1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ___________
3 Filing Date: December 20, 2016
4 NO. 33,798
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 CHIP FOX,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 11 Stephen K. Quinn, Judge
12 Hector H. Balderas, Attorney General 13 Santa Fe, NM 14 M. Victoria Wilson, Assistant Attorney General 15 Albuquerque, NM
16 for Appellee
17 Bennett J. Baur, Chief Public Defender 18 Nina Lalevic, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellant 1 OPINION
2 VIGIL, Chief Judge.
3 {1} Defendant appeals from a jury verdict finding him guilty of voluntary
4 manslaughter, in violation of NMSA 1978, Section 30-2-3(A) (1994), and felony and
5 criminal solicitation to commit tampering with evidence, in violation of NMSA 1978,
6 Section 30-28-3(A) (1979). Concluding that the evidence supports the convictions,
7 we affirm, but remand the case to the district court to correct a clerical error in the
8 judgment, sentence, and order determining habitual offender status.
9 I. BACKGROUND
10 {2} On August 16, 2012, Defendant, his girlfriend Tiffany Pryor, and his friend
11 Kevin Reardon were visiting Defendant’s aunt at her home in Clovis, New Mexico.
12 While Defendant and Kevin were changing a tire, Kevin was stabbed. After the
13 stabbing, Defendant went next door where his childhood friend Chad Jackson lived.
14 Defendant was holding a bloody knife and looked terrified. Defendant told Chad, “I
15 stabbed my best friend, and I’m scared, and I don’t know what to do.” Defendant also
16 said that when Kevin became aggressive and repeatedly charged at him, Defendant
17 told Kevin he had a knife and to leave him alone. Defendant said, “My friend charged
18 me and ran into the knife, and I stabbed him, and I’m scared, and I don’t know what
19 to do.” Chad told Defendant to put the knife on a nearby table, and Defendant 1 complied.
2 {3} When Officer Jimmy Brown arrived on the scene, Defendant denied knowing
3 what had happened. Officer Brown also spoke to Kevin, who was sitting on the aunt’s
4 porch, bleeding, and going in and out of consciousness. Kevin said he was “talking
5 shit to somebody” who then stabbed him. The ambulance arrived and took Kevin to
6 the hospital. Detective Rick Smith met with Kevin at the hospital, and asked Kevin
7 what had happened. Kevin answered that he was “talking shit and my homie stabbed
8 me.” After initially refusing to identify who stabbed him, Kevin identified Defendant.
9 Later Kevin died from the stabbing.
10 {4} At the scene, Officer Brown placed Defendant in investigative detention after
11 speaking to Chad. In an interview at the police station, Defendant eventually admitted
12 he stabbed Kevin, but asserted he did not mean to do so and never intended to hurt
13 him. While he initially said he could not explain the reason for Kevin’s aggression,
14 Defendant later said that Kevin had become enraged while sniffing or “huffing” Dust-
15 Off and started swinging his fists at Defendant, making him afraid. Defendant said
16 he tried to calm Kevin down and pushed him away but Kevin kept coming at him, and
17 eventually ran into the knife in Defendant’s hand. Defendant explained that the knife
18 was part of the camping gear he was putting into the car at the time. The Chief
19 Medical Investigator agreed that while it was possible for Kevin’s wound to have
2 1 been caused by Kevin moving toward the knife and falling on it if it was held rigidly,
2 it was his opinion this was not likely, and that Kevin’s wound was more consistent
3 with being stabbed by the thrust of a knife.
4 {5} The police investigation included a search of the property where they found
5 Dust-Off cans, including some cans in a black backpack. Defendant called Tiffany
6 from the jail. When Tiffany told Defendant the police were going to take Defendant’s
7 black backpack with six Dust-Off cans in it, Defendant asked her to get the backpack
8 out of the house. Tiffany told Defendant she could not because the police were
9 “everywhere” in the house. Defendant then asked Tiffany to pull all his “shit” out of
10 the backpack and tell the police it was someone else’s backpack. Tiffany told
11 Defendant the other person’s backpack “is in the car,” and Defendant told Tiffany to
12 tell the police he had two backpacks. Defendant then told Tiffany, “If they ask you,
13 just tell them the truth[.]”
14 {6} The jury found Defendant guilty of voluntary manslaughter as a lesser included
15 offense to the charge of second degree murder and solicitation to commit tampering
16 with evidence. A judgment, sentence, and order determining habitual offender status
17 was then filed, and Defendant appeals.
18 II. DISCUSSION
19 {7} Defendant raises three issues on appeal; however, these issues raise challenges
3 1 to the sufficiency of the evidence for each conviction. We therefore consolidate the
2 appeal into two issues and analyze Defendant’s sufficiency of the evidence arguments
3 as they relate to each conviction.
4 {8} Our review of the sufficiency of the evidence is highly deferential. State v.
5 Slade, 2014-NMCA-088, ¶ 13, 331 P.3d 930, cert. quashed, 2015-NMCERT-001,
6 350 P.3d 92. “When reviewing a challenge to the sufficiency of the evidence, we
7 must determine whether substantial evidence of either a direct or circumstantial
8 nature exists to support a verdict of guilt beyond a reasonable doubt with respect to
9 every element essential to a conviction.” State v. Carpenter, 2016-NMCA-058, ¶ 10,
10 374 P.3d 744 (internal quotation marks and citation omitted). Under this standard, we
11 view “the evidence in the light most favorable to the state, resolving all conflicts and
12 indulging all permissible inferences in favor of the verdict.” Id. (alteration, internal
13 quotation marks, and citation omitted). “The appellate courts do not search for
14 inferences supporting a contrary verdict or re-weigh the evidence because this type
15 of analysis would substitute an appellate court’s judgment for that of the jury.” Slade,
16 2014-NMCA-088, ¶ 13 (internal quotation marks and citation omitted). “The jury
17 instructions become the law of the case against which the sufficiency of the evidence
18 is to be measured.” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (alterations,
19 internal quotation marks, and citation omitted).
4 1 A. Sufficient Evidence for Voluntary Manslaughter
2 {9} Under the jury instructions for voluntary manslaughter, the State was required
3 to prove beyond a reasonable doubt that “[D]efendant killed Kevin[,] . . . [D]efendant
4 knew that his acts created a strong probability of death or great bodily harm to
5 Kevin[, . . . and] did not act in [self-defense.]” With regard to self-defense, it “is only
6 a justification for a killing, and thus a lawful act, if all the elements necessary for self-
7 defense are met.” State v. Abeyta, 1995-NMSC-051, ¶ 23, 120 N.M. 233, 901 P.2d
8 164, abrogated on other grounds by State v. Campos, 1996-NMSC-043, ¶ 32 n.4, 122
9 N.M. 148, 921 P.2d 1266. In order to find that Defendant acted in self-defense, the
10 jury was required to find, in pertinent part, that “[a] reasonable person in the same
11 circumstances as [D]efendant would have acted as [D]efendant did.” See State v.
12 Johnson, 1998-NMCA-019, ¶ 14, 124 N.M. 647, 954 P.2d 79 (“One requirement of
13 self-defense is that the force used must be reasonable in relation to the threat.”
14 (internal quotation marks and citation omitted)). “If excessive force is exerted, the
15 entire action becomes unlawful.” Id.
16 {10} In the instructions on voluntary manslaughter, the jury was specifically
17 instructed that “[t]he difference between second degree murder and voluntary
18 manslaughter is sufficient provocation[,]” because “[i]n second degree murder the
19 defendant kills without having been sufficiently provoked, that is, without sufficient
5 1 provocation.” The jury was further instructed that “[i]n the case of voluntary
2 manslaughter the defendant kills after having been sufficiently provoked, that is, as
3 a result of sufficient provocation. Sufficient provocation reduces second degree
4 murder to voluntary manslaughter.” “Sufficient provocation,” the jury was told, is
5 “any action, conduct or circumstance which arouse[s] anger, rage, fear, sudden
6 resentment, terror or other extreme emotions[,]” and “must be such as would affect
7 the ability to reason and to cause a temporary loss of self control in an ordinary
8 person of average disposition” and that the “ ‘provocation’ is not sufficient if an
9 ordinary person would have cooled off before acting.” See State v. Melendez, 1982-
10 NMSC-039, ¶ 9, 97 N.M. 738, 643 P.2d 607 (“Provocation supporting a conviction
11 for voluntary manslaughter, on the other hand, is an act committed under the
12 influence of an uncontrollable fear of death or great bodily harm, caused by the
13 circumstances, but without the presence of all the ingredients necessary to excuse the
14 act on the ground of self-defense.” (internal quotation marks and citation omitted)).
15 {11} Defendant contends that it was unreasonable for the jury to reject his plea of
16 self-defense, and that the killing here could not have been more than involuntary
17 manslaughter. We disagree. When the facts support a plea of self-defense, “it is not
18 unreasonable that if the plea fails, the accused should be found guilty of voluntary
19 manslaughter.” Id. ¶ 9 (internal quotation marks and citation omitted). “[T]he critical
6 1 difference between self-defense and voluntary manslaughter lies not in provocation
2 or the emotion of fear, but rather in the reasonableness of the defendant’s conduct in
3 killing.” Abeyta, 1995-NMSC-051, ¶ 17 (internal quotation marks and citation
4 omitted). As we have reiterated, “reasonableness in the use of force is generally a
5 matter for the jury.”Johnson, 1998-NMCA-019, ¶ 16.
6 {12} After reviewing the record in accordance with our mandated standard of
7 review, we conclude that the State presented sufficient evidence for the jury to find
8 sufficient provocation, and that Defendant’s actions were not taken in self-defense.
9 The jury could properly find that Kevin’s actions in repeatedly charging at Defendant
10 aroused sufficient fear in Defendant, which would affect the ability to reason and
11 cause a temporary loss of self control, but that a reasonable person in the same
12 circumstances would not have used a knife to stab Kevin when Kevin did not have
13 a weapon. See Abeyta, 1995-NMSC-051, ¶ 17 (“If the jury rejects the theory of self-
14 defense, it may still find the defendant acted under provocation of fear and may
15 mitigate the charge of murder to the lesser charge of voluntary manslaughter.”). The
16 jury was free to accept Defendant’s version of the facts to find sufficient provocation,
17 and it was also free to reject Defendant’s version of the facts that he acted as a
18 “reasonable person” under the circumstances and therefore failed to act in self-
19 defense. See State v. Stefani, 2006-NMCA-073, ¶ 39, 139 N.M. 719, 137 P.3d 659
7 1 (recognizing that “the jury was free to believe or disbelieve [the defendant’s]
2 theory”).
3 B. Sufficient Evidence for Solicitation
4 {13} Defendant argues that there was insufficient evidence to convict him of
5 criminal solicitation to commit tampering with evidence.
6 {14} Defendant’s arguments require us first to consider the statutory framework.
7 Section 30-28-3(A) makes criminal solicitation a crime. It requires the perpetrator to
8 intend “that another person engage in conduct constituting a felony[.]” Id. When the
9 perpetrator has this intent and “solicits, commands, requests, induces, employs or
10 otherwise attempts to promote or facilitate another person to engage in conduct
11 constituting a felony,” criminal solicitation is committed. Id. Criminal solicitation is
12 punishable as a second, third, or fourth degree felony depending on the degree of the
13 felony solicited. Section 30-28-3(E).
14 {15} The substantive crime of tampering with evidence “consists of destroying,
15 changing, hiding, placing or fabricating any physical evidence with intent to prevent
16 the apprehension, prosecution or conviction of any person or to throw suspicion of
17 the commission of a crime upon another.” NMSA 1978, § 30-22-5(A) (2003).
18 Tampering with evidence is punishable as a third degree felony if the tampering
19 relates to a capital, first degree, or second degree felony; it is punishable as a fourth
8 1 degree felony if the tampering relates to a third degree or fourth degree felony; and
2 it is punishable as a petty misdemeanor if the tampering relates to a misdemeanor or
3 petty misdemeanor. Section 30-22-5 (B)(1)-(3). Applicable to this case, where the
4 tampering relates to a crime that is “indeterminate,” it is punishable as a fourth degree
5 felony. Section 30-22-5(B)(4).
6 {16} In order to find Defendant guilty of criminal solicitation to commit tampering
7 with evidence, the jury was instructed that it was required to find beyond a reasonable
8 doubt that “[D]efendant intended that another person commit the crime of [t]ampering
9 with [e]vidence[,]” and “solicited, commanded, or requested the other person to
10 commit the crime of [t]ampering with [e]vidence[.]” See UJI 14-2817 NMRA. “[A]
11 charge of solicitation is complete when the solicitation to commit the intended felony
12 is made and it is immaterial that the object of the solicitation is not carried out or that
13 no overt steps were in fact taken toward the consummation of the offense.” State v.
14 Cotton, 1990-NMCA-025, ¶ 26, 109 N.M. 769, 790 P.2d 1050. Because Section 30-
15 28-3(A) requires that the crime solicited is a felony, the jury was also given an
16 instruction on the essential elements of tampering with evidence. This instruction
17 advised the jury that the elements of tampering with evidence required proof that
18 “[D]efendant destroyed, changed, hid, fabricated or placed a backpack[,]” and that
19 “[D]efendant intended to prevent the apprehension, prosecution or conviction of
9 1 himself [or] to create the false impression that another person had committed a
2 crime[.]”
3 {17} Defendant asserts that the only “crime” the tampering of evidence could relate
4 to is possession of inhalants, a misdemeanor. NMSA 1978, § 30-29-2 (1979).
5 Because criminal solicitation requires that the crime solicited is a felony, Defendant
6 contends that his conviction cannot stand. Moreover, Defendant asserts, because the
7 crime to which the tampering related was not unknown or undetermined, his
8 conviction for criminal solicitation of an “indeterminate” crime fails. In support of
9 this argument, Defendant relies on State v. Jackson, 2010-NMSC-032, 148 N.M. 452,
10 237 P.3d 754. Finally, Defendant asserts that the criminal solicitation conviction must
11 be set aside because he renounced his request to tamper with evidence.
12 {18} Jackson is of no assistance to Defendant here. In Jackson, the defendant
13 entered into a conditional guilty plea to tampering with evidence by providing a false
14 urine sample while on probation. Id. ¶¶ 3, 5. The defendant argued on appeal that
15 tampering with evidence requires proof of tampering with evidence of a separate,
16 underlying crime, and that while providing a false urine sample to his probation
17 officer might constitute a probation violation, it was not an independent crime. Id. ¶¶
18 4, 6. Our Supreme Court disagreed and held that the “indeterminate crime” provision
19 of Section 30-22-5(B)(4) applies “to punish acts of tampering with evidence where
10 1 no underlying crime could be identified.” Jackson, 2010-NMSC-032, ¶ 21. An
2 example where a crime could not be identified is State v. Alvarado, 2012-NMCA-
3 089, ¶ 14, ___ P.3d ___. In Alvarado, as in this case, the jury instruction on tampering
4 with evidence did not require the jury to determine what crime, if any, to which the
5 tampered evidence related. Id. ¶¶ 10, 14. We held that under these circumstances, the
6 defendant must be sentenced under the “indeterminate crime” provision of Section
7 30-22-5(B)(4). Alvarado, 2012-NMCA-089, ¶ 14. We also recently recognized in
8 State v. Radosevich that “tampering with evidence can be a stand-alone crime that is
9 not tied to a separate crime.” 2016-NMCA-060, ¶ 25, 376 P.3d 871, cert. granted,
10 2016-NMCERT-007, ___ P.3d ___, (No. 35,864, July 1, 2016). “Where there is no
11 separate, identified crime, the tampering offense is linked to an indeterminate crime
12 under Section 30-22-5(B)(4), and is punished as a fourth-degree felony.” Radosevich,
13 2016-NMCA-060, ¶ 25. Since the jury was not required to find in the instruction that
14 “[the d]efendant tampered with any particular crime or degree of crime, tampering
15 was instructed as a stand-alone crime.” Id. ¶ 31. We therefore review whether there
16 was sufficient evidence under our mandated standard of review to convict Defendant
17 of criminal solicitation to commit tampering with evidence as a stand-alone crime.
18 {19} Defendant called Tiffany from the jail knowing that the police were present and
19 investigating the stabbing. Defendant had already told the police the stabbing resulted
11 1 from Kevin becoming enraged from sniffing or “huffing” Dust-Off. When Tiffany
2 told Defendant that the police were going to take his black backpack with Dust-Off
3 cans inside it, Defendant told her to take it out of the house. Tiffany told Defendant
4 she could not because the police were everywhere, and Defendant asked her to take
5 the Dust-Off cans out of the backpack and tell the police the backback belonged to
6 someone else. The evidence clearly supports findings that Defendant intended Tiffany
7 to tamper with evidence consisting of his backpack and the Dust-Off cans inside it
8 and that Defendant requested Tiffany to tamper with that evidence by concealing it
9 and lying about ownership of the backpack, for the purpose of preventing his
10 prosecution or conviction for stabbing Kevin. This was all that was required under
11 the instructions given to the jury. We therefore conclude that sufficient evidence
12 supports Defendant’s conviction of criminal solicitation to commit tampering with
13 evidence as a stand-alone crime and reject Defendant’s sufficiency of the evidence
14 arguments.
15 {20} This brings us to Defendant’s last argument that, as a matter of law, he
16 voluntarily withdrew his criminal solicitation to Tiffany when he told her to tell the
17 truth if police officers questioned her. It is an affirmative defense in a prosecution for
18 criminal solicitation when “under circumstances manifesting a voluntary and
19 complete renunciation of criminal intent, the defendant: (1) notified the person
12 1 soliticited; and (2) gave timely and adequate warning to law enforcement authorities
2 or otherwise made a substantial effort to prevent the criminal conduct solicited.”
3 Section 30-28-3(B). We have already concluded that the evidence is sufficient to
4 support Defendant’s conviction for criminal solicitation to commit tampering with
5 evidence. At best, therefore, the evidence on whether Defendant presented sufficient
6 evidence on the affirmative defense is conflicting, and there was no error in failing
7 to direct a verdict in Defendant’s favor. Cf. Gutierrez v. Valley Irrigation & Livestock
8 Co., 1960-NMSC-124, ¶¶ 15-16, 68 N.M. 6, 357 P.2d 664 (stating that where the
9 evidence is capable of differing interpretations in connection with an affirmative
10 defense, a jury question is presented). Moreover, because Defendant did not argue
11 that the evidence supported the affirmative defense as a matter of law, nor request an
12 instruction on the affirmative defense, he waived the defense. See State v. Kerby,
13 2005-NMCA-106, ¶ 39, 138 N.M. 232, 118 P.3d 740 (stating that an affirmative
14 defense can be “forfeited” by a defendant’s failure to assert it in a timely manner); see
15 State v. Savage, 1992-NMCA-126, ¶¶ 10-11, 115 N.M. 250, 849 P.2d 1073 (stating
16 that an affirmative defense must be raised in the district court and preserved for
17 review by submitting a requested instruction on the defense); see also § 30-28-3(B)
18 (stating that the burden of raising the affirmative defense is on the defendant).
19 {21} To conclude our discussion regarding Defendant’s conviction in this regard,we
13 1 note that a correction must be made to the judgment, sentence, and order determining
2 habitual offender status. The document correctly recites that Defendant was convicted
3 of solicitation to commit tampering with evidence, but it incorrectly cites to the
4 tampering with evidence statute, Section 30-22-5. Although it will not alter the
5 sentence imposed, we remand this case to the district court to correct this clerical
6 error to substitute Section 30-28-3 (A) and (E)(3).
7 III. CONCLUSION
8 {22} We remand this case to the district court to correct the judgment, sentence, and
9 order determining habitual offender status, and otherwise affirm Defendant’s
10 convictions and sentence.
11 {23} IT IS SO ORDERED.
12 __________________________________ 13 MICHAEL E. VIGIL, Chief Judge
14 WE CONCUR:
15 _________________________ 16 LINDA M. VANZI, Judge
17 _________________________ 18 J. MILES HANISEE. Judge