State v. Trujillo

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number: 2

Filing Date: July 9, 2026 3

NO. S-1-SC-40328 4

STATE OF NEW MEXICO, 5

Plaintiff-Appellee, 6

v. 7

JUDAH ELIJAH TRUJILLO, 8

Defendant-Appellant. 9

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 10

Mary Marlowe Sommer, District Judge 11 Bennett J. Baur, Chief Public Defender 12 Nina Lalevic, Assistant Appellate Defender 13 Santa Fe, NM 14

for Appellant 15

Raúl Torrez, Attorney General 16 Santa Fe, NM 17

Serena R. Wheaton, Assistant Attorney General 18 Albuquerque, NM 19

for Appellee20

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OPINION 1

THOMSON, Justice. 2

{1} In the early morning hours of August 10, 2022, fifteen-year-old Judah Elijah 3 Trujillo (Judah) met a stranger, sixty-year-old Samuel Cordero (Samuel), at Ragle 4 Park in Santa Fe, New Mexico, for oral sex. The encounter culminated in Judah 5 killing Samuel with a single gunshot to the back of his head. A jury convicted Judah 6 of willful and deliberate first-degree murder, contrary to NMSA 1978, Section 30-7 2-1(A)(1) (1994), as well as tampering with evidence of first-degree murder, 8 contrary to NMSA 1978, Section 30-22-5 (2003), for taking Samuel's cell phone 9 after the killing and tossing it out of a car window. 10

{2} In this appeal, Judah raises two challenges to his murder conviction: (1) that 11 the State's evidence was insufficient to support a finding of deliberate intent, and (2) 12 that the district court erred by instructing the jury on motive because the pertinent 13 instruction, UJI 14-5029 NMRA, includes a use note specifically stating, "No 14 instruction on this subject shall be given." Judah also argues that, if the Court 15 reverses his conviction for first-degree murder, it should order a new trial "to 16 determine the crime with which the tampering is associated." Finally, Judah asks for 17 presentence confinement time credit to his sentence, as required by NMSA 1978, 18 Section 31-18-15.3(B) (1993, amended 2023)—an issue the State does not contest. 19

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{3} We hold that the State failed to provide sufficient evidence that Judah acted 1 with deliberate intent. Instead, the jury was left to speculate as to Judah's mental 2 state leading up to the single shot that killed Samuel. We take this opportunity to 3 explain the deficiencies in the State's case and clarify the relationship between 4 consciousness-of-guilt evidence and deliberate intent. 5

{4} However, because the jury was instructed on and found all of the essential 6 elements of second-degree murder, we conclude that the interests of justice are best 7 served by direct remand for entry of second-degree murder. State v. Revels, 2025-8 NMSC-021, ¶ 43, 572 P.3d 974 (explaining that when "directing the disposition of 9 a case after remand . . . the ultimate inquiry is whether retrial or resentencing is in 10 the interests of justice"); see also State v. Haynie, 1994-NMSC-001, ¶ 4, 116 N.M. 11 746, 867 P.2d 416 ("[T]here is no need to retry a defendant for a lesser included 12 offense when the elements of the lesser offense necessarily were proven to a jury 13 beyond a reasonable doubt in the course of convicting the defendant of the greater 14 offense."). 15

{5} Judah also claims that the district court erred when it instructed the jury on 16 motive despite UJI 14-5029's use note stating, "No instruction on this subject shall 17 be given." Because Judah did not object to this instruction at trial, it is subject to 18 review for fundamental error. State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 19

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92 P.3d 633. Fundamental error occurs where "a mistake in the process makes a 1 conviction fundamentally unfair notwithstanding the apparent guilt of the accused." 2 Id. ¶ 17. 3

{6} We agree with Judah that the district court erred in failing to adhere to the use 4 note, and we take this opportunity to emphasize for district courts that use notes are 5 binding on lower courts. Delfino v. Griffo, 2011-NMSC-015, ¶ 19, 150 N.M. 97, 257 6 P.3d 917 ("Use notes, though not part of the statute or jury instruction, are adopted 7 by this Court and binding on district courts."). However, Judah has failed to 8 articulate how the instruction created "circumstances that shock the conscience or 9 implicate a fundamental unfairness that would undermine judicial integrity if left 10 unchecked." State v. Mascareñas, 2000-NMSC-017, ¶ 17, 129 N.M. 230, 4 P.3d 11 1221 (text only)¹(citation omitted). Furthermore, our reversal of Judah's first-degree 12 murder conviction ameliorates any unfairness underlying his conviction potentially 13 caused by the motive instruction. 14

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I. BACKGROUND 1

{7} There is no dispute that Judah shot Samuel. The State attempts to undercut 2 Judah's sufficiency challenge by highlighting the sheer volume of evidence 3 presented in its case-in-chief—including more than eighty exhibits, twenty 4 witnesses, and records obtained both from a search engine and from a dating app. 5 However, the bulk of the State's evidence at trial, including the testimony of more 6 than a dozen law enforcement personnel, primarily served to eliminate any 7 reasonable doubt that Judah was the person who shot Samuel at Ragle Park, took his 8 phone, and tossed it alongside Rodeo Road. Therefore, much of the State's evidence 9 at trial is peripheral to this appeal. Judah's exclusive challenge to first-degree murder 10 is sufficiency with regard to deliberate intent. Accordingly, we focus on the evidence 11 presented at trial, including Judah's own testimony, supporting that element. 12

A. Events Leading up to the Shooting 13

{8} Judah and Samuel met through Grindr, a dating app geared toward LGBTQ+ 14 men and nonbinary individuals. Judah lied about his age to create his account, which 15 indicated that he was nineteen at the time he connected with Samuel. In fact, he was 16 fifteen. Samuel had multiple accounts and also lied about his age, making profiles 17 that stated he was forty-nine and fifty-two rather than sixty. Judah testified that 18 Samuel messaged him first around 3:00 p.m. on August 9, 2022, the day before 19

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Samuel's body was found in Ragle Park. Judah agreed to meet with Samuel for what 1 he understood to be oral sex and gave Samuel the address where he was staying with 2 his mother at the time. 3

{9} Samuel, again, contacted Judah in the early hours of August 10, 2022, after 4 his shift ended, to ask if Judah still wanted to meet. Judah agreed but said that they 5 could not meet at his house anymore because his mother and sister were there. 6 Samuel suggested they meet at Ragle Park, and Judah agreed as it was a public place. 7

{10} Data from Judah and Samuel's phones indicate that the two met at Ragle Park 8 around 2:30 a.m. on August 10, 2022. Phone data shows both cell phones left the 9 park after roughly fifteen to twenty minutes and then traveled to the house belonging 10 to Judah's mother's boyfriend. Soon thereafter, both phones moved along Zia Road, 11 with Samuel's phone ultimately ending up alongside Rodeo Road in a plastic bag. 12

B. The Shooting at Ragle Park 13

{11} Direct evidence of what occurred in those twenty minutes after Judah and 14 Samuel first met at the park is limited. Much of the evidence the jury heard regarding 15 what occurred that night was from Judah's own testimony. Before delving into 16 Judah's account, we first focus on the evidence the State presented at trial. 17

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1. State's evidence 1

{12} At roughly 4:30 a.m. on August 10, 2022, a local man walking his dog found 2 Samuel's body under a pavilion at Ragle Park and called the police. Samuel was 3 face-down with blood pooled around his head and torso. Investigators found 4 Samuel's car keys in his pocket and his car still in the parking lot with his wallet 5 inside. A single bullet casing was found roughly two feet back from where Samuel 6 lay. The casing belonged to a bullet fired from a Smith & Wesson, the type of gun 7 later recovered from Judah's mother's boyfriend's house. 8

{13} The State's forensic pathologist testified that Samuel died from a single bullet 9 entering the back of his head at an upward trajectory and exiting his forehead 10 between his eyes. The bullet entered just below the center of Samuel's head and 11 slightly off to one side. Based on analysis of the entry wound, the State's forensic 12 pathologist testified to how close she believed the shooter was behind Samuel. After 13 explaining to the jury that firing distance generally falls into one of three buckets—14 contact, intermediate, and distant and/or indeterminant—she concluded the shot that 15 killed Samuel was fired from a distant and/or indeterminant distance. The absence 16 of any material from the gun on Samuel's skin ruled out both contact and 17 intermediate distance, which is characterized by "inches to feet." This means the 18 shot that killed Samuel was fired from "feet to more feet" away. 19

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{14} There was some scraping on Samuel's right hand and on his face. 1 Investigators swabbed Samuel's fingernails for foreign DNA and ran a sexual assault 2 testing kit. They did not find any foreign DNA, including any DNA from Judah. 3

{15} Sometime after shooting Samuel, Judah called his ex-girlfriend, Especial 4 Garcia, who testified that Judah said he "did something bad" and that he sounded 5 scared, but he never told her exactly what happened that night. Finally, security 6 camera footage captured Judah returning to the house that night through the garage 7 before leaving through the front door holding a clear plastic bag with Samuel's 8 phone inside. 9

2. Judah's testimony 10

{16} Judah testified that he agreed to meet Samuel at Ragle Park because it was a 11 public place. He also testified that out of roughly eight prior encounters from Grindr, 12 all were in public because it made him feel safer. This was the first time he met with 13 someone from Grindr at Ragle Park; he usually met people during the day in public 14 restrooms and only once previously at night at his grandmother's apartment building. 15

{17} Before meeting with Samuel, Judah grabbed his mother's boyfriend's Smith 16 & Wesson from the garage. Judah researched how to remove the gun lock and load 17 the gun before going out. He placed the unlocked and loaded gun in the right-side 18 pocket of his jacket. Judah testified that he always armed himself before meeting 19

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with someone from Grindr, taking "mostly just pocket knives." He did not have his 1 usual knife with him because he was living between his mother's boyfriend's house, 2 his dad's house, and his grandmother's house. This was the first time he took a gun 3 to a meetup—in fact the first time he had access to the gun—taking it with him 4 because it made him feel safer. 5

{18} Judah arrived at the park and found it to be darker than he anticipated. No one 6 was around. He approached Samuel, observing that he was over six feet tall and 7 weighed roughly 300 pounds. Judah was five-and-a-half feet tall and weighed 8 between 150 and 160 pounds. 9

{19} Samuel suggested the two go to the nearby baseball dugouts, which Judah 10 described as "a dark, secluded area." Judah refused, testifying that he was afraid if 11 he went to the dugouts with Samuel, Samuel would rape him. When he refused, 12 Samuel became angry and asked if Judah was just going to stand there. Stating he 13

"felt frozen" and overwhelmed with anxiety, Judah thought he was not going to 14 make it home that night. 15

{20} At that point, Judah said that Samuel grabbed his left arm with his right hand, 16 and when Judah "pulled [Samuel's] hand away," his "body, it felt like it went out of 17 shock, like it went into a self-defense kind of mode, it felt like it was acting on its 18 own." When Judah pulled his arm away, Samuel told him to stop, grabbed his arm a 19

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second time, and squeezed. Judah said he had to "peel" Samuel's hand off of his 1 arm. At that point, Judah said he thought Samuel went for his neck and that he 2 pushed Samuel's arm away. Judah testified that Samuel then punched him on the 3 left side of his chin with his right fist hard enough that Judah stumbled to his right. 4 Judah said that when he stumbled, he pulled the gun out of his right pocket, pointed 5 the gun over his shoulder "facing up," and fired one time. He said Samuel's phone 6 dropped by Judah's left leg. Judah grabbed the phone and took off out of the park 7 without looking back and not knowing if Samuel was hit or not. 8

C. Jury Instructions at Trial and Verdict 9

{21} The jury was instructed on first-degree murder, second-degree murder, and 10 voluntary manslaughter. Defense counsel did not request a self-defense instruction 11 and none was given. The jury was instructed on motive, UJI 14-5029, and flight, UJI 12 14-5030 NMRA (2023), both of which include a use note stating, "No instruction on 13 this subject shall be given." 14

II. DISCUSSION 15

{22} To support the first-degree murder charge, the State was required to present 16 evidence supporting an inference that Judah "actually deliberated" before shooting 17 Samuel. State v. Adonis, 2008-NMSC-059, ¶¶ 1, 22, 25, 145 N.M. 102, 194 P.3d 18 717; UJI 14-201 NMRA (2023) ("A mere unconsidered and rash impulse, even 19

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though it includes an intent to kill, is not a deliberate intention to kill. To constitute 1 a deliberate killing, the slayer must weigh and consider the question of killing and 2 his reasons for and against such a choice."). The bulk of the State's evidence 3 provides insight into what happened after the shooting. The only evidence the State 4 cites ahead of the killing that might be probative of deliberate intent is Judah's 5 decision to take a gun to the encounter. But while this Court has found that taking a 6 gun to an encounter might support an inference of deliberate intent, those cases are 7 distinguished by the presence of evidence of actual deliberation. Simply put, the 8 State did not present any evidence as to when Judah decided to pull the trigger or 9 what he was thinking when he did so. 10

{23} Therein lies the flaw at the core of the State's case: it asks this Court to pull 11 discrete facts that, in context, supported deliberate intent in other cases, strip those 12 facts of their context, and add them together to reach an inference of deliberate 13 intent. In cases where the Court has cited, for example, the defendant bringing a gun 14 or after-the-fact evidence as evidence of deliberate intent, those facts were always 15 accompanied by evidence of actual deliberation that empowered the jury to make an 16 inference rather than to merely speculate as to the defendant's mental state. That 17 evidence is absent here. 18

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{24} Accordingly, we take this opportunity to place the evidence the State relied 1 upon in this case back into its context. In doing so, it becomes clear that those facts 2 are simply not probative of deliberate intent in this case and that, even when viewed 3 holistically, the evidence presented at trial required the jury to speculate as to 4 whether Judah deliberated before killing Samuel. 5

A. Standard of Review 6

{25} When reviewing sufficiency of the evidence, the Court asks whether "any 7 rational trier of fact could have found the essential elements of the crime beyond a 8 reasonable doubt." State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (internal 9 quotation marks and citation omitted). "New Mexico appellate courts will not invade 10 the jury's province as fact-finder by second-guessing the jury's decision concerning 11 the credibility of witnesses, reweighing the evidence, or substituting its judgment for 12 that of the jury." State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 13 1057 (text only) (citation omitted). 14

{26} That established, it is "the independent responsibility of the courts to ensure 15 that the jury's decisions are supportable by evidence in the record, rather than mere 16 guess or conjecture." State v. Vigil, 2010-NMSC-003, ¶ 4, 147 N.M. 537, 226 P.3d 17 636 (internal quotation marks and citation omitted). While appellate courts indulge 18

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all reasonable inferences in favor of the jury's verdict, "an inference must be linked 1 to a fact in evidence." State v. Slade, 2014-NMCA-088, ¶ 14, 331 P.3d 930. 2

B. The State's Proffered Evidence of Deliberate Intent 3

{27} The State emphasizes the steps that Judah took to prepare the gun before 4 meeting with Samuel and argues that Judah's account of the altercation is belied by 5 the forensic evidence. At trial, in efforts to defeat the defense's motion for directed 6 verdict, the State argued that the absence of evidence of a struggle, shown by a lack 7 of foreign DNA on Samuel, and the fact that Samuel was shot in the back of the head 8 were sufficient to support an inference of deliberate intent. In closing argument and 9 in this appeal, the State leaned more heavily on the version of events derived from 10 Judah's own testimony. The State challenges Judah's assertion that he was scared of 11 Samuel by highlighting Judah's failure to flee. While this could be seen as evidence 12 that challenges Judah's testimony that he was scared of Samuel, the State offers it as 13 evidence of deliberate intent and does so without authority. In addition, the State 14 relies on the fact that Judah took Samuel's cell phone, as well as his statement that 15 he "did something bad," to demonstrate consciousness of guilt, which it argues 16 supports an inference of deliberate intent. Judah argues that the evidence of 17 deliberate intent was wholly insufficient, limited to the fact that Judah prepared and 18

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took a gun to the meeting, the improbability of Judah's account, and consciousness-1 of-guilt evidence. 2

{28} Mindful of our obligation to refrain from parsing the evidence, we take this 3 opportunity to explain why much of the State's evidence is plainly not probative of 4 deliberate intent in this case. We then turn to the remaining evidence as a whole to 5 explain why, even when viewed in the light most favorable to upholding the verdict, 6 it falls short of proving deliberate intent. 7

1. Judah's failure to flee 8

{29} The State argues that Judah's failure to run from Samuel—a much older, 9 larger, and presumably slower individual—after Samuel became aggressive supports 10 an inference of deliberate intent. The State does not cite any cases in which failure 11 to flee under comparable circumstances supported an inference of deliberate intent. 12 Indeed, Judah's failure to flee, at most, indicates that he had time to deliberate, which 13 is insufficient to support an inference of deliberate intent absent evidence that he 14 actually did so. See Adonis, 2008-NMSC-059, ¶¶ 20-22 (stating that despite the killer 15 having "an opportunity to deliberate, the burden remains on the [s]tate to produce 16 evidence that tends to show that the killer actually did so" (internal quotation marks 17 and citation omitted)). 18

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{30} The State attempts to equate failure to flee with a prolonged struggle, relying 1 on caselaw in which evidence of a prolonged struggle supported an inference of 2 deliberate intent. See State v. Flores, 2010-NMSC-002, ¶ 21, 147 N.M. 542, 226 3 P.3d 641, overruled on other grounds by State v. Martinez, 2021-NMSC-002, ¶¶ 72, 4 77, 478 P.3d 880. However, a prolonged struggle manifests into deliberate intent 5 where the victim struggles to escape or fight back and the killer persists in killing 6 them anyway, demonstrating an enduring commitment to killing the victim and 7 thereby supporting an inference of deliberation. See State v. Rojo, 1999-NMSC-001, 8 ¶ 24, 126 N.M. 438, 971 P.2d 829 (finding deliberate intent to kill when the 9 defendant strangled the victim to death over several minutes in addition to having 10 motive to kill the victim); see also State v. Duran, 2006-NMSC-035, ¶ 11, 140 N.M. 11 94, 140 P.3d 515 (concluding evidence of a prolonged struggle, multiple stab 12 wounds, the victim attempting to escape, and the defendant's statements reflecting 13 his intent were sufficient to find deliberate intent). That is plainly not the case here—14 where Judah claimed he struggled to pull away from Samuel and had to defend 15 himself for fear of being sexually assaulted. The State did not present a counter to 16 that narrative, and although free to disbelieve Judah's account, the jury had no basis 17 upon which to build an alternative story of a prolonged struggle. 18

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{31} Furthermore, the State's argument seeks to criminalize an instinctive freeze 1 response that many victims of sexual violence experience during an assault. See 2 RAINN, Fight, Flight, Freeze, & Fawn: Understanding Survival Responses, 3 https://rainn.org/mental-health-therapy-support-after-sexual-violence/fight-flight-4 freeze-and-fawn-understanding-survival-responses/ [https://perma.cc/F3GF-SQYF] 5 (last visited June 5, 2026). Judah's testimony was that he "felt frozen" with anxiety 6 when he perceived Samuel become angry and aggressive, which is consistent with a 7 freeze response to assault. Concluding that such a response, on its own, supports an 8 inference of deliberate intent would be divorced from the realities of experiencing 9 assault, particularly sexual assault, and punish victims for what experts understand 10 to be involuntary responses to traumatic events. See id. We decline to conclude that 11 such a response is evidence of deliberate intent in this case. 12

2. Consciousness-of-guilt evidence 13

{32} The State also argues that Judah disposing of Samuel's phone, telling Especial 14 that he "did something bad," and appearing calm on security camera footage after 15 the killing support an inference of deliberate intent. These are all pieces of evidence 16 that demonstrate consciousness of guilt, but they are not probative of deliberation in 17 this case. The State's reliance on these facts exemplifies a problematic conflation of 18

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consciousness-of-guilt evidence with evidence of deliberate intent that has arisen 1 following our holding in Flores, 2010-NMSC-002, ¶¶ 22-23. 2

{33} This Court has allowed some consciousness-of-guilt evidence to support an 3 inference of deliberate intent. See id. In Flores, after analyzing over a dozen pieces 4 of evidence supporting the jury's finding of deliberate intent—some of which arose 5 after the killing—the Court observed that "[n]ot only may [a d]efendant's acts before 6 and during the crime provide evidence of intent, evidence of flight or an attempt to 7 deceive the police may prove consciousness of guilt." Id. (internal quotation marks 8 omitted). Since Flores, consciousness-of-guilt evidence has been occasionally 9 conflated with evidence supporting an inference of deliberate intent. See State v. 10 Arredondo-Soto, S-1-SC-35112, dec. ¶ 36 (N.M. June 2, 2016) (nonprecedential) 11 ("Such evidence of flight or attempt at deceiving law enforcement can demonstrate 12 consciousness of guilt that supports a conviction of deliberate intent." (citing Flores, 13 2010-NMSC-002, ¶¶ 22-23)). Indeed, the State asks the Court to conflate the two in 14 this case. 15

{34} However, to support that proposition, Flores relied on State v. Martinez, 1999-16 NMSC-018, ¶¶ 29-30, 127 N.M. 207, 979 P.2d 718, which did not, itself, discuss 17 consciousness-of-guilt evidence as at all pertinent to proving deliberate intent. See 18 Flores, 2010-NMSC-002, ¶ 23. Rather, Martinez solely addressed consciousness-19

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of-guilt evidence in the context of whether it is admissible under Rule 11-404(B) 1 NMRA (1999), observing that courts have "previously recognized that 2 consciousness of guilt, like intent or motive, constitutes a permissible use of other 3 acts or wrongs under Rule 11-404(B) [(1999)]." Martinez, 1999-NMSC-018, ¶ 29 4 (emphasis added). Digging several layers into the cases Martinez relied upon, those 5 cases also addressed the admissibility of acts demonstrating consciousness of guilt, 6 not any potential tie to deliberate intent. See State v. Trujillo, 1981-NMSC-023, ¶ 7 31, 95 N.M. 535, 624 P.2d 44 (affirming the admission of other acts evidence under 8 reasoning that "[e]vidence of flight or an aborted plan of flight is admissible and 9 relevant because it tends to show consciousness of guilt"). With respect to intent 10 alone, one Court of Appeals case has acknowledged that, under specific 11 circumstances, efforts to suppress evidence might be admissible to support an 12 inference of criminal intent. See State v. Ruiz, 1995-NMCA-007, ¶ 9, 119 N.M. 515, 13

892 P.2d 962. However, the idea that there is a per se direct link between 14 consciousness of guilt and deliberate intent, as suggested by the statement in Flores, 15 is not borne out in the cases Flores relied upon. See Flores, 2010-NMSC-002, ¶ 23. 16

{35} Rather, such evidence must be closely scrutinized and is insufficient absent 17 other evidence of deliberate intent or specific facts making the conduct highly 18 probative of deliberation. See State v. Astorga, 2015-NMSC-007, ¶¶ 63-65, 343 P.3d 19

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1245 (acknowledging that the defendant's statements that he "'blasted that cop'" 1

"might have been insufficient" on their own but were probative of deliberate intent 2 given the additional evidence of intent, including a strong motive to kill). Any such 3 evidence is absent here. 4

{36} Judah's efforts to dispose of Samuel's phone and his scared statements to 5 Especial that he had done "something bad" are not nested in additional facts showing 6 deliberation, and they do not, themselves, even imply deliberation. Judah called his 7 friend, sounding afraid, before waking his mother to drive him to throw Samuel's 8 cell phone out of a car window. While indicative of consciousness of guilt, nothing 9 about that evidence sheds light on his state of mind before or during his encounter 10 with Samuel. See Slade, 2014-NMCA-088, ¶¶ 28-31 (concluding that hiding 11 evidence, in that instance the murder weapon, and admitting to shooting the victim 12 demonstrated consciousness of guilt but did not support an inference of deliberate 13 intent). 14

{37} The State also argues that Judah did not appear panicked or remorseful on 15 security camera footage of him after the killing presented at trial, which further 16 supports an inference of deliberate intent. And while this Court has held that a lack 17 of remorse can support a finding of deliberate intent, the cases in which it did so 18 involve the defendant's overt expressions evincing a lack of remorse or the 19

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defendant calmly watching while the victim died. See State v. Guerra, 2012-NMSC-1 027, ¶ 29, 284 P.3d 1076 (relying, in part, on the defendant stating "'I think I stabbed 2 that fool seven or eight times,'" celebrating the killing, and "acting as if nothing had 3 happened after he returned from the attack" as evidence of deliberate intent); see 4 also Duran, 2006-NMSC-035, ¶ 9 (citing the defendant's statements after the killing 5 that he "hurt a lady and stabbed her eight or nine times" and that he "'straight up 6 murdered some bitch'" to support an inference of deliberate intent). Here, there is 7 no outward expression, only security camera footage showing Judah texting on his 8 phone before getting in his mother's car to go dispose of Samuel's phone. The jury 9 would have to speculate that the absence of clear distress indicates a lack of remorse 10 and that the lack of remorse indicates deliberation. There is no factual basis for 11 either. 12

3. The gun and the forensic evidence 13

{38} Having concluded that the evidence discussed above is simply not probative 14 of deliberate intent, the State's case is left with the fact that Judah took a loaded gun 15 to the meetup with Samuel and that Samuel ended up with a single gunshot to the 16 back of his head without any apparent signs of struggle. Without evidence indicating 17 actual deliberation, those facts are insufficient to support an inference of deliberate 18 intent. 19

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{39} A defendant bringing the murder weapon to the scene of the killing has, of 1 course, been one piece of evidence that this Court has cited in support of a finding 2 of deliberate intent. See State v. Lucero, 1975-NMSC-061, ¶ 7, 88 N.M. 441, 541 3 P.2d 430 (considering the fact that the defendant brought a loaded and concealed 4 gun to the scene of the murders when analyzing the evidence of deliberate intent). 5 However, in those cases, the presence of the murder weapon weighed in the context 6 of considerable additional evidence of deliberation. See id. (finding sufficient 7 evidence of deliberate intent where the defendant took a loaded gun to a clinic where 8 he was not being treated and accused the victim, a "suspected informer," of being a 9

"'rat'" before shooting the victim and his wife); see also Flores, 2010-NMSC-002, 10 ¶ 22 (concluding that the defendant "carried the screwdriver with him to the fatal 11 confrontation for no other discernible purpose than to use it as a weapon" in addition 12 to fifteen other pieces of evidence supporting deliberation, including traveling to 13 New Mexico in pursuit of the victim, stalking him over several days, lying in wait 14 for the victim to be alone, and stabbing him repeatedly). Here, in contrast, Judah 15 taking the gun to his encounter with Samuel is the State's primary piece of evidence 16 arising before the shooting that it claims supports an inference of deliberate intent. 17

{40} We decline to adopt a rule that taking a firearm to an encounter, alone, 18 supports an inference of deliberate intent to kill absent corroborating evidence of 19

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actual deliberation. On that point, Adonis and Slade instruct that merely bringing a 1 gun to the crime scene, or even retrieving a gun, is insufficient to support an 2 inference of deliberate intent absent evidence that the defendant actually deliberated. 3 In Slade, the state argued that the defendant arriving to the scene armed with a gun 4 supported an inference of deliberate intent. 2014-NMCA-088, ¶ 25. Rejecting that 5 argument, the Court of Appeals surveyed cases in which bringing a gun was 6 evidence of deliberate intent and concluded that all of those cases involved other 7 evidence supporting the inference, specifically strong motive. Id. Additionally, the 8 Court of Appeals observed that the fact that a defendant usually carries a gun cut 9 against an inference that the defendant brought it to the scene with the intent to kill. 10 Id. ¶ 26 ("[I]n the context of the defendant's normal practice to carry a gun while on 11 break from work, the mere presence of the weapon was insufficient to demonstrate 12 a willful and deliberate intent to kill the victims."). Similarly, the jury in this case 13 heard that Judah was always armed during Grindr meetups, but he had left his knife 14 at his grandmother's apartment that night so decided to take the gun instead. 15

{41} And in Adonis, the Court concluded that the defendant retrieving a gun—even 16 when he did so with sufficient time to deliberate—was insufficient absent evidence 17 of actual deliberation. 2008-NMSC-059, ¶ 22. The Court explained: 18 While the retrieval of a weapon before killing a victim could potentially 19 give a killer an opportunity to deliberate, the burden remains on the 20

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[s]tate to produce evidence that tends to show that the killer "actually 1 did so." In this case, the evidence fails. The [s]tate did not introduce 2 any evidence about what [the d]efendant actually did before he shot [the 3 v]ictim. For example, there was no eyewitness testimony about the 4 events leading up to the shooting, nor was there any testimony from a 5 co-conspirator, or any other witness, that could shed light on [the 6 d]efendant's plan or motive to kill [the v]ictim. In short, the facts relied 7 upon by the [s]tate only prove that [the d]efendant killed [the v]ictim 8 intentionally, but fail to prove that [the d]efendant committed the killing 9 with the deliberate intention to take [the v]ictim's life, which is 10 necessary to prove first-degree murder. 11

Id. (quoting State v. Taylor, 2000-NMCA-072, ¶ 22, 129 N.M. 376, 8 P.3d 863). 12 Here, the State's evidence was similarly devoid of any information about what Judah 13

"actually did before he shot [Samuel]." Id. The jury heard virtually no evidence 14 regarding the events leading up to the encounter outside of Judah's own testimony, 15 which was devoid of any indication that he deliberated before firing the gun. 16

{42} Instead of offering evidence of deliberation before the shooting, the State 17 focuses on discounting Judah's version of events. To that end, the State relies heavily 18 on the absence of Judah's DNA on Samuel and contends this proves there was not a 19 struggle, and it emphasizes the improbability that Judah fired once over his shoulder 20 and hit Samuel in the head. Those facts, according to the State, discredit Judah's 21 story and support an inference of deliberate intent. 22

{43} However, as Judah argues, the forensic evidence does not necessarily 23 contradict his account. He testified that Samuel grabbed his wrist twice and punched 24

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his left cheek; this was not presented as an extended brawl that might result in DNA 1 transfer. Nor does the conclusion that the shot was fired from "feet to more feet" 2 away and at an upward trajectory contradict Judah's claim that he was on the ground 3 when he fired. And even if the forensic evidence definitively showed that Judah was 4 lying, Judah being a liar is not enough to convict him of deliberate intent murder; 5 the burden remains on the State to provide the jury with evidence of what it believes 6 actually happened. 7

{44} Ultimately, the State failed to present evidence that enabled the jury to piece 8 together a story of when or why Judah would have formed the deliberate intent to 9 kill Samuel. While the jury is free to disbelieve Judah's story, they are not permitted 10 to conjure an alternative story based wholly on speculation. Here, the jury would 11 have to assume that one of two scenarios played out in order to reach deliberate 12 intent. In scenario one, Judah planned to kill Samuel all along and took the gun to 13 the meetup with that intent; that scenario requires speculation because the State did 14 not present any evidence of a plan or motive, and we have just said that taking the 15 gun, on its own, is insufficient. In scenario two, the jury would have to believe that 16 Judah did not arrive with the intent to kill Samuel but that at some point in their 17 interaction he formed the deliberate intent to do so. But, again, the State did not 18 present any evidence of what actually happened at Ragle Park outside of the 19

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shooting; there is no evidence of when or why Judah would have formed the 1 deliberate intent to kill. 2

{45} Finally, the single shot to the back of Samuel's head does not advance a clear 3 theory of deliberate intent. It is true that the single shot supports either scenario 4 discussed above, but that is only because a single shot to the back of the head 5 supports a finding of an intentional killing under the circumstances of this case. 6 However, there is no evidence of deliberation that distinguishes the intentional 7 killing in this case from a killing that is intentional but rash and impulsive. As was 8 the case in Adonis, "the facts relied upon by the State only prove that [Judah] killed 9 [Samuel] intentionally, but fail to prove that [Judah] committed the killing with the 10 deliberate intention to take [Samuel's] life, which is necessary to prove first-degree 11 murder." 2008-NMSC-059, ¶ 22. The State failed to meet its burden to show actual 12 deliberation, and this Court, accordingly, reverses Judah's conviction for first-degree 13 deliberate intent murder. 14

{46} Because the jury was instructed on the lesser included offense of second-15 degree murder and the State adequately proved that charge, we exercise our 16 discretion to remand this case for entry of second-degree murder. Revels, 2025-17 NMSC-021, ¶ 43 ("[W]hen the jury has already found the elements of a lesser 18 included offense beyond a reasonable doubt, the interests of justice are better served 19

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by direct remand for entry of judgment on the lesser included offense." (citing 1 Haynie, 1994-NMSC-001, ¶ 3)). 2

{47} The jury instructions addressed a killing which Judah was indicted for—3 murder. The jury was also instructed on second-degree murder and was asked to 4 determine whether Judah killed Samuel, whether he knew that his actions created a 5 strong probability of death or great bodily harm, and whether he acted without 6 sufficient provocation. See UJI 14-220 NMRA (2023) (explaining to the jury that in 7 deciding the charge of second-degree murder with voluntary manslaughter as a 8 lesser included offense, the difference is that in voluntary manslaughter, the 9 defendant did not act as a result of sufficient provocation). The jury was further 10 instructed on voluntary manslaughter, a crime that is otherwise murder unless it 11

"consists of manslaughter committed upon a sudden quarrel or in the heat of 12 passion." NMSA 1978, § 30-2-3(A) (1994); UJI 14-210 NMRA (2023) (explaining 13 to a jury that when deciding the charge of second-degree murder, where voluntary 14 manslaughter is a lesser included offense, an element of the crime is that the 15 defendant did not act as a result of sufficient provocation); see also 2 Charles E. 16 Torcia, Wharton's Criminal Law § 155 (15th ed. 1994) ("Voluntary manslaughter is 17 an intentional killing in the heat of passion as a result of severe provocation."); 2 18 Wayne R. LaFave & David C. Baum, Substantive Criminal Law § 15.2 (3d ed. 2018) 19

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("Voluntary manslaughter in most jurisdictions consists of an intentional homicide 1 committed under extenuating circumstances."). "[P]roving that the defendant did not 2 act in the heat of passion on sudden provocation is similar to proving any other 3 element of intent; it may be established by adducing evidence of the factual 4 circumstances surrounding the commission of the homicide." Mullaney v. Wilbur, 5

421 U.S. 684, 702 (1975). Finally, the jury was instructed on the definition of 6 provocation. See UJI 14-222. Because provocation is a mitigating factor to an illegal 7 killing, it is important to note that it is a question for the jury to decide. State v. 8 Munoz, 1992-NMCA-004, ¶ 6, 113 N.M. 489, 827 P.2d 1303 ("Whether a particular 9 set of circumstances [demonstrates] sufficient provocation is generally a question 10 for the jury to decide."). 11

{48} The evidence analyzed above was not sufficient to show deliberation. That 12 does not mean, however, that the State failed to adequately prove second-degree 13 murder. Judah testified that he fired a shot over his shoulder in Samuel's direction—14 testimony sufficient to conclude that Judah "knew that [his] acts created a strong 15 probability of death or great bodily harm to [Samuel]." UJI 14-210 (2023); Haynie, 16 1994-NMSC-001, ¶ 2. Judah also presented evidence that he was provoked, but the 17 jury clearly rejected that story when it chose to convict him of deliberate intent 18 murder rather than "[a] mere unconsidered and rash impulse." UJI 14-201 (2023); 19

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see also State v. Lobato-Rodriguez, 2024-NMSC-014, ¶ 23, 548 P.3d 21 ("By 1 returning a verdict of second-degree murder, the jury determined that [the d]efendant 2 did not act in response to sufficient provocation."). 3

{49} Thus, the interests of justice are best served by direct remand for entry of 4 second-degree murder as opposed to retrial on second-degree murder and voluntary 5 manslaughter. 6

{50} Finally, because it is a third-degree felony to tamper with evidence of either a 7 capital felony or a second-degree felony, there is no ambiguity as to the level of 8 tampering of which Judah is guilty in this case. Section 30-2-1(B) ("Whoever 9 commits murder in the second degree is guilty of a second degree felony."); § 30-10 22-5(B)(1) ("[I]f the highest crime for which tampering with evidence is committed 11 is a capital or first degree felony or a second degree felony, the person committing 12 tampering with evidence is guilty of a third degree felony."). Accordingly, we affirm 13 his conviction for tampering. 14

III. CONCLUSION 15

{51} Because the State failed to present sufficient evidence of deliberation, we 16 reverse Judah's first-degree deliberate intent murder conviction and elect to remand 17 the case for entry of second-degree murder. We affirm Judah's tampering 18

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