State v. Sarabia

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.

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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. 33,832 5 JAIME SARABIA, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Benjamin Chavez, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 John Kloss, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender 15 Allison H. Jaramillo, Assistant Appellate Defender 16 Santa Fe, NM

17 for Appellant 18 MEMORANDUM OPINION 19 GARCIA, Judge.

1 {1} A jury convicted Defendant of armed robbery and conspiracy to commit armed 2 robbery. Defendant appeals his conviction arguing that: (1) the district court erred in 3 excluding testimony of a defense witness; (2) the district court erred in refusing to 4 provide the jury with an instruction for aggravated battery; (3) there was insufficient 5 evidence to support Defendant’s conviction; (4) the district court erred in admitting 6 Victim’s testimony discussing threats he received in the case prior to testifying at trial; 7 (5) the district court erred in denying a motion to suppress a photo array identification; 8 and (6) the district court erred in admitting Defendant’s unrelated and prior plea 9 agreement containing the alias of “Skills”. We address each issue individually, and for 10 the reasons explained herein, we affirm. 11 BACKGROUND 12 {2} Defendant was charged with armed robbery and conspiracy to commit armed 13 robbery stemming from an incident that occurred at an Albuquerque smoke shop 14 where Victim and his wife were working. Following the robbery, Victim informed 15 police that he had previously seen one of the assailants and revealed that his nickname 16 was Skills. Victim additionally informed police that Skills had a tattoo that said “San 17 Jo” or “Burque.” The record reflects that police administered two photo array 18 identifications with Victim and his wife, each containing six photos. In the first array, 19 Defendant’s brother was pictured, but neither Victim nor his wife identified him or

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1 any other individual as the perpetrator of the robbery. Police removed Defendant’s 2 brother’s photo and included Defendant’s photo in the third array, and both Victim 3 and his wife positively identified Defendant as the perpetrator in separate photo 4 arrays. Victim specifically wrote “[t]his is the guy that robbed me[.] [H]is [nickname] 5 is Skills.” Victim indicated that he was 100% positive. 6 {3} At trial, Victim took the stand, and he was unable or unwilling to identify 7 Defendant as the perpetrator of the crime. After a lengthy bench conference and voir 8 dire of the Victim outside the presence of the jury, arising from Defendant’s objection, 9 Victim testified that he feared for his safety and the safety of his family as he had 10 received numerous threats from unknown parties regarding his testimony in the case. 11 With regard to the night of the robbery, Victim testified that Skills was with another 12 person who “pulled out a gun, pointed it at [his] head, demanded money, and clocked 13 [him] with something.” Victim additionally confirmed his police statement, describing 14 that Skills yelled “[j]ust [s]hoot him, [j]ust shoot him. . . . Give us your money.” 15 Victim also confirmed that Skills “reached into [his] right pockets, front and back” 16 and took approximately $300, a phone, and his keys. 17 {4} In addition to obtaining Victim’s testimony, the State called Defendant’s ex- 18 girlfriend, who testified that Defendant used the nickname or alias of Skills, and a 19 detective from the Socorro Police Department, who testified that Defendant “goes by

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1 Skills.” A Bernalillo County detective assigned to the case testified that Victim’s wife 2 positively identified Defendant as the perpetrator of the robbery. Finally, in spite of 3 Defendant’s objection, the district court allowed the State to enter into evidence a plea 4 agreement signed by Defendant in a prior, unrelated criminal case. The plea agreement 5 listed “Skills” as Defendant’s alias or “AKA” in the caption with other identifying 6 information such as his social security number and date of birth. 7 {5} As part of his case, Defendant called Dakota Briscoe (Briscoe) to testify. 8 Briscoe testified that he was involved in the robbery of the smoke shop, and also 9 stated that Defendant was not involved in the robbery and identified a third party as 10 the second perpetrator. Briscoe also stated that he previously pled guilty to his 11 involvement with this case. On cross-examination, the State elicited testimony from 12 Briscoe that at his sentencing hearing on the matter, he never corrected statements that 13 identified Defendant as the second perpetrator in the robbery. Defendant sought to 14 have Briscoe testify regarding his relationship with Victim, including how he 15 purchased drugs from Victim, with the intent of impeaching Victim’s testimony. The 16 district court excluded this proffered testimony by Briscoe, determining it to be 17 irrelevant. 18 {6} At the conclusion of the trial, the jury was instructed on armed robbery and 19 conspiracy to commit armed robbery. The defense requested additional jury

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1 instructions for aggravated battery resulting in great bodily harm and aggravated 2 battery with a deadly weapon, as lesser included offenses. The district court denied 3 Defendant’s proposed jury instructions on the basis that the elements for aggravated 4 battery were not contained in the elements for armed robbery. The jury convicted 5 Defendant of both armed robbery and conspiracy to commit armed robbery. 6 Defendant appeals his convictions. 7 DISCUSSION 8 I. Briscoe’s Testimony 9 {7} Defendant contends that the district court erred in refusing to allow the defense 10 to present testimony from Briscoe regarding his interactions with Victim and the 11 purported motive for the robbery. Defendant requests that we review this issue de 12 novo on the basis that the district court excluded exculpatory evidence in violation of 13 Defendant’s constitutional right to due process and a fair trial, citing State v. Attaway, 14 1994-NMSC-011, ¶ 8, 117 N.M. 141, 870 P.2d 103, for the proposition that appellate 15 courts review constitutional issues de novo. We do not determine this authority to be 16 instructive as Attaway addressed exigent circumstances in the context of a forced 17 entry. Id. ¶¶ 2, 8. We review a district court’s decision regarding the admission or 18 exclusion of evidence for an abuse of discretion. State v. Hughey, 2007-NMSC-036, 19 ¶ 9, 142 N.M. 83, 163 P.3d 470 (“The admission or exclusion of evidence is within

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1 the discretion of the [district] court. On appeal, the [district] court’s decision is 2 reviewed for abuse of discretion.”). “An abuse of discretion arises when the 3 evidentiary ruling is clearly contrary to logic and the facts and circumstances of the 4 case.” State v. Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526, 5 overruled on other grounds by State v. Swick, 2012-NMSC-018, ¶ 19, 279 P.3d 747. 6 {8} On the final day of trial, during the redirect examination of the final witness, 7 Defendant sought to question Briscoe about his relationship with Victim.The State 8 objected and expressed concern to the district court that the defense was “about to ask 9 [Briscoe] if [Victim] was dealing drugs[.]” The State argued that this information was 10 irrelevant. The defense merely responded that Briscoe’s statement, during his own 11 sentencing hearing, that he “buys drugs from [Victim] all the time” was relevant. The 12 district court expressed concern that this “was not explored in direct examination of 13 [Victim], cross, [or] redirect[.]” The defense argued that it was addressed when Victim 14 stated that “he did business with him.” The district court ruled that this issue was 15 brought to the court’s attention late in the proceedings, and it did not see how this line 16 of questioning was relevant. The defense explained that the alleged drug dealing was 17 relevant as it supported the defense’s theory that Victim was lying, and it wanted to 18 use the testimony to impeach Victim. The district court stated that the proper method

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1 to impeach Victim was to do so through the questioning of Victim himself. The 2 district court ultimately sustained the State’s objection. 3 {9} Defendant offered Briscoe’s testimony for the purpose of impeaching Victim’s 4 credibility based upon alleged prior drug transactions by Victim. Defendant argues 5 that the district court erred in excluding Briscoe’s testimony as it “would explain 6 [Briscoe’s] actions . . . and would help explain to the jury why it should find . . . 7 Briscoe’s version of events credible[.]” He further explains that the motive for the 8 attack would support the defense’s theory that Victim was lying about not selling 9 drugs. While Defendant appears to acknowledge that the ultimate issue of the case was 10 the identity of the second robber, he claims that the “identity of the robber is 11 intricately tied to the motive for the robbery.” Defendant contends that the district 12 court’s ruling “unnecessarily excluded relevant evidence that went to . . . Briscoe’s 13 motive and credibility.” We conclude that the district court did not abuse its discretion 14 in excluding Briscoe’s testimony that was offered for the purpose of impeaching 15 Victim’s credibility based upon alleged prior drug transactions. See Rule 11-404(B) 16 NMRA. 17 {10} Defendant also argues that he sought to use Briscoe’s testimony to impeach 18 Victim’s previous testimony. Defendant undoubtedly was permitted by the rules of 19 evidence to impeach Victim and challenge his credibility. See Rule 11-607 NMRA

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1 (“Any party, including the party that called the witness, may attack the witness’s 2 credibility.”). This Court has recognized that “[c]ross-examination is the principal 3 means by which the believability of a witness and the truth of his testimony are 4 tested.” State v. Gomez, 2001-NMCA-080, ¶ 12, 131 N.M. 118, 33 P.3d 669 (internal 5 quotation marks and citation omitted). “Impeachment is crucial to effective 6 cross-examination because it gives a party the opportunity to discredit a witness[.]” 7 Id. 8 {11} In examining the record, however, we note that Defendant neither points us to 9 any portion of the record, nor can we locate where Defendant’s counsel questioned 10 Victim about any alleged drug deals or other business that Victim may have conducted 11 with Briscoe. See Rule 12-213(A)(4) NMRA (stating that the appellant is responsible 12 for providing citations to the record relevant to his or her argument). As the district 13 court noted, the appropriate time to impeach Victim would have been during cross- 14 examination. Gomez, 2001-NMCA-080, ¶ 12; see State v. Moultrie, 1954-NMSC-056, 15 ¶ 9, 58 N.M. 486, 272 P.2d 686 (“[T]he credibility of a witness may be impeached by 16 extracting from him on cross-examination admission of specific acts of misconduct 17 or wrongdoing if admissions can be secured in such manner.”). Without obtaining 18 testimony from Victim to impeach—such as questions about drug related business 19 with Briscoe—any testimony by Briscoe that he had purchased drugs from Victim

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1 would not discredit Victim’s testimony. Accordingly, the testimony the defense 2 sought to admit from Briscoe was not relevant to Victim’s credibility. It did not have 3 a tendency to discredit anything Victim said or make Victim’s prior testimony more 4 or less probable than it would have been without the proffered Briscoe testimony. 5 Rule 11-401 NMRA. Accordingly, we determine that the district court did not abuse 6 its discretion in excluding the purported impeachment testimony on the grounds of 7 relevance. See Rule 11-402 NMRA (“Irrelevant evidence is not admissible.”). 8 II. Defendant’s Theory of the Case: Aggravated Battery Instruction 9 {12} Defendant contends that the district court erred in refusing to instruct the jury 10 on the elements of aggravated battery as he requested. He argues that, while the State 11 asserted the aggravated battery instruction could not be given because aggravated 12 battery is not a lesser-included offense of robbery, Defendant was entitled to the 13 aggravated battery instruction as an alternative to armed robbery. The State asserts 14 that there was no evidence to support Defendant’s theory of aggravated battery, and 15 it conflicts with his theory that insufficient evidence linked him to the offense. 16 {13} “The propriety of denying a jury instruction is a mixed question of law and fact 17 that we review de novo.” State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 18 P.3d 438. When reviewing such an issue on appeal, we view the evidence in the light 19 most favorable to giving the requested instruction. State v. Contreras, 2007-NMCA-

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1 119, ¶ 8, 142 N.M. 518, 167 P.3d 966. If evidence has been presented at trial that is 2 “sufficient to allow reasonable minds to differ as to all elements” of the requested 3 instruction, the defendant is entitled to received that instruction on his or her theory 4 of the case. State v. Gonzales, 2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162. 5 “Failure to instruct the jury on a defendant’s theory of the case is reversible error only 6 if the evidence at trial supported giving the instruction.” State v. Boyett, 2008-NMSC- 7 030, ¶ 12, 144 N.M. 184, 185 P.3d 355. 8 {14} Following trial, Defendant sought to instruct the jury that if it did not find 9 Defendant guilty of armed robbery, it “must consider whether . . . Defendant was 10 guilty of [a]ggravated [b]attery[,] a possible lesser included offense of [a]rmed 11 [r]obbery.” Defendant proposed instructions for both aggravated battery resulting in 12 great bodily harm and aggravated battery with a deadly weapon. Defendant reasoned 13 that if the jury decided that money was not taken from Victim and that “there may 14 have been other things going on between these people, then the jury could find that 15 aggravated battery was what actually happened, because there was not actually a 16 robbery.” The State disputed the inclusion of these instructions, arguing that battery 17 was not a lesser included offense of robbery and to include the instructions as 18 alternatives “would basically be adding charges that [were] not included” in the 19 indictment. The State recognized that Defendant did have a right to present his theory

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1 of the case, but it contended that Defendant’s theory of the case was not that a battery 2 occurred, but that it was not Defendant who committed the crime. After consideration, 3 the district court denied Defendant’s proposed jury instructions for the “battery theory 4 charges because the elements . . . are not significantly contained . . . in the elements 5 for armed robbery[.]” 6 {15} “Aggravated battery consists of the unlawful touching or application of force 7 to the person of another with intent to injure that person or another.” NMSA 1978, § 8 30-3-5(A) (1969). Defendant’s proposed aggravated battery with great bodily harm 9 instruction required that in order to find Defendant guilty of aggravated battery with 10 great bodily harm, the State must prove each of the following elements in relevant 11 part: (1) Defendant “touched or applied force to [Victim] by hitting him with a hard 12 object;” (2) Defendant “intended to injure” Victim; and (3) Defendant “caused great 13 bodily harm to [Victim] or acted in a way that would likely result in death or great 14 bodily harm to [Victim.]” UJI 14-321 NMRA. Similarly, Defendant’s proposed 15 instruction for aggravated battery with a deadly weapon provided in relevant part that 16 the State must prove the following elements: (1) Defendant “touched or applied force 17 to [Victim] by hitting him with a hard object. [D]efendant used a hard object. A hard 18 object is a deadly weapon only if you find that a hard object, when used as a weapon,

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1 could cause death or great bodily harm;” and (2) Defendant “intended to injure” 2 Victim. UJI 14-322 NMRA. 3 {16} On appeal, Defendant appears to abandon his argument that aggravated battery 4 was a lesser included offense, and instead argues that he “was entitled to have the jury 5 instructed on aggravated battery as an alternative to the armed robbery charge, not as 6 a lesser included offense.” Defendant elaborates stating he “wanted the jury instructed 7 alternatively on aggravated battery[] because if the jury believed that this was a 8 personal attack and not a robbery, then it could convict on the battery charge instead 9 of the robbery charge.” At the outset, we note that in order to convict on aggravated 10 battery based upon Defendant’s proposed instructions, the State would need to prove 11 that Defendant “touched or applied force to [Victim] by hitting him with a hard object. 12 Defendant points to no portion of the record indicating that Defendant hit Victim with 13 a hard object. In fact, Briscoe himself testified that he “had the gun” and he “hit 14 [Victim] with it.” Additionally, Victim corroborated Briscoe’s account. Without any 15 conflicting evidence, which Defendant has failed to provide, we cannot conclude that 16 Defendant was entitled to either aggravated battery instruction as there was no 17 evidence to support this theory of the case. See Gaines, 2001-NMSC-036, ¶ 5 (stating 18 that a defendant is not entitled to jury instructions on his or her theory of the case if 19 no evidence exists to support it).

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1 {17} To the extent that Defendant argues that he was entitled to the aggravated 2 battery jury instructions on the theory of accomplice liability as an accessory to the 3 aggravated battery committed by Briscoe, we note that an instruction for accessory to 4 a crime was provided to the jury. In order to find that Defendant was an accessory to 5 the aggravated battery, the jury was required to find, in relevant part, that (1) 6 Defendant “intended that the crime be committed;” (2) “[t]he crime was committed;” 7 and (3) Defendant “helped, encouraged[,] or caused the crime to be committed.” UJI 8 14-2822 NMRA. Briscoe testified to hitting Victim with the gun, but we can find 9 nothing in Briscoe’s testimony showing that Defendant also intended Victim to be hit 10 with the gun or that he “helped, encouraged[,] or caused” Briscoe to hit Victim with 11 the gun. Id. Again, Defendant also corroborated Briscoe’s testimony and failed to 12 identify any other evidence in the record that would support his accomplice theory. 13 See State v. Dominguez, 2014-NMCA-064, ¶ 26, 327 P.3d 1092 (stating that this 14 Court “will not search the record to find facts to support [an] argument”). While 15 Defendant contends that the district court refused to allow Briscoe to testify that the 16 attack on Victim was a personal crime, not a robbery, therefore compounding its error, 17 this evidence would not be required to show that Defendant was an accomplice to 18 Briscoe’s decision to hit Victim with his gun. The motive for the robbery has no 19 bearing on Briscoe’s subsequent decision to strike Victim in the head with the gun.

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1 Accordingly, we hold that the evidence did not support Defendant’s theory of a 2 defense in the case, and the district court did not err in refusing to issue Defendant’s 3 proposed aggravated battery instructions. See Boyett, 2008-NMSC-030, ¶ 12 (“Failure 4 to instruct the jury on a defendant’s theory of the case is reversible error only if the 5 evidence at trial supported giving the instruction.”). While we recognize that the 6 district court denied the motion on the basis that the aggravated battery elements were 7 not contained in the elements for armed robbery, thereby denying the lesser included 8 offense instruction, we also affirm under the doctrine of “right for any reason” under 9 an accomplice theory. See State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 10 152 P.3d 828 (stating that an appellate court will affirm a district court’s ruling if it 11 is right for any reason, so long as it is not unfair to the appellant). As we have 12 determined that there was no alternative argument presented to the district court to 13 support Defendant’s accomplice theory, we determine that our right for any reason 14 conclusion is not unfair to Defendant. 15 III. Sufficiency of the Evidence 16 {18} Defendant argues that the State failed to present sufficient evidence to sustain 17 his convictions for both armed robbery and conspiracy to commit armed robbery. In 18 reviewing a sufficiency of the evidence claim, we must determine “whether substantial 19 evidence of either a direct or circumstantial nature exists to support a verdict of guilt

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1 beyond a reasonable doubt with respect to every element essential to a conviction.” 2 State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation 3 marks and citation omitted). On appeal, “we will not reweigh the evidence or attempt 4 to draw alternative inferences from the evidence” as “we do not share the original 5 ability of the jury to view the evidence and witnesses firsthand; therefore, we defer to 6 the jury’s findings.” State v. Sanchez, 2015-NMCA-077, ¶ 16, 355 P.3d 51 (internal 7 quotation marks and citation omitted). Additionally, “[e]vidence is viewed in the light 8 most favorable to the guilty verdict, indulging all reasonable inferences and resolving 9 all conflicts in the evidence in favor of the verdict.” State v. Garcia, 2011-NMSC-003, 10 ¶ 5, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation omitted). 11 {19} First, Defendant claims there was insufficient evidence to support his 12 conviction for armed robbery as the “only evidence connecting [Defendant] to the 13 robbery was [an] out-of-court [statement] by [Victim] after he was shown a number 14 of photo arrays.” Defendant asserts that this statement was insufficient as State v. 15 Maestas, 1978-NMCA-084, ¶ 57, 92 N.M. 135, 584 P.2d 182, “implicitly holds that 16 while prior statements may be admitted and given substantive effect, that does not 17 mean that they suffice as the sole basis for a conviction.” Further, Defendant alleges 18 that unlike Maestas, in Defendant’s case, there is no corroborating evidence in 19 addition to the out-of-court statement.

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1 {20} In Maestas, this Court considered whether prior statements made by a victim, 2 to her family, identifying the defendant as her attacker were sufficient to sustain the 3 defendant’s conviction where the victim denied at trial that the defendant attacked her. 4 Id. ¶¶ 56, 59. We explicitly noted that although the victim made statements to her 5 family identifying the defendant as her attacker and denied that the defendant was the 6 assailant at trial, “any judgment as to the credibility of the witness[] and the weight 7 to be given [her] testimony rest[ed] with the jury and not with this Court.” Id. ¶ 59. 8 But we added that “a statement, (made by a witness out of court) when established as 9 trustworthy, may properly be considered together with independent or corroborative 10 evidence as proof that the crime charged was committed[.]” Id. We then reviewed the 11 record as a whole and noted that in addition to the prior statements, there was 12 corroborating evidence to support the conviction. Id. ¶ 62. We determined that the 13 prior statements in conjunction with the corroborating evidence “established that [the] 14 defendant committed the crime charged.” Id. ¶ 63. 15 {21} While we agree with Defendant that Maestas is instructive to our analysis of 16 this issue, we conclude that the State presented additional evidence sufficient to 17 sustain Defendant’s conviction for armed robbery. Similar to Maestas, Victim 18 previously identified Defendant in a photo array and attested that he was “100 19 [percent]” certain that the individual he selected was nicknamed “[S]kills” and was

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1 one of the individuals who robbed him. See id. ¶ 59. Then at trial, Victim only 2 identified Defendant as “being the closest person” to the individual in the photo array. 3 See id. Contrary to Defendant’s argument, our review of the record reveals that the 4 State here presented numerous pieces of corroborating evidence. While Victim was 5 unwilling or unable to identify Defendant in court, Victim testified that he had 6 previously seen the person who robbed him and that the person’s name was Skills. 7 Two witnesses, a detective from the Socorro police department, and Defendant’s ex- 8 girlfriend, testified that Defendant used the nickname or alias of “Skills.” 9 Additionally, Defendant signed a plea agreement in a previous case stating that his 10 alias was Skills, and Briscoe neglected to correct the statements made at his 11 sentencing hearing that Defendant was the second perpetrator of the robbery. Further, 12 Victim informed police in an interview that Skills had a tattoo that said either “San Jo” 13 or “Burque.” When the State sought to question Victim about the statement, the 14 defense objected, and the district court overruled the objection in a bench conference, 15 stating “It’s all over his neck. Everybody can see it, anyway.” As such, it is apparent 16 that the jury was able to view the tattoos as well. Finally, Victim’s wife positively 17 identified Defendant as the person who robbed the smoke shop in an identification 18 separate from that of her husband. We determine that these facts and circumstances 19 “corroborate the truth of the prior statements made by” Victim. Id. ¶ 62. Accordingly,

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1 Victim’s prior statement was not the sole basis for the conviction, and we conclude 2 there was sufficient evidence to sustain Defendant’s armed robbery conviction. 3 {22} Next, Defendant argues that there was insufficient evidence to support 4 Defendant’s conviction for conspiracy to commit armed robbery as the State failed to 5 prove each element of conspiracy. A conspiracy conviction required the State, in 6 relevant part, to prove beyond a reasonable doubt that: (1) “[D]efendant and another 7 person by words or acts agreed together to commit [a]rmed [r]obbery[,]” and (2) 8 “[D]efendant and the other person intended to commit [a]rmed [r]obbery[.]” UJI 14- 9 2810 NMRA. Defendant asserts that the State failed to prove either of the above stated 10 elements, especially because Briscoe did not testify that Defendant was present during 11 the robbery. 12 {23} Our Supreme Court has provided guidance on this very issue in State v. 13 Gallegos, 2011-NMSC-027, ¶ 25, 149 N.M. 704, 254 P.3d 655, and provides a 14 concise recitation of the relevant caselaw.

15 The gist of conspiracy under the statute is an agreement between two or 16 more persons to commit a felony. In order to be convicted of conspiracy, 17 the defendant must have the requisite intent to agree and the intent to 18 commit the offense that is the object of the conspiracy. It is the 19 agreement constituting the conspiracy which the statute punishes. . . . A 20 conspiracy may be established by circumstantial evidence. Generally, the 21 agreement is a matter of inference from the facts and circumstances. The 22 agreement need not be verbal, but may be shown to exist by acts which 23 demonstrate that the alleged co-conspirator knew of and participated in 24 the scheme.

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1 Id. ¶¶ 25-26 (internal quotation marks and citations omitted). 2 {24} Our review of the record indicates that the State provided sufficient evidence 3 to sustain the conspiracy conviction. Victim testified regarding his statement to police 4 that stated Skills was driving Briscoe, and Skills yelled “[j]ust [s]hoot him, [j]ust shoot 5 him.” Then Skills said “[g]ive us your money.” Victim elaborated that while Briscoe 6 put his hand in one pocket, “Skills reached into [Victim’s] right pockets, front and 7 back.” Victim indicated that Skills and Briscoe took approximately $300, his phone, 8 and his keys. Viewed in the light most favorable to the verdict, we conclude a 9 “rational jury could have found the facts required for each element of the conviction 10 beyond a reasonable doubt.” State v. Dowling, 2011-NMSC-016, ¶ 20, 150 N.M. 110, 11 257 P.3d 930. 12 {25} With regard to Defendant’s argument that Briscoe expressly testified that 13 Defendant was not involved in the robbery, we remind Defendant that it is the 14 “exclusive province of the jury to resolve inconsistencies . . . [and this Court] will not 15 invade the jury’s province as fact[]finder by second-guessing the jury’s decision 16 concerning the credibility of witnesses, reweighing the evidence, or substituting its 17 judgment for that of the jury.” State v. Vargas, 2016-NMCA-038, ¶ 27, 368 P.3d 1232 18 (internal quotation marks and citation omitted). Accordingly, we affirm Defendant’s 19 conspiracy convictions.

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1 IV. Victim’s Threat Testimony 2 {26} Defendant asserts that the district court erred in allowing Victim to testify 3 regarding threats he received prior to testifying in district court because the prejudicial 4 impact of this threat testimony outweighed its probative value in violation of Rule 11- 5 403 NMRA. Rule 11-403 allows for the exclusion of relevant evidence “if [the] 6 probative value is substantially outweighed by [the] danger of . . . unfair prejudice.” 7 Defendant asserts that the prejudice arose as “[t]he vague evidence regarding threats 8 [Victim] received . . . could not be tied to” Defendant. Defendant additionally argues 9 that the district court erred in failing to find prosecutorial misconduct and grant 10 Defendant a mistrial. 11 {27} The parties dispute whether the motion for a mistrial or the issue of 12 prosecutorial misconduct was properly preserved in district court. It is the burden of 13 the appellant to provide “a statement explaining how the issue was preserved in the 14 court below” with proper citations to the record proper. Rule 12-213(A)(4). Defendant 15 also summarily requests that we review this matter for fundamental error. It is 16 unnecessary to determine whether these additional issues were adequately preserved 17 and we additionally refrain from conducting a fundamental error review of these two 18 issues as Defendant neglected to provide a clear and developed argument regarding 19 the alleged prosecutorial misconduct rising to the level of warranting a mistrial.

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1 Accordingly, we decline to address this argument any further. See State v. Urioste, 2 2011-NMCA-121, ¶ 29, 267 P.3d 820 (“[T]his Court’s policy is to refrain from 3 reviewing unclear or undeveloped arguments which require us to guess at what [a 4 party’s] arguments might be[.]” (internal quotation marks and citation omitted)). As 5 there is no dispute regarding the preservation of the Rule 11-403 argument, and it has 6 been adequately developed on appeal, we address this aspect of Defendant’s argument 7 regarding Victim’s testimony about threats prior to trial. 8 {28} The standard of review for the admission of evidence is whether the district 9 court abused its discretion in admitting the evidence offered. See State v. Downey, 10 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244. “An abuse of discretion occurs 11 when the ruling is clearly against the logic and effect of the facts and circumstances 12 of the case. We cannot say the district court abused its discretion by its ruling unless 13 we can characterize it as clearly untenable or not justified by reason.” State v. Salazar, 14 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135 (internal quotation marks and 15 citation omitted). 16 {29} During his testimony, Victim was having difficulty answering many of the 17 State’s questions on direct examination, and Defendant acknowledges that Victim 18 “seemed reluctant to testify.” After repeatedly refreshing Victim’s memory with the 19 photo lineup he signed, identifying Defendant as the perpetrator, and his statement to

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1 police, the State requested, outside the presence of the jury, permission to treat Victim 2 as a hostile witness. The State revealed that Victim had been receiving threats, and as 3 a result, he was “acting in an adverse manner” on the witness stand. The district court 4 noted that the testimony had been “interesting” as Victim was “exhibiting signs of 5 stress.” The State indicated that Victim and his family felt “under threat” and felt “like 6 there’s definite pressure being put on them not to cooperate.” The State elaborated, 7 stating that Victim did not know the names of the people threatening him but believed 8 they were associated with the same group with which Defendant associated. 9 {30} Defendant objected to the State treating Victim as a hostile witness and 10 requested the opportunity to voir dire Victim to determine whether he was hostile to 11 the State. After hearing argument from both sides, the district court found that 12 Victim’s “demeanor . . . was noticeable and that his testimony did indicate that his 13 apparent–apparently selective loss of memory was, in fact, inherently incredible and 14 that it did appear to amount to an implied denial of the facts contained in previous 15 statements [establishing what] were very certain identification.” The district court 16 further found that when Victim was asked if the person who robbed him was in the 17 courtroom, Victim “seemed strained” and that he “looked at the jury box to see if 18 perhaps the [D]efendant was sitting in the jury,” and this behavior “raises question

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1 marks for any objective and reasonable observer.” The district court ultimately held 2 that the State could treat Victim as a hostile witness. 3 {31} Upon continuing with direct examination of Victim, the State asked if Victim 4 did not want to testify against Defendant, and Victim responded that he did not. The 5 State then asked, “[i]n fact, you have received threats about coming here today?” With 6 that, Defendant objected and stated that this statement amounted to the admission of 7 an uncharged, prior bad act and was “grounds for a mistrial.” The district court stated 8 that this was “pretty dangerous ground” as the jury could draw strong conclusions 9 based on the question. The State explained that the question was aimed at explaining 10 witness bias, motivation, and why Victim was “acting so strange.” After the court 11 considered whether the information was more prejudicial than probative, it decided 12 to conduct a voir dire examination of Victim outside the presence of the jury to 13 determine “whether he, in fact, has a bias because he is afraid to testify.” 14 {32} During the voir dire, Victim testified that he was threatened five to seven times, 15 and “[t]hey told [him] that [he] was going to die and anybody around [him] was going 16 to die” because of his involvement in the case. Victim stated that the threats came 17 from different people each time, and that he began hearing from friends that he was 18 being called a “snitch.” Victim added that he had no way of knowing whether these 19 threats were related to Defendant. Following the voir dire, Defendant reiterated to the

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1 court that allowing Victim to testify regarding the threats would be more prejudicial 2 than probative and constituted an admission of Defendant’s prior bad act. The court 3 ruled that it was not a prior bad act as it was unattributable to Defendant. Defendant 4 then argued that it was irrelevant if the threats could not be attributed to him. The 5 court ruled that the threats are relevant as they reflect witness bias. 6 {33} Following the ruling, Victim again testified regarding the threats in the presence 7 of the jury. In line with his testimony during voir dire, Victim stated that he had been 8 threatened and had received threats that “anybody around [him would] be killed.” 9 Victim testified that the threats had been affecting his life, but that they did not affect 10 his testimony. On cross-examination, Victim testified that Defendant had no contact 11 with him following the robbery, Defendant never threatened Victim personally, and 12 he did not know if the threats he received were related to Defendant. 13 {34} Defendant argues that the prejudicial impact of this testimony far outweighed 14 the probative value as the jury may have inferred that Victim was unwilling to identify 15 Defendant in court as a result of the threats Victim testified to receiving. Defendant 16 appears to argue that Victim’s threat testimony constituted prior bad act evidence that 17 should have been excluded pursuant to Rule 11-404(B) NMRA. The State argues that 18 the threat testimony was admissible as impeachment evidence to show bias on the part

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1 of Victim, and the danger of unfair prejudice did not outweigh the probative value. 2 We determine that the district court did not err in allowing the threat testimony. 3 {35} Under the New Mexico Rules of Evidence, “[a]ny party, including the party that 4 called [a] witness, may attack [that] witness’s credibility.” Rule 11-607. “The bias or 5 prejudice of a witness is material because it affects the credibility of the witness.” 6 State v. Santillanes, 1974-NMCA-092, ¶ 5, 86 N.M. 627, 526 P.2d 424. However, the 7 rules of evidence also require that evidence must be relevant in order to be admissible. 8 See Rule 11-403. Our Supreme Court has previously determined that not only may a 9 witness be questioned regarding evidence of his or her bias or prejudice, but similarly, 10 extrinsic evidence of a motive to testify falsely is admissible. See State v. Worley, 11 1984-NMSC-013, ¶ 6, 100 N.M. 720, 676 P.2d 247. “Bias of a witness is always 12 relevant.” Santillanes, 1974-NMCA-092, ¶ 5 (internal quotation marks and citation 13 omitted). However, Rule 11-404(B)(1) prohibits the use of evidence of a crime, 14 wrong, or other act “to prove a person’s character in order to show that on a particular 15 occasion the person acted in accordance with the character.” “This evidence may be 16 admissible for another purpose, such as proving motive, opportunity, intent, 17 preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Rule 18 11-404(B)(2).

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1 {36} Notwithstanding relevancy or admissibility, however, the district court “may 2 exclude relevant evidence if its probative value is substantially outweighed by a 3 danger of one or more of the following: unfair prejudice, confusing the issues, 4 misleading the jury, undue delay, wasting time, or needlessly presenting cumulative 5 evidence.” Rule 11-403. “Because a determination of unfair prejudice is fact sensitive, 6 much leeway is given trial judges who must fairly weigh probative value against 7 probable dangers.” State v . Otto, 2007-NMSC-012, ¶ 14, 141 N.M. 443, 157 P.3d 8 8 (internal quotation marks and citation omitted). 9 {37} To the extent that Defendant is arguing that this threat testimony was evidence 10 of “crimes, wrongs, or other act[s]” pursuant to Rule 11-404(B)(1), we do not agree. 11 Rule 11-404 governs the admission of evidence attributable to the defendant on trial, 12 intending to prevent convictions based upon the notion that a defendant must have 13 committed the crime because he or she is a bad person. That is not the situation in the 14 case before us. The State did not seek to admit the threat testimony with the intent of 15 showing that Defendant must have been the perpetrator involved in the robbery 16 because Defendant threatened Victim. Conversely, the State sought to use the 17 testimony to impeach its own witness, to show witness bias, and to explain why 18 Victim’s testimony did not match his original statement to police. Furthermore, 19 Victim made no indication in his testimony that the threats were in any way

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1 attributable to Defendant. For this reason, we do not determine that the threat 2 testimony constituted improper admission of Rule 11-404(B)(2) evidence of prior bad 3 acts. 4 {38} We conclude that the probative value of the threat testimony was not 5 substantially outweighed by the danger of unfair prejudice. See Rule 11-403. The 6 threat testimony was highly probative to show witness bias and provide an explanation 7 of why Victim’s testimony did not match his previous statement to police, at which 8 time Victim stated he was “100 percent positive” of his identification. The State was 9 entitled to impeach its own witness, and this evidence served such a purpose without, 10 as Defendant himself acknowledges, “directly or indirectly” attributing the threats to 11 Defendant. See Rule 11-607 (“Any party, including the party that called [a] witness, 12 may attack [that] witness’s credibility.”). While Defendant argues that Victim’s threat 13 testimony had the “result of making it appear that [Victim] was too scared to identify 14 [Defendant] in court”, this does not create automatic unfair prejudice. Our Supreme 15 Court has recognized that just because evidence may involve a defendant does not 16 necessarily create unfair prejudice. See Otto, 2007-NMSC-012, ¶ 16 (“Evidence is not 17 unfairly prejudicial simply because it inculpates the defendant.”) (internal quotation 18 marks and citation omitted)). Conversely, “prejudice is considered unfair when it goes 19 only to character or propensity.” Id. (internal quotation marks and citation omitted).

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1 Furthermore, “[t]he weight of the evidence and the credibility of the witnesses are for 2 the jury to determine.” Santillanes, 1974-NMCA-092, ¶ 2. 3 {40} Here, the threat testimony was properly admitted to show witness bias and as 4 impeachment evidence. The threats were not attributable to Defendant, and given the 5 probative value of this impeachment evidence, “we cannot say that the admission of 6 the evidence was against the logic and effect of the facts and circumstances of the 7 case, untenable, or not justified by reason.” Otto, 2007-NMSC-012, ¶ 16. 8 Accordingly, we conclude that the district court did not abuse its discretion in 9 admitting Victim’s threat testimony. 10 V. Photo Array 11 {41} Defendant asserts that the district court erred in denying his motion to suppress 12 the photo array—Victim and his wife identified Defendant in the photo array—as 13 impermissibly suggestive and unreliable. Defendant contends that the photo array was 14 impermissibly suggestive because, in the third array that was used, police detectives 15 replaced a photo of Defendant’s brother, “who looks remarkably similar to 16 [Defendant],” with a photo of Defendant. In reviewing a district court’s ruling on a 17 motion to suppress, we examine whether the law was correctly applied to the facts of 18 the case, “viewing them in the manner most favorable to the prevailing party, and 19 drawing all reasonable inferences in support of the [district] court’s decision.” State

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1 v. Salgado, 1999-NMSC-008, ¶ 16, 126 N.M. 691, 974 P.2d 661 (internal quotation 2 marks and citation omitted). We determine that the photo array was not impermissibly 3 suggestive and that the district court did not err in denying Defendant’s motion to 4 suppress. 5 {42} Prior to trial, Defendant filed a motion in limine to suppress the photo array 6 identification wherein Victim and his wife identified Defendant as the perpetrator. The 7 motion stated that Victim participated in a February 19, 2010, photo array viewing but 8 did not select any of the individuals pictured in the photos as the perpetrator. 9 Defendant then argued that Victim contacted police and stated that he was informed 10 that “he was to be robbed by Skill[s] and Outlaw from Soccoro.” After communicating 11 with Soccoro law enforcement, Albuquerque police suspected Skills was Defendant’s 12 brother. Victim and his wife participated in a subsequent photo array viewing on 13 February 24, 2010, at which time Defendant’s brother was included in this second 14 photo array. Neither witness identified any photo in the second array as the 15 perpetrator. Next, the eyewitnesses were shown a third photo array containing 16 Defendant’s photo but no photo of his brother from the previous array. Victim 17 identified Defendant in the third photo array as “the guy that robbed me” and stated 18 that the photograph “[was] Skills 100 [percent p]ositive.” Victim’s wife also 19 positively identified Defendant in a separate photo array. There were six photographs

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1 contained in each array and all six photographs were replaced between the second and 2 third arrays. Defendant alleged that because the similarities between Defendant and 3 his brother were “significant” and because police replaced Defendant’s brother’s 4 photograph with Defendant’s photograph in the final array, the array was 5 impermissibly suggestive. 6 {43} At a hearing on the motion, Defendant clarified an error in his motion, in which 7 he stated that the police replaced Defendant’s brother’s photo with Defendant’s photo. 8 Defendant explained that Defendant’s photo was not in fact in the same location as his 9 brother’s photo, and that the photos had been scrambled between the two arrays. 10 Defendant further elaborated his argument explaining that because the brothers looked 11 so similar, the eyewitnesses were “getting hints from the officer” to pick the 12 individual who looked like Defendant’s brother. 13 {44} The State contended that Defendant’s argument, showing eyewitnesses similar 14 looking people in a previous photo taints the procedure, is not supported by caselaw 15 and that the established caselaw required the consideration of factors which occurred 16 in this case—the eyewitnesses had the opportunity to observe the perpetrator during 17 the commission of the crime; they paid attention; they identified Defendant consistent 18 with their prior description of the perpetrator; and they were certain of their positive 19 identification. Further, the State explained that the eyewitnesses described the

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1 perpetrator as having a “big neck tattoo.” Defendant’s brother did not have a neck 2 tattoo, and in the photo array containing Defendant’s photo, all of the individuals bore 3 neck tattoos. The State contended that the purpose of the photo array identifications 4 is to show eyewitnesses similar looking individuals with the goal of obtaining the 5 most accurate identification. It alleged that the fact that the eyewitnesses could see a 6 photo of Defendant’s brother and recognize that the two look similar, but that the 7 brother was not in fact Defendant, weighs in favor of the reliability of the eyewitness 8 identifications. 9 {45} The district court agreed with the State, finding that the factors required by the 10 caselaw were satisfied, including the final factor that a significant amount of time had 11 not elapsed between the crime and the identification. It held that “the use of the 12 brother in the initial photo[] array did not taint or lead and that, instead, it provided 13 for a more certain [identification].” The district court ultimately denied Defendant’s 14 motion to suppress the eyewitness identification or exclude the photo array as the 15 procedure was “properly conducted.” 16 {46} Our Supreme Court has instructed that in analyzing the propriety of a photo 17 array, we must first determine “whether the photo array was so impermissibly 18 suggestive as to give rise to a very substantial likelihood of irreparable 19 misidentification.” Id. (internal quotation marks and citation omitted). In considering

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1 whether the photo array was impermissibly suggestive, we consider the number of 2 photographs in the array, the manner in which police presented the array to witnesses, 3 and the details contained within the photographs. Id. ¶ 17. If we determine the photo 4 array to be impermissibly suggestive, we must then consider whether, under the 5 totality of the circumstances, the identification is nevertheless still reliable. Id. ¶ 16. 6 The relevant factors we consider in examining the totality of the circumstances are 7 comprised of: (1) the witness’s opportunity to see the perpetrator during the 8 commission of the crime, (2) “the witness’s degree of attention at the time of the 9 crime,” (3) the level of accuracy of the witness’s prior descriptions of the perpetrator, 10 (4) the degree of certainty the witness expresses regarding the identification, and (5) 11 “the time elapsed between the crime and the identification confrontation.” State v. 12 Jacobs, 2000-NMSC-026, ¶ 30, 129 N.M. 448, 10 P.3d 127. 13 {47} In first considering whether the photo array was impermissibly suggestive, we 14 consider the size of the photo array, the manner in which law enforcement presented 15 the array, and the details of the photographs themselves. Salgado, 1999-NMSC- 16 008, ¶ 17. Defendant bypasses any analysis or argument addressing these initial 17 factors. Defendant merely states that the method of presentation was impermissibly 18 suggestive because the brothers looked “remarkably similar” and the police replaced 19 the brother’s photo with Defendant’s photo in the final array. Defendant provides no

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1 citation to caselaw or other authority in support of his argument that this manner of 2 presenting Defendant’s photo to the witnesses would give rise to a very substantial 3 likelihood of irreparable misidentification, satisfying the initial “impermissibly 4 suggestive” factor and requiring the court to move on to address the totality of the 5 circumstances factors. See State v. Desnoyers, 2002-NMSC-031, ¶ 11, 132 N.M. 756, 6 55 P.3d 968 (“We have long held that to present an issue on appeal for review, an 7 appellant must submit argument and authority as required by rule.” (emphasis, internal 8 quotation marks, and citation omitted)). Defendant additionally appears to dispute the 9 propriety of conducting the photo array after Victim received a call telling him that 10 he would be robbed by Skills. Again, Defendant fails to provide any legal authority 11 in support of this second generalized argument. 12 {48} Defendant did not dispute the number of photos in the array, the details in the 13 photos, or any other aspect of the photo arrays other than the use of his brother’s 14 picture in one array and his photo in a subsequent array. Instead, Defendant skips 15 straight to the recitation of facts, unsupported by record citation, to address the five 16 totality of the circumstances factors regarding reliability. We remind Defendant that 17 we only consider these five totality of the circumstances factors after an appellant has 18 established that the array was impermissibly suggestive. See Salgado, 1999-NMSC- 19 008, ¶ 17 (stating that we consider whether the identification is nonetheless reliable

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1 if we first determine that the photo array was impermissibly suggestive). Due to 2 Defendant’s insufficient analysis of whether the photo arrays were impermissibly 3 suggestive, other than asserting that both brothers appeared separately in the photo 4 arrays, we decline to address Defendant’s undeveloped argument. See Headley v. 5 Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating 6 that we do not review unclear or undeveloped arguments which require us to guess at 7 what parties’ arguments might be if properly developed). As a result, we conclude that 8 the district court did not err in denying Defendant’s motion to suppress the photo array 9 evidence and testimony by the Victim and his wife. 10 VI. Defendant’s Prior Plea Agreement 11 {49} Defendant argues that the district court erred in admitting his prior plea and 12 disposition agreement into evidence as it contained the alias of Skills, and the 13 probative value of the document was substantially outweighed by the danger of unfair 14 prejudice. As we have stated, we review the admission of evidence for an abuse of 15 discretion. Downey, 2008-NMSC-061, ¶ 24. Defendant’s argument again falls under 16 the purview of Rule 11-403, allowing the district court to exclude relevant evidence 17 “if its probative value is substantially outweighed by a danger of . . . unfair 18 prejudice[.]” Id.

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1 {50} During trial, the State sought to admit the plea and disposition agreement that 2 Defendant signed in a previous case. The district court ordered numerous redactions 3 of the document in order not to unfairly prejudice Defendant. The plea agreement 4 contained multiple identifying features, such as Defendant’s name, date of birth, and 5 social security number. The document also contained language identifying Defendant 6 by his alias, “AKA: Skills.” Defendant objected to the inclusion of the alias as he 7 contended the State had not laid the proper foundation, and he sought to have the alias 8 redacted. Defendant argued that the inclusion of an alias in a plea agreement signed 9 by a defendant is not an adoption of that alias, but merely “an unfounded allegation 10 by the State that it includ[ed] in its paperwork[.]” The district court ruled that the 11 document was independently admissible as a self-authenticating document but 12 required a determination of whether “it is substantially more prejudicial than 13 probative.” The district court ultimately found that the alias was relevant and highly 14 probative “because the nickname Skills is so important to this case.” It also noted that 15 the plea agreement was not the only source of this information as two witnesses and 16 both attorneys discussed Defendant’s alias. Further, Defendant signed this document, 17 accepted responsibility for the information, and never objected to it. Accordingly, the 18 district court ruled that the alias would not be redacted.

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1 {51} Defendant claims that he was unfairly prejudiced as the inclusion of the alias 2 “mislead the jury by making it appear that [Defendant] had admitted that ‘Skills’ was 3 his alias.” Defendant asserts that a district court’s inquiry into a defendant’s alias is 4 not common practice, and when a defendant pleads guilty, he is only admitting to the 5 crime not the alias listed on his plea. However, Defendant fails to provide any citation 6 to authority supporting his argument that: (1) the inclusion of the alias was improper, 7 or otherwise uncommon; (2) a defendant does not validate the alias in signing a plea 8 wherein a specific alias is listed; or (3) the admission of this plea into evidence was 9 an abuse of discretion on the part of the district court. Again, we do not review issues 10 on appeal where an appellant has failed to cite authority in support of an issue as we 11 assume no such authority exists. See State v. Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d 12 410. Accordingly, we do not address Defendant’s arguments any further. The district 13 court did not abuse its discretion in allowing the plea agreement containing 14 Defendant’s alias into evidence. 15 VII. Cumulative Error 16 {52} Finally, Defendant asserts cumulative error.“Under the doctrine of cumulative 17 error, [a reviewing court] must reverse a conviction when the cumulative impact of 18 the errors that occurred at trial was so prejudicial that the defendant was deprived of 19 a fair trial.” State v. Baca, 1995-NMSC-045, ¶ 39, 120 N.M. 383, 902 P.2d 65

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1 (alterations, internal quotation marks, and citation omitted). As we have not identified 2 any error in Defendant’s trial, we conclude there was no cumulative error. “[W]here 3 there is no error to accumulate, there can be no cumulative error.” State v. Samora, 4 2013-NMSC-038, ¶ 28, 307 P.3d 328 (internal quotation marks and citation omitted). 5 CONCLUSION 6 {53} For the foregoing reasons, we affirm Defendant’s conviction. 7 {54} IT IS SO ORDERED.

8 _________________________________ 9 TIMOTHY L. GARCIA, Judge

10 WE CONCUR:

11 _________________________________ 12 MICHAEL D. BUSTAMANTE, Judge

13 _________________________________ 14 M. MONICA ZAMORA, Judge