State v. Jimenez

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: _______________

3 Filing Date: February 14, 2017

4 NO. 34,375

5 STATE OF NEW MEXICO,

6 Plaintiff-Appellee,

7 v.

8 NOE JIMENEZ,

9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
11 Fernando R. Macias, District Judge

12 Hector H. Balderas, Attorney General
13 Santa Fe, NM
14 Jane A. Bernstein, Assistant Attorney General
15 Albuquerque, NM

16 for Appellee

17 Bennett J. Baur, Chief Public Defender
18 Allison H. Jaramillo, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant
 1 OPINION

2 HANISEE, Judge.

3 {1} Defendant, a self-represented litigant who was assisted by standby counsel at

4 trial, was charged with and convicted of being a felon in possession of a firearm in

5 violation of NMSA 1978, Section 30-7-16 (2001), and resisting, evading, or

6 obstructing an officer in violation of NMSA 1978, Section 30-22-1(B) (1981).

7 Defendant appeals both convictions and proffers myriad arguments to support

8 reversal. He asserts: (1) his Sixth Amendment right under the United States

9 Constitution to confront witnesses was violated, (2) the State failed to present

10 sufficient evidence to sustain his convictions, (3) the district court committed

11 fundamental error when it failed to properly instruct the jury on the relevant law for

12 constructive possession, (4) the district court erred when it allowed the State to

13 introduce evidence of Defendant’s pending civil lawsuit against the City of Las

14 Cruces, and (5) the State committed prosecutorial misconduct. We affirm in part,

15 reverse in part, and remand for resentencing in accordance with this opinion.

16 BACKGROUND

17 {2} On February 25, 2012, Defendant went to the Arid Club in Las Cruces, New

18 Mexico. The Arid Club is a place where Alcoholics Anonymous and Narcotics

19 Anonymous meetings are held. Defendant was a member of the Arid Club and went
 1 to the club that day because he was having a bad day and wanted to talk to someone.

2 Defendant donned a black bandana, a black shirt, Army pants, biker boots, and a

3 bulletproof vest which was worn underneath his shirt. According to Defendant, this

4 was his normal attire except for the bulletproof vest, which he wore that day because

5 he felt his life was in danger. Defendant was also carrying nunchucks.

6 {3} Only three people were at the Arid Club when Defendant arrived. One was

7 Brandon Chandler, a volunteer at the club who was running the snack bar that day.

8 Another was someone who identified himself to police as Chandler’s case manager.

9 The third person was never identified in the record. At some point after Defendant

10 had entered the Arid Club, the Las Cruces Police Department responded to a call at

11 the club. It is unclear exactly who called the police, what was reported, and to what

12 kind of incident police believed they were responding.

13 {4} Wallace Downs, a detective with the Las Cruces Police Department at the time

14 of the incident, testified at trial that he went to the Arid Club in response to a call

15 from another officer, Sergeant Ronnie Navarrete, who had been “flagged down” at

16 the club. After briefly speaking with Sergeant Navarrete, who did not testify at trial,

17 Detective Downs began interviewing people at the scene to try to determine if there

18 were any witnesses who could describe what was going on inside the club. Detective

19 Downs spoke with the person who identified himself as Chandler’s case manager.

2
 1 The case manager said he had a phone number for Chandler, with whom Detective

2 Downs was then able to make telephonic contact.

3 {5} According to Detective Downs, Chandler “was talking very low as if he were

4 scared or concerned.” There was conflicting testimony regarding whether Chandler

5 was being held against his will inside the Arid Club, but Detective Downs testified

6 that Chandler told him that there was a person inside with a gun and that he did not

7 think he could leave. Defendant testified that Chandler was free to leave at any time.

8 Everyone agreed that once Chandler gave Defendant the phone and Detective Downs

9 asked Defendant to let Chandler leave the club, Chandler walked out within minutes.1

10 {6} Detective Downs spent approximately one hour on the phone with Defendant,

11 first building a rapport with him and then asking that Defendant surrender to police.

12 Defendant stated that he was armed with a gun, did not want to “go on . . . living,”

13 and wanted to have the police shoot him. Detective Downs requested at least three to

14 five times that Defendant put down his weapon and come out with his hands up to

15 surrender to police. Detective Downs recalled that Defendant agreed to surrender a

16 couple of times but never did. Eventually, the call ended because the battery in the

17 phone Defendant was using died.

18 1
The State called Chandler to testify at trial; however, Chandler was an
19 uncooperative witness and informed the jury that he subscribed to the “code” that ex-
20 convicts, like himself, do not testify in criminal cases.

3
 1 {7} Soon after, a tactical team that had assembled on scene, consisting of SWAT

2 officers and a K-9 unit, entered the Arid Club and apprehended Defendant. According

3 to Joshua Savage, an officer assigned to the Las Cruces Police Department’s K-9 unit,

4 Defendant did not immediately surrender, and application of force was necessary to

5 bring him into custody.

6 {8} Following Defendant’s arrest, police searched the Arid Club and obtained a

7 search warrant for the car that Defendant drove there. Inside the club, police

8 recovered a gun that contained six bullets, two of which were live rounds, and a bullet

9 on the floor. Another forty-five rounds of ammunition were located in a bag found

10 inside the vehicle driven by Defendant.

11 {9} Defendant appeals both counts of conviction. Additional facts are provided as

12 necessary to our discussion.

13 DISCUSSION

14 {10} First we take up the ammunition’s admissibility, which hinges on Defendant’s

15 Confrontation Clause argument, then discuss whether there was sufficient evidence

16 to support Defendant’s convictions. Next, we address whether the district court erred

17 in instructing the jury and allowing evidence of Defendant’s pending lawsuit against

18 the City of Las Cruces before turning to Defendant’s claim of prosecutorial

19 misconduct.

4
 1 I. The Trial Court Did Not Violate Defendant’s Right of Confrontation
2 When it Admitted Evidence Seized From Defendant’s Car Without
3 Defendant Having an Opportunity to Confront the Officers Who Prepared
4 and Executed the Search Warrant

5 {11} Defendant argues that his Sixth Amendment right to be confronted with the

6 witnesses against him was violated when the State presented physical evidence seized

7 from his car without calling certain witnesses. The central thrust of Defendant’s

8 argument on appeal is that he had the right to confront officers that searched his car

9 and the officer that arrested him. Absent such opportunity, Defendant contends, the

10 district court erred by denying his motion to suppress evidence, including the

11 ammunition recovered from his car. Defendant also makes a perfunctory argument

12 that his right of confrontation was violated because the officer who prepared the

13 search warrant for his car was not present at trial. Defendant misunderstands the

14 scope of the Confrontation Clause, and we take this opportunity to address evidence

15 and testimony to which it does not apply.

16 {12} The Sixth Amendment’s Confrontation Clause entitles a criminal defendant to

17 “be confronted with the witnesses against him[.]” U.S. Const. amend. VI. Challenges

18 under the Confrontation Clause must be resolved as a matter of law, which we review

19 de novo. See State v. Huettl, 2013-NMCA-038, ¶ 16, 305 P.3d 956.

20 The Confrontation Clause “prohibits the introduction of testimonial hearsay unless

21 the accused has had the opportunity to cross-examine the declarant.” State v.

5
 1 Carmona, 2016-NMCA-050, ¶ 15, 371 P.3d 1056 (citing Crawford v. Washington,

2 541 U.S. 36, 54 (2004)). It “applies to witnesses against the accused who provide

3 testimony for the purpose of establishing or proving some fact.” Huettl, 2013-NMCA-

4 038, ¶ 16. “[A] person is a witness for Confrontation Clause purposes when that

5 person’s statements go to an issue of guilt or innocence.” State v. Aragon, 2010-

6 NMSC-008, ¶ 8, 147 N.M. 474, 225 P.3d 1280, overruled on other grounds by State

7 v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. “Testimonial statements”

8 include those that convey information about evidence that was gathered after an

9 “emergency has been resolved and the police have turned their attention to collecting

10 evidence for use in a criminal prosecution against a known criminal perpetrator.”

11 Carmona, 2016-NMCA-050, ¶¶ 17, 19. “[B]asis evidence,” which includes out-of-

12 court-statements that form the basis for a testifying witness’s conclusion, whether

13 expert or lay, is testimonial and “therefore must be subjected to Confrontation Clause

14 scrutiny.” Id. ¶ 37; see also State v. Navarette, 2013-NMSC-003, ¶¶ 13-14, 294 P.3d

15 435 (discussing Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221 (2012)). However,

16 where a witness testifies from personal knowledge and neither makes a statement nor

17 draws a conclusion that is based on hearsay, the Confrontation Clause is not

18 implicated at all. See Crawford, 541 U.S. at 51-52 (holding that the Confrontation

19 Clause is intended to bar the admission of testimonial hearsay); United States v.

6
 1 Ibarra-Diaz, 805 F.3d 908, 919-20 (10th Cir. 2015) (explaining that testimony that

2 communicates no hearsay “is generally of no concern to the Confrontation Clause”).

3 {13} We apply these principles to Defendant’s argument that the district court erred

4 by admitting evidence seized from Defendant’s car when Defendant did not have the

5 opportunity to confront particular officers involved in the seizure and his arrest.2

6 Atypically given our consideration of the merits of the issue on appeal, Defendant did

7 not contemporaneously object to the admission of either State’s Exhibit 34, the forty-

8 five rounds of bullets, or State’s Exhibit 35, the black bag in which the ammunition

9 was found. Rather, after the evidence had been admitted and after the State rested,

10 standby counsel moved to suppress Exhibits 34 and 35, arguing that the State had

11 failed to lay the proper foundation for their discovery and seizure. Standby counsel

12 also argued that the State had failed to present evidence regarding the evidence’s

13 chain of custody. The district court denied Defendant’s motion to suppress, which it

14 2
We cannot help but observe that Defendant’s own missteps in preparing for
15 trial are what actually deprived him of an opportunity to confront the officers he
16 wished to question. On the morning of trial, Defendant told the trial judge that he had
17 attempted to subpoena certain officers whom he wished to call as witnesses. But
18 Defendant—acting pro se with standby counsel—had failed to do so properly. We
19 also note that Defendant was fully warned about the challenges of representing
20 himself but chose to proceed pro se anyway. See Newsome v. Farer, 1985-NMSC-
21 096, ¶ 18, 103 N.M. 415, 708 P.2d 327 (explaining that “a pro se litigant, having
22 chosen to represent himself, is held to the same standard of conduct and compliance
23 with court rules, procedures, and orders as are members of the bar” (emphasis
24 omitted)).

7
 1 considered a right-of-confrontation challenge.3 The district court relied on State v.

2 Lopez, 2013-NMSC-047, ¶ 26, 314 P.3d 236 (holding that the Sixth Amendment right

3 of confrontation does not apply in pretrial hearings) to reach its decision. While we

4 believe the district court’s reliance on Lopez was misplaced, as we explain below, we

5 agree with the conclusion reached and affirm on other grounds. See State v. Ruiz,

6 2007-NMCA-014, ¶ 38, 141 N.M. 53, 150 P.3d 1003 (explaining that as a general

7 rule, we will uphold the decision of a district court if it is right for any reason).

8 {14} On appeal, Defendant asserts, without providing support from the record, that

9 the testifying officers “would have had to rely on the out-of-court testimonial hearsay

10 statements of the officer who signed the affidavit and conducted the search and the

11 officer who arrested [Defendant].” Defendant thus appears to argue that the testifying

12 officers offered improper, testimonial “basis evidence” regarding the origin of the

13 ammunition. We disagree.

14 Given the absence of timely objection by Defendant to the admission of the
3

15 complained-of evidence and Defendant’s failure to directly evoke the Confrontation
16 Clause as the basis for his motion to suppress, we could conclude that this issue
17 simply was not preserved, in which case we would review for fundamental error only.
18 See State v. Dietrich, 2009-NMCA-031, ¶ 51, 145 N.M. 733, 204 P.3d 748 (providing
19 that preserved Crawford Confrontation issues are analyzed under a harmless error
20 standard, while un-preserved Crawford issues are reviewed for fundamental error
21 only). However, because Defendant is pro se and the question presented is of
22 constitutional magnitude, we exercise our prerogative to directly address the issue
23 presented.

8
 1 {15} In Carmona, this Court held that an expert’s testimony stating that the

2 defendant’s DNA was found on swabs taken from the victim was inadmissible

3 because it violated the Confrontation Clause. 2016-NMCA-050, ¶ 37. In that case, the

4 state argued that its expert relied on the swabs themselves, not on the unavailable

5 Sexual Assault Nurse Examiner’s hearsay statement that the swabs were taken from

6 the victim, to reach her conclusion. We rejected the state’s argument, reasoning that

7 the swabs, and particularly the information accompanying them, were utilized to

8 establish or prove facts that “reflect[ed] directly on [the d]efendant’s guilt or

9 innocence[,]” id. ¶ 38 (internal quotation marks, and citation omitted), thus making

10 statements regarding the circumstances of their use testimonial. Because the expert

11 had based her opinion on an unavailable witness’s testimonial hearsay (i.e., that the

12 swabs were taken from the victim and from specific locations on her body), we

13 concluded that the defendant’s right of confrontation was violated when he was

14 deprived of an opportunity to cross-examine the person who collected the evidence.

15 Id. ¶ 42.

16 {16} The pertinent testimony in this case is distinguishable from Carmona. Stella

17 Carbajal, the evidence custodian and crime scene technician with the Las Cruces

18 Police Department who was called to the incident at the Arid Club, was the only

19 witness who testified regarding acquisition of the complained-of evidence. Although

9
 1 not one of the sworn police officers involved in the search, Ms. Carbajal’s testimony

2 was eventful: she personally collected evidence from Defendant’s vehicle, including

3 State’s Exhibits 34 and 35. She likewise testified regarding the procedures used to

4 ensure the evidentiary chain of custody and verified that State’s Exhibits 34 and 35

5 were in the same condition as when she collected the evidence.

6 {17} Unlike in Carmona, where the defendant was denied the opportunity to cross-

7 examine the person who collected and documented the DNA swabs from the victim,

8 here, Defendant had, and indeed exercised, the opportunity to confront Ms. Carbajal

9 regarding her collection and handling of the evidence in question. Defendant asked

10 about how and where Ms. Carbajal photographed the black AARP bag that contained

11 the forty-five bullets. He asked whether she moved that evidence. Ms. Carbajal

12 verified for Defendant that the bag containing the ammunition was in the car when

13 the search began and that the 45 bullets were found there. Our review of Ms.

14 Carbajal’s testimony reveals that she offered no testimonial hearsay regarding the

15 origin or seizure of the ammunition or any other item of evidence from Defendant’s

16 car.

17 {18} What Defendant really seems to challenge on appeal is the fact that he did not

18 have an opportunity to confront the additional officers who “conducted the search”

19 of his car in order to explore a speculative theory that the bullets were planted in his

10
 1 car. Insofar as Defendant complains that the chain of custody for admitting the

2 evidence is deficient, which is how he presented his argument to the district court, we

3 reject this argument. “The admission of real or demonstrative evidence does not

4 require the [s]tate to establish the chain of custody in sufficient detail to exclude all

5 possibility of tampering.” State v. Rodriguez, 2009-NMCA-090, ¶ 24, 146 N.M. 824,

6 215 P.3d 762. “Admission of evidence is within the district court’s discretion and

7 there is no abuse of discretion when the evidence is shown by a preponderance of the

8 evidence to be what it purports to be.” Id. Defendant concedes that Ms. Carbajal “was

9 present and took pictures” of the evidence found in his car but infers that her

10 testimony fails because she “is not a law enforcement officer[,]” a legal proposition

11 for which he fails to provide authority or support. Defendant’s claim that “[t]he trial

12 court admitted evidence seized by officers not present at trial and therefore violated

13 [Defendant’s] right to confrontation” ignores the fact that Ms. Carbajal, while not a

14 sworn officer but rather the evidence technician that actually seized the evidence from

15 Defendant’s car, was qualified as a fact witness to testify regarding the origin of the

16 evidence. We cannot say that the district court abused its discretion in admitting the

17 bullets and the bag, which contained them, into evidence given that Ms. Carbajal

18 testified and was subjected to cross examination regarding the evidence she collected.

11
 1 {19} With respect to the State’s other witnesses, Defendant argues that “[t]he two

2 officers who testified at trial did not witness the search and could not have possibly

3 known that the bullets were seized from [Defendant’s] car.” But Defendant fails to

4 demonstrate that either officer made any statement regarding the ammunition

5 specifically found in Defendant’s car. Our review of the record leads us to conclude

6 that Defendant points to no specific examples of testimonial hearsay statements about

7 the complained-of evidence because none exist.

8 {20} Officer Savage, the K-9 officer who was involved in the actual apprehension

9 of Defendant, did not testify at all regarding the ammunition found in Defendant’s

10 car. And while Detective Downs testified that he assisted with the post-arrest search

11 and in securing evidence, and saw the ammunition that was found in the case,4 he did

12 not testify that the ammunition was seized from Defendant’s car, suggest that he had

13 personal knowledge of that fact, or rely on testimonial hearsay regarding that fact. See

14 Crawford, 541 U.S. at 51-52 (holding that the Confrontation Clause is intended to bar

15 the admission of testimonial hearsay); Ibarra-Diaz, 805 F.3d at 919-20 (explaining

16 4
While the record is not clear as to whether Detective Downs specifically
17 participated in the search of the car and was personally involved in seizing the
18 ammunition from Defendant’s car, Defendant had the opportunity to confront this
19 witness but failed to explore the matter on cross examination.

12
 1 that testimony that communicates no hearsay “is generally of no concern to the

2 Confrontation Clause”).

3 {22} We conclude that Defendant’s Sixth Amendment right to confront the

4 witnesses against him was not violated because no witness’s testimony included

5 testimonial hearsay. The district court did not err by denying Defendant’s motion to

6 suppress State’s Exhibits 34 and 35.

7 II. Sufficiency of the Evidence to Sustain Defendant’s Two Convictions

8 {23} Defendant argues that the State failed to present sufficient evidence to sustain

9 his convictions for resisting, evading, or obstructing an officer and for being a felon

10 in possession of a firearm. We agree that there was insufficient evidence to convict

11 Defendant of fleeing, evading, or attempting to evade a peace officer, but we disagree

12 with respect to the felon-in-possession of a firearm charge.

13 A. Standard of Review

14 {24} “To determine whether the evidence presented was sufficient to sustain the

15 verdict, we must decide whether substantial evidence of either a direct or

16 circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt

17 with respect to every element essential to a conviction.” State v. Brietag, 1989-

18 NMCA-019, ¶ 9, 108 N.M. 368, 772 P.2d 898. We “view the evidence in the light

19 most favorable to the guilty verdict, indulging all reasonable inferences and resolving

13
 1 all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-

2 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “We do not reweigh the evidence and

3 may not substitute our judgment for that of the fact finder, so long as there is

4 sufficient evidence to support the verdict.” Brietag, 1989-NMCA-019, ¶ 9. “Contrary

5 evidence supporting acquittal does not provide a basis for reversal because the jury

6 is free to reject [the d]efendant’s version of the facts.” State v. Rojo, 1999-NMSC-

7 001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

8 B. There Was Insufficient Evidence For the Jury to Convict Defendant of
9 Resisting, Evading, or Obstructing an Officer in Violation of Section 30-
10 22-1(B)

11 {25} For reasons that are not clear, the State elected to charge, and the grand jury

12 indicted, Defendant under Subsection (B) of Section 30-22-1. Subsection (B) defines

13 “[r]esisting, evading[,] or obstructing an officer” as consisting of “intentionally

14 fleeing, attempting to evade[,] or evading an officer of this state when the person

15 committing the act of fleeing, attempting to evade[,] or evasion has knowledge that

16 the officer is attempting to apprehend or arrest him[.]” Section 30-22-1(B). The State

17 opted not to charge Defendant under Subsection (D), which defines the prohibited

18 conduct as consisting of “resisting or abusing any judge, magistrate[,] or peace officer

19 in the lawful discharge of his duties.” Section 30-22-1(D). As we explain below, our

14
 1 reading of Section 30-22-1 as a whole leads us to conclude that the State lacked

2 sufficient evidence to convict Defendant under Subsection (B).

3 {26} Our Legislature chose to differentiate the manner by which a defendant can

4 violate Section 30-22-1 by employing language indicative of action, related to flight

5 from arrest, and separate language that involves immediate interaction between a

6 subject and an arresting officer when the subject is non-compliant with being

7 arrested. Compare § 30-22-1(B), with § 30-22-1(D). Regarding the language chosen

8 by the Legislature, rules of statutory construction require that we “construe the entire

9 statute as a whole so that all the provisions will be considered in relation to one

10 another.” Am. Fed’n of State, Cnty. & Mun. Emps. (AFSCME) v. City of Albuquerque,

11 2013-NMCA-063, ¶ 5, 304 P.3d 443 (internal quotation marks and citation omitted).

12 Furthermore, we construe statutes “so that no part of the statute is rendered

13 surplusage or superfluous[.]” Id. (internal quotation marks and citation omitted).

14 Therefore, the Legislature’s use of the term “evading” in the title and body of the

15 statute, as well as its inclusion of a provision that makes “intentionally fleeing,

16 attempting to evade[,] or evading an officer” a distinguishable crime under Section

17 30-22-1(B), is significant and, we must assume, not mere surplusage.

18 {27} In previously interpreting this statute, we explained that “[t]he crime of

19 resisting, evading[,] or obstructing an officer as set forth in Section 30-22-1, contains

15
 1 several alternative means by which the offense may be committed.” State v. Hamilton,

2 1988-NMCA-023, ¶ 14, 107 N.M. 186, 754 P.2d 857. “A defendant’s act of fleeing,

3 attempting to evade[,] or evading an officer constitutes one of the alternative methods

4 of committing the offense proscribed under Section 30-22-1.” Id.; see § 30-22-1(B).

5 Another distinct way of violating the statute is by “resisting or abusing” an officer.

6 Section 30-22-1(D).

7 {28} There is nothing to prevent the State from charging a defendant under multiple

8 subsections if it is not clear which charge the evidence will ultimately support. See

9 Benavidez v. Shutiva, 2015-NMCA-065, ¶ 24, 350 P.3d 1234 (illustrating that it is

10 possible to charge both fleeing and resisting in violation of Section 30-22-1); State

11 v. Padilla, 2006-NMCA-107, ¶ 25, 140 N.M. 333, 142 P.3d 921 (explaining that the

12 resisting/evading instruction that the jury received allowed the jury to convict under

13 either “fled, attempted to evade[,] or evaded” or the “resisted or abused” alternative),

14 rev’d on other grounds by 2008-NMSC-006, 143 N.M. 310, 176 P.3d 299. “[T]he

15 prosecutor is free to select the statute and the charges to be brought against [a

16 d]efendant.” State v. Archie, 1997-NMCA-058, ¶ 11, 123 N.M. 503, 943 P.2d 537.

17 However, where a statute provides distinct and alternative offenses and the state

18 chooses to charge under only a particular part of the statute, “the prosecution is

19 limited to proving what it has charged.” State v. Leal, 1986-NMCA-075, ¶ 14, 104

16
 1 N.M. 506, 723 P.2d 977. Additionally, in order to convict, the state must present

2 sufficient evidence of “guilt beyond a reasonable doubt with respect to every element

3 essential to a conviction.” State v. Carter, 1979-NMCA-117, ¶ 6, 93 N.M. 500, 601

4 P.2d 733 (emphasis added).

5 {29} Our uniform jury instructions reinforce the structure of Section 30-22-1 and our

6 conclusion that a violation of one subsection cannot necessarily establish a violation

7 of another. UJI 14-2215 NMRA contains four elements that the State must prove in

8 order to establish violation of Section 30-22-1. Three of the elements are common to

9 all cases, regardless of which of the “alternative methods” the state alleges a

10 defendant used to violate the statute. The State must prove the first, second, and

11 fourth elements contained in UJI 14-2215 in every case. See UJI 14-2215 (“[T]he

12 state must prove . . . each of the following elements of the crime[.]”). Those common

13 elements are that (1) the person being resisted, evaded, or obstructed was a peace

14 officer, judge, or magistrate in the lawful discharge of duty; (2) the defendant knew

15 that the person was a peace office, judge, or magistrate; and (3) the incident in

16 question happened in New Mexico on or about a particular date. Id.

17 {30} Also under UJI 14-2215, one of four alternative actions must be proven to

18 satisfy the third element of the offense. See UJI 14-2215, Use Note 3 (“Use only the

19 applicable alternative.”). See Benavidez, 2015-NMCA-065, ¶ 24 (confirming that a

17
 1 defendant can be charged under multiple subsections of the statute; in such a case,

2 multiple applicable alternatives for the third element of UJI 14-2215 would be given,

3 as appropriate). The four alternatives for the third element correspond to the four

4 subsections of Section 30-22-1. Thus, when the state charges a defendant under

5 Subsection (B) of Section 30-22-1, it would have to prove the second

6 alternative—that “[t]he defendant . . . fled, attempted to evade[,] or evaded (name of

7 officer)”; whereas when the state charges under Subsection (D), it must prove the

8 fourth alternative—that “[t]he defendant resisted or abused (name of officer)[.]” UJI

9 14-2215.

10 {31} In this case, the district court instructed the jury on the essential elements of

11 “resisting, evading, or obstructing an officer” in the following manner:

12 For you to find [D]efendant guilty of resisting, evading[,] or
13 obstructing an officer as charged in Count 2, the [S]tate must prove to
14 your satisfaction beyond a reasonable doubt each of the following
15 elements of the crime:

16 1. [Detective] Downs or [Officer] Savage was a peace officer
17 in the lawful discharge of duty;

18 2. [D]efendant knew Wallace Downs or Joshua Savage was
19 a peace officer[;]

20 3. [D]efendant, with the knowledge that Wallace Downs or
21 Joshua Savage was attempting to apprehend or arrest [D]efendant, fled,
22 attempted to evade[,] or evaded Wallace Downs or Joshua Savage; and

18
 1 4. This happened in New Mexico on or about the 25th day of
2 February, 2012.

3 (Emphasis added.) This instruction was consistent with the way Defendant was

4 charged in the grand jury indictment, and the third element was the appropriate

5 alternative to give in light of Defendant being specifically charged under Subsection

6 (B) of the statute. See Leal, 1986-NMCA-075, ¶ 15 (“A defendant may not be

7 convicted of a crime for which he was not charged or tried.”). The question is whether

8 the State presented evidence to prove the third essential element: that Defendant

9 “fled, attempted to evade[,] or evaded” Detective Downs or Officer Savage before

10 they were able to arrest him.

11 {32} Defendant argues that the ordinary meaning of “evade” is “to stay away from

12 someone or something or to slip away.” The State urges us to define “evade” as “to

13 avoid doing (something required).” Because the term “evade” is susceptible of

14 multiple meanings, as evidenced by the parties’ competing definitions that they urge

15 us to adopt, we turn to rules of statutory construction to determine how the

16 Legislature intended to define “evade” in Section 30-22-1. See Russell Motor Car Co.

17 v. United States, 261 U.S. 514, 519 (1923) (explaining that rules of statutory

18 construction “have no place . . . except in the domain of ambiguity”).

19 {33} A “plain meaning” analysis is not appropriate here because of the facial

20 ambiguity of the term “evade.” See Padilla, 2008-NMSC-006, ¶ 7 (“If the language

19
 1 of the statute is doubtful[ or] ambiguous . . . the court should reject the plain meaning

2 rule in favor of construing the statute according to its obvious spirit or reason.”

3 (internal quotation marks and citation omitted)). Therefore, we start by applying the

4 interpretive maxim of noscitur a sociis, which expresses the notion that “a word may

5 be known by the company it keeps.” Russell Motor Car Co., 261 U.S. at 519.

6 {34} “The maxim noscitur a sociis applies and confines the word to a meaning

7 kindred to that of the words with which it is associated.” City of Albuquerque v.

8 Middle Rio Grande Conservancy Dist., 1941-NMSC-021, ¶ 33, 45 N.M. 313, 115

9 P.2d 66 (Salder, J., dissenting). This canon of statutory construction instructs that,

10 when interpreting an unclear or ambiguous term within a statute, we “look[] to the

11 neighboring words in a statute to construe the contextual meaning of a particular

12 word in the statute.” In re Gabriel M., 2002-NMCA-047, ¶ 19, 132 N.M. 124, 45 P.3d

13 64; see United States v. Williams, 553 U.S. 285, 294 (2008) (explaining that words

14 that are “susceptible of multiple and wide-ranging meanings” can be “narrowed by

15 the commonsense canon of noscitur a sociis—which counsels that a word is given

16 more precise content by the neighboring words with which it is associated”).

17 {35} In this case, Subsection (B) of Section 30-22-1 associates “attempting to evade

18 or evading” with “fleeing.” We think the fact that these terms are collocated within

19 the same subsection evinces the Legislature’s intent to liken an act of evasion or

20
 1 attempted evasion to fleeing. “Flee” as a transitive verb, as it is used in Section 30-

2 22-1, is commonly defined as “to run away from.” Merriam-Webster Dictionary,

3 http://www.merriam-webster.com/dictionary/flee (last visited on Dec. 9, 2016).

4 Reading “evade” and “flee” as kindred terms leads us to conclude that the Legislature

5 intended that “evade” be understood by the common definition that most closely

6 connects “evade” to “flee.” We believe the correct way to define the term “evade” as

7 used in Section 30-22-1 is as meaning “to elude by dexterity or stratagem” or, more

8 simply, “to be elusive to[.]” Merriam-Webster Dictionary, http://www.merriam-

9 webster.com/dictionary/evade (last visited on Dec. 9, 2016). This definition of

10 “evade” most closely parallels our understanding of the term “flee” as meaning “to

11 run away from” because it shares the common characteristic of connoting the stealing

12 away of oneself by affirmative, intentional conduct.

13 {36} In order, however, to not render “evade” mere surplusage, we note that these

14 terms, while associated, are not identical or synonymous. What distinguishes them

15 is the nature of the conduct and how evasion is achieved: “flee” being conduct that

16 is open and obvious, and “evade” including conduct that is surreptitious. See State v.

17 Gutierrez, 2005-NMCA-093, ¶ 20, 138 N.M. 147, 117 P.3d 953 (evaluating

18 circumstances where an officer asked the defendant to stop, the defendant ignored the

19 officer, went inside a house claiming that he needed to use the bathroom, walked out

21
 1 the back door of the house, then jumped over a backyard fence), aff’d in part, rev’d

2 in part on other grounds by 2007-NMSC-033, 142 N.M. 1, 162 P.3d 156. In

3 Gutierrez, we described a charge under Section 30-22-1(B) as being “evading and

4 eluding.” 2005-NMCA-093, ¶ 20. While the statute does not use the term “elude,”

5 Gutierrez’s interpretation of the term “evade” to also mean “elude” is an

6 interpretation that too is consistent with flight.

7 {37} We cannot say the same about equating “evade” with “avoid.” While we

8 acknowledge that the State correctly points to one definition of “evade” as being “to

9 avoid doing (something required)”, see Merriam-Webster Dictionary,

10 http://www.merriam-webster.com/dictionary/evade (last visited on Dec. 9, 2016), we

11 conclude that this is not the definition that the Legislature intended to be used in the

12 context of Section 30-22-1(B). While one who “evades” or “eludes” is necessarily

13 also avoiding, the inverse is not true. One can avoid (doing something required)

14 without necessarily evading or eluding. The Legislature made “evade” the “linguistic

15 neighbor,” Bullock v. BankChampaign, N.A., ___ U.S. ___, ___, 133 S. Ct. 1754,

16 1760 (2013), of “flee” in subsection (B), which means we are to give “evade” the

17 meaning that most closely and logically associates it with its neighbor, “flee.”

18 {38} This interpretation is consistent with our cases that construe Subsection (B).

19 What all of our Subsection (B) cases have in common is that the defendant’s conduct

22
 1 that supported conviction under Subsection (B) involved an affirmative physical act

2 to move and/or stay away from an officer in order to avoid capture altogether (i.e.,

3 fleeing or evading), rather than the mere forestallment of being arrested (i.e., resisting

4 or refusing to comply with commands to surrender). See, e.g., State v. Akers, 2010-

5 NMCA-103, ¶¶ 1, 9-10, 149 N.M. 53, 243 P.3d 757 (describing a situation where the

6 defendant, after briefly stopping his truck for officers who were attempting an

7 investigatory stop, sped away and was later charged under Subsection (B)); Gutierrez,

8 2005-NMCA-093, ¶ 20, (describing circumstances where an officer asked the

9 defendant to stop, the defendant ignored the officer, went inside a house claiming that

10 he needed to use the bathroom, walked out the back door of the house, then jumped

11 over a backyard fence); State v. Diaz, 1995-NMCA-137, ¶ 17, 121 N.M. 28, 908 P.2d

12 258 (explaining that “evidence that [the d]efendant was backing away from the

13 officers . . . would have supported a finding that [the d]efendant was . . . attempting

14 to evade arrest in violation of Section 30-22-1(B)”); State v. Andazola, 1981-NMCA-

15 002, ¶¶ 3-5, 95 N.M. 430, 622 P.2d 1050 (evaluating facts where the defendant

16 walked away from the police, went into his house, and used his dog to keep police at

17 bay). We believe these cases make clear that, in order to violate Section 30-22-1(B),

18 a defendant must engage in conduct that is tantamount to fleeing, which, as the

19 language of Subsection (B) suggests, can be accomplished either openly (e.g., by

23
 1 running or driving away from an officer, or “fleeing”), or surreptitiously (i.e., by

2 “evading” or “attempting to evade”).

3 {39} By contrast, our cases that deal with Subsection (D)—“resisting or

4 abusing”—make it clear that violations of Subsection (D) differ from Subsection (B)

5 violations in that a defendant’s violation is predicated on a direct engagement with,

6 rather than evasion of an officer. See State v. Cotton, 2011-NMCA-096, ¶ 23, 150

7 N.M. 583, 263 P.3d 925 (describing the defendant’s conduct that resulted in his being

8 charged under Subsection (D) as kicking at officers who were trying to place him in

9 police car and positioning his legs and head to prevent the door from being closed);

10 Diaz, 1995-NMCA-137, ¶ 14 (explaining that “[a]nyone who commits aggravated

11 assault [on a police officer] . . . also commits resisting in violation of [Section] 30-22-

12 1(D)”); State v. Padilla, 1983-NMCA-096, ¶¶ 2, 9, 10, 101 N.M. 78, 68 P.2d 706

13 (holding that resisting an officer, such as by kicking the officer in the groin, is a lesser

14 included offense of battery on a police officer).

15 {40} Our cases illustrate that another way a person can violate Subsection (D) is by

16 avoiding doing something required, including refusing to comply with an officer’s

17 orders. See, e.g., Diaz, 1995-NMCA-137, ¶¶ 4, 16-23 (providing that “resisting”

18 refers not only to a defendant’s overt physical act, but also to the failure to act when

19 refusing to obey lawful police commands, such as dropping a weapon); see also City

24
 1 of Roswell v. Smith, 2006-NMCA-040, ¶ 5, 139 N.M. 381, 133 P.3d 271 (affirming

2 the defendant’s conviction under Roswell’s “obstructing an officer” ordinance,

3 Roswell, N.M., Code of Ordinances ch. 10, art. 1, § 10-48 (1999), which is equivalent

4 to Section 30-22-1(A), (D), based on the defendant’s refusal to leave a fast-food

5 restaurant parking lot after being ordered to do so by an officer).5 While it is true that

6 one (and the State’s preferred) definition of “evade” is “to avoid doing (something

7 required),” these cases illustrate that our courts interpret a refusal to do something

8 required as constituting “resisting” not “evading” an officer, which violates

9 Subsection (D), not (B).

10 {41} In sum, understood temporally and geospatially, violations of Subsection (B)

11 and Subsection (D) are distinguishable based on at what point in an encounter a

12 defendant first begins to exhibit resistant conduct. A defendant who is not yet

13 physically capable of being apprehended and who attempts to avoid apprehension by

14 trying to evacuate himself from the presence of an officer is more likely to be in

15 violation of Subsection (B). By contrast, a defendant who is effectively “cornered,”

16 i.e., whose apprehension is imminent, but who, nonetheless, chooses to challenge or

17 The State’s reliance on Smith is perplexing and unavailing. The section of the
5

18 Roswell Code under which the defendant was convicted, Section 10-48, parallels
19 Section 30-22-1(D). The Roswell Code contains a separate section—Section 10-
20 49—that criminalizes “eluding an officer” and contains, verbatim, the language of
21 Section 30-22-1(B).

25
 1 forestall his arrest—either by physical battery, refusing to comply with orders, or

2 verbally—violates Subsection (D).

3 {42} We turn, now, to the evidence in this case regarding Defendant’s conviction

4 under Count 2. The State relies exclusively on evidence related to the telephonic

5 interaction between Defendant and Detective Downs to establish a violation of

6 Section 30-22-1(B). Specifically, the State argues that Defendant’s “refus[al] to

7 comply” with Detective Downs’ orders to surrender constituted evasion of Detective

8 Downs. We disagree.

9 {43} Defendant’s entire interaction with Detective Downs occurred via telephone

10 and lasted somewhere between five and ten minutes, according to Defendant, and one

11 hour, according to Detective Downs. Detective Downs testified that the reason his

12 call with Defendant ended was that the battery in Defendant’s phone died. Detective

13 Downs further testified that, during the course of the call, Defendant agreed on

14 perhaps two or three occasions to surrender to police. Although Defendant ultimately

15 did not willingly surrender to police, we believe the fact that Defendant repeatedly

16 agreed to surrender, coupled with his continued presence in the club, is evidence that

17 he lacked the requisite intent to “flee, attempt to evade, or evade” Detective Downs

18 under Subsection (B). While refusing to comply with Detective Downs’ orders to

19 surrender may have constituted “resisting” under our case law, see Diaz, 1995-

26
 1 NMCA-137, ¶¶ 4, 16-23, in this case we do not believe that this conduct alone was

2 sufficient to convict Defendant as charged. And we reiterate that there was no

3 evidence presented to suggest that Defendant surreptitiously tried to escape from the

4 Arid Club, such as out the back or side door, in order to evade arrest. We conclude

5 that there was insufficient evidence to convict Defendant of fleeing, evading, or

6 attempting to evade Detective Downs.

7 {44} While the State acknowledges that the jury instructions allowed the jury to

8 convict Defendant of Count 2 based on either his interaction with Detective Downs

9 or Officer Savage, the State, in its briefing, points to no evidence related to

10 Defendant’s interactions with Officer Savage that would support conviction under

11 Section 30-22-1(B). Our review of the record likewise indicates that the prosecutor,

12 in her closing argument, focused on the fact that Detective Downs and Officer Savage

13 “issued commands to [D]efendant” and that Defendant “didn’t comply” to support a

14 conviction under Count 2. Even viewed in the light most favorable to sustaining the

15 jury’s verdict, we are unable to identify facts that support a conviction for fleeing,

16 evading, or attempting to evade Officer Savage.

17 {45} The record reflects that Officer Savage, a member of the Las Cruces Police

18 Department’s K-9 unit, entered the Arid Club after the SWAT team made contact

19 with Defendant. Along with other officers, Officer Savage commanded Defendant to

27
 1 surrender. He directed Defendant also to put down the nunchucks, and Defendant

2 complied. Defendant was then given conflicting orders, including to “get on the

3 floor,” on the one hand, and to “[co]me to us[,]” on the other hand. Defendant did not

4 comply with either command. Officer Savage testified that “[e]ventually, very quickly

5 a plan was put together for use of force. A bean bag shotgun along with the K-9 was

6 going to be used to take the subject into custody.” Defendant was first “engaged with

7 several bean bag rounds in the legs” which were ineffective. Officer Savage’s K-9

8 was then given an “apprehension command.” After that, Defendant picked up a chair

9 and threw it in the direction of the dog. The K-9 then “went in for an engagement[.]”

10 Defendant was “kicking and striking at the dog as the SWAT team made entry and

11 moved towards [Defendant].” In the process of Defendant being taken into custody,

12 Officer Savage’s dog bit Defendant and Defendant was tasered. All of this transpired

13 in approximately five to eight minutes.

14 {46} Based on these facts, there is insufficient evidence to support a finding that

15 Defendant “fled, attempted to evade, or evaded” Officer Savage. Defendant’s actions

16 more closely resemble conduct that we have previously stated constitutes “resisting”

17 an officer in violation of Subsection (D). The act of throwing a chair, kicking, and

18 striking at Officer Savage’s K-9—an act of direct physical confrontation and

19 engagement—is more similar to kicking at an officer while resisting being put in a

28
 1 police car like in Cotton. See 2011-NMCA-096, ¶ 23. Additionally, quite the opposite

2 of fleeing the officers (and the K-9), Defendant stayed exactly where he was and

3 made no attempt to leave. With respect to refusing to comply with Officer Savage’s

4 commands that he surrender, again we have held that refusing to comply with an

5 officer’s order violates Section 30-22-1(D), resisting an officer. See, e.g., Diaz, 1995-

6 NMCA-137, ¶¶ 4, 16-23. We do not believe that Defendant’s failure to follow Officer

7 Savage’s orders—particularly when Officer Savage conceded that Defendant was

8 being given conflicting commands—constituted evasion or attempted evasion of

9 Officer Savage.

10 {47} It matters not whether Defendant was “resisting” because he “feared for [his]

11 life” and was defending himself as he claims, or because he was confused by the

12 conflicting commands, or because he simply did not want to surrender. The burden

13 was on the State to prove that Defendant “fled, attempted to evade, or evaded” Officer

14 Savage. The State failed to carry its burden, and for that reason we reverse

15 Defendant’s conviction under Count 2 and remand for resentencing.

16 C. There Was Sufficient Evidence For the Jury to Convict Defendant of
17 Being a Felon in Possession of a Firearm in Violation of Section 30-7-16

18 {48} Because Defendant stipulated to being a convicted felon, the critical element

19 that the State was required to prove in order for the jury to convict Defendant of

29
 1 violating Section 30-7-16(A) was that Defendant “possessed a firearm” on or about

2 February 25, 2012. See UJI 14-701 NMRA.

3 {49} “Possession” may be actual or constructive. See UJI 14-130 NMRA. A person

4 is in actual possession of a firearm when, “on the occasion in question, he knows

5 what [the firearm] is, he knows it is on his person or in his presence[,] and he

6 exercises control over it.” UJI 14-130. Alternatively, the State may proceed on a

7 theory of constructive possession, whereby it must prove that, “[e]ven if the [firearm]

8 is not in [Defendant’s] physical presence, . . . he knows what it is and where it is and

9 he exercises control over it.” Id. In the case of constructive possession, we “must be

10 able to articulate a reasonable analysis that the fact-finder might have used to

11 determine knowledge and control.” State v. Garcia, 2005-NMSC-017, ¶ 13, 138 N.M.

12 1, 116 P.3d 72 (alteration, internal quotation marks, and citation omitted). Under

13 either an actual possession or constructive possession theory, the two key elements

14 the State must establish are knowledge and control. See UJI 14-130. The State must

15 prove that the defendant knows of the “presence and character of the item possessed.”

16 Garcia, 2005-NMSC-017, ¶ 14 (internal quotation marks and citation omitted).

17 Knowledge may be proved by circumstantial evidence, and the jury is permitted to

18 draw a reasonable inference of knowledge. Id. ¶ 15. Control may also be established

19 by drawing reasonable inferences from circumstantial evidence. Id. ¶¶ 20-22. A

30
 1 defendant’s ability to exercise control over ammunition may give rise to an inference

2 of control over a firearm that can utilize that ammunition. Id. ¶ 22.

3 {50} In this case, the State had sufficient evidence to proceed and secure a

4 conviction under the theory of either actual or constructive possession. A reasonable

5 jury could have found that Defendant’s possession of the firearm was established

6 through the testimony of Detective Downs. Detective Downs testified on direct

7 examination that Defendant told him that he was armed with a gun. Detective Downs

8 further testified that Brandon Chandler, the volunteer who was working at the snack

9 bar at the Arid Club on the date in question, told him over the phone that Defendant

10 had a gun. If the jury chose to believe Detective Downs, his testimony was sufficient

11 to prove beyond a reasonable doubt that Defendant had knowledge and control, and

12 thereby possession of a gun on February 25, 2012.

13 {51} There was additional evidence from which a reasonable jury could infer

14 Defendant’s possession of a firearm. Police recovered a handgun inside the club,

15 sitting on a countertop within arm’s reach of where Defendant admitted he had been

16 sitting and just feet from where police apprehended Defendant. This was sufficient

17 evidence to circumstantially establish Defendant’s ability to exercise control over the

18 gun. Police also recovered forty-five rounds of ammunition from inside the car that

19 Defendant drove to the Arid Club on February 25, 2012. While the car belonged to

31
 1 Defendant’s then-girlfriend, Defendant admitted that his girlfriend did not possess a

2 firearm and would not have had any need for the ammunition that was found in the

3 car.

4 {52} Finally, Defendant seems to argue that there was insufficient evidence to link

5 him, as opposed to someone else, to the gun found at the club because it was found

6 on a counter in an area that was open to the public. As this Court recognized in State

7 v. Maes, “[i]n non-exclusive access cases, the problem the [s]tate faces is the

8 alternative inference that some other individual with access to the premises is

9 responsible for the presence of the contraband.” 2007-NMCA-089, ¶ 17, 142 N.M.

10 276, 164 P.3d 975. The problem lies in the fact that “[e]vidence equally consistent

11 with two hypotheses tends to prove neither.” Herron v. State, 1991-NMSC-012, ¶ 18,

12 111 N.M. 357, 805 P.2d 624. Yet here, no evidence exists to suggest that the gun

13 belonged to or was possessed by anyone other than Defendant. Instead, Defendant

14 testified that Brandon Chandler, the only other person in the club with him when

15 police arrived on February 25, left the club before Defendant and did not place the

16 gun police found on the counter. Furthermore, like in Garcia, 2005-NMSC-017, ¶ 22,

17 where the court held that control over an ammunition clip gave rise to a fair inference

18 of control over the gun in a non-exclusive access situation, here, police found

19 ammunition in Defendant’s car that both matched the ammunition found inside the

32
 1 club and was usable by the type of gun that Detective Downs testified that Defendant

2 stated he was armed with. The jury was free to reject any inference Defendant offered

3 that the gun was possessed by anyone other than himself.

4 {53} Because “a reviewing court will not second-guess the jury’s decision

5 concerning the credibility of witnesses, reweigh the evidence, or substitute its

6 judgment for that of the jury[,]” State v. Lucero, 1994-NMCA-129, ¶ 10, 118 N.M.

7 696, 884 P.2d 1175, we conclude that the State presented sufficient evidence from

8 which the jury could reasonably infer that Defendant either actually or constructively

9 possessed the .22-caliber handgun recovered from inside the club.

10 III. The Trial Court Did Not Fundamentally Err by Failing to Give a Portion
11 of the Constructive Possession Jury Instruction

12 {54} Defendant argues that the district court committed fundamental error when it

13 failed to include optional language from UJI 14-130, the definitional instruction for

14 “possession.” We disagree.

15 {55} “The standard of review we apply to jury instructions depends on whether the

16 issue has been preserved.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258,

17 34 P.3d 1134. “If the error has been preserved we review the instructions for

18 reversible error.” Id. If a party fails to “object to the jury instructions as given, . . . we

19 only review for fundamental error.” Cunningham, 2000-NMSC-009, ¶ 8. “Under both

20 standards we seek to determine whether a reasonable juror would have been confused

33
 1 or misdirected by the jury instruction.” Benally, 2001-NMSC-033, ¶ 12. Because

2 Defendant failed to object to the instructions given at trial, Defendant failed to

3 preserve this issue, and we review for fundamental error only. See State v. Varela,

4 1999-NMSC-045, ¶ 11, 128 N.M. 454, 993 P.2d 1280 (“Ordinarily a defendant may

5 not base a claim of error on instructions he or she requested or to which he or she

6 made no objection. . . . [F]undamental error need not be preserved . . . [and] cannot

7 be waived.” (internal quotation marks and citations omitted)).

8 {56} UJI 14-130 provides that “[a] person is in possession of (name of object) when,

9 on the occasion in question, he knows what it is, he knows it is on his person or in his

10 presence[,] and he exercises control over it.” When the theory of possession is based

11 on constructive possession, the instruction provides supplemental language that “may

12 be used depending on the evidence.” UJI 14-130, Use Note 2 (emphasis added).

13 There are three statements that can be used to supplement the main possession

14 instruction. The first deals with a situation where the object the defendant is accused

15 of possessing is not in his physical presence, but where he nevertheless exercises

16 control over it. UJI 14-130. The second deals with a situation where two or more

17 people may be able to simultaneously constructively possess an object. Id. The third

18 explains that “[a] person’s presence in the vicinity of the object or his knowledge of

19 the existence or the location of the object is not, by itself, possession.” Id. In this case,

34
 1 the district court instructed the jury as follows with respect to the felon-in-possession

2 charge:

3 For you to find . . .[D]efendant guilty of possession of a firearm
4 by a felon as charged in [C]ount 1, the [S]tate must prove to your
5 satisfaction beyond a reasonable doubt each of the following elements
6 of the crime:

7 1. [D]efendant possessed a firearm;

8 2. [D]efendant, in the preceding ten years, was convicted and
9 sentenced to one or more years imprisonment by a court of the United
10 States or by a court of any state; and

11 3. This happened in New Mexico on or about the 25th day of
12 February, 2012.

13 See UJI 14-701.

14 {57} In addition to this elemental instruction, the district court instructed the jury as

15 follows with respect to the definition of “possession”:

16 A person is in possession of a firearm when, on the occasion in
17 question, he knows what it is, he knows it is on his person or in his
18 presence[,] and he exercises control over it.

19 Even if the object is not in his physical presence, he is in
20 possession if he knows what it is and where it is and he exercises control
21 over it.

22 {58} The district court included the latter statement even though the evidence

23 showed that Defendant was, in fact, in the physical presence of the gun. The district

24 court, however, did not include the third supplemental statement regarding proximity

35
 1 to the object: “A person’s presence in the vicinity of the object or his knowledge of

2 the existence or the location of the object is not, by itself, possession.” UJI 14-130.

3 Defendant failed to object to the instruction, including the omission of the

4 “proximity” statement, despite the court’s express invitations to register any

5 objections to proposed instructions and to submit competing instructions. Because

6 Defendant failed to preserve the matter, we review for fundamental error only.

7 {59} We begin our review by noting that in State v. Barber, our Supreme Court held

8 that it was not fundamental error to fail to give any part of the definitional instruction

9 for possession. 2004-NMSC-019, ¶ 1, 135 N.M. 621, 92 P.3d 633. In Barber, like in

10 this case, the defendant’s trial counsel failed to request a jury instruction defining

11 possession. Barber was a case dealing with possession of a controlled substance, in

12 which case UJI 14-3130 NMRA rather than UJI 14-130 applies. See UJI 14-3130

13 comm. cmt. (“This instruction must be given if possession is in issue and its use

14 replaces UJI 14-130 which should not be used in controlled substance cases.”).

15 However, for our purposes, this distinction does not matter because the instructions

16 are, for all intents and purposes, identical, and the court’s reasoning in Barber is what

17 matters here.

18 {60} The Barber court explained that definitional instructions are not always

19 essential, see 2004-NMSC-019, ¶ 25, and held that failing to give a definitional

36
 1 instruction was not fundamental error because “the missing definition of possession

2 does not implicate a critical determination akin to a missing elements instruction[.]”

3 Id. ¶ 26 (internal quotation marks and citation omitted). Notably, the definitional

4 instruction at issue in Barber was mandatory in a case where possession was an issue,

5 see UJI 14-3130 comm. cmt. (“[t]his instruction must be given if possession is in

6 issue” (emphasis added)), whereas UJI 14-130 provides that the supplemental

7 instructions are optional. See UJI 14-130, Use Note 2 (“One or more of the following

8 bracketed sentences may be used depending on the evidence.” (emphasis added)).

9 {61} In a case such as this, “we must place all the facts and circumstances under

10 close scrutiny to see whether the missing instruction caused such confusion that the

11 jury could have convicted [the d]efendant based upon a deficient understanding of the

12 legal meaning of possession as an essential element of the crime.” Barber, 2004-

13 NMSC-019, ¶ 25. Here, if the State had relied solely on Defendant’s proximity to the

14 gun found inside the club—i.e., the fact that the chair he was sitting in was directly

15 in front of the gun that police found on the countertop inside the club—it may have

16 been error to fail to give the “proximity” instruction because the jury may have been

17 confused and erroneously equated “proximity” with “possession.” However, the State

18 presented other evidence unrelated to Defendant’s physical proximity to the gun from

19 which the jury could have reasonably concluded that Defendant possessed the gun.

37
 1 First, Detective Downs testified that Defendant told him over the phone that he was

2 armed with a gun. Second, Detective Downs testified that Brandon Chandler stated

3 to him over the phone that Defendant had a gun. From this evidence, the State could

4 have proceeded on a theory of actual possession, in which case the trial court’s failure

5 to give a portion of the constructive possession definition was not error at all.

6 {62} We also note that the district court’s instruction properly informed the jury that,

7 in order to convict Defendant of possession, it had to find both that he knew what the

8 gun was and that he exercised control over it. The omitted instruction of which

9 Defendant now complains does not add anything that was not already addressed by

10 the main definitional instruction. To instruct the jury that “[a] person’s presence in

11 the vicinity of the object or his knowledge of the existence or the location of the

12 object is not, by itself, possession[,]” UJI 14-130, simply restates what the main

13 instruction provides: that one can only be found to be in possession of something if

14 he both “knows” what the object is and “exercises control over it.” Id. We are

15 satisfied that, even under a constructive possession theory, it was not fundamental

16 error for the district court to fail to provide the jury with the optional “proximity”

17 language of UJI 14-130.

38
 1 IV. The Trial Court Did Not Abuse Its Discretion by Allowing the State to
2 Introduce Evidence of Defendant’s Pending Lawsuit Against the City of
3 Las Cruces

4 {63} Defendant argues that the district court erred when it allowed the State to

5 introduce the fact that Defendant has a pending lawsuit against the City of Las

6 Cruces. While we find the State’s responsive argument somewhat unpersuasive and

7 the record scant as to the district court’s justification for allowing the evidence, we

8 hold that it was not an abuse of discretion and that, even assuming it was, any error

9 in allowing evidence of Defendant’s pending lawsuit was harmless.

10 {64} We review decisions to admit or exclude evidence under an abuse of discretion

11 standard. See State v. Stampley, 1999-NMSC-027, ¶ 37, 127 N.M. 426, 982 P.2d 477;

12 Garcia, 2005 NMCA-042, ¶ 38. A trial court abuses its discretion “when the ruling

13 is clearly against the logic and effect of the facts and circumstances of the case. We

14 cannot say the [district] court abused its discretion by its ruling unless we can

15 characterize [the ruling] as clearly untenable or not justified by reason.” Rojo, 1999-

16 NMSC-001, ¶ 41 (internal quotation marks and citations omitted).

17 {65} At trial, the prosecutor’s first question of Defendant on cross-examination was

18 whether he had “filed some sort of lawsuit against the City of Las Cruces.” After

19 Defendant responded affirmatively and answered the prosecutor’s next question about

20 where the lawsuit was filed, standby counsel requested a bench conference where he

39
 1 made a relevancy-based objection to the prosecutor’s questions about the lawsuit. The

2 prosecutor responded, “[g]oes to bias, Your Honor. It’s absolutely relevant if a

3 witness has filed a lawsuit. It has a connection to the case.” The district court

4 overruled the objection but cautioned the prosecutor “not to belabor the point.” After

5 reestablishing that Defendant had filed a lawsuit against the City of Las Cruces

6 related to the incident at the Arid Club, the prosecutor asked Defendant what kind of

7 damages he was seeking. Defendant initially resisted answering and stated, “I feel

8 . . . that has nothing to do with this case.” After the trial judge instructed him to

9 answer, Defendant began describing his claims, which included excessive force and

10 false imprisonment, rather than the damages Defendant sought.6 The district court

11 stepped in to clarify the question and explained to Defendant that the prosecutor was

12 asking him to state the amount of monetary damages he claimed to be appropriate in

13 his civil suit. Defendant disclosed that he asked for eighty million dollars for his

14 claims related to the February 25, 2012, incident. The prosecutor then moved on to

15 a different line of impeachment questioning related to Defendant’s criminal history.

16 6
The State attempts to characterize Defendant’s specific reference to the nature
17 of his claims as having “opened the door to the subject matter of the litigation.” We
18 do not agree with the State’s characterization. The record reflects that Defendant, in
19 fact, resisted discussing the lawsuit and only went into details when instructed to do
20 so by the district court.

40
 1 {66} Defendant argues that evidence of his pending civil lawsuit related to the

2 events of February 25, 2012, was not relevant to proving the charges against him and,

3 therefore, was inadmissible. He further argues on appeal, though he did not preserve

4 the argument at trial, that evidence of the lawsuit was “distracting to the jury,

5 resulting in confusion of the issues and unfair prejudice.” As already mentioned, the

6 prosecutor’s counterargument to Defendant’s relevancy challenge at trial was simply

7 that the evidence “[g]oes to bias.” Once the evidence was admitted, the prosecutor

8 used it to argue in closing that “[Defendant] has a bias because now he thinks he’s

9 going to get a big paycheck. Apparently, he thinks if he’s not convicted, that will help

10 his lawsuit.” The prosecutor also told the jury, “you can factor that in to the sort of

11 bias [Defendant] might have for the way that he testified here today.”

12 {67} The State clarifies its argument on appeal as being that, because of the

13 conflicting evidence with which the jury was presented, evidence of Defendant’s

14 lawsuit was “relevant for the purpose of assisting the jury in determining what

15 actually happened at the Arid Club on February 25, 2012.” The State reasons that the

16 evidence would assist the jury with “reconciling . . . competing narratives” and

17 “would have been helpful to the jury’s assessment of witness credibility[.]” Echoing

18 the prosecutor’s closing argument, the State also argues that “[h]ad [Defendant]

19 successfully persuaded the jury that his version of the events in question was the more

41
 1 accurate one, he could have collected potent ammunition for use in his litigation

2 against the City.” While the State’s broader arguments are unconvincing, we

3 generally agree with the State that the evidence was admissible for the purpose of

4 attacking Defendant’s credibility.

5 {68} In order to be admissible, evidence must be relevant. Rule 11-402 NMRA; see

6 State v. Christopher, 1980-NMSC-085, ¶ 12, 94 N.M. 648, 615 P.2d 263. “Evidence

7 is relevant if [(a)] it has any tendency to make a fact more or less probable than it

8 would be without the evidence, and [(b)] the fact is of consequence in determining

9 the action.” Rule 11-401 NMRA. “Any doubt whether the evidence is relevant should

10 be resolved in favor of admissibility.” State v. Balderama, 2004-NMSC-008, ¶ 23,

11 135 N.M. 329, 88 P.3d 845.

12 {69} “[W]hen a defendant testifies, he is subject, within the limits of certain rules,

13 to cross-examination the same as any other witness.” State v. Gutierrez, 2003-

14 NMCA-077, ¶ 13, 133 N.M. 797, 70 P.3d 797. The general rule is that the “[s]tate has

15 a right to inquire into and comment upon the credibility of the defendant as a

16 witness.” State v. Hoxsie, 1984-NMSC-027, ¶ 6, 101 N.M. 7, 677 P.2d 620, overruled

17 on other grounds by Gallegos v. Citizens Ins. Agency, 1989-NMSC-055, ¶ 28, 108

18 N.M. 722, 779 P.2d 99. Credibility is “[t]he quality that makes something (as a

42
 1 witness or some evidence) worthy of belief.” Black’s Law Dictionary 448 (10th ed.

2 2014).

3 {70} Bias is widely recognized as being one way to attack the credibility of a

4 witness. See 1 Kenneth S. Broun, McCormick on Evidence § 33 (7th ed. 2013). “Bias

5 is a term used in the ‘common law of evidence’ to describe the relationship between

6 a party and a witness which might lead the witness to slant, unconsciously or

7 otherwise, his testimony in favor of or against a party.” United States v. Abel, 469

8 U.S. 45, 52 (1984). A criminal defendant who testifies at trial is presumed to be

9 biased and to have an interest in the outcome of the case. See United States v.

10 Dickens, 775 F.2d 1056, 1059 (9th Cir. 1985) (explaining that, when a criminal

11 defendant testifies at trial, “the defendant’s bias in his own behalf [is] self-evident”).7

12 Bias may also be inferred from “a witness’[s] like, dislike, or fear of a party, or by the

13 witness’[s] self-interest.” Abel, 469 U.S. at 52 (emphasis added). “Proof of bias is

14 almost always relevant because the jury, as finder of fact and weigher of credibility,

15 has historically been entitled to assess all evidence which might bear on the accuracy

16 and truth of a witness’[s] testimony.” Id.; see also State v. Chambers, 1986-NMCA-

17 7
In this case, the prosecutor acknowledged a criminal defendant’s assumed bias
18 when she argued in closing that Defendant, “also, of course, doesn’t want to be
19 convicted. That’s a natural bias.”

43
 1 006, ¶ 15, 103 N.M. 784, 714 P.2d 588 (“Testimony concerning bias and credibility

2 is always relevant.”).

3 {71} Defendant, having chosen to testify, put his credibility in issue, making

4 evidence related to his credibility relevant. The State used the evidence of

5 Defendant’s pending lawsuit to undermine his credibility by inferring that he had

6 reason to be untruthful in his testimony based on what the State argued was his

7 interest in getting “a big paycheck.” Because Defendant testified to the events at the

8 Arid Club on February 25, 2012, and because Defendant’s testimony was relevant to

9 establishing whether it was more or less probable that he committed the crimes with

10 which he was charged, it was within the district court’s discretion to allow the State

11 to introduce evidence for the purpose of impeaching Defendant’s testimony. We

12 cannot say, as a matter of law, that the district court’s decision to admit the evidence

13 was “clearly untenable or not justified by reason.” Rojo, 1999-NMSC-001, ¶ 41

14 (internal quotation marks and citation omitted). We, therefore, hold that the district

15 court did not abuse its discretion in allowing limited testimony regarding Defendant’s

16 pending lawsuit as a way of attacking Defendant’s credibility.

17 {72} As a final matter, we note that Defendant also argues, for the first time on

18 appeal, that the evidence of his pending lawsuit should have been excluded under

19 Rule 11-403 NMRA, which provides that “[t]he court may exclude relevant evidence

44
 1 if its probative value is substantially outweighed by a danger of one or more of the

2 following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

3 wasting time, or needlessly presenting cumulative evidence.” Because Defendant

4 failed to timely object on this ground at trial, we will reverse on this basis only if we

5 are “convinced that admission of the testimony constituted an injustice that creates

6 grave doubts concerning the validity of the verdict.” State v. Barraza, 1990-NMCA-

7 026, ¶ 17, 110 N.M. 45, 791 P.2d 799; see State v. Lucero, 1993-NMSC-064, ¶¶ 12-

8 13, 116 N.M. 450, 863 P.2d 1071 (explaining that appellate courts review un-

9 preserved challenges to the admission of evidence for plain error—meaning error that

10 “affected substantial rights although the plain errors were not brought to the attention

11 of the judge” (alteration, internal quotation marks, and citation omitted)).

12 {73} Defendant argues that the evidence of his pending lawsuit was “highly

13 prejudicial” because it tended to paint him as a “litigious person and tried to

14 demonstrate to the jury that the only reason [Defendant] was fighting this case was

15 because of a vendetta held against other governmental agencies and so that he could

16 win a significant amount of money.” Given the other evidence in this case that the

17 jury could have relied on to convict Defendant—namely, the testimony of Detective

18 Downs and the physical evidence the State presented—we are not persuaded that the

19 admission of evidence of Defendant’s pending lawsuit, even if unfair, confusing, and

45
 1 distracting, “constituted an injustice that creates grave doubts concerning the validity

2 of the verdict.” Barraza, 1990-NMCA-026, ¶ 17.

3 {74} We hold that it was neither an abuse of discretion nor plain error for the trial

4 court to admit evidence of Defendant’s pending lawsuit.

5 V. The State Did Not Commit Prosecutorial Misconduct

6 {75} Defendant argues that it was prosecutorial misconduct, rising to the level of

7 fundamental error for the prosecutor to (1) repeatedly mention Defendant’s civil

8 lawsuit, and (2) fail to call as witnesses the police officers who obtained the search

9 warrant for Defendant’s car and arrested Defendant. We disagree. Defendant failed

10 to object at trial to conduct he now characterizes as prosecutorial misconduct;

11 therefore, we will review Defendant’s prosecutorial misconduct claims for

12 fundamental error only. See State v. Trujillo, 2002-NMSC-005, ¶ 52, 131 N.M. 709,

13 42 P.3d 814.

14 {76} “Prosecutorial misconduct rises to the level of fundamental error when it is so

15 egregious and had such a persuasive and prejudicial effect on the jury’s verdict that

16 the defendant was deprived of a fair trial.” State v. Allen, 2000-NMSC-002, ¶ 95, 128

17 N.M. 482, 994 P.2d 728 (internal quotation marks and citation omitted). “To find

18 fundamental error, we must be convinced that the prosecutor’s conduct created a

19 reasonable probability that the error was a significant factor in the jury’s deliberation

46
 1 in relation to the rest of the evidence before them.” State v. Sosa, 2009-NMSC-056,

2 ¶ 35, 147 N.M. 351, 223 P.3d 348 (internal quotation marks and citations omitted).

3 We will reverse a jury verdict only “(1) when guilt is so doubtful as to shock the

4 conscience, or (2) when there has been an error in the process implicating the

5 fundamental integrity of the judicial process.” Id. “However, an isolated, minor

6 impropriety ordinarily is not sufficient to warrant reversal, because a fair trial is not

7 necessarily a perfect one.” State v. Garvin, 2005-NMCA-107, ¶ 13, 138 N.M. 164,

8 117 P.3d 970 (alteration, internal quotation marks, and citation omitted).

9 A. The Prosecutor’s References to Defendant’s Pending Lawsuit Against the
10 City of Las Cruces Did Not Constitute Prosecutorial Misconduct

11 {77} In assessing whether prosecutorial misconduct has occurred based on

12 statements made by a prosecutor at trial, reviewing courts are to evaluate a

13 prosecutor’s challenged statements “objectively in the context of the prosecutor’s

14 broader argument and the trial as a whole.” Sosa, 2009-NMSC-056, ¶ 26. We start

15 from the long-accepted proposition that “[d]uring closing argument, both the

16 prosecution and defense are permitted wide latitude, and the trial court has wide

17 discretion in dealing with and controlling closing argument[.]” State v. Smith, 2001-

18 NMSC-004, ¶ 38, 130 N.M. 117, 19 P.3d 254 (internal quotation marks and citations

19 omitted). “[R]emarks by the prosecutor must be based upon the evidence or be in

20 response to the defendant’s argument.” Id. “It is misconduct for a prosecutor to make

47
 1 prejudicial statements not supported by evidence.” State v. Duffy, 1998-NMSC-014,

2 ¶ 56, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by State v. Tollardo,

3 2012-NMSC-008, 275 P.3d 110. However, “[s]tatements having their basis in the

4 evidence, together with reasonable inferences to be drawn therefrom, are permissible

5 and do not warrant reversal.” State v. Herrera, 1972-NMCA-068, ¶ 8, 84 N.M. 46,

6 499 P.2d 364 (internal quotation marks and citation omitted).

7 {78} Defendant argues that the prosecutor’s repeated references to Defendant’s

8 pending civil litigation constituted misconduct because the litigation “had no bearing

9 on the issues in this case[ and were] irrelevant and prejudicial.” Defendant ignores

10 the fact that the trial court overruled his relevancy-based objection to the introduction

11 of evidence of Defendant’s pending lawsuit. The prosecutor’s statements during

12 closing and rebuttal were based on facts she had elicited from Defendant on cross-

13 examination after standby counsel’s objection was overruled. In closing, the

14 prosecutor argued to the jury that Defendant “filed a lawsuit, thinks he’s going to

15 collect [eighty] million dollars.” The prosecutor also argued that the jury should infer

16 that Defendant “has a bias because now he thinks he’s going to get a big paycheck.”

17 During rebuttal, she commented, “[D]efendant is the one with bias. [D]efendant is the

18 one who thinks he’s going to collect an [eighty] million dollar[] paycheck from the

48
 1 City of Las Cruces.” Nothing in the prosecutor’s comments during closing or rebuttal

2 fell outside of already-admitted evidence or assumed facts not in evidence.

3 {79} Because the evidence referred to by the prosecutor had been

4 admitted—whether erroneously or not—the prosecutor was free to comment on it.

5 Compare State v. Santillanes, 1970-NMCA-003, ¶¶ 13-14, 81 N.M. 185, 464 P.2d

6 915 (explaining that the remarks of prosecutor during closing were not improper

7 because they were based on facts in evidence), with State v. Cummings, 1953-NMSC-

8 008, ¶ 8, 57 N.M. 36, 253 P.2d 321 (explaining that “a statement of facts entirely

9 outside of the evidence, and highly prejudicial to the accused, cannot be justified as

10 argument” (emphasis added)). We reject Defendant’s claim that his conviction was

11 tainted by prosecutorial misconduct.

12 B. The State Did Not Commit Prosecutorial Misconduct by Not Calling the
13 Officers Involved in Securing the Search Warrant and Arresting
14 Defendant

15 {80} Defendant argues that the prosecutor committed misconduct by failing to call

16 necessary witnesses, specifically the officer who signed the affidavit for the search

17 warrant for Defendant’s car and the officer who arrested Defendant, whom Defendant

18 argues he was entitled to cross examine. As this Court has explained, “[t]he decision

19 to call or not call a witness is a matter of trial tactics and strategy within the control

20 of counsel.” Maimona v. State, 1971-NMCA-002, ¶ 11, 82 N.M. 281, 480 P.2d 171.

49
 1 For the same reasons that our courts have long held that defense counsel’s failure to

2 call witnesses is an insufficient basis for finding ineffective assistance of counsel, see

3 id., we reject Defendant’s argument that the prosecutor’s decision not to call certain

4 witnesses constituted misconduct.

5 CONCLUSION

6 {81} We hold that there was insufficient evidence to support Defendant’s conviction

7 for resisting, evading, or obstructing an officer under Count 2 of the indictment. We

8 affirm Defendant’s conviction for felon in possession of a firearm, reverse his

9 conviction under Count 2, and remand for resentencing in accordance with this

10 opinion.

11 {82} IT IS SO ORDERED.

12 _________________________________
13 J. MILES HANISEE, Judge

14 WE CONCUR:

15 _________________________________
16 TIMOTHY L. GARCIA, Judge

17 _________________________________
18 M. MONICA ZAMORA, Judge

50