State v. Mason

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. 31,560 5 ANADASHA MASON, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 8 Louis P. McDonald, District Judge

9 Gary K. King, Attorney General 10 James W. Grayson, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender 14 J.K. Theodosia Johnson, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge.

1 {1} Defendant Anadasha Mason appeals from her convictions for attempted first 2 degree murder, aggravated battery, and tampering with evidence. The State concedes 3 that Defendant’s convictions for both attempted murder and aggravated battery violate 4 the prohibition against double jeopardy. We accept the State’s concession but find no 5 other error. Accordingly, we reverse and remand to the district court for the limited 6 purpose of vacating Defendant’s conviction for aggravated battery. 7 BACKGROUND 8 {2} Defendant and her husband, Kirk Mason, (Husband) married on February 14, 9 2000, after meeting online. They lived together at Husband’s house in Rio Rancho 10 with their two large dogs. On January 19, 2009, Defendant called 911 to report that 11 Husband had been shot by an intruder who broke into their house. When the police 12 officers arrived on scene, they did not see evidence of an interrupted burglary or home 13 invasion. The front door was slightly ajar, but there were no signs of forced entry. 14 The house was “in a neat order[.]” “Nothing appeared to be . . . turned over [or] 15 ransacked[.]” Defendant “appeared calm” and did not appear to have been crying. 16 The officers found Husband in bed with a gunshot wound to his head. He was 17 surrounded by “[a] lot of blood” that “looked like it had coagulated.” There was a 18 Derringer handgun on the floor in the bedroom and another handgun on the dresser. 19 Emergency personnel transported Husband to the hospital, where he underwent 20 surgery. He survived the shooting but suffers from right-side weakness, sensation

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1 deficits, and problems understanding and expressing language. The injuries are 2 “fairly profound.” 3 {3} Defendant told the police that she had woken up at approximately 7:00 a.m. 4 and let the dogs out. She then went to the bathroom to put in her contacts. She heard 5 a loud bang, exited the bathroom, and noticed that Husband had been shot. 6 {4} Officers found a number of items in the home that were suspicious. Outside the 7 front door, there was a pink pillowcase that contained a bottle of Crown Royal, a 8 camera, and a set of silver. These items had been stored in various locations in the 9 house. The liquor cabinet was undisturbed apart from the missing bottle of Crown 10 Royal. In addition, the officers discovered that the pink pillowcase came from a set 11 in the hallway linen closet. The other items in the set were “neat, organized” and 12 appeared to have been undisturbed. 13 {5} Next to the front door was a trash can containing a wooden drawer to a jewelry 14 box and some DVDs. Defendant’s purse was on the dining room table, untouched. 15 There was a note on the kitchen counter that read, “You’re next, Kirk.” The officers 16 saw a wet newspaper and some rags on the kitchen counter. Defendant stated she had 17 been using Brasso to clean silver the night before the shooting, but the officers 18 testified that it smelled like gun cleaning solution, not Brasso. In addition, Brasso is 19 generally used to clean brass, not silver, and officers were never able to locate any 20 Brasso in the house. The officers did, however, find a trash can outside of the house

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1 that “had a very strong, pungent odor . . . [of] gun cleaning oil,” but the trash can had 2 been emptied prior to the search. 3 {6} While Defendant claimed that she had heard a gunshot while putting her 4 contacts in, there was no contact case or contact lens solution on the bathroom 5 counter. The bathroom was “fairly neat, clean” and did not appear to have been used. 6 Officers searched the dresser in the bedroom and found credit card statements in a 7 drawer “hidden underneath [women’s] clothing.” The credit card statements reflected 8 outstanding balances totaling $54,820.11. The police learned that Husband worked 9 as a dealer at Santa Ana Star Casino for a number of years and was a frugal person. 10 He never used credit cards but always gave money to Defendant if she needed it. 11 {7} After Husband was transported to the hospital, the police decided they needed 12 to talk to Defendant. Officer Robert Cordova was transporting Defendant to the 13 hospital but, at the request of Detective Michael Applegate, transported Defendant to 14 the Rio Rancho police station instead. At the police station, Defendant spoke with 15 Detectives Applegate and Buhl. Defendant described what had happened at the house 16 and described approximately seven prior incidents involving an alleged stalker, all of 17 which she had previously reported to the police. 18 {8} On December 10, 2008, five weeks prior to the shooting, Defendant called the 19 police to report that someone had spray painted the word “Thief” on the hood of a 20 vehicle parked in her and Husband’s driveway. On that same day, Defendant filed a

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1 police report claiming she had been harassed at a Wal-Mart store. Defendant claimed 2 that a Hispanic male approached her, grabbed her arm, and asked her whether she was 3 “the wife of [a] thief[.]” Defendant later prepared a written report of this incident, 4 describing the suspect as having a “scar above his left eye” and wearing jeans and 5 boots. Defendant reported that she was approached by this same man at Kohl’s on 6 December 26, 2008. The loss prevention manager at Wal-Mart reviewed surveillance 7 video from the date of the alleged incident and could not substantiate Defendant’s 8 claim. The manager at Kohl’s investigated Defendant’s report and determined it 9 “never occurred.” 10 {9} On January 4, 2009, Defendant called the police to report a suspicious person 11 in her backyard. She stated that she was in her house, heard her dogs growl, and 12 looked out the kitchen window, where she saw a man staring at her. She stated that 13 the man ran through the backyard, over the back wall, and out of the yard. Officers 14 found prints from cowboy boots in the backyard. The prints were located throughout 15 the yard going up to a wall, but no prints were located on the other side of the wall. 16 {10} On January 6, 2009, Defendant reported that her vehicle was damaged while 17 parked in the garage of the casino where Husband worked. Employees at the casino 18 reviewed surveillance videotape of the garage “but . . . could not find anything that 19 would substantiate the complaint.” Casino employees also reviewed surveillance 20 videotape of the table where Husband worked and could not substantiate reports that

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1 Husband was involved in any sort of disturbance while at work. Husband never 2 reported any disturbance to the casino; the reports came only from Defendant. 3 {11} On January 7, 2009, Defendant called the police to report that someone had 4 broken into her car while it was parked in the garage at her house and had stolen a 5 Derringer handgun and a whiskey flask from the center console. A police officer 6 responding to the scene observed that the passenger’s side door of Defendant’s car 7 was open, but the officer noted that because of the vehicle’s location in the garage, it 8 “would have been very difficult” for someone to access the center console from the 9 passenger side. The police were not able to locate any fingerprints. Defendant 10 informed the police that she believed the suspect might be a disgruntled gambler 11 because Husband worked at the casino. 12 {12} On January 15, 2009, Defendant called the police to report that an individual 13 had shot at her from the rear of her house. Defendant described the stalker as a 14 Hispanic male, approximately 5'10" tall, wearing cowboy boots. The police could not 15 find any shell casings or other metal objects in the backyard. They did find some 16 prints from “very small and narrow” cowboy boots. The officers conducted a 17 neighborhood canvass, but the majority of people to whom they spoke did not hear or 18 see anything. One person said he heard a gunshot but did not see anything. On 19 January 17, 2009, Defendant contacted the police to report that she had found a note

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1 and bullet casing on the front porch of her and Husband’s house. The note said, “UR 2 next, Kirk.” 3 {13} Defendant discussed these events with Detectives Applegate and Buhl for 4 approximately twenty minutes. Detective Applegate believed the events Defendant 5 was describing were not “making sense” and asked Detective Buhl to advise 6 Defendant of her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). 7 Defendant waived her rights and executed a written waiver. Defendant was then 8 questioned for approximately one hour. The detectives believed Defendant “was not 9 being truthful” and “was somehow responsible[.]” However, Defendant was not 10 arrested at that time. At the conclusion of the interview, the police gave Defendant 11 a ride to a friend’s house. 12 {14} Approximately two weeks after Husband was shot, Defendant provided the 13 police with a list of items that she claimed were stolen by the intruder on January 19, 14 2009. This list contained a lot of electronic equipment, including laptop computers 15 and computer games, some of which were identified by serial numbers. The police 16 contacted the various manufacturers of the items identified with serial numbers and 17 learned from every manufacturer that the serial numbers were not valid—that is, the 18 serial numbers had never been issued. When Defendant was ultimately arrested, 19 approximately six months after the shooting, she had $9,000 cash in her purse.

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1 {15} On July 10, 2009, Defendant was charged by criminal information with attempt 2 to commit first degree murder (willful or deliberate) and tampering with evidence. As 3 an alternate to Count One, Defendant was charged with aggravated battery with a 4 deadly weapon. Defendant filed a motion to suppress on January 29, 2010. She 5 argued that the statements she made to the police officers on or about January 19, 6 2009, should be suppressed because, among other things, she “was not properly 7 advised of her Constitutional right[s]” and “did not knowingly, intelligently, and 8 voluntarily” waive those rights prior to being questioned. She filed an amended 9 motion on September 29, 2010, arguing that she “did not knowingly, intelligently, and 10 voluntarily waive her Constitutional rights prior to the beginning of any questioning 11 by police officers due to various medications Defendant was taking at the time of 12 questioning.” 13 {16} The district court held a hearing on Defendant’s motion on January 27, 2011. 14 The issue at the hearing was whether Defendant knowingly, intelligently, and 15 voluntarily waived her rights pursuant to Miranda. Detectives Buhl and Applegate 16 testified for the State, and the district court reviewed the written transcript of 17 Defendant’s interview and a videotaped recording of the interview. The district court 18 found that Defendant knowingly, intelligently, and voluntarily waived her rights and, 19 on that basis, denied her motion to suppress.

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1 {17} A jury trial began on February 7, 2011. Husband was one of many witnesses 2 who testified for the State. The prosecutor showed Husband the bills that had been 3 found in the bedroom dresser, and he stated he had never seen them before and was 4 not aware of them. Husband testified that he had a life insurance policy for one 5 hundred thousand dollars and Defendant knew about the policy. Husband testified 6 that on the day he was shot, only he and Defendant were in the house. He said that 7 Defendant had asked him to tell the police that someone else was in the house and he 8 had done so previously, but this was not true and “it [was] not right because [he did 9 not] see anybody.” Husband also testified that no one at the casino was angry with 10 him. 11 {18} The jury found Defendant guilty of attempted first degree murder as charged 12 in Count One, aggravated battery (deadly weapon) as charged in the alternate to Count 13 One, and tampering with evidence as charged in Count Two. At sentencing, the State 14 agreed with the district court that the aggravated battery conviction “merged into” the 15 attempted first degree murder conviction. The district court sentenced Defendant to 16 nine years imprisonment for attempted first degree murder with a one-year firearm 17 enhancement, and three years imprisonment for tampering with evidence, for a total 18 term of thirteen years imprisonment. 19 DISCUSSION

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1 {19} Defendant raises four issues on appeal. First, she contends her convictions for 2 attempted murder and aggravated battery violate the prohibition against double 3 jeopardy. Second, she contends the district court erred in denying her motion to 4 suppress the statements she made to the police on the day of the shooting because she 5 was not properly advised of her Miranda rights. Third, she contends the jury 6 instruction on tampering with evidence was erroneous because it failed to identify the 7 evidence with which she allegedly tampered. Fourth, she argues there was insufficient 8 evidence to support her convictions. 9 A. Double Jeopardy 10 {20} Defendant contends her convictions for attempted murder and aggravated 11 battery, which were charged as alternative counts based on the same conduct, violate 12 the prohibition against double jeopardy. At sentencing, the district court referred to 13 the aggravated battery conviction as merging with the attempted murder conviction, 14 but the State concedes that, “to remedy a double jeopardy violation, merger is 15 insufficient, and the conviction must be vacated.” Because we are not required to 16 accept the State’s concession, see State v. Guerra, 2012-NMSC-027, ¶ 9, 284 P.3d 17 1076, we independently review the merits of Defendant’s argument. 18 {21} The Double Jeopardy Clause of the Fifth Amendment of the United States 19 Constitution, made applicable to New Mexico by the Fourteenth Amendment, 20 “functions in part to protect a criminal defendant against multiple punishments for the

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1 same offense.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747 (internal 2 quotation marks and citation omitted). In a double-description case, the same conduct 3 results in multiple convictions under different statutes, which violates the prohibition 4 against double jeopardy. Id. A defendant can raise a double jeopardy claim at any 5 stage of a criminal prosecution, see State v. Jackson, 1993-NMCA-092, ¶ 12, 116 6 N.M. 130, 860 P.2d 772, and we review double jeopardy claims de novo. Swick, 7 2012-NMSC-018, ¶ 10. 8 {22} In Swick, our Supreme Court overruled State v. Armendariz, 2006-NMSC-036, 9 ¶ 31, 140 N.M. 182, 141 P.3d 526, and held that where a defendant is convicted of 10 attempted murder and aggravated battery based on the same conduct, the convictions 11 violate the protections against double jeopardy. Swick, 2012-NMSC-018, ¶¶ 19-20, 12 27. The remedy for this double jeopardy violation is to vacate the conviction that 13 carries the lesser punishment. Id. ¶ 31. 14 {23} Here, the district court recognized that Defendant could not be sentenced for 15 both attempted first degree murder and aggravated battery, but the district court did 16 not vacate the aggravated battery conviction. Instead, the district court concluded that 17 the aggravated battery conviction merged with the attempted murder conviction. This 18 was error. See State v. Schoonmaker, 2008-NMSC-010, ¶ 50, 143 N.M. 373, 176 P.3d 19 1105 (holding that, to remedy the imposition of impermissible multiple punishments 20 for a single offense, “the district court was required not only to ‘merge’ [the

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1 d]efendant’s convictions on alternative counts . . . but to vacate one of those 2 alternative convictions; simply sentencing [the d]efendant for only one conviction was 3 not enough”). 4 {24} Accordingly, we remand to the district court for the limited purpose of vacating 5 Defendant’s conviction for aggravated battery. The district court does not need to 6 resentence Defendant because Defendant was not sentenced for aggravated battery. 7 B. Motion to Suppress 8 {25} Defendant contends the district court erred in denying her motion to suppress 9 because: (1) the statements she made prior to being advised of her Miranda rights 10 were made “under the pressure of custodial interrogation”; (2) the statements she 11 made after being advised of her Miranda rights were the result of an invalid “question 12 first” technique; and (3) all of the statements she made were involuntary “due to her 13 debilitated mental state and because the detectives’ conduct constituted overreaching.” 14 {26} In reviewing the grant or denial of a motion to suppress, “[w]e consider the 15 facts in the light most favorable to the prevailing party and defer to the district court’s 16 findings of fact if those findings are supported by substantial evidence.” State v. 17 Anaya, 2008-NMCA-020, ¶ 5, 143 N.M. 431, 176 P.3d 1163. To the extent that we 18 must consider the district court’s application of the law to the facts, our review is de 19 novo. State v. Hubble, 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206 P.3d 579.

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1 {27} As an initial matter, the State argues that Defendant did not preserve or forfeited 2 most of the arguments that she now seeks to raise. We agree. “In order to preserve 3 an error for appeal, it is essential that the ground or grounds of the objection or motion 4 be made with sufficient specificity to alert the mind of the [district] court to the 5 claimed error or errors, and that a ruling thereon then be invoked.” State v. Varela, 6 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (internal quotation marks and 7 citation omitted); see Rule 12-216(A) NMRA (stating, in pertinent part, that “[t]o 8 preserve a question for review it must appear that a ruling or decision by the district 9 court was fairly invoked”). The purpose of this requirement is “(1) to alert the 10 [district] court to a claim of error so that it has an opportunity to correct any mistake, 11 and (2) to give the opposing party a fair opportunity to respond and show why the 12 court should rule against the objector.” State v. Gomez, 1997-NMSC-006, ¶ 29, 122 13 N.M. 777, 932 P.2d 1. In the context of a motion to suppress, a party must alert the 14 district court to the particular theory upon which he or she is relying. See State v. 15 Janzen, 2007-NMCA-134, ¶ 11, 142 N.M. 638, 168 P.3d 768. 16 {28} The transcript of the suppression hearing reflects that the issue before the 17 district court was whether Defendant’s waiver of her Miranda rights was effective. 18 Counsel for Defendant framed the issue as whether Defendant waived her rights in a 19 voluntary and knowing fashion. He stated he felt like he had to raise the issue because 20 Defendant was taking three prescription drugs. Counsel conceded that Defendant was

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1 not subjected to a custodial interrogation. He did mention in passing that it concerned 2 him that Defendant “[was not] Mirandized from the beginning,” but this was not the 3 basis of his motion. In denying Defendant’s motion, the district court explained:

4 Based on the testimony and my view of the video . . . I find by a 5 preponderance of the evidence that [Defendant] was lucid, coherent, and 6 capable of understanding the nature of her right to remain silent and the 7 consequences of that waiver, and I find that she made the waiver 8 knowingly and voluntarily.

9 {29} We will consider only whether the district court erred in concluding that 10 Defendant knowingly, intelligently, and voluntarily waived her Miranda rights, 11 because this is the only argument that Defendant preserved in the district court. “In 12 determining whether a waiver of rights is knowing, intelligent, and voluntary, we 13 assess the totality of circumstances.” State v. Barrera, 2001-NMSC-014, ¶ 23, 130 14 N.M. 227, 22 P.3d 1177. 15 {30} “In order to be voluntary, [a d]efendant’s statement must have been the product 16 of a free and deliberate choice rather than intimidation, coercion, or deception.” Id. 17 ¶ 27 (internal quotation marks and citation omitted). Defendant did not argue in the 18 district court that the detectives intimidated, coerced, or deceived her into waiving her 19 Miranda rights, and we thus do not consider any argument with respect to this issue 20 on appeal. Our Supreme Court has held that, “[a]bsent governmental overreaching or 21 police coercion, a waiver of Miranda rights is voluntary for purposes of a Fifth

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1 Amendment inquiry.” Barrera, 2001-NMSC-014, ¶ 27. We thus reject Defendant’s 2 claim that the State failed to establish that her waiver of rights was voluntary. 3 {31} We next consider whether Defendant’s waiver was knowing and intelligent. 4 “In order for a waiver to be knowing and intelligent, it must have been made with a 5 full awareness of both the nature of the right being abandoned and the consequences 6 of the decision to abandon it.” Id. ¶ 28 (internal quotation marks and citation 7 omitted). Defendant claims her waiver was not knowing and intelligent because she 8 took a muscle relaxer, a sleep medication, and “about six Vicodin” on the night before 9 she was questioned. 10 {32} The record reflects that Detective Applegate reviewed the waiver of rights form 11 with Defendant, and Defendant said that she understood her rights and initialed and 12 signed the waiver form. Detective Applegate testified at the suppression hearing that 13 Defendant was “perfectly capable” of answering questions. Detective Buhl testified 14 at the suppression hearing that Defendant did not appear to be intoxicated or impaired 15 in any way. Defendant did not present any evidence that the medications she had 16 taken on the night before she was questioned affected her ability to understand the 17 contents and consequences of her waiver. In light of this evidence, we perceive no 18 error in the district court’s conclusion that Defendant knowingly, intelligently, and 19 voluntarily waived her Miranda rights, and we affirm the denial of Defendant’s 20 motion to suppress.

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1 C. Jury Instruction 2 {33} Defendant contends her conviction for tampering with evidence should be 3 reversed because the jury instruction on tampering with evidence was erroneous. The 4 jury was instructed that, to find Defendant guilty of tampering with evidence, the State 5 had to prove the following elements beyond a reasonable doubt:

6 1. [D]efendant fabricated physical evidence by staging the crime 7 scene;

8 2. [D]efendant intended to prevent the apprehension, prosecution or 9 conviction of herself;

10 3. This happened in New Mexico on or about the 19th day of 11 January, 2009.

12 Defendant contends the instruction was erroneous because it failed to identify the 13 evidence with which Defendant allegedly tampered. Defendant argues that “[t]he 14 language of the jury instruction was so open-ended that if the jury believed 15 [Defendant] falsified a report of the stalker, [then] she could be guilty of tampering 16 with evidence.” 17 {34} Where, as here, a defendant does not object to an instruction in the district 18 court, we only review for fundamental error. State v. Cunningham, 2000-NMSC-009, 19 ¶¶ 8, 11, 128 N.M. 711, 998 P.2d 176. In a fundamental error analysis, “[o]ur task is 20 to determine whether a reasonable juror would have been confused or misdirected by 21 the jury instruction.” Id. ¶ 14 (internal quotation marks and citation omitted).

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1 {35} As an initial matter, the State contends that Defendant is not entitled to relief 2 because she invited the claimed error. The instruction originally stated that the jury 3 had to find that Defendant fabricated evidence by “staging a crime scene and/or 4 wiping the handgun[.]” After the district court denied Defendant’s motion for a 5 directed verdict on the charge of tampering with evidence, the district court held a 6 bench conference off the record. At the conclusion of the bench conference, the 7 parties and the district court agreed to modify the tampering instruction to remove 8 “and/or wiping the handgun” from the instruction. Defendant did not object to the 9 modified instruction. 10 {36} We have held that “to allow a defendant to invite error and to subsequently 11 complain about that very error would subvert the orderly and equitable administration 12 of justice.” State v. Collins, 2007-NMCA-106, ¶ 27, 142 N.M. 419, 166 P.3d 480 13 (alteration, internal quotation marks, and citation omitted). However, it is not clear 14 from the record that Defendant requested the change in the jury instruction. It appears 15 that the district court decided to change the jury instruction after the prosecutor stated 16 that she “would like to ask a question . . . off the record.” We thus consider the merits 17 of Defendant’s argument. 18 {37} The State contends the jury instruction was not erroneous because the term 19 “crime scene” is not an element of the offense and a definitional instruction was not 20 necessary because the term has a commonly understood meaning and was used in

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1 accordance with that meaning. We agree. In State v. Gonzales, our Supreme Court 2 explained that, as a general matter, “definitional instructions are not required when the 3 terms [in a jury instruction] are used in their ordinary sense.” 1991-NMSC-075, ¶ 30, 4 112 N.M. 544, 817 P.2d 1186. The Gonzales Court found no error in a jury 5 instruction where the terms used in the instruction (help, cause, and encourage) are 6 words with common meanings. Id. 7 {38} Similarly here, we conclude that the term “crime scene” has a common meaning 8 and did not require definition. Defendant was not charged with any crimes arising out 9 of her reports of any stalking incidents. Consequently, evidence relating to 10 Defendant’s filing of those reports could not have been evidence that Defendant 11 fabricated at a “crime scene.” It is clear that the reference to “crime scene” was a 12 reference to Defendant’s and Husband’s house on the day Husband was shot. Because 13 we conclude that a reasonable jury could not have been confused or misled by the 14 instruction as given, the district court did not commit fundamental error. 15 D. Sufficiency of the Evidence 16 {39} Defendant argues there was insufficient evidence to support her convictions for 17 attempted first degree murder, aggravated battery, and tampering with evidence. She 18 cites State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, and State v. 19 Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, in support of her argument. We 20 note that we have already held that Defendant’s conviction for aggravated battery

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1 must be vacated, so we do not consider whether the evidence was sufficient to support 2 Defendant’s conviction on this count. 3 {40} “In reviewing the sufficiency of the evidence, we must view the evidence in the 4 light most favorable to the guilty verdict, indulging all reasonable inferences and 5 resolving all conflicts in the evidence in favor of the verdict.” Cunningham, 2000- 6 NMSC-009, ¶ 26. “The relevant question is whether, after viewing the evidence in 7 the light most favorable to the prosecution, any rational trier of fact could have found 8 the essential elements of the crime beyond a reasonable doubt.” Id. (alteration, 9 internal quotation marks, and citation omitted). 10 {41} Defendant was convicted of attempted first degree murder in violation of 11 NMSA 1978, Section 30-28-1(A) (1963), and NMSA 1978, Section 30-2-1(A) (1994). 12 First degree murder is defined, in pertinent part, as “the killing of one human being 13 by another without lawful justification or excuse . . . by any kind of willful, deliberate 14 and premeditated killing[.]” Section 30-2-1(A)(1). Attempt to commit a felony is 15 defined as “an overt act in furtherance of and with intent to commit a felony and 16 tending but failing to effect its commission.” Section 30-28-1. 17 {42} Defendant was also convicted of tampering with evidence in violation of 18 NMSA 1978, Section 30-22-5 (2003). Tampering with evidence is defined as 19 “destroying, changing, hiding, placing or fabricating any physical evidence with intent

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1 to prevent the apprehension, prosecution or conviction of any person or to throw 2 suspicion of the commission of a crime upon another.” Section 30-22-5(A). 3 {43} Defendant contends there was insufficient evidence to support her convictions 4 for attempted first degree murder and tampering with evidence because she and 5 Husband had “documented problems . . . with a stalker prior to the shooting” and the 6 police officers “inadequately investigated the stalking incidents.” While we agree that 7 Defendant reported multiple incidents involving an alleged stalker, there was evidence 8 that the police investigated these incidents and could not substantiate any of them. 9 Among other things, surveillance video recordings reflected that there was no stalker 10 at Wal-Mart, no stalker at Kohl’s, and no stalker in the casino parking garage. In 11 addition, police officers found cowboy boot prints in Defendant’s backyard, allegedly 12 from the stalker who jumped over the back wall, but the prints did not continue on the 13 other side of that back wall. The police officer who responded to the alleged theft 14 from Defendant’s vehicle noted it “would have been very difficult” for someone to 15 access the center console from the passenger side. After the shooting, Defendant 16 provided the police with a list of items that she claimed were stolen on the day of the 17 shooting, but the serial numbers that Defendant provided were fabricated. 18 {44} Defendant also claims the evidence was insufficient because the police did not 19 test the newspaper and rags found on the kitchen counter to determine whether they 20 were soaked with gun cleaner, as the State argued, or Brasso, as she claimed. All of

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1 the officers who testified about the newspaper and rags said they smelled like gun 2 cleaning solution, not Brasso. In addition, though Defendant claimed she was using 3 Brasso to clean silver on the night before Husband was shot, there was testimony that 4 Brasso is used to clean brass, not silver, and no Brasso was ever found in the house. 5 There was testimony that the trash can outside Defendant’s house smelled strongly of 6 gun cleaner, but the trash had been collected on the day of the shooting, so officers 7 were not able to observe the contents. 8 {45} While we agree, in theory, that the State could have presented additional 9 evidence that there was never a stalker and that Defendant was cleaning a gun and not 10 polishing silver on the night before the shooting, we do not hesitate to conclude that 11 the State presented sufficient evidence to support the jury’s verdict. There was 12 evidence that Defendant deliberately intended to kill Husband on January 19, 2009, 13 shot Husband in the head, but failed to kill him. There was evidence that both before 14 and after the shooting, Defendant fabricated physical evidence by staging the crime 15 scene so that it appeared that Husband was shot by an intruder, intending to prevent 16 her apprehension, prosecution, or conviction for the crime. Defendant has 17 consistently maintained her innocence, but “[t]he fact finder may reject [a] defendant’s 18 version of the incident.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 19 P.2d 1314. We do not substitute our judgment for that of the jury, but determine only 20 whether the evidence was sufficient to support the jury’s verdict. Id. We conclude

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1 that it was and thus affirm Defendant’s conviction for attempted first degree murder 2 and tampering with evidence. 3 CONCLUSION 4 {46} Because we conclude that Defendant cannot be convicted for both attempted 5 first degree murder and aggravated battery, we remand to the district court for the 6 limited purpose of vacating Defendant’s conviction for aggravated battery. In all 7 other respects, we conclude that no error exists and affirm Defendant’s conviction for 8 attempted first degree murder and tampering with evidence. 9 {47} IT IS SO ORDERED.

10 __________________________________ 11 LINDA M. VANZI, Judge

12 WE CONCUR:

13 _________________________________ 14 MICHAEL D. BUSTAMANTE, Judge

15 _________________________________ 16 JONATHAN B. SUTIN, Judge