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 1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                     NO. 33,193

 5 IRVIN RAMIREZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
 8 Jerald Alan Valentine, District Judge


 9 Bennett J. Baur, Acting Chief Public Defender
10 Allison H. Jaramillo, Assistant Appellate Defender
11 Santa Fe, NM

12 for Appellant

13 Gary K. King, Attorney General
14 Olga Serafimova, Assistant Attorney General
15 Santa Fe, NM

16 for Appellee

17                                             DECISION

18 CHÁVEZ, Justice.
 1   {1}   Irvin Ramirez was convicted of several charges stemming from an armed

 2 robbery and murder. On direct appeal, Ramirez argues that (1) errors in the jury

 3 instructions for his felony murder charge constituted fundamental error, (2) errors in

 4 the jury instructions for receipt of stolen property constituted fundamental error, (3)

 5 he received ineffective assistance of counsel, (4) his double jeopardy rights were

 6 violated by his convictions for both felony murder and armed robbery, (5) the trial

 7 court erred in admitting a lab report and in allowing testimony from a private

 8 investigator who had been employed by Ramirez’s family, and (6) the evidence was

 9 insufficient to support his convictions. We agree that Ramirez’s convictions for

10 felony murder and armed robbery constitute double jeopardy, and we vacate his

11 conviction for armed robbery. We reject his other arguments, and therefore affirm his

12 remaining convictions.

13 BACKGROUND

14   {2}   On January 4, 2010, Adam Espinoza began driving from Texas to California,

15 where he planned to move. That night, Espinoza stopped to sleep in his car at a

16 highway rest stop in Anthony, New Mexico. Ramirez and two associates, Javier

17 Orozco and Jorge Murillo, attempted to rob Espinoza. According to Orozco’s

18 testimony, he and Ramirez approached Espinoza’s car with a rifle and demanded


                                              2
 1 Espinoza’s money. Espinoza refused, and Ramirez fatally shot him in the head, arm,

 2 and abdomen.

 3   {3}   Ramirez and his associates then stole items from the car, including Espinoza’s

 4 cell phone, iPod, speakers, laptop, Playstation and games, television, DVDs, and

 5 musical instruments, and sold them for cash. They hid Espinoza’s body in the trunk

 6 of his car, which they burned and abandoned.

 7   {4}   Ramirez was convicted of felony murder, armed robbery, conspiracy to commit

 8 armed robbery, tampering with evidence, arson causing damage of more than $500,

 9 and receiving stolen property worth more than $2,500. He appealed directly to this

10 Court pursuant to Rule 12-102(A)(1) NMRA.

11 DISCUSSION

12 A.      THE FELONY MURDER INSTRUCTION DID NOT CREATE
13         FUNDAMENTAL ERROR

14   {5}   Ramirez alleges, and the State agrees, that the jury was given an improper

15 instruction for the felony murder charge. Ramirez did not object to the jury

16 instructions during trial, so this Court reviews for fundamental error pursuant to Rule

17 12-216(B)(2) NMRA. “Fundamental error may be resorted to if the question of guilt

18 is so doubtful that it would shock the conscience to permit the conviction to stand, or

19 if substantial justice has not been done.” State v. Osborne, 1991-NMSC-032, ¶ 41,

                                              3
 1 111 N.M. 654, 808 P.2d 624 (internal quotation marks and citations omitted). “With

 2 regard to jury instructions, fundamental error occurs when, because an erroneous

 3 instruction was given, a court has no way of knowing whether the conviction was or

 4 was not based on the lack of the essential element.” State v. Swick, 2012-NMSC-018,

 5 ¶ 46, 279 P.3d 747.

 6   {6}   The jury was given UJI 14-202 NMRA, the felony murder uniform jury

 7 instruction, which was appropriate. However, the first element of the instruction was

 8 stated incorrectly. Ramirez argues that the trial court should have told the jury that

 9 in order for it to convict, the State must have proved that “[t]he defendant Irvin

10 Ramirez committed the crime of armed robbery under circumstances or in a manner

11 dangerous to human life” as required by UJI 14-202. Instead, the trial court instructed

12 the jury that the State needed to prove that “[t]he defendant Irvin Ramirez committed

13 the crime of murder.” The remainder of the instruction was given properly; the trial

14 court instructed the jury that it would also have to find that Ramirez “caused the death

15 of Adam Espinoza during the commission of armed robbery” and “intended to kill or

16 knew that his acts created a strong probability of death or great bodily harm.”

17   {7}   There are two differences between the instruction that was given and the

18 instruction that Ramirez advocates. The first error was the substitution of the word


                                              4
 1 “murder” for “armed robbery.” The second error was the omission of the phrase

 2 “under circumstances or in a manner dangerous to human life.” Neither mistake

 3 constitutes fundamental error under New Mexico law. In addition, we note that the

 4 jury received the correct felony murder instruction when it was instructed that it could

 5 find Ramirez guilty as an accomplice. We are satisfied that the jury could not have

 6 been confused by the instructions and, as we explain below, we conclude that the jury

 7 found all essential elements of the crime beyond a reasonable doubt.

 8 1.      The jury found beyond a reasonable doubt that Ramirez committed armed
 9         robbery

10   {8}   Ramirez argues that the first error, the substitution of the word “murder” for

11 “armed robbery,” meant that the jury was not required to find that Ramirez committed

12 armed robbery, which was an essential element of the felony murder charge.

13 However, the jury convicted Ramirez of a separate armed robbery charge, so there is

14 no question that the jury found beyond a reasonable doubt that Ramirez committed the

15 predicate felony. In addition, the subsequent elements of the felony murder charge

16 required the jury to find that Ramirez “caused the death of Adam Espinoza during the

17 commission of armed robbery.” By convicting Ramirez of both felony murder and

18 armed robbery, the jury clearly found that Ramirez committed the predicate armed

19 robbery. There is no reason to believe that the instruction confused the jury; the

                                              5
 1 instruction as given made sense, and there would have been no reason for the jury to

 2 believe that the instruction was incorrect or incomplete.

 3 2.       The jury necessarily found that the armed robbery was committed under
 4          circumstances or in a manner dangerous to human life

 5   {9}    The second error alleged by Ramirez is the omission of the phrase “under

 6 circumstances or in a manner dangerous to human life.” UJI 14-202. This Court has

 7 previously held that in order to support a felony murder conviction, the predicate

 8 felony either must have been a first-degree felony or it “must be inherently dangerous

 9 or committed under circumstances that are inherently dangerous.” State v. Harrison,

10 1977-NMSC-038, ¶ 14, 90 N.M. 439, 564 P.2d 1321, superseded on other grounds

11 by Rule 11-707 NMRA. Our jury instructions now require the phrase “under

12 circumstances or in a manner dangerous to human life” in felony murder cases where

13 the predicate felony is a second-degree felony or lower. UJI 14-202 n.4.

14   {10}   The predicate felony in this case was armed robbery, which is a second-degree

15 felony on the first offense; it becomes a first-degree felony only on subsequent

16 offenses. NMSA 1978, § 30-16-2 (1973). This was Ramirez’s first armed robbery

17 conviction. Therefore, he argues that by omitting the phrase “under circumstances or

18 in a manner dangerous to human life” from the jury instructions, the trial court omitted

19 an essential element of the felony murder charge.

                                              6
 1   {11}   Omission of an essential element from the jury instructions typically constitutes

 2 fundamental error. Osborne, 1991-NMSC-032, ¶ 10. However, if the jury’s

 3 conviction “necessarily includes or amounts to a finding on an element omitted from

 4 the jury’s instructions . . . the error cannot be said to be fundamental.” State v.

 5 Orosco, 1992-NMSC-006, ¶ 12, 113 N.M. 780, 833 P.2d 1146.

 6   {12}   Orosco was a consolidated appeal by two defendants who had been convicted

 7 of criminal sexual contact of a minor (CSCM). Id. ¶ 1. This Court had previously

 8 held that the unlawfulness of the contact is an essential element in CSCM cases and

 9 that the omission of the element is fundamental error. Osborne, 1991-NMSC-032, ¶¶

10 33, 44. However, the Orosco Court distinguished Osborne and affirmed both

11 defendants’ convictions, even though neither jury had been instructed on

12 unlawfulness. Orosco, 1992-NMSC-006, ¶¶ 3, 9, 18. In Osborne, there was a

13 genuine question of whether, if the touching had occurred, it had been inappropriate

14 or unlawful. 1991-NMSC-032, ¶ 7 (“Defendant . . . said that while it was possible he

15 might have touched [the victim’s] bottom at some point, it would not have been in an

16 inappropriate manner or with an inappropriate intent.”). By contrast, the defendants

17 in Orosco were accused respectively of fondling a child in the restroom of a bar and

18 touching a victim’s genitals over a three-hour period in the defendant’s truck. 1992-


                                                7
 1 NMSC-006, ¶ 11. The allegations left no room for the possibility that the touching

 2 had been lawful; by convicting, the jury necessarily concluded that the defendants had

 3 touched their victims unlawfully. Id. ¶¶ 11-12. “In each case, either an unlawful

 4 touching occurred or it did not; in each case, the jury determined that it did.” Id. ¶ 11.

 5 Therefore, because there was “no dispute that the [missing] element was established,”

 6 there was no doubt about guilt and no fundamental error. Id. ¶ 12.

 7   {13}   In this case, the jury’s convictions of Ramirez for felony murder and armed

 8 robbery necessarily included a conclusion that the robbery was committed “under

 9 circumstances or in a manner dangerous to human life,” as required by UJI 14-202.

10 In order to convict a defendant of armed robbery, a jury must find that the defendant

11 stole property “by use or threatened use of force or violence . . . while armed with a

12 deadly weapon.” Section 30-16-2. The jury also specifically found that Ramirez used

13 a firearm during the armed robbery and murder. The flawed instruction still required

14 the jury to find that Ramirez caused Espinoza’s death during the commission of the

15 armed robbery. The uncontroverted evidence at trial was that the murder occurred

16 during a robbery at gunpoint at a highway rest stop in the middle of the night. It is

17 hard to imagine how the jury might have concluded that such a crime was not

18 dangerous to human life. The jury’s determination of Ramirez’s guilt “necessarily


                                               8
 1 includes or amounts to a finding on [the] element omitted from the jury’s

 2 instructions.” Orosco, 1992-NMSC-006, ¶ 12. Therefore, we conclude that there was

 3 no fundamental error in the felony murder instruction.

 4 B.       THE INSTRUCTION ON RECEIPT OF STOLEN PROPERTY DID NOT
 5          CREATE FUNDAMENTAL ERROR

 6   {14}   Ramirez also challenges his conviction for receiving stolen property worth more

 7 than $2,500, contrary to NMSA 1978, § 30-16-11(G) (2006). Ramirez was also

 8 charged with the lesser included offense of receiving stolen property worth more than

 9 $500, contrary to Section 30-16-11(F). The jury was correctly given UJI 14-1650

10 NMRA for both counts. However, there was an error in the “step-down instruction,”

11 UJI 14-6002 NMRA.

12   {15}   The step-down instruction “should be given immediately preceding the

13 instruction containing the elements of a lesser included offense.” UJI 14-6002 n.1.

14 In this case, the instruction should have read, “If you should have a reasonable doubt

15 as to whether the defendant committed the crime of receiving stolen property over

16 $2,500.00, you must proceed to determine whether the defendant committed the

17 included offense of receiving stolen property over $500.00.” Instead, the trial court

18 substituted the word “arson” for each appearance of the phrase “receiving stolen

19 property.” Apparently neither the trial court nor trial counsel noticed the error. The

                                               9
 1 jury convicted Ramirez of the greater charge.

 2   {16}   Because Ramirez did not object to the instruction as it was given, this Court

 3 reviews for fundamental error under Rule 12-216(B)(2) and examines whether the jury

 4 would have been confused or misdirected to the point where reversal would be

 5 necessary to prevent a miscarriage of justice. State v. Sandoval, 2011-NMSC-022, ¶

 6 13, 150 N.M. 224, 258 P.3d 1016.

 7   {17}   In this case, the jury does not appear to have been confused at all. The jury

 8 asked several questions during its deliberations, but it never asked for clarification of

 9 the step-down instruction. The erroneous step-down instruction that refers to “arson”

10 is sandwiched between two correct instructions about receiving stolen property, so the

11 error would have been obvious to the jury as it read the instructions. The fact that the

12 jury did not ask about the instruction suggests that it was not confused. The jury may

13 have noticed the error and realized that the instruction meant “receiving stolen

14 property” rather than “arson.” Alternatively, the jury may have been convinced from

15 the outset of deliberations that the stolen property was worth more than $2,500, and

16 it might therefore have convicted on the greater charge without considering the lesser.

17 The jury was separately instructed on the nature of the receiving stolen property

18 charge and the three possible verdicts it could return (guilty of the greater charge,


                                              10
 1 guilty of the lesser charge, or not guilty), so there is no doubt that the jury knew it

 2 could consider the lesser offense. In either scenario, there was no serious confusion

 3 or misdirection.

 4   {18}   This Court is concerned that this type of sloppy error in the jury instructions

 5 could get past the State, defense counsel, and the trial court. Nevertheless, the

 6 erroneous step-down instruction in this case does not appear to have confused or

 7 misdirected the jury, and reversal is not required to prevent a miscarriage of justice.

 8 C.       DEFENSE COUNSEL                   WAS       NOT CONSTITUTIONALLY
 9          INEFFECTIVE

10   {19}   In the alternative, Ramirez argues that his attorney at trial was constitutionally

11 ineffective for failing to notice and correct the errors in the jury instructions. “For a

12 successful ineffective assistance of counsel claim, a defendant must first demonstrate

13 error on the part of counsel, and then show that the error resulted in prejudice.” State

14 v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (citing Strickland v.

15 Washington, 466 U.S. 668, 690, 692 (1984), superseded on other grounds by

16 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

17 1214). “We refer to the two prongs of this test as the reasonableness prong and the

18 prejudice prong.” Patterson v. LeMaster, 2001-NMSC-013, ¶ 17, 130 N.M. 179, 21

19 P.3d 1032. The defendant must affirmatively prove both prongs. State v. Tran, 2009-

                                                11
 1 NMCA-010, ¶ 20, 145 N.M. 487, 200 P.3d 537 (citing Strickland, 466 U.S. at 687).

 2   {20}   In this case, there is no dispute that Ramirez’s trial counsel was ineffective in

 3 failing to object to the errors in the jury instructions. However, Ramirez still must

 4 demonstrate that his attorney’s errors prejudiced him. In order to make a showing of

 5 prejudice, “[a] defendant must show ‘a reasonable probability that, but for counsel’s

 6 unprofessional errors, the result of the proceeding would have been different.’”

 7 Bernal, 2006-NMSC-050, ¶ 32 (quoting Strickland, 466 U.S. at 694). “A reasonable

 8 probability is a probability sufficient to undermine confidence in the outcome.”

 9 Strickland, 466 U.S. at 694. A reasonable probability is more than a mere possibility.

10                 It is not enough for the defendant to show that the errors had some
11          conceivable effect on the outcome of the proceeding. Virtually every act
12          or omission of counsel would meet that test, and not every error that
13          conceivably could have influenced the outcome undermines the
14          reliability of the result of the proceeding.

15 Id. at 693 (internal citation omitted).

16   {21}   Ramirez’s sole statement of the prejudice he suffered is that his attorney’s

17 mistakes “resulted in fewer elements needed for conviction and misdirected the jury.”

18 A defendant must show a “reasonable probability” that but for the mistake, the

19 outcome would have been different, and Ramirez has not made this showing. In fact,

20 it is hard to imagine how the attorney’s errors might have prejudiced Ramirez. As we


                                               12
 1 explained above, the jury found every element required to convict Ramirez, and there

 2 is no reason to believe that the jury was confused or misdirected by the jury

 3 instructions.

 4   {22}   This Court has observed that in rare circumstances, an appellate court may be

 5 able to rule on a claim of ineffective assistance of counsel based on the record before

 6 it, without further factual development by the trial court. Garcia v. State, 2010-

 7 NMSC-023, ¶ 29, 148 N.M. 414, 237 P.3d 716. This is one of those rare cases. The

 8 errors by Ramirez’s counsel simply do not undermine confidence in the outcome of

 9 his case. We hold that Ramirez’s claim of ineffective assistance of counsel fails on

10 its merits.

11 D.       CONVICTIONS FOR BOTH FELONY MURDER AND THE
12          PREDICATE FELONY OF ARMED ROBBERY CONSTITUTE
13          DOUBLE JEOPARDY

14   {23}   Ramirez was convicted of both armed robbery and felony murder with armed

15 robbery as the predicate felony. This Court has held that a defendant may not be

16 convicted of both felony murder and the predicate felony; if the defendant is convicted

17 of both offenses, it is a violation of his or her right to be free from double jeopardy.

18 State v. Frazier, 2007-NMSC-032, ¶¶ 1, 40, 142 N.M. 120, 164 P.3d 1. The trial court

19 must explicitly vacate the lesser conviction. State v. Garcia, 2011-NMSC-003, ¶ 39,


                                              13
 1 149 N.M. 185, 246 P.3d 1057.

 2   {24}   In this case, the trial court did not impose a sentence for the armed robbery

 3 conviction, citing Frazier, but it failed to vacate the conviction. Both Ramirez and the

 4 State agree that the failure to vacate the armed robbery conviction was error. Under

 5 Garcia, this constitutes a violation of Ramirez’s double jeopardy rights. 2011-

 6 NMSC-003, ¶¶ 40-41. We therefore remand to the trial court to vacate Ramirez’s

 7 conviction for armed robbery.

 8 E.       THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
 9          ADMITTING EVIDENCE AGAINST RAMIREZ

10   {25}   Ramirez argues that his convictions should be reversed because of two

11 evidentiary rulings by the trial court. First, Ramirez argues that the trial court erred

12 in admitting into evidence a report by the State’s fingerprint expert. Second, Ramirez

13 argues that the trial court should not have allowed the jury to hear testimony by an

14 investigator who worked for Ramirez’s previous attorney. Ramirez objected to both

15 rulings at trial, and the issues are preserved for purposes of Rule 12-216.

16   {26}   We review a trial court’s decision to admit or exclude evidence for abuse of

17 discretion. State v. Downey, 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244.

18 At trial, Ramirez’s attorney objected to the admission of a report by the State’s

19 fingerprint expert on the grounds that it was never disclosed to the defense. The trial

                                              14
 1 court held an evidentiary hearing and determined that the State had not failed to

 2 disclose the document. At the evidentiary hearing, the State presented testimony from

 3 a paralegal in the District Attorney’s office that she had disclosed the report to defense

 4 counsel and private investigators by email and electronic disclosure. The State also

 5 introduced copies of the emails with the report attached. Another witness testified that

 6 he had told defense counsel about the conclusions of the fingerprint expert in a pretrial

 7 conference. Ramirez called one witness, an investigator for the Public Defender

 8 Department, who testified that he did not recall receiving the emails from the District

 9 Attorney’s office. However, he also admitted that it was possible that he had in fact

10 received the report. Based on the evidence presented in the hearing, the trial court did

11 not abuse its discretion in admitting the report into evidence.

12   {27}   Ramirez also challenged the trial court’s decision to allow the testimony of

13 Chris Stewart, who worked as a private investigator for Ramirez’s previous attorney.

14 At trial, Ramirez argued that Stewart’s testimony violated attorney-client

15 confidentiality. Ramirez apparently objected (and continues to object) to both

16 Stewart’s testimony and Stewart’s act of turning over shoes and clothes belonging to

17 Ramirez to the police. However, Stewart testified at the evidentiary hearing not only

18 that the Ramirez family believed that the shoes and clothes would be exculpatory, but


                                               15
 1 also that they, including Ramirez himself, agreed to turn the items over to the police.

 2 There was no evidence presented at the hearing on this issue other than Stewart’s

 3 testimony. The trial court found that the items that Stewart gave to the State were not

 4 intended to be confidential, and therefore Stewart was allowed to testify about them.

 5 Given the lack of contrary evidence, this did not constitute an abuse of the trial court’s

 6 discretion.

 7 F.       THE EVIDENCE WAS SUFFICIENT TO SUPPORT RAMIREZ’S
 8          CONVICTIONS

 9   {28}   Ramirez next asserts that the evidence presented at trial was insufficient to

10 support each of his six convictions. We conclude that Ramirez’s arguments are

11 unpersuasive and hold that each conviction was sufficiently supported by the evidence

12 presented at trial.

13          The test for sufficiency of the evidence is whether substantial evidence
14          of either a direct or circumstantial nature exists to support a verdict of
15          guilty beyond a reasonable doubt with respect to every element essential
16          to a conviction. The reviewing court views the evidence in the light
17          most favorable to the guilty verdict, indulging all reasonable inferences
18          and resolving all conflicts in the evidence in favor of the verdict. The
19          question before us as a reviewing court is not whether we would have
20          had a reasonable doubt about guilt but whether it would have been
21          impermissibly unreasonable for a jury to have concluded otherwise.

22 State v. Guerra, 2012-NMSC-027, ¶ 10, 284 P.3d 1076 (alterations omitted) (internal

23 quotation marks and citations omitted). “[W]e evaluate the sufficiency of the

                                               16
 1 evidence under the instructions given,” even if they are erroneous. State v. Ramos,

 2 2013-NMSC-031, ¶ 30, ___ P.3d ___; State v. Dowling, 2011-NMSC-016, ¶ 18, 150

 3 N.M. 110, 257 P.3d 930 (“We review Defendant’s claim under the erroneous

 4 instruction provided to the jury at trial.”). “We do not evaluate the sufficiency of the

 5 evidence for instructions that were not given to the jury.” Ramos, 2013-NMSC-031,

 6 ¶ 30.

 7 1.       First-degree murder

 8   {29}   The jury was presented with alternative jury instructions on the first-degree

 9 murder charge—first-degree murder as the principal and as an accessory. We need

10 only determine that one of the two theories is sufficient.           State v. Bahney,

11 2012-NMCA-039, ¶ 26, 274 P.3d 134 (holding that where it was not clear whether

12 defendant had been convicted as a principal or as an accessory, it was only necessary

13 to “find sufficient evidence under one of the theories presented to uphold Defendant’s

14 convictions,” and addressing “each . . . crime[] under the State’s theory of accessory

15 liability”). We review Ramirez’s conviction for first-degree murder under a theory

16 of accessory liability and conclude that the evidence is sufficient to support Ramirez’s

17 conviction.

18   {30}   The elements of first-degree murder as an accessory, as presented to the jury,


                                              17
 1 are:

 2                1. The felony of armed robbery was committed under
 3          circumstances or in a manner dangerous to human life;

 4                2. The defendant Irvin Ramirez helped, encouraged or caused the
 5          felony of armed robbery to be committed;

 6                3. The defendant Irvin Ramirez intended that the armed robbery
 7          be committed;

 8                    4. During the commission of the felony Adam Espinoza was
 9          killed;

10                 5. The defendant Irvin Ramirez helped, encouraged or caused the
11          killing to be committed;

12                6. The defendant Irvin Ramirez intended the killing to occur or
13          knew that he was helping to create a strong probability of death or great
14          bodily harm;

15                7. This happened in New Mexico on or between January 4, 2010
16          and January 6, 2010.

17 See UJI 14-2821 NMRA.

18   {31}   We begin with the armed robbery component of the first element of first-degree

19 murder. The elements of armed robbery, as presented to the jury, are:

20                 1. The defendant took and carried away a computer, a cellular
21          phone, U.S. Currency, a video game system, clothing, musical
22          instruments and an I-Pod [sic], from Adam Espinoza or from his
23          immediate control intending to permanently deprive Adam Espinoza of
24          the property;


                                               18
 1                2. The defendant was armed with a rifle;

 2                 3. The defendant took the property by force or violence and/or
 3          threatened force or violence;

 4                4. This happened in New Mexico on or between January 4, 2010
 5          and January 6, 2010.

 6 See UJI 14-1621 NMRA. There is sufficient evidence to support each element.

 7   {32}   Regarding the first element of armed robbery, there is sufficient evidence

 8 showing that Espinoza’s property was permanently taken from him or his immediate

 9 control. Orozco testified that Ramirez had the cell phone and iPod in his possession

10 after the robbery. The three men later unloaded the remaining property from

11 Espinoza’s car. The jury could reasonably infer that this property included a flat

12 screen TV, a PlayStation 3, games, and DVDs, since these items were later sold, and

13 a clock and clothes, since Orozco kept those in his possession after the robbery. The

14 jury could also conclude that Espinoza’s computer was taken because Espinoza’s

15 mother testified that he had his computer with him in his vehicle. The same is true for

16 the U.S. currency that Espinoza had in his possession. Based on this evience, it can

17 be inferred that the computer and cash were taken from either the car or Espinoza’s

18 person.

19   {33}   Regarding the second element, there was testimony that Ramirez had a .22


                                             19
 1 caliber rifle in his possession. For the third element, the evidence indicates that

 2 Ramirez pointed the rifle at Espinoza and told him to “[b]race yourself,” which a

 3 reasonable juror could conclude was a threat of violence. Ramirez then shot Espinoza

 4 before taking his possessions. This action constitutes a taking by force. Finally, this

 5 testimony established that these events took place on January 4, 2010. Therefore, the

 6 evidence was sufficient to support the armed robbery component of the first-degree

 7 murder charge.

 8   {34}   There was clearly sufficient evidence for the jury to conclude that the armed

 9 robbery was committed “under circumstances or in a manner dangerous to human

10 life.” See supra Section A(2). Ramirez pointed a rifle at Espinoza during the robbery,

11 and the dangerous manner of the robbery is self-evident because the incident resulted

12 in Espinoza’s death.

13   {35}   The remaining elements of the first-degree murder charge also are satisfied.

14 Ramirez helped commit the felony of armed robbery by taking Espinoza’s cell phone

15 and iPod from Espinoza’s car and escorting Orozco to the getaway car while armed,

16 satisfying the second element. It was Ramirez’s sole, or shared, idea to rob the next

17 person who came to the rest stop, satisfying the third element. Espinoza was killed

18 during the robbery, satisfying the fourth element. Fifth, Ramirez admitted that he


                                              20
 1 killed Espinoza and bragged to a cell mate in jail that he used a gun for the killing.

 2 Sixth, Ramirez told Espinoza to “[b]race yourself” while pointing the rifle at him,

 3 suggesting that Ramirez intended to shoot Espinoza.           Finally, this testimony

 4 established that these events happened in New Mexico on or between January 4, 2010

 5 and January 6, 2010. Therefore, there was sufficient evidence to convict Ramirez of

 6 first-degree murder.

 7 2.       Conspiracy to commit armed robbery

 8   {36}   The evidence was sufficient to support Ramirez’s conviction for conspiracy to

 9 commit armed robbery. The elements of conspiracy to commit armed robbery, as

10 presented to the jury, are:

11                1. The defendant and another person by words or acts agreed
12          together to commit armed robbery;

13                2. The defendant and the other person intended to commit armed
14          robbery;

15                3. This happened in New Mexico on or between January 4, 2010,
16          and January 6, 2010.

17 See UJI 14-2810 NMRA.

18   {37}   Testimony during trial establishes that the three men, including Ramirez,

19 planned to use a gun (ultimately, Ramirez used a rifle) to “scare [somebody] and ask

20 [him] for his money.” This evidence is sufficient to support the first element. Orozco

                                              21
 1 testified that he, Murillo, and Ramirez “were just there [at the rest stop] and [Murillo

 2 and Ramirez] were just saying that the first one that gets there is going to get robbed.”

 3 Second, from this evidence, a jury could have inferred that Ramirez intended to

 4 commit armed robbery. Finally, Orozco and Murillo both testified that Ramirez was

 5 present at the scene of the robbery on January 4, 2010. Therefore, there was sufficient

 6 evidence to convict Ramirez of conspiracy to commit armed robbery.

 7 3.       Tampering with evidence

 8   {38}   The evidence is sufficient to support Ramirez’s conviction of tampering with

 9 evidence. The elements of tampering with evidence are:

10                1. The defendant destroyed, changed, hid, or placed Adam
11          Espinoza’s body and/or personal property belonging to Adam Espinoza;

12                2. The defendant intended to prevent the apprehension,
13          prosecution or conviction of Irvin Ramirez;

14                3. This happened in New Mexico on or between January 4, 2010
15          and January 6, 2010.

16 See UJI 14-2241 NMRA.

17   {39}   First, Ramirez helped move Espinoza’s body from the car’s back seat to its

18 trunk, helped transport Espinoza’s car and body to the shooting range, and poured

19 gasoline on the back seat of the vehicle. The gasoline was then lit. The vehicle

20 belonged to Espinoza. For these reasons, the first element is satisfied. Second,

                                              22
 1 Murillo testified that “it was decided to . . . get rid of the evidence, so it wouldn’t

 2 come back to haunt us.” Ramirez told Orozco that “there were still bones” in the car,

 3 and suggested that they burn the car again. Based on the foregoing evidence, a juror

 4 could reasonably find that Ramirez intended to destroy the bones so that they could

 5 not be discovered. Finally, testimony at trial established that these events occurred

 6 in New Mexico between January 4, 2010, and January 6, 2010. For these reasons,

 7 there was sufficient evidence to convict Ramirez of tampering with the evidence.

 8 4.       Arson

 9   {40}   The evidence is sufficient to support Ramirez’s conviction for arson. The jury

10 was presented with two jury instructions: arson of property worth more than $500,

11 and arson of property worth more than $2,500. The jury convicted Ramirez of the

12 lesser charge of arson of property worth more than $500. The elements of arson of

13 property worth more than $500 are:

14                1. The defendant intentionally or maliciously started a fire or
15          caused an explosion;

16                2. He did so with the intent to destroy or damage a vehicle which
17          belonged to another and which had a market value of over $500.00;

18                3. This happened in New Mexico on or between January 4, 2010
19          and January 6, 2010.

20 See UJI 14-1701 NMRA.

                                              23
 1   {41}   First, Ramirez poured gasoline on the back seat of the vehicle without being

 2 prompted, suggesting that he intended to light the car on fire. Murillo admitted to

 3 lighting the gasoline; however, “[a] person who aids or abets in the commission of a

 4 crime is equally culpable as the principal.” State v. Carrasco, 1997-NMSC-047, ¶ 6,

 5 124 N.M. 64, 946 P.2d 1075. As a result, there is sufficient evidence to support the

 6 first element. Second, Ramirez demonstrated his intent to destroy the vehicle by

 7 participating in the decision to burn it. Testimony also established that the car was

 8 worth more than $500, and it belonged to Espinoza. Finally, these events occurred in

 9 New Mexico between January 4, 2010, and January 6, 2010. For these reasons, there

10 was sufficient evidence to convict Ramirez of arson.

11 5.       Receiving stolen property

12   {42}   The evidence is sufficient to support Ramirez’s conviction for receiving stolen

13 property. The elements for receiving stolen property are:

14                1. The cellular phone, and/or computer, U.S. currency, video
15          game system, clothing, musical instruments, flat screen T.V., and/or I-
16          Pod [sic] had been stolen;

17                2. The defendant disposed of this property;

18                3. At the time he disposed of this property, the defendant knew or
19          believed that it had been stolen;

20                4. The property had a market value of over $2,500.00;

                                              24
 1                5. This happened in New Mexico on or between January 4, 2010
 2          and January 6, 2010.

 3 See UJI 14-1650 NMRA.

 4   {43}   As noted in the armed robbery analysis, Espinoza’s cell phone, iPod, flat-screen

 5 TV, PlayStation 3, games, and DVDs, clock, clothes, computer, and currency were all

 6 stolen.

 7   {44}   Regarding the second element, Ramirez disposed of the PlayStation 3, the

 8 plasma TV, and the games by instructing Murillo to sell them. Orozco testified that

 9 he kept the clock and clothes. Since Ramirez asked Orozco for the proceeds of the

10 BlackBerry that he sold, a jury could reasonably infer that Ramirez controlled which

11 items Orozco kept or sold. Ramirez disposed of the clock and clothes by allowing

12 Orozco to keep them. There was no testimony regarding whether the computer and

13 musical instruments were sold. However, Murillo stated that there were personal

14 items in the car at the time of the theft in addition to the PlayStation 3 and the TV.

15 Orozco testified broadly that the day after unloading the property, Ramirez and

16 Murillo “were selling the stuff to people.” A jury could reasonably conclude that the

17 computer and instruments were also sold during these transactions. Element two is

18 satisfied for each item. The third element is satisfied because Ramirez participated

19 in the theft, and therefore he knew that the items were stolen.

                                               25
 1   {45}   For the fourth element, we must determine whether there was sufficient

 2 evidence regarding the market value of the stolen property. In determining the value

 3 of the stolen items, we look to the market value of the goods. See State v. Barr, 1999-

 4 NMCA-081, ¶ 30, 127 N.M. 504, 984 P.2d 185 (holding that it was proper to use the

 5 victim’s testimony to determine that the market value of the stolen goods exceeded

 6 $250). Although the jury was not given the definition of “market value,” the uniform

 7 jury instruction defines “market value” as “the price at which the property could

 8 ordinarily be bought or sold at the time of the alleged criminal act.” UJI 14-6102

 9 NMRA. We conclude that the testimony presented was sufficient to determine the

10 value of the stolen goods because the State’s witnesses, Epinoza’s mother and sister,

11 were familiar with the cost of these items. See State v. Williams, 1972-NMCA-011,

12 ¶ 2, 83 N.M. 477, 493 P.2d 962 (holding that motel manager who was familiar with

13 stolen items was qualified to testify about their value).

14   {46}   According to the testimony of Espinoza’s mother and sister, the cell phone was

15 valued at $350; the computer was purchased for $800, but was valued at over

16 $3,000;there was $150 in U.S. currency on Espinoza’s person; the PlayStation 3 was

17 valued at $400; Espinoza’s clothing was valued at $600; the instruments were valued

18 at $400; the TV was valued at $249; the “clock” to which Orozco referred could


                                              26
 1 reasonably be understood to refer to Espinoza’s stereo, which was valued at between

 2 $200 and $250; and the iPod was valued at $150. The jury could have concluded

 3 from this testimony that the total value of the items was more than $2,500. Therefore,

 4 the fourth element is satisfied. Finally, the theft and disposal of this property occurred

 5 between January 4, 2010 and January 6, 2010. There was sufficient evidence to

 6 support the conviction for receiving stolen property.

 7 CONCLUSION

 8   {47}   We vacate Ramirez’s conviction for armed robbery in order to avoid a violation

 9 of his right against double jeopardy. We affirm Ramirez’s remaining convictions.

10   {48}   IT IS SO ORDERED.


11                                                  ______________________________
12                                                  EDWARD L. CHÁVEZ, Justice

13 WE CONCUR:



14 ___________________________________
15 PETRA JIMENEZ MAES, Chief Justice



16 ___________________________________
17 RICHARD C. BOSSON, Justice


                                               27
1 ___________________________________
2 CHARLES W. DANIELS, Justice



3 ___________________________________
4 BARBARA J. VIGIL, Justice




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