 1   This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
 2   Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
 3   opinions.   Please also note that this electronic memorandum opinion may contain
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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                            NO. 35,038

10 VERONICA MARTINEZ,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Brett R. Loveless, District Judge

14 Hector H. Balderas, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Jorge A. Alvarado, Chief Appellate Defender
18 Becca Salwin, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 KENNEDY, Judge.
 1   {1}   Defendant appeals her conviction for attempted tampering with evidence. See

 2 NMSA 1978, § 30-22-5 (2003) (tampering with evidence); NMSA 1978, § 30-28-1

 3 (1963) (attempt to commit a felony). We issued a notice of proposed summary

 4 disposition, proposing to affirm. In response, Defendant has filed a timely

 5 memorandum in opposition, which we have duly considered. Unpersuaded, we affirm.

 6   {2}   Defendant continues to argue that she cannot be convicted of attempt to commit

 7 tampering with evidence of a probation violation, which occurred in the course of

 8 trying to obtain a clean urine test while on probation, when the underlying crime for

 9 which she was serving probation was a misdemeanor offense. Our notice proposed to

10 affirm, explaining that State v. Jackson, 2010-NMSC-032, 148 N.M. 452, 237 P.3d

11 754, was the pertinent authority. Jackson addressed a factually similar scenario in

12 which a defendant was charged with tampering with evidence for bringing a bottle of

13 urine into the probation office in order to obtain a clean urinalysis result while he was

14 serving a term of probation. Id. ¶ 3. After an examination of the history of the

15 tampering statute, our Supreme Court concluded that the defendant’s conduct in

16 Jackson was punishable because “the Legislature included the ‘indeterminate crime’

17 provision, Section 30-22-5(B)(4), to punish acts of tampering with evidence where no

18 underlying crime could be identified.” Jackson, 2010-NMSC-032, ¶ 21.




                                               2
 1   {3}   In response, Defendant attempts to distinguish Jackson from the present case

 2 by arguing that tampering with evidence of a probation violation was an indeterminate

 3 crime in Jackson only because the State failed to identify what crime the defendant

 4 was serving probation for, whereas the State knew what crime Defendant was serving

 5 probation for in the instant case. [MIO 3] Defendant’s argument is unavailing.

 6 Irrespective of an identifiable underlying crime, Jackson makes clear that “[t]he crime

 7 of tampering with evidence is complete the moment the accused commits the

 8 prohibited act with the requisite mental state, regardless of whether any subsequent

 9 police investigation does or even could materialize.” Id. ¶ 9.

10   {4}   To the extent Defendant argues that this creates an unfair result because it

11 would result in the same punishment for tampering with evidence of a probation

12 violation where the crime for which probation is being served is a misdemeanor as

13 opposed to a felony, [MIO 4] we are unpersuaded. In Jackson, our Supreme Court

14 articulated that “[t]ampering with evidence is uniquely offensive under the criminal

15 code because when one acts intentionally to destroy, change, hide, place or fabricate

16 physical evidence, that person seeks to deprive the criminal justice system of

17 information.” Id. ¶ 10. Accordingly, a person who tampers with evidence in the

18 context of a probation violation by attempting to provide a false urine sample violates

19 “the integrity of the criminal justice system,” id., and our Legislature has chosen to


                                              3
 1 punish that crime as a fourth-degree felony, irrespective of the underlying crime for

 2 which that person was serving probation. To the extent Defendant argues that “[n]ot

 3 all probations are created equal,” because “[f]elony probation carries a longer term

 4 and harsher penalty upon violation,” [MIO 4] we remain unpersuaded because

 5 tampering with evidence is a crime because it impacts the very administration.

 6 Tampering with evidence is a crime directed against the integrity of the criminal

 7 justice system itself that our Supreme Court called “uniquely offensive.” Jackson,

 8 2010-NMSC-032, 10. Because this is so, neither the nature and the underlying crime,

 9 nor the probation being served is relevant to our decision. Id. ¶ 10. A person who is

10 serving probation for a felony and violates that probation may face other more serious

11 consequences than a person who violates probation that is being served for a

12 misdemeanor.

13   {5}   Lastly, we note that Defendant’s memorandum in opposition does not point this

14 Court to any authority holding that, in the context of a probation violation, the

15 underlying offense in a tampering with evidence charge is the crime for which the

16 defendant was serving probation. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24,

17 124 N.M. 754, 955 P.2d 683 (reciting that “[o]ur courts have repeatedly held that, in

18 summary calendar cases, the burden is on the party opposing the proposed disposition

19 to clearly point out errors in fact or law”). Rather, the only case discussed by


                                             4
1 Defendant in the context of a probation violation is Jackson, which we have

2 distinguished in our notice and above. Accordingly, for the reasons stated above and

3 in our notice of proposed summary disposition, we affirm.

4   {6}   IT IS SO ORDERED.


5                                              _______________________________
6                                              RODERICK T. KENNEDY, Judge


7 WE CONCUR:



8 _________________________________
9 JONATHAN B. SUTIN, Judge



10 _________________________________
11 J. MILES HANISEE, Judge




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