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                                                                   integrity of this document
                                                                     New Mexico Compilation
                                                                   Commission, Santa Fe, NM
                                                                  '00'04- 10:29:26 2012.09.07

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-027

Filing Date: August 9, 2012

Docket No. 33,052

STATE OF NEW MEXICO,

        Plaintiff-Appellee,

v.

LUCIANO P. GUERRA,

        Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Teddy L. Hartley, District Judge

Liane E. Kerr, L.L.C.
Liane E. Kerr
Albuquerque, NM

for Appellant

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

for Appellee

                                          OPINION

DANIELS, Justice.

{1}      Defendant was convicted of first-degree murder and tampering with evidence in the
fatal stabbing of Andrew Gama during a fight at a Clovis apartment complex in March 2010.
In his direct appeal to this Court, he argues that (1) there was insufficient evidence to support
his conviction for tampering with evidence, (2) the district court abused its discretion by
denying his motion for a new trial when two defense exhibits left on counsel table after
closing arguments were not included with other exhibits provided to the jury during
deliberation, (3) he received ineffective assistance of counsel because his attorney failed to

                                               1
ensure the return of the two exhibits for delivery to the jury room, (4) there was insufficient
evidence to support the first-degree murder conviction, and (5) through various other
claimed errors the district court denied him due process of law.

{2}     In this Opinion, we clarify the standard for sufficiency of evidence to support
tampering-with-evidence convictions and reverse Defendant’s tampering conviction. We
reject the remainder of Defendant’s claims and uphold his first-degree murder conviction.

I.     BACKGROUND

{3}     Defendant was at a party at the Clovis apartment of Erica Nañez on the night of the
killing. While at the party, Erica and four other witnesses saw Defendant playing with a
folding white pocketknife that Defendant claimed he carried for protection. At one point,
Erica asked Defendant to put the knife away, which he apparently did.

{4}       Around midnight, a group of uninvited people unexpectedly showed up at the party,
and a fight broke out between one of them and one of Erica’s guests. A separate fight took
place between Defendant and the uninvited victim, Andrew Gama, who apparently had been
in a fight with Defendant’s cousin a few days before. According to most of the witnesses
at trial, the fight between Defendant and the victim was “one on one,” and the victim did not
have a weapon.

{5}     When someone yelled that the police were coming, the fighting stopped and the
uninvited group began running away. The victim, bleeding heavily, fell to the ground while
running and was helped to a car by a friend, who drove the victim to the hospital where the
victim later died.

{6}    Defendant returned to Erica’s apartment, where several witnesses testified that
Defendant said “I think I stabbed that fool seven or eight times. I stabbed that fool.” When
asked to describe how Defendant was acting after the fight, Erica told the jury that
Defendant and his companions were acting “fine, like nothing, like high-fiving each other.”

{7}     The autopsy of the victim revealed that he suffered thirteen stab wounds in the left
side of his chest and that the wounds were consistent with a single-edged knife. Stab
wounds to the victim’s heart, left lung, and spleen were the cause of death. The victim had
no injuries to his hands or arms, and marijuana and alcohol were found in his blood. The
police searched Defendant’s house but could not find the clothes Defendant wore to the party
or the knife used to inflict the fatal wounds.

{8}     The jury convicted Defendant of first-degree murder and tampering with evidence,
and the district court sentenced Defendant to life in prison for the murder and three years in
prison, concurrently, for tampering. Because Defendant received a life sentence, he
appealed directly to this Court. See N.M. Const. Art. VI, § 2 (“Appeals from a judgment of
the district court imposing a sentence of death or life imprisonment shall be taken directly

                                              2
to the supreme court.”); accord Rule 12-102(A)(1) NMRA.

II.    DISCUSSION

A.     The Evidence Was Insufficient to Convict Defendant of Tampering with
       Evidence.

{9}     Defendant argues that his conviction for tampering with evidence should be
overturned because the facts that Defendant had a knife and that no knife was later recovered
after the killing are, by themselves, insufficient as a matter of law to support the conviction.
The State concedes that the evidence was insufficient as a matter of law to uphold
Defendant’s tampering conviction; and while we are not bound by this concession, see State
v. Foster, 1999-NMSC-007, ¶ 25, 126 N.M. 646, 974 P.2d 140, abrogated on other grounds
by State v. Frazier, 2007-NMSC-032, ¶¶ 31, 35, 142 N.M. 120, 164 P.3d 1, we agree.

1.     Standard of Review

{10} “The test for sufficiency of the evidence is whether substantial evidence of either a
direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Riley, 2010-NMSC-005,
¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation omitted). The
reviewing court “view[s] the evidence in the light most favorable to the guilty verdict,
indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the
verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The
question before us as a reviewing [c]ourt is not whether we would have had a reasonable
doubt [about guilt] but whether it would have been impermissibly unreasonable for a jury
to have concluded otherwise. See State v. Rudolfo, 2008-NMSC-036, ¶ 29, 144 N.M. 305,
187 P.3d 170.

2.     Tampering with Evidence Requires Proof in Some Form of a Defendant’s Specific
       Intent to Tamper.

{11} In order to prove that Defendant tampered with evidence, the State had to prove that
(1) Defendant hid physical evidence; (2) he did so with the intent to prevent his
apprehension, prosecution, or conviction; and (3) this happened in New Mexico on or about
the date specified in the criminal information. UJI 14-2241 NMRA; see NMSA 1978, §
30-22-5(A) (2003).

{12} This Court has previously recognized that the crime of tampering with evidence
requires evidence that the defendant specifically intended to tamper with evidence. In State
v. Silva, the state successfully argued at trial that the defendant tampered with evidence
solely because (1) the defendant had a gun at the scene of the crime, (2) a gun was used to
murder the victim, (3) the murder weapon was removed from the scene, and (4) the murder
weapon was never recovered. 2008-NMSC-051, ¶ 17, 144 N.M. 815, 192 P.3d 1192. We

                                               3
explained that “[t]ampering with evidence is a specific intent crime, requiring sufficient
evidence from which the jury can infer that the defendant acted with an intent to prevent
apprehension, prosecution or conviction of any person or to throw suspicion of the
commission of a crime upon another.” Id. ¶ 18 (internal quotation marks and citation
omitted). We held that the evidence was insufficient as a matter of law to sustain the
conviction because the state “offered no direct evidence to show that [the d]efendant
intended to disrupt the police investigation, nor did it provide any evidence, circumstantial
or otherwise, of an overt act on [the d]efendant’s part from which the jury could infer such
intent.” Id. ¶ 19. Instead, the state “effectively asked the jury to speculate that an overt act
of . . . hiding [the murder weapon] had taken place, based solely on the fact that such
evidence was never found.” Id. (alterations in original) (internal quotation marks and
citation omitted).

{13} In explaining our conclusion, we noted that “[i]ntent is subjective and is almost
always inferred from other facts in the case, as it is rarely established by direct evidence.”
Id. ¶ 18 (alteration in original) (internal quotation marks and citation omitted). But after that
clear discussion of the proper role of circumstantial evidence, we concluded by saying:
“However, absent both direct evidence of a defendant’s specific intent to tamper and
evidence of an overt act from which the jury may infer such intent, the evidence cannot
support a tampering conviction.” Id.

{14} Taken out of context, that single sentence could be misconstrued as requiring both
direct and circumstantial evidence of intent to tamper, instead of either. Such an
unprecedented dual requirement would make prosecution of tampering with evidence
possible only when the defendant has explicitly admitted that the act of tampering was
committed with the intent to elude capture or prosecution, which has never been the
standard. We did not intend such a reading of the law. Silva should have said that “absent
either direct evidence of a defendant’s specific intent to tamper or evidence from which the
factfinder may infer such intent, the evidence cannot support a tampering conviction.” See
State v. Nathaniel Duran, 2006-NMSC-035, ¶ 16, 140 N.M. 94, 140 P.3d 515, noting that
this Court’s reversal of a tampering conviction for insufficiency of supporting evidence

        does not mean that direct evidence is necessary to prove tampering with
        evidence. Statements by defendants and witnesses regarding the disposition
        of evidence may allow a jury to reasonably infer an overt act and intent, as
        may many other kinds of circumstantial evidence that would tend to prove
        a defendant acted to tamper with evidence and in so acting intended to thwart
        a police investigation. Rather, we hold that it is the State’s burden to prove
        each element of the crime beyond a reasonable doubt, and the proof offered
        here, with no direct or circumstantial evidence regarding an overt act and no
        reasonable way for a jury to infer intent, falls short of that burden.

{15} Accordingly, we clarify Silva insofar as it may have inadvertently suggested that the
state must always present both direct and circumstantial evidence of a defendant’s specific

                                               4
intent to tamper in order to convict the defendant of tampering with evidence.

{16} Having clarified Silva, we conclude that its bedrock principle applies in this case:
The State cannot convict Defendant of tampering with evidence simply because evidence
that must have once existed cannot now be found. As in Silva, the State in this case alleged
that Defendant tampered with evidence based on the fact that (1) Defendant had a weapon
at the scene of the crime, (2) Defendant used that weapon to kill someone, (3) the weapon
was removed from the scene of the crime, and (4) the weapon was never recovered. And as
in Silva, the State in this case essentially asked the jury to infer that an overt, intentional act
of hiding the weapon had taken place based solely on the fact that the police never found the
weapon. We rejected such facts as insufficient evidence as a matter of law to support a
tampering with evidence conviction in Silva, and we do so here as well. Accordingly, we
reverse Defendant’s conviction for tampering with evidence.

B.      Any Error in Not Sending Two Exhibits to the Jury Room Was Harmless.

{17} Rule 5-609(C) NMRA provides that “[u]pon its request to review any exhibit during
its deliberations, the jury shall be furnished all exhibits received in evidence.” The
committee commentary explains that the rule is intended to avoid “undue emphasis being
placed on one of the exhibits.” While Defendant has provided no record reference that
would indicate the jury ever made such a request in this case, the parties and the court below
seemed to agree that two exhibits related to the victim’s autopsy—a blood toxicology report
and a drug analysis report—were inadvertently left on defense counsel’s table when all the
other exhibits were given to the deliberating jury. The district court denied Defendant’s
motion for new trial based on the claimed violation of Rule 5-609, finding that while the
apparent omission of the exhibits was “regrettable,” the error was “technical” and justice
would not be served in reversing the jury verdict on the basis of such a “minor infraction of
the rules.” Defendant now argues that he was denied a fair trial and that the district court
abused its discretion when it denied his motion for a new trial.

1.      Standard of Review

{18} “The trial court has broad discretion in granting or denying a motion for new trial,
and such an order will not be reversed absent clear and manifest abuse of that discretion.”
State v. Chavez, 98 N.M. 682, 684, 652 P.2d 232, 234 (1982). “An abuse of discretion
occurs when the ruling is clearly against the logic and effect of the facts and circumstances
of the case. We cannot say the trial court abused its discretion by its ruling unless we can
characterize [the ruling] as clearly untenable or not justified by reason.” State v. Rojo, 1999-
NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (1999) (internal quotation marks and citation
omitted).

2.      Harmless Error

{19}    “[W]here a defendant has established a violation of statutory law or court rules, non-

                                                5
constitutional error review is appropriate.” State v. Barr, 2009-NMSC-024, ¶ 53, 146 N.M.
301, 210 P.3d 198, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37,
275 P.3d 110. “A reviewing court should only conclude that a non-constitutional error is
harmless when there is no reasonable probability the error affected the verdict.” Id.
(emphasis in original). “[N]on-constitutional error is reversible only if the reviewing court
is able to say, in the context of the specific evidence presented at trial, that it is reasonably
probable that the jury’s verdict would have been different but for the error.” Id. ¶ 54.

{20} By explaining that the complained of error was a “technical” violation, the district
court made it clear that its decision to deny Defendant’s motion for a new trial was based on
the conclusion that the error was harmless. This conclusion is not “clearly against the logic
and effect of the facts and circumstances of the case.” Rojo, 1999-NMSC-001, ¶ 41 (internal
quotation marks and citation omitted).

{21} There is no reasonable probability that the jury’s verdict would have been different
if the jury had access to the two exhibits during deliberation. The jury was well aware of
their contents. An expert medical witness testified at trial about the reports and testified that
the information in the report was not sufficient for her to conclude whether the victim was
impaired or whether the alcohol and marijuana had any impact on the victim’s ability to
tolerate pain. Therefore, the reports were useful only to prove that the victim had alcohol
and marijuana in his system, facts the State never challenged. And because defense counsel
used the admitted exhibits in closing argument, the jury had very recently been reminded of
the facts contained in them. After hearing testimony and argument about the two admitted
exhibits, the jury never displayed sufficient interest in them to ask for them. Viewing all the
circumstances, we conclude that the error was harmless and that the district court did not
abuse its discretion in denying Defendant’s motion for a new trial on that ground.

C.      Defendant Received Effective Assistance of Counsel.

{22} Defendant also argues that if the district court did not abuse its discretion by denying
his motion for a new trial, then his trial attorney’s failure to send the exhibits back to the jury
amounted to ineffective assistance of counsel.

{23} “Questions of law or questions of mixed fact and law, . . . including the assessment
of effective assistance of counsel, are reviewed de novo.” Duncan v. Kerby, 115 N.M. 344,
347-48, 851 P.2d 466, 469-70 (1993). “Under the Sixth Amendment, criminal defendants
are entitled to reasonably effective assistance of counsel.” State v. Garcia, 2011-NMSC-
003, ¶ 33, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation omitted).
“Ordinarily, a claim of ineffective assistance of counsel has two parts.” Rael v. Blair, 2007-
NMSC-006, ¶ 10, 141 N.M. 232, 153 P.3d 657 (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). First, “[a] defendant must show counsel’s performance was deficient.”
Id. (internal quotation marks and citation omitted). Second, a defendant must show “that the
deficient performance prejudiced the defense.” Id. (internal quotation marks and citation
omitted). “Failure to prove either prong of the test defeats a claim of ineffective assistance

                                                6
of counsel.” State v. Reyes, 2002-NMSC-024, ¶ 48, 132 N.M. 576, 52 P.3d 948, abrogated
on other grounds by Allen v. LeMaster, 2012-NMSC-001, ¶ 36, 267 P.3d 806. “With regard
to the prejudice prong, generalized prejudice is insufficient. . . . A defendant must show a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M.
644, 146 P.3d 289 (internal quotation marks and citations omitted). “If a defendant does not
make such a showing, the defendant has not carried his or her burden, and the presumption
of effective assistance controls.” State v. Harrison, 2000-NMSC-022, ¶ 61, 129 N.M. 328,
7 P.3d 478 (internal quotation marks and citation omitted).

{24} Just as we previously determined that any error in not sending the two exhibits to the
jury in the context of this case was harmless, we conclude that Defendant cannot
demonstrate the requisite prejudice to prevail on his ineffective assistance of counsel claim.

D.     The Jury Received Sufficient Evidence to Convict Defendant of First-Degree
       Murder.

{25} Defendant argues that the evidence was insufficient to support his first-degree murder
conviction because the jury ignored evidence that tended to show Defendant did not
deliberate before he killed.

{26} In order to convict Defendant of first-degree murder, the jury had to find beyond a
reasonable doubt that (1) Defendant killed Andrew Gama, (2) he did so with the deliberate
intention of taking the victim’s life, and (3) this happened in New Mexico on or about the
date specified in the criminal information. UJI 14-201 NMRA; see NMSA 1978, § 30-2-
1(A)(1) (1994).

{27} Defendant’s argument centers around his claim at trial that he was “jumped,” which
he maintains is proof that he acted on a rash impulse and did not deliberate. But because the
jury is free to reject Defendant’s version of the facts, “[c]ontrary evidence supporting
acquittal does not provide a basis for reversal.” See Riley, 2010-NMSC-005, ¶ 12 (internal
quotation marks and citation omitted). Instead, we consider the evidence that supports the
verdict in this case. Id.

{28} The requisite state of mind for first degree murder is a “deliberate” intention to kill.
See § 30-2-1(A)(1); see also UJI 14-201. “The word deliberate means arrived at or
determined upon as a result of careful thought and the weighing of the consideration for and
against the proposed course of action.” UJI 14-201. Though deliberate intent requires a
“calculated judgment” to kill, the weighing required for deliberate intent “may be arrived at
in a short period of time.” Id. In determining whether a defendant made a calculated
judgment to kill, the jury may infer intent from circumstantial evidence; direct evidence of
a defendant’s state of mind is not required. See Nathaniel Duran, 2006-NMSC-035, ¶ 7.

{29}   The jury received sufficient evidence to find that Defendant deliberated before he

                                              7
killed. The medical evidence suggested and the State argued that Defendant pinned the
victim’s left arm above his head, leaving that side of his chest exposed and rendering the
victim unable to defend himself from Defendant’s attack. Such an attack on a victim who
cannot defend himself may be sufficient for the jury to infer deliberate intent. See
Cunningham, 2000-NMSC-009, ¶ 28 (inferring deliberate intent when the defendant killed
an incapacitated and defenseless victim). The jury also heard evidence that Defendant
stabbed the victim thirteen times and that many of the wounds were to vital organs, evidence
that supports a finding of “overkill.” See State v. Flores, 2010-NMSC-002, ¶¶ 21-22, 147
N.M. 542, 226 P.3d 641 (including an attempt at “overkill” in the evidence sufficient to
uphold a finding of intent). Finally, the jury learned that Defendant expressed no remorse
after killing the victim, saying “I think I stabbed that fool seven or eight times,” celebrating,
and acting as if nothing had happened after he returned from the attack. See Nathaniel
Duran, 2006-NMSC-035, ¶ 9 (inferring deliberate intent in part from the defendant’s
statements after the killing that he “hurt a lady and stabbed her eight or nine times” and that
he “straight up murdered some bitch” (internal quotation marks and citation omitted)); see
also State v. Smith, 76 N.M. 477, 482, 416 P.2d 146, 150 (1966) (explaining that a jury may
consider “the animus of the accused toward the deceased” in determining deliberate intent).
Accordingly, we conclude that the evidence was sufficient to support Defendant’s conviction
for willful and deliberate murder.

E.      Defendant’s Other Due Process of Law Claims Lack Merit.

{30} Defendant also argues that the district court abused its discretion when it denied his
motion for a new trial based on claims he was denied due process when (1) the district court
improperly released a medical expert from subpoena, (2) the State’s reenactment of the
murder before the jury was improper, (3) the prosecutor made derogatory comments about
defense counsel to a prosecution witness, and (4) the State misrepresented a witness’s
testimony in its closing argument. Because Defendant does not demonstrate any harm from
these alleged errors, we conclude that he was not denied due process of law.

{31} “The trial court has broad discretion in granting or denying a motion for new trial,
and such an order will not be reversed absent clear and manifest abuse of that discretion.”
Chavez, 98 N.M. at 684, 652 P.2d at 234. “An abuse of discretion occurs when the ruling
is clearly against the logic and effect of the facts and circumstances of the case. We cannot
say the trial court abused its discretion by its ruling unless we can characterize it as clearly
untenable or not justified by reason.” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation marks
and citation omitted).

1.      Release of the State’s Medical Expert Before the Defense Case

{32} The State called a forensic pathologist who testified as an expert medical witness at
trial. Defense counsel cross-examined her after her direct testimony. The district court
released the expert witness after her testimony, and Defendant never attempted to call her
in his case in chief. Defendant later argued in his motion for a new trial that releasing the

                                               8
expert was error, even though Defendant admitted both that he had no reason to call the
witness and that he knew he could have had the witness subpoenaed or recalled if he
determined that he needed further testimony from her. Defendant now claims that “because
the doctor was released, he was unable to call her and present her in his case to address
whatever issues might have arisen and she therefore, seemed solely to be a State’s witness.”
Nothing in the record suggests that Defendant was prejudiced by the district court’s decision
to release the witness. See Tollardo, 2012-NMSC-008, ¶ 42 (explaining that the proper
focus of a harmless error review is whether the error affected the verdict). Accordingly,
even assuming without deciding that releasing the witness was error, we conclude that any
error was harmless.

2.      The State’s Reenactment of the Murder During Closing

{33} The State initially intended to call an investigator as an expert witness who would
present an expert opinion in the form of a reenactment of the attack. The proposed
reenactment apparently would have been based on the expert’s file, which contained
pictures, calculations, facts, and demonstrations that he had performed. Defendant objected
and asked the district court to exclude the testimony. The district court determined that the
State failed to give notice to the defense that the witness would be called as an expert and
that the State failed to give Defendant a copy of the expert’s file, in violation of Rules 5-
501(A)(3)-(5) NMRA. The district court offered three possible remedies: Defendant could
be allowed time to find his own expert, the witness could be excluded altogether, or the
witness could be allowed to testify strictly as a fact witness. Defendant agreed to allow the
witness to testify as a fact witness only.

{34} The witness told the jury that he investigated the murder and explained what he
found at the scene. He told the jury that he examined the victim’s clothing and that he saw
pictures of the victim. The victim’s sweatshirt had blood and “numerous” cuts on the left
side, in the rib cage area under the left arm, and the right side had no blood or cuts. When
the witness examined the T-shirt the victim wore beneath the sweatshirt, he found cuts or
holes that were “in direct correlation” with those in the sweatshirt. And when the witness
examined the victim’s undershirt, he found cuts consistent with those in the T-shirt the
victim wore and consistent with the injuries the victim suffered.

{35} The State argued in closing, through a reenactment based in part on this factual
testimony, that the victim’s thirteen stab wounds in the rib cage area on his left side
suggested that Defendant intentionally prevented the victim from defending himself by
trapping the victim’s left arm in a raised position, exposing the left side of the victim’s chest.

{36} Defendant now claims that he was denied due process of law because the prosecutor
was allowed in closing to reenact in a theory of the case that was the same as the expert’s
unadmitted opinion and based on admitted evidence which had not been made available in
timely pretrial discovery.


                                                9
{37} The “trial court has wide discretion in . . . controlling counsel’s argument to the jury
and, if no abuse of this discretion or prejudice to the defendant is evident, error does not
result.” State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991) (internal quotation marks
and citation omitted). Defendant does not explain why he was prejudiced by either the delay
in disclosing the expert’s report or by the State’s arguments in closing. See Rojo,1999-
NMSC-001, ¶ 61, 126 N.M. 438, 971 P.2d 829 (refusing to hold that the prosecution’s delay
in disclosing evidence required reversal in the absence of a showing of prejudice from the
nondisclosure); State v. Ruffino, 94 N.M. 500, 503, 612 P.2d 1311, 1314 (1980) (explaining
that the inquiry on appeal is whether the prosecutor’s comments in closing prejudiced the
jury); see also State v. McDaniel, 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701 (“The
prejudice must be more than speculative.”). The record indicates that the State’s argument
was based on the evidence admitted at trial, and Defendant cites no authority that stands for
the proposition that precludes counsel from thinking about an unadmitted expert opinion in
preparing and presenting closing argument. See Lee v. Lee (In re Adoption of Doe), 100
N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (“We assume where arguments in briefs are
unsupported by cited authority [that] counsel . . . was unable to find any supporting
authority.”).

{38} Because Defendant has not argued why the late disclosure or the State’s closing
arguments prejudiced him, we reject Defendant’s arguments on this issue.

3.     The Prosecutor’s Pretrial Comments to a Witness About Defense Counsel

{39} Defendant claims that just before trial defense counsel reviewed an audio recording
of an interview with a witness for the State in which the prosecutor allegedly made improper
comments about defense counsel. Defendant now argues without explanation that as a result
of those statements, the witness “became more hostile and ‘State oriented.’”

{40} But Defendant does not indicate the content of the alleged improper statements or
their location in the record. “The burden is on appellant to provide the necessary record in
this Court.” State v. Alonzo L. Duran, 91 N.M. 756, 759, 581 P.2d 19, 22 (1978), overruled
on other grounds by State v. Gonzales, 111 N.M. 363, 366, 805 P.2d 630, 633 (1991).
Where a defendant fails to provide sufficient record for review of an issue, the reviewing
court may deem the issue abandoned. See id.

{41} Because Defendant has not provided the allegedly derogatory statements, this Court
cannot review whether the statements would have prejudiced Defendant’s case or whether
the district court abused its discretion when it denied Defendant’s motion on this issue. See
id. Accordingly, we reject Defendant’s claims on this issue.

4.     The State’s Characterization of the “High-Fiving Each Other” Testimony

{42} Defendant appears to argue that the State mischaracterized the testimony of Erica
Nañez when the State argued in closing that Defendant and his friends were acting “fine, like

                                             10
nothing, like high-fiving each other.” Defendant does not point out how the State may have
incorrectly mischaracterized the testimony. Defendant also does not explain how any
mischaracterization may have prejudiced his defense. Instead, Defendant argues vaguely
that “in re-characterizing the testimony, the State actually mis-represented the testimony,
which prejudiced his defense.” Nor does Defendant cite any authority from any jurisdiction
supporting his argument, leading us to conclude that no such authority exists. See In re
Adoption of Doe, 100 N.M. at 765, 676 P.2d at 1330 (“We assume where arguments in briefs
are unsupported by cited authority [that] counsel . . . was unable to find any supporting
authority.”). Accordingly, we reject Defendant’s claims that the State’s summation
unlawfully prejudiced his defense.

{43} In sum, we hold that the district court did not abuse its discretion when it denied
Defendant’s motion for a new trial based on the various alleged errors.

III.   CONCLUSION

{44} We affirm Defendant’s conviction for first-degree murder and remand to the district
court with instructions to vacate Defendant’s conviction for tampering with evidence.

{45}   IT IS SO ORDERED.

                                             ____________________________________
                                             CHARLES W. DANIELS, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Guerra, Docket No. 33,052

APPEAL AND ERROR
Exhibits
Harmless Error
Standard of Review

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CONSTITUTIONAL LAW
Due Process
Misconduct by Prosecutor

CRIMINAL LAW
Murder
Specific Intent
Tampering with Evidence

CRIMINAL PROCEDURE
Effective Assistance of Counsel
Expert Witness
New Trial
Substantial or Sufficient Evidence




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