State v. Calderon

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 30,844 5 NOEL R. CALDERON, JR., 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Lisa C. Schultz, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM 11 M. Anne Kelly, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Jacqueline L. Cooper, Chief Public Defender 15 Tania Shahani, Assistant Appellate Defender 16 Santa Fe, NM

17 for Appellant 18 MEMORANDUM OPINION 19 GARCIA, Judge.

1 A jury convicted Defendant of two counts of armed robbery, conspiracy to 2 commit armed robbery, tampering with evidence, and conspiracy to commit tampering 3 with evidence. Defendant raises four issues on appeal: (1) his two conspiracy 4 convictions violated his right against double jeopardy; (2) there was insufficient 5 evidence to support his convictions; (3) his trial counsel was ineffective; and (4) the 6 prosecutor committed misconduct during closing argument and sentencing. We 7 reverse Defendant’s conviction for conspiracy to commit tampering with evidence on 8 double jeopardy grounds and affirm Defendant’s remaining convictions for armed 9 robbery, conspiracy to commit armed robbery, and tampering with evidence. 10 BACKGROUND 11 Because the parties are familiar with the factual and procedural background and 12 because this is a memorandum opinion, we do not provide an initial, detailed summary 13 of the proceedings below. We provide details as necessary in our discussion of each 14 issue. 15 DISCUSSION 16 Double Jeopardy 17 Defendant asserts on appeal that his two convictions for conspiracy violate the 18 constitutional prohibition against double jeopardy because the evidence at trial did not 19 support separate conspiratorial agreements to support more that one count of

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1 conspiracy. We review the constitutional question of whether there has been a double 2 jeopardy violation de novo. State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M. 710, 3 82 P.3d 77. This includes double jeopardy challenges involving multiple conspiracy 4 charges. State v. Gallegos, 2011-NMSC-027, ¶ 50-51, 149 N.M. 704, 254 P.3d 655. 5 We note, however, that where factual issues are intertwined with the double jeopardy 6 analysis, the district court’s factual determinations are subject to a deferential 7 substantial evidence standard of review. State v. Rodriguez, 2006-NMSC-018, ¶ 3, 8 139 N.M. 450, 134 P.3d 737. 9 Defendant argues that double jeopardy was violated because he was charged 10 with multiple violations of the same statute based upon a single course of conduct. 11 See Gallegos, 2011-NMSC-027, ¶¶ 28-50 (recognizing the unit of prosecution test for 12 multiple charges under the conspiracy statute); State v. DeGraff, 2006-NMSC-011, 13 ¶ 25, 139 N.M. 211, 131 P.3d 61 (holding that there are two types of double jeopardy 14 cases with regard to multiple punishments: (1) when a defendant is charged with 15 multiple violations of the same statute based on a single course of conduct referred to 16 as “unit of prosecution” cases; and (2) when a defendant is charged with violations of 17 multiple statutes for the same conduct referred to as “double-description” cases 18 (internal quotation marks and citation omitted)). It is not disputed that we are dealing 19 with a unit of prosecution case.

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1 A unit of prosecution challenge uses a two-step inquiry. First, we ask whether 2 the unit of prosecution is clearly defined by the statute at issue and, second, whether 3 the charged acts were sufficiently distinct to justify multiple punishments under the 4 same statute. State v. Swick, 2012-NMSC-018, ¶ 33, 279 P.3d 747; State v. Stewart, 5 2005-NMCA-126, ¶ 13, 138 N.M. 500, 122 P.3d 1269. In this case, the first inquiry, 6 whether a unit of prosecution is clearly defined in NMSA 1978, Section 30-28-2 7 (1979), is not at issue. The only issue is whether the two conspiracy charges were 8 sufficiently distinct to justify multiple punishments under the same statute. State v. 9 Bahney, 2012-NMCA-039, ¶ 17, 274 P.3d 134 (stating that “if no legislative guidance 10 is apparent, [the court must determine] whether a defendant’s acts are separated by 11 sufficient indicia of distinctness to justify multiple punishments under the same 12 statute” (internal quotation marks and citation omitted)). 13 Under Gallegos, we recognize that “the Legislature established what we call a 14 rebuttable presumption that multiple crimes are the object of only one, overarching, 15 conspiratorial agreement subject to one, severe punishment set at the highest crime 16 conspired to be committed.” 2011-NMSC-027, ¶ 55. We have “adopted ‘the totality 17 of the circumstances test utilized by the federal circuits’ in announcing the nature of 18 the evidence required to overcome the presumption.” Bahney, 2012-NMCA-039, ¶ 17 19 (alternation omitted). The federal test analyzes whether:

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1 (a) the location of the two alleged conspiracies is the same; (b) there is 2 a significant degree of temporal overlap between the two conspiracies 3 charged; (c) there is an overlap of personnel between the two 4 conspiracies (including unindicted as well as indicted co-conspirators); 5 and (d) the overt acts charged and (e) the role played by the defendant . 6 . . in the alleged conspiracies are similar.

7 Gallegos, 2011-NMSC-027, ¶ 42 (alterations, internal quotation marks, and citation 8 omitted). 9 Our first inquiry is to determine “the precise nature and extent” of the 10 agreement between Defendant and Aldape that “embraces and defines its 11 object[ives].” Id. ¶ 37 (internal quotation marks and citation omitted). Where a 12 conspiracy involves a continuing crime, it may last for years and involve numerous 13 substantive offenses that end only when “the purposes of the conspiracy have been 14 accomplished or abandoned.” Id. ¶ 46 (internal quotation marks and citation omitted). 15 The agreement can also evolve over time to embrace a new objective to the original 16 criminal combination. Id. ¶ 62. 17 Similar to Gallegos, the evidence would support the presumption that 18 Defendant “entered into only one agreement and took part in only one conspiracy.” 19 See id. ¶ 57. Based upon the totality of the circumstances presented in this case, the 20 evidence indicates that Defendant and Aldape conspired to successfully commit 21 multiple convenience store robberies, thereby avoiding apprehension and arrest. As 22 a result, the agreement to successfully rob two stores appears singular and the State

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1 would bear the heavy burden of rebutting the presumption of singularity. Id. ¶¶ 55-56. 2 The burden then shifted to the State to overcome the presumption of singularity 3 regarding the conspiratorial agreement between Defendant and Aldape. Id. Where 4 the State fails to overcome this presumption, “the appropriate remedy is to vacate [the 5 d]efendant’s redundant convictions with punishment imposed on the single remaining 6 conspiracy at the level of the highest crime conspired to be committed[.]” Id. ¶ 64 7 (internal quotation marks and citation omitted). 8 The evidence in this case cannot rebut the presumption that Defendant and 9 Aldape had one singular agreement to successfully commit the two robberies, thereby 10 avoiding apprehension and arrest. Defendant and Aldape were both involved in an 11 overlapping and continuous series of related events. Both robberies occurred during 12 the same evening, with the same weapon, wearing the same articles of clothing, and 13 with Defendant acting as the getaway driver in both situations. The evolving acts of 14 ducking down in the car, moving the car behind some bushes, and throwing the 15 incriminating evidence out the car window confirms that the co-conspirators intended 16 to avoid apprehension while carrying out the objectives of their singular agreement 17 to successfully commit the two robberies. Similar to the acts of hiding after the first 18 robbery, the evidence was thrown from Defendant’s car within minutes of the second 19 robbery while attempting to flee the scene. This singular conspiracy presumption is

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1 consistent with the State’s indictment that sought only one conspiracy charge for the 2 two separate robberies that occurred only hours apart. We therefore vacate 3 Defendant’s conviction for conspiracy to commit tampering of evidence because it 4 was part of the singular conspiracy to successfully commit the two convenience store 5 robberies, while avoiding apprehension and arrest. We next address the sufficiency 6 of the evidence for Defendant’s remaining convictions. 7 Directed Verdict 8 Defendant asserts that the district court erred in denying his motion for directed 9 verdict because the evidence was insufficient to establish the requisite mens rea for 10 the crimes for which he was convicted. When reviewing the denial of a directed 11 verdict, we must determine whether there was sufficient evidence presented to support 12 the underlying charges. State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 13 P.3d 1198.

14 The test for sufficiency of the evidence is whether substantial evidence 15 of either a direct or circumstantial nature exists to support a verdict of 16 guilt beyond a reasonable doubt with respect to every element essential 17 to a conviction. When considering the sufficiency of the evidence, [the 18 appellate courts do] not evaluate the evidence to determine whether some 19 hypothesis could be designed which is consistent with a finding of 20 innocence. Instead, we view the evidence as a whole and indulge all 21 reasonable inferences in favor of the jury’s verdict while at the same 22 time asking whether any rational trier of fact could have found the 23 essential elements of the crime beyond a reasonable doubt.

24 State v. Johnson, 2010-NMSC-016, ¶ 57, 148 N.M. 50, 229 P.3d 523 (internal

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1 quotation marks and citation omitted). We have already vacated Defendant’s 2 conviction for conspiracy to commit tampering with evidence because it should have 3 merged with his conviction for conspiracy to commit armed robbery. As such, we 4 will only address the sufficiency of the evidence for Defendant’s remaining 5 convictions. 6 1. Armed Robbery and Conspiracy to Commit Armed Robbery 7 Both parties concede that Aldape committed the armed robberies in question. 8 The jury was instructed that it could find Defendant guilty of armed robbery based on 9 a theory of accessory liability if it found that Defendant intended the robberies to be 10 committed and that Defendant helped, encouraged, or caused the robberies to be 11 committed. As such, if substantial evidence exists to support Defendant’s conviction 12 for conspiracy to commit armed robbery, then it follows that his conviction for armed 13 robbery based on accomplice liability is also supported by substantial evidence. 14 To support Defendant’s conviction for conspiracy to commit armed robbery, 15 the State was required to show that he knowingly combined with Aldape to commit 16 the armed robberies. UJI 14-2810 NMRA. Defendant contends that the State 17 presented no testimony or other evidence establishing his knowledge or intent. 18 Defendant argues that his mere presence in the Cadillac “does not suggest that he was 19 or should have been aware of [Aldape’s] scheme,” because “[t]he simple fact that

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1 [Defendant] was driving his car with [Aldape] in it after the second incident is not 2 sufficient evidence to convict [him].” 3 To support his contention that the evidence was insufficient, Defendant relies 4 on State v. Mariano R., 1997-NMCA-018, 123 N.M. 121, 934 P.2d 315. In Mariano 5 R., we reversed a defendant’s conviction for conspiracy where the underlying offense 6 involved multiple vehicle occupants shooting from the vehicle, even where the 7 defendant knew that there were guns in the car and was present when one was fired. 8 Id. ¶¶ 2, 5. We reasoned that “[t]he evidence would suffice to establish that the 9 [defendant] knew that there were firearms in the vehicle and was present when one 10 was fired. Beyond that, however, one must speculate.” Id.¶ 5. The evidence was 11 insufficient to support a conspiracy conviction because there was “no evidence 12 regarding what happened in the vehicle before the shot was fired.” Id. 13 We explained in Mariano R. that, while we reviewed the evidence “in light of 14 common knowledge or common experience[,]” we must not confuse common 15 knowledge and experience “with cynical speculation.” Id. ¶ 7 (internal quotation 16 marks and citation omitted). “In reviewing a determination of guilt, we cannot 17 sanction a view that assumes the worst about human nature. That is an essential 18 message of the presumption of innocence. Evidence is required[.]” Id. However, 19 unlike the evidence in Mariano R., the evidence in the instance case showed more than

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1 mere presence. Viewed in the light most favorable to the State, the evidence presented 2 at trial established that Defendant knowingly and intentionally drove the getaway car 3 and was aware of both robberies. See State v. Carrasco, 1997-NMSC-047, ¶ 11, 124 4 N.M. 64, 946 P.2d 1075 (“In reviewing a claim of insufficient evidence, th[e 5 Supreme] Court will view the evidence in the light most favorable to supporting the 6 verdict and resolve all conflicts and indulge all inferences in favor of upholding the 7 verdict.” (internal quotation marks and citation omitted)). 8 During the first robbery, the record indicates that Defendant backed into a 9 parking space at the apartments next to the Pic Quik and waited for Aldape. After the 10 commission of the robbery, Aldape ran to Defendant’s car and slid into it. When a 11 police officer drove by shortly thereafter, Defendant and Aldape both ducked down 12 in the car as if to avoid detection. The car was then moved to a second spot behind 13 some bushes as two other police officers drove by the robbery location. In addition, 14 Defendant picked Aldape up after the second robbery and was still driving when 15 Aldape threw the items related to the robberies out of the car window. One of those 16 items was Defendant’s bandana with his initials on it, the same bandana that Aldape 17 wore while committing both robberies. Another item thrown from the car window 18 after it was taken from the second robbery was the cash drawer from the register with 19 cash still located inside. In addition, the State presented evidence that Defendant’s

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1 testimony was fabricated based upon the search of Defendant’s car after the arrest and 2 the lack of any cell phone on his person or in his car. 3 It must be remembered that, while conspiracy requires an agreement, the 4 agreement can be nothing more than a mutually implied understanding that can be 5 proved by the cooperative actions of the participants involved. State v. Smith, 102 6 N.M. 512, 514, 697 P.2d 512, 514 (Ct. App. 1985). Conspiracy is often shown 7 through inference from the facts and circumstances considered as a whole. State v. 8 Ross, 86 N.M. 212, 214, 521 P.2d 1161, 1163 (Ct. App. 1974). In contrast to Mariano 9 R. and other cases on which Defendant relies, a rational jury could infer from the 10 totality of the circumstances in this case that Defendant was an active participant with 11 Aldape in the robberies. See Carrasco, 1997-NMSC-047, ¶¶ 11-14 (holding that the 12 evidence was sufficient to support accessory liability for armed robbery where the 13 defendant drove the car to the robbed convenience store and kept the engine running, 14 but claimed he was asleep during the robbery and did not intend the acts committed 15 by the principals). The jury is not required to accept Defendant’s version of the facts 16 that support an argument that he did not have the required mens rea for these offenses. 17 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary 18 evidence supporting acquittal does not provide a basis for reversal because the jury 19 is free to reject [the d]efendant’s version of the facts.”). Our review is only required

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1 to determine that the evidence here was not so bare that, as a matter of law, no rational 2 jury could find the required facts to support a conviction. See Carrasco, 1997- 3 NMSC-047, ¶ 14. The foregoing evidence was sufficient for a rational jury to find 4 Defendant guilty of conspiracy to commit armed robbery. 5 The jury could easily infer from the evidence presented at trial that Defendant 6 and Aldape joined together in a mutually implied understanding to rob the two 7 convenience stores. Defendant’s story that, on two occasions, he was the unwilling 8 dupe of Aldape’s plan was somewhat incredulous and lacked credibility. See Rojo, 9 1999-NMSC-001, ¶ 19 (recognizing that a jury is free to reject a defendant’s version 10 of the events). The circumstantial evidence establishes that, as co-conspirator, 11 Defendant both helped and encouraged Aldape in the commission of the robberies. 12 As a result, there was sufficient evidence to find Defendant guilty of both armed 13 robberies. 14 2. Tampering With Evidence 15 To prove that Defendant was guilty of the crime of tampering with evidence, 16 the State was required to show beyond a reasonable doubt “that [D]efendant destroyed 17 or hid or placed a cash register drawer, and/or a brown handkerchief, and/or a black 18 beanie, and/or a machete . . . intend[ing] to prevent [his] apprehension, prosecution, 19 or conviction . . . .” See UJI 14-2241 NMRA. We have already held that the evidence

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1 was sufficient for a jury to infer that Defendant and Aldape conspired to commit the 2 robberies, and there is no dispute that tampering with evidence occurred. However, 3 Defendant contends on appeal that the State presented no testimony or other evidence 4 which established that he knowingly or intentionally combined with or encouraged 5 Aldape to dispose of any evidence. We disagree. 6 At trial, the State presented evidence that Aldape threw the items he was 7 wearing and the proceeds from the second robbery from Defendant’s car as it left the 8 scene. Defendant himself testified that he believed Aldape discarded the items so that 9 the items could not be used to prosecute himself and Aldape. The jury could 10 reasonably infer from this evidence that Aldape discarded the evidence from 11 Defendant’s car to further the purposes of his conspiracy with Defendant. Surely, 12 Defendant and Aldape did not intend to be apprehended by the police when they 13 agreed to rob the convenience stores. As such, the evidence was sufficient for the jury 14 to find Defendant guilty of tampering with evidence based on a theory of accomplice 15 liability. 16 Ineffective Assistance of Counsel 17 We next address Defendant’s contention on appeal that defense counsel was 18 ineffective in failing to call witnesses material to his defense. We review claims of 19 ineffective assistance of counsel de novo. State v. Boergadine, 2005-NMCA-028,

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1 ¶ 33, 137 N.M. 92, 107 P.3d 532. However, we are required to begin with the 2 presumption that counsel was competent. See id. To establish ineffective assistance 3 of counsel, a defendant has the burden to prove (1) that his counsel’s performance fell 4 below that of a reasonably competent attorney, and (2) that he was prejudiced by his 5 counsel’s deficient performance. Id. “Defense counsel’s performance is deficient if 6 counsel’s representation fell below an objective standard of reasonableness.” State 7 v. Roybal, 2002-NMSC-027, ¶ 21, 132 N.M. 657, 54 P.3d 61 (internal quotation 8 marks and citations omitted). We do not find ineffective assistance of counsel if there 9 is a plausible, rational trial strategy or tactic to explain counsel’s conduct. See State 10 v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289; State v. Richardson, 11 114 N.M. 725, 729, 845 P.2d 819, 823 (Ct. App. 1992), abrogated on other grounds 12 by Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. 13 The record on appeal often does not provide enough information to adequately 14 determine whether an action was error or caused prejudice. Bernal, 2006-NMSC-050, 15 ¶ 33. When such questions arise, further evidence is often required. Id. Rather than 16 remand the case to the district court for further hearings, the appellate courts have a 17 general preference that such claims be brought and resolved through habeas corpus 18 proceedings. Id. Therefore, this Court will remand to the district court for evidentiary 19 proceedings on direct appeal only when a defendant presents a prima facie case of

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1 ineffective assistance of counsel. Id. 2 Defendant argues that “defense counsel failed to subpoena material witnesses 3 and present other evidence that would have corroborated [Defendant’s] own testimony 4 at trial.” It is not our place on appeal to second guess trial strategies. State v. Hester, 5 1999-NMSC-020, ¶ 11, 127 N.M. 218, 979 P.2d 729. Whether a corroborating 6 witness will benefit or harm a particular case is a matter for counsel to determine as 7 part of one’s strategy in defending that case. Defense counsel’s strategy is best 8 evaluated during habeas corpus proceedings where trial counsel can provide 9 testimony. Such evidence is also necessary in this case to demonstrate that any 10 alleged errors caused prejudice. We therefore conclude Defendant has not presented 11 a prima facie case of ineffective assistance of counsel, and accordingly, we reject 12 Defendant’s ineffective assistance of counsel claim. However, this decision does not 13 preclude Defendant from pursuing habeas corpus proceedings on this issue should he 14 be able to garner evidence to support his claims. 15 Prosecutorial Misconduct 16 Defendant argues that some of the prosecutor’s remarks during closing 17 argument constituted misconduct that deprived him of a fair trial and that statements 18 made during sentencing constituted misconduct that deprived him of a fair sentencing 19 hearing. Defendant failed to object to the prosecutor’s remarks and asks us to review

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1 his claims for fundamental error. State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 2 482, 994 P.2d 728 (“When the trial court had no opportunity to rule on a claim of 3 prosecutorial misconduct because the defendant did not object in a timely manner, we 4 review the claim on appeal for fundamental error.”). To qualify as fundamental error, 5 the remarks must have been “so egregious” and have “had such a persuasive and 6 prejudicial effect on the jury's verdict that the defendant was deprived of a fair trial.” 7 Id. (internal quotation marks and citation omitted). “As with any fundamental error 8 inquiry, we will upset a jury verdict only (1) when guilt is so doubtful as to shock the 9 conscience, or (2) when there has been an error in the process implicating the 10 fundamental integrity of the judicial process.” State v. Sosa, 2009-NMSC-056, ¶ 35, 11 147 N.M. 351, 223 P.3d 348. 12 1. Closing Argument 13 During closing argument, the prosecutor remarked that Defendant testified that 14 he picked up Aldape “a mile or a mile and a half from the Eagle Mart.” Defendant 15 argues that this statement was a misrepresentation of material facts rising to the level 16 of fundamental error. We disagree with Defendant that the prosecutor misstated 17 Defendant’s testimony, and therefore find no error in the prosecutor’s conduct. 18 Defendant first testified that the distance was “maybe, like, about a mile and a 19 half,” and later stated that it was “anywhere from maybe a mile to a half a mile.” In

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1 response to Defendant’s later statement, the prosecutor said, “Okay. Let’s just use 2 that. A mile to a mile and a half. He was there?” Defendant responded, “Yeah” to 3 the prosecutor’s statement. Viewing the prosecutor’s remark in this context, there is 4 nothing in the record suggesting that it was an incorrect statement of Defendant’s 5 testimony. It did not, as Defendant claims, twist Defendant’s testimony into 6 unbelievable testimony. As such, the prosecutor’s remark during closing argument 7 about the distance from the Eagle Mart was not fundamental error. 8 2. Sentencing 9 At sentencing, the district court considered a pre-sentence report (PSR) 10 prepared by probation services. Relying on the PSR, the district court sentenced 11 Defendant to five years in prison with the rest of his twenty-five and a half year 12 sentence suspended. Defendant argues on appeal the State possessed inaccurate 13 information about him, confusing him with his father, and it was misconduct for the 14 State to suggest at sentencing that Defendant’s criminal history was worthy of 15 consideration. 16 Defendant’s argument appears to assert that the PSR conflated Defendant’s 17 criminal history with that of his father. The PSR is not part of the appellate record, 18 and we cannot presume, based on the available record, that it contained inaccurate 19 information or that the “the prosecutor inappropriately used his father’s prior felony

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1 convictions to convince the judge to impose a more severe sentence.” To the contrary, 2 while the prosecutor noted Defendant’s criminal history to the district court, he did 3 not further elaborate on Defendant’s history and instead chose to focus his sentencing 4 arguments on the facts and circumstances of the instant case. Nothing in the record 5 suggests that the prosecutor was acting in bad faith, nor do the facts available on 6 appeal indicate that the prosecutor’s statement of a prior criminal history was so 7 egregious that it deprived Defendant of a fair hearing. Allen, 2000-NMSC-002, ¶ 95. 8 In addition, the record reflects that, as early as the initial bond hearing, Defendant was 9 aware of the possibility of confusion between his criminal record and that of his 10 father, who shares the same name. Despite this knowledge, Defendant never 11 challenged the accuracy of the PSR or the prosecutor’s statement that Defendant had 12 a criminal history. Defendant similarly chose not to rebut or contradict any criminal 13 history information when he was provided with the opportunity to speak before the 14 district court imposed a sentence. There is no evidence in the record regarding the 15 accuracy or inaccuracy of Defendant’s prior criminal history reflected in the PSR. 16 Under the circumstances, we will not reverse for fundamental error. See State v. Aker, 17 2005-NMCA-063, ¶ 22, 137 N.M. 561, 113 P.3d 384 (“[The d]efendant would be 18 entitled to re-sentencing if the lack of advance notice deprived him of the opportunity 19 to rebut evidence that the trial court relied upon in determining his sentence.”); State

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1 v. Montoya, 91 N.M. 425, 427, 575 P.2d 609, 611 (Ct. App. 1978) (finding no error 2 in the district court’s consideration of a PSR that included arrests not resulting in 3 convictions, but implying that error might exist if the district court considered 4 inaccurate information or information that the defendant had no opportunity to 5 explain). 6 We recognize that a defendant has a right to be sentenced on the basis of 7 accurate information. State v. Lack, 98 N.M. 500, 508, 650 P.2d 22, 30 (Ct. App. 8 1982). But the district court in this case only relied on the PSR recommendation, not 9 necessarily upon any prior criminal history of Defendant or the statements made by 10 the prosecutor. We have no clear basis to conclude that the district court relied on any 11 inaccurate criminal history as the reason for the sentence imposed on Defendant. As 12 such, the record does not reflect that the prosecutor’s statements during sentencing 13 deprived Defendant of a fair hearing. 14 CONCLUSION 15 For the foregoing reasons, we reverse Defendant’s conviction for conspiracy 16 to commit tampering with evidence and affirm Defendant’s convictions for armed 17 robbery, conspiracy to commit armed robbery, and tampering with evidence. We 18 remand this matter to the district court for dismissal of the conspiracy to commit 19 tampering with evidence conviction and for any further proceedings that are necessary

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1 upon remand. 2 IT IS SO ORDERED.

3 ______________________________ 4 TIMOTHY L. GARCIA, Judge

5 I CONCUR:

6 ______________________________ 7 RODERICK T. KENNEDY, Judge

8 JONATHAN B. SUTIN, (dissenting)

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1 SUTIN, Judge (dissenting). 2 I respectfully disagree with the Majority’s conspiracy, double jeopardy analysis. 3 Defendant’s underlying and overarching criminal conspiratorial objective was to 4 engage in armed robberies. After the robberies, once pursued by the police, 5 Defendant’s newly formed underlying and overarching criminal objective was to get 6 rid of the incriminating evidence. The agreement to discard the evidentiary items 7 (including the cash-filled cash box obtained from the Eagle Qwik Mart) that gave rise 8 to the conspiracy to tamper with evidence charge cannot reasonably be viewed as 9 having been made in furtherance of the overarching criminal objective to commit the 10 armed robberies. The Majority’s incorporation of the caveat, “successfully,” into the 11 overarching conspiratorial agreement to commit multiple armed robberies, amounts 12 to an unsuccessful attempt to combine the two distinct, separate conspiratorial goals. 13 Conspiracy is a crime whose object may include the violation of two or more 14 criminal laws. See Gallegos, 2011-NMSC-027, ¶ 46. And, although a conspiracy 15 may “mature and expand over time, adding more members and embracing additional 16 criminal objectives without changing the fundamental nature of the single 17 agreement[,]” the conspiracy “ends . . . when the purposes of the conspiracy have been 18 accomplished or abandoned.” Id. (internal quotation marks and citation omitted). In 19 this case, the conspiracy to commit armed robberies ended when the robberies were

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1 accomplished—that is, when Aldape took and “carr[ied] away” U.S. currency and a 2 cash register from the Eagle Qwik Mart (the second convenience store), with the 3 intention to permanently deprive the store of that property. Having accomplished that 4 particular overarching criminal objective, the conspiracy ended, and Defendant and 5 Aldape drove away. 6 It is, of course, every criminal’s intention that he or she is not caught by law 7 enforcement during the commission of the crime or during the getaway. That 8 intention is inherent in any criminal activity, including an overarching robbery goal. 9 But an inherent intention does not make the overarching conspiratorial robbery goal 10 blossom into a larger conspiratorial goal that somehow implicitly includes an 11 agreement, once the police are in pursuit, to get rid of their criminally obtained 12 proceeds. I tend to doubt that criminals consciously plan, at the outset, to throw away 13 their criminally obtained cash. Here, there exists no evidence of an early plan to 14 throw illegally obtained, stolen money or goods away if per chance pursued by law 15 enforcement after the robberies. Even were such a plan discussed before the crimes 16 occurred, my view would remain that the conspiracy to tamper with evidence can be 17 separately charged and a conviction obtained without violating double jeopardy. 18 Here, distinct and separate from their conspiracy to commit armed robberies 19 was the co-conspirators’ separately and later formed agreement to commit the acts that

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1 formed the basis of the tampering with evidence charge—that was to “destroy, hide[,] 2 or place a cash register [and other evidentiary items] with the intent to prevent [their] 3 apprehension[.]” Evidence at trial demonstrated that the conspiracy to tamper with 4 evidence arose at approximately the same time when and in approximately the same 5 location where the co-conspirators were spotted and subsequently followed by the 6 police. The conspiracy to tamper with evidence ended when the purpose of the 7 criminal objective had been accomplished—that is, when Defendant’s co-conspirator 8 threw the items, including the cash box, out of the window of the moving vehicle. 9 Gallegos does not support the Majority’s holding. In Gallegos, each of the 10 separately charged conspiracies required the defendant and his co-conspirators to 11 contemplate inflicting great bodily harm or death upon the victim. Id. ¶ 57. And in 12 Gallegos, each separately charged conspiracy was formed and carried out in 13 furtherance of the single overarching conspiratorial goal of murdering the victim. Id. 14 ¶ 62. 15 In this case, unlike in Gallegos, the evidence and the applicable laws clearly 16 support the existence of two separate conspiratorial objectives. To convict Defendant 17 of conspiracy to commit armed robbery, the State was required to show that 18 Defendant and his co-conspirator agreed to

19 take and carry away a cash register and U.S. currency, which had some 20 value, from Pic Qwik or from [the store clerks’] immediate control,

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1 intending to permanently deprive Pic Q[w]ik of the property, and . . . 2 [D]efendant was armed with a machete, a deadly weapon, and . . . 3 [D]efendant took the property by use or threatened use of force or 4 violence[.]

5 See UJI 14-1621 NMRA; UJI 14-2810. To convict Defendant of conspiracy to tamper 6 with evidence, the State was required to show that Defendant and his co-conspirator 7 agreed to “destroy, hide[,] or place a cash register [and other evidentiary items] with 8 the intent to prevent the apprehension, prosecution[,] or conviction of himself or 9 another[.]” See UJI 14-2241, 14-2810. Thus, unlike the separately charged 10 conspiracies at issue in Gallegos, the separately charged conspiracies in this case 11 shared neither elements nor intent. See Gallegos, 2011-NMSC-027, ¶ 57. 12 In sum, I do not believe that the facts of this case or the applicable law support 13 the existence of a single, overarching conspiracy that included both committing the 14 two armed robberies and discarding the fruits of their criminal pursuit. Application 15 of the principles articulated in Gallegos leads to a conclusion opposite that reached 16 by the Majority. I would affirm Defendant’s two separate conspiracy convictions.

17 __________________________________ 18 JONATHAN B. SUTIN, Judge