                                                       I attest to the accuracy and
                                                        integrity of this document
                                                          New Mexico Compilation
                                                        Commission, Santa Fe, NM
                                                       '00'05- 16:46:07 2014.01.09
Certiorari Denied, December 4, 2013, No. 34,389

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-007

Filing Date: October 7, 2013

Docket No. 31,874

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ISRAEL HERRERA,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Charles C. Currier, District Judge

Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

KENNEDY, Chief Judge.

{1}    Israel Herrera (Defendant) raises a number of challenges to his convictions for
second-degree murder and third-degree tampering with evidence. Defendant’s most
substantive argument is his contention that his conviction for third-degree tampering with
evidence violated his constitutional rights to due process and trial by jury because the jury
was not instructed that it must find that the evidence Defendant tampered with related to a

                                             1
capital, first- or second-degree crime, which is an essential element of the crime of third-
degree tampering. However, Defendant failed to preserve this claim of error, and we
conclude the error was not fundamental where it was undisputed that the evidence he
tampered with related to the second-degree murder that the jury found him guilty of
committing. Thus, finding no other error, we affirm Defendant’s convictions.

I.     BACKGROUND

{2}      Defendant was at home one evening with his girlfriend and her child when someone
began pounding on their front door. It was a friend of Defendant, who demanded that he be
let in. Defendant and his girlfriend testified that the friend was shouting and swearing. They
testified that they told the friend to go away, but he continued to pound on the door and shout
for several minutes. Defendant claimed that his friend was angry and agitated and was
behaving in a way that Defendant had never seen him behave before. Defendant stated he
heard the friend say that he was going to spray Defendant’s house with bullets. When
Defendant heard this, he picked up a gun. Defendant watched his friend leave and go back
to a van parked out on the street. Defendant stated he saw that his friend did not have a gun,
but, as his friend got into the van and started backing out, he leaned over in a way that made
Defendant believe that he was reaching under the seat. Defendant assumed that his friend
was reaching for a gun, and Defendant fired one shot at him. Defendant went back inside
and told his girlfriend to leave. Then, he went outside to the backyard and put the gun in a
crawlspace underneath the house. He was walking around outside when the police arrested
him and informed him that his friend was dead.

{3}     Defendant was charged with first-degree murder and third-degree tampering with
evidence, which involves tampering with evidence of a capital crime or of a first- or second-
degree felony. At trial, Defendant did not dispute that he shot his friend, but argued that the
killing was justified by self-defense. In the alternative, he argued that the killing was
mitigated by sufficient provocation, such that he could only be found guilty of manslaughter.
The jury found him guilty of second-degree murder and guilty of third-degree tampering
with evidence. Defendant appeals.

II.    DISCUSSION

A.     Defendant’s Right to Have the Jury Find All Elements of the Offense of Third-
       Degree Tampering With Evidence

{4}     Based on Defendant’s act of attempting to hide the gun involved in the shooting, he
was charged with third-degree tampering with evidence, which applies when a defendant has
tampered with evidence relating to a capital crime or of a first- or second-degree felony.
NMSA 1978, § 30-22-5(A), (B)(1) (2003). At trial, the jury was provided with an
instruction on tampering that required it to find that Defendant hid the gun in an effort to
avoid being prosecuted, but did not require it to find that the evidence that was tampered
with related to a first- or second-degree felony. Defendant contends that because the jury

                                              2
did not find that his act of hiding evidence related to a first- or second-degree felony, his
conviction for third-degree tampering with evidence violated his Sixth Amendment right to
have a jury find all facts necessary to the conviction. “We review this constitutional issue
de novo.” State v. Alvarado, 2012-NMCA-089, ¶ 5, ___ P.3d ___. However, because
Defendant concedes that this issue was not preserved, we will reverse only if any error rose
to the level of fundamental error. See State v. Sandoval, 2011-NMSC-022, ¶ 15, 150 N.M.
224, 258 P.3d 1016. We conclude that, although the jury instruction omitted an essential
element of the crime, the error was not fundamental under the circumstances of this case.

{5}    New Mexico’s statute criminalizing tampering with evidence imposes different
sentences depending on the type of crime that the tampering was done to conceal.
Subsection (A) sets out the elements common to all degrees of tampering. Subsection (A)
describes the conduct that constitutes the basic act of tampering with evidence and states:

       Tampering with evidence consists of destroying, changing, hiding, placing[,]
       or fabricating any physical evidence with intent to prevent the apprehension,
       prosecution[,] or conviction of any person or to throw suspicion of the
       commission of a crime upon another.

Section 30-22-5(A).

{6}    Subsection (B) provides that tampering with evidence may be a petty misdemeanor,
a misdemeanor, or a third- or fourth-degree felony, depending on the crime that the
tampered-with evidence relates to. Subsection (B) states:

       Whoever commits tampering with evidence shall be punished as follows:

               (1)   if the highest crime for which tampering with evidence is
       committed is a capital or first[-]degree felony or a second[-]degree felony,
       the person committing tampering with evidence is guilty of a third[-]degree
       felony;

              (2)     if the highest crime for which tampering with evidence is
       committed is a third[-]degree felony or a fourth[-]degree felony, the person
       committing tampering with evidence is guilty of a fourth[-]
       degree felony;

              (3)     if the highest crime for which tampering with evidence is
       committed is a misdemeanor or a petty misdemeanor, the person committing
       tampering with evidence is guilty of a petty misdemeanor; and

               (4)      if the highest crime for which tampering with evidence is
       committed is indeterminate, the person committing tampering with evidence
       is guilty of a fourth[-]degree felony.

                                             3
Section 30-22-5(B). The determination pursuant to Subsection (B) that the act of tampering
is a petty misdemeanor, a misdemeanor, or a third- or fourth-degree felony determines the
sentence that is authorized by law. See NMSA 1978, § 31-18-15 (2007) (establishing the
basic sentences and fines for felonies); NMSA 1978, § 31-19-1 (1984) (establishing the
sentences and fines for petty misdemeanors and misdemeanors).

{7}     Defendant was charged with tampering with evidence of a capital crime or first- or
second-degree felony as prohibited by Section 30-22-5(B)(1). At trial, the district court
instructed the jury that, in order to convict Defendant of tampering with evidence, it had to
find the basic facts that constitute tampering under Subsection (A). The instruction did not
require the jury to find that Defendant’s act of tampering with evidence related to a capital
crime or a first- or second-degree felony. The instruction, which tracked Uniform Jury
Instruction 14-2241 NMRA, simply stated:

              For you to find . . . [D]efendant guilty of tampering with evidence as
       charged . . . , the [S]tate must prove to your satisfaction beyond a reasonable
       doubt each of the following elements of the crime:

               1.      [D]efendant hid a firearm;

               2.      [D]efendant intended to prevent the               apprehension,
                       prosecution[,] or conviction of himself;

               3.      This happened in Chaves County, New Mexico, on or about
                       the 22nd day of November[] 2010.

The issue on appeal is whether the omission of the element that the gun was evidence of a
capital crime or a first- or second-degree felony violated Defendant’s right to have a jury
find all elements of the offense beyond a reasonable doubt where the conviction and
sentence entered by the district court was for the offense of third-degree tampering with
evidence.

{8}     The right to a trial by jury is guaranteed by the Sixth Amendment to the United States
Constitution, which applies to the states through the Fourteenth Amendment. State v. Grace,
1999-NMCA-148, ¶ 5, 128 N.M. 379, 993 P.2d 93. The Fourteenth Amendment’s Due
Process Clause prohibits a conviction, except upon a finding of every element of the offense
beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). “Taken together,
these rights indisputably entitle a criminal defendant to a jury determination that he is guilty
of every element of the crime with which he is charged, beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (alteration, internal quotation marks, and
citation omitted). A fact is an element of a crime when it increases the legally prescribed
punishment. Alleyne v. United States, ___ U.S. ___, ___, 133 S. Ct. 2151, 2155 (2013)
(“Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.”).

                                               4
{9}     The United States Supreme Court has held that, when a statute provides a general
definition of prohibited conduct and then lists a set of stepped sentences that increase based
on additional factors, any factor listed in the sentencing section of the statute that increases
the prescribed sentence is an element of the offense that must be found by a jury beyond a
reasonable doubt. In Jones v. United States, 526 U.S. 227 (1999), the Supreme Court
examined the federal carjacking statute to determine whether the portions of the statute
setting different punishments were elements that must be found beyond a reasonable doubt
by a jury, or mere sentencing factors that could be found by the district court. The
carjacking statute began with a general section that defined the basic conduct of taking a
motor vehicle by force that constitutes carjacking. Id. at 230. This definitional section was
followed by three subsections that described the maximum level of punishment to be applied
based on different factors. Id. The first of these, Subsection (1), stated that anyone who
committed the basic act of carjacking as described in the definitional section would be
imprisoned up to a maximum of fifteen years. Id. Subsection (1) thus set the basic sentence
for the offense. Subsections (2) and (3), however, provided for increased sentences based
on other factual scenarios. Subsection (2) stated that, if the carjacking resulted in serious
bodily injury, the perpetrator would be imprisoned up to a maximum of twenty-five years.
Id. Subsection (3) stated that, if the carjacking resulted in death, the perpetrator would be
imprisoned for “any number of years up to life[.]” Id.

{10} At the trial in Jones, the jury instruction tracked the definitional section of the statute.
Id. at 231. The jury found the defendant guilty of the the elements of the offense, which
would have supported a sentence of not more than fifteen years imprisonment, pursuant to
Subsection (1). However, at sentencing, the district court found that the evidence at trial
demonstrated that the defendant had caused the victim to bleed profusely and to suffer
numbness in his ear and permanent hearing loss, such that the defendant could be sentenced
under Subsection (2) for carjacking causing serious bodily injury. Id. The district court
believed that the bodily injury requirement of Subsection (2) merely involved a sentencing
factor and not an element of an offense, such that this finding need not have been made by
the jury. Id.

{11} The Supreme Court reversed. Id. at 232. Because the factual situations described
in Subsections (2) and (3) increased the possible penalty from the basic maximum of fifteen
years, the Supreme Court, as a matter of statutory construction, concluded that Congress
intended these factors to be elements of the offense and not mere sentencing factors. Id. at
232-39. Although the Court noted that a contrary interpretation would be reasonable if one
were to look solely at the language of the statute, it held that such an interpretation was
constitutionally prohibited because to read Subsection (2) and Subsection (3) as merely
containing sentencing factors would run afoul of the constitutional guarantees of due process
and trial by jury. Id. at 239-52. Jones stated that these constitutional guarantees require that
“any fact (other than [a] prior conviction) that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a jury, and proven beyond a reasonable
doubt.” Id. at 243 n.6. Therefore, the sentence imposed by the district court was invalid.


                                               5
{12} Following Jones, the Supreme Court, looking at a different criminal statute, again
identified any factor that increases the sentence for an offense as an element that must be
found by a jury beyond a reasonable doubt. In Alleyne, the statute at issue was the federal
law prohibiting a person from using or carrying a firearm in relation to a crime of violence.
___ U.S. at ___, ___, 133 S. Ct. at 2152, 2155. That statute provided that anyone who used
or carried a firearm in relation to a crime of violence would

       (i)     be sentenced to a term of imprisonment of not less than [five] years;

       (ii)    if the firearm is brandished, be sentenced to a term of imprisonment
               of not less than [seven] years; and

       (iii)   if the firearm is discharged, be sentenced to a term of imprisonment
               of not less than [ten] years.

Id. at ___, 133 S. Ct. at 2155-56 (internal quotation marks and citation omitted). Unlike the
statute at issue in Jones, this statute had no maximum penalty listed for any of the three
options, such that a person sentenced under Subsection (i) could be sentenced to a term of
imprisonment as high as someone sentenced under Subsections (ii) or (iii). Instead, each
subsection imposed a different statutory minimum. As in Jones, however, the Supreme
Court held that because the facts contained in Subsections (ii) and (iii) increased the
prescribed sentencing range from the basic sentence set in Subsection (i), these facts were
elements of the statute that must be submitted to the jury and found beyond a reasonable
doubt. Alleyne, ___ U.S. at ___, 133 S. Ct. at 2158. Unlike Jones, which relied both on a
legislative intent rationale and a constitutional one, Alleyne was purely based on
constitutional reasoning.

{13} Pursuant to Jones and Alleyne, it is clear that the factors listed in Subsection (B) of
New Mexico’s tampering with evidence statute are elements of the offense for purposes of
the Sixth and Fourteenth Amendments. These factors involve factual determinations about
what type of crime the tampering was intended to conceal and are linked to increasing levels
of punishment—from that imposed for a petty misdemeanor all the way up to that imposed
for a third-degree felony. Therefore, they must be interpreted as elements of the offense,
rather than mere sentencing factors, in order to avoid violations of the constitutional right
to due process and the right to a jury trial.

{14} Our conclusion that the type of crime that the tampering is intended to conceal under
Subsection (B) is an element that must be found beyond a reasonable doubt by the jury is
consistent with the conclusion we reached in a slightly different context in Alvarado. There,
the defendant was charged with first-degree murder and tampering with evidence. 2012-
NMCA-089, ¶ 1. He was acquitted of the murder, but found guilty of the tampering charge.
Id. ¶ 4. Because the district court believed that the defendant could not be found guilty of
tampering with evidence of a crime of which he had been acquitted, the district court refused
to sentence him for third-degree tampering with evidence of the murder and instead

                                             6
sentenced him for fourth-degree tampering with evidence of an indeterminate crime. Id.
The state appealed. Id. ¶ 5. On appeal, this Court agreed that the district court’s reasoning
was erroneous, but affirmed the fourth-degree tampering conviction under another rationale.
Id. ¶¶ 8, 16. We held that, when a defendant is charged with third-degree tampering with
evidence of a capital crime or a first- or second-degree felony, the constitutional rights to due
process and to a jury trial require the state to prove, beyond a reasonable doubt, that the
evidence with which the defendant tampered related to an offense of those types. Id. ¶ 16.
Because the jury had not been so instructed, we agreed with the defendant’s argument that
he could only be sentenced with fourth-degree tampering with respect to an indeterminate
crime.1 Id.

{15} The State argues that Alvarado is limited to circumstances in which a defendant has
been acquitted of the offense that the tampering was intended to conceal, but it provides no
persuasive rationale for this assertion. Alvarado was based on the same constitutional
principles at issue in this case, and its reasoning applies here. In Alvarado, we held that,
although the state presented evidence that would support a finding that the guns the
defendant tampered with were the guns used in the killing, the Court would not draw such
an inference from the jury’s verdict since the jury was not asked to determine whether the
guns were the same guns used in the killing and, theoretically, the jury could have believed
that the defendant tampered with evidence of a different specific crime or of an
indeterminate crime. Id. ¶ 15. The same rule applies in this case. Although Defendant was
found guilty of the second-degree murder, the district court could not simply assume that the
jury determined that the tampering related to that offense where the jury could have
theoretically found that he tampered with evidence of an indeterminate offense or of some
other specific offense. Defendant’s right to have the jury find, beyond a reasonable doubt,
all of the elements of the offense was violated by the entry of a conviction for which the jury
had not been instructed on all of the essential elements.

{16} We recognize that there is language in a number of New Mexico Supreme Court
cases that suggests that the factors in Subsection (B) of the tampering statute are not
essential elements of the offense, but those cases do not address the issue that we resolve
today and are, therefore, not controlling. See State v. Gamlen, 2009-NMCA-073, ¶ 15, 146
N.M. 668, 213 P.3d 818 (“It is well established that cases are not authority for propositions


        1
          We recognize the fact that the tampering relates to an indeterminate crime may itself
be an element of the offense that must be found by the jury beyond a reasonable doubt, since
this fact increases the punishment to that set for a fourth-degree felony, whereas, the crime
is only a petty misdemeanor if the tampering relates to a misdemeanor or petty misdemeanor.
See § 30-22-5(B)(3), (4). However, the defendant in Alvarado did not file a cross-appeal in
order to make that argument, and Defendant does not make it here. Accordingly, we need
not resolve this question. See In re Doe, 1982-NMSC-099, ¶¶ 2-3, 98 N.M. 540, 650 P.2d
824 (cautioning that an appellate court should not reach issues that the parties have failed
to raise in their briefs).

                                               7
not considered.” (internal quotation marks and citation omitted)). In State v. Jackson, our
Supreme Court examined the question of whether the tampering with evidence statute
requires that the defendant tamper with evidence of a legislatively defined crime.
2010-NMSC-032, 148 N.M. 452, 237 P.3d 754. Relying on principles of statutory
construction, Jackson held that it does not. Id. ¶ 9. In doing so, Jackson characterized
Subsection (A) of the tampering statute as setting forth the “elements of the offense” and
Subsection (B) as merely establishing “levels of punishment.” Id. ¶¶ 8, 20. Despite this
language, Jackson does not control our analysis in this case. Jackson came to the Court on
a pretrial Foulenfont motion, which permits a defendant to make a legal argument that the
facts alleged by the state, even if proven, would not constitute a crime under the applicable
law. Jackson, 2010-NMSC-032, ¶ 4 n.1. The question on appeal in Jackson was not which
elements of the offense had to be proven beyond a reasonable doubt, and nowhere did
Jackson discuss the constitutional implications of characterizing some portions of the statute
as elements and others as levels of punishment. Instead, Jackson looked narrowly at the
question of whether tampering requires an identifiable underlying crime and determined that
it does not because the plain language of Subsection (B) permits a conviction for tampering
with evidence of an “indeterminate” offense. Id. ¶ 21 (internal quotation marks and citation
omitted). Jackson’s conclusion is unaffected even if the factors in Subsection (B) are
characterized as “elements” rather than just levels of punishment. Accordingly, we conclude
that Jackson’s characterization does not determine the question at issue in this case. The
other cases that have discussed the elements of tampering with evidence with reference only
to Subsection (A) have also not addressed the question at issue here and are therefore not
binding for the same reason. See State v. Garcia, 2011-NMSC-003, ¶ 13, 149 N.M. 185, 246
P.3d 1057; State v. Rudolfo, 2008-NMSC-036, ¶ 31, 144 N.M. 305, 187 P.3d 170; State v.
Duran, 2006-NMSC-035, ¶ 14, 140 N.M. 94, 140 P.3d 515; State v. Johnson,
2004-NMSC-029, ¶ 52, 136 N.M. 348, 98 P.3d 998; State v. Rojo, 1999-NMSC-001, ¶ 25,
126 N.M. 438, 971 P.2d 829.

{17} Although we hold that the failure to instruct the jury on one of the elements of the
offense of third-degree tampering with evidence was error because it offended Defendant’s
rights under the Sixth and Fourteenth Amendments of the United States Constitution, we
cannot conclude that the unpreserved error was fundamental. “The rule of fundamental error
applies only if there has been a miscarriage of justice, if the question of guilt is so doubtful
that it would shock the conscience to permit the conviction to stand, or if substantial justice
has not been done.” State v. Orosco, 1992-NMSC-006, ¶ 12, 113 N.M. 780, 833 P.2d 1146.
Although the omission of an essential element of an offense will often be found to be
fundamental error, see State v. Barber, 2004-NMSC-019, ¶ 20, 135 N.M. 621, 92 P.3d 633,
this is not always so, see Orosco, 1992-NMSC-006, ¶ 12. If it is clear that the missing
element was established by the evidence at trial, the fact that the jury was not instructed on
the element is not considered fundamental error. Id. In evaluating this question, we examine
“the entire record, placing the jury instructions in the context of the individual facts and
circumstances of the case, to determine whether the [d]efendant’s conviction was the result
of a plain miscarriage of justice.” Barber, 2004-NMSC-019, ¶ 19 (internal quotation marks
and citation omitted).

                                               8
{18} Here, we conclude that it was not. At trial, Defendant testified that, on the evening
in question, he took his gun, shot once at the victim, and then took the same gun outside to
the backyard and placed it under the house. The jury found, beyond a reasonable doubt, in
doing so, Defendant hid the gun with the intent to prevent his apprehension, prosecution, or
conviction. Separately, it also found, beyond a reasonable doubt, the act of shooting and
killing the victim was second-degree murder, not manslaughter, and not justified by self-
defense. As the only evidence at trial was that Defendant’s act of hiding the gun was related
to his act of shooting the victim and, as the jury concluded beyond a reasonable doubt that
the shooting constituted a second-degree felony, the facts at trial established that the
tampering related to a second-degree felony. Accordingly, the omission of this element from
the jury instruction was not fundamental error. See United States v. Cotton, 535 U.S. 625,
632-33 (2002) (declining to reverse an unpreserved Apprendi error because the evidence of
the element that was omitted from the jury instruction “was overwhelming and essentially
uncontroverted” (internal quotation marks and citation omitted) and therefore its omission
“did not seriously affect the fairness, integrity, or public reputation of judicial proceedings”).

B.      A Witness’s Comment on Defendant’s Exercise of His Right to Remain Silent

{19} During cross-examination of the detective who was testifying for the State,
Defendant’s attorney asked the detective whether a knife had been found in the alley behind
Defendant’s house. The detective said that a knife may have been found and then stated:
“[T]he only reason I remember there might have been a knife is because . . . [Defendant] had
a cut [o]n his foot and he told me that he jumped over the fence and he told me he cut his
foot with that knife.” Defendant’s counsel asked: “[Defendant] told you that?” The
detective answered: “This is after he was read his rights.” At this point, Defendant’s
counsel objected and moved for a mistrial. Although it is not clear from the record that the
witness actually testified that Defendant invoked his right to remain silent, the parties and
the district court treated the testimony as if this was the case. The district court denied the
motion.

{20} Defendant argues that, pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127,
428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, the district
court erred in denying his motion for a mistrial. We review the denial of a mistrial for an
abuse of discretion. State v. O’Neal, 2008-NMCA-022, ¶ 28, 143 N.M. 437, 176 P.3d 1169.
The legal question of whether there has been an improper comment on a defendant’s silence
is reviewed de novo. State v. Pacheco, 2007-NMCA-140, ¶ 8, 142 N.M. 773, 170 P.3d
1011.

{21} The Fourteenth Amendment’s Due Process Clause protects against prosecutorial
comment on a defendant’s post-Miranda exercise of his Fifth Amendment right to remain
silent. See State v. DeGraff, 2006-NMSC-011, ¶ 12, 139 N.M. 211, 131 P.3d 61. Therefore,
a prosecutor is not permitted to elicit statements from a witness that the defendant invoked
his right to remain silent and is not permitted to use a defendant’s silence to impeach his
credibility or create an inference of guilt in the minds of the jury. State v. Foster, 1998-

                                                9
NMCA-163, ¶ 11, 126 N.M. 177, 967 P.2d 852.

{22} Here, however, the prosecutor did not elicit the comment. Defendant’s attorney did.
Recognizing this flaw in his argument, Defendant asserts that, under State v. Wisniewski, the
detective was part of the prosecution team and his comment can therefore be attributed to
the prosecutor. 1985-NMSC-079, ¶ 21, 103 N.M. 430, 708 P.2d 1031. Wisniewski holds
that law enforcement personnel are part of the prosecution team for purposes of the
Fourteenth Amendment’s due process requirement that the prosecution provide exculpatory
material to a defendant prior to trial. Id. Defendant provides no authority to support his
contention that the rule is the same for purposes of commenting upon a defendant’s exercise
of his Fifth Amendment right to remain silent. Absent such citation, we may assume no such
authority exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d
1329. In addition, in other circumstances where a witness for the state has made an isolated
and unsolicited comment related to a defendant’s exercise of his right to remain silent, such
a comment has not required reversal on appeal. See State v. Baca, 1976-NMSC-015, ¶ 5, 89
N.M. 204, 549 P.2d 282 (holding that reversal was not warranted when a detective made an
isolated, unsolicited comment referring to the defendant’s post-Miranda refusal to speak
with the police); State v. Wildgrube, 2003-NMCA-108, ¶¶ 23-24, 134 N.M. 262, 75 P.3d 862
(holding that when a police officer made an unsolicited comment regarding the defendant’s
post-Miranda silence and the prosecutor did not exploit the reference by a
sking related questions or referring to it in closing argument, there was no prosecutorial
misconduct requiring reversal). Accordingly, Defendant has failed to demonstrate error on
this basis.

C.     Admission of Evidence That Defendant Had Ammunition for Multiple Weapons

{23} At trial, a crime scene technician testified that she observed a variety of different
types of ammunition at Defendant’s home. Some of this ammunition fit the kind of gun that
was used in this case. Defendant did not object to this testimony at the time it was offered.
Later, outside of the presence of the jury, the parties made arguments about the admissibility
of certain exhibits, including a photograph of some of the ammunition, as well as the
ammunition itself. At that point, Defendant belatedly moved to strike the technician’s
testimony on grounds of relevance. He also argued that the photograph and the ammunition
should not be admitted. The district court admitted the ammunition itself and stated that the
photograph of the ammunition could be used at trial, but not admitted as an exhibit. The
technician then testified again about the three different kinds of ammunition, stating that
only one of them could be fired from the gun used in this case.

{24} Defendant asserts that, pursuant to Franklin and Boyer, the district court abused its
discretion in admitting the evidence relating to the bullets that could not be fired from the
gun that was used in this case. However, Defendant provides no rationale in support of this
assertion and provides no authority that would demonstrate that the district court’s admission
of this evidence constituted reversible error. Accordingly, we decline to address this
argument. See State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181

                                             10
(explaining that this Court does not review unclear or undeveloped arguments).

D.     Claims of Error in the Jury Instructions

1.     Imperfect Self-Defense

{25} Before the case was submitted to the jury, Defendant asked the district court to
instruct the jurors on his claim of imperfect self-defense. The district court refused because,
under New Mexico case law, no such instruction is warranted. Defendant asserts that the
district court erred in refusing to provide the requested instruction. “The propriety of jury
instructions given or denied is a mixed question of law and fact.” State v. Lucero, 2010-
NMSC-011, ¶ 11, 147 N.M. 747, 228 P.3d 1167 (internal quotation marks and citation
omitted). We review such questions de novo. Id.

{26} “Imperfect self-defense occurs when [a person] uses excessive force while otherwise
lawfully engaging in self-defense.” State v. Henley, 2010-NMSC-039, ¶ 20, 148 N.M. 359,
237 P.3d 103. However, in New Mexico, imperfect self-defense is not considered to be a
true affirmative defense for which a defendant is entitled to an instruction. As our Supreme
Court has explained, the term “imperfect self-defense” is misleading because, when a person
kills another while engaging in imperfect self-defense, the killing is not legally justified.
State v. Abeyta, 1995-NMSC-051, ¶ 17, 120 N.M. 233, 901 P.2d 164, abrogated on other
grounds by State v. Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266. Instead, a
claim of imperfect self-defense “simply presents an issue of mitigating circumstances that
may reduce murder to manslaughter.” Id. Because it is not a true affirmative defense, our
Supreme Court has held that no imperfect self-defense instruction is warranted. Id. ¶ 17 n.4
(“Since 1917 this ‘imperfect’ self-defense has been adequately covered under our jury
instructions on manslaughter. We see no reason to change our jury instructions to
accommodate a new phrase covering a legal concept that has long been a part of New
Mexico law.”). Instead, any issues raised by a defendant’s claim of imperfect self-defense
are properly addressed if the jury is instructed on voluntary manslaughter. Id. The jury in
this case was so instructed, and Defendant was permitted to argue that, if he used excessive
force in response to any threat posed by the victim, the jury should find him guilty of
voluntary manslaughter, rather than murder. The district court did not err in denying
Defendant’s proposed instruction on imperfect self-defense.

2.     Voluntary Manslaughter

{27} Defendant also asserts that the district court created a fundamental error at trial when
it failed to instruct the jury that the State was required to disprove that he acted in self-
defense as one of the elements of voluntary manslaughter. However, Defendant was not
convicted of voluntary manslaughter, and this Court will not review an error in an instruction
on a crime of which he was not convicted. See State v. Benally, 2001-NMSC-033, ¶ 10 n.1,
131 N.M. 258, 34 P.3d 1134 (declining to address a claim of error in a voluntary
manslaughter instruction when the defendant was not found guilty of voluntary manslaughter

                                              11
and was instead found guilty of second-degree murder); State v. Cunningham,
2000-NMSC-009, ¶¶ 7, 8 n.3, 128 N.M. 711, 998 P.2d 176 (refusing to review a claim of
fundamental error in the omission of the element negating self-defense in a voluntary
manslaughter instruction when the defendant was not found guilty of voluntary manslaughter
and was instead convicted of first-degree murder). This is not a circumstance where the
instruction was so defective that it amounted to no instruction on voluntary manslaughter.
Cf. State v. Benavidez, 1980-NMSC-097, ¶ 5, 94 N.M. 706, 616 P.2d 419 (holding that the
defendant’s first-degree murder conviction must be reversed based on the district court’s
error in refusing to give an instruction on voluntary manslaughter).

3.     Sufficiency of the Evidence

{28} Defendant contends that there was insufficient evidence to support his convictions
for second-degree murder and for third-degree tampering with evidence. “In reviewing the
sufficiency of evidence used to support a conviction, we resolve all disputed facts in favor
of the [s]tate, indulge all reasonable inferences in support of the verdict, and disregard all
evidence and inferences to the contrary.” Rojo, 1999-NMSC-001, ¶ 19. “It is [the appellate
courts’] duty to determine whether any rational jury could have found the essential facts to
establish each element of the crime beyond a reasonable doubt.” State v. Dowling, 2011-
NMSC-016, ¶ 20, 150 N.M. 110, 257 P.3d 930.

{29} With respect to Defendant’s conviction for second-degree murder, the State was
required to prove, beyond a reasonable doubt, Defendant killed the victim by acts that (1)
he knew created a strong probability of death or great bodily harm, (2) he did so without
sufficient provocation, and (3) he did not act in self-defense. The jury was instructed that
the killing in this case was in self-defense if (1) there was an appearance of immediate
danger of death or great bodily harm to Defendant or his family as a result of the victim’s
actions, (2) Defendant was in fact put in fear and killed the victim because of this fear, and
(3) a reasonable person in the same circumstances would have acted as Defendant did. It
was instructed that sufficient provocation “can be any action, conduct[,] or circumstances
which arouse anger, rage, fear, sudden resentment, terror[,] or other extreme emotions” so
long as the provocation was such that it would cause an ordinary person of average
disposition to temporarily lose self-control and would affect that person’s ability to reason.
It was also instructed that provocation is not legally sufficient if an ordinary person would
have “cooled off” before acting.

{30} Defendant contends that the evidence was insufficient to support his convictions
because there was testimony that the victim came to Defendant’s house and threatened to
shoot at the house, then went back to his car and, as he was driving away, leaned down in
such a manner that Defendant believed the victim was reaching for a gun. As a consequence,
Defendant suggests that either self-defense or sufficient provocation was established as a
matter of law. However, Defendant’s view of the evidence is in the light most favorable to
himself, rather than the light most favorable to the verdict, which is contrary to the manner
in which it must be viewed on appeal. At trial, Defendant testified that he did not actually

                                             12
see the victim with a gun, and evidence was presented from which the jury could reasonably
conclude that the victim was shot in the back as he was driving away from Defendant’s
house. Furthermore, the only evidence that the victim threatened to shoot at the house came
from the testimony of Defendant and his girlfriend, and the jury was not required to credit
this evidence. See Rojo, 1999-NMSC-001, ¶ 19 (stating that “[c]ontrary evidence supporting
acquittal does not provide a basis for reversal because the jury is free to reject [the
d]efendant’s version of the facts”). Accordingly, there was sufficient evidence to permit a
reasonable jury to determine that Defendant was not acting in self-defense or as a result of
legally sufficient provocation.

{31} With respect to his conviction for third-degree tampering with evidence, although we
have concluded that the instruction on this charge was improper because it did not instruct
the jury that it must find that Defendant’s tampering related to evidence of one of the types
of offenses listed in Section 30-22-5(B), we nevertheless assess the sufficiency of the
evidence with reference to the jury instructions that were provided at trial. See Dowling,
2011-NMSC-016, ¶ 18 (“[The appellate courts] review [the d]efendant’s [sufficiency] claim
under the erroneous instruction provided to the jury at trial.”). The jury instruction provided
that the State was required to prove, beyond a reasonable doubt, Defendant hid the gun with
the intent to prevent his apprehension, prosecution, or conviction. Defendant contends that
his testimony that he hid the gun “under the house because he was nervous and really did not
know what was going on” established that he did not act with the necessary intent. Again,
Defendant’s argument fails to account for the proper standard of review on appeal, as he asks
this Court to view the evidence in the light most favorable to himself. A person’s intent may
be established based upon circumstantial evidence. State v. Guerra, 2012-NMSC-027, ¶ 13,
284 P.3d 1076 (stating that “intent is subjective and is almost always inferred from other
facts in the case, as it is rarely established by direct evidence” (alteration, internal quotation
marks, and citation omitted)). Defendant testified that he shot at the victim and then went
and placed the gun under the house. An officer testified that the gun was found in a
crawlspace under the house that was concealed behind a dog house and near a gate where
a dog had been chained. Another officer testified that, after Defendant was arrested, he
made a phone call from the detention center in which he told a person to have someone “go
underneath the house . . . where the black dog was . . . because he had a water leak.” Taken
together, this evidence supports an inference that Defendant hid the gun with the intent to
prevent his apprehension, prosecution, or conviction.

III.    CONCLUSION

{32} Because the only error that Defendant has established on appeal was not preserved
at trial and it did not constitute fundamental error, we affirm Defendant’s convictions.

{33}    IT IS SO ORDERED.

                                                ____________________________________
                                                RODERICK T. KENNEDY, Chief Judge

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WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
JONATHAN B. SUTIN, Judge

Topic Index for State v. Herrera, No. 31,874

APPEAL AND ERROR
Fundamental Error
Preservation of Issues for Appeal
Standard of Review
Substantial or Sufficient Evidence

CONSTITUTIONAL LAW
Due Process
Self-Incrimination

CRIMINAL LAW
Elements of Offense
Murder
Tampering with Evidence
Voluntary Manslaughter

CRIMINAL PROCEDURE
Jury Instructions
Misconduct by Prosecutor
Mistrial
Right Against Self-Incrimination
Right to Trial by Jury
Search and Seizure
Self Defense
Witnesses




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