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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. 32,992 4 GUILLERMO RUIZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 James Waylon Counts, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Adam Greenwood, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Allison H. Jaramillo, Assist ant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge. 192 {1} Defendant Guillermo Ruiz killed Anabel Calzada Alvarado (Victim) in Ruidoso 1 and then wrapped her body in a blanket and burned it in Juarez, Mexico. Defendant 2 was convicted of second degree murder and tampering with evidence and now 3 appeals. Defendant argues that (1) the district court erred in finding him competent to 4 stand trial and in refusing to submit the i ssue of competency to the trial jury; (2) 5 prosecutorial misconduct at closing argument requires reversal; and (3) the conviction 6 for tampering with evidence was based on insufficient evidence. We affirm. Because 7 this is a memorandum opinion and because th e parties are familiar with the case, we 8 reserve discussion of the facts for ouranalysis of the issues on appeal. 9 DISCUSSION 10 Competency to Stand Trial 11 {2} “It is a violation of due process to pr osecute a defendant who is incompetent to 12 stand trial.” State v. Flores , 2005-NMCA-135, ¶ 16, 138 N.M. 636, 124 P.3d 1175 13 (alteration, internal quotati on marks, and citation omitted) . A defendant is competent 14 to stand trial when he (1) understands th e nature and significance of the criminal 15 proceedings against him, (2) has a factual understanding of the criminal charges, and 16 (3) is able to assist his attorney in his defense. State v. Chapman , 1986-NMSC-037, 17 ¶ 14, 104 N.M. 324, 721 P.2d 392. 18 {3} Rule 5-602(B)(2) NMRA provides that a defendant’s competency is determined 19 by the judge, “unless the judge finds ther e is evidence which raises a reasonable 203 doubt” about the issue. In cases where a reasonable doubt is raised prior to trial, “the 1 court shall order the defendant to be evaluated as provided by law.” Rule 5- 2 602(B)(2)(a). After the evaluati on, “the court, without a jury, may determine the issue 3 of competency to stand trial; or, in its disc retion, may submit the issue . . . to a jury[.]” 4 Id. When the issue of competency is raised again at trial, we have previously held that 5 the district court need not submit the issue to the jury in the ab sence of new evidence 6 sufficient to create a reasonable doubt. State v. Rael , 2008-NMCA-067, ¶¶ 22-23, 25, 7 144 N.M. 170, 184 P.3d 1064. 8 {4} Defendant makes two arguments related tocompetency on appeal: (1) that the 9 district court erred in refusing to submit the issue to a jury, and (2) that the district 10 court erred in finding Defendant competent tostand trial. Defendant argues that the 11 standards of review that weapply to these two issues differ—specifically, that we 12 should apply something less deferential than an abuse of discretion standard to the 13 substantive competency question. 14 {5} However, the appropriate standards are well settled. The defendant ultimately 15 bears the burden of proving that he is incompetent by a preponderance of the 16 evidence. See State v. Chavez , 2008-NMSC-001, ¶ 11, 143 N.M. 205, 174 P.3d 988. 17 “If the district court finds reasonable doubt as to competency, the issue is submitted 18 to a jury.” Rael , 2008-NMCA-067, ¶ 6. We review both a district court’s decision not 19 to send the issue to the jury and its substantive competency determination for an abuse 204 of discretion. State v. Lopez , 1978-NMSC-060, ¶¶ 5-6, 91 N.M. 779, 581 P.2d 872; 1 Rael , 2008-NMCA-067, ¶ 6; State v. Garcia , 2000-NMCA-014, ¶ 20, 128 N.M. 721, 2 998 P.2d 186. In fact, as a logical matter, the inquiries in this case are one and the 3 same. If there was no reasonable doubt as to Defendant’s competency to stand trial, 4 then there can be no preponderance of the ev idence to the contrary, and “there is no 5 question for a jury to decide.” State v. Noble , 1977-NMSC-031, ¶ 7, 90 N.M. 360, 563 6 P.2d 1153. 7 {6} The record reflects a long, deliberate attempt by all involved to ascertain and 8 ensure Defendant’s competency. In accordan ce with Rule 5-602(B)(2), the court twice 9 committed Defendant to the New Mexico Beh avioral Health Institute (NMBHI) for 10 evaluation and treatment. The first transf er to NMBHI was ordered after defense 11 counsel asked Dr. Eric Westfried to evaluate Defendant’s mental state for the purpose 12 of ascertaining Defendant’s capacity to fo rm intent. Dr. Westfried conducted clinical 13 and forensic interviews of Defendant, who reported that he was traumatized by prior 14 emotional and sexual abuse th at he experienced as a teenager at an adolescent 15 treatment program. Dr. Westfried conduc ted a battery of tests on Defendant, 16 interviewed Defendant’s sister, and review ed court records and prior mental health 17 records, ultimately concluding that Defendant had a twenty-year history of “what has 18 been diagnosed as post-traumatic stress disorder” (PTSD) and “he probably has a 19 schizophrenia disorder.” The findings in th e Westfried evaluation prompted the court 205 to consign Defendant to NMBHI, where hewas under “close observation” for several 1 months. 2 {7} During his commitment at NMBHI, Defendant was evaluated on eight 3 occasions by Dr. Gina Bettica. Dr. Betti ca reviewed Dr. Westfried’s report and 4 administered hours of clinical interviews and psychological testing geared specifically 5 to ascertain Defendant’s competency tostand trial. According to Dr. Bettica, 6 Defendant “demonstrated a good understandi ng and appreciation” of his pending 7 charges. He understood that he faced fe lony-level offenses and recognized the 8 differences between felonies and misdemeanors and between degrees of felonies. 9 Defendant understood the consequences of a conviction and was aware of the 10 penalties he faced. He also understood general conditions of probation, and he knew 11 that a not guilty verdict means that “cha rges are dismissed and that defendants go 12 home.” Defendant recognized the difference be tween a bench trial and a jury trial; he 13 understood the roles of the major courtr oom personnel; he understood the basics of 14 sentencing; and he “evidenced an ade quate understanding and appreciation of the 15 possible pleas he [could] enter” and of the plea agreement process generally. 16 {8} Dr. Bettica also concluded that Defendant possessed the basic capacity to assist 17 in his own defense. He kne w who his attorney was and generally understood attorney18 client privilege. Defendant was familiar with courtroom decorum and demonstrated 196 the ability to “maintain appropriate levels of attention during the proceedings,” 1 especially if reminded to focus during important proceedings by his attorney. 2 {9} Dr. Bettica and other NMBHI personne l disagreed with Dr. Westfried’s 3 findings related to PTSD and schizophrenia disorder. Dr. Bettica diagnosed Defendant 4 with a general personality disorder becausehis symptoms “were atypical of patients 5 with [PTSD] and because he responded to di agnostic testing specific to [PTSD] in a 6 less than forthright manner.” Similarly, Dr . Djillali Boudjenah, a psychiatrist, and Dr. 7 Mary Weiss, a psychiatry resident, both reported that Defendant’s symptoms were 8 inconsistent with PTSD, diagnosing him in stead with a general mood disorder. They 9 noted that Defendant’s self-report of distress was “not corroborated by observation of 10 him on the unit[.]” 11 {10} After Defendant’s discharge from NMBHI, defense counsel referred Defendant 12 back to Dr. Westfried for an independe nt competency evaluation. Dr. Westfried 13 reviewed the Bettica report and conducted anadditional six hours of clinical and 14 forensic interviews and psychological te sting of Defendant at the Otero County 15 Detention Center. Dr. Westfried agreed with Dr. Bettica that Defendant had “an 16 adequate basic understanding of the roles of courtroom participants, available pleas 17 including forfeited rights involved in a plea agreement, and the concept of 18 proportionality as it is applied to severity of offense and consequences.” However, Dr. 19 Westfried found that Defendant was not competent to proceed to trial because he had 207 no rational perspective on his own case and would be unable to assist in his own 1 defense. “Although he has th e knowledge to understand his charges and how the legal 2 system works in a case like hi s,” Dr. Westfried stated, “he is unable at the present time 3 to rationally use those abilities due to hi s [PTSD].” Dr. Westfried predicted that 4 Defendant would not accept a plea and that hewould instead argue to the jury that 5 Victim’s death was a result of the mistreatment he suffered as a teenager at the 6 adolescent youth program. Dr. Westfried also noted that Defendant reported that “he 7 [would] kill himself” if not acquitted of the murder charge. 8 {11} Faced with conflicting reports related to Defendant’s ability to assist in his own 9 defense, the district court again committed Defendant to NMBHI for treatment to 10 ascertain competency. This time, Defendant was uncooperative w ith clinicians and 11 hospital staff. According to Dr. Douglas Davis, who issued the final forensic report, 12 Defendant’s stay was “notable for his secrecy, refusals to e ngage in testing and 13 treatment, and attempts to manipulate and c ontrol staff and proce dures and thereby get 14 his way.” Because of this, Dr. Davis’s fi ndings relied primarily on two-and-a-half 15 months of “24-hour behavioral observations by unit staff[,]” and only minimal 16 psychological testing. 17 {12} Dr. Davis, like Dr. Bettica, Dr. Boudjenah , and Dr. Weiss before him, disputed 18 Dr. Westfried’s conclusion that Defendantsuffered from PTSD. According to Dr. 19 Davis, “No one who saw [Defendant] in the forensic unit after he was charged, 208 including two psychologists, the acting chief of psychiatry, two staff psychiatrists, a 1 nurse practitioner, and a [fourth]-year psyc hiatry resident, believed that he had 2 PTSD.” The Davis report strongly suggestedthat Defendant wa s exaggerating his 3 symptoms: “[H]e was evasive, petulant, mani pulative, and self-serving. He threatened 4 to ‘get suicidal’ if he did not get his way.” Dr. Davis noted thatDefendant was “goal5 directed” and frequently wanted to review what was being written about him. Other 6 clinicians corroborated these findings, recognizing Defendant’s deceitfulness and 7 “volitional” refusal to participate in c linical evaluation. Dr. Davis ultimately 8 diagnosed Defendant with a psychotic di sorder but found that his condition did not 9 impair his present competency. He concl uded that Defendant’s behavior on the unit 10 suggested a man with few scruples and much to hide, features more 11 typically associated with personality disorders than mental illness. 12 Whether he does or does not have much to hide is not at issue, but given 13 the stakes, he is right to watch whathe says and does, and wise to worry 14 about what others write, think, an d say about him. Considering his 15 situation, such thinking and behavior are reasoned, self-protective, and 16 in his best interest. That is, they are rational. . . . [Defendant] precisely 17 understands and fully appreciates his le gal situation. He is competent to 18 stand trial and enter a plea. 19 {13} On June 22, 2012—over four years after Dr. Westfried conducted the first 20 evaluation of Defendant—the district court he ld a competency hearing to consider the 21 conflicting evidence. Defense counsel told the court that representing Defendant had 22 been “a long arduous situation” and an “i mpossible task.” Defense counsel reported 23 that the attorneys had designed a plea agreement that was “the appropriate resolution” 249 but that Defendant instead desired to proceed to trial and testify to the jury about the 1 abuse he experienced as a teenager. 2 {14} Dr. Westfried and Dr. Davis both testif ied at the hearing. Their testimony 3 largely mirrored their reports, although Dr. Westfried referred to the rejected plea 4 agreement mentioned by defense counsel. Dr . Westfried described the agreement as 5 a “reasonable offer . . . that would redu ce [Defendant’s] exposure by half, if not 6 more.” He opined that Defendant’s decision toproceed to trial to assert an insanity 7 defense based on his mistreatment as a teenager would only “aggravate the catastrophe 8 of the situation.” 9 {15} Both experts agreed that Defendant was manipulative and difficult to work 10 with. No evidence was presented that De fendant failed to understand either the 11 criminal proceedings or the charges agains t him. The gist of the evidence was that 12 Defendant was not c ooperating with counsel. As the district court recognized, the 13 question before the court was whether that was “a choice that ha[d] been made,” or 14 whether Defendant “lack[ed] the capacity to make that choice.” The court ultimately 15 concluded that Defendant was “able to assist his attorney in his defense, even though 16 . . . he ha[d] chosen not to take his attorney’s advice.” 17 {16} On appeal, this issue is resolved by the unremarkable rule that “[t]he reviewing 18 court cannot substitute its judgment for that of the trial court[,]” Lopez , 1978-NMSC19 060, ¶ 6, even when the determination be low required a finding of competency beyond 2010 a reasonable doubt. State v. Montano , 1979-NMCA-101, ¶¶ 12-14, 93 N.M. 436, 601 1 P.2d 69 (rejecting the argument that conflicti ng expert testimony forecloses the trial 2 court from ruling that there is no reasonabl e doubt as to competency). “Viewing the 3 evidence,” as we must, “in th e light most favorable to the trial court’s decision,” 4 Lopez , 1978-NMSC-060, ¶ 7, we hold that th e district court did not abuse its 5 discretion when it credited the views of Defendant’s competency expressed by Dr. 6 Davis, Dr. Bettica, and the other clinic ians referenced in the NMBHI reports. See 7 Grant v. Cumiford , 2005-NMCA-058, ¶ 13, 137 N.M. 485, 112 P.3d 1142 (“When 8 there exist reasons both supporting and detracting from a trial court decision, there is 9 no abuse of discretion.” (internal quotation marks and citation omitted)). As we have 10 shown, these views were ba sed on extensive clinical and forensic interviews, 11 psychological testing, and months of observation of Defendant at NMBHI. 12 {17} The argument to the contrary, which re lied largely on Defendant’s seemingly 13 irrational refusal to accept wh at defense counsel and its witness believed to be a 14 beneficial plea, is not so airtight that it w ould be an abuse of discretion for the district 15 court to reject it. An entirely competent de fendant may choose to have his fate decided 16 by a jury of his peers, even when doi ng so seems unreasonable to those who do not 17 stand in the defendant’s shoes. We affi rm both the district court’s decision that 18 competency was established beyond a reas onable doubt and its subsequent decision 19 not to relitigate the same issue when the defense raised it again on the day of trial 2011 without bringing forth any new evidence. See Rael , 2008-NMCA-067, ¶ 22 (holding 1 that the reasonable doubt requirement “i s implied” under Rule 5-602(B)(2)(b) when 2 the issue of competency is re-raised at trial). 3 Prosecutorial Misconduct 4 {18} Defendant next argues that prosecutorial misconduct at closing argument 5 requires reversal. He argues first that the State incited the passion of the jury by 6 calling Defendant “a cold[-]blooded manipul ating calculated killer” and by asking the 7 jury to find Defendant guilty for Victim; and second, that the State misstated the law 8 when it implied that Defendant would go free if found not guilty by reason of insanity. 9 Defendant also contends that the district court erred in refusing a proposed instruction 10 to cure the latter statement. The State counters that De fendant takes the prosecutor’s 11 words out of context and that the statements do not require reversal, either 12 individually or combined. 13 {19} In closing argument, it is improper for a prosecutor to “misstate the law” to the 14 jury, State v. Diaz , 1983-NMCA-091, ¶ 18, 100 N.M. 210, 668 P.2d 326, or to 15 comment on the veracity of a witness in a way that is intended to “incite the passion 16 of the jury.” State v. Aguilar , 1994-NMSC-046, ¶ 22, 117 N.M. 501, 873 P.2d 247 17 (internal quotation marks and citation omitted) . However, “[t]he trial court has broad 18 discretion in controlling the conduct and remedying the errors of counsel during trial. 19 An appellate court reviews comments madein closing argument in the context in 2012 which they occurred so as to gain full appreciation of the comments and their potential 1 effect on the jury.” State v. Estrada , 2001-NMCA-034, ¶ 24, 130 N.M. 358, 24 P.3d 2 793 (internal quotation marks and citations omitted). “If the prosecutor’s closing 3 comments were inappropriate, [the d]efen dant must show that the comments were 4 prejudicial and prevented him from receiving a fair trial in order to prevail on appeal.” 5 State v. Sellers , 1994-NMCA-053, ¶ 20, 117 N.M. 644, 875 P.2d 400. 6 {20} Our Supreme Court has discerned three factors relevant to the analysis: 7 (1) whether the statement invades so me distinct constitutional protection; 8 (2) whether the statement is isolated and brief, or repeated and pervasive; 9 and (3) whether the statement is inv ited by the defense. In applying these 10 factors, the statements must be eval uated objectively in the context of the 11 prosecutor’s broader argument and the trial as a whole. 12 State v. Sosa , 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 348. 13 {21} The trial in this case lasted six days . The State’s theory was that Defendant 14 committed first degree murder and that th e underlying felony was attempted criminal 15 sexual penetration. Defendant admitted that he killed Victim but disputed any 16 allegations of rape or attemp ted rape. He told the jury that Victim was evil, that he 17 “[saw] her distorted[,]” and that he could not control himself wh en he stabbed her to 18 death. He testified at length about his hi story of abuse at the adolescent treatment 19 program and the effects it had on his physical and mental health. At one point he told 20 the jury that he was “better than God.” He stated that he should take God’s place. 2113 {22} Thus, the primary disputes for the ju ry to resolve were related to (1) 1 Defendant’s state of mind at the time of the killing, and (2) whether Defendant 2 committed the underlying felony of criminal sexual penetration, which was necessary 3 to support the first degree murder char ge. Defense counsel’s closing comments 4 centered on these two issues . Specifically, defense couns el argued that the State 5 presented no evidence to contradict Defendant’s testimony that henever attempted to 6 rape Victim. The defense further emphasi zed that the killing resulted entirely from 7 Defendant’s “moral insanity” brought about in part by Defendant’s history of abuse. 8 Defendant, according to defense counsel, “was unable . . . to understand the 9 consequences of his actions. . . . He is in sane in thinking that the moral consequences 10 [did not] concern him. He was unaware of them because he was God.” 11 {23} In response, the prosecutor attacked Defe ndant’s veracity as a witness for ten 12 straight minutes during rebuttal closing. Healluded to expert testimony that Defendant 13 suffered from a personality disorder (narci ssism) rather than mental illness. The 14 prosecutor argued that Defendant was a biasedwitness, that he wanted the jury “to 15 think he’s crazy[,]” and that, consistent w ith his narcissism, he would act in his own 16 self-interest, exploiting the insanity defens e because it benefitted him. He then stated 17 that Defendant “wants to walk away from this case. He wants to walk away and not 18 take responsibility. He wants to be free. ” He called Defendant “a cold-blooded, 1914 manipulating, calculated killer, ” and he asked the jury to find Defendant guilty of first 1 degree murder for Victim. 2 {24} We conclude that the statements complained of did not prevent Defendant from 3 receiving a fair trial. We are cognizant that “attorneys are afforded reasonable latitude 4 in their closing statements, and rebuttal inparticular is responsive and not always 5 capable of the precision that goes into prepared remarks.” State v. Ramos-Arenas , 6 2012-NMCA-117, ¶ 17, 290 P.3d 733 (internal quotation marks and citation omitted). 7 The comments, while strongly worded, do not appear to have been intended to arouse 8 the prejudices of th e jury, but rather to punctuate a point that was supported by 9 evidence and very much in dispute: that Defendant—suffering from narcissism and 10 not PTSD or schizophrenia—killed Victim in cold blood during an attempted rape, 11 and then feigned his insanity to es cape the consequences of his actions. See Sosa , 12 2009-NMSC-056, ¶ 34 (“[C]ontext is paramount.”). 13 {25} Within this context, the Sosa factors, discussed above, do not point to reversal. 14 The specific statements that Defendant “w ant[ed] to walk away from this case” and 15 that Defendant was “a cold-blooded, manipulating, calculated killer” were isolated 16 comments, unrelated to any distinct cons titutional protection, framed within a broad 17 argument about the insanity defense and about Defendant’s credibility as a witness. 18 See id. ¶ 31 (“[O]ur appellate c ourts have consistently upheld convictions where a 19 prosecutor’s impermissible comments are brief or isolated.”). The prosecutor’s 2015 comments were both central to the State’s theory at trial and invited by defense 1 counsel’s closing statement that Defendant was unaware of his actions because “he 2 was God.” See id. ¶ 33 (“[W]e are leas t likely to find error where the defense has 3 ‘opened the door’ to the prosecutor’s comments by its own argument.”). 4 {26} It is also unlikely that the alleged misconduct had an effect on the outcome of 5 the trial. Sellers , 1994-NMCA-053, ¶ 20 (“[The d]ef endant must show that the 6 comments were prejudicial.”). By all app earances, the jury took seriously its charge 7 to determine the facts from the evidence produced in court, rather than sympathy or 8 prejudice. Far from being prejudiced by th e prosecutor’s arguably improper request 9 that it find Defendant guilty of first degree murder for Victim, the jury acquitted 10 Defendant of both first degree murder and of attempted criminal sexual penetration. 11 “[T]he common thread running through the cases finding reversible error is that the 12 prosecutors’ comments materially altered th e trial or likely confused the jury by 13 distorting the evidence, and thereby deprived the accused of a fair trial.” Sosa , 2009- 14 NMSC-056, ¶ 34

. There is no indication of any such deprivation here. 15 {27} Defendant argues that the comment that Defendant “wants to go free” was 16 intended to mislead the jury into thinki ng that Defendant would go free if the jury 17 accepted his insanity defense. He contends that his request for a curative instruction 18 was improperly denied. While curative instruc tions can offset the prejudicial effect of 19 erroneous statements made during clos ing argument, Defendant’s only proposed 2016 instruction was itself an improper instructi on on the consequences of a jury verdict. 1 See id. ¶ 25.“[I]nstructions regarding the cons equences of a verdict generally are not 2 given. In fact, the jury is expressly admonished not to consider the consequences of 3 its verdict. An instruction on the consequences of a verd ict of not guilty by reason of 4 insanity would present an irrelevant issue to the jury.” State v. Neely , 1991-NMSC5 087, ¶ 29, 112 N.M. 702, 819 P.2d 249 (citations omitted). The only appropriate 6 instruction to cure the prosecutor’s comment that Defendant “wants to be free” was 7 given to the jury on multiple occasions by the State and the court: “You must not 8 concern yourself with the consequences of your verdict.” We presume that the jury 9 followed that instruction “and did not rely fo r its verdict on one verybrief part of the 10 [s]tate’s closing remarks.” State v. Armendarez , 1992-NMSC-012, ¶ 13, 113 N.M. 11 335, 825 P.2d 1245. For all of these reasons, weconclude that statements made by the 12 prosecutor during rebuttal closing argument do not require reversal. 13 The Conviction for Tampering With Evidence 14 {28} Defendant’s final argument is that the St ate failed to present sufficient evidence 15 to sustain a conviction for tampering with evidence. At trial, the State had to prove 16 beyond a reasonable doubt that: 17 1. [D]efendant hid the body of [Vic tim], a knife, clothing, shoes 18 and/or a vehicle; 19 2. By doing so, [D]efendant intended to prevent the apprehension, 20 prosecution or conviction of himself; 21 3. This happened in New Mexico on or about December 18, 2007. 2217 {29} While Defendant characterizes his argument as a “sufficiency of the evidence” 1 challenge, it is undisputed that there was sufficient (if not overwhelming) evidence to 2 sustain a conviction for tampering with at l east some of the alternative items listed in 3 the first element of the jury instructi on. For instance, Defe ndant’s own testimony 4 plainly established that he removed Victim’s body from Ruidoso, New Mexico, 5 because he was afraid of being caught. And Defendant concedes that point on appeal, 6 arguing instead only that “for the majority of the items, the crime happened outside 7 of New Mexico.” He thus contends that “it is unclear if the jury unanimously agreed” 8 that he committed the crime of tampering with evidence based on a sufficient 9 alternative (that he hid Victim’s body), as opposed to an alternative for which there 10 was no evidence that the crime occurred w ithin the jurisdictional limits of New 11 Mexico. We interpret this as a challengeto the general verdict form itself. State v. 12 Godoy , 2012-NMCA-084, ¶ 6, 284 P.3d 410. Sin ce Defendant did not object to the 13 instruction, we review for fundamental error. Id. ¶ 4. “The doctrine of fundamental 14 error applies only under excepti onal circumstances and only to prevent a miscarriage 15 of justice.” State v. Barber , 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. 16 {30} “[W]here alternative theories of guilt are put forth under a single charge, jury 17 unanimity is required only as to the verdict, not to any particular theory of guilt.” 18 Godoy , 2012-NMCA-084, ¶ 6. Our Supreme Court has held that “ajury’s general 19 verdict will not be disturbed in such a case where substan tial evidence exists in the 2018 record supporting at least one of the theories of the crime presented to the jury.” State 1 v. Salazar , 1997-NMSC-044, ¶ 32, 123 N.M. 778, 945 P.2d 996 (emphasis added). In 2 State v. Olguin , our Supreme Court applied the same principle but distinguished 3 between “legally inadequate” and “factually inadequate” bases for conviction. 1995- 4 NMSC-077, ¶ 2, 120 N.M. 740, 906 P.2d 731. De fendant seizes on that distinction, 5 arguing that “the State lacked jurisdiction to proceed on most of the items listed in the 6 jury instruction[,]” and therefore, at leas t some jurors may have convicted him on a 7 “legally inadequate” basis. 8 {31} The argument is unpersuasive. The distin ction between “legally inadequate” 9 and “factually inadequate” bases for convic tion is derived from the rationale that 10 jurors are equipped to spot a factually inad equate theory but thattheir intelligence and 11 expertise cannot ferret outan error in the law. See Griffin v. United States , 502 U.S. 12 46, 58-59 (1991). Thus, while it may be sens ible to reverse a conviction where a 13 general verdict makes it difficult to ascertain whether the conviction was based on a 14 theory that violates double jeopardy (a legal error that the jury cannot be expected to 15 guard against), see, e.g. , State v. Rodriguez , 1992-NMCA-035, ¶ 14, 113 N.M. 767, 16 833 P.2d 244, that same logic does not apply to the factual question before the jury 17 in this case: whether Defendant tampered with Victim’s body in New Mexico on or 18 about December 18, 2007. The jury was well- equipped to make that determination, 19 and there was ample evidence to support it. Under fundamental error review, we 2019 conclude that Defendant’s conviction does not shock the conscience of the Court or 1 amount to a miscarriage of justice. 2 CONCLUSION 3 {32} We affirm in all respects. 4 {33} IT IS SO ORDERED. 5

__________________________________ 6 LINDA M. VANZI, Judge 7 WE CONCUR: 8

_________________________________ 9 RODERICK T. KENNEDY, Judge 10

_________________________________ 11 MICHAEL E. VIGIL, Chief Judge 12