                                                        I attest to the accuracy and
                                                         integrity of this document
                                                           New Mexico Compilation
                                                         Commission, Santa Fe, NM
                                                        '00'05- 15:28:03 2012.11.29
Certiorari Denied, March 8, 2012, No. 33,448

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-039

Filing Date: January 26, 2012

Docket No. 29,817

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

SHEILA BAHNEY,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
John W. Pope, District Judge

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

for Appellee

Jacqueline Cooper, Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

HANISEE, Judge.

{1}     Defendant Sheila Bahney appeals from six counts of criminal conviction that are the
result of her participation in the kidnapping, killing, and incineration of Barbara Lumsey, as
well as the attempted cover-up of those crimes. We reject the bulk of Defendant’s arguments
and affirm all but one of her convictions, the lone exception being conspiracy to commit
aggravated arson. Supported by recent New Mexico case law, we hold that Defendant’s

                                              1
separate conspiracy convictions, based on one overarching agreement, violate double
jeopardy. Based also on our precedent, we reject Defendant’s remaining double jeopardy
contentions and hold that the evidence presented at trial was sufficient to support the jury’s
verdict. We also determine that the trial court did not abuse its discretion by admitting
photographs which included images of Lumsey, her injuries, and the crime scene, and
conclude Defendant has failed to establish ineffective assistance of trial counsel. We
therefore affirm in part, reverse in part, and remand with instructions to vacate Defendant’s
conviction for conspiracy to commit aggravated arson and re-sentence accordingly.

I.     BACKGROUND

{2}      On November 4, 2005, at approximately 7:00 p.m., Barbara Lumsey was found dead
in the trunk of a still-burning vehicle adjacent to a public elementary school in Belen, New
Mexico. Forensic investigators determined that although she was severely beaten—her
hyoid bone and the thyroid structure in her throat having been fractured, and a molar
dislodged—it was the fire that caused her death. The circumstances of Lumsey’s homicide
are the subject of Defendant’s underlying convictions and this appeal.

{3}     The State’s evidence showed that at the time of the murder, Defendant lived in her
Belen mobile home with three other individuals: her husband, Tom Bahney; her five-year-
old grandson, Bobby; and her godson, Angel Esquibel. Esquibel’s girlfriend, Jessica
Cavasos, frequently stayed at the Bahney residence and was a participant in the crimes
against Lumsey. Also involved were Anthony Sanchez and Patricia Sipes, neighbors and
friends of Esquibel.

{4}     In the early morning hours of November 4, 2005, Defendant and her husband left for
work, leaving Esquibel to prepare Bobby for school and ensure that he boarded the school
bus at 7:30 a.m. Following Bobby’s departure for school, events leading to Lumsey’s death
began to rapidly unfold: (1) Lumsey drove her car to the Bahney residence and spoke with
Esquibel, (2) Esquibel viciously beat Lumsey after an argument, covering her head and
upper torso, his hands, and parts of the living room with blood, (3) Esquibel enlisted the
assistance of Cavasos and Sanchez following the initial assault and kept Lumsey quiet by
threatening her with a knife retrieved by Sanchez, (4) Esquibel force-fed Lumsey a handful
of prescription pills located by Cavasos within the Bahney residence, and (5) Esquibel
washed Lumsey’s blood from his body, dressed, and contacted Defendant, who said she
would be home “within five to ten minutes.”

{5}      Upon her return at 10:30 a.m., Defendant walked through the front door and
encountered a bloodied, beaten, and drugged Lumsey lying and moaning in the hallway, with
Esquibel, Cavasos, and Sanchez watching over her. Defendant and Esquibel had a brief,
private conversation, and Esquibel helped Defendant carry groceries into the mobile home.
Afterward, Defendant sat at a computer in the living room, within close proximity to
Lumsey, who was positioned in the hallway immediately adjacent to the living room.
Defendant remained seated and silent when Esquibel forced Lumsey to rise and walk into

                                              2
his bedroom, where he duct-taped her hands and tied her to his bed frame with rope.

{6}     Esquibel then telephoned Sanchez, who had returned to his own mobile home, and
instructed him to come back to the Bahney residence because Defendant wanted to speak
with him. When Sanchez returned, Defendant—who remained seated at the living room
desk playing computer games—“looked at [Sanchez] and kind of giggled and said, ‘You
don’t look too good.’” Sanchez replied, “No, this is bullshit. I don’t belong here.”
Defendant then asked Sanchez if he needed “to smoke a bowl.” Sanchez agreed and smoked
marijuana with Defendant before again returning to his home across the street.

{7}     Tom Bahney arrived home from work at 11:15 a.m. and also spoke privately with
Esquibel before entering the front door. Once inside, he sat on the living room couch
directly across from Defendant—who remained at the computer —and began to watch
television. Esquibel paced back and forth in the hallway between his bedroom where
Lumsey lay bound and tied and the living room where the Bahneys sat. He repeatedly
muttered “bitch” in Spanish, and expressed agitation regarding an impending civil court
hearing in Albuquerque that he was required to attend at 1:30 p.m. that day. At
approximately noon, Esquibel declared his intention to take Lumsey “to the state police
office and kill her there and turn himself in.” Defendant abruptly spoke in opposition to
Esquibel’s plan, saying “don’t do it, just go to court.” Esquibel agreed, acquired the car keys
from Tom Bahney, and he and Cavasos walked to the door to depart for court. On the way
out, Esquibel instructed the Bahneys to “watch [Lumsey]” and “make sure she [did not]
make any noise.” No conversation ensued, yet when Esquibel and Cavasos returned three
hours later the Bahneys remained posted at the house—Defendant at the computer and Tom
Bahney stationed in the hallway. Neither had notified the police and, consistent with
Esquibel’s wishes, Lumsey remained affixed to the bed, helpless and unassisted during
Esquibel’s lengthy absence.

{8}     Once home, Esquibel immediately checked on Lumsey and demanded that Cavasos
help her go to the bathroom. When Cavasos refused, Esquibel grabbed her by the throat and
asked her whether she wanted to end up like Lumsey. Cavasos broke loose from Esquibel’s
grip in the hallway and walked toward the living room, but Esquibel again grabbed her
violently, this time by the hair. Defendant and Tom Bahney quickly reacted in defense of
Cavasos, telling Esquibel, “Don’t do it.” Esquibel promptly released Cavasos, who tearfully
retreated to the living room sofa.

{9}     Shortly following her intervention on behalf of Cavasos, Defendant instructed
Esquibel in a demanding tone to “do something or figure something out because Bobby [is]
going to be home soon.” Esquibel quickly enlisted the aid of Patricia Sipes, who lived with
Sanchez across the street. Sipes followed Esquibel’s requests and “wiped . . . down”
Lumsey’s car, which had been parked outside the Bahney residence since her arrival that
morning. As well, Esquibel instructed Cavasos to help Sipes gather Lumsey’s effects and
bring them into the Bahney home.


                                              3
{10} At approximately 4:00 p.m., Bobby arrived home from school and the Bahneys met
him at the front door with toys and instructions to play outside. Even then, Lumsey
remained duct-taped and tied to Esquibel’s bed. Esquibel resumed pacing the hallway
between the bedroom and the living room, checking on Lumsey periodically, until he
announced to everyone in the living room, “I’m going to just torch the car.” Shortly
thereafter, Defendant stated that she was “going to take Bobby to Walmart.” Esquibel
instructed Cavasos to accompany Defendant and Bobby.

{11} Esquibel and Tom Bahney remained at the Bahney home with Lumsey, while the
two women and Bobby proceeded to Walmart. There, they walked around for nearly forty-
five minutes, including an extended stop to watch lobsters in the store tank, without placing
a single item in their shopping cart. At some point, Esquibel called Cavasos’s mobile phone
to request lighter fluid and asked to speak with Defendant. After Defendant’s short
conversation with Esquibel, she turned the cart and proceeded directly to the aisle containing
charcoal lighter fluid. Cavasos accompanied her, and the women acquired the last two
remaining bottles of lighter fluid in the store. They stopped briefly to get Bobby some food
for dinner before checking out at the register. Defendant paid for each item purchased,
including the lighter fluid. The trial record confirms that Defendant had no typical
household need for charcoal lighter fluid, as there existed only a propane-fueled barbeque
grill at the Bahney residence.

{12} Shortly after 6:00 p.m., Defendant, Cavasos, and Bobby arrived home. Defendant
placed a box containing both bottles of lighter fluid on the kitchen counter and told Esquibel,
“It’s in the box. It’s over there.” Thereafter, Defendant, joined by Bobby, retreated to a
bedroom separate from that occupied by Lumsey. By all accounts, Defendant had no further
contact with any of the other adults until after Lumsey’s car, with Lumsey imprisoned within
it, had been successfully set ablaze and abandoned.

{13} Esquibel, Cavasos, Sipes, and Tom Bahney undertook the process of removing
Lumsey from the house in order to depart the Bahney residence. Sipes positioned Lumsey’s
vehicle on the opposing side of a five-foot-tall fence immediately behind the mobile home.
Esquibel doused the car with the lighter fluid purchased and supplied by Defendant, and used
wire cutters retrieved by Cavasos to disable the release cable normally accessible within the
interior trunk. Esquibel and Tom Bahney led Lumsey outside—with her hands still
bound—before lifting and dropping her over the fence, head first, into her own open trunk.
Sipes then drove Lumsey’s lighter-fluid-soaked car, with Lumsey trapped in the trunk, to the
nearby elementary school located several miles from the Bahney residence. Esquibel and
Tom Bahney followed Lumsey’s vehicle in a separate car, while Cavasos remained at the
Bahney residence to clean away evidence of Lumsey’s beating. On the roadside adjacent
to the school, Lumsey’s car was lit on fire. The trio immediately returned to the Bahney
residence in the remaining vehicle, having been alarmed by a school custodian who observed
them, and who following their departure notified police. Lumsey’s vehicle burned, with her
imprisoned in the trunk, for nearly ten minutes before emergency services arrived. Due to
the volume of accelerant poured into and upon Lumsey’s vehicle, firefighters were unable

                                              4
to completely extinguish the flames for approximately twenty additional minutes. The fire
resulted in Lumsey’s death and the consumption of much of the vehicle’s interior, as well
as both rear tires.

{14} After the series of crimes against Lumsey was completed and she was dead, the
Bahney household directed their attention to the ongoing clean-up effort. Cavasos continued
to scrub Esquibel’s room where Lumsey had been tied to the bed, as well as the living room
wall, a chair, and a portion of flooring that was spattered with Lumsey’s blood. The next
day, Defendant washed the blood-stained living room blinds and reported her
accomplishment to Esquibel. In the ensuing days, the Bahney residence returned to
normalcy. Defendant transported Cavasos to and from work, and Defendant and Tom
Bahney even attended a concert at the Route 66 Casino the evening after Lumsey’s murder.
Shortly thereafter, all participants were identified by law enforcement and arrested.

{15} In district court, each case was independently resolved. Cavasos and Sanchez
pleaded guilty to lesser crimes and were called as witnesses by the State during Defendant’s
trial. Tom Bahney pleaded guilty to first-degree murder. Following the commencement of
his own trial, Esquibel entered into a plea agreement where he too pleaded guilty to first-
degree murder, as well as related crimes. Sipes and Defendant were tried separately and
each was convicted by a jury of second-degree murder, in addition to a handful of ancillary
charges, including for Defendant: kidnapping, aggravated arson, conspiracies to commit
each, and tampering with evidence. Defendant presents each of the following arguments on
appeal: (1) her convictions are unsupported by sufficient evidence, (2) the multitude of
convictions based on the same conduct violates double jeopardy, (3) the district court abused
its discretion in admitting photographs of Lumsey’s charred body and vehicle, and (4) her
trial counsel was ineffective by failing to inform her of her right to testify, failing to call an
alibi witness, and failing to object to certain testimony. We examine each claim in detail
below.

II.     DISCUSSION

A.      Double Jeopardy

{16} We begin our legal analysis by reviewing Defendant’s contentions that many of her
convictions violate the double jeopardy clauses of the United States and New Mexico
Constitutions. Double jeopardy affords a criminal defendant three layers of protection: (1)
“protects against a second prosecution for the same offense after acquittal”; (2) “protects
against a second prosecution for the same offense after conviction”; and (3) “protects against
multiple punishments for the same offense.” Swafford v. State, 112 N.M. 3, 7, 810 P.2d
1223, 1227 (1991). This appeal relates to the third level of protection identified by Swafford,
which has been further divided into two categories: “unit of prosecution” cases—“in which
a defendant has been charged with multiple violations of a single statute based on a single
course of conduct,” and “double-description” cases—“in which a defendant is charged with
violations of multiple statutes for a single conduct[.]” State v. DeGraff, 2006-NMSC-011,

                                                5
¶ 25, 139 N.M. 211, 131 P.3d 61. In this case, Defendant maintains that double jeopardy
bars (1) her conviction of two conspiracy counts based on facts that amount to a single
overarching agreement under our “unit of prosecution” analysis; and (2) her remaining five
convictions, with the exception of tampering with evidence, under our “double-description”
analysis. While our precedent within New Mexico case law defeats the latter contention, we
do agree that under these facts Defendant’s double jeopardy rights were violated by her
separate conspiracy convictions.

{17} Recently, the New Mexico Supreme Court addressed double jeopardy in the context
of multiple conspiracy convictions in a strikingly similar case, State v. Gallegos, 2011-
NMSC-027, 149 N.M. 704, 254 P.3d 655. In Gallegos, the Court applied our “unit of
prosecution” analysis to the crime of conspiracy. Id. ¶¶ 31, 50 (describing our “unit of
prosecution” analysis as asking first whether “the statutory language spells out the unit of
prosecution,” and second, if no legislative guidance is apparent, determining whether a
defendant’s acts are separated by sufficient “indicia of distinctness” to justify multiple
punishments under the same statute (internal quotation marks and citation omitted)). Based
on its detailed analysis of NMSA 1978, Section 30-28-2 (1979) (Conspiracy), the Court
determined that “the Legislature established what we will call a rebuttable presumption that
multiple crimes are the object of only one, overarching, conspiratorial agreement subject to
one, severe punishment set at the highest crime conspired to be committed.” Gallegos,
2011-NMSC-027, ¶ 55. The Court adopted “[t]he totality of the circumstances test utilized
by the federal circuits” in announcing the nature of evidence required to overcome the
presumption. The test asks whether:

        (a) the [location] of the two alleged conspiracies is the same; (b) there is a
        significant degree of temporal overlap between the two conspiracies charged;
        (c) there is an overlap of personnel between the two conspiracies (including
        unindicted as well as indicted co-conspirators); and (d) the overt acts charged
        and the role played by the defendant . . . [in the alleged conspiracies are]
        similar.

Id. ¶¶ 56, 42 (alterations in original).

{18} Applying the framework adopted in Gallegos to Defendant’s convictions for
conspiracy to commit kidnapping and aggravated arson, we hold that Defendant “entered
into only one agreement and took part in only one conspiracy.” Id. ¶¶ 57, 62 (holding that
conspiracies of first-degree murder, kidnapping, and aggravated arson must merge in light
of the fact that “the conspiracy to commit kidnapping should be understood as one aspect of
a larger continuous combination that eventually embraced murder as its central objective”).
As in Gallegos, the conspiracies of which Defendant was convicted involved a single victim
and each embraced a collective intent by co-conspirators to inflict an interrelated series of
harms upon her. See NMSA 1978, § 30-4-1 (2003) (stating that conspiracy to commit
kidnapping requires a finding that Defendant intended to hold Lumsey “against [her] will
[and] to inflict death [or] physical injury.”); see also NMSA 1978, § 30-17-6 (1963) (stating

                                              6
that conspiracy to commit aggravated arson requires a finding that Defendant “willful[ly]
or malicious[ly] . . . set[] fire to . . . [Lumsey’s] vehicle . . . causing [Lumsey] great bodily
harm”). Both conspiracies served to inflict personal injury on Lumsey and eliminate her
ability to freely depart her surroundings. Additionally, the series of events occurred over a
relatively short time frame, and the same individuals participated in and were implicated by
both charged conspiracies.

{19} We therefore agree with Defendant that she and her co-conspirators formed one
overarching agreement, rather than two distinct agreements separated by time and space.
Furthermore, even were we to credit her “argument that [she] was unaware of the plot to
[commit arson and] murder while taking part in the initial kidnapping, it does not follow that
Defendant entered a new combination when [she] later joined [her] confederates in their
efforts” to commit additional offenses. Gallegos, 2011-NMSC-027, ¶ 62.

{20} Defendant’s second double jeopardy argument, which challenges five counts of
conviction based on our aforementioned double description analysis, has already been
defeated in State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075. In Carrasco,
a getaway driver was convicted of five separate offenses: conspiracy to commit robbery and
accessory to attempted robbery, aggravated battery, aggravated assault, and false
imprisonment. Id. ¶ 1. The getaway driver’s only obvious role within the trial record was
drinking with his co-conspirators earlier in the evening and later driving them away from a
convenience store directly following a robbery attempt. Id. ¶¶ 3-4. Thus, he was not
physically present during the commission of any offenses committed within the convenience
store. The Court applied Swafford, in the requisite two-part query: (1) “whether the conduct
underlying the offenses is unitary,” and (2) “whether the Legislature intended to impose
multiple punishments for the unitary conduct.” Carrasco, 1997-NMSC-047, ¶ 22. “Only
if the first part of the test is answered in the affirmative, and the second in the negative, will
the double jeopardy clause prohibit multiple punishment in the same trial.” Swafford, 112
N.M. at 13, 810 P.2d at 1233.

{21} Assuming without concluding that the collective criminal conduct of Defendant and
her co-conspirators was unitary under the first prong of the Carrasco test, we elect to address
the latter, Legislative-intent prong. We note that although we follow the Carrasco approach
here and presume unitary conduct under the first prong, our case law separately makes it
clear that analysis pursuant to either prong can be dispositive of a Swafford-governed double
jeopardy challenge. See, e.g., State v. Urioste, 2011-NMCA-121, ¶¶ 16-29, 267 P.3d 820,
cert. quashed, 2012-NMCERT-008, ___ P.3d ___ (No. 33,287, August 17, 2012) (rejecting
double jeopardy challenge to convictions of voluntary manslaughter, kidnapping, and
aggravated battery based upon the conclusion that the underlying conduct was not unitary).
Accordingly, we must ascertain whether the underlying crimes “require[] proof of at least
one element that the other does not.” Carrasco, 1997-NMSC-047, ¶ 28 (internal quotation
marks and citation omitted). Where elements are distinct within the crimes being compared,
“a presumption exists that the Legislature intended to separately punish the . . . offenses.”
Id. ¶¶ 23, 28.

                                                7
{22} We conclude that second-degree murder, kidnapping, and aggravated arson each
requires a unique element the others do not. Thus, guided by Carrasco, we too conclude that
“[the d]efendant has not brought forth indicia of legislative intent to overcome the
presumption that the Legislature intended to punish” second-degree murder, aggravated
arson, and kidnapping separately. Id. ¶ 29.

{23} Defendant’s contention that her conspiracy convictions should merge with the
substantive crimes that underlie them similarly fails. This is so whether she was convicted
as an accessory or as a principal. “The crimes of conspiracy and accessory to a crime are
separate offenses based on separate acts for which the Legislature has intended multiple
punishments.” Id. ¶ 36; see State v. Armijo, 90 N.M. 12, 15, 558 P.2d 1151, 1154 (Ct. App.
1976) (“[C]onspiracy and the completed offenses are separate offenses and conviction of
both does not amount to double jeopardy.”).

{24} In sum, while we find no merit in Defendant’s second double jeopardy claim, we
must reverse as to her conviction for conspiracy to commit aggravated arson. “[T]he
appropriate remedy is to vacate . . . [the] redundant [conspiracy conviction] with punishment
imposed on the single remaining conspiracy at the level of the ‘highest crime conspired to
be committed,’ [which in this circumstance] is a conspiracy to commit” kidnapping.
Gallegos, 2011-NMSC-027, ¶ 64 (internal quotation marks and citation omitted); compare
§ 30-4-1(B) (“[C]ommit[ing] kidnapping [that results in physical injury] is . . . a first degree
felony.”), with § 30-17-6 (“[C]ommit[ing] aggravated arson is . . . a second degree felony.”);
see also NMSA 1978, § 30-28-1 (1963) (punishing conspiracy to commit first-degree
felonies as second-degree felonies and conspiracy to commit second-degree felonies as third-
degree felonies). Accordingly, we remand to the district court to vacate Defendant’s
conviction for conspiracy to commit aggravated arson and adjust Defendant’s sentence in
a manner consistent with this Opinion.

B.      Sufficiency of the Evidence

{25} Defendant next maintains that there is insufficient evidence to support any of the six
counts of which she was convicted. As to each such claim, our review of the trial record
must defer to “the jury’s fundamental role as factfinder” yet satisfy our autonomous
responsibility “to ensure that . . . jury decisions are supportable by evidence in the record,
rather than mere guess or conjecture.” State v. Flores, 2010-NMSC-002, ¶ 2, 147 N.M. 542,
226 P.3d 641. We “view the evidence in the light most favorable” to the jury’s guilty
verdicts, which must be based upon proof “beyond a reasonable doubt with respect to every
element essential” to the convictions. State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94,
140 P.3d 515 (internal quotation marks and citation omitted); see State v. Garcia, 114 N.M.
269, 274, 837 P.2d 862, 867 (1992) (forbidding the substitution of appellate judgment for
that of a jury).

{26}   We divide the six crimes of conviction into categories of review for ease of analysis:

                                               8
(1) accessory liability, (2) conspiracy, and (3) principal liability. The verdict sheets returned
by the jury did not specify whether its determinations of Defendant’s guilt for second-degree
murder, aggravated arson, and kidnapping were based on principal or accessory liability,
though both theories were presented to the jury. Because we need only find sufficient
evidence under one of the theories presented to uphold Defendant’s convictions, we choose
to address each of the three crimes under the State’s theory of accessory liability. See State
v. Salazar, 1997-NMSC-044, ¶ 43, 123 N.M. 778, 945 P.2d 996 (“[D]ue process does not
require a general verdict of guilt to be set aside so long as one of the two alternative bases
for conviction is supported by sufficient evidence.”). We separately address the sufficiency
of Defendant’s remaining conviction for conspiracy and her conviction for tampering with
evidence as a principal.

1.      Accessory Liability Convictions

{27} In New Mexico, a person may be “convicted of [a] crime as an accessory if he
procures, counsels, aids or abets in its commission[,] although he did not directly commit the
crime.” NMSA 1978, § 30-1-13 (1972). Likewise, “[a] person who aids or abets in the
commission of a crime is equally culpable” and faces “the same punishment as a principal.”
Carrasco, 1997-NMSC-047, ¶ 6. Under New Mexico’s Uniform Jury Instructions, a
defendant may be found guilty of a substantive offense as an accessory, if the jury finds
beyond a reasonable doubt that:

        1.      Defendant intended that the crime be committed;
        2.      The crime was committed;
        3.      Defendant helped, encouraged or caused the crime to be committed.

UJI 14-2822 NMRA.

{28} Unlike other states that employ the “natural and probable consequences” test for
accessory liability, see, e.g., People v. Beeman, 674 P.2d 1318, 1326 (Cal. 1984) (in bank)
(stating that accomplice liability extends to the natural and reasonable consequences of the
acts that the accessory knowingly and intentionally aids and encourages), New Mexico law
requires that a jury “find a community of purpose for each crime of the principal.”
Carrasco, 1997-NMSC-047, ¶ 9. In other words, “a jury must find that a defendant intended
that the acts necessary for each crime be committed.” Id.

{29} Under our approach to accessory liability, Defendant elects to challenge the
sufficiency of only some of the elements essential to her convictions for second-degree
murder and aggravated arson, conceding the others. As to each offense, she challenges the
initial element—that she intended those crimes to be committed. She agrees with the jury
that the crimes were in fact committed, and even that her actions “helped, encouraged or
caused” their commission. Regarding the crime of kidnapping, Defendant asserts that both
the elements of intent and that she acted to help, encourage, or cause the crime’s occurrence
are unmet.

                                               9
{30} Defendant’s challenge to the evidence that underpins the jury’s determination of her
guilt for second-degree murder and aggravated arson rests on three specific assertions of
insufficiency: (1) no evidence was presented that Defendant was aware the lighter fluid
would be used to kill Lumsey or burn her car, (2) the evidence presented merely proved
Defendant knew Lumsey was being held by Esquibel, not that her life was at stake, and (3)
although Defendant heard Esquibel say he was going to “torch the car,” she was not an
active participant to the conversation and was later “sealed off” from the actual killing of
Lumsey. We disagree with Defendant’s arguments and hold that the evidence was sufficient
to establish the requisite mentes reae of second-degree murder and aggravated arson.

{31} Notably, there is no legal requirement within our jurisprudence that an accessory
know in advance the exact method by which a crime is to be carried out, or even that the
accessory be physically present when the crime is committed. Again, Carrasco is
instructive. There, despite evidence that the defendant remained in the getaway car from
which he was unable to observe his criminal companions attack the lone clerk on duty at
Allsup’s convenience store, our New Mexico Supreme Court upheld his convictions as an
accessory to each of the crimes—false imprisonment, assault, and aggravated battery.
Carrasco, 1997-NMSC-047, ¶ 19. Based on evidence that the defendant had been “cruising
and drinking” with his companions earlier that evening, had personal knowledge of Allsup’s
shifts and hours having himself worked at an Allsup’s for nearly six months, and finally that
he drove his fleeing companions quickly from the store following the attempted robbery, the
Court held “a rational jury could have inferred . . . that [the d]efendant intended the false
imprisonment, assault with intent to commit a violent felony, and aggravated battery on the
store clerk be committed to accomplish the robbery.” Id. ¶¶ 12, 14.

{32} Likewise here, a rational jury could infer that Defendant intended both the burning
of Lumsey’s car and her death, based upon Defendant’s personal communication with
Esquibel and its consistency with her actions. Those communications, which occurred
throughout the day, demonstrated the existence of a joint criminal enterprise. And
Defendant’s presence during Esquibel’s verbal brainstorming, during which he considered
both murdering Lumsey and torching her car, placed Defendant on notice of the potential
ends of that enterprise. Finally, individual actions that supported the jury’s verdict include:
(1) Defendant’s calloused response and provision of marijuana as a gesture meant to soothe
Sanchez’s discomfort at being recruited by Esquibel as an assistant following the beating of
Lumsey, (2) her lack of intervention on Lumsey’s behalf when contrasted with her quick
defense of Cavasos against Esquibel’s briefly redirected violence, (3) her and her husband’s
de-facto compliance with Esquibel’s request to ensure Lumsey did not escape or make noise
during his three-hour absence, (4) her demand that Esquibel “figure something out” before
Bobby returned from school, followed by her absence of spoken objection to Esquibel’s idea
of “torch[ing] the car” when contrasted with her vocal and successful protests of his previous
idea to kill Lumsey at the state police office and turn himself in, (5) her retreat with Bobby
to a separate bedroom while others led Lumsey out of the house to her death, and most
tellingly, (6) the physical purchase and provision of charcoal lighter fluid for Esquibel. Of
the many tangible activities undertaken by Defendant in furtherance of the crimes against

                                              10
Lumsey, it is this latter action which singularly appended a match tip to the bare stick that
was Esquibel’s idea to burn Lumsey’s car, a plan that provided no unrelated fate for Lumsey
herself.

{33} Based on the evidence listed above, it is within the purview of a rational jury to have
concluded Defendant acted in concert with Esquibel and played a supporting role in the
murder and arson. We disagree with Defendant’s assertions that there is no direct evidence
of her own intention to kill or cause great bodily injury to Lumsey, or to burn her car.
Indeed, it is inadequate to conclude that her actions merely enabled the homicide when in
fact she provided the one missing ingredient needed to transform an object designed by
automotive engineers to be incombustible into a mobile pyre. Even absent such an
extraordinarily inculpatory fact, however, the “[c]ircumstantial evidence alone can amount
to substantial evidence.” Flores, 2010-NMSC-002, ¶ 19; see Duran, 2006-NMSC-035, ¶¶
7-8 (“Intent is subjective and is almost always inferred from other facts in the case[.]”
(internal quotation marks and citation omitted)). Further, the jury was aware that the Bahney
household had no need for charcoal lighter fluid from the standpoint of outdoor food
preparation, based upon the presence of only a propane grill at the residence. We conclude
that facts within the trial record are sufficient to convict Defendant of each of the elements
of second-degree murder and aggravated arson, as an accessory, beyond a reasonable doubt.

{34} Defendant similarly challenges the sufficiency of the evidence supporting her
kidnapping conviction. She argues that there was inadequate proof of her intent to kidnap
Lumsey, and that she helped, encouraged or caused the kidnapping. Defendant insists that
the record is devoid of indicia that she agreed to watch Lumsey while Esquibel went to court
and asserts that the kidnapping had already been perpetrated by Esquibel before Defendant
arrived home. She also maintains her fear of Esquibel wholly dictated her actions during the
entire Lumsey episode. Again, we are unpersuaded.

{35} In reviewing the sufficiency of the evidence, an appellate court “does not evaluate
the evidence to determine whether some hypothesis could be designed which is consistent
with a finding of innocence.” State v. Sutphin, 107 N.M. 126, 130-31, 753 P.2d 1314, 1318-
19 (1988). Rather “we must view 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. Here again, there was substantial evidence presented for the jury to infer that following
Defendant’s arrival home, she became an important participant in the ongoing forcible
restraint of Lumsey. She not only sat idly at the computer while Lumsey remained
constrained in the bedroom, she and her husband did nothing to free Lumsey and instead
continued Lumsey’s imprisonment for a three-hour period after Esquibel requested they do
so. It is well settled in New Mexico that kidnapping is a continuing crime, and it is
immaterial that Esquibel had already initiated the kidnapping before Defendant arrived. See
State v. Hutchinson, 99 N.M. 616, 624, 661 P.2d 1315, 1323 (1983) (“Kidnapping which
involves the detention of another[] is a continuous offense.”). Finally, Defendant herself
confirmed to police detectives that at no time was Lumsey free to leave, even during the

                                             11
three-hour period in which she and Tom Bahney were alone with Lumsey. Based on the trial
record of facts and the reasonable inferences that can be derived from them by a considered
jury, a finding that Defendant shared Esquibel’s intent that Lumsey’s kidnapping continue
unabated, and that she “helped, encouraged or caused” its continuance by her own activities
over a period of many hours, is demonstrably supported by sufficient evidence.

2.     Conspiracy Convictions

{36} As discussed previously, Defendant’s conviction on conspiracy to commit aggravated
arson is vacated on double jeopardy grounds. Thus, we need only review the sufficiency of
the evidence for conspiracy to commit kidnapping. Once more, Defendant primarily
contends that because the State’s evidence did not prove she was present when Lumsey was
initially beaten and because there was no direct communicated acceptance to Esquibel’s
command to watch and listen to Lumsey while he was absent, her conviction for conspiracy
to commit kidnapping is legally deficient.

{37} We disagree with Defendant’s characterization of our law. In the context of
conspiracy liability, New Mexico has long held it unnecessary “to prove [the existence of]
a formal agreement to accomplish the illegal act.” State v. Deaton, 74 N.M. 87, 89-90, 390
P.2d 966, 967-68 (1964); see also Territory v. Leslie, 15 N.M. 240, 245, 106 P. 378, 379
(1910). In fact, the crime of conspiracy is rarely proven by direct evidence. Deaton, 74
N.M. at 90, 390 P.2d at 968 (“[A]greement is generally a matter of inference deduced from
the facts and circumstances, and from the acts of the person accused done in pursuance of
an apparent criminal purpose.”). When Defendant arrived home, it was apparent that
Lumsey was being held against her will and had been severely beaten. For many of the same
reasons a jury could properly find Defendant guilty of the substantive crime of kidnapping,
it could as well reasonably infer that Defendant agreed, together with Esquibel, Tom
Bahney, and others with whom the kidnapping was perpetrated, to collectively foreclose any
possibility that Lumsey’s freedom would be regained.

{38} The body of interaction by the team of participants to the crimes against
Lumsey—each perpetrated while Lumsey was in some manner restrained—invited the jury’s
reasonable inference that Defendant not only joined the conspiracy, but that when expressly
called upon to do so by her co-conspirator, she assumed responsibility for the ongoing
kidnapping. The evidence presented of a shared agreement to commit and perpetuate the
crime of kidnapping meets the substantial evidence test required by our jurisprudence.

3.     Principal Liability Conviction—Tampering with Evidence

{39} As a final sufficiency point of appeal, Defendant challenges the trial record’s support
of the jury’s conclusion that she tampered with evidence. She maintains the State failed to
prove both that she intended to prevent her own apprehension, prosecution, or conviction
when she washed blood spatter from her living room blinds the day following the Lumsey
homicide, and that she was not “acting under threats and a reasonable fear of her safety” at

                                            12
the time. As discussed above, there was sufficient evidence for the jury to conclude that
Defendant joined a criminal enterprise united in purpose as to each of the crimes that led to
the death of Lumsey. The previous day’s events in furtherance of that enterprise provide
decisive context to Defendant’s effort to later clean the deceased victim’s blood from the
blinds. That final action, we conclude, was wholly enmeshed with the prior undertakings
of Defendant and her co-conspirators. Each concerted criminal activity served to build the
evidentiary inference that when Defendant was wiping away human blood she was
concerned with more than the cleanliness of her home. The jury was well within its fact-
finding prerogative to conclude that Defendant’s removal of blood evidence that would
undoubtedly have been usable by the State against her was intended to prevent her own
apprehension, prosecution, and conviction.

{40} Finally, the jury was presented with substantial evidence showing that Defendant’s
actions were not dictated by her fear of Esquibel, a conclusion we cannot second guess. See
UJI 14-5130 NMRA (“[When e]vidence has been presented that the defendant was forced
to [commit the crime] under threat[s], . . . [t]he burden is on the state to prove beyond a
reasonable doubt that the defendant did not act under such reasonable fear.”). Her contrary
contention is primarily repudiated by her failure to extract herself from the criminal events
when twice having opportunities to do so, first during Esquibel’s lengthy absence and then
during her trip to Walmart. Further repudiating her claim that she too feared physical harm
at the hand of Esquibel are her ably asserted demands that he abandon his plan to turn
himself over to state police, cease separately battering Cavasos, and resolve the obvious
incongruence between the immediate presence of a captive and the pending arrival of a child.
Finally, her professed fear of Esquibel is poorly demonstrated by her placation of Sanchez’s
discomfort and her later voluntary provision of far more than just double the volume of
lighter fluid required for normal use. We conclude that the trial record of Defendant’s
statements and actions belies the notion that she was subservient as a product of self-
preservation.

C.     The Trial Court Did Not Abuse Its Discretion by Admitting the Crime Scene
       Photographs

{41} At trial, Defendant objected to the admission of over forty of the State’s photographs
taken during the crime scene investigation. The defense stipulated to the admissibility of
merely two photographs in the set: one of Lumsey’s charred body lying in the trunk of the
burned car with police investigators standing by, and the other of Lumsey’s body lying on
a sheet after being removed from the car. The district court considered each of the
challenged photographs in light of Rule 11-403 NMRA, and excluded the three for which
it felt “the prejudice outweigh[ed] any possible probative value.” Thus, forty of the initial
forty-five photographs were admitted into evidence over Defendant’s objections.

{42} We review a trial court’s determination that items of evidence are admissible for
abuse of discretion, Flores, 2010-NMSC-002, ¶ 25, which “occurs when the ruling is clearly
against the logic and effect of the facts and circumstances of the case.” State v. Simonson,

                                             13
100 N.M. 297, 301, 669 P.2d 1092, 1096 (1983). “[R]elevant[] evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice[.]” Rule
11-403. Nevertheless, “[t]he trial court ought to exclude photographs which are calculated
to arouse the prejudices and passions of the jury and which are not reasonably relevant to the
issues of the case.” State v. Boeglin, 105 N.M. 247, 253, 731 P.2d 943, 949 (1987).

{43} Graphic photographs of the injuries suffered by deceased victims of crime are by
their nature significantly prejudicial, but that fact alone does not establish that they are
impermissibly so. District courts are afforded “great discretion in balancing the prejudicial
impact of [evidence] against its probative value.” State v. Garcia, 2005-NMCA-042, ¶ 50,
137 N.M. 315, 110 P.3d 531 (internal quotation marks and citation omitted). Indeed,
photographs may be admitted for proper purposes, “even if they are gruesome.” Id. Such
purposes include depicting the nature of an injury, clarifying and illustrating testimony, and
explaining the basis of a forensic pathologist’s expert opinion. Id. “Photographs are the
pictured expressions of data observed by a witness. They are often more accurate than any
description by words, and give a clearer comprehension of the physical facts than can be
obtained from the testimony of witnesses.” State v. Pettigrew, 116 N.M. 135, 139, 860 P.2d
777, 781 (Ct. App. 1993) (internal quotation marks and citation omitted).

{44} Of the forty photographs challenged by Defendant, six showed Lumsey’s body after
being burned to death. The six were close-ups of her body and head, which collectively
showed that the fire had burned the left side of her body to the point of charring, but had
spared some of her right side. The pictures were a graphic depiction of the results of the
arson and murder with which Defendant was charged, and thereby relevant to the elemental
requirement that the State show the crimes contained within the indictment were in fact
undertaken and completed.

{45} The remainder depicted the burning car, fire damage to its interior and exterior,
firefighters as they extinguished the flames, and the location where the vehicle was burned.
All were relevant, in that each made the existence of essential elements of the crimes of
murder and arson more probable within the burden of proof assigned to the State. None
were more prejudicial than probative—they simply showed the scene as it was investigated,
with no undue emphasis on the burned body or anything that would unfairly prejudice
Defendant. We cannot say the admission of illustratively neutral photographs defied logic
to a degree necessary to conclude that the trial court abused its discretion in its
determinations of admissibility.

{46} As to each image, the record is clear that the district court weighed the probative and
prejudicial impact outside the jury’s presence and excluded the three that it felt were
excessively prejudicial. Based on the trial court’s consideration of Defendant’s arguments
and analysis of the photographs, we see nothing to indicate that it did not employ its
discretion appropriately. Nor can we conclude that even if there was error, it was not
harmless in nature. Pettigrew, 116 N.M. at 139, 860 P.2d at 781 (“[W]e are unaware of any
case that has reversed a conviction due to allegedly inflammatory photographs.”).

                                             14
{47} In fact, we see nothing to distinguish this case from the many cases in which district
courts from around the State have properly used their discretion to admit graphic
photographs of victims. See, e.g., State v. Saiz, 2008-NMSC-048, ¶ 54, 144 N.M. 663, 191
P.3d 521 (holding that the district court did not abuse its discretion by admitting five
gruesome photographs of the victim’s decomposed body, when those photographs aided the
pathologist’s testimony), abrogated on other grounds by State v. Belanger, 2009-NMSC-
025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d 783; State v. Mora, 1997-NMSC-060, ¶¶ 54-55, 124
N.M. 346, 950 P.2d 789 (upholding the admission of multiple autopsy photos of child victim
on grounds that they were illustrative), abrogated on other grounds by State v. Frazier,
2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 P.3d 1; State v. Perea, 2001-NMCA-002, ¶ 22,
130 N.M. 46, 16 P.3d 1105 (holding that a potentially inflammatory photograph of a victim’s
slashed face was relevant and that its admission was within the discretion of the district
court), aff’d in part, vacated in part, 2001-NMSC-026, 130 N.M. 732, 31 P.3d 1006;
Boeglin, 105 N.M. at 253, 731 P.2d at 949 (holding that the admission of a close-up
photograph depicting gruesome neck wounds suffered by the victim was proper to “illustrate,
clarify, and corroborate the testimony of witnesses”); Pettigrew, 116 N.M. at 139, 860 P.2d
at 781 (holding that photos of battered victim were relevant to depict the extent of the
victim’s injuries and to illustrate a physician’s testimony, and their admission was not an
abuse of discretion); State v. Blakley, 90 N.M. 744, 748, 568 P.2d 270, 274 (Ct. App. 1977)
(holding that admission of photograph of the victim’s body was proper because it
“illustrated, clarified, and corroborated the testimony of various witnesses”). We will not
disturb the trial court’s judgment on these facts.

D.      There is No Prima Facie Evidence of Ineffective Assistance of Counsel

{48} Defendant last argues she received ineffective assistance of counsel based on three
purported inactions by her trial attorney: (1) failure to locate a known alibi witness, (2)
failure to inform Defendant of her right to testify, and (3) failure to object to second-hand
statements originating from Esquibel. We review claims of ineffective assistance of counsel
de novo. Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993). In order
to establish a prima facie case of ineffective assistance of counsel on direct appeal, a
defendant must demonstrate that: (1) counsel’s performance fell below that of a reasonably
competent attorney; (2) no plausible, rational strategy or tactic explains counsel’s conduct;
and (3) counsel’s apparent failings were prejudicial to the defense. See State v. Herrera,
2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22. As Defendant acknowledges, “[a] record
on appeal that provides a basis for remanding to the [district] court for an evidentiary hearing
on ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition for
writ of habeas corpus.” State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776.

{49} Defendant’s first two claims of ineffective assistance concern matters not in the
appellate record. Defendant argues that she identified an alibi witness to defense counsel,
but he failed to locate the witness during trial. She also argues that defense counsel did not
inform her of her right to testify and effectively prevented her from testifying in her own
defense. We have no basis to be aware of the occurrence or nonoccurrence of these

                                              15
conversations other than Defendant’s assertions on appeal. While we are willing to review
matters of record for prima facie evidence of ineffective assistance of counsel, we will not
afford the same benefit to arguments based on matters outside the trial record. State v.
Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (holding that without a record,
we cannot consider claims of ineffective assistance of counsel on direct appeal). Such
claims are best reserved for habeas corpus, in which a subject-specific record can be
developed before the trial court. State v. Stenz, 109 N.M. 536, 538-39, 787 P.2d 455, 457-58
(Ct. App. 1990) (“[Habeas corpus] provides a method for the defendant to present in a post-
conviction proceeding a record establishing ineffective assistance of counsel . . . .”).

{50} Defendant’s final claim of ineffective assistance is reviewable based upon the trial
record, but we disagree that it establishes a prima facie claim. Defendant argues that counsel
was deficient in failing to object to Cavasos’s testimony when she recounted statements
made by Esquibel to Defendant. Cavasos testified that Esquibel requested Defendant and
Tom Bahney watch and ensure the silence of Lumsey while he was gone, and separately
stated in Defendant’s presence that he was “just going to torch the car.” We disagree that
the statements were inadmissible hearsay and that her right of confrontation was violated by
their admission.

{51} Regarding Esquibel’s request that Defendant and Tom Bahney watch Lumsey and
ensure her ongoing silence while Esquibel attended his court hearing, we hold that the
statement was not offered at trial to prove the truth of the matter asserted, and therefore is
not hearsay at all. See Rule 11-801(C) NMRA (“‘Hearsay’ is a statement, other than one
made by the declarant while testifying at trial or hearing, offered in evidence to prove the
truth of the matter asserted.” (emphasis added)). Here, the challenged statements are best
described as directions or commands, rather than assertions from which truth or falsity can
be discerned. They are thus not hearsay. See State v. Toney, 2002-NMSC-003, ¶ 3, 131
N.M. 558, 40 P.3d 1002 (holding that an out-of-court statement was not hearsay where the
statement “was a directive or a command and was offered not for its truth but for the fact that
it was made.”).

{52} Similarly, Esquibel’s assertion that he was “just going to torch the car,” was not
offered to prove the veracity of Esquibel’s intent to commit arson, but to demonstrate
Defendant’s knowledge that Esquibel contemplated burning Lumsey’s car. Esquibel’s
statement, which communicated his then-existing state of mind, was offered by the State to
establish Defendant’s motive when she later purchased lighter fluid for him. “Evidence is
not hearsay if admitted as circumstantial evidence of the motive of the listener.” State v.
Rosales, 2004-NMSC-022, ¶ 17, 136 N.M. 25, 94 P.3d 768 (citing 2 Kenneth S. Broun et
al., McCormick on Evidence § 249, at 102 & n.12 (John W. Strong ed., 5th ed. 1999)).
Furthermore, even if we could characterize Esquibel’s out-of-court statements as meeting
the definition of hearsay under Rule 11-801(C) , they would fall under the category of
utterances identified as “statements which are not hearsay,” under Rule 11-801(D)(2)(e)
(including “statement[s] by a co-conspirator of a party during the course and in furtherance
of the conspiracy”). State v. Farris, 81 N.M. 589, 590, 470 P.2d 561, 562 (Ct. App. 1970)

                                              16
(“[T]he acts and declarations of one conspirator during the existence of a conspiracy are
competent evidence against his co-conspirators.” (internal quotation marks and citation
omitted)); see State v. Zinn, 106 N.M. 544, 552, 746 P.2d 650, 658 (1987) (“[T]here is no
requirement under the Confrontation Clause for the prosecution to show that a nontestifying
co-conspirator is unavailable to testify when his out-of-court statement is offered into
evidence against the defendant/co-conspirator.”). Defendant’s claim of ineffective assistance
thus fails because “trial counsel is not incompetent for failing to make a motion when the
record does not support the motion.” Stenz, 109 N.M. at 538, 787 P.2d at 457.

{53} Our conclusion that Defendant has failed to meet her burden of demonstrating a
prima facie case of ineffective assistance of counsel in no way impairs Defendant’s ability
to later bring such a claim in a habeas proceeding if she considers there to be a factual basis
for such a motion. See Saiz, 2008-NMSC-048, ¶ 65, (noting that a defendant “may pursue
habeas corpus proceedings on [the ineffective assistance of counsel] issue . . . if he is ever
able to provide evidence to support his claims”).

III.   CONCLUSION

{54}    In summary, we affirm all but one of Defendant’s convictions, striking only her
conviction for conspiracy to commit aggravated arson. We reject Defendant’s remaining
challenges regarding the sufficiency of the evidence, the trial court’s admission of crime
scene photographs, and the effectiveness of her trial counsel. Therefore, we remand this case
to the district court to vacate the identified conviction and re-sentence Defendant
accordingly.

{55}   IT IS SO ORDERED.

                                               ____________________________________
                                               J. MILES HANISEE, Judge

WE CONCUR:

____________________________________
CELIA FOY CASTILLO, Chief Judge

____________________________________
MICHAEL D. BUSTAMANTE, Judge

Topic Index for State v. Bahney, No. 29,817

AE                     APPEAL AND ERROR
AE-RM                  Remand
AE-SB                  Substantial or Sufficient Evidence


                                              17
CT      CONSTITUTIONAL LAW
CT-DJ   Double Jeopardy

CL      CRIMINAL LAW
CL-AA   Aiding or Abetting
CL-AC   Accessory
CL-AR   Arson
CL-CS   Conspiracy
CL-HO   Homicide
CL-KP   Kidnaping
CL-TE   Tampering with Evidence

CA      CRIMINAL PROCEDURE
CA-DJ   Double Jeopardy
CA-SE   Substantial or Sufficient Evidence

EV      EVIDENCE
EV-AE   Admissibility of Evidence
EV-PG   Photographs
EV-SS   Substantial or Sufficient Evidence
EV-TM   Tampering with Evidence




                            18
