Attempted Armed Robbery Needs No Express Demand; Deliberate-Intent Murder May Be Proven by Circumstantial Timeline and Post-Offense Conduct: Commentary on State v. Sanders (N.M. 2025)

Note on citation: The opinion in State v. Sanders was resolved by a nonprecedential decision under Rule 12-405 NMRA. While it applies settled New Mexico law and offers persuasive guidance, it is not binding precedent and is subject to citation restrictions in New Mexico courts.

Introduction

In State v. Sanders, the Supreme Court of New Mexico affirmed convictions for first-degree willful-and-deliberate murder and attempted armed robbery arising from the fatal shooting of a convenience store clerk in Weed, New Mexico. The case was decided by nonprecedential disposition on November 3, 2025.

The appeal presented two sufficiency-of-the-evidence challenges:

Whether the State proved “deliberate intent” required for first-degree murder, particularly in light of the defendant’s argument that the killing was a rash, impulsive act and that his alleged voluntary intoxication negated deliberation.
Whether the State proved attempted armed robbery, where the defense emphasized the absence of an explicit property demand or a completed taking, and again invoked voluntary intoxication to negate specific intent.

Relying heavily on surveillance evidence and post-offense conduct, the Court concluded a rational jury could find both deliberate intent to kill and an overt act/substantial part toward committing armed robbery. The Court also emphasized the constrained nature of sufficiency review, declining to reweigh evidence or entertain inferences favoring acquittal, and noting the defense did not secure a voluntary intoxication instruction.

Summary of the Opinion

The New Mexico Supreme Court affirmed the convictions, holding:

First-degree willful-and-deliberate murder: Substantial circumstantial evidence supported the jury’s finding of deliberation. The surveillance timeline showed planning and purposeful conduct (repeated entries and exits, waiting for customers to leave, retrieving a concealed gun, aiming and firing). Post-offense behavior (changing clothes, hiding the truck, vehicle theft, false statements to police) reinforced consciousness of guilt and deliberative intent.
Attempted armed robbery: Substantial evidence supported attempt even in the absence of an explicit demand for property. Defendant repeatedly brought items to the counter without paying, pointed a gun at the victim, and shot her. Under New Mexico law, an overt act/substantial part in furtherance of armed robbery can be proven without a verbal demand or completed taking.
Voluntary intoxication: On sufficiency review, appellate courts do not reweigh contrary inferences such as intoxication. Here, the record contained limited intoxication evidence, officers observed no impairment, and the defense did not request a voluntary intoxication instruction. The jury was thus free to find deliberate intent and specific intent for attempt.
Nonprecedential disposition: The Court exercised its Rule 12-405(B)(1)–(2) discretion because the issues were controlled by existing law and were resolved by the presence of substantial evidence.

Analysis

Standard of Review for Sufficiency

The Court measured sufficiency against the jury instructions, which “become the law of the case.” It then asked whether any rational trier of fact could find each element beyond a reasonable doubt, viewing the evidence as a whole and indulging reasonable inferences in favor of the verdict (Arrendondo; Duran; Graham). The Court underscored that it does not reweigh evidence, search for inferences consistent with innocence, or substitute its judgment for the jury’s.

Precedents Cited and Their Role

State v. Arrendondo, 2012-NMSC-013: Reinforces that jury instructions set the benchmark for sufficiency review. The Court adhered to the definitions of “deliberate intention” and the attempt elements as given to the jury.
State v. Duran, 2006-NMSC-035: Establishes the substantial evidence test and clarifies that contrary evidence is not a basis for reversal. Sanders applies this by refusing to reweigh “rash/impulsive” and intoxication arguments on appeal.
State v. Graham, 2005-NMSC-004: Instructs courts to consider the evidence as a whole, indulging inferences supporting the verdict and rejecting hypotheses of innocence. Sanders applies this posture strictly.
State v. Cunningham, 2000-NMSC-009: Explains “deliberate” as conduct arrived at by careful thought and weighing considerations, and recognizes post-incapacitation shots as evidence of deliberation. Sanders draws on Cunningham’s articulation of deliberation and permits the jury to infer deliberation from the timeline and manner of the shooting.
State v. Tafoya, 2012-NMSC-030: Notes that “earlier confrontations” and other frictions can evidence deliberation. While Sanders did not involve a prior confrontation, Tafoya supports the broader principle that circumstantial context can evidence deliberation.
State v. Flores, 2010-NMSC-002 (overruled on other grounds by State v. Martinez, 2021-NMSC-002): Recognizes post-offense conduct (flight, disposing of evidence, false alibis) as circumstantial evidence consistent with deliberation. Sanders leans on this line to weigh the defendant’s flight, concealment, and lies.
State v. Martinez, 1999-NMSC-018: Permits the use of flight and attempts to deceive police as evidence of consciousness of guilt. Sanders applies this to bolster the inference of deliberation.
State v. Adonis, 2008-NMSC-059, and Duran (again): Distinguish first- and second-degree murder. If the State proves only rashness or impulsivity (without deliberation), the proper conviction is second-degree. Sanders holds that, viewed in the State’s favor, the evidence supported deliberation.
State v. Sosa, 2000-NMSC-036, and State v. Vigil, 1990-NMSC-066: Intent is subjective and is almost always proven by circumstantial evidence. Sanders relies on circumstantial proof (timeline, manner of shooting, flight) to infer both deliberate intent and the specific intent for attempt.
State v. Paul, 1972-NMCA-043: Attempted armed robbery can be upheld even without an express demand or taking if the defendant’s conduct (e.g., brandishing a gun in a robbery context) constitutes an overt act in furtherance that tends but fails to effect the crime. Sanders uses Paul to reject the argument that the absence of a verbal demand or completed taking defeats attempt.

Legal Reasoning

First-Degree Willful-and-Deliberate Murder

The jury was instructed that “deliberate” intent is the result of careful thought and weighing of considerations, and that a mere rash impulse, even with an intent to kill, is not deliberation. The Court pointed to a sequence captured on surveillance:

Defendant learned the victim was alone and that the boss would arrive in about an hour.
He returned, observed store conditions, and waited for another customer to leave.
He repeatedly brought items to the counter but did not pay; he ignored the clerk’s directions to leave cash and pump gas.
He went to his vehicle, returned with a concealed firearm, approached the register, aimed, and attempted to shoot (two misfires), then regained control and fired twice.
He fled, changed clothes, hid his truck, stole another vehicle, and lied to officers about key facts.

From this, a rational jury could infer that Defendant formed a plan—rob the store and eliminate the sole witness—then executed it. The misfires followed by regaining control and firing further supported a measured intent to kill rather than a purely impulsive outburst. Post-offense concealment and deception were admissible to show consciousness of guilt and, in context, supported deliberation.

On voluntary intoxication, the Court emphasized the limits of sufficiency review. It noted the thin intoxication evidence (a toxicology result of 0.11 mg/L methamphetamine; red eyes; paraphernalia; contrary officer observations indicating he did not appear impaired) and highlighted that the defense first invoked intoxication in closing and did not request a voluntary intoxication instruction. Under the standard of review, the appellate court would not reweigh the competing inferences or entertain a defense narrative inconsistent with the verdict.

Attempted Armed Robbery

New Mexico’s attempt statute requires an “overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission.” The jury was instructed that the State had to prove Defendant intended to commit armed robbery and “began to do an act which constituted a substantial part” of armed robbery but failed to complete it.

Relying on Paul, the Court held that a verbal demand or a completed taking is not a prerequisite to attempt liability. Here, Defendant’s conduct—selecting items, refusing to pay, returning with a concealed gun, pointing it directly at the clerk, and shooting—was ample for a rational jury to find:

Specific intent: to commit armed robbery (taking property by threatened force while armed).
Overt act/substantial part: pointing a gun at the clerk at the register and initiating lethal force during a transaction context was a substantial part toward committing armed robbery, thwarted when the victim cried out and Defendant fled.

The Court again declined to reweigh the voluntary intoxication argument at the sufficiency stage.

Element-by-Element Mapping to the Evidence

First-degree willful-and-deliberate murder
- Killing of a human being: undisputed.
- Without lawful justification or excuse: no evidence of justification.
- Willful, deliberate, premeditated intent: inferred from the surveillance-driven plan (timing, waiting for other patron to leave, retrieval and concealment of weapon, persistent efforts to fire, and post-offense concealment and lies) per Cunningham, Tafoya, Flores, Martinez.
Attempted armed robbery
- Specific intent to commit armed robbery: inferred from the setting at the register, selection of goods, refusal to pay, arming and aiming the firearm, and use of force.
- Overt act/substantial part tending but failing to effect the robbery: pointing and firing the gun at the clerk at the register, consistent with Paul’s allowance of attempt without an explicit demand or taking.

“Overt Act” vs. “Substantial Part”

New Mexico’s statute uses “overt act,” while the uniform jury instruction frames attempt as beginning an act that constitutes a “substantial part” of the crime. Sanders treats these formulations as functionally aligned. In practice, both seek to distinguish punishable steps that move beyond mere preparation. The Court viewed the armed approach to the clerk, aiming, and firing as acts crossing the line from preparation to perpetration.

Unaddressed or Narrowly Treated Issues

Voluntary intoxication as a legal defense: The Court did not resolve whether the intoxication evidence warranted an instruction; it emphasized instead that no instruction was requested and that sufficiency review does not credit contrary inferences. Practitioners should not overread Sanders as changing New Mexico’s doctrinal treatment of voluntary intoxication; it is a case about the limits of appellate sufficiency review.
Length of deliberation: While not expressly stated in this opinion, Sanders is consistent with New Mexico law that deliberation does not require a lengthy time period; it can be formed quickly if the evidence supports careful thought and weighing.

Impact

Although nonprecedential, Sanders reinforces several operational points for New Mexico criminal practice:

Attempt without express demand: Prosecutors can sustain attempted armed robbery convictions without a verbal demand or a taking where the circumstantial evidence (brandishing or using a firearm at the point of sale, refusal to pay, and a robbery context) reasonably supports intent and an overt act/substantial part. Paul remains an important anchor for this proposition.
Surveillance as circumstantial proof of deliberation: Time-stamped footage capturing pre-offense reconnaissance, strategic reentries/exits, and weapon retrieval provides potent circumstantial evidence of deliberation for first-degree murder. Post-offense concealment and deceit further solidify that inference.
Voluntary intoxication practice pointers: To preserve and present intoxication as a defense to specific-intent crimes, defense counsel must:
- Develop the evidentiary record beyond mere toxicology levels (e.g., observable impairments, expert testimony linking concentration to impairment at the time of offense).
- Request and secure the appropriate jury instruction on voluntary intoxication.
- Frame the instruction to the specific intent elements at issue (deliberate intent for first-degree murder; intent to commit armed robbery for attempt).
Appellate posture matters: Sufficiency review is highly deferential. Arguments premised on alternative inferences (rashness, intoxication) rarely succeed unless the State’s evidence fails to support the elements under the instructions.
Charging decisions and jury instructions: Where evidence of deliberation may be contested, submitting second-degree as a lesser-included offense—as was done here—mitigates risk of reversal and gives the jury a valid alternative. The State’s success in Sanders shows how a well-built circumstantial narrative can support the greater offense.

Complex Concepts Simplified

Deliberate intent (first-degree murder): Not just “I meant to kill.” The State must show the decision to kill was made after careful thought and weighing of reasons for and against—this can occur quickly and is often proven by behavior before, during, and after the killing.
Second-degree murder: An intentional killing done rashly or impulsively, without the careful thought that marks deliberation. If the evidence shows only impulse, the conviction should be second-degree, not first-degree.
Circumstantial evidence: Proof based on inference from facts (e.g., surveillance timeline, weapon concealment, flight) rather than direct statements of intent. Intent is almost always proven this way.
Sufficiency of the evidence review: On appeal, the court asks whether any rational juror could find each element beyond a reasonable doubt, looking at the evidence in the light most favorable to the verdict. The appellate court does not reweigh evidence or pick inferences favoring the defendant.
Attempt (overt act/substantial part): A person can be guilty of an attempted crime if they intend to commit it and take a real step toward doing it that goes beyond preparation. For attempted armed robbery, pointing a gun at a clerk at the register and initiating use of force can suffice even without an explicit demand or taking.
Consciousness of guilt: Flight, concealing evidence, or lying to police can be used to infer that the person knew they committed a crime. These are not conclusive alone but add weight to other evidence of culpability.
Voluntary intoxication: In New Mexico, voluntary intoxication may negate specific intent, but only if the jury is properly instructed and the evidence supports impairment at the relevant time. On appeal, courts will not assume impairment or reweigh conflicting signs of intoxication under a sufficiency challenge.

Conclusion

State v. Sanders underscores how a carefully reconstructed timeline—anchored by surveillance footage and post-offense behavior—can provide substantial circumstantial evidence of both deliberate intent for first-degree murder and the intent-plus-overt-act required for attempted armed robbery, even in the absence of an express demand or a completed taking. The opinion also illustrates the rigorous constraints of sufficiency review and the importance of preserving defenses like voluntary intoxication through tailored jury instructions and a developed evidentiary record.

While nonprecedential, Sanders offers clear practical guidance: prosecutors can successfully try attempted armed robbery cases without a verbal demand where context and conduct show intent and substantial steps; defense counsel should not rely on intoxication arguments at the sufficiency stage without a foundation built at trial; and courts will continue to treat pre- and post-crime conduct as powerful circumstantial indicators of deliberation.