1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: April 13, 2015
4 NO. 32,664
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 MATTHEW SANCHEZ,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 11 Stephen D. Pfeffer, District Judge
12 Hector H. Balderas, Attorney General 13 Paula E. Ganz, Assistant Attorney General 14 Santa Fe, NM
15 for Appellee
16 Jorge A. Alvarado, Chief Public Defender 17 Will O’Connell, Assistant Appellate Defender 18 Santa Fe, NM
19 for Appellant 1 OPINION
2 HANISEE, Judge.
3 {1} Convicted of murder in the second degree and third-degree tampering with
4 evidence, Defendant Matthew Sanchez asserts three points of appeal: (1) the district
5 court committed reversible error by allowing the State to question a witness regarding
6 a prior act of Defendant that led to an unrelated assault charge, (2) insufficient
7 evidence existed to support his conviction for tampering with evidence, and (3) the
8 district court’s entry of conviction for third-degree tampering with evidence
9 constituted fundamental error. We determine that Defendant’s own areas of trial
10 inquiry permitted the State, as allowed and limited by the district court, to inquire
11 regarding the witness’s awareness of the prior act. We also hold that Defendant’s
12 conviction for third-degree tampering with evidence was supported by sufficient trial
13 evidence and was properly adjudicated. Accordingly, we affirm.
14 BACKGROUND
15 {2} On September 10, 2011, Defendant fatally stabbed his friend Tupac Amaru
16 Leyba (Victim) in the chest and later threw the weapon from his car window as he
17 departed the scene of the stabbing. The knife was never recovered. At trial, Defendant
18 testified and admitted that he stabbed Victim and lied to the police when interviewed
19 following the fatal event. However, he maintained that he acted exclusively in self- 1 defense.
2 {3} During cross-examination of a State’s witness (Witness), defense counsel asked
3 if Witness remembered stating at a preliminary examination that Defendant “was a
4 very nice guy, that he’s very quiet and that he never really talked, that he was just a
5 nice guy.” When Witness indicated that she did recall making that statement, defense
6 counsel went on to inquire of Witness whether Victim had enemies, what if any
7 alcohol or other mood-altering substances had been consumed that night, and whether
8 Victim habitually carried a weapon. After this exchange, the State notified the court
9 that it intended to offer rebuttal evidence regarding Witness’s opinion of Defendant’s
10 demeanor and character. Despite the State’s warning, defense counsel further
11 questioned Witness if she had ever seen Defendant “become aggressive in any way
12 toward [Victim.]” Witness stated that she had not.
13 {4} Following this testimony, the State sought to rebut what it perceived to be the
14 presentation of character evidence by Defendant. It argued that by eliciting opinion
15 testimony from Witness regarding her impressions of Defendant’s peaceable
16 demeanor, defense counsel had opened the door to inquiry concerning three separate
17 incidents that bore the potential capacity to change Witness’s positive opinion of
18 Defendant. The events consisted of Defendant: (1) discharging a gun over the heads
19 of his family members, (2) threatening to kill a man over a debt, and (3) ramming a
2 1 law enforcement vehicle and fleeing from police. Defense counsel objected, arguing
2 that his queries had not opened the door to the State’s desired topics of rebuttal and
3 that admission of such prior act evidence would unfairly prejudice Defendant.
4 {5} After pointing out that it was defense counsel’s questioning that elicited the
5 pertinent character trait of Defendant being a “calm and very nice guy” and
6 recognizing the State’s opportunity to “present evidence of something other than
7 that[,]” the district court conducted an inquiry designed to determine whether the
8 specific events of which the State proposed to question Witness were properly
9 admissible. Although it initially ruled that admitting questions regarding the three
10 prior incidents would cause undue delay and confusion of issues for the jury, after
11 conducting its own research, the district court determined that Rule 11-404(A)
12 NMRA, governing the admissibility of character evidence offered by a defendant and
13 rebutted by the State, controlled the inquiry. Pursuant to the rule, the court permitted
14 the State to question Witness regarding her awareness of one prior event in order to
15 rebut the character trait placed at issue by Defendant.
16 {6} Although the court found each of the State’s three desired topics of rebuttal
17 inquiry to be supported by good faith, it nonetheless disallowed inquiry regarding the
18 second and third events on the basis that both had been initially charged but were
19 later dismissed by the State. Noting that Defendant was then separately indicted for
3 1 the crime of aggravated assault with a deadly weapon, the district court announced
2 its intention to allow the State to question Witness regarding any awareness she
3 possessed of Defendant having discharged a firearm over the heads of his family
4 members. It further ruled that upon any such inquiry, Defendant would be entitled to
5 a limiting instruction regarding the jury’s use of that evidence. The parties submitted
6 proposed versions of the question to be asked of Witness regarding the shooting
7 incident, and based again on its research the court chose to allow a “modified
8 . . . proposal of the State[.]” The question presented to Witness, in relevant part, was
9 as follows: “Were you aware that . . . Defendant had been accused of aggravated
10 assault with a deadly weapon for going to the property of an individual not associated
11 with this case and shooting a gun five to six times?” When Witness declared herself
12 to be unaware of the incident, the State asked: “If you were aware of that . . ., would
13 your opinion have changed?” Witness responded affirmatively.
14 {7} Immediately thereafter, the district court verbally provided the jury with a
15 previously agreed to limiting instruction, stating that it had “allowed questions by the
16 prosecution to test the opinion previously expressed by this witness to the effect
17 that . . . Defendant . . . is a calm and very nice person” and that the questions asked
18 were “not in and of themselves evidence that the matters which form the basis of the
19 questions did, in fact, occur and [the jury] must not consider these questions for any
4 1 purpose other than the right of the prosecution to test an opinion of a witness as to an
2 asserted characteristic of . . . Defendant.” The instruction was repeated and twice
3 reiterated by the court prior to closing arguments and included within the printed
4 instructions given to the jury prior to deliberation. The jury convicted Defendant of
5 third-degree tampering with evidence and second-degree murder, and Defendant
6 appeals.
7 A. The District Court Properly Admitted Rebuttal Character Evidence
8 {8} Defendant contends that the district court committed reversible error in
9 allowing the State “to ask a question which recited unproven facts of an unrelated
10 aggravated assault case against [Defendant].” Defendant specifically argues that the
11 State’s “naked assertion” of the occurrence of a separate shooting incident was highly
12 prejudicial. He additionally appears to challenge allowance of the question on
13 grounds that it violated the general prohibition on prior acts evidence.
14 {9} Rule 11-404(A) governs both the allowance and limitation of character
15 evidence. See id. It states that “[e]vidence of a person’s character or character trait is
16 not admissible to prove that on a particular occasion the person acted in accordance
17 with the character or trait.” Rule 11-404(A)(1). However, an exception to this
18 prohibition exists in criminal cases, permitting “a defendant to “offer evidence of the
19 defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer
5 1 evidence to rebut it[.]” Rule 11-404(A)(2)(a). Moreover, “[o]n cross-examination of
2 the character witness, the court may allow an inquiry into relevant specific instances
3 of the person’s conduct.” Rule 11-405(A) NMRA. We review the admission of
4 evidence during trial for an abuse of discretion and will not disturb a district court’s
5 ruling “absent a clear abuse of that discretion.” State v. Stanley, 2001-NMSC-037, ¶
6 5, 131 N.M. 368, 37 P.3d 85.
7 {10} We first emphasize that Defendant fails to provide any analysis or discussion
8 of Rule 11-404, or Rule 11-405, whatsoever in his briefing. Moreover, Defendant
9 does not appear to challenge whether his questioning of Witness during cross-
10 examination was directed toward the establishment of his peaceable nature. Instead,
11 Defendant relies exclusively on a single case, State v. Christopher, 1980-NMSC-085,
12 94 N.M. 648, 615 P.2d 263, in which our Supreme Court considered the propriety of
13 the state’s cross-examination of character witnesses regarding their knowledge of the
14 defendant’s criminal convictions twenty-three years earlier, as well as a separate and
15 more recent allegation of spousal assault. Id. ¶ 2.
16 {11} First addressing the prior convictions, our Supreme Court adopted the
17 reasoning of Michelson v. United States, 335 U.S. 469 (1948) (upholding cross-
18 examination inquiry of character witnesses regarding awareness of the defendant’s
19 prior conviction and the defendant’s separate prior arrest), and determined that the
6 1 district court erred in allowing testimony regarding the prior convictions because: (1)
2 the district court failed to conduct an inquiry into whether the past events had
3 occurred; (2) “none of the witnesses had known the [defendant] for more than six
4 years”; (3) the district court did not provide the jury with a limiting instruction; (4)
5 “the defendant offered no evidence of specific prior acts”[;] and (5) defense counsel
6 objected to the state’s inquiry. Christopher, 1980-NMSC-085, ¶ 16-17. Separately,
7 the Court considered the propriety of the state’s inquiry into the alleged spousal
8 assault and once more determined that the district court erred, in part, because the
9 abuse claim was supported by nothing more than the wife’s allegation; further, the
10 district court neglected to separately assess the veracity of the state’s desired
11 questions. Id. ¶¶ 21-23. Again, the Court emphasized the district court’s failure to
12 instruct the jury as to the limited purpose of the state’s questioning. Id. ¶ 25.
13 {12} Defendant applies the Michelson factors, adopted in Christopher, and asks us
14 to reverse on these grounds. However, Christopher and its analysis of the Michelson
15 factors are distinguishable. First, we note that in spite of Defendant’s reliance on the
16 Michelson factors, our Supreme Court adopted that reasoning specifically with regard
17 to the prior convictions at issue in Christopher. 1980-NMSC-085, ¶ 11. Here,
18 whether or not Defendant had prior convictions was not at issue, nor was the
19 admissibility of any such evidence. Furthermore, unlike the circumstances
7 1 surrounding the alleged spousal assault in Christopher, the district court here
2 carefully assessed the veracity of the events upon which the State sought to question
3 Witness and ultimately found only the shooting incident, for which Defendant’s
4 indictment by a grand jury was then pending, to be an appropriate avenue of rebuttive
5 inquiry. In so ruling, the district court rejected two of the prior acts that the State
6 maintained to be appropriate instances to rebut the implication of peaceableness
7 provided to the jury during Witness’s cross-examination by Defendant. Thus, the
8 district court only allowed that which fit within the plain language of the rule and
9 bore independent indicia of reliability pursuant to the independent charging process.
10 Most critically, the court was repetitiously diligent in ensuring that the jury was aware
11 of the limited purpose of the State’s questioning. Not only did it provide an
12 immediate verbal limiting instruction following Witness’s responsive testimony, but
13 it again verbally admonished the jury as to its limited ability to consider the testimony
14 twice before closing arguments and again within the jury instruction packet. For these
15 reasons, we conclude that Christopher, and its application of the Michelson factors,
16 is distinguishable.
17 {13} Apart from Christopher, we reiterate that while Rule 11-404(A) prohibits the
18 admission of evidence of a person’s character trait “to prove that on a particular
19 occasion the person acted in accordance with the character or trait[,]” it does allow
8 1 a defendant to offer evidence of his or her own pertinent trait. Rule 11-404(A)(1),
2 (A)(2)(a). Defendant, through his questioning of Witness, elicited evidence of his
3 nice, quiet, and non-aggressive nature, going so far as to refresh Witness’s
4 recollection of her own prior testimony. Under Rule 11-404(A)(2)(a), such evidence
5 is subject to rebuttal by the State. See State v. Martinez, 2008-NMSC-060, ¶ 24, 145
6 N.M. 220, 195 P.3d 1232 (stating that when a defendant offers evidence of his or her
7 own good character, the defendant opens the door to the state’s ability to question
8 witnesses about “their awareness of information inconsistent with good character”).
9 And while evidence of a person’s character or character trait is typically only
10 permitted to be proven by reputation or opinion testimony, pursuant to Rule 11-
11 405(A) “specific instances of the person’s conduct” are permitted on cross-
12 examination of a character witness. Evidence allowed by both rules was precisely the
13 nature of that which was made available to the jury during Defendant’s trial.
14 {14} Although we recognize that Witness was the State’s witness, and the State was
15 not cross-examining Witness, but redirecting, Defendant has not asserted the
16 inapplicability of Rule 11-404(A) or Rule 11-405 on appeal, and like the district court
17 before us, we note that this is a “parallel” situation where the State was essentially
18 “cross-examining [Witness] on redirect and [seeking] to bring up” matters already
19 raised by Defendant. As Defendant has cited no authority on this factual nuance, we
9 1 may assume none exists. State v. Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d 410
2 (“Where a party cites no authority to support an argument, we may assume no such
3 authority exists.”). Thus, based on the distinguishable characteristics of Christopher
4 and our interpretation of the directly applicable provisions of Rule 11-404(A)(2)(a)
5 and Rule 11-405(A), we conclude that the limited inquiry allowed by the district court
6 coupled with its repeated cautionary instructions did not amount to an abuse of
7 discretion, and we affirm Defendant’s conviction for second-degree murder.
8 B. The Evidence was Sufficient to Support Defendant’s Conviction for 9 Tampering with Evidence
10 {15} Defendant challenges the sufficiency of the evidence against him for tampering
11 with evidence pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d
12 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1. Defendant
13 argues that “a reasonable jury should have found him not guilty” due to the
14 conflicting evidence presented at trial. Defendant maintains that “the clear weight of
15 the evidence[] shows that he did not intend to mislead investigators when he disposed
16 of the knife.” The State responds that the evidence is for the jury to weigh, and the
17 “jury may draw its own conclusions about Defendant’s intent based upon [the] overt
18 action of throwing the knife out the [car] window as he drove away” from the crime
19 scene. We conclude that there was sufficient evidence presented to the jury to support
10 1 Defendant’s conviction for tampering with evidence.
2 {16} “The test for sufficiency of the evidence is whether substantial evidence of
3 either a direct or circumstantial nature exists to support a verdict of guilt beyond a
4 reasonable doubt with respect to every element essential to a conviction.” State v.
5 Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks
6 and citation omitted). We review the evidence in the “light most favorable to the
7 guilty verdict, indulging all reasonable inferences and resolving all conflicts in the
8 evidence in favor of the verdict.” State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M.
9 185, 246 P.3d 1057 (internal quotation marks and citation omitted). In our capacity
10 as a reviewing court, we do not share the original ability of the jury to view the
11 evidence and witnesses firsthand; therefore, we defer to the jury’s findings. Id. We
12 will not “reweigh the evidence or attempt to draw alternative inferences from the
13 evidence.” State v. Estrada, 2001-NMCA-034, ¶ 41, 130 N.M. 358, 24 P.3d 793.
14 {17} Our Legislature has defined the elements of tampering with evidence to be: (1)
15 “destroying, changing, hiding, placing or fabricating any physical evidence[,]” (2)
16 “with intent to prevent the apprehension, prosecution or conviction of any person[,]
17 or to throw suspicion of the commission of a crime upon another.” NMSA 1978, §
18 30-22-5(A) (2003). Because tampering with evidence is a specific intent crime,
19 conviction requires that the State present sufficient evidence to allow a jury to infer
11 1 both an overt act and the defendant’s subjective, specific intent. State v. Jackson,
2 2010-NMSC-032, ¶ 11, 148 N.M. 452, 237 P.3d 754. However, “[w]hen there is no
3 other evidence of the specific intent of the defendant to disrupt the police
4 investigation, intent is often inferred from an overt act of the defendant.” Duran,
5 2006-NMSC-035, ¶ 14.
6 {18} In this case, Defendant testified that after he stabbed Victim with a knife, he
7 “jumped . . . in the car and . . . took off real fast” because he was scared and “just
8 freaked out.” He stated that he then “threw the knife out and . . . noticed [his phone]
9 charger was hanging out.” At this point, Defendant realized he had dropped his
10 phone, further deduced its possible presence at the scene of the stabbing, and reversed
11 direction to retrieve it. Upon arriving and observing that Victim remained where he
12 had been stabbed, Defendant left. He explained to the jury that he did not want Victim
13 to “start another conflict.” When asked why he discarded the knife, Defendant stated
14 that it “was [his] first reaction. [He] wanted to get it away” as he “just freaked out.”
15 He contended that his purpose in discarding the knife was not to avoid being
16 implicated in the crime.
17 {19} Defendant’s testimony describing having thrown the knife from his vehicle
18 satisfies the first element of tampering insofar as his act removed or concealed an
19 item of evidence. See § 30-22-5(A). Although Defendant contends that “the evidence
12 1 suggests [] a reasonable doubt . . . that [he] was guilty of tampering with evidence and
2 that a reasonable jury should have found him not guilty,” it is the role of the jury to
3 weigh the credibility of a witness. State v. Santillanes, 1974-NMCA-092, ¶ 2, 86
4 N.M. 627, 526 P.2d 424. “The fact finder can choose to believe the [s]tate’s testimony
5 and disbelieve [the d]efendant's version of events.” State v. Fierro, 2014-NMCA-004,
6 ¶ 40, 315 P.3d 319, cert. denied, 2013-NMCERT-012, 321 P.3d 127. There is
7 sufficient evidence in the record to support Defendant’s conviction for tampering
8 with evidence; therefore we affirm the conviction. State v. Sutphin, 1988-NMSC-031,
9 ¶ 21, 107 N.M. 126, 753 P.2d 1314 (“Where . . . a jury verdict in a criminal case is
10 supported by substantial evidence, the verdict will not be disturbed on appeal.”).
11 C. Entry of Conviction for Third-Degree Tampering Did Not Constitute 12 Fundamental Error
13 {20} Based on Defendant’s act discarding the knife used to kill Victim, he was
14 charged with third-degree tampering with evidence, which forbids tampering with
15 evidence relating to a capital crime or of a first-or second-degree felony. Section 30-
16 22-5(A), (B)(1). At trial, the jury was instructed that in order to find Defendant guilty
17 of tampering with evidence, Defendant must have “hid or placed the knife” used to
18 stab Victim in order to prevent his apprehension or prosecution. The jury was not,
19 however, instructed that the evidence must have related to a second-degree felony.
13 1 Therefore, Defendant argues that he was improperly convicted of third-degree
2 tampering because the State’s tampering instruction failed to ensure the jury’s
3 determination that Defendant intended to prevent his conviction related to a particular
4 crime. Absent such a finding, Defendant argues that his sentence for third-degree
5 tampering with evidence violated his Sixth Amendment constitutional rights.
6 {21} We typically review this constitutional issue de novo. State v. Alvarado, 2012-
7 NMCA-089, ¶ 5, ___ P.3d ___. However, as Defendant concedes that this issue was
8 not properly preserved, we review solely for fundamental error. State v. Herrera,
9 2014-NMCA-007, ¶ 4, 315 P.3d 343. “The rule of fundamental error applies only if
10 there has been a miscarriage of justice, if the question of guilt is so doubtful that it
11 would shock the conscience to permit the conviction to stand, or if substantial justice
12 has not been done.” State v. Orosco, 1992-NMSC-006, ¶ 12, 113 N.M. 780, 833 P.2d
13 1146.
14 {22} As we have stated, tampering with evidence is, in relevant part, “destroying,
15 changing, hiding, placing or fabricating any physical evidence with intent to prevent
16 the apprehension, prosecution or conviction of any person[.]” Section 30-22-5(A).
17 “Section (B) [of the statute] establishes levels of punishment depending on the degree
18 of crime for which tampering with evidence is committed.” Jackson, 2010-NMSC-
19 032, ¶ 20 (internal quotation marks omitted). A person is guilty of third-degree
14 1 tampering “if the highest crime for which tampering with evidence is committed is
2 a capital or first[-]degree felony or a second[-]degree felony[.]” Section 30-22-
3 5(B)(1). “[I]f the highest crime for which tampering with evidence is committed is
4 indeterminate,” such that no crime underlying the tampering could be identified, a
5 person is guilty of a fourth-degree felony. Section 30-22-5(B)(4); Jackson, 2010-
6 NMSC-032, ¶ 21.
7 {23} Defendant was charged with tampering with evidence of a second-degree
8 felony as prohibited by Section 30-22-5(B)(1). At trial, the district court generally
9 instructed the jury on tampering with evidence; the instruction did not require the jury
10 to find that Defendant’s act of tampering related specifically to a second-degree
11 felony. It merely stated that in order to find Defendant guilty of tampering with
12 evidence, the State must prove beyond a reasonable doubt that Defendant “hid or
13 placed the knife used to stab [Victim]” and by doing so, “[D]efendant intended to
14 prevent his apprehension, prosecution, or conviction.
15 {24} Defendant relies upon Alvarado, where we held that “when a defendant is
16 charged with third[-]degree tampering with evidence of a capital, first, or second[-
17 ]degree felony,” the State must prove, beyond a reasonable doubt, that the evidence
18 with which the defendant tampered related to the underlying felony. 2012-NMCA-
19 089, ¶ 16. Because the State did not provide such proof, we determined that the
15 1 proper resolution was for the defendant to be sentenced under the indeterminate crime
2 provision of the statute. Id. While we acknowledge the analogous nature of Alvarado
3 and the case before us, we view Defendant’s case to be more appropriately on point
4 with Herrera, 2014-NMCA-007, where, in an identical fundamental error analysis,
5 this Court considered the issue of whether, in the case of a conviction and sentence
6 for third-degree tampering with evidence, the omission of a finding that the weapon
7 was evidence of a second-degree felony violated a defendant’s right to have a jury
8 find all elements of the offense beyond a reasonable doubt. Herrera, 2014-NMCA-
9 007, ¶¶ 4, 7. We determined that for the purpose of a Sixth Amendment challenge that
10 argues for entitlement to a jury determination of guilt beyond a reasonable doubt as
11 to every element of the charged crime, the factors contained within Subsection (B)
12 of the tampering statute were such that they “must be interpreted as elements of the
13 offence, rather than mere sentencing factors.” Herrera, 2014-NMCA-007, ¶¶ 8, 13.
14 Although we recognized that “the failure to instruct the jury on one of the elements
15 of the offense of third-degree tampering with evidence was error[,]” offending the
16 defendant’s rights under the Sixth Amendment, the error did not amount to
17 fundamental error as it was clear that on review of the entire record, the evidence
18 presented at trial established the missing element. Id. ¶ 17.
19 {25} Here, Defendant testified at trial that he stabbed Victim and “threw the knife
16 1 out” of the window of his moving vehicle. In finding Defendant guilty of tampering
2 with evidence, the jury determined that Defendant “tossed the knife” with the intent
3 to prevent his apprehension, prosecution, or conviction. Additionally, the jury found
4 that the act of stabbing Victim with a knife was second-degree murder. Our review
5 of the record herein reveals that the only evidence presented at trial that related to
6 Defendant’s discard of the knife was the act of stabbing Victim. Because the jury
7 concluded that the stabbing constituted a second-degree felony, “the facts at trial
8 established that the tampering related to a second-degree felony.” Id. ¶ 18. While the
9 factors contained in Subsection (B) of Section 30-22-5 are essential elements of the
10 crime of tampering with evidence, and “the omission of an essential element of an
11 offense will often be found to be fundamental error,” the evidence at trial clearly
12 established the missing element, and therefore, we hold that the district court did not
13 fundamentally err. Herrera, 2014-NMCA-007, ¶ 17 (“If it is clear that the missing
14 element was established by the evidence at trial, the fact that the jury was not
15 instructed on the element is not considered fundamental error.”).
16 CONCLUSION
17 {26} For the forgoing reasons, we affirm Defendant’s convictions for second-degree
18 murder and third-degree tampering with evidence.
17 1 {27} IT IS SO ORDERED.
2 _________________________________ 3 J. MILES HANISEE, Judge
4 WE CONCUR:
5 6 MICHAEL E. VIGIL, Chief Judge
7 8 M. MONICA ZAMORA, Judge