 1   This decision was not selected for publication in the New Mexico Reports. Please see Rule 12-
 2   405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this
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 5         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO



 6 STATE OF NEW MEXICO,

 7          Plaintiff-Appellee,



 8 v.                                                                   NO. 30,913



 9 ARTHUR PAUL MARTIN,

10          Defendant-Appellant.



11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
12 Mark A. Macaron, District Judge


13 The Law Offices of Nancy L. Simmons, P.C.
14 Nancy L. Simmons
15 Albuquerque, NM


16 for Appellant



17 Gary K. King, Attorney General
18 Ralph E. Trujillo, Assistant Attorney General
19 Santa Fe, NM
 1 for Appellee



 2                                     DECISION

 3 SERNA, Justice.

 4 I.      Introduction

 5   {1}   Defendant Arthur Paul Martin (“Defendant”) was convicted by a jury of first

 6 degree murder of Rodney Mackall (“Victim”), armed robbery, evidence tampering,

 7 and possession of a firearm by a felon. Defendant appeals his convictions directly

 8 to this Court under our mandatory appellate jurisdiction, Rule 12-102(A)(1)

 9 NMRA, on the grounds that the district court fundamentally erred in admitting

10 gang affiliation evidence and testimony in violation of Defendant’s Confrontation

11 Clause rights and that the evidence was insufficient for his convictions. Having

12 reviewed the briefs and the record below, we affirm Defendant’s convictions.

13 II.     Background

14   {2}   Defendant admitted to killing Victim in the Albuquerque apartment of

15 Warren Ward on or about August 18, 2005. Defendant was at Ward’s apartment

16 when an argument occurred between Defendant and Victim, during which Victim

17 was shot by Defendant in the kitchen with a revolver. Defendant took money from

18 Victim’s person and left the apartment, fleeing to Farmington shortly thereafter.

19 After Defendant departed, Ward enlisted the services of another guest to assist him

20 in dumping Victim’s body, which was discovered the next day.
 1   {3}   Defendant was arrested in Farmington pursuant to a warrant issued in

 2 Bernalillo County on September 8, 2005, after a citizen reported to the Farmington

 3 police that Defendant had confided that he had committed murder and robbery in

 4 Albuquerque. After waiving his Miranda rights, Defendant stated that he was

 5 present at Ward’s apartment the night of Victim’s murder and had heard gunshots.

 6 Defendant was transported to Bernalillo County Detention Center, where he

 7 confessed to shooting Victim in the course of an argument and disposing of the

 8 gun used in the crime.

 9   {4}   Defendant did not present evidence at trial, but argued during closing that

10 the killing was in self-defense, and the jury was so instructed. After deliberation,

11 the jury found Defendant guilty of first degree murder, willful and deliberate,

12 felony murder in the alternative, armed robbery, evidence tampering, and

13 possession of a firearm by a felon. The district court imposed a sentence of life

14 imprisonment plus ten years.

15 III.    Analysis

16   {5}   Defendant raises three points of error in this appeal: (1) that the district

17 court fundamentally erred in admitting evidence of Defendant’s gang affiliation;

18 (2) that the district court fundamentally erred in admitting testimony that violated

19 Defendant’s Confrontation Clause rights and, as a result of the issue not being

20 preserved, Defendant was prejudiced by ineffective assistance of counsel; and (3)


                                               2
 1 that insufficient evidence was presented at trial to sustain Defendant’s convictions.

 2 We review each issue in turn.



 3 A.      Evidence of Defendant’s Gang Affiliation

 4   {6}   Defendant argues that the district court erred in admitting evidence of

 5 Defendant’s gang affiliation but concedes that this issue was not preserved. We

 6 review issues that were not properly preserved below for fundamental error. State

 7 v. Silva, 2008-NMSC-051, ¶ 11, 144 N.M. 815, 192 P.3d 1192. Our fundamental

 8 error analysis requires two steps. The first is to determine whether error actually

 9 occurred. Id. If there was error, our second step is to determine whether that error

10 was fundamental. Id. Error is fundamental and requires reversal only in extreme

11 cases when “the defendant’s guilt is so questionable that upholding the conviction

12 would shock the conscience,” or “substantial justice has not been served” because

13 “a fundamental unfairness within the system has undermined judicial integrity.”

14 Id. ¶ 13 (internal quotation marks and citation omitted).

15   {7}   Gang affiliation evidence was presented at trial to show that Defendant and

16 Victim were members of the same gang and that police investigators used gang

17 tattoos to identify both Defendant and Victim. Defendant argues that admission of

18 this evidence was fundamental error because it was character evidence used for

19 propensity purposes in violation of Rule 11-404 NMRA. The State argues that the


                                              3
 1 gang affiliation evidence was properly admitted to show how the investigation

 2 proceeded and how Defendant and Victim were identified. Additionally, the State

 3 argues that “Defendant waived any claim against the admission of this evidence

 4 because the defense offered its own evidence of . . . gang affiliation.”

 5   {8}   Rule 11-404 prohibits the admission of character evidence “for the purpose

 6 of proving action in conformity therewith on a particular occasion[.]” Under Rule

 7 11-404(A), a criminal defendant may admit evidence of a pertinent trait of his or

 8 her own character, or the character of the victim, but doing so opens the door for

 9 the prosecution to introduce evidence of the same trait. Rule 11-404(A)(1), (2).

10 Rule 11-404(B) permits the introduction of evidence of “other crimes, wrongs or

11 acts” for purposes “such as proof of motive, opportunity, intent, preparation, plan,

12 knowledge, identity or absence of mistake.” The State must provide prior notice

13 that evidence of prior bad acts will be used at trial. Rule 11-404(B). If evidence is

14 determined to be admissible under Rule 11-404, it must still withstand the

15 balancing requirements of Rule 11-403 NMRA, under which evidence is excluded

16 if its probative value is substantially outweighed by its prejudicial effect.

17   {9}   The trial testimony about gang membership was first elicited by defense

18 counsel to demonstrate that Victim was a gang member, presumably in support of

19 Defendant’s self-defense theory. Defense counsel emphasized that Victim was a

20 gang member and posed questions about gang-related activities at Victim’s funeral.


                                              4
 1 Under Rule 11-404(A), Defendant “opened the door” to gang-related testimony to

 2 show that the sole fact of Victim’s gang membership did not prove Defendant’s

 3 self-defense theory, as Defendant was a member of the same gang. Cf. State v.

 4 Coffin, 1999-NMSC-038, ¶ 34, 128 N.M. 192, 991 P.2d 477 (“[T]estimony on

 5 cross-examination concerning the relationship between the two gangs was

 6 admissible to rebut the implication from direct examination that the gang affiliation

 7 of [the victim] made it more likely that he was a first aggressor in the altercation

 8 with [the defendant].”). This rebuttal evidence, showing that Defendant and

 9 Victim were members of the same gang, need not be excluded under Rule 11-403

10 as its probative value is not “substantially outweighed by the danger of unfair

11 prejudice.” See id. ¶ 35 (finding no unfair prejudice when the defendant raised the

12 issue of gang membership early in the trial and questioned his own witnesses about

13 his gang membership). The district court did not err by permitting the State to

14 present gang affiliation evidence to rebut the testimony elicited by Defendant.

15   {10}   We may not characterize all of the gang affiliation evidence introduced by

16 the State as rebuttal evidence permitted under Rule 11-404(A). The State

17 presented testimony by gang experts and police officers on gang structure and

18 methods of gang surveillance. Although the introduction of gang affiliation

19 evidence would be prohibited if done solely for propensity purposes, we have

20 previously held that gang affiliation evidence is not improper character evidence


                                              5
 1 when it is admitted for one of the valid reasons listed in Rule 11-404. In State v.

 2 Nieto, we held that the district court did not abuse its discretion in admitting expert

 3 gang testimony, about the defendant’s membership in a gang and that gang’s

 4 procedures, to show the defendant’s motive and intent in murdering his victims.

 5 2000-NMSC-031, ¶ 25, 129 N.M. 688, 12 P.3d 442. More recently, in State v.

 6 Torrez, we held that expert gang testimony was “offered to rebut [the defendant’s]

 7 claim of self-defense, and therefore went to his motive,” and was admissible under

 8 Rule 11-404(B). 2009-NMSC-029, ¶ 24, 146 N.M. 331, 210 P.3d 228.

 9   {11}   In this case, the State presented gang affiliation evidence to explain how the

10 Sheriff’s Department Gang Unit investigators used gang tattoos on Victim’s body

11 to identify Victim, and the files the Gang Unit maintains on local gang members

12 and Defendant’s tattoos to identify Defendant as a suspect. Testimony about gang

13 structure, specifically that the Kirt Town Piru gang, to which both Defendant and

14 Victim belonged, is a part of the Bloods gang family, provided background to

15 understand the identification process. Additionally, Defendant admitted both to

16 being a gang member and that he fled to Farmington after the murder because he

17 was concerned “that his fellow gang members were after him.” Defendant

18 concedes that testimony of their common gang membership established that

19 Defendant and Victim were acquainted.

20   {12}   This gang-related testimony explained the manner in which investigators


                                               6
 1 were able to identify both Victim and Defendant and the reason for Defendant’s

 2 presence in Farmington. The list of permissible reasons in Rule 11-404(B) is not

 3 exhaustive, and we hold that the district court did not err in admitting gang-related

 4 testimony for purposes of establishing identity and to explain why Defendant was

 5 arrested in Farmington. While the record does not indicate that the State met its

 6 burden of providing notice of the intent to use character evidence for permissible

 7 purposes, the failure to do so does not amount to fundamental error requiring

 8 reversal, especially considering the amount of gang evidence that was elucidated in

 9 Defendant’s own questioning and confession.

10   {13}   Nor does the admission of this gang affiliation evidence violate Rule 11-403.

11 In Nieto we held that the probative value of the gang evidence to show the

12 defendant’s motive and intent was not substantially outweighed by the danger of

13 the unfair prejudice to the defendant of being associated with a gang. 2000-

14 NMSC-031, ¶ 26. In Torrez, however, we held that the district court abused its

15 discretion by not excluding the gang evidence under Rule 11-403 because there

16 was little probative value when the prosecution had not presented evidence that the

17 defendant was a member of a gang at the time of the shooting or that the crime was

18 gang-related. 2009-NMSC-029, ¶ 31. Unlike the unduly prejudicial gang-related

19 testimony presented in Torrez, however, in this case the gang affiliation evidence

20 introduced for the limited and specific purposes of identification and reason for


                                              7
 1 Defendant’s presence in Farmington was highly probative. While we continue to

 2 recognize the danger of gang-related evidence prejudicing a defendant “by

 3 associating the defendant with the gang and describing the gang’s bad acts[,]”

 4 Nieto, 2000-NMSC-031, ¶ 25, any prejudice to Defendant was minimal and

 5 certainly did not substantially outweigh the probative value of the evidence. We

 6 hold that the district court did not err in admitting the gang affiliation testimony,

 7 and thus there was no fundamental error requiring reversal.

 8 B.       Testimony Admitted in Violation of the Confrontation Clause

 9   {14}   Defendant’s second point of error alleges that his rights under the

10 Confrontation Clause of the Sixth Amendment were violated by the admission of

11 hearsay statements and that the failure of his trial counsel to object to those

12 statements on grounds that they violated the Confrontation Clause constitutes

13 ineffective assistance of counsel. The State concedes that statements by Ward, in

14 whose apartment the murder was committed, were introduced through the

15 testimony of various law enforcement officers in violation of Defendant’s right to

16 confront witnesses against him. Ward did not testify at trial, but his statement that

17 Defendant killed Victim after an argument in his apartment was introduced through

18 the testimony of Detective Maestas, who interrogated Ward, and Detective

19 Blackmon, who observed a portion of that interrogation.

20   {15}   The Sixth Amendment guarantees that all criminal defendants have the right


                                               8
 1 “to be confronted with the witnesses against him.” U.S. Const. amend. VI. The

 2 Confrontation Clause prohibits the use in trial of “out of court testimonial

 3 statements . . . unless the witness is unavailable and the defendant had a prior

 4 opportunity to cross-examine the witness, regardless of whether such statements

 5 are deemed reliable by the court.” State v. Zamarripa, 2009-NMSC-001, ¶ 23, 145

 6 N.M. 402, 199 P.3d 846 (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)).

 7   {16}   Our manner of analyzing the effect of the Confrontation Clause violation

 8 depends on whether the error was preserved. Generally, we review a claim that

 9 hearsay evidence was admitted in violation of the Confrontation Clause de novo.

10 Zamarripa, 2009-NMSC-001, ¶ 22. However, if the error was not properly

11 preserved at trial, our review is for fundamental error. Silva, 2008-NMSC-051, ¶

12 11. “To preserve a question for review it must appear that a ruling or decision by

13 the district court was fairly invoked[.]” Rule 12-216(A) NMRA. Although

14 Defendant objected to the admission of Ward’s statements through the testimony

15 of Detectives Maestas and Blackmon, he did so on grounds that the testimony

16 constituted hearsay. Defendant never objected on grounds that the testimony

17 violated the Confrontation Clause. Because this issue was not properly preserved

18 in the district court, our review is for fundamental error. See Silva, 2008-NMSC-

19 051, ¶ 10 (finding that the defendant did not preserve his Confrontation Clause

20 claim by objecting that testimony violated his Fifth Amendment rights and


                                              9
 1 inquiring into the scope); see also State v. Trujillo, 2002-NMSC-005, ¶ 13, 131

 2 N.M. 709, 42 P.3d 814 (declining to address the defendant’s Confrontation Clause

 3 claim that was not preserved through objections to testimony on hearsay and

 4 impeachment grounds); State v. Mora, 1997-NMSC-060, ¶ 47 n.1, 124 N.M. 346,

 5 950 P.2d 789 (declining to address the defendant’s Confrontation Clause claim

 6 because no specific objection was made).

 7   {17}   As noted above, the State concedes that Ward’s statements were admitted in

 8 violation of Defendant’s Confrontation Clause rights. Therefore, we may proceed

 9 directly to the second step of our analysis, whether the error that occurred was

10 fundamental. See supra ¶ 6. As discussed above, error is fundamental and

11 requires reversal only when affirming a conviction would “shock the conscience,”

12 because Defendant’s guilt is so questionable, or when the error is the result of “a

13 fundamental unfairness within the system [that] has undermined judicial integrity.”

14 Silva, 2008-NMSC-051, ¶ 13 (internal quotation marks and citation omitted).

15   {18}   “[T]he loss of the fundamental right to cross-examine is not necessarily

16 fundamental error.” Id. ¶ 15. In this case, the evidence presented supports

17 Defendant’s convictions even without consideration of Ward’s statements.

18 Defendant admitted shooting Victim during an argument. The admission of

19 Ward’s statements of the same in no way renders the jury’s determination of

20 Defendant’s guilt so questionable that our conscience is shocked. The fact that


                                              10
 1 Ward’s statements were cumulative of Defendant’s own confession also indicates

 2 an absence of a “fundamental unfairness” that would undermine the judicial

 3 integrity of Defendant’s trial. We hold that the error in admitting Ward’s

 4 statements in violation of Defendant’s Confrontation Clause rights was not

 5 fundamental and thus does not require reversal.

 6   {19}   Defendant argues that the failure of his trial counsel to object to the

 7 Confrontation Clause violation constitutes ineffective assistance of counsel. We

 8 apply a de novo standard of review to claims of ineffective assistance of counsel.

 9 Lytle v. Jordan, 2001-NMSC-016, ¶ 28, 130 N.M. 198, 22 P.3d 666. To establish

10 a prima facie case of ineffective assistance of counsel, Defendant bears the burden

11 of showing that his trial counsel committed error and that the error was prejudicial.

12 State v. Gonzales, 2007-NMSC-059, ¶ 14, 143 N.M. 25, 172 P.3d 162. “There is a

13 general presumption that trial counsel provided effective assistance.” Id. The

14 standard for determining whether trial counsel erred is whether “counsel’s

15 representation fell below an objective standard of reasonableness.” Lytle,

16 2001-NMSC-016, ¶ 26 (quoting Strickland v. Washington, 466 U.S. 668, 688

17 (1984)). If the claimed error can be justified as a trial tactic or strategy, the error is

18 not unreasonable. Id.

19   {20}   To meet his burden on the first prong, that his counsel committed error,

20 Defendant argues that “[a] reasonably competent attorney, familiar with applicable


                                               11
 1 law, would simply not have failed to at least preserve an objection to the use of

 2 statements [that were testimonial and had not been cross-examined] at trial.” We

 3 disagree. Defendant argued throughout the case that he shot Victim in self-

 4 defense, and Ward’s statement that an argument occurred between Defendant and

 5 Victim tends to support the theory that Defendant acted in self-defense. Therefore,

 6 the failure of Defendant’s trial counsel to object to the admission of Ward’s

 7 statements may be justified as a trial tactic to bolster Defendant’s self-defense

 8 argument. See State v. Allen, 2000-NMSC-002, ¶ 115, 128 N.M. 482, 994 P.2d

 9 728 (filed 1999) (“Failure to object to every instance of objectionable evidence [or

10 argument] does not render counsel ineffective; rather, failure to object falls within

11 the ambit of trial tactics.” (internal quotation marks and citation omitted)

12 (alteration in original)). Because we find that Defendant has not carried his burden

13 on the first prong of his ineffective assistance of counsel claim, we do not proceed

14 to the second. Defendant has not shown that he was without reasonably effective

15 assistance of counsel at trial, and thus his claim of ineffective assistance of counsel

16 fails.

17 C.       Sufficiency of the Evidence

18   {21}   For his third and final point of error in this appeal, Defendant argues that the

19 evidence was insufficient to support his convictions of first degree murder, armed

20 robbery, and evidence tampering. Defendant submits this argument pursuant to


                                               12
 1 State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and State v. Boyer, 103 N.M.

 2 655, 712 P.2d 1 (Ct. App. 1985).

 3   {22}   When we review whether the evidence presented at trial was sufficient for

 4 conviction, we look at “whether substantial evidence of either a direct or

 5 circumstantial nature exists to support a verdict of guilty beyond a reasonable

 6 doubt with respect to every element essential to a conviction.” State v. Sutphin,

 7 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We “view the evidence in the

 8 light most favorable to the [State], resolving all conflicts therein and indulging all

 9 permissible inferences therefrom in favor of the verdict.” Id. We do not weigh the

10 evidence or substitute our judgment for that of the jury; we reverse a verdict for

11 insufficient evidence only when no reasonable jury could find guilt beyond a

12 reasonable doubt based on the evidence, “of either a direct of circumstantial

13 nature[,]” presented. State v. Perea, 2008-NMCA-147, ¶ 5, 145 N.M. 123, 194

14 P.3d 738.

15   {23}   Defendant argues that the evidence does not support his first degree murder

16 conviction because “the evidence adduced at trial implicated [] Ward just as

17 heavily, if not more heavily, as the murderer” and “Defendant’s own statement

18 indicated that he acted in self-defense.” The jury was instructed on deliberate

19 intent first degree murder and felony murder in the alternative, with armed robbery

20 as the predicate felony, as well as self-defense; guilty verdicts were returned on


                                             13
 1 both counts. A conviction for deliberate intent first degree murder required the

 2 State to prove beyond a reasonable doubt that Defendant killed Victim; that

 3 Defendant had a deliberate intention to do so; and that Defendant was not acting in

 4 self-defense. NMSA 1978, Section 30-2-1 (1994); see also UJI 14-201 NMRA.

 5 The alternative charge of felony murder required the State to prove beyond a

 6 reasonable doubt that Defendant robbed Victim “under circumstances or in a

 7 manner dangerous to human life;” that Defendant caused Victim’s death during the

 8 robbery; that Defendant “intended to kill or knew that his acts created a strong

 9 probability of death or great bodily harm[;]” and that Defendant did not act in self-

10 defense. Section 30-2-1; UJI 14-202 NMRA.

11   {24}   Defendant confessed to shooting Victim in the course of an argument.

12 Defendant acknowledged that Victim was unarmed, but stated that Victim was

13 moving towards Defendant in a manner indicating the argument was about to

14 become physical, so Defendant withdrew a gun from his pocket and shot Victim

15 twice. The forensic expert testified that Victim, who was much taller than

16 Defendant, was shot from close range and in quick succession to the top of the

17 head and the shoulder, indicating that the assailant was holding the gun over

18 Victim. Because Victim was taller than Defendant, this evidence would permit the

19 jury to infer that Victim was sitting or otherwise positioned at a lower level than

20 Defendant, and thus not moving towards him. The multiple gunshots fired at close


                                             14
 1 range on an unarmed victim permitted the jury to conclude Defendant acted with

 2 deliberate intent in shooting Victim. Cf. State v. Sosa, 2000-NMSC-036, ¶¶ 12-13,

 3 129 N.M. 767, 14 P.3d 32 (discussing evidence sufficient for a conviction of

 4 deliberate intent first degree murder). Although Defendant argued that he acted in

 5 self-defense, the jury was free to reject this version of events based on the evidence

 6 presented. State v. Hunter, 2001-NMCA-078, ¶ 16, 131 N.M. 76, 33 P.3d 296.

 7 There was sufficient evidence for the jury to convict Defendant of deliberate intent

 8 first degree murder.

 9   {25}   To convict Defendant of armed robbery, the predicate felony for the felony

10 murder charge, the State was required to prove beyond a reasonable doubt that

11 Defendant took and carried away money from Victim; that Defendant was armed;

12 and that the money was taken by threatened force or violence. NMSA 1978, § 30-

13 16-2 (1973); see also UJI 14-1621 NMRA. Defendant admitted to having a gun

14 and shooting Victim. Evidence was presented through the testimony of multiple

15 witnesses that Defendant absconded the crime scene with money taken from

16 Victim’s body. We find that the evidence was sufficient for a reasonable jury to

17 convict Defendant of armed robbery and thus felony murder.

18   {26}   To convict Defendant of evidence tampering, the State was required to prove

19 beyond a reasonable doubt that Defendant hid or placed the firearm used in

20 Victim’s murder with another individual and that Defendant “intended to prevent


                                             15
 1 the apprehension, prosecution or conviction of himself[.]” UJI 14-2241 NMRA;

 2 see also NMRA 1978, § 30-22-5 (2003). Defendant admitted that he gave the

 3 murder weapon to a friend for disposal before leaving Albuquerque. He now

 4 argues, without citation, that his statement alone “is not sufficient to sustain a

 5 conviction for tampering with evidence as a matter of law.” We disagree. We

 6 have long said that “the testimony of a single witness may legally suffice as

 7 evidence upon which the jury may found a verdict of guilt.” State v. Hunter, 37

 8 N.M. 382, 384, 24 P.2d 251, 252 (1933). The jury had sufficient evidence to

 9 convict Defendant of evidence tampering.

10 IV.      Conclusion

11   {27}   Defendant’s convictions are affirmed.

12   {28}   IT IS SO ORDERED.



13                                          _________________________________
14                                          PATRICIO M. SERNA, Justice


15
16 WE CONCUR:


17 _________________________________
18 CHARLES W. DANIELS, Chief Justice




                                              16
1 _________________________________
2 PETRA JIMENEZ MAES, Justice


3 _________________________________
4 RICHARD C. BOSSON, Justice


5 _________________________________
6 EDWARD L. CHÁVEZ, Justice




                                 17
