exigent circumstances exist is whether, on the basis 3 of the facts known to a prudent, cautious, tr ained officer, the officer could reasonably 4 conclude that swift action was necessary .” (internal citation and quotation marks 5 omitted)). Because Defendant did not receive a ruling on his Fourth Amendment 6 claim, we do not apply our interstitial approach set forth in State v. Gomezto 7 determine whether Defendant’s c onstitutional rights were violated. 1997-NMSC-006, 8 ¶ 19, 122 N.M. 777, 932 P.2d 1. Therefore, we focus our analysis on whether, under 9 the New Mexico Constitution, there were ex igent circumstances which justified the 10 warrantless searches in this case. 11 {12} Article II, Section 10 of the New Mexico Constitution ensures that 12 [t]he people shall be secure in thei r persons, papers, homes and effects, 13 from unreasonable searches and seizures, and no warrant to search any 14 place, or seize any person or thing, shall issue without describing the 15 place to be searched, or the persons or things to be seized, nor without 16 a written showing of probable cause, supported by oath or affirmation. 17 “[U]nless there is an exception to the warrant requirement, the government must get 18 a warrant before exceeding the sc ope of a private search.” State v. Rivera , 2010- 19 NMSC-046, ¶ 25, 148 N.M. 659, 241 P.3d 1099. “Among the recognized exceptions 20 to the warrant requirement are exigent circumstances, consent, searches incident to 21 arrest, plain view, inventory searches, open field, and hot pursuit.” State v. Duffy , 227 1998-NMSC-014, ¶ 61, 126 N.M. 132, 967 P.2d 807. “For entry into the home to be 1 lawful, officers must have probable cause in addition to exigent circumstances.” State 2 v. Ryon , 2005-NMSC-005, ¶ 26 n.4, 137 N.M. 174, 108 P.3d 1032. 3 {13} This Court has defined exigent circum stances as “an emergency situation 4 requiring swift action to prevent imminent danger to life or serious damage to 5 property, or to forestall the imminent escap e of a suspect or destruction of evidence.” 6 State v. Saiz , 2008-NMSC-048, ¶ 13, 144 N.M. 663, 191 P.3d 521, overruled in part 7 on a use immunity issue by State v. Belanger , 2009-NMSC-025, 146 N.M. 357, 210 8 P.3d 783 (internal quotati on marks and citation omitted). Whether exigent 9 circumstances exist “requires a determination [of] whether ‘on the basis of the facts 10 known to a prudent, cautious, trained officer , the officer could reasonably conclude 11 that swift action was necessary.” Id. (internal quotation marks and citation omitted). 12 The exigent circumstances exception “provide s a range of reasonable discretion to an 13 officer on the scene.” Id. ¶ 15. This “reasonable discretion” analysis aligns with the 14 key inquiry under Article II, Secti on 10, which is reasonableness. See Campos v. 15 State , 117 N.M. 155, 157, 870 P.2d 117, 119 ( 1994) (“[T]he ultimate question is 16 whether the search and seizure was reasonable.” (internal quotation marks and citation 17 omitted)); State v. Attaway , 117 N.M. 141, 149, 870 P.2d 103, 111 (1994), modified 18 on other grounds by State v. Lopez , 2005-NMSC-018, ¶¶ 13-20, 138 N.M. 9, 116 P.3d 19 80. Therefore,“[t]he fact that a different course of action also would have been 208 reasonable does not mean that [an officer's] conduct was unreasonable.” Saiz , 2008- 1 NMSC-048, ¶ 15 (internal quotati on marks and citation omitted). 2 1. Entry into Defendant’s Motel Room 3 {14} Neither party disputes the fact thatOfficer Carter entered the motel room 4 without a warrant. Defendant contends, however, that Officer Carter’s warrantless 5 entry was not justified by exigent circumstan ces, and therefore, the trial court erred 6 in denying Defendant’s motion to suppre ss the evidence obtained from the motel 7 room. Defendant requests thatwe reverse his convictions and remand for a new trial. 8 In response, the State claims that Defendantlacked standing to object to APD’s entry 9 into the motel room. The State notes, how ever, that even if Defendant did have 10 standing to object to APD’s entry into the motel room, the evidence presented at the 11 motion to suppress hearing established all three types of exigent circumstances, 12 justifying Officer Carter’s entry. We assume, without deciding, that Defendant had 13 standing to object to APD’s entry into the motel room. 14 {15} The trial court made the following factual findings at the motion to suppress 15 hearing: 16 Officer Carter has put things in perspective. He te stified we don’t know 17 what we’re up against. He also tes tified the issue [sic] matched two sets 18 of prints. So there was a little bit of confusion, but there was a need for 19 investigation. And this fact about issue matched two sets of prints, this 20 increases the degree of exigent ci rcumstances. Exigent circumstances 21 means an emergency situation. And we know that we had an emergency 22 situation requiring swift action to prevent imminent danger to life or to 239 forestall the imminent escape of a susp ect, and three, to avoid destruction 1 of evidence. That is the defi nition of exigent circumstances. 2 And in this situation and in this emergency situation, the officers 3 were faced with all these prongs of exigent circumstances. 4 State v. Valdez states that on the basis of the facts known to 5 prudent, cautious, trained officers, th e officer could reasonably conclude 6 that swift action was necessary. It is evident from the situation that we 7 have here and from what Officer Carter testified that there was a dire 8 need for swift action in the present case, the officers needed swift action 9 because they needed to quickly co mpare the shoe print to the prints 10 visible from the crime scen e. If it was not a matc h . . . they needed to 11 continue the search for the shoe withprints matching the footprints from 12 the crime scene. At th e time, the issue was searched. A prudent officer 13 could believe that there was potentially imminent danger to life, 14 imminent escape of a suspect or potential destruction of evidence. 15
{16} In viewing Officer Carter’s testimony through the lens of what a prudent, 16 cautious, trained officer knew, we determine that Officer Carter’s actions were 17 reasonable. Normally, the exigent circum stance of imminent escape of the suspect 18 applies to a situation where a suspect has yet to be detained. In this case, the fear was 19 not the imminent escape of Defendant, but th at if the boot did not match the prints in 20 the snow, then the killer was not yet detain ed. The fear of a shooter on the loose 21 causing additional harm to others while a search warrant was secured, the limited 22 purpose of Officer Carter’s entry and pres ence in the motel room, the short amount 23 of time Officer Carter spent in the motel room, and the fact that Officer Carter did not 24 touch the boots, are all factors which illustrate the reasonableness of Officer Carter’s 2510 search. Therefore, we hold that Officer Carter’s actions were reas onable, and the trial 1 court did not err in denying Defendant’s motion to suppress the evidence obtained 2 from the motel room. 3 2. Swabbing of Defendant’s Hands for Biological Evidence 4 {17} The district court denied Defendant’s pretrial motion to suppress the results of 5 the January 1, 2007, hand swab and all evidence derived from that hand swab. This 6 motion included a specific request that th e result of a subsequent State-requested 7 mouth swab of Defendant besuppressed because it was obtained as a result of the 8 unconstitutional January 1, 2007, hand swab. 9 {18} The State argues that even if Defendant ’s January hand swab was improper, the 10 State’s March request for a mouth swab, wh ich linked Defendant to the scene of the 11 crime, was independent of the January hand swab. The timing of when the swabs 12 were taken from Defendant and when they were actually analyzed is relevant to this 13 issue. 14 {19} Detective O’Neil swabbed Defendant’s hands for DNA evidence on January 1, 15 2007, but these swabs were not analyzeduntil May 2007. On March 26, 2007, two 16 months before the January hand swabs wereanalyzed, the State filed its motion to 17 obtain a mouth swab from Defendant. The St ate argued that “Defendant is alleged to 18 be the person that committed the criminal act s of two (2) Open counts of Murder ” and 19 that “material evidence in this cause consists of bl ood evidence which was collected 2011 in multiple areas at the crime scene.” The trial court granted the State’s motion for the 1 mouth swab on July 12, 2007. At the Febr uary 13, 2009, motion to suppress hearing, 2 the trial court again stressed that “the [January 1, 2007, hand] sw abs were not part of 3 the consideration for granting the motion fo r [the mouth] swabs.” The January hand 4 swab of Defendant did not “taint” any of the subsequent evidence which linked 5 Defendant to the crime. All the hand sw ab revealed was Defendant’s own DNA. It 6 was the subsequent mouth swab, which was asked for by the State and granted by the 7 trial court independent of, and prior to, the January hand swab results, that linked 8 Defendant to the crime. Th erefore, the mouth swab was independent of the January 9 1, 2007, warrantless search of Defendant. 10 {20} There were also exigent circumstan ces which, when viewed objectively, 11 justified the warrantless hand swab of Defendant. Detective O’Neil indicated that he 12 was told to swab Defendant’shands for the presence of Victims’ “biological material” 13 because, despite the fact that Defendanthad taken a shower, there was still the 14 possibility of Victims’ DNA being present on Defendant. The concern was that if 15 Defendant’s hands were not swabbed immediately, he w ould have had additional time 16 to destroy this potential evidence. Becausethe biological material could have been 17 destroyed, the warantless hand swab wa s justified by exigent circumstances. 18 Accordingly, the trial court properly de nied Defendant’s motion to suppress the 19 January 1 hand swab and subsequent mouth swab. 2012 {21} “We examine the admission or exclusion of evidence for abuse of discretion, 1 and the trial court’s determination will not be disturbed absent a clear abuse of that 2 discretion.” State v. Stanley , 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85. 3 B. The Trial Court Did Not Abuse Its Discretion in Admitting the Boots into 4 Evidence Because the State Established an Adequate Chain of Custody of the 5 Boots from the Time They Were Taken from the Motel Room Until They Were 6 Entered into Evidence. 7

{22} Defendant claims that the trial court a bused its discretion in admitting the boots 8 as an exhibit because the chain of custody was not properly established according to 9 State v. Chavez , 84 N.M. 760, 761, 508 P.2d 30, 31 (Ct. App. 1973). Chavez stated: 10 In order to admit real or demonstrative evidence at trial, the item of 11 evidence in question must be identified, either visually or by establishing 12 the custody of the object from the time it was seized to the time it is 13 offered in evidence. For admission, it suffices if the evidence establishes 14 it is more probable than not the objectis the one connected with the case. 15 Id. (internal citations omitted). Defendant asserts this claim pursuant to State v. 16 Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer , 103 N.M. 17 655, 658, 712 P.2d 1, 4 (Ct. App. 1985). 18 {23} Chavez listed factors to be considered inmaking a determination of whether a 19 chain of custody was established before anexhibit was entered into evidence. 84 20 N.M. at 761, 508 P.2d at 31. These factors “include the nature of the article, the 21 circumstances surrounding the preservati on and custody of it, and the likelihood of 22 intermeddlers tampering with it.” Id. (citing United States v. S. B. Penick & Co. , 136 2313 F.2d 413, 415 (2d Cir. 1943)). N onetheless, it is not required that the State establish 1 the chain of custody in sufficient detail to exclude all possibility of tampering. 2 Claridge v. N.M. State Racing Comm’n , 107 N.M. 632, 640, 763 P. 2d 66, 74 (Ct. 3 App. 1988). A potential gap in establishing a chain of custody affects the weight of 4 the evidence, not its admissibility. State v. Peters , 1997-NMCA-084, ¶ 26, 123 N.M. 5 667, 944 P.2d 896. 6 {24} In this case, it was during Detective Jennifer Garcia’s (Garcia) testimony that 7 the State entered the boots into evidence. Detective Garc ia admitted that she did not 8 physically receive the boots from the mote l room, but had told Detective Eric 9 Beckstrom (Beckstrom) to collect the boot s. She then saw Detective Beckstrom 10 collect the boots and put them in a bag. After returning to the Albuquerque Police 11 Department Crime Lab (APD Crime Lab), Detective Garcia took the same boots out 12 of the bag, which was being stored inthe APD evidence locker. According to 13 Detective Garcia, she disposed of the in itial bag and placed each boot in separate 14 bags. She then proceeded to label and s eal the bags, placing her initials on the seals. 15 {25} When Detective Beckstrom took the stand, he testified that he “was involved 16 with helping bag and collect some items inside the room.” When asked if he 17 personally handled the boots, he stated that“I could very well have. I know that we 18 bagged some particular items in there. It’s possible I could have bagged a pair of 19 [boots] that was found inside that room .” Detective Beckstrom was then shown 2014 Exhibits 137 and 138, the boots. He coul d not identify the handwriting on the bags, 1 but testified that any evidence he had bagged would have ha d his initials on it. 2 Detective Beckstrom stated th at “I see my name on [thebag] and the time it was 3 collected, and I was in the room at that tim e. As to it being th e bag that I put [the 4 boots] into, it’s not my writing on the bag.” Detective Beckstrom and Detective 5 Garcia’s testimony established a chain of custody that accounted for the boots from 6 the time they were collected from the mote l room until they appeared in court and 7 were entered into evidence. 8 {26} The chain of custody was proven through the Detectives’ testimony and 9 established that the boots that were entered into evidence were the same boots 10 collected from the motel room. The trial court, therefore, did not abuse its discretion 11 by admitting the boots into evidence. Any concern regarding a potential gap in the 12 chain of custody of the boots would affect the overall weight of the evidence, not its 13 admissibility. Peters , 1997-NMCA-084, ¶ 26. 14 C. There was Sufficient Evidence of Deliberate Intent to Support Defendant’s 15 Convictions of First Degree Murder. 16
{27} “The test for sufficiency of the evid ence is whether substantial evidence of 17 either a direct or circumstantial nature exists to support a verdict of guilty beyond a 18 reasonable doubt with respect to every element essential to a conviction.” State v. 19 Riley , 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks 20 and citation omitted). We view“the evidence in the light most favorable to the guilty 2115 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence 1 in favor of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 2 998 P.2d 176. 3 {28} Defendant contends that there was insuffi cient evidence to convict him of first 4 degree murder, claiming that the evidence supports “at most , a finding of a rash and 5 impulsive shooting after a vehicular accident , and cannot be characterized as willful 6 and deliberate first degree murder.” He argues that “the State failed to provide any 7 affirmative evidence of deliberation that would elevate the killings to the highest 8 degree of murder.” In response, the State claims that there wa s sufficient evidence to 9 support Defendant’s deliberate intent to kill. To support deliberate intent, the State 10 relies upon the fact that Defendant climbed into the back seat of Victims’ vehicle and 11 shot Victims in the head at extremely close range. 12 {29} The requisite state of mind for first de gree murder is a “willful, deliberate and 13 premeditated” intention to kill. NMSA 1978, § 30-2-1(A)(1) (1994); see also State 14 v. Adonis , 2008-NMSC-059, ¶ 14, 145 N.M. 102, 194 P.3d 717. “The word deliberate 15 means arrived at or determined upon as a re sult of careful thought and weighing of the 16 consideration for and against the proposed course of action.” UJI 14-201 NMRA. 17 Though deliberate intent requires a “calcu lated judgment” to kill, the weighing 18 required for deliberate intent “may be arrived at in a short period of time.” Id. In 19 determining whether a defendant made a cal culated judgment to kill, the jury may 2016 infer intent from circumstantial evidence; direct evidence of a defendant’s state of 1 mind is not required. State v. Duran , 2006-NMSC-035, ¶ 7, 140 N.M. 94, 140 P.3d 2 515. 3 {30} Defendant claims his case is analogous to State v. Garcia , 114 N.M. 269, 837 4 P.2d 862 (1992), and State v. Taylor , 2000-NMCA-072, 129 N.M. 376, 8 P.3d 863. 5 Defendant argues that, as in Garcia and Taylor , the evidence supports no more than 6 a finding of second degree murder becausethere was insufficient evidence to show 7 that he “weighed the considerations for and against his proposed course of action; and 8 that he weighed and considered the questi on of killing and his reasons for and against 9 his choice.”; Taylor , 2000-NMCA-072, ¶ 19 (citing Garcia , 114 N.M. at 274, 837 10 P.2d at 867). It is for his lack of deliberate intent that Defendant asks us to reverse his 11 convictions. We determine, however , that there was enough physical and 12 circumstantial evidence from which the jury could have found beyond a reasonable 13 doubt that Defendant had the deliber ate intent to kill Victims. Duran , 2006-NMSC14 035, ¶ 7 (stating that intent may be in ferred from circumstantial evidence; direct 15 evidence is not required). 16 {31} The evidence presented in this case showed that Defendant, following the 17 accident, was inside the Explorer when he killed Victims. According to Laura Pearn, 18 a forensic scientist for the APD Crime Lab, Defendant’s DNA was on the right rear 19 fender, the interior side panel of the right rear door, and the right rear interior door 2017 handle of the Ford Explorer. DNA was also found on the gun. The DNA test 1 conducted on the gun ruled out Gilkey and Davidson’s DNA, butwas not able to rule 2 out Defendant’s DNA. 3 {32} Evidence relating to Victims’ gunshot wounds also supports the conclusion that 4 Defendant was inside the Explorer when heshot Victims. Dr. Michelle Barry (Dr. 5 Barry), who supervised Victims’ autopsies, testified that Gilkey was shot “in the back 6 of the head on the left-hand side, clos e to the middle” of her head. Dr. Barry 7 concluded that Gilkey’s death was a homicide. Davidson su ffered a gunshot wound 8 that entered at her left cheek and exited at her neck. InDavidson’s case, there was a 9 four by four inch area of gunpowder stippli ng around the wound. Because of the 10 stippling, Dr. Barry estimated the range of fire, the distance fro m the end of the gun 11 to Davidson’s skin, to be between six and sixteen inches. Dr. Barry ruled Davidson’s 12 death as a homicide. MichaelHaag, a scientist in the firearms and toolmarks unit of 13 the APD Crime Lab, concluded that based on the “orientati on of the decedents in this 14 vehicle [and] the location of cartridge cas ings,” the gunshots were likely fired from 15 the rear towards the front of the vehicl e, possibly between the two seats. In State v. 16 Coffin , this Court found sufficient evidence of deliberation where the defendant shot 17 the victim from behind. 1999-NMSC -038, ¶ 76, 128 N.M. 192, 991 P.2d 477. 18 {33} Officer Jesse Becton testified that when he first approached Defendant’s 19 vehicle, he noticed shoe prints leading aw ay from Defendant’s vehicle, but that no one 2018 was in or around the vehicle. Officer Frank Tilliman testified that when he 1 approached the Explorer he saw shoe prints leading away from the Explorer, toward 2 the Inn. From this evidence , a reasonable jury could infer that in the time it took 3 Defendant to exit his vehicle and walk to the Explorer, he had enough time to weigh 4 the considerations for and against killing Victims. 5 {34} Viewing the evidence in a light most favor able to the verdict, we conclude that 6 a reasonable jury could find that Defendant had the deliberate intent to kill Victims. 7 Accordingly, there was sufficient evidence to support Defendant’s first degree murder 8 conviction. 9 III. CONCLUSION 10 {35} The trial court did not abuse its discre tion (1) when it denied the motions to 11 suppress evidence and (2) when it admitted the boots into evidence. There was 12 substantial evidence of Defendant’s deliber ate intent to kill Victims. We affirm 13 Defendant’s convictions. 14 {36} IT IS SO ORDERED. 15

______________ _________________ _____ 16 PETRA JIMENEZ MAES, Chief Justice 1719 WE CONCUR: 1

_________________________________ 2 PATRICIO M. SERNA, Justice 3

_________________________________ 4 RICHARD C. BOSSON, Justice 5

_________________________________ 6 EDWARD L. CHÁVEZ, Justice 7

_________________________________ 8 CHARLES W. DANIELS, Justice 9