State v. Aragon

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-

112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number: 2

Filing Date: May 11, 2026 3

NO. S-1-SC-40256 4

STATE OF NEW MEXICO, 5

Plaintiff-Appellee, 6

v. 7

CASTULO ARAGON, JR., 8

Defendant-Appellant. 9

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 10

Jared G. Kallunki, District Judge 11 Bennett J. Baur, Chief Public Defender 12 Kimberly M. Chavez Cook, Appellate Defender 13 Mary Barket, Assistant Appellate Defender 14 Santa Fe, NM 15

for Appellant 16

Raúl Torrez, Attorney General 17 Santa Fe, NM 18

Michael J. Thomas, Assistant Solicitor General 19 Albuquerque, NM 20

for Appellee21

1

OPINION 1

VIGIL, Justice. 2

{1} Defendant Castulo Aragon, Jr., was convicted by a jury of the first-degree 3 murder of his wife, Maria Aragon (Victim), and three counts of tampering with 4 evidence. Defendant chose to represent himself at the trial. On direct appeal to this 5 Court he now raises approximately twenty various arguments that can be distilled 6 to: (1) issues related to the admission of lay testimony; (2) issues related to the 7 admission of expert testimony and whether Defendant's right to confront witnesses 8 under the Sixth Amendment was violated; (3) issues related to the sufficiency of the 9 evidence supporting Defendant's convictions; (4) whether the count three conviction 10 is barred by double jeopardy; and (5) whether prosecutorial misconduct occurred. 11 We conclude that none of Defendant's arguments warrant a new trial, and we affirm 12 the jury's verdict on counts one, two and four. However, we remand the case to the 13 district court for dismissal of Defendant's count three conviction for tampering with 14 evidence because it is barred by double jeopardy. 15

I. BACKGROUND 16

{2} Victim and Defendant met in December, 2015, and married four months later, 17 in April, 2016. Victim and Defendant knew each other for a total of fifteen months 18 when she was murdered in March, 2017, and they were married for eleven of those 19

2

months. On Monday, March 6, 2017, at approximately 9:40 a.m., Victim was found 1 deceased by the side of the road along Highway 285 north of Roswell, New Mexico. 2 She was lying face down near some large piles of gravel. Her bloody sweater was 3 on backward and her hair was matted with blood. 4

{3} There was no evidence of blood dripping down onto Victim's clothes, despite 5 significant head trauma. There was no blood on the ground, even though Victim had 6 significant injuries. Nor was there evidence that Victim walked to the location where 7 she was discovered. The evidence suggested that Victim was transported to the 8 scene, was "deposited" where she lay, and was not there long before she was 9 discovered. 10

{4} Expert witness testimony revealed that Victim received three different types 11 of fatal injury. She was strangled, stabbed in the chest, and struck in the head with a 12 blunt object. Victim lived for six to twenty-four hours from the time of the head 13 injuries, which resulted in internal skull fracture and lacerations. The lack of ligature 14 marks suggested manual strangulation, although the evidence was inconclusive. 15 Victim's jaw was badly broken. A police officer with twenty-four years of 16 experience who was admitted as an expert in crime scene investigation testified that 17 this was "one of the more violent cases that [he had] seen." 18

{5} Evidence of Victim's blood was found in multiple locations to which 19

3

Defendant had access. Evidence of her blood was found on a "significant area"—1 approximately one and one-half feet by two feet—in the cargo area of Victim's 2 Honda CRV. This evidence was consistent with the placement of an object that was 3

"very wet and very bloody but not . . . actively bleeding" in the cargo area of the 4 Honda CRV. The armrest of the car also contained evidence of Victim's blood. 5

{6} The laundry room in the Roswell home Victim shared with Defendant had 6 small, circular bloodstains in a pattern suggesting that a person was spitting or 7 coughing blood while near the floor. There were additional stains in the laundry 8 room higher up on the wall, approximately two to four feet from the floor. This was 9 Victim's blood. Evidence of Victim's blood was also found on the clothes dryer, the 10 wall adjacent to the laundry machines, and the floor of the laundry room. 11

{7} At a different Roswell property owned by Defendant—where he lived in a 12 trailer before moving in with Victim—police found Victim's blood in a trash can on 13 newspapers, a paper towel, an Allsups convenience store bag, and pieces of duct 14 tape. Victim's blood was spattered on the Allsups bag, which indicated that the blood 15 was flung through the air and onto the bag with enough force to break up the blood 16 into small droplets. The newspaper was saturated with blood, meaning that it was in 17 contact with a bloody object. One piece of duct tape was approximately four feet 18 long with "staining all over." The duct tape was too stained with Victim's blood to 19

4

test for the DNA of someone who might have touched the tape. Despite all of the 1 locations with Victim's blood described above, police concluded that there was 2 another "scene [they] did not find" where Victim died. 3

{8} The State's expert in digital forensics testified that on the night of Saturday, 4 March 4, 2017, into Sunday, March 5, 2017—approximately one day before Victim 5 was found deceased on the morning of Monday, March 6, 2017—Defendant's phone 6 was away from home nearly all night. More specifically, Defendant's phone was 7 south and east of his home from approximately 8:00 p.m. to 10:00 p.m. on Saturday, 8 and from 1:00 a.m. until at least 10:00 a.m. on Sunday morning. 9

{9} At about 10:00 a.m. on Sunday, Defendant's phone began moving north from 10 where it had been all night. The expert testified that "the phone was very busy 11 throughout [Sunday] up and down Roswell" and did not "become static at home" 12 until almost thirteen hours later at approximately 11:00 p.m. Then, at 3:06 a.m. on 13 Monday, March 6, Defendant's phone was again moving away from home, south 14 and east of Defendant's residence. At 6:46 a.m. Defendant's phone was on the relief 15 route off Highway 70 in northern Roswell, which is close to where Victim's body 16 was found a few hours later. 17

{10} Victim's father and a Honda car dealership salesman each provided additional 18 evidence. Victim's father testified that when he spoke with Victim by phone on 19

5

Saturday, March 4, they had a conversation about the marriage, and she told him that 1 she was, in her father's words, "quite upset at the manner that [Defendant] would 2 act." Victim's father told her that "since [the] relationship was quite wearing on her 3

. . . the best thing to do would be to end it." They planned to talk the next day, which 4 was the day before her body was found, but Victim did not answer any of her father's 5 calls. 6

{11} During their consensual interview with Defendant on the day Victim's body 7 was found, the police had asked Defendant whether Victim's Honda CRV had GPS. 8 The Honda dealership salesperson testified that a day or two after the murder, 9 Defendant came to the dealership and started looking at the Honda CRVs on the lot 10 and then inquired specifically about whether a Honda CRV had GPS and whether it 11 could be tracked. The salesperson recognized Defendant because when Victim, a 12 known customer, went missing, it was a "pretty big thing" to the dealership, and the 13 social media information about the death included a photograph of Defendant. The 14 salesperson noted that Defendant arrived at the dealership on a bicycle and wore a 15 baseball cap. Following the incident, the salesperson contacted the police.¹ 16

6

{12} Defendant maintained his innocence. Through his testimony at trial and a 1 consensual interview with police, Defendant offered the following account of the 2 events on the weekend Victim was murdered. Defendant stated that on Saturday 3 afternoon Victim returned from a work visit in Hobbs, New Mexico. Defendant 4 testified that on Sunday, the day of the alleged murder, Defendant left the house to 5 work at some rental properties and run several errands. He said while he was out, 6 Victim texted, stating that she was going for a walk. There was digital forensic 7 evidence that Defendant's phone and Victim's phone were in proximity when this 8 text was sent from Victim's phone and that Victim's phone was not at home. 9 Additionally, evidence was presented indicating that Victim's phone was not locked 10 and that Defendant used it after Victim went missing. Victim's phone, Honda CRV, 11 car keys, and credit card were all at the house. Only the spare house key was missing. 12 On Sunday night, Defendant called the police to report Victim missing. 13 salesperson's direct observation of Defendant's demeanor does not constitute evidentiary error, but even assuming that it was error, it was harmless. There is no reasonable probability that this unsolicited testimony affected the verdict, especially given the large volume of additional, more directly probative evidence of Defendant's guilt. See State v. Fernandez, 2023-NMSC-005, 528 P.3d 621, ¶ 24 (stating factors to assess the probable effect of evidentiary error); State v. Tollardo, 2012-NMSC-008, ¶¶ 25, 36, 275 P.3d 110 (establishing that nonconstitutional error is reversible only where there is a reasonable probability that the error affected the jury's verdict).

7

{13} When speaking to the police on the day Victim's body was found, Defendant 1 also stated that at Victim's workplace there was a big man with a dark complexion 2 who made her uncomfortable. Defendant stated that he asked about this man and 3 someone told him that the man with the dark complexion shoots up drugs. Defendant 4 also stated during a pretrial interview with police that, to his knowledge, Victim had 5 not been unfaithful. However, Defendant's former neighbor testified that sometime 6 in May 2017, Defendant initiated the only conversation the two of them ever had. 7 The neighbor testified that Defendant "came close to [him]" and asked, do "you 8 know what happened with my wife?" Hearing that the neighbor did not know, 9 Defendant, in the words of the neighbor, stated that "she went for a walk and she 10 disappeared [b]ecause she had lovers. . . . She would meet men on the internet, . . . 11 had a man that lived in Vaughn, New Mexico," and "[t]hey killed her with 12 stabbings." 13

{14} Defendant represented himself at the jury trial. After deliberating for 14 approximately two and one-half hours, the jury convicted Defendant on all counts. 15 Defendant appeals directly to this Court, as provided by Article VI, Section 2 of the 16 New Mexico Constitution and Rule 12-102(A)(1) NMRA. Additional facts are 17 provided as necessary in the discussion section to address Defendant's issues. 18

8

II. DISCUSSION 1

A. Lay Testimony Challenged by Defendant 2

{15} In addition to the evidence set forth in the background section, the following 3 evidence was also presented to the jury which Defendant asserts was improperly 4 admitted, requiring a new trial. We disagree. We first set forth our standard of 5 review, then discuss the items of evidence in turn. 6

1. Standard of review for Defendant's evidentiary challenges 7

{16} A challenge to a district court's decision to admit or exclude evidence is 8 reviewed for an abuse of discretion. State v. Fernandez, 2023-NMSC-005, ¶ 8, 528 9 P.3d 621. "An abuse of discretion occurs when the ruling is clearly against the logic 10 and effect of the facts and circumstances of the case. We cannot say the trial court 11 abused its discretion by its ruling unless we can characterize it as clearly untenable 12 or not justified by reason." State v. Bailey, 2017-NMSC-001, ¶ 12, 386 P.3d 1007 13 (internal quotation marks and citation omitted). 14

{17} Unpreserved claims of evidentiary error are reviewed for plain error. State v. 15 Montoya, 2015-NMSC-010, ¶ 46, 345 P.3d 1056. To review for plain error, we 16

"examine the alleged error[] in the context of the testimony as a whole." Id. (internal 17 quotation marks and citation omitted). This Court will not conclude that there was 18 plain error unless "convinced that admission of the testimony constituted an injustice 19

9

that created grave doubts concerning the validity of the verdict." Id. (internal 1 quotation marks and citation omitted). 2

{18} Even where the Court concludes that error has been committed, it will not 3 reverse unless there is sufficient prejudice. Nonconstitutional error and 4 constitutional error are reversible but under different degrees of prejudice. Reversal 5 on the basis of nonconstitutional error requires that there was a reasonable 6 probability that the error affected the jury's verdict. State v. Tollardo, 2012-NMSC-7 008, ¶¶ 25, 36, 275 P.3d 110. But where an error results in an "intrusion on a distinct 8 constitutional protection," this Court will reverse where there is a reasonable 9 possibility that the error affected the verdict. State v. Sena, 2020-NMSC-011, ¶ 29, 10

470 P.3d 227 (internal quotation marks and citation omitted). 11

{19} The effect of constitutional error and nonconstitutional error is evaluated 12 through the same lens: 13

"When assessing the probable effect of evidentiary error, courts should 14 evaluate all of the circumstances surrounding the error. This includes 15 the source of the error, the emphasis placed on the error, evidence of 16 the defendant's guilt apart from the error, the importance of the 17 erroneously admitted evidence to the prosecution's case, and whether 18 the erroneously admitted evidence was merely cumulative. These 19 considerations, however, are not exclusive, and they are merely a guide 20 to facilitate the ultimate determination—whether there is a reasonable 21 probability [or possibility] that the error contributed to the verdict." 22 Fernandez, 2023-NMSC-005, ¶ 24; see also Tollardo, 2012-NMSC-008, ¶ 43 23

10

(stating that constitutional and nonconstitutional errors are evaluated the same way 1 and providing the language for the Fernandez distillation). The harmless error 2 analysis is strictly case-by-case: "When assessing two cases that are factually 3 analogous, with similar errors, the reviewing court thus may find the impact of the 4 error harmful in one case and harmless in the other." Tollardo, 2012-NMSC-008, ¶ 5

44. 6

2. Testimony of Victim's hairdresser, supervisor, client, and coworker² 7

{20} Defendant argues that Victim's hairdresser, supervisor, client, and coworker 8 offered improper character evidence under Rule 11-404 NMRA, and that this 9

11

testimony was unfairly prejudicial and therefore inadmissible under Rule 11-403 1

NMRA.³2

{21} Victim's hairdresser of seven years and neighbor for three years testified that 3 Victim changed after getting married to Defendant, especially during the latter part 4 of the marriage, and that Victim was concerned about keeping her highlights the way 5 Defendant liked them. At Victim's hair appointment on Wednesday, March 1, 2017, 6 Victim told her hairdresser that the relationship was not, in the words of the 7 hairdresser, "as great as [Victim] thought [it was] going to be." Three days before 8

12

the murder Victim told her hairdresser that she was going to talk to Defendant about 1 their relationship that weekend.⁴2

{22} Victim's supervisor testified that she contacted police after an incident where 3 Defendant followed Victim and her supervisor to a joint client visit out of town. 4 Defendant followed them in his vehicle from Roswell all the way to the building of 5 the client. When the supervisor dropped Victim off after the trip, Defendant met 6 them outside the home he shared with Victim and the first thing he said was that he 7 denied stalking them.⁵Victim's supervisor not only contacted the police but also 8 documented the incident in Victim's personnel file, stopped travelling in the same 9 car with Victim because the supervisor was concerned for her own safety, and held 10 meetings with Victim only in public spaces. The supervisor additionally testified that 11 she documented, in Victim's personnel file, other times when Defendant "show[ed] 12 up" at Victim's home visits to clients. Finally, the supervisor testified that she 13

13

received multiple calls from Defendant over a prolonged period repeatedly checking 1 whether Victim was with the supervisor when Victim and supervisor were meeting 2 or travelling for work. 3

{23} Victim's client who lived in Carlsbad testified that Defendant accompanied 4 Victim on almost every monthly visit. Defendant generally waited in the passenger 5 seat of Victim's state-issued car. But at one of the earlier visits to which Defendant 6 accompanied Victim, the client and her husband invited Defendant into the house 7 because it was very hot—approximately ninety degrees outside—and Defendant was 8 in the car with the windows closed and the engine off. Defendant reluctantly 9 accepted the invitation. The client observed that Victim behaved differently than on 10 other visits and cut the visit short. Victim seemed sufficiently uncomfortable that the 11 client reported the incident to Victim's supervisor. 12

14

{24} Victim's coworker testified that Victim "seemed more quiet" after she 1 married Defendant,⁶that the coworker didn't feel comfortable going to the 2 wedding,⁷and that Defendant stopped by Victim's office "[a]t least maybe twice a 3 week." The coworker also testified that on Sunday, March 6, 2017, Defendant called 4 her at about 11:00 p.m. from Victim's phone and that Defendant asked whether she 5 had the phone numbers of any of Victim's friends. 6

15

{25} We reject Defendant's Rule 11-403 and -404 claims that the district court 1 erred when it admitted lay witness testimony regarding Defendant's demeanor and 2 prior acts. This Court has, in this very context of domestic violence, deemed 3 admissible prior acts that had similar probative value and carried much greater 4 danger of unfair prejudice than the evidence at issue in the instant case. In State v. 5 Rojo, this Court denied the defendant's prior bad acts challenge to evidence of prior 6 violent acts against the victim. 1999-NMSC-001, ¶¶ 46-47, 126 N.M. 438, 971 P.2d 7

829. The evidence at issue was testimony that the defendant stated he would kill the 8 victim; that the defendant stated he "wanted to die if the victim's family did not want 9 her to marry him"; that the victim stated the defendant had hit her upon seeing her 10 with another man; and that the victim once had a swollen mouth and black marks on 11 her arm. Rojo, 1999-NMSC-001, ¶¶ 6, 12. The motive presented by the state was 12 that the defendant killed the victim because she left her relationship with him to 13 marry a different man. Id. ¶ 47. We reasoned that the evidence was admissible 14

"[u]nder Rule 11-404(B)" because it was relevant to the defendant's motive for 15 murdering the victim. Rojo, 1999-NMSC-001, ¶ 47. We also denied the defendant's 16 claim that the evidence was unfairly prejudicial because "under Rule 11-403" his 17

"prior acts had significant probative value in assessing the theories about the motive 18 for the killing that both sides presented at trial." Rojo, 1999-NMSC-001, ¶ 48. 19

16

{26} As in Rojo, the prior acts and demeanor testimony of the lay witnesses in this 1 case was highly probative of Defendant's motive to prevent Victim from leaving the 2 relationship. And while that testimony was prejudicial to Defendant, its prejudicial 3 effect did not substantially outweigh the probative value of Defendant's motive to 4 kill Victim. It was less likely to unfairly prejudice Defendant than the testimony in 5 Rojo where, for example, the defendant stated he wanted to die if the victim's family 6 opposed their marriage. Accordingly, we reject Defendant's claim that testimony 7 from lay witnesses regarding Defendant's prior acts was unfairly prejudicial, 8 inadmissible character evidence.⁸ 9

B. Expert Witness Testimony Challenged by Defendant and Right of 10

Confrontation 11

{27} Defendant contends that expert witness testimony offered by a nurse 12 practitioner was not admissible. Defendant also contends that expert testimony was 13

17

admitted which relied on an autopsy report prepared by a doctor who did not testify, 1 which resulted in a violation of Defendant's confrontation rights under the Sixth 2 Amendment to the United States Constitution. Defendant claims he is entitled to a 3 new trial due under each of these arguments. We disagree. 4

1. Testimony of the expert nurse practitioner 5

{28} Defendant argues under Rule 11-401 NMRA and Rule 11-702 NMRA that 6 the nurse practitioner's testimony did not assist the trier of fact because it was not 7 individualized and therefore does not fit the test of relevance. Additionally, under 8 Rules 11-403 and -404, Defendant argues that the expert nurse practitioner's 9 testimony was improper character evidence and unfairly prejudicial. He 10 characterizes the testimony as improper profiling evidence and contends that the 11 nurse practitioner improperly "diagnosed [Victim's] murder as resulting from 12 intimate-partner violence, created a portrait of the perpetrator's characteristics, and 13 explained the cycle of violence that she claimed, without case-specific evidence, led 14

18

to it."⁹Additionally, Rule 11-401 requires that evidence be relevant. The test for 1 relevant evidence is whether the evidence "has any tendency to make a fact more or 2 less probable than it would be without evidence, and . . . the fact is of consequence 3 in determining the action." Rule 11-702 provides, 4

A witness who is qualified as an expert by knowledge, skill, experience, 5 training, or education may testify in the form of an opinion or otherwise 6 if the expert's scientific, technical, or other specialized knowledge will 7 help the trier of fact to understand the evidence or to determine a fact 8 in issue. 9

This Court has identified "three prerequisites" for the admission of expert testimony 10 under Rule 11-702: "The first requirement is that the expert be qualified. . . . The 11 second . . . is whether [the expert testimony] will assist the trier of fact. . . . The third 12 requirement . . . is that an expert may testify only as to 'scientific, technical or other 13

19

specialized knowledge.'" State v. Alberico, 1993-NMSC-047, ¶¶ 43-45, 116 N.M. 1 156, 861 P.2d 192 (citation omitted). 2

{29} This Court has described the test for whether an expert's testimony assists the 3 trier of fact as "on this subject can a jury from this person receive appreciable help." 4 Id. ¶ 44 (text only)¹⁰(citation omitted). "In this context, relevance is another way of 5 referring to probative value, sometimes referred to as logical relevance." Id. ¶ 53. 6 Given the "'liberal thrust' of the rules of evidence" and "judicial faith in the 7 capability of jurors to sift through information," our courts resolve "'any doubt 8 regarding the admissibility of scientific evidence . . . in favor of admission, rather 9 than exclusion.'" State v. Campbell, 2007-NMCA-051, ¶ 13, 141 N.M. 543, 157 10 P.3d 722 (quoting State v. Fry, 2006-NMSC-001, ¶ 55, 138 N.M. 700, 126 P.3d 11 516); see also Fed. R. Evid. 702, advisory committee note to 2000 amendment 12 ("[T]he rejection of expert testimony is the exception rather than the rule."). 13

{30} We turn now to the evidence in question. In this case, expert witness testimony 14 was given by a nurse practitioner who had twenty years of experience and was an 15 instructor at the New Mexico Coalition of Sexual Assault Services, where she 16

20

trained nurses to be sexual assault nurse examiners. She had extensive experience 1 educating the general public, nurses, and public servants such as policemen and 2 firemen, specifically about strangulation. She was qualified as an expert in 3 strangulation and domestic violence, with no objection from Defendant. 4

{31} The nurse practitioner offered general background about intimate partner 5 violence, explaining that abusers "track and keep track of their partners." She 6 discussed the cycle of violence, including how violence in an abusive relationship 7 escalates over time, reconciliation after violent acts, and circumstances where 8 couples in an abusive relationship can also be "normal[]" and affectionate with one 9 another. She further testified that "the most dangerous time for the victim is the two 10 weeks after she decides to leave. . . . We find [that the abuser] gets very angry . . . 11 and that anger tends to push [the abuser] to the point of retaliation. . . . It's one of 12 the biggest causes of murder/suicide." 13

{32} The nurse practitioner discussed strangulation in particular. She explained the 14 mechanics of strangulation, how the body is specifically damaged by strangulation, 15 and that there is a relationship between strangulation and intimate partner deaths. 16 She stated that manual strangulation—as opposed to strangulation by ligature—is 17 uncommon outside of intimate partner violence. After looking at a sequence of 18 autopsy photos that were admitted as evidence, the nurse practitioner concluded that 19

21

Victim had been strangled. This is consistent with the conclusion of the medical 1 examiner, who also testified that Victim had been strangled. The nurse practitioner 2 further concluded, based on her training and experience, that the strangulation 3 injuries sustained by Victim are consistent with intimate partner violence. 4

{33} Defendant characterizes the nurse practitioner's testimony as irrelevant, 5 nonspecific "profile evidence." However, the nurse practitioner's testimony is better 6 understood as generalized expert testimony. Although New Mexico cases construing 7 Rule 11-702 have not expressly discussed generalized expert testimony (nor, in a 8 relevant context, profile evidence), Federal Rule of Evidence 702 has long 9 incorporated the principle that generalized testimony by an expert can assist the trier 10 of fact. See Fed. R. Evid. 702, advisory committee note to 1972 proposed rules 11 (stating that the rule "recognizes that an expert on the stand may give a dissertation 12 or exposition of scientific or other principles relevant to the case, leaving the trier of 13 fact to apply them to the facts"). This principle was unaffected by the changes to 14 Rule 702 made by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 15

597 (1993). 16

{34} New Mexico appellate courts have allowed generalized expert testimony in 17 numerous contexts. In Alberico, this Court held that an expert could testify that the 18 complainant had symptoms consistent with PTSD caused by sexual assault in 19

22

general, but prohibited expert testimony "that the alleged victim [was] telling the 1 truth." 1993-NMSC-047, ¶¶ 80, 84, 103. In State v. Newman, the Court of Appeals 2 allowed general testimony regarding child sexual abuse "to assist the jury in 3 understanding the behavior of sexually abused children, a subject beyond the 4 knowledge of an ordinary juror." 1989-NMCA-086, ¶ 15, 109 N.M. 263, 784 P.2d 5 1006; see also Campbell, 2007-NMCA-051, ¶ 12 (collecting cases upholding 6 admission of expert testimony "about the general characteristics of abused children" 7 (internal quotation marks and citation omitted)). In State v. Torrez, we held that an 8 expert's knowledge of "'gang-related law enforcement and gang culture'" was 9

"admissible to prove motive or intent of a gang member, subject to the balancing 10 requirements of Rule 11-403." 2009-NMSC-029, ¶¶ 22-23, 146 N.M. 331, 210 P.3d 11

228. Moreover, other jurisdictions have similarly allowed generalized expert 12 testimony regarding domestic violence because it assists the trier of fact. See People 13

v. Cooper, 2021 CO 69, ¶¶ 2-3, 496 P.3d 430 (allowing general testimony regarding 14 domestic violence "if it has a sufficient logical connection to the factual issues to be 15 helpful to the jury while still clearing the ever-present CRE 403 admissibility bar"); 16 Luna v. State, 687 S.W.3d 79, 96-97 (Tex. Ct. App. 2024) (holding that the trial 17 court did not abuse its discretion in admitting "expert testimony []as relevant and 18 probative" regarding the power and control behaviors exhibited "in general" in 19

23

domestic violence relationships); State v. Cox, 842 N.W.2d 822, 830 (Nev. Ct. App. 1 2014) (concluding "that the nature of [the expert's] testimony regarding domestic 2 abuse relationships and common characteristics of both abusers and victims was 3 helpful to the jury because it assisted them in understanding and determining the 4 issues closely related to the case"). 5

{35} In the specific factual context of this case, the testimony that Defendant 6 contends is relevant only to demonstrate propensity and is not a good fit in this case 7 is instead highly relevant in demonstrating motive and helpful to the jury in 8 understanding the dynamics of an abusive relationship. Defendant repeatedly argued 9 that there was no domestic violence in the relationship. Both Defendant and his sister 10 presented evidence that the relationship was loving and harmonious. Defendant's 11 older sister, who knew Victim for more than twenty years and was Victim's 12 coworker in the time leading up to the wedding, testified on Defendant's behalf. She 13 testified that Victim was "a sweet, sweet lady." She stated that Victim and Defendant 14 met at a "Christian concert" and that "God brought [them] together." Defendant's 15 sister testified to a planned trip to Cancun with her husband, Defendant, and Victim. 16 She testified that Defendant and Victim were "always loving . . . newlyweds. . . . all 17 happy." When asked if Victim and Defendant argued, Defendant's sister testified 18

24

that they "would argue but funny. . . . just kind of yap. . . . teasing each other all the 1 time." She stated that she "didn't see any fighting or nothing like that." 2

{36} Defendant asserts that the evidence presented by the State's witnesses who 3 knew Defendant—for example, by travelling with Victim to out of town work 4 appointments or coming to Victim's workplace regularly—could be understood as 5 appropriate or beneficial. Defendant argued in essence that there was no motive for 6 him to kill Victim. 7

{37} Thus, the expert testimony of the nurse practitioner assisted the jury in 8 understanding that the testimony at issue could be understood as part of the dynamic 9 of power and control that is central to domestic abuse. See, e.g., Cooper, 2021 CO 10 69, ¶ 61 (approving of testimony that "the dynamic of power and control is at the 11 root of domestic violence"). In the State's view, the motive for Defendant to murder 12 Victim was to prevent Victim from leaving the relationship or to retaliate against 13 Victim's expression of discontentment and Defendant's resultant loss of control. The 14 State proved that motive with evidence of Victim's discontentment in the 15 relationship revealed just prior to the murder: Victim was planning to confront 16 Defendant about that discontentment, and Victim's father suggested to her that she 17 consider ending the relationship because of her unhappiness with it. Of course, the 18 end of a relationship does not ordinarily lead to violence. However, the nurse 19

25

practitioner testified that a relationship with a dynamic of intimate partner violence 1 is different. In that context, stated the nurse practitioner, the decision to leave a 2 relationship can be dangerous. She explained that manual strangulation injuries are 3 consistent with intimate partner violence. 4

{38} This framework helped the jury understand the State's theory that Defendant 5 reacted to the potential loss of his relationship with Victim and that the motive for 6 his violence was to retaliate and to retain control. It was also highly relevant and 7 probative because it provided the jury with specialized information that explained 8 abusive relationships. See Cooper, 2021 CO 69, ¶ 3 ("In evaluating the fit of 9 generalized expert testimony, a trial court must be mindful of the purposes for which 10 such testimony is offered—that is, the reasons why the proponent of the evidence 11 has asked the expert to educate the jury about certain concepts or principles."). For 12 these reasons, we reject Defendant's Rule 11-401, and Rule 11-702 challenges. 13

{39} We note that admission of such general expert testimony is, of course, still 14 subject to Rules 11-404 and -403. However, in this case, the nurse practitioner did 15 not discuss Defendant specifically, or Victim's relationship with Defendant. The 16 testimony did not lead to unfair prejudice because it was not inflammatory. See 17 Bailey, 2017-NMSC-001, ¶ 16 ("Evidence is unfairly prejudicial if it is best 18 characterized as sensational or shocking, provoking anger, inflaming passions, or 19

26

arousing overwhelmingly sympathetic reactions, or provoking hostility or revulsion 1 or punitive impulses, or appealing entirely to emotion against reason." (internal 2 quotation marks and citation omitted)). Therefore, we reject Defendant's argument 3 that the nurse practitioner's testimony was unfairly prejudicial character evidence. 4

2. The Confrontation Clause challenge 5

{40} Defendant argues that his confrontation right under the Sixth Amendment to 6 the United States Constitution was violated because he was unable to confront the 7 medical examiner, Dr. Edelman, who prepared Victim's autopsy report. 8

{41} In adjudicating these challenges, we for the first time recognize Smith v. 9 Arizona, 602 U.S. 779 (2024), United States Supreme Court precedent addressing 10 the application of the Confrontation Clause to expert testimony. In Smith, the Court 11 concluded that the Confrontation Clause bars admission of a surrogate expert's 12 opinion that is based on the out-of-court testimonial statements of an absent analyst. 13 See id. at 783, 802-03. Undergirding that conclusion is the holding of the Smith Court 14 that when "an expert for the prosecution conveys an out-of-court statement in 15 support of [the expert's] opinion, and the statement supports that opinion only if true, 16 then the statement has been offered for the truth of what it asserts." Id. at 795. Smith 17 clarified the holdings of Williams v. Illinois, 567 U.S. 50 (2012), abrogated by Smith, 18

602 U.S. at 789. The Williams Court was unable to produce a majority opinion and 19

27

without a controlling rationale, Williams has "sown confusion" in Confrontation 1 Clause jurisprudence. Smith, 602 U.S. at 788-89 (internal quotation marks and 2 citation omitted).¹¹We apply the Smith approach to the Confrontation Clause, which 3 was anticipated by this Court in State v. Navarette. See 2013-NMSC-003, ¶¶ 13-14, 4

294 P.3d 435 (deriving from the fractured Williams opinion the principle "that an 5 out-of-court statement that is disclosed to the fact-finder as the basis for an expert's 6 opinion is offered for the truth of the matter asserted"). 7

{42} The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal 8 prosecutions, the accused shall enjoy the right . . . to be confronted with the 9

28

witnesses against him." Its guarantee is procedural rather than substantive. Crawford 1

v. Washington, 541 U.S. 36, 61 (2004). As Crawford explained, the command of the 2 Confrontation Clause is "not that evidence be reliable, but that reliability be assessed 3 in a particular manner: by testing in the crucible of cross-examination." Id. Unless 4 the absent witness is unavailable and the defendant had a prior opportunity to subject 5 that witness to cross-examination, "the Clause bars the admission at trial of an absent 6 witness's statements." Smith, 602 U.S. at 784. 7

{43} "But not always. The Clause's prohibition applies only to testimonial 8 hearsay—and in that two-word phrase there are two limits." Id. (emphasis added) 9 (internal quotation marks and citation omitted). First, the protections of the 10 Confrontation Clause are only triggered by testimonial statements; nontestimonial 11 statements are unprotected. Id. "Second . . . , the Clause bars only the introduction 12 of hearsay—meaning, out-of-court statements offered to prove the truth of the matter 13 asserted." Id. (internal quotation marks and citation omitted). 14

{44} Over a sequence of cases, the United States Supreme Court has developed the 15 contours of a defendant's confrontation rights with regard to forensic evidence, a 16 term that encompasses autopsy reports. See, e.g., Melendez-Diaz v. Massachusetts, 17

557 U.S. 305, 308, 311-12 (2009) (holding that the defendant's confrontation rights 18 were violated where the state introduced into evidence "certificates of analysis"—19

29

essentially affidavits—stating that lab tests identified a seized substance as cocaine, 1 without testimony from the analysts who performed the tests); Bullcoming v. New 2 Mexico, 564 U.S. 647, 651-52 (2011) (holding that the state could not introduce the 3 written findings with a "testimonial certification" of one lab analyst through the 4

"surrogate testimony" of a lab analyst who did not perform or observe the tests, nor 5 sign the certification). The most recent of these forensic evidence cases, Smith, 602 6 U.S. 779, is most relevant here. 7

{45} The Smith Court held that "[w]hen an expert conveys an absent analyst's 8 statements in support of [the expert's] opinion, and the statements provide that 9 support only if true, then the statements come into evidence for their truth" i.e., are 10 hearsay. Id. at 783, 800. And if the absent analyst's statements that have been 11 conveyed are also testimonial, then the Confrontation Clause forbids an opinion on 12 the basis of those statements. Id. at 784-85. 13

{46} Defendant objects to testimony from three witnesses—a substitute medical 14 examiner Dr. Jarrell, the DNA analyst, and the nurse practitioner—whom he asserts 15 relied on testimonial statements contained in the autopsy report prepared by Dr. 16 Edelman, who did not testify. Defendant argues that Dr. Jarrell improperly opined 17 that Victim was strangled. He also objects to Dr. Jarrell's testimony that DNA 18 evidence found on Victim from Danny Mendes, was the result of cross-19

30

contamination. Last, he objects to Dr. Jarrell's testimony that, in Defendant's words, 1

"no signs of decomposition were observed by [Dr. Edelman] and [Dr. Edelman] 2 observed [that Victim's] liver was blanchable." Defendant objects to testimony from 3 the DNA analyst because the analyst tested swabs "based on how [Dr. Edelman] 4 labeled them." Defendant argues the nurse practitioner violated his confrontation 5 rights by relying on the autopsy report, but Defendant does not specify any 6 statements. 7

{47} Citing Smith, Defendant argues that Dr. Jarrell—as a surrogate medical 8 examiner witness—improperly relied upon the absent medical examiner's 9 testimonial statements in the autopsy report to opine that Victim was strangled. 10 Defendant identifies a single point in Dr. Jarrell's testimony where, in discussing an 11 autopsy photograph of Victim, Dr. Jarrell stated that there was "bruising" from 12

"something [that] came in contact with the neck and placed enough pressure for the 13 blood vessels to burst and cause bruising" which "in association with the other 14 findings of autopsy are consistent with strangulation." But this was the only 15 reference to Dr. Edelman's autopsy report in Dr. Jarrell's testimony on strangulation. 16 Dr. Jarrell relied repeatedly on autopsy photographs, State's exhibits here, to 17 determine that Victim was strangled, and such photographs generally are not 18 testimonial hearsay. See State v. Smith, 2016-NMSC-007, ¶ 44, 367 P.3d 420 (stating 19

31

that autopsy photographs of the victim's wounds are not statements and therefore 1 are not hearsay; accordingly, use of such photographs does not implicate the 2 Confrontation Clause). 3

{48} Testifying from another State's photographic exhibit, Dr. Jarrell stated that 4 the hemorrhage she observed in the front of the neck also indicated strangulation. 5 Based on this photograph, Dr. Jarrell stated that the fracturing of the hyoid bone she 6 observed showed "significant pressure on the airway" and that "it's cons[iste]nt with 7 strangulation." And, as noted previously herein, Dr, Jarrell's observation of neck 8 bruising in the State's exhibit autopsy photograph was consistent with strangulation. 9 In sum, Dr. Jarrell's conclusion that Victim was strangled was not testimonial 10 because it was based not on the autopsy report, but on the autopsy photographs. 11

{49} As to the reason that Danny Mendes' DNA was found on Victim, Dr. Jarrell 12 testified on the basis of personal experience, not the autopsy report. Dr. Jarrell 13 testified as follows: 14

[T]here was a meeting . . . where we were notified by . . . the 15 individuals at the state lab who performed the DNA testing that there 16 was this potential cross contamination. I was present during the 17 meeting and was the person at the OMI who was tasked to looking in 18 what possibilities might have happened. It was at that time we noted 19 Mr. Mende[s'] autopsy was performed on the same table as [Victim] 20 but about 24 hours prior to that one. At the time of [Victim's] autopsy, 21 there [was] a place noted on the abdomen that was swabbed. We 22 determined that through the use of the gray boards that were cleaned 23 with just a substance that's not bleach and were used the next day, that 24

32

material dripped off that gray board onto her abdomen that was 1 swabbed and positive for Danny Mende[s'] DNA. 2 (Emphasis added.) Because Dr. Jarrell did not rely on statements from Dr. Edelman 3 for her testimony about DNA cross-contamination from Danny Mendes, we reject 4 Defendant's argument that there was a Confrontation Clause violation on the basis 5 of this testimony. 6

{50} The record does not dispositively settle whether the autopsy report was the 7 basis for Dr. Jarrell's testimony that Victim's liver was blanchable and that there 8 was no significant decomposition of Victim. But even assuming that it was, we 9 conclude that any error does not require reversal because it was harmless. 10

{51} "Improperly admitted evidence is not grounds for a new trial unless the error 11 is determined to be harmful." State v. Thomas, 2016-NMSC-024, ¶ 33, 376 P.3d 184 12 (internal quotation marks and citation omitted). Where an error results in an 13

"intrusion on a distinct constitutional protection," this Court will reverse where there 14 is a reasonable possibility that the error affected the verdict. Sena, 2020-NMSC-011, 15 ¶ 29; see also State v. Sisneros, 2013-NMSC-049, ¶¶ 26-27, 32, 314 P.3d 665 16 (applying the same reasonable possibility standard to reversibility on a 17 Confrontation Clause challenge). The harmless error analysis is strictly case-by-18 case: 19

33

When assessing the probable effect of evidentiary error, courts should 1 evaluate all of the circumstances surrounding the error. This includes 2 the source of the error, the emphasis placed on the error, evidence of 3 the defendant's guilt apart from the error, the importance of the 4 erroneously admitted evidence to the prosecution's case, and whether 5 the erroneously admitted evidence was merely cumulative. These 6 considerations, however, are not exclusive, and they are merely a guide 7 to facilitate the ultimate determination—whether there is a reasonable 8 probability that the error contributed to the verdict. 9 Fernandez, 2023-NMSC-005, ¶ 24 (internal quotation marks and citation omitted); 10 see also Tollardo, 2012-NMSC-008, ¶ 44 (stating that harmless error analysis 11 proceeds on a case-by-case basis). 12

{52} We first note that Defendant moved the autopsy report into evidence; thus any 13 erroneously admitted evidence based on that report is merely cumulative. Second, 14 the prosecutor did not emphasize the testimony at issue. Moreover, and importantly, 15 there is ample other persuasive evidence of Defendant's guilt, which we discuss in 16 greater detail below addressing Defendant's sufficiency of the evidence arguments. 17 Defendant is not entitled to a new trial on the basis of testimony that Victim's liver 18 was blanchable and that there was no significant decomposition of Victim, even 19 assuming it was erroneously admitted. 20

{53} We reject Defendant's challenge to the testimony of the DNA analyst because 21 her testimony exclusively consisted of explaining findings from laboratory tests that 22 she herself conducted. Indeed, Defendant's only allegation is that a Confrontation 23

34

Clause violation occurred because the DNA analyst relied on the labeling of the 1 samples conducted by another party. Defendant argues that the DNA analyst 2 improperly relied on the autopsy report because she relied on how the samples were 3 labeled. But the DNA analyst did not bring in any statements made by Dr. Edelman 4 in support of her conclusions. The DNA analyst made no conclusory statements 5 about where the samples were taken from and instead answered each question by 6 simply stating the results for each sample based on how it was labeled when she 7 received it. In fact, it was Defendant who sought to establish where the samples came 8 from, resulting in an objection by the prosecution and a clarification by the district 9 court that the DNA analyst could not provide any more information than the label 10 on each sample. Because the DNA analyst did not convey any out-of-court 11 statements in her testimony but merely testified that she tested the labeled samples 12 as received, we conclude that her testimony was not erroneously admitted. 13

{54} Defendant last argues that the nurse practitioner improperly testified on the 14 basis of the autopsy but fails to inform the Court which statements violate the 15 Confrontation Clause. We are under no obligation to search the record or construct 16 arguments on Defendant's behalf. See Muse v. Muse, 2009-NMCA-003, ¶ 42, 145 17 N.M. 451, 200 P.3d 104 ("We are not obligated to search the record on a party's 18 behalf to locate support for propositions a party advances or representations of 19

35

counsel as to what occurred in the proceedings."); Elane Photography, LLC v. 1 Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 ("We will not review unclear 2 arguments, or guess at what a party's arguments might be." (brackets, internal 3 quotation marks, and citation omitted)).¹²4

{55} For the reasons stated, we reject Defendant's argument that his confrontation 5 rights under the Sixth Amendment were violated. 6

C. Sufficient Evidence Supports Defendant's Counts One, Two, and Four 7

Convictions 8

{56} Defendant contends the evidence presented by the State fails to support his 9 convictions. The evidence was plainly sufficient. 10

36

1. Standard of review for sufficiency of the evidence 1

{57} When reviewing the sufficiency of evidence, we ask "whether substantial 2 evidence of either a direct or circumstantial nature exists to support a verdict of guilt 3 beyond a reasonable doubt with respect to every element essential to a conviction." 4 State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. We "view 5 the evidence in the light most favorable to the state, resolving all conflicts therein 6 and indulging all permissible inferences therefrom in favor of the verdict." Id. This 7 Court "does not weigh the evidence and may not substitute its judgment for that of 8 the fact finder so long as there is sufficient evidence to support the verdict." Id. 9

2. Count one—first-degree murder 10

{58} Defendant challenges his first-degree murder conviction as charged in count 11 one of the indictment, on the basis of both identity and requisite intent. There is 12 ample evidence for a rational jury to have found, beyond a reasonable doubt, that 13 Defendant was the person who killed Victim, and we summarize that evidence here. 14 Evidence of Victim's blood was found in several locations in the laundry room of 15 the marital home and in two different places in her Honda CRV. Bluestar Forensic 16 reagents gave enhanced blood-evidence detection, and DNA testing provided subject 17 identification. At a house Defendant owned separately from Victim, police located 18 a bag with Victim's blood on it and duct tape covered with Victim's blood. 19

37

Defendant gave various conflicting stories about what happened to Victim, 1 indicating to a neighbor that Victim had been stabbed by unidentified "lovers" that 2 she had met online and suggesting to police that a man with a dark complexion who 3 had been bothering Victim at work may have been the culprit. Defendant's cell 4 phone was determined to have been on the move during the first night that Victim 5 was missing and well into the following day. Defendant provided no explanation for 6 his phone being away from home through the night. In addition, there was evidence 7 of Defendant asking whether Victim's Honda CRV could be tracked, and 8 Defendant's story regarding Victim's disappearance was inconsistent. Because 9 substantial evidence identifies Defendant as Victim's killer, we therefore focus on 10 evidence of intent. 11

{59} We conclude a reasonable jury could find Defendant killed Victim with 12 deliberate intent, the required mens rea for first-degree murder. At trial, evidence 13 was presented that Defendant inflicted three different injuries to Victim over a 14 prolonged period of time. Defendant inflicted fatal blunt force trauma to Victim's 15 head, and evidence supports that Victim lived up to twenty-four hours after the injury 16 with no medical treatment. Testimony from the State's medical expert supports that 17 such injury could have potentially caused the brain death; however, the expert 18 testified that there was evidence of healing changes to the brain, which would occur 19

38

six to twenty-four hours after the injury. 1

{60} The medical expert also provided testimony that Defendant then strangled 2 Victim prior to her death. And, after inflicting blunt force trauma to Victim's head 3 and strangling her, Defendant stabbed Victim in the chest twice. The medical expert 4 testified that, due to the small amount of blood surrounding Victim's heart and chest, 5 the stab wounds were likely perimortem, meaning the wound occurred around the 6 time of death. 7

{61} Each of these wounds, independently, was fatal and shows the willful and 8 prolonged nature of Defendant's killing of Victim. See Thomas, 2016-NMSC-024, 9 ¶ 41 (stating that a large number of wounds can indicate deliberation); Rojo, 1999-10 NMSC-001 ¶ 24 (holding that there was sufficient evidence of deliberation where 11 the elaborate method of killing required "at least several minutes" to cause death and 12 where there was evidence of the defendant's motive). Accordingly, substantial 13 evidence of Defendant's deliberate intent supports his conviction, and we affirm his 14 conviction, of first-degree murder. 15

3. Count two—tampering with evidence 16

{62} Defendant challenges the tampering with evidence conviction as charged in 17 count two of the indictment. Jury instruction 8 requires that Defendant "hid OR 18

39

placed the body of [Victim]" and thereby "intended to prevent the apprehension, 1 prosecution, or conviction of himself . . . for the crime of First Degree Murder." 2

{63} Evidence was presented that Victim was deceased when placed where she was 3 found and therefore had been killed elsewhere. Additionally, there was evidence that 4 a large bloody object was placed in the back of Victim's Honda CRV. Victim's blood 5 was found on the armrest of that car. Defendant had access to that car. And there 6 was video footage of a car that matched the description of Victim's white Honda 7 CRV in a location not far from where Victim was found during a time when 8 Defendant's phone was in that proximate location. We reject Defendant's challenge 9 to the sufficiency of the evidence and affirm his tampering with evidence conviction 10 for count two. 11

4. Count four—tampering with evidence 12

{64} Defendant contends that the tampering with evidence conviction as charged 13 in count four in the indictment is not supported by sufficient evidence. Count four 14 required, among other possibilities, that Defendant "hid OR placed duct tape" and 15 thereby "intended to prevent the apprehension, prosecution, or conviction of himself 16

. . . for the crime of First Degree Murder." 17

{65} A four-foot section of duct tape in the garbage can on a property owned by 18 Defendant was stained with Victim's blood on both the smooth and adhesive sides. 19

40

It was sufficiently saturated with blood that testing for touch DNA was not feasible. 1 We reject Defendant's challenge to the sufficiency of the evidence and affirm his 2 tampering with evidence conviction for count four. 3

D. Defendant's Count Three Conviction Is Barred by Double Jeopardy 4

{66} Defendant challenges his count three tampering with evidence conviction, 5 contending that it is not supported by sufficient evidence or, in the alternative, is 6 barred by double jeopardy. Because we hold that the count three conviction is a 7 violation of Defendant's right to be free from double jeopardy, we do not reach the 8 sufficiency of evidence argument. 9

{67} The Fifth Amendment protects defendants from being punished multiple 10 times for the same offense. State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 11

131 P.3d 61. Defendant asserts a "unit of prosecution" argument; he claims he has 12 been charged with two violations of tampering with evidence based on a single 13 course of conduct. See id. To adjudicate double jeopardy claims, we look first to 14

"whether the Legislature intended punishment for the entire course of conduct or for 15 each discrete act." Id. ¶ 32 (text only) (citation omitted). Next, we consider whether 16 the "offenses are separated by sufficient 'indicia of distinctness.'" Id. (internal 17 quotation marks and citation omitted). We consider "timing, location, and 18 sequencing of the acts, the existence of an intervening event, the defendant's intent 19

41

as evidenced by his conduct and utterances, and the number of victims." Id. ¶ 35. If 1 it is unclear "to the jury which conduct it should consider to support each charge," 2 the charges may violate double jeopardy. State v. Cook, 2006-NMCA-110, ¶¶ 17, 3 19, 140 N.M. 356, 142 P.3d 944. In Cook, the Court of Appeals held that two 4 undifferentiated counts of tampering with evidence with identical jury instructions 5 were barred by double jeopardy. Id. During trial, the state did not clarify for the jury 6 which evidence related to each charge so the jury could have relied on the same 7 factual basis for both charges. Id. ¶ 19. Because we have previously held that the 8 Legislature has not clearly defined the unit of prosecution for tampering with 9 evidence, DeGraff, 2006-NMSC-011, ¶ 35, we turn straight to whether Defendant's 10 counts three and four tampering with evidence charges were based on multiple 11 distinct acts or unitary conduct. 12

{68} In this case, the jury instructions for counts three and four read: 13 For you to find the defendant guilty of tampering with evidence as 14 charged in Count 3, the state must prove to your satisfaction beyond a 15 reasonable doubt each of the following elements of the crime: 16

1. The defendant hid, changed OR destroyed blood/blood stains; 17

2. By doing so, the defendant intended to prevent the apprehension, 18 prosecution, or conviction of himself or another for the crime of First 19 Degree Murder; 20

3. This happened in New Mexico on or about or between the 4th 21 day of March 2017 and the 6th day of March 2017. 22

42

and 1 For you to find the defendant guilty of tampering with evidence as 2 charged in count 4, the state must prove to your satisfaction beyond a 3 reasonable doubt each of the following elements of the crime: 4

1. The defendant changed, hid OR placed duct tape; 5

2. By doing so the defendant intended to prevent the apprehension, 6 prosecution, or conviction of himself or another for the crime of First 7 Degree Murder; 8

3. This happened in New Mexico on or about or between the 4th 9 day of March 2017 and the 6th day of March 2017. 10 At first glance, it appears the jury instructions refer to different evidence for each 11 tampering with evidence charge—count three for cleaning up blood stains at the 12 marital home (1725 West Alameda) and count four for throwing away duct tape in 13 a trash can at Defendant's trailer (5507 Seward). The State could have argued these 14 were two distinct acts. However, during closing statements, the State said, 15 Count 3, tampering with blood. We've got 1725 West Alameda. Yes, 16 the evidence was decidedly mixed on that point. . . . But we also have 17 other blood in this case at 5507 Seward. We've got Maria's blood on 18 the Allsup's bag that's found in the trash can. So even if you're not 19 convinced that there was tampering with the scene or tampering that 20 took place at the scene at 1725 West Alameda, there was tampering 21 with Maria's blood on the Allsup's bag found at 5507. Finally, [count 22 4,] there's the bloody duct tape. The tape that's got Maria's blood on it 23 that's also found in that trash can at 5507 Seward. 24

Thus, the State invited the jury to rely on the blood stains on the Allsups bag for the 25 factual basis of the count three conviction. The Allsups bag was thrown away in the 26

43

same trash can as the duct tape, which the State listed as the factual basis for the 1 count four conviction. In State v. DeGraff we held that similar conduct was unitary 2 when the defendant threw on the side of the road a box containing three items used 3 in a murder. Id. ¶ 38. The State charged the defendant with three counts of tampering 4 with evidence, one for each item in the box. Id. We reasoned that throwing a single 5 box to a single location was unitary conduct, and therefore the defendant could only 6 be charged with one count of tampering with evidence, not three. Id. ¶¶ 38-39. The 7 same is true in this case. The evidence that Defendant tried to clean up blood stains 8 was, as the State's closing put it, "decidedly mixed." Instead, the jury may have 9 relied on the Allsups bag for the count three conviction. The Allsups bag and duct 10 tape, both stained with Victim's blood, were found discarded in the same trash can. 11 Throwing these items into the same trash can may have been unitary conduct so 12 charging two counts of tampering with evidence for these actions, which "'may have 13 been the same offense,'" is barred by double jeopardy. See Cook, 2006-NMCA-110, 14 ¶ 17 (citation omitted). And "[i]n the absence of clear evidence [of discrete acts], we 15 apply the rule of lenity and presume that the Legislature did not intend to impose 16 multiple punishments on a single action." DeGraff, 2006-NMSC-011, ¶ 34. 17 Therefore, we remand the case to the district court to dismiss count three. 18

44

E. Claims of Prosecutorial Misconduct 1

{69} Defendant contends that prosecutorial misconduct committed by the State 2 requires that his convictions be set aside and that he receives a new trial. Some of 3 Defendant's arguments were preserved by an objection at trial, and some were not. 4 We discuss all of Defendant's claims and conclude no misconduct occurred which 5 warrants granting Defendant the relief he seeks. 6

1. Standard of review 7

{70} Preserved and unpreserved arguments are reviewed differently. Claims of 8 prosecutorial misconduct preserved by timely objection are reviewed for abuse of 9 discretion. State v. Trujillo, 2002-NMSC-005, ¶ 49,131 N.M. 709, 42 P.3d 814. This 10 is a deferential standard, and this Court will not disturb the trial court's ruling unless 11 it was "arbitrary, capricious, or beyond reason." Id. (internal quotation marks and 12 citation omitted). Reversal is warranted under this standard only if "the prosecutor's 13 improprieties had such a persuasive and prejudicial effect on the jury's verdict that 14 the defendant was deprived of a fair trial." Id. (internal quotation marks and citation 15 omitted). 16

{71} Without an objection, the district court had no opportunity to rule on a claim 17 of prosecutorial misconduct; nevertheless, this Court has the discretion to review 18 such claims for fundamental error. Id. ¶ 52. "The doctrine of fundamental error is to 19

45

be resorted to in criminal cases only for the protection of those whose innocence 1 appears indisputably, or open to such question that it would shock the conscience to 2 permit the conviction to stand." State v. Rodriguez, 1970-NMSC-073, ¶ 10, 81 N.M. 3 503, 469 P.2d 148. "[W]e begin with the presumption that the verdict was justified, 4 and then ask whether the error was fundamental." State v. Sosa, 2009-NMSC-056, ¶ 5 37, 147 N.M. 351, 223 P.3d 348. "Prosecutorial misconduct rises to the level of 6 fundamental error when it is so egregious and had such a persuasive and prejudicial 7 effect on the jury's verdict that the defendant was deprived of a fair trial." State v. 8 Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (internal quotation marks 9 and citation omitted). 10

{72} Under both abuse of discretion review and fundamental error review, "the 11 reviewing court must determine whether the relative weight of [an] error meets the 12 threshold required to reverse a conviction." Sosa, 2009-NMSC-056, ¶ 26. The 13 touchstone of the prejudice inquiry is whether the defendant was deprived of a fair 14 trial. See Allen, 2000-NMSC-002, ¶ 102 (concluding that there was prosecutorial 15 misconduct but that it was not reversible error because it was not "prejudicial enough 16 to deprive [the defendant] of a fair trial"); cf. Sosa, 2009-NMSC-056, ¶ 35 17 (concluding, in the context of evaluating closing argument error, that the ultimate 18 objective of the reversible error analysis is to determine whether prosecutorial 19

46

misconduct deprived the defendant of a fair trial). Although the inquiry into whether 1 prosecutorial misconduct rises to the level of reversible error "must be evaluated 2 objectively in the context of . . . the trial as a whole," in Sosa we distilled three 3 factors that are "useful guides." 2009-NMSC-056, ¶¶ 26, 34. First, "whether the 4 statement invades some distinct constitutional protection"; second, "whether the 5 statement is isolated and brief, or repeated and pervasive"; and third, "whether the 6 statement is invited by the defense." Id. ¶ 26. "Only in the most exceptional 7 circumstances should [this Court], with the limited perspective of a written record, 8 determine that all the safeguards at the trial level have failed . . . [and] reverse the 9 verdict of a jury." Id. ¶ 25. 10

2. Defendant's preserved prosecutorial misconduct claims 11

a. Calling Defendant a liar 12

{73} At the outset, and as a point of clarification, Defendant slightly 13 mischaracterizes the prosecutor's question. The prosecutor did not call Defendant a 14 liar, as Defendant asserts. The prosecutor opened the cross-examination of 15 Defendant by asking, "[Defendant], we've got a lot of lies to work through, would 16 you agree?" This drew an objection, which was sustained. 17

{74} Defendant does not provide any argument that there was a reasonable 18 probability that this comment by the prosecutor prejudiced the verdict. Nor does 19

47

Defendant address the fact that the district court upheld his objection, which cuts 1 against a conclusion that the district court abused its discretion. See Allen, 2000-2 NMSC-002, ¶ 100 (stating that where the prosecutor did not further emphasize an 3 improper statement in closing, and there was no showing that the effect of the 4 improper statement was not cured by the trial court's sustaining of the objection and 5 admonition to the jury, the trial court did not abuse its discretion). Defendant does 6 not contend, among his many arguments in this Court, that there should have been a 7 mistrial on this ground. And there was ample evidence presented that there were in 8 fact contradictions and tension between Defendant's testimony and the testimony of 9 certain witnesses. The district court did not abuse its discretion and, even assuming 10 error, there is no reasonable possibility that the verdict was affected by this question 11 by the prosecution that was subject to an upheld objection. 12

{75} Relatedly, Defendant asserts, "[T]he prosecutor's statements about 13 [Defendant] being a liar and questions asking [Defendant] to call other witnesses 14 liars were plainly improper." Beyond this assertion, Defendant makes no argument. 15 We therefore reject the assertion as beyond review. See Dominguez v. State, 2015-16 NMSC-014, ¶ 15, 348 P.3d 183 ("New Mexico courts will not review unclear 17 arguments, or guess at what litigants' arguments might be." (text only) (citation 18 omitted)). 19

48

b. Commenting on silence 1

{76} A former neighbor testified that Defendant told him Victim was killed by her 2 lover from Vaughn, New Mexico. Defendant contends the prosecutor improperly 3 commented on Defendant's right to remain silent by asking Defendant whether he 4 also explained that suspicion to police. 5

{77} This was not an improper comment on silence. First, it is not clear that 6 Defendant ever invoked his right to silence, and Defendant has not so argued or 7 pointed out where he might have invoked that right. Second, the period at issue was 8 prearrest, and the use of prearrest silence to impeach is not unconstitutional. State v. 9 Gonzales, 1992-NMSC-003, ¶ 29, 113 N.M. 221, 824 P.2d 1023, overruled on other 10 grounds by State v. Montoya, 2013-NMSC-020, ¶ 54, 306 P.3d 426; see also Jenkins 11

v. Anderson, 447 U.S. 231, 239 (1980) (stating that "[c]ommon law traditionally has 12 allowed witnesses to be impeached by their previous failure to state a fact in 13 circumstances in which that fact naturally would have been asserted" and that 14

"[e]ach jurisdiction may formulate its own rules of evidence to determine when prior 15 silence is so inconsistent with present statements that impeachment by reference to 16 such silence is probative"). As the question at issue was not a comment on 17 Defendant's silence, the prosecutor did not engage in misconduct and Defendant is 18 not entitled to relief on this ground. 19

49

c. Eliciting previously excluded evidence 1

{78} Defendant complains that the State asked whether Victim's belongings were 2 picked up from work, notwithstanding that proposed testimony that Victim's 3 belongings were picked up from her office by her son was excluded pretrial as 4 irrelevant. Defendant objected to the question, and the district court sustained the 5 objection. Defendant does not explain any prejudice or how this might have affected 6 the verdict. We conclude there was no error. 7

3. Defendant's unpreserved prosecutorial misconduct claims 8

a. Misstating evidence 9

{79} Defendant argues that it was prosecutorial misconduct for the prosecutor to 10

"repeatedly misstate[]" that Defendant "went to Cancun with another woman 11 following [Victim's] death when there was no apparent evidence this ever 12 happened." Defendant argues that this was error because it was improper for the 13 prosecutor to refer to a matter outside of evidence. Given that the question "Did you 14 go to Cancun?" went unchallenged by Defendant at trial, it is unclear whether the 15 prosecutor had a good faith basis for this inquiry. Again, Defendant makes no 16 argument about how this isolated question might have affected the verdict. The 17 question does not shock the Court's conscience, and we conclude there is no 18 reasonable probability that it affected the jury's verdict. 19

50

b. Eliciting testimony from police officers that implied Defendant's guilt 1

had been determined 2

{80} Defendant contends that it was error for the prosecutor to elicit testimony 3 detailing the warrant process, arguing the "State's intent . . . was to establish the 4 police, prosecution, and courts had all determined [Defendant] was the murderer and 5 the jury should defer to their judgment," which is improper. However, Defendant 6 offers no argument about how this purported error affected the verdict. 7

{81} With regard to the testimony about the warrant process, one of the two 8 exchanges at issue is as follows: 9

Q. Tell us about the arrest warrant process, generally. 10 A. So arrest warrant, typically what we have to do is we have to 11 present or produce an affidavit and establish enough probable cause in 12 order to present to a judge. And once we've established the affidavit, 13 we have placed the charges on the criminal complaint and then those 14 are submitted to a judge, whether magistrate or district, to obtain the 15 arrest warrant. It has to be filed, as well. 16

The other exchange described the process for obtaining a search warrant. 17

{82} In State v. Baca, this Court found prosecutorial misconduct where, "in an 18 effort to rebut [the defendant's] argument that the evidence was not sufficient to 19 convict, the prosecutor stated that a magistrate judge had considered the evidence at 20 a preliminary hearing and had determined that there was probable cause to believe 21 [the defendant] committed the crimes." 1995-NMSC-045, ¶ 36, 120 N.M. 383, 902 22

51

P.2d 65. Thus, a "prosecutor may not imply that questions of guilt already have been 1 decided by a judicial officer" because doing so "effectively usurps the function of 2 the jury." Id. ¶ 37 (text only) (citations omitted). 3

{83} Unlike the prosecutor in Baca, the prosecutor in this case did not tell the jury 4 that "the judge had considered the evidence . . . and had determined that there was 5 probable cause to believe Defendant committed the crimes." Id. ¶ 36. Instead, the 6 prosecutor elicited testimony about what information must be submitted to a judge 7

"to obtain the arrest warrant." While not an express statement that a judge 8 determined there was cause to believe Defendant committed the crimes, as in Baca, 9 the testimony nevertheless implies that a judge believed there was sufficient 10 evidence to arrest Defendant. While we conclude that this implication was improper, 11 we cannot say that the exchange shocks the conscience of the Court or renders 12 Defendant's conviction fundamentally unfair. The jury instructions are of course 13 quite clear about the required standard for conviction. See State v. Benally, 2001-14 NMSC-033, ¶ 21, 131 N.M. 258, 34 P.3d 1134 ("We presume that the jury followed 15 the instructions given by the trial court."). Defendant's unpreserved argument on this 16 point does not shock this Court's conscience and does not require a new trial due to 17 prosecutorial misconduct. 18

52

c. Presenting misleading evidence of flight 1

{84} Defendant complains that the State elicited testimony that the police required 2 assistance to arrest Defendant, "despite knowing that [Defendant] turned himself in 3 during a pre-planned, work-approved vacation." There was no misconduct. 4

{85} The testimonial exchange between the State and Sergeant Pablo Macias of the 5 New Mexico State Police was as follows: 6

Q. I wanted to ask you about your efforts made to apprehend the 7 defendant in this case. 8

A. Correct. 9

Q. Did you have to engage in the help of additional law enforcement 10 agencies? 11

A. Yes we did. 12

Q. [W]hich agencies? 13

A. U.S. Marshals. 14

Q. What do the marshals do? 15

A. They were able to track [Defendant's] phone to place him in 16 Minnesota. 17

Q. And can you give us a timeline that this took once you involved 18 the marshals to find the defendant? 19

A. So we were able to identify that [Defendant] had been residing 20 in Arizona. I believe he was informed that he did have an arrest 21 warrant for his arrest, which was indicated to us that he was 22 going to turn himself in at that point. A few days had passed, we 23

53