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 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                           NO. 30,028

10 CHRISTOPHER FRANCO,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Kenneth H. Martinez, District Judge

14   Gary K. King, Attorney General
15   Margaret E. McLean, Assistant Attorney General
16   Joel Jacobsen, Assistant Attorney General
17   Santa Fe, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 J.K. Theodosia Johnson, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 FRY, Chief Judge.

25          Defendant appeals his convictions for voluntary manslaughter, shooting at a

26 motor vehicle (great bodily harm), aggravated assault, and tampering with evidence.
 1 We issued a calendar notice proposing to reverse the tampering conviction on

 2 sufficiency grounds, and to affirm on all other issues. Defendant has responded with

 3 a memorandum in opposition. The State has filed a memorandum, addressing his

 4 tampering with evidence conviction.        We reverse Defendant’s conviction for

 5 tampering with evidence, and affirm on the other issues raised on appeal.

 6 TAMPERING WITH EVIDENCE

 7        Defendant has argued that the district court erred in denying his motion for a

 8 directed verdict on the tampering with evidence charge. “The question presented by

 9 a directed verdict motion is whether there was substantial evidence to support the

10 charge.” State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct. App. 1993).

11 A sufficiency of the evidence review involves a two-step process. Initially, the

12 evidence is viewed in the light most favorable to the verdict. Then the appellate court

13 must make a legal determination of “whether the evidence viewed in this manner

14 could justify a finding by any rational trier of fact that each element of the crime

15 charged has been established beyond a reasonable doubt.” State v. Apodaca, 118

16 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation

17 omitted).

18        Here, the jury was instructed that it was required to find beyond a reasonable

19 doubt that: (1) Defendant hid or placed a white Lincoln car; (2) he “intended to



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 1 prevent the apprehension, prosecution or conviction of himself,” and (3) “[t]his

 2 happened in New Mexico on or about the 9th day of July, 2007. [RP 169] See NMSA

 3 1978, § 30-22-5(A) (2003) (“Tampering with evidence consists of destroying,

 4 changing, hiding, placing or fabricating any physical evidence with intent to prevent

 5 the apprehension, prosecution or conviction of any person or to throw suspicion of the

 6 commission of a crime upon another.”). “[I]n order for [the d]efendant’s conviction

 7 on tampering with evidence to be upheld, there must be sufficient evidence from

 8 which the jury can infer: (1) the specific intent of the [d]efendant to disrupt the police

 9 investigation; and (2) that [the d]efendant actively destroyed or hid physical

10 evidence.” State v. Duran, 2006-NMSC-035, ¶ 14, 140 N.M. 94, 140 P.3d 515

11 (internal quotation marks and citation omitted). Based on the description of the facts

12 in the docketing statement, our calendar notice observed that the Lincoln was simply

13 used to flee from the scene, and did not constitute evidence that was relevant to the

14 shooting incident. Thus, while the State may have satisfied the first factor in Duran,

15 we proposed to hold that the facts do not support the second factor.

16        The State’s memorandum in opposition does not provide us with any additional

17 facts that persuade us that our proposed disposition was incorrect. The State argues

18 that the Lincoln was evidence that was not gathered by police because Defendant

19 “deliberately hid the car.” [State MIO 2, 4] The State does not direct our attention to



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 1 anything in the record suggesting that there was evidence that Defendant deliberately

 2 hid the car, and the docketing statement states that the evidence established that

 3 Defendant simply used the car to flee the scene. [DS 3] See State v. Calanche, 91

 4 N.M. 390, 392, 574 P.2d 1018, 1020 (Ct. App. 1978) (explaining that factual

 5 recitations in the docketing statement are accepted as true unless the record on appeal

 6 shows otherwise.) As our Supreme Court has recently stated, “[t]ampering with

 7 evidence is uniquely offensive under the criminal code because when one acts

 8 intentionally to destroy, change, hide, place or fabricate physical evidence, that person

 9 seeks to deprive the criminal justice system of information.” State v. Jackson, 2010-

10 NMSC-032, ___ N.M. ___, ___ P.3d ___. There is simply no evidence that

11 Defendant used the vehicle for any purpose other than to flee. In the absence of any

12 indication that the vehicle constituted evidence of the crimes charged and that

13 Defendant deliberately hid the vehicle, we conclude that the evidence was insufficient

14 to support the tampering conviction.

15 JURY INSTRUCTION

16        Defendant continues to claim that he was entitled to a jury instruction on

17 involuntary manslaughter. [MIO 6] “In order to obtain an instruction on a lesser

18 included offense, there must be some view of the evidence pursuant to which the

19 lesser offense is the highest degree of crime committed, and that view must be



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 1 reasonable.” State v. Brown, 1998-NMSC-037, ¶ 12, 126 N.M. 338, 969 P.2d 313

 2 (alteration in original) (internal quotation marks and citation omitted).

 3        In this case, the jury was instructed on self-defense, which it rejected. [RP 162]

 4 Therefore, given the defense before the jury, the best alternative would have been for

 5 Defendant to rely on an imperfect self-defense theory. However, as Defendant

 6 concedes [MIO 7], the lowest degree of homicide that can result from a finding of

 7 imperfect self-defense is voluntary manslaughter. See State v. Abeyta, 120 N.M. 233,

 8 241, 901 P.2d 164, 172 (1995), abrogated on other grounds by State v. Campos,

 9 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266. In any event, Defendant did not

10 submit an imperfect self-defense instruction. Looking at the evidence before the jury,

11 we conclude that it did not provide grounds for a finding of involuntary manslaughter.

12 See NMSA 1978, § 30-2-3(B) (1994) (“Involuntary manslaughter consists of

13 manslaughter committed in the commission of an unlawful act not amounting to

14 felony, or in the commission of a lawful act which might produce death in an unlawful

15 manner or without due caution and circumspection.”).

16 DOUBLE JEOPARDY

17        Defendant claims that double jeopardy requires merger of his convictions for

18 shooting at a motor vehicle resulting in great bodily harm and voluntary manslaughter.

19 [MIO 3] As Defendant concedes [MIO 5-6], there is Supreme Court authority that



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 1 holds that double jeopardy does not require merger of these crimes. State v.

 2 Dominguez, 2005-NMSC-001, ¶¶ 5-16, 137 N.M. 1, 106 P.3d 563. We are bound by

 3 this precedent. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779

 4 (1973) (holding that Supreme Court precedent controls).

 5 SENTENCING

 6        Defendant challenges his sentence, claiming that the district court thought he

 7 was guilty of a higher crime. [MIO 7] Defendant is not arguing that the sentence went

 8 beyond that authorized by statute. See State v. Augustus, 97 N.M. 100, 101, 637 P.2d

 9 50, 51 (Ct. App. 1981) (holding that a jail sentence imposed upon a defendant which

10 was in accordance with the law does not constitute an abuse of discretion). With

11 respect to the court’s comments [MIO 8], we believe that Defendant’s claim is too

12 speculative to serve as a basis for reversal. Cf. State v. Scussel, 117 N.M. 241, 243,

13 871 P.2d 5, 7 (Ct. App. 1994) (stating that remarks of trial court are generally not used

14 as basis for reversal). In the absence of additional evidentiary support for Defendant’s

15 claim, we are not inclined to interpret the trial court’s comments in a manner that

16 undermines its validity. See In re Ernesto M., 1996-NMSC-39, ¶ 10, 121 N.M. 562,

17 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”). This is not,

18 for example, a situation where the court has indicated that it was punishing Defendant

19 for exercising a constitutional right. See State v. Bonilla, 2000-NMSC-037, ¶ 15, 130



                                               6
1 N.M. 1, 15 P.3d 491 (concluding that court abused its discretion by punishing the

2 defendant for exercising his right to a jury trial).

3 CONCLUSION

4        For the reasons stated above, we reverse Defendant’s tampering conviction and

5 affirm on the remaining issues.

6        IT IS SO ORDERED.



7
8                                          CYNTHIA A. FRY, Chief Judge

9 WE CONCUR:



10
11 JONATHAN B. SUTIN, Judge



12
13 RODERICK T. KENNEDY, Judge




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