1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: December 27, 2018
4 NO. S-1-SC-36229
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 ANDREW ROMERO,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 11 George P. Eichwald, District Judge
12 Bennett J. Baur, Chief Public Defender 13 Kimberly Chavez Cook, Assistant Appellate Defender 14 Santa Fe, NM
15 for Appellant
16 Hector H. Balderas, Attorney General 17 Martha Anne Kelly, Assistant Attorney General 18 Anita Carlson, Assistant Attorney General 19 Santa Fe, NM
20 for Appellee 1 OPINION
2 CLINGMAN, Justice.
3 {1} Defendant Andrew Romero appeals his convictions arising from the shooting
4 death of Rio Rancho Police Officer Gregg Nigel Benner during a traffic stop.
5 Defendant was convicted of first-degree murder under NMSA 1978, Section 30-2-
6 1(A)(1) (1994); two counts of tampering with evidence under NMSA 1978, Section
7 30-22-5 (2003); shooting at or from a motor vehicle under NMSA 1978, Section 30-
8 3-8(B) (1993); conspiracy to commit armed robbery under NMSA 1978, Section 30-
9 28-2 (1979) and NMSA 1978 Section 30-16-2 (1973); aggravated fleeing a law
10 enforcement officer under NMSA 1978, Section 30-22-1.1 (2003); and concealing
11 identity under NMSA 1978, Section 30-22-3 (1963). The sentencing jury found
12 aggravating circumstances in Defendant’s first-degree murder conviction because
13 Defendant murdered Officer Benner when Officer Benner was acting in the lawful
14 discharge of an official duty and Defendant knew Officer Benner to be a peace officer
15 at the time of the crime. NMSA 1978, § 31-20A-5(B) (1981). For his crimes, the trial
16 court sentenced Defendant to life in prison without the possibility of parole plus sixty
17 years. Defendant appeals directly to this Court. See N.M. Const. art. VI, § 2; Rule 12-
18 102(A)(1) NMRA (requiring that appeals from sentences of life imprisonment be
19 taken to the Supreme Court). 1 {2} Defendant raises eleven issues on appeal: (1) the trial court erred by not
2 transferring venue outside of the Albuquerque metropolitan area; (2) the trial court
3 erred by not excusing for cause those jurors who were exposed to publicity about the
4 case; (3) the presence of excessive security during the trial prejudiced Defendant; (4)
5 the trial court erred in admitting evidence of uncharged robberies; (5) the trial court
6 should have ordered severance of count five, conspiracy to commit armed robbery;
7 (6) the trial court erred in admitting a video recording of Defendant’s nonverbal
8 gestures; (7) the trial court erred in admitting a recording of Defendant’s jail
9 telephone call; (8) cumulative error deprived Defendant of a fair trial; (9) Defendant’s
10 conviction of shooting at or from a motor vehicle constitutes double jeopardy; (10)
11 the State failed to prove the essential elements of aggravated fleeing; and (11) the
12 State failed to prove deliberate intent, an element necessary to maintain Defendant’s
13 first-degree murder conviction. We affirm all of Defendant’s convictions except for
14 his conviction of shooting at or from a motor vehicle, which we vacate on double
15 jeopardy grounds.
16 I. BACKGROUND
17 {3} Officer Benner was shot and killed during a routine traffic stop at
18 approximately 8 p.m. on May 25, 2015. Officer Benner had initiated the traffic stop
2 1 of a Dodge Durango because it had a suspicious license plate. Officer Benner initially
2 pulled the Durango over in a parking lot next to Arby’s on Southern and Pinetree in
3 Rio Rancho. Tabitha Littles drove the Durango, and a passenger in the vehicle
4 identified himself to Officer Benner as Albert Fresquez. Witnesses later identified
5 Defendant as this passenger. Unbeknownst to Officer Benner, approximately seven
6 hours before the traffic stop, Defendant and Ms. Littles had robbed a Taco Bell in
7 Albuquerque. Officer Benner’s traffic stop was unrelated to the Taco Bell robbery.
8 {4} During this initial traffic stop Officer Benner moved to the rear of the Durango,
9 and, as he began approaching the passenger side, the Durango suddenly accelerated
10 out of the parking lot. While Officer Benner was moving around the Durango,
11 Defendant removed his pistol from under his seat and was holding it between his seat
12 and the center console of the vehicle. Officer Benner pursued the fleeing Durango and
13 caught up to it a short distance away. During the short pursuit, Defendant shoved Ms.
14 Littles out of the Durango, took control of the vehicle, and then brought the vehicle
15 to a stop. As Officer Benner again approached the Durango, this time on the driver
16 side, Defendant fired his pistol four times. All four bullets struck Officer Benner, and
17 he was mortally wounded. Defendant then fled from the scene in the Durango. A
18 multiagency, city-wide manhunt ensued.
3 1 {5} At 2:40 a.m. on May 26, 2015, approximately six and a half hours after
2 Defendant shot Officer Benner, Defendant robbed a Shell/Giant gas station. While
3 investigating that robbery, police officers attempted to stop a Chevrolet Impala
4 fleeing from police. During the pursuit, officers observed an object being thrown
5 from the front passenger window. When the chase ended, police found Defendant
6 sitting in the front passenger seat of the Impala and arrested him. Officers recovered
7 the object that was thrown from the front passenger window of the Impala during the
8 chase. It was a nine millimeter Beretta pistol which was later determined to be the
9 pistol used to kill Officer Benner. Defendant’s DNA was found on the pistol. When
10 officers searched Defendant, they found the keys to the Dodge Durango that Officer
11 Benner had pulled over and which had fled the scene of his murder.
12 {6} On June 11, 2015, a grand jury indicted Defendant on ten counts related to
13 Officer Benner’s murder. On October 3, 2016, a jury found Defendant guilty of seven
14 of those counts. The trial court sentenced Defendant to life in prison without parole
15 plus sixty years. This direct appeal followed Defendant’s sentencing. Additional facts
16 will be provided as necessary in the discussion below.
17 II. DISCUSSION
18 A. The Trial Court’s Decision to Change Venue to Valencia County
4 1 {7} Media coverage of this case was robust and almost entirely negative toward
2 Defendant. Politicians and the public used Defendant and the murder of Officer
3 Benner as a rallying cry for anticrime legislation. Because of the extensive media
4 coverage, Defendant filed a motion to change venue to Rio Arriba County, McKinley
5 County, or Taos County. The trial court granted Defendant’s motion to change venue
6 but moved the trial to Valencia County. The trial court concluded that Valencia
7 County was an appropriate venue, and cited public excitement in Sandoval County
8 as reason for the move. See NMSA 1978, § 38-3-3(B)(3) (2003) (requiring a change
9 of venue upon motion if, ‘because . . . of public excitement . . . involved in the case,
10 an impartial jury cannot be obtained in the county to try the case’). Although the trial
11 court’s final ruling on venue did not move the trial to one of the three counties
12 Defendant requested in his written motion, defense counsel suggested during a
13 pretrial hearing on the motion that Valencia County was an acceptable alternative.
14 {8} The trial court summoned 800 prospective jurors, and 300 of those prospective
15 jurors filled out a special questionnaire. The trial court ultimately assembled 150
16 people for the venire. At the conclusion of voir dire, Defendant renewed his motion
17 to change venue. The trial court denied Defendant’s renewed motion.
18 {9} For the reasons that follow, Defendant’s argument that the trial court erred
5 1 when it initially moved the venue to Valencia County is rendered moot because an
2 impartial jury was actually seated. This Court needs only to address the trial court’s
3 decision to keep the trial in Valencia County following jury selection.
4 1. Standard of Review
5 {10} We review the trial court’s venue determination for abuse of discretion. State
6 v. House, 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967. If the trial court
7 denies a motion to change venue based on presumed prejudice and proceeds with
8 voir dire, “we will limit our review to the evidence of actual prejudice.” State v.
9 Barrera, 2001-NMSC-014, ¶ 16, 130 N.M. 227, 22 P.3d 1177. The determination of
10 “[a]ctual prejudice requires a direct investigation into the attitudes of potential
11 jurors.” House, 1999-NMSC-014, ¶ 46. “A finding of no actual prejudice following
12 voir dire, if supported by substantial evidence, necessarily precludes a finding of
13 presumed prejudice.” Barrera, 2001-NMSC-014, ¶ 16. To prove that reversible error
14 occurred during voir dire, Defendant must show that the trial court abused its
15 discretion by not excusing a juror who demonstrated actual prejudice. See Fuson v.
16 State, 1987-NMSC-034, ¶¶ 8, 11, 105 N.M. 632, 735 P.2d 1138. The trial court’s
17 decision to wait until after voir dire to rule on a motion to change venue is squarely
18 within the trial court’s discretion and will only be reviewed for an abuse of discretion.
6 1 Barrera, 2001-NMSC-014, ¶ 16. The party that opposes the trial court’s venue
2 decision bears the burden of proving an abuse of discretion. House, 1999-NMSC-014,
3 ¶ 31.
4 2. The Trial Court Did Not Abuse Its Discretion By Holding the Trial in 5 Valencia County Because the Selected Jurors Demonstrated No Actual 6 Prejudice
7 {11} After voir dire was complete and a jury was selected, the trial court
8 reconsidered venue in Valencia County on Defendant’s renewed motion to change
9 venue. At that time the trial court not only had the evidence Defendant provided
10 concerning media saturation but also the attestations of the jurors who would actually
11 hear the case. Voir dire revealed no actual prejudice in the jury selected.
12 {12} During voir dire, the attorneys and the judge questioned potential jurors about
13 the publicity surrounding the trial and whether they could be fair and neutral arbiters.
14 Each empaneled juror affirmed the ability to be a neutral finder of fact. Defendant
15 specifically identifies seven jurors who, he argues, should have been excused for
16 cause because of media exposure. Jurors 4, 20, 22, and 38 were empaneled on the
17 jury, and Defendant used peremptory challenges to excuse Jurors 33, 45, and 65.
18 {13} Jurors 20, 22, and 38 acknowledged that they had seen news coverage about
19 the case but testified that it would not affect their ability to be impartial. Jurors 4 and
7 1 33 expressed a degree of sadness or sympathy for the victim but attested that they
2 could still be fair and impartial finders of fact. Juror 45 indicated in a pre-voir-dire
3 questionnaire that Defendant might be guilty, and Juror 65 wanted to “see justice,”
4 but both freely affirmed that Defendant was innocent until proven guilty and that they
5 could be fair and impartial.
6 {14} A careful examination of the record reveals that the trial court took great care
7 to empanel a jury that could fairly decide the case. Our case law is clear. “Exposure
8 of venire members to publicity about a case by itself does not establish prejudice or
9 create a presumption of prejudice.” Barrera, 2001-NMSC-014, ¶ 18 (internal
10 quotation marks and citation omitted). “[T]he pertinent inquiry is whether the jurors
11 . . . had such fixed opinions that they could not judge impartially the guilt of the
12 defendant.” Id. (omission in original) (internal quotation marks and citation omitted).
13 We find no evidence of such fixed opinions. As noted previously, every juror
14 Defendant asserts should have been removed for cause affirmatively stated that he or
15 she could be impartial and would strive to decide the case fairly. The trial court seated
16 a jury and in so doing determined that actual prejudice did not exist among the jurors
17 selected.
18 {15} Defendant asks us to look past the affirmative statements of the jurors during
8 1 voir dire and argues that these jurors should have been dismissed for cause merely
2 because some had heard details of the case and that “a juror’s affirmance of
3 impartiality is not conclusive” (internal quotation marks and citation omitted). On
4 matters of credibility we will not replace the trial court’s judgment with our own. See
5 State v. Hernandez, 1993-NMSC-007, ¶ 52, 115 N.M. 6, 846 P.2d 312. The trial court
6 is in a better position than this Court “to assess the demeanor and credibility of
7 prospective jurors.” Id.; see State v. Johnson, 2010-NMSC-016, ¶ 34, 148 N.M. 50,
8 229 P.3d 523 (“The trial court . . . is in the best position to determine whether voir
9 dire has sufficiently exposed any biases that may preclude jurors from acting fairly
10 and impartially.” (internal quotation marks and citation omitted)). The record
11 provides no evidence that the trial court manipulated the jurors, or in any way
12 persuaded them to declare impartiality. Furthermore, the transcript of voir dire makes
13 clear that the trial court gave the attorneys ample time and granted them great latitude
14 to question prospective jurors regarding their potential biases. Each juror that
15 Defendant argues should have been excused freely affirmed the ability to be
16 impartial.
17 {16} This Court cannot engage in judgment of the jurors’ character from the cold
18 record before it. The trial court determined through voir dire that the jurors, although
9 1 they may have heard of the case, were capable of impartiality. “More is not required.”
2 Barrera, 2001-NMSC-014, ¶ 18. We decline to adopt Defendant’s argument that any
3 exposure by the jurors to news about the case necessarily requires that those jurors
4 be dismissed. If we were to adopt Defendant’s argument, our trial courts would be
5 hard pressed to hold a trial given today’s media saturated society. The trial court did
6 not abuse its discretion by declining to excuse those jurors for cause.
7 {17} This Court need not decide the merit of the trial court’s initial decision to move
8 the venue to Valencia County. As we have discussed, an unbiased jury was actually
9 selected and seated, rendering this issue moot. Actual prejudice, not presumed
10 prejudice, is the standard by which we review the trial court’s decision in this case.
11 Id. ¶ 16. The parties and the trial court made sufficient inquiry during voir dire into
12 the actual prejudice of the jurors. The jurors selected did not exhibit actual prejudice.
13 The trial court acted within its discretion to deny the renewed motion to change
14 venue. Defendant’s argument therefore fails.
15 B. Prejudicial Effect of Security Presence in the Courtroom
16 {18} Defendant argues that the level of courthouse security during voir dire rose to
17 such an extreme that the jurors could not help but be prejudiced against Defendant.
18 Because of this, Defendant moved for a mistrial during the second day of voir dire.
10 1 1. Standard of Review
2 {19} A trial court’s denial of a motion for mistrial is reviewed for an abuse of
3 discretion. State v. Ernest Joe Gallegos, 2009-NMSC-017, ¶ 21, 146 N.M. 88, 206
4 P.3d 993. “We review the security arrangements only to determine if the security
5 arrangements were an abuse of discretion by the trial court.” State v. Martinez,
6 1982-NMCA-020, ¶ 10, 97 N.M. 540, 641 P.2d 1087.
7 2. The Trial Court Did Not Abuse Its Discretion by Denying Defendant’s 8 Motion for a Mistrial Due to the Security Presence During Voir Dire
9 {20} The mere presence of security personnel at a trial “need not be interpreted as
10 a sign that the defendant is particularly dangerous or culpable.” Holbrook v. Flynn,
11 475 U.S. 560, 560 (1986). “Jurors may just as easily believe that the officers are there
12 to guard against disruptions emanating from outside the courtroom or to ensure that
13 tense courtroom exchanges do not erupt into violence.” Id. at 569. In fact, “it is
14 entirely possible that jurors will not infer anything at all from the presence of the
15 guards.” Id. Depending on where the guards sit, how they are armed, and the number
16 of officers present, the jury may perceive the security “more as elements of an
17 impressive drama than as reminders of the defendant’s special status.” Id. The
18 presence of armed guards in our society has, in many cases, desensitized the public
19 in that “they are doubtless taken for granted so long as their numbers or weaponry do
11 1 not suggest particular official concern or alarm.” Id.
2 {21} The record contains little evidence of what the security team actually looked
3 like during voir dire and later during trial. Although not evidence, defense counsel’s
4 statements are illustrative. State v. Jacobs, 1985-NMCA-054, ¶ 24, 102 N.M. 801,
5 701 P.2d 400 (stating that defense counsel’s claim that the jury observed the
6 defendant wearing handcuffs “is not evidence” of “the facts of the [claim]”). Here,
7 defense counsel stated, “I would ask the court to consider having these corrections
8 guys not patrol the hallway with AR-15s. I know rifles. One guy was carrying six
9 30-round clips. I don’t know who he expects to shoot with six 30- or 25-round clips,
10 but it’s overkill and it’s dangerous . . . .” The trial judge said twice that he would ask
11 the sheriff to “tone down” the security presence, specifically “with regard to . . . long
12 rifles.” But Defendant provided this Court with no photographs of the security at the
13 courthouse and no witness testimony regarding security and never asked the judge to
14 take judicial notice of any fact. Defense counsel made certain claims about the
15 security, but without evidence this Court simply cannot take those claims as
16 undisputed fact. Id. ¶ 24 (“As to the facts of the incident, there is nothing. All we
17 have is counsel’s claim, which is not evidence.”). Defendant does not raise any claims
18 of overbearing security other than during voir dire. The record does not indicate
12 1 whether the trial court cured the issue.
2 {22} Defendant had the opportunity to ask about every prospective juror’s thoughts,
3 impressions, and feelings regarding the courthouse security. Defendant did not elicit
4 a single response that indicated the security was so pervasive as to prohibit
5 impartiality. Jurors admitted that they noticed the security presence but most jurors
6 indicated they felt safe; some thought the security was to protect Defendant; others
7 thought it was a precaution in the event of protestors; and still others thought the
8 security was standard. All jurors affirmed that the security did not affect their ability
9 to be fair and impartial.
10 {23} This Court has nothing to consider except the jurors’ testimony about their
11 thoughts regarding the security, which consistently indicates the security was not
12 prejudicial. Defendant does not bring to our attention any other concerns regarding
13 security beyond what was urged during voir dire. This Court cannot speculate as to
14 how intrusive or prejudicial the security might have been. It is trial counsel’s duty to
15 preserve error and present sufficient evidence of the preserved error for appellate
16 review. Defendant did not meet his burden to prove prejudice, actual or otherwise.
17 We conclude that the trial court did not abuse its discretion by denying Defendant’s
18 motion for mistrial.
13 1 C. The Trial Court’s Decision to Permit Evidence of Uncharged Robberies
2 {24} In the months leading up to Officer Benner’s murder, Defendant and his
3 accomplice, Ms. Littles, committed at least seven armed robberies to support their
4 drug habit. During trial, Ms. Littles described how she and Defendant typically
5 robbed businesses and how she and Defendant had robbed a Taco Bell only a few
6 hours prior to Officer Benner’s murder. Ms. Littles identified the Taco Bell that she
7 and Defendant robbed, she identified Defendant robbing the Taco Bell on
8 surveillance video, she identified the Durango that she drove as the getaway vehicle,
9 and she identified the type and caliber of pistol Defendant used in the robbery.
10 Additional testimony detailed how, following Officer Benner’s murder, Defendant
11 robbed a Shell/Giant station in Albuquerque on May 26, 2015, at approximately 2
12 a.m. The detective investigating both the Taco Bell robbery and the Shell/Giant
13 robbery identified Defendant as the perpetrator of both robberies.
14 {25} The trial court ruled that evidence of the Taco Bell and Shell/Giant robberies
15 was admissible to show “Defendant’s identity, intent, motive, and plan” and that its
16 “probative value . . . outweighed any undue prejudice.” The trial court ultimately
17 allowed the State to briefly inquire about the earlier robberies that Defendant had
18 perpetrated with Ms. Littles between March 22, 2015, and May 24, 2015 (earlier
14 1 robberies), to provide context for her plea agreement or as a preemptive disclosure
2 should Defendant elect to use them to discredit Ms. Littles’ testimony.
3 1. Standard of Review
4 {26} Admission of evidence of other crimes under Rule 11-404(B) NMRA is within
5 the sound discretion of the trial court, and its determination will not be disturbed on
6 appeal in the absence of an abuse of discretion. State v. Otto, 2007-NMSC-012, ¶ 9,
7 141 N.M. 443, 157 P.3d 8. Likewise, the exclusion of relevant evidence under Rule
8 11-403 NMRA “explicitly recogniz[es] the large discretionary role of the [trial court]
9 in controlling the introduction of evidence.” State v. Day, 1978-NMCA-018, ¶ 26, 91
10 N.M. 570, 577 P.2d 878 (internal quotations marks and citation omitted). In testing
11 the balance between the relevant probative value and prejudicial effect of evidence
12 under Rule 11-403, an abuse of discretion results “when the trial court’s decision is
13 contrary to logic and reason.” Davila v. Bodelson, 1985-NMCA-072, ¶ 12, 103 N.M.
14 243, 704 P.2d 1119.
15 2. The Trial Court Did Not Abuse Its Discretion by Allowing Testimony 16 About the Earlier Robberies
17 {27} “Evidence of a crime, wrong, or other act is not admissible to prove a person’s
18 character in order to show that on a particular occasion the person acted in accordance
19 with the character.” Rule 11-404(B)(1). Defendant properly preserved his objection
15 1 to Ms. Littles’ testimony about the earlier robberies. Nonetheless, the trial court was
2 within its discretion to admit the testimony. Evidence of a defendant’s crimes, wrongs
3 or other acts “may be admissible for another purpose, such as proving motive,
4 opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
5 lack of accident.” Rule 11–404(B)(2). Under Rule 11-404(B)(2) the list of
6 permissible uses of prior bad act evidence is not exhaustive. Otto, 2007-NMSC-012,
7 ¶ 10. Proffers of other wrongs excluding those to prove character may be admissible,
8 but the trial court must always “determine that the probative value of the evidence
9 outweighs the risk of unfair prejudice, pursuant to Rule 11-403.” Id.
10 {28} The trial court allowed testimony about the earlier robberies to give context to
11 Ms. Littles’ plea deal and to rebut impeachment by Defendant. The trial court refused
12 to allow the State to delve into the details of every single robbery Ms. Littles admitted
13 committing with Defendant. Instead, the trial court limited the State’s inquiry to the
14 general method the pair used to rob businesses, that the earlier robberies occurred,
15 and that Ms. Littles was with Defendant at each occurrence. Additionally, the State’s
16 inquiry gave context to Ms. Littles’ relationship with Defendant and Ms. Littles’ role
17 during earlier robberies, which were relevant to her role and physical position during
18 the murder of Officer Benner. It is not the job of this Court to speculate on every
16 1 conceivable purpose a portion of testimony may have, and “[i]f there are reasons both
2 for and against a court’s decision, there is no abuse of discretion.” State v. Smith,
3 2016-NMSC-007, ¶ 27, 367 P.3d 420. The trial court was within its discretion to
4 allow Ms. Littles to testify about the earlier robberies.
5 3. The Trial Court Did Not Abuse Its Discretion by Allowing Evidence of the 6 Robberies on May 25 and May 26
7 {29} Under Rule 11-404(B)(2), evidence of the robberies committed on May 25,
8 2015, and May 26, 2015, is “admissible for . . . proving motive . . . [or] identity” of
9 the person who murdered Officer Benner. Defendant contends that the Taco Bell
10 robbery on May 25, 2015, and the Shell/Giant robbery on May 26, 2015, are not
11 probative of identity or motive in the murder of Officer Benner. Defendant is
12 incorrect. The State presented evidence proving identity by showing that Defendant
13 committed the Taco Bell and Shell/Giant robberies wearing the same clothes that
14 Defendant was wearing at the time Officer Benner pulled him over and that
15 Defendant used the same pistol in the Taco Bell and Shell/Giant robberies that he
16 used to murder Officer Benner. Upon Defendant’s arrest following the Shell/Giant
17 robbery, officers found on Defendant the key to the Dodge Durango that fled the
18 scene of Officer Benner’s murder and which Defendant had used in the Taco Bell
19 robbery, again bearing on identity. Consciousness of his guilt of the Taco Bell
17 1 robbery gave Defendant a motive to kill Officer Benner and thereby avoid
2 apprehension and a return to prison. Ms. Littles testified that “Andrew always said
3 he was never going to go back to prison. It was either going to be him or the cops.”
4 {30} The probative value of evidence about the Taco Bell and Shell/Giant robberies
5 outweighs any unfair prejudice to Defendant. The evidence was admissible as
6 probative of both identity and motive in the murder of Officer Benner. The trial court
7 did not abuse its discretion by admitting evidence of the Taco Bell and Shell/Giant
8 robberies.
9 4. The Trial Court Did Not Abuse Its Discretion by Declining to Sever the 10 Charge of Conspiracy to Commit Armed Robbery
11 {31} Defendant argues that if the evidence of the May 25 and May 26 armed
12 robberies was probative of conspiracy to commit armed robbery, then the trial court’s
13 denial of the motion to sever the highly prejudicial conspiracy charge was an abuse
14 of discretion.“The decision to grant a severance motion lies within the trial judge’s
15 discretion and will not be overturned on appeal unless the joinder of offenses results
16 in actual prejudice against the moving party.” State v. Garcia, 2011-NMSC-003, ¶
17 16, 149 N.M. 185, 246 P.3d 1057 (emphasis in original). “Even when the trial court
18 abuses its discretion in failing to sever charges, appellate courts will not reverse
19 unless the error actually prejudiced the defendant.” State v. Leonardo Gallegos, 2007-
18 1 NMSC-007, ¶ 18, 141 N.M. 185, 152 P.3d 828. “If the evidence would have been
2 cross-admissible, then any inference of prejudice is dispelled and our inquiry is over.”
3 Id. ¶ 20.
4 {32} In addition to providing evidence of identity and establishing motive for the
5 murder, the Taco Bell and Shell/Giant robberies are admissible as “background
6 evidence to show the context of other admissible evidence,” State v. Allen, 2000-
7 NMSC-002, ¶ 43, 128 N.M. 482, 994 P.2d 728, in this case, conspiracy to commit
8 armed robbery. The evidence of the Taco Bell and Shell/Giant robberies was
9 admissible as probative of both murder and conspiracy to commit armed robbery. The
10 evidence was cross-admissible, Defendant was not prejudiced, and the trial court did
11 not abuse its discretion by refusing to order severance of conspiracy to commit armed
12 robbery.
13 D. Admission of Nonverbal Portion of Interrogation Video
14 {33} Agent Steve Montano of the New Mexico State Police interrogated Defendant
15 following his arrest on May 26, 2015. During a portion of Defendant’s interrogation
16 Agent Montano left the room. While Agent Montano was absent, video surveillance
17 recorded a shift in Defendant’s demeanor. Defendant made hand gestures in the shape
18 of a gun. From Defendant’s position in the holding cell during interrogation,
19 1 Defendant could see across the hall into another holding cell occupied by his cousin
2 Crystal Romero, who had been arrested with Defendant after the Shell/Giant robbery.
3 His hand gestures were made in Crystal’s direction. At trial Defendant moved to
4 suppress the video. The trial court admitted the muted video showing Defendant’s
5 demeanor.
6 1. Standard of Review
7 {34} In reviewing an order denying the suppression of evidence, “we defer to the
8 district court’s findings of fact that are supported by substantial evidence, and we
9 review the district court’s application of the law to the facts de novo.” State v. Randy
10 J., 2011-NMCA-105, ¶ 10, 150 N.M. 683, 265 P.3d 734. Here, the relevant facts are
11 undisputed. We determine whether, as a matter of law, the district court erred in
12 admitting the video showing Defendant’s nonverbal conduct. We conclude that it did
13 not.
14 2. The Trial Court Did Not Err When It Admitted Evidence of Nonverbal 15 Conduct by Defendant
16 {35} “Under the Fifth Amendment, the privilege against self-incrimination only
17 protects the accused from being compelled to provide the state with evidence of a
18 testimonial or communicative nature.” Randy J., 2011-NMCA-105, ¶ 16 (internal
19 quotation marks and citation omitted); see also State v. Harris, 2017 WI 31, ¶ 46, 892
20 1 N.W.2d 663 (stating that the Fifth Amendment to the United States Constitution
2 protects an individual from interrogation compelled by law enforcement but not from
3 the individual’s own incriminating actions).
4 {36} The two-fold issue before this Court is whether Defendant was (1) compelled
5 (2) to communicate. We conclude that Defendant’s non-verbal conduct was not
6 compelled. Therefore, we need not reach the issue of whether his conduct amounted
7 to a communication.
8 {37} The muted video depicting Defendant’s gestures and demeanor showed
9 Defendant after he had already been Mirandized and had invoked the right to remain
10 silent. If the demeanor evidence communicated a response to a question or if Agent
11 Montano had otherwise compelled Defendant to answer, then any response Defendant
12 gave would likely be protected. But this was not the case after Agent Montano left the
13 room and Defendant was alone. Defendant did not gesture in response to a question
14 asked by Agent Montano or any law enforcement officer. Defendant “was not
15 subjected to compelling influences [or] psychological ploys . . .” and his voluntary
16 conduct cannot be said to have been compelled. See Arizona v. Mauro, 481 U.S. 520,
17 529 (1987). Defendant’s demeanor and hand gestures were not protected under the
18 Fifth Amendment to the United States Constitution.
21 1 {38} The trial court based its decision to show the muted video of Defendant to the
2 jury on a correct application of the law, and that decision is supported by sufficient
3 evidence.
4 E. The Trial Court’s Admission of Defendant’s Jail Telephone Call
5 {39} The trial court admitted the recording of a jail telephone call that the State
6 presented as evidence implicating Defendant in Officer Benner’s murder. Defendant
7 objected, arguing that the identity of the inmate making the call could not be
8 sufficiently authenticated to warrant admission under Rule 11-801(D)(2)(a) NMRA
9 (allowing admission of an opposing party’s own statement as an exclusion from
10 hearsay).
11 1. Standard of Review
12 {40} We review a trial court’s admission or exclusion of evidence for an abuse of
13 discretion. State v. Bailey, 2017-NMSC-001, ¶ 12, 386 P.3d 1007. “An abuse of
14 discretion occurs when the ruling is clearly against the logic and effect of the facts
15 and circumstances of the case.” Id. (quoting State v. Apodaca, 1994-NMSC-121, ¶
16 23, 118 N.M. 762, 887 P.2d 756 (internal quotation marks omitted)).
17 2. The Trial Court Did Not Abuse Its Discretion by Allowing the Jail 18 Telephone Call Recording to Be Played for the Jury
19 {41} “To satisfy the requirement of authenticating or identifying an item of
22 1 evidence, the proponent must produce evidence sufficient to support a finding that
2 the item is what the proponent claims it is.” Rule 11-901(A) NMRA. A witness’s
3 identification of a voice requires only a “minimal showing” that the voice belongs to
4 the person the witness purports that it to belongs to and sets a “low threshold for
5 admissibility.” State v. Loza, 2016-NMCA-088, ¶ 22, 382 P.3d 963 (internal
6 quotation marks and citation omitted); State v. Padilla, 1982-NMCA-100, ¶ 5, 98
7 N.M. 349, 648 P.2d 807. “The identity of a party making a telephone call may be
8 established by either direct or circumstantial evidence.” State v. Roybal, 1988-
9 NMCA-040, ¶ 13, 107 N.M. 309, 756 P.2d 1204, overruled on other grounds by State
10 v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. The jury is left to decide the
11 weight given to the evidence. Loza, 2016-NMCA-088, ¶ 22.
12 {42} Defendant argues that the State provided no date for the phone call, that there
13 were thirteen other inmates named “Andrew” at the Albuquerque Metropolitan
14 Detention Center (MDC) when the call was placed, and that inmates often switch
15 their personal identification numbers (PIN) to either avoid having their phone calls
16 recorded or simply because they are out of money on their phone cards. Considering
17 the totality of the circumstances, these arguments are without merit. Sufficient
18 evidence justifies the trial court’s decision to admit the recording into evidence. The
23 1 inmate in the recording self-identifies as “Andrew,” uses Andrew Romero’s PIN, and
2 asks about a person named “Crystal,” which is the name of Defendant’s cousin who
3 was arrested with him. The inmate references his move from detention in Sandoval
4 County to MDC. This move is consistent with the State’s claim that Defendant was
5 moved to MDC so that he could appear at a probation violation hearing in
6 Albuquerque. The State points out that Defendant’s move to MDC placed him there
7 two weeks after the murder of Officer Benner, coinciding with the inmate’s inquiry
8 about the media coverage of his case and his statement, “Still? Why, it’s already been
9 two weeks. A la verga.” At the time the call was made, media attention surrounding
10 the case was high, which coincides with the inmate’s statement about the high profile
11 nature of the case. Additionally, the inmate’s question, “What about what’s her name;
12 did I really shoot her or no?” and the response, “Yeah, you shot her in the foot,” is
13 consistent with the injury Ms. Littles sustained when a bullet fired by Defendant at
14 the scene of Officer Benner’s murder ricocheted and struck her in the foot.
15 {43} Detective Richard Romero of the Rio Rancho Police Department identified the
16 inmate on the call as Defendant after having listened to three other phone calls, all of
17 which were placed with Andrew Romero’s PIN. In United States v. Thomas, the
18 identifying witness conversed with the accused three times. 586 F.2d 123, 133 (9th
24 1 Cir. 1978). In United States v. Smith, the identifying witness heard the defendant’s
2 voice only twice. 635 F.2d 716, 719 (8th Cir. 1980). In both cases, the witnesses’
3 identifications were sufficient to admit the voice evidence. See Padilla,
4 1982-NMCA-100, ¶ 5. Here, not only does Detective Romero identify Defendant’s
5 voice as the same voice he identified in three other calls, but substantial corroborating
6 evidence indicates that Defendant placed the telephone call that was recorded and
7 played for the jury.
8 {44} The circumstances described here are sufficient to make the “minimal
9 showing” of familiarity with Defendant’s voice to justify Detective Romero’s
10 identification. The trial court’s decision to admit the recording was not against logic
11 and was not an abuse of discretion.
12 F. Cumulative Error
13 {45} Defendant contends that cumulative error by the trial court requires a new trial.
14 Defendant argues that the cumulative effect of the errors previously discussed,
15 statements made by the prosecutor during closing argument and error in allowing two
16 in-court identifications by witnesses, deprived Defendant of a fair trial. “The doctrine
17 of cumulative error applies when multiple errors, which by themselves do
18 not constitute reversible error, are so serious in the aggregate that they cumulatively
25 1 deprive the defendant of a fair trial.” State v. Carrillo, 2017-NMSC-023, ¶ 53, 399
2 P.3d 367 (internal quotation marks and citation omitted); see also State v. Alfred
3 Baca, 1995-NMSC-045, ¶ 39, 120 N.M. 383, 902 P.2d 65 (reversing multiple
4 convictions based on cumulative error). In this case, because we conclude that no trial
5 error occurred, cumulative error did not deprive Defendant of a fair trial.
6 1. The Contents of Prosecutor’s Slide During Closing Were Not Prejudicial
7 {46} Defendant asserts that the trial court erred by not issuing a limiting instruction
8 to the jury after the word “stitches” appeared on the prosecutor’s Power Point slide
9 used during closing argument. Defendant contends that by showing the jury the word
10 “stitches” the State was attempting to imply that Defendant’s aunt, who was in prison
11 at the same time as Ms. Littles, engaged in witness intimidation.
12 {47} The State and Defendant are “allowed wide latitude in closing argument and
13 the trial court has wide discretion in . . . controlling closing argument.” State v.
14 Venegas, 1981-NMSC-047, ¶ 12, 96 N.M. 61, 628 P.2d 306. The trial court
15 determined that the Power Point slide did not warrant a limiting instruction. From our
16 perspective, the word “stitches” does not carry the inherent prejudicial connotation
17 that Defendant urges. Importantly, the Power Point slide Defendant objected to is not
18 part of the record before this Court; therefore, we have no way of putting the word
26 1 “stitches” into context. Without a record of the objection, this Court will not consider
2 this issue.
3 2. Two In-Court Identifications of Defendant Made by Witnesses Were Not 4 Error
5 {48} During trial and for the first time, two eyewitnesses, one from the scene of
6 Officer Benner’s murder and one from a gas station visited by Defendant and Ms.
7 Littles, identified Defendant as the man they saw around the time of Officer Benner’s
8 murder. Defendant argues that the in-court identifications were “tainted by pretrial
9 publicity.” This Court recently addressed this very issue in State v. Ramirez, 2018-
10 NMSC-003, ¶ 33, 409 P.3d 902, in which we held that “[i]t is only when law
11 enforcement are the source of the taint that due process concerns arise.”
12 {49} Defendant had ample procedural safeguards at his disposal to address the
13 fallibility of eyewitness testimony, among which was “the right to the effective
14 assistance of an attorney who can expose the flaws of eyewitness testimony on cross-
15 examination and focus the jury’s attention on such flaws during opening and closing
16 arguments.” Id. ¶ 35 (citing Perry v. New Hampshire, 565 U.S. 228, 245-47 (2012)).
17 Defense counsel did just that. They brought the witnesses’ inconsistencies to the
18 jury’s attention on cross-examination and in closing argument. It is the responsibility
19 of the jury to weigh a witness’s credibility and determine the accuracy of an in-court
27 1 identification. State v. Cheadle, 1983-NMSC-093, ¶ 15, 101 N.M. 282, 681 P.2d 708,
2 overruled on other grounds by State v. Belanger, 2009-NMSC-025, ¶ 36, 210 P.3d
3 783. The trial court did not err by allowing the in-court identifications.
4 G. Defendant’s Conviction for Shooting at or from a Motor Vehicle 5 Constitutes Double Jeopardy
6 {50} Defendant’s conviction for shooting at or from a motor vehicle violates the
7 Double Jeopardy Clause of the New Mexico Constitution and must be vacated. N.M.
8 Const. art. II, § 15 (“No person shall . . . be twice put in jeopardy for the same
9 offense.”). The Double Jeopardy Clause protects Defendant from being punished both
10 for the murder of Officer Benner and for causing great bodily harm to Officer Benner
11 by shooting from a motor vehicle, where both convictions were predicated on
12 Defendant’s unitary act of shooting Officer Benner. State v. Montoya, 2013-NMSC-
13 020, ¶ 54, 306 P.3d 426. One of the convictions must be vacated. Because first-degree
14 murder carries a greater sentence than shooting at or from a vehicle, compare NMSA
15 1978, § 31-18-14 (2009) (stating that a capital felony carries a sentence of “life
16 imprisonment or life imprisonment without the possibility of . . . parole”) with NMSA
17 1978, § 31-18-15(A)(4) (2007, amended 2016) (stating that a second-degree felony
18 resulting in death carries a fifteen-year sentence), this Court must vacate Defendant’s
19 conviction for shooting at or from a motor vehicle. State v. Torres, 2018-NMSC-013,
28 1 ¶ 28, 413 P.3d 467.
2 H. Sufficiency of the State’s Evidence to Convict Defendant on the Charges 3 of Aggravated Fleeing and Murder in the First Degree
5 {51} In challenging the sufficiency of evidence used to convict a defendant of a
6 crime, “we must determine whether substantial evidence of either a direct or
7 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt
8 with respect to every element essential to a conviction.” State v. Reed,
9 2005-NMSC-031, ¶ 14, 138 N.M. 365, 120 P.3d 447 (internal quotation marks and
10 citation omitted). We review “the evidence in the light most favorable to the State,
11 resolving all conflicts and indulging all permissible inferences in favor of the
12 verdict.” Id. We will “determine whether any rational jury could have found the
13 essential facts to establish each element of the crime beyond a reasonable doubt.” Id.
14 2. The State Presented Sufficient Evidence for a Rational Jury to Convict 15 Defendant of Aggravated Fleeing
16 {52} Defendant was charged with and convicted of aggravated fleeing a law
17 enforcement officer (aggravated fleeing) contrary to Section 30-22-1.1(A). Defendant
18 argues that insufficient evidence existed to prove all of the elements of aggravated
19 fleeing. The relevant provision of the statute reads,
29 1 Aggravated fleeing a law enforcement officer consists of a person 2 willfully and carelessly driving his vehicle in a manner that endangers 3 the life of another person after being given a visual or audible signal to 4 stop, whether by hand, voice, emergency light, flashing light, siren or 5 other signal, by a uniformed law enforcement officer in an appropriately 6 marked law enforcement vehicle in pursuit in accordance with the 7 provisions of the Law Enforcement Safe Pursuit Act.
8 Section 30-22-1.1(A) (emphasis added). Defendant contends that the State did not
9 carry its burden with regard to “in pursuit” because Defendant was not pursued when
10 he fled the scene of Officer Benner’s murder. Defendant does not dispute that, upon
11 fleeing from Officer Benner’s murder, Defendant drove the Durango in a manner that
12 endangered the lives of others or that Officer Benner was a uniformed law
13 enforcement officer in an appropriately marked law enforcement vehicle.
14 {53} The State is correct when it points out that although Section 30-22-1.1(A)
15 includes “in pursuit” in its language, “pursuit” is not an element of the Uniform Jury
16 Instruction or of the instruction the jury actually received. Tracking UJI 14-2217
17 NMRA, the instruction to the jury stated,
18 For you to find the defendant guilty of aggravated fleeing a law 19 enforcement officer . . . , the state must prove to your satisfaction 20 beyond a reasonable doubt each of the following elements of the crime: 21 1. The defendant operated a motor vehicle, 22 2. The defendant drove willfully and carelessly in a manner 23 that endangered the life of another person, 24 3. The defendant had been given a visual or audible signal to 25 stop by Officer Gregg Benner in an appropriately marked law
30 1 enforcement vehicle, 2 4. The defendant knew that Officer Gregg Benner had given 3 him an audible or visual signal to stop, 4 5. This happened in New Mexico, on or about the 25th day of 5 May, 2015.
6 The absence of “pursuit” in the jury instruction is not dispositive of whether pursuit
7 is an element essential to aggravated fleeing. In this case we conclude that sufficient
8 evidence existed to properly convict Defendant under Section 30-22-1.1(A).
9 {54} During the initial traffic stop, Officer Benner attempted to approach the
10 passenger side of the Durango when it suddenly accelerated out of the Arby’s parking
11 lot. Inside the Durango, Defendant with his Beretta pistol in hand told Ms. Littles,
12 “Drive bitch,” and Defendant put the vehicle in gear. As Ms. Littles and Defendant
13 fled from Officer Benner, the Durango nearly collided with a bush, at which point
14 Defendant grabbed the steering wheel and straightened out the vehicle. Defendant
15 then jumped from the passenger seat to the driver seat and shoved Ms. Littles out of
16 the moving vehicle. Shortly thereafter, Defendant brought the Durango to a stop and
17 waited for a pursuing Officer Benner to catch up. Defendant waited until Officer
18 Benner approached the Durango then fired his Beretta four times. Defendant then fled
19 driving the Durango.
20 {55} Defendant’s flight from Officer Benner was part of a continuing course of
31 1 aggravated fleeing. It began when Officer Benner lawfully stopped the Durango and
2 continued when Defendant put the Durango in gear with gun in hand and ordered Ms.
3 Littles to drive. Defendant’s flight and Officer Benner’s pursuit ended when
4 Defendant subsequently stopped a second time and killed Officer Benner. The facts
5 of this case demonstrate that Defendant’s flight resulted in Officer Benner’s pursuit,
6 which ended with the second traffic stop.
7 {56} The jury found sufficient evidence to convict Defendant of aggravated fleeing.
8 3. The State Presented Sufficient Evidence for a Rational Jury to Convict 9 Defendant of Murder in the First Degree
10 {57} The Defendant argues that there is insufficient evidence of “deliberate intent”
11 to support his conviction for first-degree murder. The jury found that Defendant’s
12 conduct rose above a “mere unconsidered and rash impulse” and that Defendant
13 possessed “the deliberate intention to take away the life of Gregg Benner.” See UJI
14 14-201 NMRA (providing essential elements of willful and deliberate murder).
15 {58} This Court has held that rational juries could draw “inferences of deliberation
16 from . . . evidence of the defendant’s attitude toward the victim, and the defendant’s
17 own statements.” State v. Flores, 2010-NMSC-002, ¶ 21, 147 N.M. 542, 226 P.3d
18 641 (citing State v. Duran, 2006-NMSC-035, ¶ 11, 140 N.M. 94, 140 P.3d 515). Ms.
19 Littles testified that Defendant shoved her out of the vehicle after the two initially
32 1 fled in the Durango because “he didn’t want [her] to be involved in anything that was
2 going to happen.” Ms. Littles also testified that Defendant had told her on “quite a
3 few” occasions that “he was never going back to prison. It was either going to be him
4 or the cops.” Finally, Ms. Littles testified that during the initial traffic stop Defendant
5 repositioned his pistol from under his seat to alongside the center console of the
6 Durango, held in his hand. Ms. Littles provided substantial evidence about
7 Defendant’s state of mind which was probative of Defendant’s deliberate intent to
8 murder Officer Benner.
9 {59} In addition to Ms. Littles’ testimony, witnesses and forensic experts testified
10 about the number and timing of the shots fired by Defendant. State v. Astorga, 2015-
11 NMSC-007, ¶ 65, 343 P.3d 1245 (concluding that the manner in which a killing
12 occurs can support an inference of deliberation). The jury heard how Ms. Littles and
13 Defendant initially sped away from Officer Benner and that Defendant shoved Ms.
14 Littles from the vehicle, stopped the vehicle, and allowed Officer Benner to catch up
15 and approach the vehicle where Defendant then shot him. The jury heard that
16 Defendant fired two shots into Officer Benner, and then he paused and fired two
17 more.
18 {60} Ms. Littles’ statements about Defendant’s state of mind immediately prior to
33 1 the murder were probative of deliberation in the context of all of the evidence
2 introduced on that element of first-degree murder.” Id. ¶ 65. Defendant’s act of
3 moving his pistol from a hidden position into a firing position supports an inference
4 of Defendant’s resolve to kill. See State v. Isiah, 1989-NMSC-063, ¶ 34, 109 N.M.
5 21, 781 P.2d 293 (moving a knife into the defendant’s lap from a concealed position
6 showed deliberateness rather than a random act), overruled on other grounds by State
7 v. Lucero, 1993-NMSC-064, 116 N.M. 450, 863 P.2d 1071. A jury could also reason
8 that, after shoving Ms. Littles out of the vehicle and saying he didn’t want her to be
9 involved in anything that was going to happen, then waiting for Officer Benner to
10 approach, Defendant had determined exactly what was going to happen and that he
11 would kill Officer Benner rather than surrender or flee. State v. Sosa, 2000-NMSC-
12 036, ¶ 14, 129 N.M. 767, 14 P.3d 32 (concluding that waiting for the victim is
13 reasonable evidence of deliberate intent).
14 {61} From Defendant’s pause between two-round bursts, a rational jury could infer
15 that Defendant was aiming or adjusting his fire, which could reasonably indicate
16 thought and intent to kill. Cf. State v. Tafoya, 2012-NMSC-030, ¶¶ 47, 54, 285 P.3d
17 604 (acknowledging that multiple shots fired in very quick succession where victims
18 were shot only once each does not indicate deliberation). Similarly, Defendant firing
34 1 four controlled shots that all struck Officer Benner, as opposed to emptying the entire
2 magazine of the pistol, could be inferred as deliberate and controlled. See State v.
3 Largo, 2012-NMSC-015, ¶ 33, 278 P.3d 532 (identifying as deliberation delaying
4 discharge of the rifle while the victim pleaded for mercy).
5 {62} “[J]ust because each component may be insufficient to support the conviction
6 when viewed alone does not mean the evidence cannot combine to form substantial,
7 or even overwhelming, support for the conviction when viewed as a whole.” State v.
8 Rojo, 1999-NMSC-001, ¶ 23, 126 N.M. 438, 971 P.2d 829. When Officer Benner
9 initially pulled over Defendant and Ms. Littles, Defendant had robbed a Taco Bell a
10 few hours earlier and knew that there was an arrest warrant out for his violation of
11 probation. Defendant had several options, including whether to (1) cooperate with
12 Officer Benner during the stop and likely be arrested, (2) attempt to flee from Officer
13 Benner, or (3) exercise the option that he chose—wait until Officer Benner’s
14 approach to the Durango was so close that Defendant could not miss and then shoot
15 Officer Benner in the chest four times at point-blank range. See Astorga,
16 2015-NMSC-007, ¶¶ 4-5, 63. The jury could reasonably determine that “Defendant
17 contemplated all of these choices and, even if he did not make his final decision until
18 the last second, the decision to kill [Officer Benner] was nonetheless a deliberate
35 1 one.” See id. ¶ 63 (describing circumstances of a deputy’s murder during a traffic stop
2 and concluding that “the manner of the killing alone supported an inference of
3 deliberation”); Sosa, 2000-NMSC-036, ¶ 14 (concluding that a murder where the
4 victim was attempting to escape from the attacker is a circumstance sufficient to
5 support deliberate intent).
6 {63} The State presented sufficient evidence for a rational jury to conclude that
7 Defendant manifested a deliberate intention to kill Officer Benner from the time the
8 traffic stop was initiated until Defendant fired the fourth shot from his pistol into
9 Officer Benner’s chest.
10 III. CONCLUSION
11 {64} For these reasons we affirm Defendant’s convictions for first-degree murder,
12 tampering with evidence, conspiracy to commit armed robbery, aggravated fleeing
13 a law enforcement officer, and concealing identity. We vacate Defendant’s conviction
14 for shooting at or from a motor vehicle on double jeopardy grounds.
36 1 {65} IT IS SO ORDERED.
2 ______________________________________ 3 GARY L. CLINGMAN, Justice
4 WE CONCUR:
5 ______________________________________ 6 JUDITH K. NAKAMURA, Chief Justice
7 ______________________________________ 8 PETRA JIMENEZ MAES, Justice
9 ______________________________________ 10 CHARLES W. DANIELS, Justice
11 ______________________________________ 12 BARBARA J. VIGIL, Justice