This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Filing Date: September 20, 2018 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4

v. NO. S-1-SC-36459 5 MICHAEL RODRIGUEZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 8 Cindy M. Mercer, District Judge 9 L. Helen Bennett, P.C. 10 Linda Helen Bennett 11 Albuquerque, NM 12 for Appellant 13 Hector H. Balderas, Attorney General 14 Meryl Elizabeth Francolini, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 DECISION 182 {1} Defendant Michael Rodriguez was convicted of first-degree murder for killing 1 his girlfriend Mariana Barnes-Lucero contrary to NMSA 1978, Section 30-2-1(A)(1) 2 (1994). Defendant was also convicted of tampering with evidence contrary to NMSA 3 1978, Section 30-22-5(B)(1) (2003). The district court sentenced Defendant to life 4 in prison plus three years. 5 {2} On direct appeal pursuant to Artic le VI, Section 2 of the New Mexico 6 Constitution and Rule 12-102(A)(1) NMRA, De fendant raises four issues: (1) the 7 district court abused its discretion when it allowed jail phone calls into evidence that 8 alerted the jury that Defendant was a de tainee at the Valencia County Detention 9 Center, (2) the district court abused its discretion when it allowed in pictures of 10 Defendant that showed his tattoos, (3) th e district court erred in denying multiple 11 defense motions for mistrial during voir dire, and (4) there was insufficient evidence 12 of deliberate intent to support Defendant ’s conviction for first-degree murder. 13 {3} We affirm Defendant’s c onvictions. Because Defendant raises no questions of 14 law that New Mexico precedent does not already sufficiently address, we issue this 15 non-precedential decision. See Rule 12-405(B)(1) NMRA. 16 I. BACKGROUND 17 {4} At trial, Defendant did not dispute that he took Barnes-Lucero’s life on the 183 evening of February 29, 2016, but claimed that at the time of the killing he was 1 mentally ill and intoxicated from drinking al cohol such that he was not capable of 2 forming the deliberate intent required fo r a first-degree murder conviction. See § 30- 3 2-1(A)(1), UJI 14-5110 NMRA. Defendant asked the jury to find him guilty of 4 second-degree murder rather than first-degree murder. 5 {5} Defendant went to Bobby McGee’s hous e the morning of Barnes-Lucero’s 6 death. After Defendant and McGee workedat a property across the street, McGee 7 bought an eighteen-pack of beer. They re turned to McGee’s house. McGee drank 8 two beers and he saw Defendant drink “a couple” of beer s. Defendant then left 9 McGee’s house and returned to his grandmother’s house, where he lived. McGee said 10 Defendant took the remaining beer with him when he left. 11 {6} Defendant’s grandmother, Irma Rodriguez, testified that when Defendant came 12 home sometime between 12:00 p.m. and 1: 00 p.m., he sat on the porch and she 13 thought it was “really weird.” She smelled alcohol on Defe ndant, and his eyes looked 14 “glassy, weird.” She asked him to do some weeding in the backyard. While 15 Defendant worked in the yard, he wa s listening to something through headphones. 16 Grandmother said he was screeching and screaming to wh atever he was listening to 17 and it made her uneasy and she did not like it. She asked Defendant to take off the 184 headphones and he became upset and “lost it. ” Defendant kicked a flowerpot and 1 stormed into the house. Grandmother follo wed him inside and Defendant pushed her. 2 Defendant knocked a hole in the wall, tore down a cable outside, and left. 3 Grandmother called the police b ecause “he was in no shape to be driving. . . . I didn’t 4 want him on the streets because . . . hewasn’t being himself at that point.” 5 Grandmother said that after Defendant left, she found a couple of beer cans where he 6 had been raking and a plastic Walmart bag full of beer cans in her trash, none of 7 which she believed had been there before. 8 {7} Defendant went back to McGee’s house and told McGee that he had gotten into 9 a fight with his grandmother and needed a place to stay. McGee told Defendant he 10 could spend the night at his house. McGee said Defendant seemed“a little goofy” and 11 was “a little buzzed.” They bought more beer , and McGee said he drank one but did 12 not know how much beer Defendant drank. Defendant called Barnes-Lucero and she 13 arrived at McGee’s house about fifteen to twenty minutes later. McGee then left to 14 meet his girlfriend and told Defendant and Barnes-Lucero, “You guy[s] have the 15 house to yourselves until I get back.” 16 {8} When McGee returned home about two hours later, Defendant’s car was gone 17 and the lights were out. McGee said the doorwas open, and he walked inside and saw 185 Barnes-Lucero lying on the floor. He thought that it was unusual for her to be 1 sleeping at the time and that perhaps she and Defendant were pl aying a prank on him. 2 McGee went to the bathroom and then retu rned to the living room, looked closer at 3 Barnes-Lucero’s face, and got s cared. He saw her eyes were open and “then I saw the 4 neck, and I just left.” McGee went to his girlfriend’s house. His girlfriend called 5 McGee’s grandmother, and his grandmother called the police. 6 {9} At around 8:00 p.m. or 9:00 p.m. that night, Defendant had a brief encounter 7 with his sister’s ex-boyfriend, Matthew Br ennan, at a gas station on Coors Boulevard 8 in Albuquerque. Brennan was w ith a friend, Colton Ogle, w ho also testified at trial. 9 Brennan testified that he was pulling up tothe gas station when Defendant came up 10 to his car and “seemed really pumped up in an excited manner.” Brennan asked 11 Defendant what was going on, and Defendant said, “Jus t watch the Ten O’clock 12 News.” Brennan asked why, and Defendant said, “Just watch it.” Brennan said the 13 Defendant did not appear drunk but seemed “[a]mped up. Not a normal, calm state.” 14 Brennan noticed deep scratches on Defendant’s neck. 15 {10} A little after midnight, police found Defendant sitting in his car outside of his 16 grandmother’s house. Defendant was removed from the car and taken into custody. 17 State Police Officer Mitchell Bengston interviewed Defendant af ter reading him his 186 rights. Officer Bengston noticed fresh sc ratches on Defendant’s neck and upper chest. 1 Defendant told Officer Bengston that he had been drinking the day before and did not 2 remember what happened. About ten minutes into the interview, Officer Bengston 3 asked Defendant if he would submit to a breath test and De fendant agreed. The breath 4 test result was a .02 blood alc ohol content (BAC). Officer Bengston testified that it 5 takes about an hour for an average person to lose .02 BAC from their system, so he 6 decided to wait an hour before resumi ng the interview. After an hour passed, 7 Defendant was tested again and his BAC was .00, so the interview was started again. 8 {11} Officer Bengston testified that whenev er he asked Defendant about Barnes9 Lucero he would become distant, his eyes would move rapidly, and he would place 10 his head in his hands and sigh. Officer Bengston asked Defendant about the scratches 11 on his neck, and Defendant said he could have gotten the scratches when he was 12 arrested. Defendant testified that the blood on his socks came from a cut on his knee. 13 Officer Bengston also testified that Defendant raised his pant leg and showed him a 14 scab that was “very obviously completely scabbed over. It was not fresh.” 15 {12} Forensic pathologist Dr. Hannah Kaste nbaum testified that Barnes-Lucero was 16 stabbed in the neck ten times with what appeared to be two different blades—six 17 wounds from a double-edged blade and four wounds from a single-edged blade. 187 Barnes-Lucero also had injuries to the thyroid cartilage and hyoid bone, ligature marks 1 on her neck and mouth, and petechiae in her eyes, all of which indicated that she had 2 been strangled. Ultimately, Dr. Kastenbaum concluded that Barnes-Lucero died from 3 “[s]trangulation and sharp-force injuries of the neck.” 4 {13} Samantha Rynas, a DNA analyst with the Department of Pub lic Safety Forensic 5 Laboratory, testified that blood on Defendant’s blue jeans matched Barnes-Lucero’s 6 DNA. Rynas also testified that she testeda sample from Barnes-Lucero’s fingernails 7 and found it “was consistent with [Defe ndant] contributing DNA to that sample.” 8 {14} The jury was instructed on first-de gree murder, second-degree murder, and 9 tampering with evidence. The jury was also given UJI 14-5110 to consider whether 10 Defendant’s mental disease and intoxication may have negated the specific intent 11 element of first-degree murder. The juryfound Defendant guilty of first-degree 12 murder and tampering with evidence. 13 {15} Other facts are developed as necessaryfor the issues presented below. 14 II. DISCUSSION 15 A. Jail Phone Calls Were Properly Ad mitted By the District Court 16 {16} Over Defendant’s objection, the distri ct court admitted into evidence two 17 recordings of telephone conversations—onebetween Defendant and his mother, the 188 other with his father—which occurred while Defendant was in pre-trial custody at the 1 Valencia County Detention Center. Defendant contends thatthe district court erred 2 in admitting the recordings because it raises an inference of guilt and deprives him of 3 the presumption of innocence for the jury to find out that he was in jail. The district 4 court held that given the circumstances under which the calls were made and their 5 proximity to the murder, their probative value was not substantially outweighed by the 6 danger of unfair prejudice. 7 {17} The conversations were recorded three days after Defendant was arrested. In 8 the first conversation, Defendant’s mother asks him if the knives that police found in 9 his car were “all clean,” to which Defendant responds, “Yeah, they were all clean . . . 10 but they’re going to have a hard time matching it because it’s pretty nasty, pretty nasty 11 . . . so they’re going to have a hard time matching it. . . . Basically right now all I think 12 they have is my clothes with blood on them .” In the second c onversation, Defendant’s 13 father asks him, “Do you remember anythi ng?” and Defendant rep lies, “Fuck, yeah.” 14 His father then asks, “You remember ev erything?” and Defendant replies, “I know 15 exactly what happened,” to which his father responds, “I thought you were too 16 fucking high to remember anything.” Defendant responds, “That’s the story.” 17 {18} We review the admission of evidence under an abuse of discretion standard. 189 State v. Branch , 2010-NMSC-042, ¶ 9, 148 N.M. 601, 241 P.3d 602. “Whether there 1 was possible unfair prejudice in admitting evid ence is a matter within the trial court’s 2 discretion.” State v. Trujillo , 1981-NMSC-023, ¶ 32, 95 N.M . 535, 624 P.2d 44. “An 3 abuse of discretion occurs when the ruling is clearly against the logic and effect of the 4 facts and circumstances of the case.” State v. Guerra , 2012-NMSC-027, ¶ 18, 284 5 P.3d 1076 (internal quotation marks and citation omitted). Rule 11-403 NMRA 6 provides that “[a] court may exclude re levant evidence if its probative value is 7 substantially outweighed by a danger of . . . unfair prejudice.” “The purpose of Rule 8 11-403 is not to guard against any prejudi ce whatsoever, but only against the danger 9 of unfair prejudice. Evidence is not unfairl y prejudicial simply because it inculpates 10 the defendant. Rather, prejudice is consid ered unfair when it goes only to character 11 or propensity.” State v. Maxwell , 2016-NMCA-082, ¶ 24, 384 P.3d 116 (emphasis, 12 internal quotation marks, and citation omitted). 13 {19} Defendant objected to the admission of the recordings through a motion in 14 limine and a trial objection. Because Defendant brought the issue to the attention of 15 the district court and the court ruled th e recordings were admissible, this was 16 sufficient to preserve the issue for appellate review under Rule 12-321(A) NMRA. 17 {20} Defendant argues that becauseevery defendant is entitled to a fair and impartial 1810 trial, including the presumption of innocence, that included in that presumption of 1 innocence is the physical indicia of inno cence. Relying on cases where indicia of 2 innocence refers to the right of a defendant to be tried in front of a jury in a courtroom 3 in appropriate clothing rather than in prison clothing and handcuffs or shackles, 4 Defendant claims that usi ng the jail phone calls violated his right to be presumed 5 innocent. Generally, it would be improper for the prosecution to inform the jury that 6 a defendant is held in custody unless ther e was some basis for doing so other than 7 implying that the defendant was guilty or a person of bad character. In this case, the 8 recordings were proffered as evidence of Defendant’s ment al state at the time of the 9 killing and not merely to malign Defendant’s character. The prejudicial impact of 10 alerting the jury that Defendant was in jail three days after the crime took place was 11 minimal as it is commonly understood that a person suspected of committing murder 12 may be held in pre-trial custody. Alerti ng the jury of Defendant’s incarceration was 13 not, as Defendant argues, the same as a defe ndant appearing before the jury in prison 14 clothing or shackles. The district court carefully weighed th e prejudicial impact of the 15 evidence with its probative value before admitting the recordings. In making its 16 decision, the district court weighed th e probative value of the evidence with its 17 prejudicial effect pursuant to Rule 11-403. The district court’s ruling was not contrary 1811 to reason and it was not an abuse of discre tion to admit the recordings. Accordingly, 1 we affirm the district court’s admission of the jail phone calls. 2 B. Photographs of Defendant Showing His Tattoos Were Properly Admitted 3 {21} Defendant next argues that the districtcourt erred in admitting photographs of 4 Defendant which show his tattoos. Defendant contends the photographs “did nothing 5 more than arouse the passions of the jury by portraying [Defendant] in an offensive 6 light, as one of low moral character, based on his physical appearance.” The State 7 argues the photos, which show scratches on Defendant’s arms, torso, and neck, were 8 telling of a prolonged physical struggle be tween Defendant and Barnes-Lucero and 9 were thus probative of Defendant’s intent. 10 {22} “‘We review a trial court’s exerciseof discretion in admitting allegedly 11 prejudicial photographs under an abuse of discretion standard.’” State v. Saiz , 2008- 12 NMSC-048, ¶ 53, 144 N.M. 663, 191 P.3d 521 ( abrogated on other grounds by State 13 v. Belanger , 2009-NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d 783). “‘A trial court 14 has great discretion in balancing the prejudicial impact of a photograph against its 15 probative value.’” Id. ¶ 54 (citation omitted). Defendant preserved the issue through 16 trial objections to the photographs. See Rule 12-321. 17 {23} State Police Officer Phillip Vargas took the photos of Defendant the day after 1812 the murder. Ten of the admitted photos show Defendant’s tattoos. At trial, Defendant 1 argued that there was nothing relevant about the tattoos and that they could give the 2 jury a poor impression of Defendant. The State argued that the photos were relevant 3 in that they showed fresh defensive w ounds on Defendant and tattoos have become 4 more socially acceptable and the possible prejudice was less than Defendant claimed. 5 The district court did not explain its reasoning for admitting the ten photos but did 6 exclude one photo (State’s Exhibit 78) becau se it apparently showed a tattoo of an 7 upside-down cross with the word “evil” written underneath. 8 {24} The photographs that were admitted were relevant in that they show 9 Defendant’s body the morning after Barnes- Lucero was found dead. Other than the 10 existence of the tattoos them selves, the prejudice to Defendant is not readily apparent 11 by their designs or form. The majority of tattoos visible in the admitted photographs 12 are relatively small, innocuous designs with no discernable meaning. Only two tattoos 13 have apparent meaning—one is a Christian cross and the other is the word “GOOD” 14 underneath the cross. There is nothing inherently offensive or shocking about these 15 two tattoos. Accordingly, it was not an abuse of discretion by the district court to 16 admit the ten photos in which Defendant’s tattoos are visible. 17 C. Defense Motions for Mistri al During Jury Selection 1813 {25} Defendant next argues the district court erroneously denied defense motions for 1 mistrial during jury selection. Defendant cl aims that because of statements of jurors 2 during jury selection which hinted at the brutality of the crime, the empaneled jury 3 developed a bias against Defendant and he did not receive a fair trial. 4 {26} This Court reviews the denial of a motion for mistrial for an abuse of discretion. 5 State v. Torres , 2012-NMSC-016, ¶ 7, 279 P.3d 740. “The trial court abuses its 6 discretion in ruling on a motion for mistrial if in doing so it acted in an obviously 7 erroneous, arbitrary, orunwarranted manner.” Id. (internal quotation marks and 8 citation omitted). 9 {27} The first motion for mistrial came after the prosecutor spoke about the burden 10 of proof and told the jurors they would have to decide whether Defendant is guilty or 11 innocent based only upon the evidence presented in court. The prosecutor then asked 12 if any of the jurors would have a problemwith doing that, and a juror stated, “Upon 13 learning that I was called for this, of cour se, I immediately go to research and inform 14 myself about it. And based upon what I learned of how the victim died, the brutality 15 of it, immediately gave me a sense of—” The prosecutor immediately stopped the 16 juror from saying anything further, and De fendant moved for a mistrial, arguing that 17 the juror had contaminated the jury panel. The district court denied the motion for 1814 mistrial, and the juror was later individually examined and ultimately excused for 1

cause. 2 {28} The second motion came after two jurors spoke only minutes later. The first 3 juror said he was a “first responder and firefighter” and had “respond[ed] to this call 4 in [his] rescue district.” The prosecutor asked the juror if he would find it difficult to 5 be fair and impartial, and the juror responded “Yes.” Immediately after this, a second 6 juror said he was an “Albuquerquefirefighter” and his daughter was 7 dispatch for Valencia County. So I do hear a lot that goes on there, and 8 I do—I’m pretty much the same as [the other first responder]. I see the 9 aftermath of what happens. I have to respond to the person that’s 10 accused as they’re trying to get out of it, of being arrested, and the 11 excuses that they use. 12 Defendant again argued for a mistrial, stati ng that the panel had become contaminated 13 and would have a preconceived notion of “ how outrageous this was.” The district 14 court denied the motion for mistrial, and ne ither juror was selected to serve on the 15 jury. 16 {29} Later that afternoon, the prosecutor asked the panel if anyone would have 17 difficulty sitting in judgment of another pers on, to which a juror replied, “I heard 18 something else downstairs that has been eating at me since.” Then, outside the 19 presence of the jury panel, the juror said, “It’s just something that someone had said 2015 downstairs in the waiting room where he had sliced her throat. And it’s been eating 1 at me since I heard it, and I don’t know if I can . . . honestly form a truthful opinion.” 2 The juror explained that she overheard the conversation between two jurors while in 3 the waiting room earlier that morning but her eyes were closed, so she did not see who 4 was speaking and did not know if they werestill on the panel. The juror went on to 5 say everyone was talking in the waiting room but she was not and she did not think 6 the conversation could be overh eard by others. She said that she could not be fair and 7 impartial and was excused. Defendant moved for a mistrial a third time, claiming the 8 harm could not be cured. The district c ourt again denied the motion for mistrial and 9 asked the remaining jurors if they overheard anybody discussing information about 10 the Defendant’s case. None of th e jurors indicated that they had. 11 {30} The district court then asked if anyone had told other jurors anything about the 12 case. One juror raised his hand and was aske d to approach the bench. The juror said 13 that he spoke with a friend who was also on the panel and who had worked as a first 14 responder in this case. The juror said that the first responder told him that “it was a 15 mess over there and that the guy had tried to clean up the evidence and that kids were 16 there.” The district court determined th at it was the same first responder who spoke 17 earlier in the morning and had been dismissed. The juror said that he told another 1816 male juror what the first responder had told him. The juror did not believe that the 1 person he told was still on the panel, but was not sure. The juror was excused for 2 cause, and Defendant moved for mistrial a fourth time. The district court denied the 3 motion. 4 {31} The essential question regarding a claim of jury bias is “whether the 5 circumstance unfairly affected the jury’s de liberative process and resulted in an unfair 6 jury.” State v. Mann , 2002-NMSC-001, ¶ 20, 131 N.M. 459, 39 P.3d 124. A 7 defendant asserting a claim of juror bias “bears the bur den to establish that the jury 8 was not fair and impartial, and must demonstrate bias or prejudice on the part of the 9 remaining jurors.” State v. Gallegos , 2009-NMSC-017, ¶ 22, 146 N.M. 88, 206 P.3d 10 993. 11 {32} Defendant offers only a general claim of jury bias but provides no explanation 12 or details, other than the instances disc ussed above, to support his claim that the 13 empaneled jury was biased and unable to deliberate in a fair and impartial manner. 14 The jurors involved in the above instances were excused from serving, and Defendant 15 does not point to anything in the record to suggest that the empaneled jurors were 16 biased or motivated by partiality in their delib eration or verdict. The voir dire process 17 is designed to ferret out grounds for juror disqualification, and in this case the process 1817 worked as it should. The revelation during voir dire that the case was about a “brutal” 1 murder was not so inflammatory given th e circumstances of Barnes-Lucero’s death 2 which were revealed during trial. The district court took appropriate steps to 3 minimize any prejudicial impact that members of the jury pool may have had on those 4 jurors ultimately chosen to serve. The district court’s denial of the motions for 5 mistrial was not erroneous, arbitrary, or unw arranted. Accordingly the district court 6 did not abuse its discretion and we affirm. 7 D. The Evidence Was Sufficient to Convict Defendant of First-Degree Murder 8 {33} Finally, Defendant alleges that there was insufficient evidence to support his 9 conviction for first-degree, premeditated murder. On appeal, “[t]he test for 10 sufficiency of the evidence is whether s ubstantial evidence of either a direct or 11 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt 12 with respect to every element essential to a conviction.” State v. Flores , 2010-NMSC13 002, ¶ 2, 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citation omitted). 14 “[W]e must view the evidence in the lightmost favorable to the guilty verdict, 15 indulging all reasonable inferences and resolv ing all conflicts in the evidence in favor 16 of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 17 P.2d 176. 1818 {34} Given Defendant’s concession that he killed Barnes-Lucero, the jury was 1 essentially tasked with deciding whether to convict Defendant of first- or second2 degree murder. To convict Defendant of fi rst-degree murder, the jury had to find that 3 Defendant killed Barnes-Lucero and “[t]he killing was with the deliberate intention 4 to take away the life of [Mariana] Barne s-Lucero.” Second-degree murder required 5 the jury to find Defendant “knew that his acts created a strong probability of death or 6 great bodily harm to [Mariana] Barnes-Lucero.” 7 {35} “Deliberate” is defined as “arrived at or determined upon as a result of careful 8 thought and the weighing of the considerati on for and against the proposed course of 9 action.” UJI 14-201 NMRA. “A mere unc onsidered and rash impulse, even though 10 it includes an intent to kill, is not a deliberate intention to kill.” Id. “A deliberate 11 intention is rarely subject to proof by direct evidence and often must be inferred from 12 the circumstances.” State v. Astorga , 2015-NMSC-007,¶ 60, 343 P.3d 1245. Because 13 Defendant raised the issue of his mental in capacity at the time of the killing, the State 14 had the burden of proving Defendant was capab le of forming a deliberate intention to 15 take the life of another. See UJI 14-5110. 16 {36} For the following reasons we concludethat the evidence presented was 17 sufficient for the jury to reasonably find th at Defendant killed Barnes-Lucero with the 1819 deliberate intention to take away her life. First, the evidence regarding the way 1 Barnes-Lucero was killed can be viewed as proof of Defendant’s deliberate intention 2 to take away her life. See State v. Duran , 2006-NMSC-035, ¶ 8, 140 N.M. 94, 140 3 P.3d 515 (concluding that “a reasonable jury could have believed [the d]efendant had 4 the deliberate intent to kill the victim by inferring from the physical evidence of a 5 prolonged struggle and multiple stab wounds”). Dr. Kastenbaum testified that Barnes6 Lucero was stabbed ten times in the neck, and the wounds indicated that two different 7 blades had been used to cause the stab wounds. Dr. Kastenbaum also said that 8 Barnes-Lucero’s heart was still pumping when she was strangled and stabbed. The 9 Defendant had deep scratc hes on his neck and arms which indicated a physical 10 struggle that lasted for more than a few seconds. 11 {37} Second, there was evidence from which the jury could infer that despite 12 drinking beer, Defendant was relatively lu cid and capable of deliberate action only 13 hours before and after killing Barnes-Lucero. Defendant drove to McGee’s house 14 after arguing with his grandmother, and McGee testified that Defendant was “a little 15 buzzed” when he came back to his house. Defendant called Barnes-Lucero, she went 16 to McGee’s house, and the three interacteduntil McGee left to meet his girlfriend. 17 After killing Barnes-Lucero, Defendant droveto Albuquerque. Brennan and Ogle saw 1820 him at a gas station on Coors Boulevard at around 8:00 p.m. or 9:00 p.m. that night. 1 Brennan testified that Defendant told hi m to “watch the Ten O’clock News” in an 2 excited manner but “didn’t seem drunk” and he “couldn’t smell anything on his 3 breath.” Brennan testified th at Defendant “seemed like hims elf, but he definitely just 4 was an accelerated version of himself.” At approximately 4:00 a.m. the following 5 morning, Defendant had a BAC level of . 02 when the police gave him a breath test. 6 The jury could have inferred that Defendant was not intoxicated to such a degree that 7 he was incapable of forming the delib erate intention to kill Barnes-Lucero. 8 {38} Finally, the evidence of th e recorded conversation between Defendant and his 9 father is dispositive of his claim that Defendant did not remember anything after he 10 began drinking, as he had told the police. When his father asked Defendant, “Do you 11 remember anything?” Defendant responded, “Fuck, yeah” and then said, “I know 12 exactly what happened.” And from the c onversation with his mother in which he 13 discusses the knives found in his truck and describes the circumstances as “pretty 14 nasty,” the jury could infer that Defendant understood the nature and manner of the 15 crime and did not suffer from a mental impairment at the time that would have 16 hindered his capacity for deliberate intention. 17 {39} When viewed in the light most favorableto the guilty verdict for first-degree 1821 murder, the evidence was sufficient and we affirm Defendant’s conviction. 1 V. CONCLUSION 2 {40} For the foregoing reasons, we affirm De fendant’s convictions of first-degree 3 murder and tampering with evidence. 4 {41} IT IS SO ORDERED. 5

___________________________________ 6 PETRA JIMENEZ MAES, Justice 7 WE CONCUR: 8

___________________________________ 9 JUDITH K. NAKAMURA, Chief Justice 10

___________________________________ 11 CHARLES W. DANIELS, Justice 12

___________________________________ 13 BARBARA J. VIGIL, Justice 1422 ___________________________________ 1 GARY L. CLINGMAN, Justice 2