The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA , authenticated and formally published . The slip opinion may contain deviations from the formal authenticated opinion.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: 2
Filing Date: March 21, 2023 3

No. A

- 1

- CA

- 39984 4

STATE OF NEW MEXICO , 5

Plaintiff

- Appellee
, 6

v. 7

JASON STALTER , 8

Defendant

- Appell ant

. 9

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 10 Karen L. Townsend, District Court Judge 11
Raúl Torrez, Attorney General 12 Maris Veidemanis, Assistant Attorney General 13 Santa Fe, NM 14
for Appellee 15

Bennett J. Baur, Chief Public Defender 16 Santa Fe, NM 17 Mark A. Peralta

- Silva, Assistant Appellate Defender 18 Albuquerque, NM 19

f or Appellant 20OPINION 1
WRAY, Judge. 2

{1} Defendant Jason Stalter appeals his convictions for larceny over $20,000, 3
contrary to NMSA 1978, Section 30

- 16

- 1 (2006), and burglary, contrary to NMSA 4

1978, Section 30

- 16

- 3 (1971), in connection with money stolen from the Lowe’s 5
Home Improvement (Lowe’s) store in Farming ton, New Mexico on December 2, 6

2017 (the incident) . At trial, Defendant presented alibi evidence and requested the 7
uniform jury instruction on alibi, UJI 14

- 5150 NMRA

. T he district court denied the 8
jury instruction based on the direction in the accompanyin g use note (Use Note). On 9
appeal, Defendant challenges the denial of the alibi jury instruction as well as the 10

admission , exclusion, and sufficie ncy of the evidence. We affirm but express our 11
rationale for our reservations related to the Use Note’s categor ical prohibition of the 12

alibi instruction. See State v. Wilson , 1994

- NM S C

- 009, ¶ 6, 116 N.M. 793, 867 P.2d 13
1175 (encouraging this Court to “ express its rationale for any reservations it might 14
harbor over Supreme Court precedent”). 15

BACKGROUND 16

{2 } Defendant worked at Lowe’s as an overnight department manager but was 17
fired on November 30, 2017, two days before the incident. As a department manager, 18
Defendant had keys to enter the store and a code to disarm the alarm system

. 19

Defendant testified that h e returned his keys on the day he was fired, and Lowe’s 202 security personnel, Elizabeth Nickel, testified that all the keys were accounted for 1
the following day and that Defendant’s code had been deactivated. Video 2

surveillance from December 2, 2017, at 10:4 0 p.m. (incident footage), showed that 3

an individual “wearing all black” used a key to enter Lowe’s through the front doors, 4
disabled the alarm system, went into to the “cash office ,” unlock ed a code

- protected 5

safe, took cash from the safe, and left the st ore in a little over two minutes. 6

{3 } Nickel received a call around 5:00 a.m., informing her of the theft. When she 7
arrived at the store, she ensured that the police were called and reviewed the incident 8
footage. Officer Flores was the responding officer. He first spoke to the store 9
manager, who conveyed his suspicion that Defendant was the person in the incident 10
footage. Offic er Flores next investigated the area for evidence and received a copy 11
of the incident footage from Nickel. Nickel also suspected Defendant had taken the 12
money and provided Officer Flores with additional video footage of Defendant from 13
his time working at L owe’s (workplace footage). Shortly thereafter, Detective Rock 14
took over the investigation. 15

{4 } Defendant maintained throughout the investigation and trial that he could not 16
have stolen from the Lowe’s in Farmington on December 2, 2017, because he was 17

visi ting friends in Cedar City, Utah

. According to Defendant, from December 1, 18
2017, through December 4, 2017, he visited and stayed with his friend, Wayne 19
Majeski and Wayne’s husband, Secondo Docimo. Before trial, the district court 203 agreed to admit into evide nce Docimo’s preliminary examination testimony but 1
during trial reversed that ruling. As a result, only Defendant and Majeski testified at 2
trial that Defendant was in Cedar City, Utah at the time of the incident

. In order to 3

establish a timeline for the al ibi
, Defendant offered receipts and copies of his bank 4
and phone records . One receipt indicated that Defendant purchased dinner from a 5
restaurant in Cedar City, Utah at 6:15 p.m. on December 2, 2017. Defendant argued 6

that it would have been impossible for him to have the time to return to Farmington, 7
New Mexico by 10:40 p.m., when the incident took place. The evidence at trial 8
confirmed that it would take over six hours to drive from Cedar City to Farmington. 9

{5 } For over an hour at trial, the State showed multiple videos and screenshots of 10
the incident and workplace footage. Nickel testified about her interpretation of the 11
videos and screenshots, identified Defendant in the workplace footage, and gave her 12
opinion that Defendant was the person in black in t he incident footage. According 13
to Nickel, she concluded that Defendant was the person in black after reviewing the 14
incident footage and further confirmed this conclusion when she reviewed the 15
workplace footage of Defendant next to the incident footage. 16

{6 } During trial , Defendant requested that the district court give the uniform alibi 17
jury instruction. See UJI 14

- 5150. Defendant argued that the State appeared to be 18
shifting the burden to Defendant to prove his alibi and that the uniform instruction 19

would clarify and prevent any burden shifting. The State maintained that the 204 accompanying Use Note to UJI 14

- 5150 “says no instruction on this subject shall be 1
given, period, it doesn’t say except in certain circumstances ” and that the alibi 2
instruction was not necessary to explain the burdens, because the elements 3
instruction required the State to prove that Defendant was present for both offenses. 4
The district court denied the alibi instruction, based on the accompanying U se Note, 5

which states
, “No i nstruction on this subject shall be given.” See UJI 14

- 5150 use 6

note. The State’s closing argument criticized Defendant’s alibi evidence as 7

inconsistent and not credible and culminated with the assertion that “the only way 8

he’s not guilty is if you believe him and Mr. Majeski.” 9

{7 } The jury found Defendant gu ilty on both Count I, larceny over $20,000, and 10
Count II, burglary. At sentencing, the district court ordered Defendant to pay 11
restitution in the amount of $33,040.83 and se ntenced Defendan t to nine years’ 12

incarceration. Defendant appeals the convictions and sentence. 13

DISCUSSION 14

{8 } Defendant makes three arguments on appeal: (1) he was entitled to have the 15
district court give the requested uniform alibi instruction; (2) Doci mo’s preliminary 16
hearing testimony was improperly excluded at trial and Nickel’s identification 17
testimony was improperly admitted; and (3) the State failed to present evidence as 18

to the amount stolen that was sufficient to support the conviction and the restitution 19
order. We begin our analysis with the alibi instruction. 205 I. The Alibi Instruction 1

{ 9 } New Mexico’s uniform alibi jury instruction states as follows: 2
Evidence has been presented concerning whether or not the 3 defendant was present at the t ime and place of the commission of the 4 offense charged. If, after a consideration of all the evidence, you have 5 reasonable doubt that the defendant was present at the time the crime 6 was committed, you must find him not guilty. 7

UJI 14

- 5150. The accompanyin g Use Note expressly states
, “No instruction on this 8
subject shall be given.” The committee commentary provides the following 9
explanation: 10
The language of this instruction is derived from California Jury 11 Instructions Criminal, 4.50. The New Mexico Supreme Co urt has held 12 that the defendant’ s alibi is a question for the jury. The [C]ourt has also 13 held that it is improper to instruct that the burden is on the defendant to 14 prove his alibi. There are no New Mexico decisions holding that the 15 jury must be instruc ted on the question of alibi. Analytically, an alibi is 16 not a technical or “legal” defense but it is used to cast doubt on the 17 proof of elements of the crime. Consequently, the committee believed 18 that no instruction on alibi should be given since it merely comments 19 on the evidence. 20

UJI 14

- 5150, comm. c mt

. (citations omitted). Defendant contends that despite the 21
Use Note and commentary, the requested alibi instruction was (1) warranted because 22

the evidence support ed an alibi
, and (2) necessary to avoid juror confusion

. 23
Defendant has not challenged the text of the jury instruction. At oral argument, 24
however, the State maintained that giving UJI 14

- 5150 in the present case would not 25
have cured any error because the instruction does not clarify the burden of proof 26
with resp ect to alibi and suggested that the jury instruction approved by the Fourth 276 Circuit Court of Appeals is more comprehensive and appropriate under the 1

circumstances. See Frye v. Procunier , 746 F.2d 1011, 1012

- 13 (4th Cir. 1984). 2

{ 10 } The parties’ arguments raise significant questions. We cannot, however, avoid 3
the threshold question of this Court’s authority to reject jury instructions and use 4

notes. W hile committee commentary is not binding, State v. Barber , 2004

- NMSC

5
019, ¶ 10 n.1, 135 N.M. 621, 92 P.3d 633 , use notes are binding and in particular, 6
are “binding on district courts,” Delfino v. Griffo , 2011

- NMSC

- 015, ¶ 19, 150 N.M. 7

97, 257 P.3d 917 . Indeed, our Supreme Court has equated UJI 14

- 5150 with the Use 8

Note. See State v. McGuire
, 1990

- NMSC

- 067 , ¶ 31, 110 N.M. 304, 795 P.2d 996 9
(noting that “the uniform jury instruction on this topic provides that no instruction 10
shall be given”). Defendant’s arguments would require us to reject the Use Note. 11
This Court may only “amend, modify, or abolish” a unif orm jury instruction if it has 12
not been “reviewed and ruled upon” by our Supreme Court. Wilson , 1994

- NMSC

13
009, ¶ 6; see also State v. Parish , 1994

- NMSC

- 073, ¶ 24, 118 N.M. 39, 878 P.2d 14
988 (“The only restriction is that if there exists precedent from [our Supreme] Court 15
that specifically addresses the validity of a Uniform Jury Instruction, the Court of 16
Appeals may not overrule that precedent nor alter or reject that instruction.” 17
(alterations, internal quotation marks, and citation omitted)). Our Supreme C ourt has 18
“sustain[ed]” and “reaffirm[ed]” the Use Note at issue. See State v. Robinson
, 1980

- 19

NMSC

- 049 , ¶ 31, 94 N.M. 693, 616 P.2d 406 (referring to the alibi instruction as 207 N.M.U.J.I.Crim. 41.30 (current version at UJI 14

- 5150) )

. B ut see McGuire
, 1990

- 1

NMSC

- 067, ¶ 31 (affir ming the denial of the alibi uniform jury instruction absent 2
“considerations contrary to” the analysis in the committee commentary)

. 3
Accordingly, we are bound by Robinson and precluded from overruling the Use 4

Note. See Wilson , 199 4

- NMSC

- 009, ¶ 4 (“[T]he Court o f Appeals is not precluded 5
from considering error in jury instructions, but is precluded only from overruling 6
those instructions that have been considered by [our Supreme] Court in actual cases 7

and controversies that are cont rolling precedent.”). We therefore can discern no error 8

in the district court’s denial of the alibi instruction. 9

{1 1 } Nevertheless, our Supreme Court has encouraged this Court “to express its 10
rationale for any reservations it might harbor over Supreme Court precedent

. ” I d. 11

¶ 6

. The Use Note appears to limit both the district court’s general authority to 12
consider the circumstances of the case when deciding to instruct the jury on alibi and 13
this Court’s application of the standard of review for pr eserved challenge s to the 14
denial of an instruction. Our Supreme Court has broadly approved the district court’s 15
“authority to disregard uniform jury instructions in cases in which under the facts or 16
circumstances of the particular case the published instru ction is erroneous or 17
otherwise improper, and the [district] court so finds and states of record its reasons.” 18

Id. ¶ 4 ( alteration, internal quotation marks
, and citation omitted). This is in line with 19
the district court’s duty “to properly instruct the ju ry on the law.” See UJI Crim. Gen

. 208 NMRA u se n ote (instructing the district court both that “[n]o instruction shall be 1
given on a subject which a use note directs that no instruction be given” and that 2
“[t]o avoid fundamental error, it is the duty of the co urt to properly instruct the jury 3
on the law”). But that discretion to alleviate juror confusion is countermanded by the 4

Use Note’s direction that “ [ n ] o instruction on this subject shall be given.” UJI 14

- 5
5150 use note (emphasis added)

. 6

{1 2 } The district court’s mandatory compliance with the Use Note further prevents 7
this Court from meaningfully applying the standard of review for preserved jury 8

instruction error. We generally review whether reversible error resulted from juror 9

confusion or misdir ection, see State v. Benally , 2001

- NMSC

- 033, ¶ 12, 131 N.M. 10

258, 34 P.3d 1134, and in our de novo review
, we consider “the evidence in the light 11
most favorable to the giving of the requested instructions,” State v. Skippings , 2011

- 12

NMSC

- 021, ¶ 10, 150 N.M. 216, 258 P.3d 1008 (alteration, internal quotation 13
marks, and citation omitted). I n the context of use notes, our courts have concluded 14
that error resulting from the failure to follow mandatory use notes does not 15
automatically result in reversal. See Barbe r , 2004

- NMSC

- 019, ¶ 20 (agreeing 16
generally that the failure to give a definitional instruction that is mandated by a use 17
note is not fundamental error); State v. Dominguez , 2014

- NMCA

- 064, ¶ 18, 327 P.3d 18

1092 (stating that the “failure to give a mandatory i nstruction” does not 19
“automatically” require the “reversal or modification of an otherwise valid 209 conviction,” but rather, “it is the failure to give a mandatory instruction on the law 1
essential for a conviction that constitutes reversible error”)

. But here , our Supreme 2

Court has adopted and approved a categorical directive not to give UJI 14

- 5150. 1 3
Thus, the district court has no discretion to give the instruction and consequently, 4

this Court has no role on review. 5

{1 3 } W hile w e are bound by the restrictions that are outlined in Wilson and 6

solidified as to UJI 14

- 5150 in Robinson , we are keenly awar e of the tension between 7
these restrictions and the role that each court plays to safeguard the rights of New 8

Mexicans. This tension is heightened by both the significant case law that has 9
developed across the country addressing alibi instruction s and the particular 10

circumstances of this case. For these reasons, as encouraged by our Supreme Court 11

in Wilson , we of fer our analysis in this regard. We first revi ew the national landscape 12

of alibi law as it relates to jury instructions, and in that context, furth er (1) evaluate 13
the State’s arguments in support of both the Use Note and the committee 14

1 UJI 14

- 5150 is not the only uniform instruction accompanied by a mandatory use note directing that no instruction be given. See, e.g.
, UJI 14

- 2823 NMRA use note ( a ccessor ies to crime s ); UJI 14

- 5024 NMRA use note ( w eighing conflicting testimony); UJI 14

- 5030 NMRA use note ( f light); UJI 14

- 5140 NMRA use note ( e xcusable homicide). At oral argument, Defendant pointed out that our uniform instructions include approximately thirty such use notes

. We limit our discussion, however, to the instruction at hand, and we have not considered the propriety of any other instruction and use note.10 commentar y; and (2 ) consider whether d enying the instruction in the present 1

circumstances created an untenable risk of juror confusion or misdirection. 2

A. The Majority and Minority Approaches to Alibi Instructions 3

{1 4 } The law of alibi instructions went through a remarkable shift in the last 4
century and a half. The early cases often involved defendants seeking reversal 5
because a prejudicial alibi instruction wa s given. See

, e.g. , State v. Taylor , 24 S.W. 6

449
, 456 (Mo. 1893) (reversing based on an instruction that shifted the burden of 7
proof); State v. McClellan , 59 P. 924, 92 4

- 26 (Mont. 1900) (concluding an 8
instruction that shifted the burden of proof was “radic ally wrong”); State v. Johnson
, 9
17 N.W.2d 345, 346 (S.D. 1945) (“ The courts generally hold that an instruction 10
which advises the jury that an unsuccessful attempt to prove an alibi is a 11
circumstance to be weighed against the defendant on the question of th e sufficiency 12
of the evidence to prove defendant’s guilt beyond a reasonable doubt, is erroneous 13
and prejudicial.”) . In later years, the arguments shifted to whether an instruction was 14
required to ensure that juries understood the burdens of proof. See

, e. g. , Ferguson v. 15

State , 488 P.2d 1032, 103 8 (Alaska 1971) (“[W] ithout proper instruction the jury 16
might erroneously believe that the defendant has the burden of proving alibi.”); State 17

v. Hunt , 197 S.E.2d 513 , 518 (N.C. 1973) (“ Notwithstanding the court’s instruction 18
that the burden of proof is on the [s]tate to satisfy the jury from the evidence beyond 19
a reasonable doubt that the defendant was present and that [the defendant] committed 2011 the crime, if a particular defendant is app rehensive that the jury will be misled unless 1
the court gives an instruction

. . . [the defendant] will be entitled to such instruction 2
[u]pon special request therefor .”) ; Commonwealth v. Mikell , 729 A.2d 566 , 570 (Pa. 3
1999) (“ Where such evidence has been introduced, a defendant is entitled to an alibi 4
instruction to alleviate the danger that the jurors might impermissibly view a failure 5
to prove the def ense as a sign of the defendant’ s guilt.”). Different jurisdictions 6
define alibi slightly differently or require different amounts of evide nce to justify an 7

instruction

. See

, e.g. , Greenhow v. United States
, 490 A.2d 1130, 1134 (D.C. 1985) 8
(requiring alibi evidence to “be of such a character that, if believed, it would show 9
that the defendant could not have committed the crime”); Dixon v. State , 227 So. 2d 10

740, 74 2

- 4 3 (Fla. Dist. Ct. App. 1969) (requiring less than “absolute impossibility” 11
to establish an alibi). These complexities

— the changing contexts for alibi 12

instructions and distinctions between alibi analyse s

— make discussing trends 13
difficult because the nuances complicate broad statements about the law. 14

N evertheless, our review leads us to conclude that most jurisdictions permit the 15

district courts to exercise some disc retion about whether to give an alibi instruction

. 16

{1 5 } New Mexico’s categorical denial of an alibi instruction is t he minority 17
approach a mong state and federal jurisdictions. Most other jurisdictions offer a 18
defendant the opportunity for an alibi instruction either by uniform instruction or 1912 special submission of the parties. 2 In most offering jurisdictions, a defendant must 1
request the ali bi instruction and provide a level of evidentiary showing to support 2

2 These jurisdictions are Alabama, see Alabama Pattern Jury Instructions: Criminal, Non

- Statutory Special Instructions, Alibi (approved April 15, 2016) (currently found at http s://judicial.alabama.gov/docs/library/docs/ alibi.pdf); Alaska,

see Alaska Criminal Pattern Jury Instruction 1.40 (Revised 1999), AK

- JICRIM 1.40 (West); Arizona, see RAJI (Criminal) 5th, No. 46 (2019); California, see CALCRIM No. 3400 and Cal. Jury Instruct ions

-- Criminal CALJIC 4.50; Connecticut, see Conn. Criminal Jury Instructions § 2.7

- 2 (Nov. 2021), available at https://jud.ct.gov/JI/Criminal/Criminal.pdf ; Delaware, see Del. P.J.I. Crim. § 5.61; District of Columbia (D.C.), see 1 Barbara E. Bergman, Criminal Jury Instructions for the District of Columbia § 9.200 (Matthew Bender, Rev. Ed. ), available by request, filed herein as part of th is Court’s Supplemental Record Proper (SRP) at 0 001

- 7 ; Florida, see Fla. Std. Jury Instr. (Crim.) 3.6(i), J ICRIM FL

- CLE 3

- 1, 3.6(i) (West); Georgia, see Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.30.10 (4th ed. 2022), GAJICRIM 3.30.10 (West) ; Hawai’i, see Hawai’i Pattern Jury Instructions

-- Criminal 7.14, HI R CR JURY Instr. 7.14 ( West) ; Iowa,

see Iowa State Bar Ass’n, Criminal Jury Instructions § 200.15 (2022) , available by request, SRP at 008

- 09 ; Maryland, see MD

- JICRIM 5:00; Massachusetts, see Instruction 9.120 of the Criminal Model Jury Instructions for Use in the District Court (2009), MJ MA

- CLE 9.100 (West ); Michigan, see MI

- MJICRIM 7.4 (Lack of Presence (Alibi)), MI

- MJICRIM 7.8 (Identification); Mississippi, see Miss. Prac. Model Jury Instr., Crim. § 2:1 (2d ed.) and Miss. Plain Lang. Model Jury Instr. Crim. 500; Missouri, see 27 Mo. Prac., Criminal Practice Forms § 9.33 (2d ed.), available by request, SRP at 0018

- 21; Montana, see MCJI 2

- 119 , available at https://courts.mt.gov/Courts/boards/CriminalJuryInstructionsCommission (select Ch. 2) ; Nebraska, see 1 Neb. Prac., NJI2d Crim. 8.1 (2016

- 2017 ed.); Nevada, see Duckett v. State , 752 P.2d 752, 754 (Nev. 1988); New Hampshire, see N.H. Criminal Jury Instructi ons 3.02 (1985), available at https://nhba.s3.amazonaws.com/wp

content/uploads/2020/07/14150407/NH

- Criminal

- Jury

- Instructions

- 1985.pdf ; New Jersey, see New Jersey Model Jury Charges (Criminal), “Alibi (Non 2C)” (rev. May 12, 2018) , NJ

- JICRIM Non 2C Charges (West); New York, see CJI2D(NY) GA 21

– Alibi and 1 Charges to Jury & Requests to Charge in Crim. Case in N.Y. §§ 5:7

- :9 (Oct. 2022 update); North Carolina, see N.C.P.I.

- Crim. 301.10 (2003); North Dakota, see N.D. Jury Instructions

- Criminal, K 3.05 Alibi (2022 ed.), available at https://www.sband.org/page/pattern_jury_instruc ; Ohio, see 2 Ohio Jury Instructions § 421.03, 2 OJI

- CR 421.03 (West); Oklahoma, see VRN

- OKFORM OUJI

- CR 8

- 57;13 Oregon, see Uniform Criminal Jury Instruction 1101, OR

- JICRIM 1101 (West) ; Pennsylvania, see PA

- JICRIM 3.11; South Carolina, see Anderson’s S.C. Requests to Charge

- Criminal § 6

- 19 (2d ed. 2012), SC

- JICRIM 6

- 19 ; South Dakota, see S.D. Pattern Jury Instructions (Criminal) 2

- 1

- 1 (rev. 2020), available on request, SRP at 0022

- 23; Tennessee, see 7 T.P.I.

- Crim. 42.13 (2022), TNPRACJICR 42.13 (West); Utah, see State v. Hanna
, 21 P.2d 537, 539 (1933), but see State v. Lynch , 2011 UT App 1, 246 P.3d 525; Vermont, see Vt. Model Criminal Jury Instructions § 9

- 011 (2005), available at htt ps://www.vtjuryinstructions.org/criminal/MS09

- 011.htm (last visited Jan. 30, 2023) and § 9

- 021 (2010), available at https://www.vtjuryinstructions.org/criminal/MS09

- 021.htm (last visited Jan. 30, 2023) ; Virginia, see Va. Prac. Jury Instruction §§ 65:1 to

- :3, VAPRAC JI 65:1

- :3 (West); West Virginia, see Public Defender’s Services, West Virginia’s Criminal Jury Instructions , 8.1 (7th ed.), available at https://pds.wv.gov/attorney

- and

- staff

resources/research

- center/legal

resources/Documents/Jury%20Instructio ns%207th%20Edicition.pdf ; and Wisconsin,

see WIS JI

- CRIMINAL JI

- 775

. Additionally, the federal circuit courts of appeal have all adopted or affirmed some form of alibi instruction. See Comm. on Pattern Crim. Jury Instructions 1st Cir., 5.01, available at https://www.mad.uscourts.gov/resources/pattern2003; United States v. B urse , 531 F.2d 1151, 1 152

- 54 (2d Cir. 1976); Comm. on Model Crim. Jury Instructions 3d Cir., 8.02 (2021), available at https://www.ca3.uscourts.gov/sites/ca3/files/2021%20Chapter%208%20for%20post ing%20final.pdf ; Frye , 746 F.2d at 1012

- 14 (4th Cir.) ; Comm. on Pattern Jury Instructions Dist. Judges Ass’n 5th Cir., 1.37, Alibi (2019), available at https://www.lb5.uscourts.gov/juryinstructions/fifth/crim2015.pdf ; Sixth Circuit Comm. on Pattern Crim. Jury Instructions, 6.02 (2021), available at https://www.ca6.u scourts.gov/sites/ca6/files/documents/pattern_jury/pdf/Chapter% 206_1.pdf ; Comm. on Fed. Crim. Jury In structions of the 7th Cir., 6.03 (2022), available at https://www.ca7.uscourts.gov/pattern

- jury

instructions/pattern_criminal_jury_instructions_202 0edition.pdf ; Comm. on Model Jury Instructions for the District Courts of the 8th Cir., 9.07 (2021), available at https://juryinstructions.ca8.uscourts.gov/inst ruc tions/criminal/Criminal JuryInstruction s.pdf ; 9th Cir. Crim. Jury Instr. 5.1 (2022), available at https://www.ce9.uscourts.gov/jury

- instructions/node/865 ; Crim. Pattern Jury Instruction Comm. for the 10th Cir., 1.35 (2021), available at https://www.ca10.usc ourts.gov/sites/ca10/files/documents/downloads/Jury%20Inst ructions%202021%20Version.pdf ; Eleventh Circuit Pattern Jury Instructions, Criminal Cases, S14 (2016); available at https://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCriminalPatter nJ14 the alibi. 3 Some offering jurisdictions go so far as to suggest or place a sua sponte 1
duty on the district court to instruct on the subject of alibi when the evidence supports 2

the inst ruction. 4 Many jurisdictions

— including offering jurisdictions

— also 3

uryInstructionsRevisedMAR2022.pdf ; United States v. Alston , 551 F.2d 315, 319 (D.C. Cir. 1976).
3 See Ex parte Brown , 812 So. 2d 305, 307 (Ala. 2001); Ferguson v. State , 488 P.2d 1032, 1038

- 39 (Alaska 1971); State v Rodriguez , 961 P.2d 1006, 1011 (Ariz. 1998) (en banc); People v. Whitson , 154 P.2d 867, 872 (Cal. 1944); State v. Butler
, 543 A.2d 270, 276 (Conn. 1988); Brown v. State , 958 A.2d 833, 834 (Del. 2008); Henderson v. United States , 619 A.2d 16, 19 (D.C. 1992); Truett v. State , 105 So. 3d 656, 660 (Fla. Dist. Ct. App. 2013); Henderson v. State , 252 S.E.2d 83, 84 (Ga. Ct. App. 1979); State v. Holm , 478 P.2d 284, 288 n.9 (Idaho 1970); Smith v. State
, 486 A.2d 196, 198 (Md. 1985); Commonwealth v. Medina , 404 N.E.2d 1228, 1 237 (Mass. 1980); People v. McGinnis , 262 N.W.2d 669, 671 (Mich. 1978); State v. Taylor , 24 S.W. 449, 454 (Mo. 1893); Duckett , 752 P.2d at 754; State v. Dale , 770 A.2d 1111, 1113

- 14 (N.H. 2001); State v. Echols , 972 A.2d 1091, 1102 (N.J. 2009); People v. V era , 462 N.Y.S.2d 467, 468 (N.Y. App. Div. 1983); State v. Kalmio , 2014 ND 101, ¶ 41, 846 N.W.2d 752, 765; State v. Mitchell
, 574 N.E.2d 573, 576 (Ohio Ct. App.1989); Davis v. State , 237 P. 471, 472 (Okla. Crim. App. 1925); State v. Dudley , 564 P.2d 711, 7 13 (Or. Ct. App. 1977); Mikell , 729 A.2d at 568, 570; State v. Robbins , 271 S.E.2d 319, 319

- 20 (S.C. 1980); S.D. Pattern Jury Instructions (Criminal) 2

- 1

- 1, available on request, SRP at 0022

- 23 ; Poe v. State
, 370 S.W.2d 488, 489 (Tenn. 1963); State v. Pow ers , 47 A. 830, 832

- 33 (Vt. 1900); Acord v. Hedrick , 342 S.E.2d 120, 126 (W. Va. 1986); WIS JI

- CRIMINAL JI

- 775; United States v. Bryser , 954 F.2d 79, 87 (2d Cir. 1992); United States v. Hicks
, 748 F.2d 854, 857 (4th Cir. 1984) (citing the Sixth, Seventh, and Eighth Circuit Courts of Appeal); United States v. Schmick , 904 F.2d 936, 942

- 43 (5th Cir. 1990); United States v. Lillard , 354 F.3d 850, 855 (9th Cir. 2003); cf. People v. Whitson , 154 P.2d 867, 872 (Cal. 1944); Hamlin v. State , 2019

- KA

- 00172

- COA, ¶ 4, 306 So. 3d 843 (Miss. Ct. App. 2020); State v. Moreno , 422 N.W.2d 56, 61

- 62 (Neb. 1988); State v. Green , 151 S.E.2d 606, 608 (N.C. 1966).
4 See State v. Searles , 197 A.2d 384, 386

- 87 (N.J. Super. Ct. App. Div. 1964) ; Commonwealth v. Andrews , 83 A. 412, 414 (Pa. 1912); Commonwealth v. Smidl
, 577 A.2d 210, 213 (Pa. Super. Ct. 1990) (per curiam ) (Johnson, J., dissenting) (explaining the majority opinion reversing a conviction where no sua sponte alibi instruction was given) ) ; T.P.I.

- Crim. 42.13, cmt. 1 (citing Poe , 370 S.W.2d at 489).15 conclude that the denial of the instruction or an erroneous instruction is harmless
, 1

not reversible error , or otherw ise not prejudicial

. 5 2

{1 6 } New Mexico’s app roach to the alibi instruction is in the minority. 6 Most of 3
these minority jurisdictions recommend no alibi instruction for the same reasons set 4

5 See, e.g.
, Dixon v. State , 227 So. 2d 740, 743 (Fla. Dist. Ct. App. 1969); Medina
, 404 N.E.2d at 1237 ( Massachusetts ) ; People v. Matthews
, 413 N.W.2d 755, 756

- 57 (Mich. Ct. App. 1987) ; State v. Rickman
, 920 S.W.2d 615, 618 (Mo. Ct. App. 1996) (finding no prejudice); State v. Cobos , 863 N.W.2d 833, 838 (Neb. Ct. App. 2015); Duckett , 752 P.2d at 754 ( Nevada ); Echols , 972 A.2d at 1103 ( New Jers ey ); People v. Merritt , 698 N.Y.S.2d 735, 735
, 265 A.D.2d 733, 734 (N.Y. App. Div. 1999) (nonprecedential); State v. Hood , 422 S.E.2d 679, 682 (N.C. 1992); Mitchell
, 574 N.E.2d at 577 ( Ohio ) ; Davis , 237 P. at 473 ( Oklahoma ); State v. Bardwell , 2021 WI App 20, ¶¶ 16

- 19, 396 Wis. 2d 702, 958 N.W.2d 160 (per curiam) (unpublished disposition); United States v. Burse , 531 F.2d 1151, 1153 (2d Cir. 1976) (citing cases from the Second, Fifth, Seventh, and Eighth Circuit Courts of Appeal that held the failure to provide an alibi instruction does not automatically require reversal); United States v. Simon , 995 F.2d 1236, 1 244 (3d Cir. 1993).
6 The minority jurisdictions include Arkansas, see AMCI 2d 608, cmt.
, (Lexis) (“While alibi instructions have often been used by trial courts in Arkansas, alibi is neither a defense nor an affirmative defense under the Arkansas Criminal Code, but rather a position the defendant may assert to create a reasonable doubt of [ their ] gui lt. Therefore, no jury instruction should be given.”); Colorado, see Colo. Jury Instr., Criminal Ch. H cmt. 3 (2021); Illinois, see Committee Note to Illinois Pattern Jury Instructions, Criminal 24

- 25.05, IL

- IPICRIM 24

- 25.05 (West) (explaining the committe e decided to omit an alibi instruction because alibi is not an affirmative defense and the use of one would be a comment on the evidence) ; Indiana, see Ind. Pattern Jury Instructions

- Crim. No. 10.21, IN

- JICRIM 10.2000 (West) (“This instruction has been wit hdrawn.”); Kansas, see KS

- PIKCRIM 51.190 (“The Committee recommends that there be no separate instruction given as to alibi.”); Kentucky, see 1 Cooper & Cetrulo, Kentucky Instructions to Juries , §§ 1.04(D), 1.09(D) (6th ed. 2021) (stating that no affirmative instruction on alibi is to be given [1.04(D)] explaining that it would result in a comment on the evidence and interfere with the jury’s right to weigh the evidence [1.09(D)]) , available by request, SRP at 010

- 17 ; Maine, see Alexander, Maine Ju ry Instruction Manual , § 6

- 7 cmt

. , §§ 6

- 14 to

- 16, § 6

- 55 cmt

. , §§ 6

- 107 to

- 112 (2022 ed.)
, available on request
, SRP at 0025

-16 forth in o ur committee commentary, but some of the minority jurisd ictions have 1

nevertheless considered the alibi instruction a matter that is within the district court’s 2

discretion or affirmed giving the instruction. 7 Further, only a single other 3
jurisdiction, Idaho, has drafted an alibi instruction in combination with a directive 4

not to use it, like New Mexico. See ICJI 1502 Alibi Defense, c mt. Idaho, however, 5
is among the minority jurisdictions that have also affirmed a district court’s decision 6
to give the instruction under certain circumstances. See State v. Holm
, 478 P.2d 284, 7

288

- 89 (Idaho 1970). 8

{1 7 } Regardless of whether a jurisdiction is an offering or a min ority jurisdiction, 9

most have consider ed some or all of the points made by the committee commen tary 10
accompanying UJI 14

- 5150. On appeal, the State’s argumen ts largely echo these 11

29 (directing that the jury only receive instructions on justification defenses provided in Me. Rev. Stat. Ann. 17

- a, §§ 101

- 110 (West 2023), which omits alibi from justification defenses); Minnesota, see 10 Minn. Prac., Jury Instr. Guides

- Criminal 7.08 (6th ed. 2022), CRIMJIG 7.08 (West) (“The Committee recommends no instruction.”) ; Texas, see 22 Elizabeth Berry & George Gallagher, Texas Criminal Jury Charges § 3:390 (2021 ed.), TXJICRIM 3:390 (West) (“Alibi instructions are no longer required because the defensive issue of alibi constitutes no more than a negation of an essential element of the State’s burden of proof.” (emphasis omitted) ) ; and Washington, see Wash. Prac., Pattern Jury Instr. Crim. 18.15 (5th ed. 2021)
, 11 WAPRAC WPIC 18.15 (West).
7 Decker v. State , 499 S.W.2d 612, 616 (Ark. 1973 ); Ind. Judges Ass’n, Ind. Pattern Jury Instructions

- Criminal 10.21 cmt. , available on request, SRP at 031

- 33 (providing a jury instruction example “If an instruction on this topic is appropriate” despite the official instruction being withdrawn) ; Rems e n v. State
, 495 N.E.2d 184, 187 (Ind. 1986) ; State v. Peters , 656 P.2d 768, 769

- 70 (Kan. 1983) (finding it was not reversible error to give the alibi instruction); State v. Landa
, 642 N.W.2d 720, 727 (Minn. 2002).17 points . We therefore address the State’s arguments primarily with in the context of 1
the committee commentary of UJI 14

- 5150

. 2

B. The State’s Arguments Against UJI 14

- 5150 and in Favor of Strict 3 Application of the Use Note and Committee Commentary 4

{1 8 } The State first adopts the committee commentary ’s two reasons not to give 5
the instruction: (1) alibi is not an affirmative defense but on ly casts doubt on the 6
elements of the crime; and (2) an instruction on alibi would “merely” be a 7
“comment[] on the evidence.” UJI 14

- 5150, comm. c mt . The State additionally 8
argues that the jury did not need a specific alibi instruction and could simply apply 9

its “common sense,” because the district court sufficiently instructed the jury about 10

the law . We disagree that this reasoning justifies what we fear is the ultimate result

— 11
restricting the district court’s discretion to instruct on alibi in all circumstances. 12

{1 9 } In New Mexico an alibi is not an affirmative defense, but “an attempt to cast 13
doubt on the proof of the elements of the crime.” McGuire , 1990

- NMSC

- 067, ¶ 31. 14
Nearly every other jurisdiction that has addressed the matter has similarly concluded 15

that alibi i s not an affirmative defense, but also has allowed an alibi instruction under 16

some circumstances. 8 As the Delaware Supreme Court explained
, 17

8 Like New Mexico, most jurisdictions that generally deny an alibi instruction rely at least in part on the conclusion that alibi is not an affirmative defense, including the following: Arkansas, see Blaney v. State , 657 S.W.2d 531, 533

- 34 (Ark. 1983) (comparing alibi to accident); Colorado, see People v. Huckleberry , 768 P.2d 1235, 1239 (C olo. 1989) (en banc); Illinois, see People v. Poe , 272 N.E.2d 28, 31

- 32 (Ill. 1971); Kansas, see Peters , 656 P.2d at 769

- 70; Kentucky, see Parsley v.18 Commonwealth , 321 S.W.2d 259, 260 (Ky. Ct. App. 1958); Nebraska, see State v. El

- Tabech , 405 N.W.2d 585, 5 93 (Neb. 1987); Texas, see Giesberg v. State
, 984 S.W.2d 245, 248, 250 (Tex. Crim. App. 1998) (en banc); and Utah, see Lynch , 2011 UT App 1, ¶ 17. Many others, however, offer an alibi instruction even though those jurisdictions also conclude that alibi is not an affirmative defense, including: Alabama, see Ragland v. State , 192 So. 498, 501 (Ala. 1939) (noting alibi is not an

a ffirmative defense); Ex parte Brown , 812 So. 2d at 307 (holding an alibi instruction should have been given); Alaska, see Ferguson , 488 P.2d at 1038

- 39; Arizona, see Rodriguez , 961 P.2d at 1011; California, see People v. Freeman , 149 Cal. Rptr 396, 398 (19 78) (in bank) (noting alibi is not an affirmative defense); People v. Seabourn
, 11 Cal. Rptr. 2d 641, 644

- 45 (Ct. App. 1992) (holding that giving the instruction was not error because the facts supported it); Connecticut, see State v. Vasquez
, 36 A.3d 739, 748 (Conn. App. Ct. 2012); Delaware, see Brown , 958 A.2d at 839; District of Columbia, see Gray v. United States , 549 A.2d 347, 349 n.3 (D.C. 1988); Georgia, see Rivers v. State
, 298 S.E.2d 10, 19

- 20 (Ga. 1982) (noting alibi is not an affirmative defense) ; Henderson , 252 S.E.2d at 84 (holding that it is reversible error not to give an alibi instruction when the evidence supports it) ; Hawai’i, see State v. Gabrillo , 877 P.2d 891, 894 (Haw. Ct. App. 1994) (noting that alibi is not an affirmative defense) ; Ha wai’i Pattern Jury Instructions

— Criminal 7.14, HI R CR JURY Instr. 7.14 (West) ; Maryland, see Pulley v. State , 382 A.2d 621, 624 (Md. Ct. Spec. App. 1978); Missouri, see Taylor , 24 S.W. at 454, 456 (noting that alibi is not an affirmative defense) ; State v. Franklin , 591 S.W.2d 12, 14 (Mo. Ct. App. 1979) (stating the rule that a defendant is entitled to an alibi instruction if requested and if the evidence is sufficient to raise a reasonable doubt about the defendant’s presence) ; Montana, see State v . McClellan , 59 P. 924, 925 (Mont. 1900); MCJI 2

- 119, available at https://courts.mt.gov/Courts/boards/CriminalJuryInstructionsCommission ( select “2022 Criminal Jury Instructions ” and Ch apter 2 , at p. 41 ) ; Nevada, see Williams v. State , 671 P.2d 635, 636 ( Nev. 1983) (noting that alibi is not an affirmative defense) ; Duckett
, 752 P.2d at 754 (concluding that an alibi instruction should be given in Nevada “when requested and supported ”) ; New Jersey, see Searles , 197 A.2d at 386 (noting that alibi is not an af firmative defense) ; Echols , 972 A.2d at 1102 (holding that the failure to give an alibi instruction is error) ; New York, see People v. Victor , 465 N.E.2d 817, 818 (N.Y. 1984); North Carolina, see State v. Hunt , 197 S.E.2d 513, 518 (N.C. 1973); Ohio, see State v. Sorrels , 593 N.E.2d 313, 316 (Ohio Ct. App. 1991) (noting that alibi is not an affirmative defense) ; Mitchell , 574 N.E.2d at 576 (holding it is error to refuse an alibi instruction if the alibi is prope rly supported by the evidence) ; Pennsylvania, see Commonwealth v. Winebrenner , 265 A.2d 108, 114 (Pa. 1970) (noting that alibi is not an affirmative defense) ; Mikell , 729 A.2d at 568, 570 (holding a defendant is entitled to an alibi defense when the eviden ce supports19 because the defense of alibi is not an affirmative defense, the defendant 1 does not have the burden of proving his a libi. Instead, a proper alibi 2 instruction informs the jury that, if the proof adduced raises a 3 reasonable doubt of the defendant’s guilt, either by itself or in 4 conjunction with all other facts in the case, the defendant must be 5 acquitted. 6

Brown , 958 A.2d at 838

- 39 (emphasis added) (alteration, internal quotation marks, 7
and citation omitted). The Brown Court continued: 8
Without an alibi instruction in this case, the jury was erroneously left 9 free to assume that the defendant bore the burden of proving alib i. An 10 alibi instruction is required so that a jury does not make a determination 11 of guilt based on the failure of the defense rather than because the 12 evidence introduced by the state had sati sfied the jury of the defendant’ s 13 guilt beyond a reasonable doubt

. 14

Id. at 839 (alterations, footnote s , internal quotation marks, and citation omitted); see 15

also Robertson v. State , 685 A.2d 805, 815 (Md. Ct. Spec. App. 1996) (“ Because an 16
alibi is not an affirmative defense, a specific alibi instruction eliminates the 17
possibility that the jury will place the burden of proof on the defense with respect to 18
that issue.”). Similarly in New Mexico , for alibi, a defendant need only “cast doubt 19
on the proof of the elements of the crime” and bears no burden of pr oof. McGuire
, 20

1990

- NMSC

- 067, ¶ 31 ; s ee UJI 14

- 51 50 , comm. c mt . (noting that “ it is improper to 21
instruct that the burden is on the defendant to prove his alibi”)

. These principles are 22

it) ; South Carolina, see State v. Bealin , 23 S.E.2d 746, 753, 755 (S.C. 1943); Tennessee, see Christian v. State , 555 S.W.2d 863, 864, 866 (Tenn. 1977); and Vermont, see State v. Ovitt , 535 A.2d 1272, 1274 (Vt. 1987) (noting that alibi is not

a n affirmative defense) ; Powers , 47 A. at 832

- 33 (concluding the district court correctly instructed the jury on alibi)

.20 in line with New Mexico’s law of self

- defense, which is also not an affir mative 1
defense and for which the defendant bears no burden of proof. See Parish , 1994

- 2

NMSC

- 073, ¶ 17. “The defendant’s only obligation is to introduce evidence that will 3
raise in the minds of the jurors a reasonable doubt about the matter.” Id. ¶ 16. For 4

self

- defense, it is the State’s burden to disprove the defense and the jury must be so 5
instructed to avoid misunderstandings about the burdens. See i d. ¶ 20. For these 6
reasons, we question whether the categorization of alibi as “not an affirmative 7
defense” justifies the committee commentary’s explanation for categorically 8
refusing to instruct the jury on the topic. See id. ¶ 17. 9

{ 20 } We are similarly skeptical of the committee commentary’s classification of 10
the alibi jury instruction as an inappropriate comment on the evidence. See UJI 14

- 11

5150, comm. c mt

. Under well

- established New Mex ico law, an improper comment 12

on the evidence is one that (1) contextualize s specific facts presented; (2) argue s or 13
hypothesize s on factual issues within the jury’s purview to decide ; or (3) otherwise 14

make s a statement about the weight or credibility of ev idence in the presence of the 15
jury. See State v. Padilla , 1977

- NMCA

- 055, ¶ 13, 90 N.M. 481, 565 P.2d 352 16
(requiring instructions be “free from hypothesized facts” (internal quotation marks 17

and cit ation omitted) ); Amador v. Lara , 1979

- NMCA

- 129, ¶¶ 24

- 32, 93 N.M. 571, 18
603 P.2d 310 (considering a court’s note to the jury that included an explanation of 19
the damages evidence); State v. Sanchez , 1991

- NMCA

- 037, ¶¶ 26

- 28, 112 N.M. 59, 2021 811 P.2d 92 (noting that comments that reflect on th e weight of evidence or witness 1
credibility are prejudicial); see also Rule 11

- 107 NMRA (“The court shall not 2
comment to the jury upon the evidence or the credibility of the witnesses.”); UJI 3

Crim. Gen

. NMRA u se n ote (“For other subject matters not covered by a uniform 4
instruction, the court may give an instruction that is brief, impartial, free from 5
hypothesized facts, and otherwise similar in style to these instructions.”). Other 6
jurisdictions have characterized commenting on the evidence slightly differe ntly, but 7
ultimately, warn courts against expressing an opinion about evidence 9 or drawing 8
attention to particular evidence. 10 The Supreme Court of Arizona explained that a 9
comment on the evidence ultimately “express[es] an opinion as to what the evidence 10

proves

. . . that would interfere with the jury’s independent evaluation of that 11

evidence.” Rodriguez , 961 P.2d at 1011 (evaluating the state constitutional 12
prohibition on comment on evidence). With these princ iples in mind, we set forth 13

our alibi instruc tion again: 14

9 State v. Kim , 2001 ME 99, ¶ 8, 773 A.2d 1051 (“ Because traditional alibi instructions are in the nature of a comment by the court on th e evidence, such instructions are neither required nor appropriate in most instances.” ( citing 14 M.R.S.A. § 1105 (1980)) ).
10 See Landa , 642 N.W.2d at 728 n.2 (cautioning Minnesota courts “that instructions that single out a particular category of evidence shall be avoided”); Giesberg , 984 S.W.2d at 250 (holding that in Texas, “a separate instruction on alibi as a defense would draw unwar ranted attention to evidence that appellant was at another place when the crime was committed and would therefore constitute an improper comment on the weight of the evidence”).22 Evidence has been presented concerning whether or not the 1 defendant was present at the time and place of the commission of the 2 offense charged. If, after a consideration of all the evidence, you have 3 reasonable doubt that the defendant was pres ent at the time the crime 4 was committed, you must find him not guilty

. 5

UJI 14

- 5150. This instruction does not contextualize or hypothesize the facts or 6
express an opinion about the evidence. The instruction does not “suggest to the jury 7

that the evidence should lead t hem to any particular result [but r] ather, it reframes 8
the burden of proof in the context of [the defendant ] ’s alibi theory.” See Rodriguez
, 9

961 P.2d at 1012. As a result, we do not believe that UJI 14

- 5150 functions as a 10
comment on the evidence, despite the committee commentary’s characterization. 11 11

{2 1 } T he State last maintains that “[t]here [was] no reason why the jury needed to 12
be instructed on ‘how to properly evaluate’ [Defendant’s] alibi,” because the given 13
instructions sufficiently explained the law. In support of its contention, the State 14
argues that “it is self

- evident that, if the jury believed Defendant was in Cedar City 15
that night, he could not have committed the theft and was not guilty of the charges ” 16

11 It is worth noting that “comment on evidence” is often tied to older versions of the instruction like this one: “The law says that the defense of alibi should be received by the jury discreetly and cautiously because it is a defense that can be easily manufactured or fabricated.” Christian , 555 S.W.2d at 864 (internal quotation

mar ks and citation omitted). The Christian Court rejected this instruction because

“ [t]he overwhelming weight of authority in other states where trial judges are prohibited from making comments upon the evidence is that disparaging comments or references to t he issue of alibi are erroneous.” Id. at 864, 866.23 and “ UJI 14

- 5150 does not tell jurors anything they d [ id ] not already know as a 1

matter of common sense.” Th e Supreme Court of Alaska took a different view: 2
Instructions serve purposes other than to inform the jury on the law 3 applicable to the case, one such other purpose being to remind the jury 4 of the main factual disputes raised during trial. Moreover, withou t 5 proper instruction the jury might erroneously believe that the defendant 6 has the burden of proving alibi. 7

Ferguson , 488 P.2d at 1038 . Similarly, the Supreme Court of Pennsylvania observed 8

that : 9

“ ‘ [G]eneral instructions on the [c] ommonwealth’s burden of proving 10 each element of the offense beyond a reasonable doubt, the absence of 11 a burden of proof on the defendant, and assessing the credibility of 12 witnesses do not adequately protect against ’ ” the da nger posed by the 13 misapprehensions a jury might indulge regard ing the relevance and 14 effect of alibi evidence. 15

Com monwealth v. Hawkins , 894 A.2d 716, 718 (Pa. 2006) (quoting Com monwealth 16

v. Pounds , 417 A.2d 597, 6 34 (Pa. 1980)); see Rodriguez , 961 P.2d at 1011 17
(“ [S]tandard instructions about the burden of proof provide a poor substitute for a 18
properly supported alibi instruction.”); Brown , 958 A.2d at 838

- 39 (rejecting the 19
state’s argument that general instructions on burden of proof eliminated prejudice); 20
Pulley , 382 A.2d at 626 (same); Poe , 370 S.W.2d at 489 (same); Duckett , 752 P.2d 21

at 754 (“Although alibi instructions may, to some extent, merely be a reiteration of 22

other instructions, they are not totally redundant

. . . [and] may prevent a jury from 23
mistakenly believing that the defendant has the burden of proving that he was 24

elsewhere, t hereby minimizing the prospect of prejudicial error on the point

. ”) . We 2524 find this reasoning persuasive, particularly in the context o f the trial in the present 1
case. We turn then to review the facts as they developed at trial through closing 2
argument but n ot to discern any error, because, as we have explained, we are 3
precluded from finding error under these circumstances. Instead, we relay the facts, 4
viewed through the lens of our reversible error standard, to demonstrate the risk run 5
by the categorical den ial of the instruction. 6

C. The Present Case Demonstrates t he Elevated Risk of Juror Confusion 7 and Misdirection When Alibi Evidence is Offered 8

{2 2 } A defendant is entitled to a jury instruction on their theory of the case when 9
the instruction is supported by sufficient evidence at trial. See State v. Romero , 2009

- 10

NMCA

- 012, ¶ 22, 145 N.M. 594, 203 P.3d 125; see also Skippings , 2011

- NMSC

11
021, ¶ 10 (“A defendant is entitled to an instruction on his or her th eory of the case 12
if evidence has been presented that is sufficient to allow reasonable minds to differ 13
as to all elements of the offense.” (internal quotation marks and citation omitted)). 14
Denial of a jury instruction rises to reversible error if the defen dant shows they were 15
entitled to the denied instruction or that “a reasonable juror [c]ould ha ve been 16

confused or misdirected ” by the omission

. State v. Montoya , 2015

- NMSC

- 010, ¶ 25, 17
345 P.3d 1056 (internal quotation marks and citation omitted). Confusion or 18
misdirection may arise “despite the fact that the juror considers the instruction 19
straightforward and perfectly comprehensible on its face.” Benally , 2001

- NMSC

20
033, ¶ 12 (internal quotation marks and citation omitted). Thus, even if a jury 2125 instruction i s not facially contradictory or ambiguous, it may create juror confusion 1

or misdirection if the instruction
, “through omission or misstatement, fail[s] to 2
provide the juror with an accurate rendition of the relevant law.” Id. ; see State v. 3

Ellis , 2008

- NMSC

- 032, ¶ 14, 144 N.M. 253, 186 P.3d 245 (“A jury instruction 4
which does not instruct the jury upon all questions of law essential for a conviction 5
of any crime submitted to the jury is reversible error.” (internal quotation marks and 6

citatio n omitted) ). 7

{2 3 } In the present case, t he jury received correct instructions on the State’s burden 8
of proof

. S ee UJI 14

- 5060 NMRA

. T he elements instruction s reitera ted the State’s 9
burden of proof

. S ee UJI 14

- 1601 NMRA (Larceny; essential elements

. ); UJI 14

- 10

1630 (Burglary; essential elements

. ). During closing argument, t he State referred to 11
the alibi evidence as the “alibi card” and repeatedly warned the jury to the effect that 12
Defendant was “trying to get out from under the truth” and get the jury “to buy into 13

th at alibi card.” After arguing about the alibi evidence, the State asked the jury “as 14
we stand here now, what evidence do you as a jury have to establish the alibi that he 15

wasn’t at Lowe’s at 10:40 [p.m.] on December 2 nd ?” Defendant objected
, and the 16
trial court warned the State that the argument was “ getting close” but overruled the 17
objection. The State continued, told the jury that it had the testimony of Defendant 18
and Majeski and the restaurant receipt, and asked
, “ W ho else could have added to 19

the alibi ? ” Defendant again objected and the State indicated it would move on, 2026 though continued to make comments that an alibi had not been proved. On rebuttal, 1
the State began by correctly asserting that “if you believe [Defendant] and Mr. 2
Majeski, I should just sit down, because that is reasonable doubt and the verdict 3
would have to be not guilty.” T he State continued and argued to the jury that the 4

alibi evidence was “ being used against [Defendant] to challenge his credibility 5
because the only way he ’s not guilty is if you believe him and Mr. Majeski.” 6

{2 4 } Undoubtedly, as the parties agree, the State may challenge credibility of the 7
alibi evidence and witnesses. The State may not, however, present an argument that 8

serves to shift the burden of proof . The alibi instruction would have told the jury that 9

“ [i]f, after a consideration of all the evidence, you have reasonable doubt that the 10
defendant was present at the time the crime was committed, you must find him not 11
guilty.” See UJI 14

- 5150. This instruction creates a framework for the jury to 12

understand the State’s burden to prove beyond a reasonable doubt that Defendant 13
was present when the crime took place when Defendant contends he was elsewhere

. 14
This is especially so in the context of the present case, with the State’s continued 15
references to Defendant’s failure to prove the alibi, culminating in the argument on 16
rebuttal that the only way Defendant would be “not guilty” was if the jury did not 17

believe the alibi evidence. Abse nt such an instruction, 12 the likelihood of juror 18

12 We observe that other jurisdictions have instructions that more explicitly set forth the burdens. See Alabama Pattern Jury Instructions: Criminal, Non

- Statutory Special Instructions, Alibi (approved April 15, 2016) , available at27 confusion escalated

. We agree with Defendant’s observation at oral argument that 1

UJI 14

- 5150 would have offered a n appropriate reminder given the facts and 2
arguments in this case of the State’s burdens. The facts of this case further 3
demonstrate the danger of relying on “common sense” to ensure that a jury 4
understands difficult concepts. The elements of larceny require the State to prove 5
the market value of the stolen property, which is unrelated to Defendan t’s presence. 6

See UJI 14

- 1601 (requiring the S tate to prove : “1. The defendant took and carried 7
away [property], belonging to another, which had a market value [over $ 20,000 ]”). 8

T he State was required to prove all of the elements of larceny, e ven if the jury did 9

not believe Defendant’s alibi evidence

. We therefore observe that despite the proper 10
instructions on reasonable doubt and the State’s burden, “a reasonable juror [c]ould 11

https://judicial.alabama.gov/docs/library/docs/Alibi.pdf ; Conn. Criminal Jury Instructions § 2.7

- 2 (Nov. 2021), available at https://jud.ct.gov/JI/Criminal/Criminal.pdf ; Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.30.10 , GAJICRIM 3.30.10 (West) ; I nstruction 9.120 of the Criminal Model Jury Instructions for Use in the District Court 9.120 (2009), MJ MA

- CLE 9.100 (West) (Massachusetts ) ; New Jersey Model Jury Charges (Criminal), “Alibi (Non 2C)” (rev. May 12, 2018) , NJ

- JICRIM Non 2C Charges (West) ; CJI2D(NY) GA 21

– Alibi and 1 Charges to Jury & Requests to Charge in Crim. Case in N.Y. §§ 5:7

- :9 (Oct. 2022 update) (New York)

. Still other jurisdictions have adopted an instruction similar to the instruction that the State referenced at oral argum ent. See Frye , 746 F.2d at 1012

- 13 (4th Cir.) ; see also Miss. Prac. Model Jury Instr., Crim. § 2:1 (2d ed.) (West) and Miss. Plain Lang. Model Jury Instr. Crim. 500 (West) ; N.H. Criminal Jury Instructions 3.02 (1985), available at https://nhba.s3.amazonaws .com/wp

- content/uploads/2020/07/14150407/NH

Criminal

- Jury

- Instructions

- 1985.pdf ; N.C.P.I.

— Crim. 301.10 (2003) (North Carolina) ; Anderson’s S.C. Requests to Charge

- Criminal § 6

- 19 (2d ed. 2012), SC

JICRIM 6

- 19 (West) ; WIS JI

- CRIMINAL JI

- 775 (West)

.28 have been confused or misdirected” by the omission of the alibi instructi on. See 1

Montoya , 2015

- NMSC

- 010, ¶ 25 (internal quotation marks and citation omitted); 2

see also Romero , 2009

- NMCA

- 012, ¶ 22. 3

{2 5 } For these reasons, we express our reservations regarding the Use Note and 4
New Mexico’s prohibition against giving the uniform alibi jury instruction at the 5
district court’s discretion in appropriate circumstances

. Wilson , 1994

- NMSC

- 009, 6

¶ 6 (encouraging “the Court of Appeals to express its rationale for any reservations 7
it might harbor over Supreme Court precedent”). 8

II. The Evidentiary Issues 9

{2 6 } Defendant challenges the district court’s admission of Nickel’s opinion 10
testimony and exclusion of Docimo’s preliminary hearing testimony. We review the 11
evidentiary rulings for an abuse of discretion. State v. Vargas , 2016

- NMCA

- 038, 12

¶ 10, 368 P.3d 1232. “An abuse of discretion occurs when a ruling is clearly against 13
the logic and effect of the facts and circumstances of the case, or when a ruling 14
indicates a misapprehension of the law.” State v. Chavez , 2022

- NMCA

- 007, ¶ 39
, 15

504 P.3d 541 (alterations, internal quotation marks, an d citations omitted). We will 16
only reverse where the abuse is “clearly untenable or not justified by reason.” State 17

v. Maxwell , 2016

- N MCA

- 082, ¶ 10, 384 P.3d 116 (internal quotation marks and 18

citation omit ted). 19

2029 A. The District Court Did Not Abuse Its Discretion in Admitting Nickel’s 1 Opinion Testimony 2

{2 7 } At trial, Defendant argued that Nickel’s testimony amounted to expert 3
testimony and not lay testimony. Since trial, this Court decided Chavez . In that case, 4

we rejected police officer testimony that “form[ed] conclusio ns for jurors that they 5

are competent to reach on their own.” 2022

- NMCA

- 007, ¶ 42 (internal quotation 6
marks and citation omitted) . Defendant now relies on Chavez to argue that Nickel’s 7
testimony that identified Defendant in the incident video was improper. T he heart of 8
the parties’ dispute about Nickel’s testimony is whether her opinion was helpful to 9
the jury in accordance with Rule 11

- 701(B) NMRA and that is where we focus our 10
inquiry. 11

{2 8 } The district court viewed Nickel’s tes timony to be lay opinion testimony

. L ay 12
opinion testimony is admissible only if it is “helpful to clearly understanding the 13
witness’s testimony or to determining a fact in issue.” Rule 11

- 701(B). The 14

he lpfulness of opinion testimony that identifies an individual in video evidence is 15
based on whether “the witness is more likely than the jury to make an accurate 16

identification.” Chavez , 2022

- NMCA

- 007, ¶ 41 (stating this Court’s acceptance of 17
“this general rule” (citing State v. Sweat , 2017

- NMCA

- 069, ¶¶ 21

- 24, 404 P.3d 20)). 18

In Sweat
, this Court adopted five factors “relevant to a determination of whether a 19
lay witness is more likely than the jury to identify the defendant correctly” in video 20
or photographic evidence, including
, 2130 (1) the witness’s general level of familiarity with the defendant’s 1 appearance; (2) the witness’s familiarity with the defendant’ s 2 appearance at the time the surveillance photograph was taken or 3 whether the defendant was dressed in a manner similar to the individual 4 depicted; (3) whether the defendant disguised his or her appeara nce at 5 the time of the offense; (4) whether the defendant had altered his or her 6 appearance prior to trial; and (5) the degree of clarity of the surveillance 7 recording and the quality and completeness of the subject ’s depiction 8 in the recording. 9

2017

- NMCA

- 069, ¶ 22 (alterations, internal quotation marks, and citations omitted). 10
Any one of these five factors can demonstrate that the witness is mor e likely than 11
the jury to make a correct identification of a person appearing in a video recordin g. 12

Id. ; Chavez , 2022

- NMCA

- 007, ¶ 41. 13

{2 9 } This Court in Chavez stressed the importance of preventing a witness from 14
drawing conclusions that the jury was in a n equally apt position to draw on its own. 15

2022

- NMCA

- 007, ¶ 41

. The district court in Chavez permitted an officer, based on 16
her “training and experience,” to provide opinion testimony identifying “a dark 17
object” in a black

- and

- white surveillance video as a gun. Id

. ¶ 40 (internal quotation 18
marks omitted) . This Court determined, however, that the officer (1) had no more 19
interaction or “special familiarity with the visual appearance” of the gun, which was 20
“an ordinary object;” (2) “was not present on the nigh t of the incident” and “had no 21
opportunity to observe whether [the d]efendant was armed;” and (3) did not have 22
“knowledge of anything idiosyncratic about [the d]efendant or his belongings.” Id. 23

¶ 42. B ecause the officer solely relied on evidence already ad mitted and available to 2431 the jury to identify the gun in the video and had no more knowledge or interaction 1
with the gun than the jury, the officer had no special familiarity with the gun that 2
made her more likely than th e jury to accurately identify the gu n in the video 3

evidence. Id. The identification testimony was therefore not helpful to the Chavez 4
jury. Id. 5

{ 30 } In the present case, Defendant’s argument hinges on Chavez . According to 6
Defendant, because the jury had access to the “plethora” of video evidence, the jury 7
had “a similar level of competence as Nickel” to determine whether Defendant was 8
the person in the incident footage . Consequently, Defendant argues that “Ni ckel’s 9
opinions in her testimony were conclusions that the jury could have arrived at based 10
on the evidence provided at trial” and that Nickel’s opinion testimony was therefore 11
unhelpful and improper. Defendant’s argument disregards Nickel’s undisputed 12

per sonal knowledge of Defendant. 13

{3 1 } Nickel worked with Defendant for about two years and had almost daily 14
contact with Defendant during that time. This evidence establishes a special 15
familiarity beyond that of the officer in Chavez . Defendant concedes that this 16

evidence satisfies one of the five Sweat factors, the witness’s familiarity with 17
Defendant’s appearance. See 2017

- NMCA

- 069, ¶ 22. Defendant further concedes 18

that because the person in the incident footage was dressed in disguise, a second 19

Sweat factor supports admission of Nickel’s identification testimony. See id. 2032 Nickel’s knowledge of Defendant and the fact that the face of the person in the 1

incident footage was concealed makes it more likely that Nickel’s testimony could 2
help the jury to identify De fendant in the recordings . As a result, the district court 3
did not abuse its discretion by admitting Nickel’s opinion testimony. 4

B. The District Court Did Not Abuse Its Discretion i n Excluding Docimo’s 5 Preliminary Hearing Testimony 6

{3 2 } Defendant also challenges the district court’s exclusion of the preliminary 7
examination testimony of Docimo. Generally, a transcript would be c onsidered 8
inadmissible hearsay, except in certain circumstance s if the witness is unavailable. 9

S ee Rule 11

- 801(C) NMRA (defining hearsay) ; Rule 11

- 802 NMRA (excluding 10
hearsay as inadmissible) ; Rule 11

- 804 NMRA (unavailable witness) . A witness is 11
unavailable if the party calling the witness was unable “by process or other 12
reasonable means, to procure” the witness’s attendance. Rule 11

- 804(A)(5). 13
Throughout this case, Defendant has contended that he met the burden to establish 14

that he was unable by “other reasonable means” to procure Docimo’s attendance at 15

trial. See State v. Ewing , 1982

- NMSC

- 003, ¶ 17, 97 N.M. 235, 638 P.2d 1080 16
(explaining the burden is on the party offering the transcript to demonstrate 17
unavailability (internal quotation marks and citation omitted) ). Initially, the district 18
agreed that Docimo was unavailable and therefore ruled that the preliminary hearing 19

trans cript was admissible. At trial, however, Majeski, testified that he had contact 20
with Docimo in the weeks before trial. Based on this testimony, the district court 2133 determined that Plaintiff did not establish Docimo ’s unavailab ility for the purposes 1

of Rule 11

- 804. Defendant maintains his position on appeal that the investigator had 2

not been able to locate Docimo and Defendant himself had no knowledge of 3

Docimo’s whereabouts. 4

{3 3 } For support, Defendant analogizes to Ewing , in which our Supreme Court held 5

th at the party seeking admission of hearsay had made reasonable efforts to secure 6

the witness. See 1982

- NMSC

- 003, ¶ 17. Defendant contends that like in Ewing , his 7
investigator had difficulty serving Docimo

. Docimo did not want to come to trial, 8

see i d. ¶¶ 14, 17, and therefore, Defendant maintains that his efforts to secure 9

Docimo were reasonable. Unlike in Ewing , however, Defendant did not check other 10
potential addresses, schools, welfare offices, or talk to neighbors

. See id. ¶ 14. To 11
the contrary
, the evidence shows that Defendant’s investigator did not even ask 12
Majeski about Docimo’s whereabouts
, even though Majeski was Docimo’s husband

. 13

Under these circumstanc es, we cannot say that the district court’s exclusion of the 14
preliminary hearing transcript was an abuse of discretion and “clearly against the 15
logic and effect of the facts and circumstances of the case.” Maxwell , 2016

- NMCA

16
082, ¶ 10 (internal quotation marks and citation omitted). 1734 III. The Sufficiency of the Evidence 1

{ 34 } Defendant last challenges the sufficiency of the evidence supporting the 2
larceny conviction and the amount of the restitution order. We are satisfied that 3
sufficient evidence supported both. 4

A. The Evidence Supported Defendant’s Larceny Conviction 5

{3 5 } The elements essen tial to conviction are set forth in the relevant uncontested 6
jury instructions. See State v. Garcia , 2016

- NMSC

- 034, ¶ 17, 384 P.3d 1076 (“Jury 7
instructions become the law of the case against which the sufficiency of the evidence 8
is to be measured.” (altera tion, internal quotation marks, and citation omitted)). In 9
this case, the jury instruction as to Count I, Larceny Over $20,000, provided: 10
For you to find

. . . D efendant guilty of Larceny as Charged in 11 Count 1, the State must prove to your satisfaction beyo nd a reasonable 12 doubt each of the following elements of the crime: 13

1

. Defendant took and carried away Cash

— United States 14 Currency, belonging to another, which had a market value over 15 $20,000 ; 16

2

. At the t ime he took this property, D efendant intended to 17 permanently deprive the owner of it; 18

3

. This happened in New Mexico on or about the 2nd day of 19 December [
, ] 2017. 20

See UJI 14

- 1601. Defendant challenges the sufficiency of the evidence only as to the 21

first element. “In reviewing for sufficiency of the evidence, we must determine 22

whether substantial evidence of either a direct or circumstantial nature exists to 2335 support a verdict of guilt beyond a reasonable doubt with respect to every element 1

essential to a c onviction.” State v. Torres , 2018

- NMSC

- 013, ¶ 42, 413 P.3d 467 2
(internal quotation marks and citation omitted). We view the evidence in the light 3
most favorable to the guilty verdict and only find evidence is substantial when “a 4
reasonable mind might accep t [it] as adequate to support a conclusion.” Id. (internal 5
quotation marks and citation omitted) ; see State v. Cunningham , 2000

- NMSC

- 009, 6

¶ 26, 128 N.M. 711, 998 P.2d 176

. 7

{3 6 } At trial, the State presented the testimony of both Nickel and Detective Rock 8
that over $20,000 had been stolen
, but the two witnesses testified to different 9
amounts. Nickel testified that approximately $36,000 had been stolen, based on her 10
review of accounting paperwork that was not introduced at tri al. Detective Rock, 11

based on Officer Flores’ s report, testified that the amount was $33,040.85. Any 12
conflict between Nickel’s and Detective Rock’s testimony was to be resolved by the 13

fact

- finder, and regardless, a rational jury could conclude that this evi dence 14
establishes that more than $20,000 was stolen. See State v. Landlee , 1973

- NMCA

15
112, ¶ 3, 85 N.M. 449, 513 P.2d 186 (considering conflicting testimony as to the 16
amount stolen in a larceny trial) ; see also State v. Dominguez , 1977

- NMCA

- 128, 17

¶¶ 14
, 15, 91 N.M. 296, 573 P.2d 230 (permitting the jury to determine that the value 18
of items stolen). 1936 {3 7 } Defendant maintains that this evidence

— at best

— supports the notion that 1

Nickel and Detective Rock believed t hat more than $20,000 was taken but that 2
without the accounting or report supporting their testimony, the evidence was legally 3

insufficient for conviction

. Therefore, Defendant contends that the State failed to 4
meet its burden of proof in violation of Defe ndant’s due process rights under both 5
the federal and state constitutions. We disagree . No authority suggests the amount 6
taken must be established by documentary evidence. See Landlee , 1973

- NMCA

7
112, ¶ ¶ 2
, 3

. To the extent Defendant urges us to adopt a req uirement for 8
documentary evidence
, based on a New York trial court’s slip opinion in People v. 9

Cruz , 130 A.D.3d 1538 (N.Y. App. Div. 2015)
, we decline to do so. Applying our 10

well

- established standard, v iewing the evidence in the light most favorable to the 11
guilty verdict, we conclude that a jury could rationally determine over $20,000 was 12

taken from Lowe’s. See § 30

- 16

- 1(F); see Landlee , 1973

- NMCA

- 112, ¶ 3. 13

B. The Evidence Supported the Restitution Order 14

{3 8 } Defendant additionally contends that there was no basis for the district court’s 15
order requiring $33,040.83 in restitution, because (1) the amount of restitution did 16

not match the evidence from trial
, and (2) no presentencing investigation or evidence 17

supp orted the amount. As a result, Defendant argues that he had no notice or 18
mechanism to challenge the amount of restitution. Defendant concedes this issue is 19

not preserve d , and we therefore review for fundamental error. See In re Aaron L.
, 2037 2000

- NMCA

- 024, ¶ 1 0, 128 N.M. 641, 996 P.2d 431. The fundamental error 1
exception to the preservation rule applies “only under extraordinary circumstances 2
to prevent the miscarriage of justice.” State v. Silva , 2008

- NMSC

- 051, ¶ 13, 144 3
N.M. 815, 192 P.3d 1192 (internal quota tion marks and citation omitted)
, holding 4
modified on other grounds by State v. Guerra , 2012

- NMSC

- 027, ¶¶14
, 15, 284 P.3d 5

1076

. 6

{3 9 } According to Defendant, the trial evidence did not support the restitution 7

amount ($33,040.83) because it differed from the amounts testi fied to by Nickels 8
($36,000) and Detective Rock ($33,040.85). We note, however, that the amount 9

ordered for restitution wa s two cents less than the amount testified to by Detective 10
Rock. Defendant had notice of Detective Rock’s testimony from the trial, and the 11
difference between Detective Rock’s testimony and the restitution order is 12

nominal

— and ultimately the restitution order required Defendant to pay two cents 13

less than the testimony indicated. We decline to view this two

- cent decrease as an 14
“extraordinary” circumstance requiring our intervention “to pre vent the miscarriage 15
of justice. ” S ee id

. (internal quotation marks and citation omitted). Because the 16
restitution amount was sufficiently supported by the trial evidence, we do not 17

cons ider Defendant’s argument that a presentence report was necessary to provide 18
notice of the restitution amount. Accordingly, we find no fundamental error. 1938 CONCLUSION 1

{ 40 } For the reasons stated herein, we affirm. 2

{4 1 } IT IS SO ORDERED. 3

__________________________________ 4 KATHERINE A. WRAY, Judge 5

WE CONCUR: 6

_________________________________ 7 J. MILES HANISEE, Judge 8

_________________________________ 9 MEGAN P. DUFFY, Judge 10