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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ENRIQUE GUMORO VEGA,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY,
Douglas R. Driggers, District Judge
Hector H. Balderas, Attorney General,
Margaret E. McLean, Assistant Attorney General, Joel K. Jacobsen, Assistant
Attorney General Santa Fe, NM, for Appellee
Jorge A. Alvarado, Chief Public Defender,
Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant
RODERICK T. KENNEDY, Judge. WE CONCUR:
JAMES J. WECHSLER, Judge, CYNTHIA A. FRY, Judge
AUTHOR: RODERICK T. KENNEDY
{1} Defendant appeals
his convictions for tampering with evidence and possession of a firearm by a
felon. He claims that insufficient evidence supported his convictions and that
the jury instruction on tampering with evidence was improper. We affirm.
{2} The parties do not
dispute the relevant facts. Two social gatherings were taking place on a
residential street in Anthony, New Mexico, when a fight broke out between
various people in attendance. Witness Oscar Lopez saw Defendant pull out a gun,
and various witnesses heard several shots. Someone called the police, who
arrived on the scene and investigated but, finding no suspects or victims, soon
left. Witness Perla Soto hid in a bathroom when she heard shots, and soon
after, Defendant came in and placed a gun in the toilet tank, saying, “I think
I killed somebody.” Soto heard police outside and, sometime later, Defendant
retrieved the gun from the toilet tank. Ultimately, several people sustained
gunshot wounds.
{3} Defendant was
charged with three counts of aggravated battery (deadly weapon), one count of
shooting at or from an inhabited dwelling (no great bodily harm), one count of
tampering with evidence, and one count of possession of a firearm by a felon.
Following a trial on all but one of the aggravated battery counts, the jury
convicted Defendant of tampering with evidence and felon in possession of a
firearm and deadlocked on the remaining counts. This appeal followed.
Sufficiency of Evidence of Felon in Possession of a
Firearm
{4} Relying on
State
v. Franklin,
1967-NMSC-151,
78 N.M. 127,
428 P.2d 982, and
State v.
Boyer,
1985-NMCA-029,
103 N.M. 655,
712 P.2d 1, Defendant argues that there
was insufficient evidence to support his conviction as a felon in possession of
a firearm. In order to convict Defendant of this crime, the jury was instructed
to find beyond a reasonable doubt that: (1) Defendant possessed a firearm; (2)
Defendant, “in the preceding ten years, was convicted and sentenced to one or
more years imprisonment by a court of the United States or by a court of any
state”; and (3) this happened in New Mexico on July 19, 2008.
{5} “The test for
sufficiency of the evidence is whether substantial evidence of either a direct
or circumstantial nature exists to support a verdict of guilt beyond a
reasonable doubt with respect to every element essential to a conviction.”
State
v. Duran,
2006-NMSC-035, ¶ 5,
140 N.M. 94,
140 P.3d 515 (internal quotation
marks and citation omitted). We review the evidence in the “light most
favorable to the guilty verdict, indulging all reasonable inferences and
resolving all conflicts in the evidence in favor of the verdict.”
State v.
Garcia,
2011-NMSC-003, ¶ 5,
149 N.M. 185,
246 P.3d 1057 (internal quotation
marks and citation omitted).
{6} Defendant
specifically maintains that no physical evidence corroborated eyewitness
testimony that Defendant was ever in possession of a gun and that the testimony
of one of the eyewitnesses was unreliable. Defendant cites no authority, and we
are aware of none, for the proposition that eyewitness testimony must be
corroborated with physical evidence. Both Perla Soto and Oscar Lopez testified
that they saw Defendant with a gun. In addition, the State introduced evidence
establishing that Defendant had been convicted of a felony in 2007. Thus, the
evidence supported the jury’s verdict. We do not “invade the jury’s province as
fact-finder by second-guessing the jury’s decision concerning the credibility
of witnesses, reweighing the evidence, or substituting [our] judgment for that
of the jury.”
Id. (alterations, internal quotation marks, and citation
omitted). Therefore, Defendant’s conviction for felon in possession of a
firearm was supported by substantial evidence.
A. Alleged Instruction Error on Tampering With
Evidence
{7} Defendant argues
that the jury instruction given on tampering with evidence ran afoul of the
Sixth Amendment to the United States Constitution because it did not require
the jury to find beyond a reasonable doubt that the gun was physical evidence
of a particular crime. Apparently acknowledging that he failed to preserve this
alleged error, Defendant argues that failure to instruct the jury in this
fashion constituted fundamental error. “The rule of fundamental error applies
only if there has been a miscarriage of justice, if the question of guilt is so
doubtful that it would shock the conscience to permit the conviction to stand,
or if substantial justice has not been done.”
State v. Orosco,
1992-NMSC-006, ¶ 12,
113 N.M. 780,
833 P.2d 1146.
{8} Case law
establishes that, because Subsection (B) of NMSA 1978, Section
30-22-15 (2003)
(tampering statute) ties levels of punishment to the degree of crime for which
the tampering is committed, the degree of the crime is an element of tampering
and must be proved to the fact finder beyond a reasonable doubt.
State v.
Alvarado,
2012-NMCA-089, ¶ 16, ___ P.3d ___. Defendant here wants to take
Alvarado’s
holding a step further and require the State to prove not only the degree of
the crime related to the tampering offense but also which specific crime is
related to the tampering offense. In other words, as we understand Defendant’s
argument, in order to convict Defendant of tampering with evidence, the jury
had to be instructed to find that the gun in question was evidence of one of
the specific crimes charged—either one of the shooting crimes or the crime of
felon in possession of a firearm.
{9} We are not
persuaded. Our Supreme Court in
State v. Jackson expressly held that, in
order to obtain a conviction under the tampering statute, the State does not
have to allege or prove that the accused “tampered with evidence of an
identifiable, underlying crime.”
2010-NMSC-032, ¶ 9,
148 N.M. 452,
237 P.3d
754. Defendant here attempts to distinguish
Jackson by focusing on the
statute’s element of “destroying, changing, hiding, placing or fabricating any
physical
evidence” with the requisite intent. Section 30-22-5(A) (emphasis added).
Defendant maintains that hiding an object that is not evidence cannot be
tampering; therefore, he contends, the Legislature must have intended the State
to prove what crime the object is evidence
of.
{10} We see nothing in
the tampering statute that would give rise to the strained construction urged
by Defendant. And, as the State aptly notes, the tampering with evidence
uniform jury instruction (UJI), and the jury instruction given in the present
case already ask the jury to find that the object tampered with is evidence by
asking the jury to find that the accused acted with the intent to “prevent the
apprehension, prosecution, or conviction” of someone. UJI
14-2241 NMRA (2011).
We agree with the State that “[a]n accused who acts with the specific intent to
prevent arrest, prosecution[,] or conviction self-evidently acts on the belief
that the physical object in question constitutes evidence that the police and
prosecution could otherwise use for one or all of those purposes.”
{11} In summary, we
conclude there was no error in the jury instruction due to a failure to require
the jury to find that the gun related to a specific crime. There being no
error, there was no fundamental error.
B. Sufficiency of Evidence of Tampering
{12} Defendant advances
three grounds for his contention that his conviction for tampering with
evidence was not supported by substantial evidence. First, he claims that there
was insufficient evidence of any overt act of tampering because he placed the
gun in the toilet tank only temporarily. Second, he argues that the State
failed to present evidence connecting the gun to the shooting crimes charged.
Third, Defendant maintains that the jury’s failure to find that the gun was
evidence of a felony violated his rights under the Sixth Amendment to the
United States Constitution. We address each argument in turn.
1. Temporary Hiding of Gun
{13} Defendant contends
that, after he briefly placed the gun in the toilet tank, he then “took the gun
with him, just like the defendants” in three New Mexico cases where appellate
courts held that there was insufficient evidence of tampering. As a result, he
claims that his conviction, like the convictions in the other three cases,
should be reversed. We disagree. This case bears no resemblance to the three
cases relied on.
{14} In each of the three
cases mentioned, the state did not introduce any evidence suggesting that the
defendant had done anything affirmative that would give rise to the inference
that he had the intent “to prevent the apprehension, prosecution or conviction
of any person” as required by the tampering statute. Section 30-22-5(A). In
State
v. Silva, the state introduced evidence that the defendant had a gun at the
scene of the murder and the gun was never recovered.
2008-NMSC-051, ¶ 17,
144
N.M. 815,
192 P.3d 1192. Our Supreme Court affirmed this Court’s reversal of
the defendant’s conviction for tampering because the state failed to introduce
“any evidence, circumstantial or otherwise, of an overt act on [the
d]efendant’s part from which the jury could infer [the specific] intent”
necessary to support the conviction.
Id. ¶ 19. Similarly, in
State v.
Guerra, the defendant was accused of tampering with a knife used in a stabbing.
2012-NMSC-027, ¶ 9,
284 P.3d 1076. The defendant was seen with a knife before
the stabbing occurred, but police never found the knife used in the killing.
Id.
¶¶ 3, 7. Our Supreme Court reversed the defendant’s conviction for tampering
based on the “bedrock principle” that “[t]he [s]tate cannot convict [a
d]efendant of tampering with evidence simply because evidence that must have
once existed cannot now be found.”
Id. ¶ 16. Finally, in
State v.
Arrendondo, our Supreme Court reversed the defendant’s tampering conviction
because the state “offered no evidence that [the defendant] actively hid or
disposed of” the gun he admittedly used in a shooting he claimed was in self
defense.
2012-NMSC-013, ¶¶ 1, 33,
278 P.3d 517.
{15} The facts in the
present case are in contrast to those in
Silva,
Guerra, and
Arrendondo.
Here, the State introduced eyewitness testimony that Defendant placed a gun in
a toilet tank after the shooting occurred and during the time police were
investigating the shooting, while stating that he thought he might have killed
someone. Thus, there was evidence of an overt act from which the jury could
infer, without speculating, that Defendant had the requisite intent. To the
extent Defendant claims that an overt act that is “fleeting” or “temporary” is
somehow insufficient to support a tampering conviction, he cites no authority
supporting this implausible theory, and we therefore decline to consider it.
See
In re Adoption of Doe,
1984-NMSC-024, ¶ 2,
100 N.M. 764,
676 P.2d 1329
(explaining that an appellate court need not consider an issue if no authority
is cited in support of the issue, as absent cited authority to support an
argument, the court assumes no such authority exists).
2. Evidence Connecting the Gun to the Shooting
Crimes
{16} Defendant next
contends that because the gun hidden in the toilet tank was never connected to
the shootings, there was insufficient evidence that the gun was evidence. This
appears to be a variation of Defendant’s argument regarding the jury
instruction that we discussed above. We are equally unpersuaded by this
variation.
{17} Defendant
acknowledges that our Supreme Court in
Jackson held that an object need
not be evidence of an actual crime in order to support a conviction for
tampering with evidence.
See 2010-NMSC-032, ¶ 14 (declining to limit
tampering to evidence of “a separate, identifiable crime”). But Defendant
claims that
Jackson implicitly requires that the evidence tampered with
be “
relevan[t] to the criminal justice system” because
Jackson
focused on the purpose of the tampering statute, which “is to protect the
integrity of the criminal justice system.”
Id. ¶ 10. Defendant claims
that it follows from this focus that the tampering statute’s element of
“destroying, changing, hiding, placing or fabricating any physical evidence”
cannot be proved unless the evidence destroyed, changed, hidden, placed, or
fabricated is related to a specific crime. Section 30-22-5(A).
{18} We decline to employ
Defendant’s strained reading of the tampering statute and
Jackson. The
teaching of
Jackson is clear: “Nothing in Section [30-22-5(A)]
limits
tampering to circumstances where there is a separate identifiable crime.”
Jackson,
2010-NMSC-032, ¶ 14. Indeed, in
Jackson, the defendant attempted to use
a urine specimen other than his own when submitting to a random urinalysis
required by the terms of his probation.
Id. ¶ 3. This conduct was
clearly not tampering with evidence of a crime, but our Supreme Court held that
it could constitute tampering because “[t]he crime of tampering with evidence
is complete the moment the accused commits the prohibited act with the
requisite mental state, regardless of whether any subsequent police
investigation does or even could materialize.”
Id. ¶ 9. Defendant’s
argument is without merit.
3. Sixth Amendment Claims
{19} Defendant’s final
argument on this issue is hard to follow. He appears to offer another variation
of the theme presented in his argument regarding the jury instruction, which we
have disposed of above. Defendant claims that the State was required and failed
to prove that the gun in question was evidence of a felony. This is because
Subsection (B) of the tampering statute ties levels of punishment to the degree
of crime for which the tampering is committed.
See Alvarado,
2012-NMCA-089,
¶ 16. Thus, he reasons, in order to avoid a violation of the Sixth Amendment,
the State must prove, and the jury must be asked to find, “a particular
tampered-with crime.”
{20} We were not
persuaded in
Alvarado by this interpretation of the tampering statute in
connection with Defendant’s argument regarding the jury instruction, and we are
equally unpersuaded here. The State presented evidence of all of the elements
of the crime of tampering, and we therefore affirm Defendant’s conviction on this
basis.
{21} For the foregoing
reasons, we affirm Defendant’s convictions.
RODERICK T. KENNEDY, Judge