State v. Jimenez

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 14:12:17 2017.04.19
Certiorari Denied April 6, 2017, No. S-1-SC-36346

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-039

Filing Date: February 14, 2017

Docket No. 34,375

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

NOE JIMENEZ,

Defendant-Appellant.

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

Hector H. Balderas, Attorney General
Santa Fe, NM
Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM

for Appellee

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

for Appellant

OPINION

HANISEE, Judge.

{1} Defendant, a self-represented litigant who was assisted by standby counsel at trial,
was charged with and convicted of being a felon in possession of a firearm in violation of
NMSA 1978, Section 30-7-16 (2001), and resisting, evading, or obstructing an officer in
violation of NMSA 1978, Section 30-22-1(B) (1981). Defendant appeals both convictions

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and proffers myriad arguments to support reversal. He asserts: (1) his Sixth Amendment
right under the United States Constitution to confront witnesses was violated, (2) the State
failed to present sufficient evidence to sustain his convictions, (3) the district court
committed fundamental error when it failed to properly instruct the jury on the relevant law
for constructive possession, (4) the district court erred when it allowed the State to introduce
evidence of Defendant’s pending civil lawsuit against the City of Las Cruces, and (5) the
State committed prosecutorial misconduct. We affirm in part, reverse in part, and remand
for resentencing in accordance with this opinion.

BACKGROUND

{2} On February 25, 2012, Defendant went to the Arid Club in Las Cruces, New Mexico.
The Arid Club is a place where Alcoholics Anonymous and Narcotics Anonymous meetings
are held. Defendant was a member of the Arid Club and went to the club that day because
he was having a bad day and wanted to talk to someone. Defendant donned a black bandana,
a black shirt, Army pants, biker boots, and a bulletproof vest which was worn underneath
his shirt. According to Defendant, this was his normal attire except for the bulletproof vest,
which he wore that day because he felt his life was in danger. Defendant was also carrying
nunchucks.

{3} Only three people were at the Arid Club when Defendant arrived. One was Brandon
Chandler, a volunteer at the club who was running the snack bar that day. Another was
someone who identified himself to police as Chandler’s case manager. The third person was
never identified in the record. At some point after Defendant had entered the Arid Club, the
Las Cruces Police Department responded to a call at the club. It is unclear exactly who
called the police, what was reported, and to what kind of incident police believed they were
responding.

{4} Wallace Downs, a detective with the Las Cruces Police Department at the time of the
incident, testified at trial that he went to the Arid Club in response to a call from another
officer, Sergeant Ronnie Navarrete, who had been “flagged down” at the club. After briefly
speaking with Sergeant Navarrete, who did not testify at trial, Detective Downs began
interviewing people at the scene to try to determine if there were any witnesses who could
describe what was going on inside the club. Detective Downs spoke with the person who
identified himself as Chandler’s case manager. The case manager said he had a phone
number for Chandler, with whom Detective Downs was then able to make telephonic
contact.

{5} According to Detective Downs, Chandler “was talking very low as if he were scared
or concerned.” There was conflicting testimony regarding whether Chandler was being held
against his will inside the Arid Club, but Detective Downs testified that Chandler told him
that there was a person inside with a gun and that he did not think he could leave. Defendant
testified that Chandler was free to leave at any time. Everyone agreed that once Chandler
gave Defendant the phone and Detective Downs asked Defendant to let Chandler leave the

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club, Chandler walked out within minutes.1

{6} Detective Downs spent approximately one hour on the phone with Defendant, first
building a rapport with him and then asking that Defendant surrender to police. Defendant
stated that he was armed with a gun, did not want to “go on . . . living,” and wanted to have
the police shoot him. Detective Downs requested at least three to five times that Defendant
put down his weapon and come out with his hands up to surrender to police. Detective
Downs recalled that Defendant agreed to surrender a couple of times but never did.
Eventually, the call ended because the battery in the phone Defendant was using died.

{7} Soon after, a tactical team that had assembled on scene, consisting of SWAT officers
and a K-9 unit, entered the Arid Club and apprehended Defendant. According to Joshua
Savage, an officer assigned to the Las Cruces Police Department’s K-9 unit, Defendant did
not immediately surrender, and application of force was necessary to bring him into custody.

{8} Following Defendant’s arrest, police searched the Arid Club and obtained a search
warrant for the car that Defendant drove there. Inside the club, police recovered a gun that
contained six bullets, two of which were live rounds, and a bullet on the floor. Another forty-
five rounds of ammunition were located in a bag found inside the vehicle driven by
Defendant.

{9} Defendant appeals both counts of conviction. Additional facts are provided as
necessary to our discussion.

DISCUSSION

{10} First we take up the ammunition’s admissibility, which hinges on Defendant’s
Confrontation Clause argument, then discuss whether there was sufficient evidence to
support Defendant’s convictions. Next, we address whether the district court erred in
instructing the jury and allowing evidence of Defendant’s pending lawsuit against the City
of Las Cruces before turning to Defendant’s claim of prosecutorial misconduct.

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

{11} Defendant argues that his Sixth Amendment right to be confronted with the witnesses
against him was violated when the State presented physical evidence seized from his car

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

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without calling certain witnesses. The central thrust of Defendant’s argument on appeal is
that he had the right to confront officers that searched his car and the officer that arrested
him. Absent such opportunity, Defendant contends, the district court erred by denying his
motion to suppress evidence, including the ammunition recovered from his car. Defendant
also makes a perfunctory argument that his right of confrontation was violated because the
officer who prepared the search warrant for his car was not present at trial. Defendant
misunderstands the scope of the Confrontation Clause, and we take this opportunity to
address evidence and testimony to which it does not apply.

{12} The Sixth Amendment’s Confrontation Clause entitles a criminal defendant to “be
confronted with the witnesses against him[.]” U.S. Const. amend. VI. Challenges under the
Confrontation Clause must be resolved as a matter of law, which we review de novo. See
State v. Huettl, 2013-NMCA-038, ¶ 16, 305 P.3d 956. The Confrontation Clause “prohibits
the introduction of testimonial hearsay unless the accused has had the opportunity to cross-
examine the declarant.” State v. Carmona, 2016-NMCA-050, ¶ 15, 371 P.3d 1056 (citing
Crawford v. Washington, 541 U.S. 36, 54 (2004)). It “applies to witnesses against the
accused who provide testimony for the purpose of establishing or proving some fact.” Huettl,
2013-NMCA-038, ¶ 16. “[A] person is a witness for Confrontation Clause purposes when
that person’s statements go to an issue of guilt or innocence.” State v. Aragon, 2010-NMSC-
008, ¶ 8, 147 N.M. 474, 225 P.3d 1280, overruled on other grounds by State v. Tollardo,
2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. “Testimonial statements” include those that
convey information about evidence that was gathered after an “emergency has been resolved
and the police have turned their attention to collecting evidence for use in a criminal
prosecution against a known criminal perpetrator.” Carmona, 2016-NMCA-050, ¶¶ 17, 19.
“[B]asis evidence,” which includes out-of-court-statements that form the basis for a
testifying witness’s conclusion, whether expert or lay, is testimonial and “therefore must be
subjected to Confrontation Clause scrutiny.” Id. ¶ 37; see also State v. Navarette, 2013-
NMSC-003, ¶¶ 13-14, 294 P.3d 435 (discussing Williams v. Illinois, ___ U.S. ___, 132 S.
Ct. 2221 (2012)). However, where a witness testifies from personal knowledge and neither
makes a statement nor draws a conclusion that is based on hearsay, the Confrontation Clause
is not implicated at all. See Crawford, 541 U.S. at 51-52 (holding that the Confrontation
Clause is intended to bar the admission of testimonial hearsay); United States v. Ibarra-Diaz,
805 F.3d 908, 919-20 (10th Cir. 2015) (explaining that testimony that communicates no
hearsay “is generally of no concern to the Confrontation Clause”).

{13} We apply these principles to Defendant’s argument that the district court erred by
admitting evidence seized from Defendant’s car when Defendant did not have the
opportunity to confront particular officers involved in the seizure and his arrest.2 Atypically

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We cannot help but observe that Defendant’s own missteps in preparing for trial are
what actually deprived him of an opportunity to confront the officers he wished to question.
On the morning of trial, Defendant told the trial judge that he had attempted to subpoena
certain officers whom he wished to call as witnesses. But Defendant—acting pro se with

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given our consideration of the merits of the issue on appeal, Defendant did not
contemporaneously object to the admission of either State’s Exhibit 34, the forty-five rounds
of bullets, or State’s Exhibit 35, the black bag in which the ammunition was found. Rather,
after the evidence had been admitted and after the State rested, standby counsel moved to
suppress Exhibits 34 and 35, arguing that the State had failed to lay the proper foundation
for their discovery and seizure. Standby counsel also argued that the State had failed to
present evidence regarding the evidence’s chain of custody. The district court denied
Defendant’s motion to suppress, which it considered a right-of-confrontation challenge.3 The
district court relied on State v. Lopez, 2013-NMSC-047, ¶ 26, 314 P.3d 236 (holding that the
Sixth Amendment right of confrontation does not apply in pretrial hearings) to reach its
decision. While we believe the district court’s reliance on Lopez was misplaced, as we
explain below, we agree with the conclusion reached and affirm on other grounds. See State
v. Ruiz, 2007-NMCA-014, ¶ 38, 141 N.M. 53, 150 P.3d 1003 (explaining that as a general
rule, we will uphold the decision of a district court if it is right for any reason).

{14} On appeal, Defendant asserts, without providing support from the record, that the
testifying officers “would have had to rely on the out-of-court testimonial hearsay statements
of the officer who signed the affidavit and conducted the search and the officer who arrested
[Defendant].” Defendant thus appears to argue that the testifying officers offered improper,
testimonial “basis evidence” regarding the origin of the ammunition. We disagree.

{15} In Carmona, this Court held that an expert’s testimony stating that the defendant’s
DNA was found on swabs taken from the victim was inadmissible because it violated the
Confrontation Clause. 2016-NMCA-050, ¶ 37. In that case, the state argued that its expert
relied on the swabs themselves, not on the unavailable Sexual Assault Nurse Examiner’s
hearsay statement that the swabs were taken from the victim, to reach her conclusion. We

standby counsel—had failed to do so properly. We also note that Defendant was fully
warned about the challenges of representing himself but chose to proceed pro se anyway. See
Newsome v. Farer, 1985-NMSC-096, ¶ 18, 103 N.M. 415, 708 P.2d 327 (explaining that “a
pro se litigant, having chosen to represent himself, is held to the same standard of conduct
and compliance with court rules, procedures, and orders as are members of the bar”
(emphasis omitted)).
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Given the absence of timely objection by Defendant to the admission of the
complained-of evidence and Defendant’s failure to directly evoke the Confrontation Clause
as the basis for his motion to suppress, we could conclude that this issue simply was not
preserved, in which case we would review for fundamental error only. See State v. Dietrich,
2009-NMCA-031, ¶ 51, 145 N.M. 733, 204 P.3d 748 (providing that preserved Crawford
Confrontation issues are analyzed under a harmless error standard, while un-preserved
Crawford issues are reviewed for fundamental error only). However, because Defendant is
pro se and the question presented is of constitutional magnitude, we exercise our prerogative
to directly address the issue presented.

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rejected the state’s argument, reasoning that the swabs, and particularly the information
accompanying them, were utilized to establish or prove facts that “reflect[ed] directly on [the
d]efendant’s guilt or innocence[,]” id. ¶ 38 (internal quotation marks, and citation omitted),
thus making statements regarding the circumstances of their use testimonial. Because the
expert had based her opinion on an unavailable witness’s testimonial hearsay (i.e., that the
swabs were taken from the victim and from specific locations on her body), we concluded
that the defendant’s right of confrontation was violated when he was deprived of an
opportunity to cross-examine the person who collected the evidence. Id. ¶ 42.

{16} The pertinent testimony in this case is distinguishable from Carmona. Stella Carbajal,
the evidence custodian and crime scene technician with the Las Cruces Police Department
who was called to the incident at the Arid Club, was the only witness who testified regarding
acquisition of the complained-of evidence. Although not one of the sworn police officers
involved in the search, Ms. Carbajal’s testimony was eventful: she personally collected
evidence from Defendant’s vehicle, including State’s Exhibits 34 and 35. She likewise
testified regarding the procedures used to ensure the evidentiary chain of custody and
verified that State’s Exhibits 34 and 35 were in the same condition as when she collected the
evidence.

{17} Unlike in Carmona, where the defendant was denied the opportunity to cross-
examine the person who collected and documented the DNA swabs from the victim, here,
Defendant had, and indeed exercised, the opportunity to confront Ms. Carbajal regarding her
collection and handling of the evidence in question. Defendant asked about how and where
Ms. Carbajal photographed the black AARP bag that contained the forty-five bullets. He
asked whether she moved that evidence. Ms. Carbajal verified for Defendant that the bag
containing the ammunition was in the car when the search began and that the 45 bullets were
found there. Our review of Ms. Carbajal’s testimony reveals that she offered no testimonial
hearsay regarding the origin or seizure of the ammunition or any other item of evidence from
Defendant’s car.

{18} What Defendant really seems to challenge on appeal is the fact that he did not have
an opportunity to confront the additional officers who “conducted the search” of his car in
order to explore a speculative theory that the bullets were planted in his car. Insofar as
Defendant complains that the chain of custody for admitting the evidence is deficient, which
is how he presented his argument to the district court, we reject this argument. “The
admission of real or demonstrative evidence does not require the [s]tate to establish the chain
of custody in sufficient detail to exclude all possibility of tampering.” State v. Rodriguez,
2009-NMCA-090, ¶ 24, 146 N.M. 824, 215 P.3d 762. “Admission of evidence is within the
district court’s discretion and there is no abuse of discretion when the evidence is shown by
a preponderance of the evidence to be what it purports to be.” Id. Defendant concedes that
Ms. Carbajal “was present and took pictures” of the evidence found in his car but infers that
her testimony fails because she “is not a law enforcement officer[,]” a legal proposition for
which he fails to provide authority or support. Defendant’s claim that “[t]he trial court
admitted evidence seized by officers not present at trial and therefore violated [Defendant’s]

6
right to confrontation” ignores the fact that Ms. Carbajal, while not a sworn officer but rather
the evidence technician that actually seized the evidence from Defendant’s car, was qualified
as a fact witness to testify regarding the origin of the evidence. We cannot say that the
district court abused its discretion in admitting the bullets and the bag, which contained
them, into evidence given that Ms. Carbajal testified and was subjected to cross examination
regarding the evidence she collected.

{19} With respect to the State’s other witnesses, Defendant argues that “[t]he two officers
who testified at trial did not witness the search and could not have possibly known that the
bullets were seized from [Defendant’s] car.” But Defendant fails to demonstrate that either
officer made any statement regarding the ammunition specifically found in Defendant’s car.
Our review of the record leads us to conclude that Defendant points to no specific examples
of testimonial hearsay statements about the complained-of evidence because none exist.

{20} Officer Savage, the K-9 officer who was involved in the actual apprehension of
Defendant, did not testify at all regarding the ammunition found in Defendant’s car. And
while Detective Downs testified that he assisted with the post-arrest search and in securing
evidence, and saw the ammunition that was found in the case,4 he did not testify that the
ammunition was seized from Defendant’s car, suggest that he had personal knowledge of
that fact, or rely on testimonial hearsay regarding that fact. See Crawford, 541 U.S. at 51-52
(holding that the Confrontation Clause is intended to bar the admission of testimonial
hearsay); Ibarra-Diaz, 805 F.3d at 919-20 (explaining that testimony that communicates no
hearsay “is generally of no concern to the Confrontation Clause”).

{21} We conclude that Defendant’s Sixth Amendment right to confront the witnesses
against him was not violated because no witness’s testimony included testimonial hearsay.
The district court did not err by denying Defendant’s motion to suppress State’s Exhibits 34
and 35.

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

{22} Defendant argues that the State failed to present sufficient evidence to sustain his
convictions for resisting, evading, or obstructing an officer and for being a felon in
possession of a firearm. We agree that there was insufficient evidence to convict Defendant
of fleeing, evading, or attempting to evade a peace officer, but we disagree with respect to
the felon-in-possession of a firearm charge.

A. Standard of Review

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

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{23} “To determine whether the evidence presented was sufficient to sustain the verdict,
we must decide whether substantial evidence of either a direct or circumstantial nature exists
to support a verdict of guilty beyond a reasonable doubt with respect to every element
essential to a conviction.” State v. Brietag, 1989-NMCA-019, ¶ 9, 108 N.M. 368, 772 P.2d
898. We “view the evidence in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.”
State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “We do not
reweigh the evidence and may not substitute our judgment for that of the fact finder, so long
as there is sufficient evidence to support the verdict.” Brietag, 1989-NMCA-019, ¶ 9.
“Contrary evidence supporting acquittal does not provide a basis for reversal because the
jury is free to reject [the d]efendant’s version of the facts.” State v. Rojo, 1999-NMSC-001,
¶ 19, 126 N.M. 438, 971 P.2d 829.

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

{24} For reasons that are not clear, the State elected to charge, and the grand jury indicted,
Defendant under Subsection (B) of Section 30-22-1. Subsection (B) defines “[r]esisting,
evading[,] or obstructing an officer” as consisting of “intentionally fleeing, attempting to
evade[,] or evading an officer of this state when the person committing the act of fleeing,
attempting to evade[,] or evasion has knowledge that the officer is attempting to apprehend
or arrest him[.]” Section 30-22-1(B). The State opted not to charge Defendant under
Subsection (D), which defines the prohibited conduct as consisting of “resisting or abusing
any judge, magistrate[,] or peace officer in the lawful discharge of his duties.” Section 30-
22-1(D). As we explain below, our reading of Section 30-22-1 as a whole leads us to
conclude that the State lacked sufficient evidence to convict Defendant under Subsection
(B).

{25} Our Legislature chose to differentiate the manner by which a defendant can violate
Section 30-22-1 by employing language indicative of action, related to flight from arrest, and
separate language that involves immediate interaction between a subject and an arresting
officer when the subject is non-compliant with being arrested. Compare § 30-22-1(B), with
§ 30-22-1(D). Regarding the language chosen by the Legislature, rules of statutory
construction require that we “construe the entire statute as a whole so that all the provisions
will be considered in relation to one another.” Am. Fed’n of State, Cnty. & Mun. Emps.
(AFSCME) v. City of Albuquerque, 2013-NMCA-063, ¶ 5, 304 P.3d 443 (internal quotation
marks and citation omitted). Furthermore, we construe statutes “so that no part of the statute
is rendered surplusage or superfluous[.]” Id. (internal quotation marks and citation omitted).
Therefore, the Legislature’s use of the term “evading” in the title and body of the statute, as
well as its inclusion of a provision that makes “intentionally fleeing, attempting to evade[,]
or evading an officer” a distinguishable crime under Section 30-22-1(B), is significant and,
we must assume, not mere surplusage.

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

8
evading[,] or obstructing an officer as set forth in Section 30-22-1, contains several
alternative means by which the offense may be committed.” State v. Hamilton, 1988-
NMCA-023, ¶ 14, 107 N.M. 186, 754 P.2d 857. “A defendant’s act of fleeing, attempting
to evade[,] or evading an officer constitutes one of the alternative methods of committing the
offense proscribed under Section 30-22-1.” Id.; see § 30-22-1(B). Another distinct way of
violating the statute is by “resisting or abusing” an officer. Section 30-22-1(D).

{27} There is nothing to prevent the State from charging a defendant under multiple
subsections if it is not clear which charge the evidence will ultimately support. See
Benavidez v. Shutiva, 2015-NMCA-065, ¶ 24, 350 P.3d 1234 (illustrating that it is possible
to charge both fleeing and resisting in violation of Section 30-22-1); State v. Padilla, 2006-
NMCA-107, ¶ 25, 140 N.M. 333, 142 P.3d 921 (explaining that the resisting/evading
instruction that the jury received allowed the jury to convict under either “fled, attempted
to evade[,] or evaded” or the “resisted or abused” alternative), rev’d on other grounds by
2008-NMSC-006, 143 N.M. 310, 176 P.3d 299. “[T]he prosecutor is free to select the statute
and the charges to be brought against [a d]efendant.” State v. Archie, 1997-NMCA-058, ¶
11, 123 N.M. 503, 943 P.2d 537. However, where a statute provides distinct and alternative
offenses and the state chooses to charge under only a particular part of the statute, “the
prosecution is limited to proving what it has charged.” State v. Leal, 1986-NMCA-075, ¶ 14,
104 N.M. 506, 723 P.2d 977. Additionally, in order to convict, the state must present
sufficient evidence of “guilt beyond a reasonable doubt with respect to every element
essential to a conviction.” State v. Carter, 1979-NMCA-117, ¶ 6, 93 N.M. 500, 601 P.2d 733
(emphasis added).

{28} Our uniform jury instructions reinforce the structure of Section 30-22-1 and our
conclusion that a violation of one subsection cannot necessarily establish a violation of
another. UJI 14-2215 NMRA contains four elements that the State must prove in order to
establish violation of Section 30-22-1. Three of the elements are common to all cases,
regardless of which of the “alternative methods” the state alleges a defendant used to violate
the statute. The State must prove the first, second, and fourth elements contained in UJI 14-
2215 in every case. See UJI 14-2215 (“[T]he state must prove . . . each of the following
elements of the crime[.]”). Those common elements are that (1) the person being resisted,
evaded, or obstructed was a peace officer, judge, or magistrate in the lawful discharge of
duty; (2) the defendant knew that the person was a peace office, judge, or magistrate; and
(3) the incident in question happened in New Mexico on or about a particular date. Id.

{29} Also under UJI 14-2215, one of four alternative actions must be proven to satisfy the
third element of the offense. See UJI 14-2215, Use Note 3 (“Use only the applicable
alternative.”). See Benavidez, 2015-NMCA-065, ¶ 24 (confirming that a defendant can be
charged under multiple subsections of the statute; in such a case, multiple applicable
alternatives for the third element of UJI 14-2215 would be given, as appropriate). The four
alternatives for the third element correspond to the four subsections of Section 30-22-1.
Thus, when the state charges a defendant under Subsection (B) of Section 30-22-1, it would
have to prove the second alternative—that “[t]he defendant . . . fled, attempted to evade[,]

9
or evaded (name of officer)”; whereas when the state charges under Subsection (D), it must
prove the fourth alternative—that “[t]he defendant resisted or abused (name of officer)[.]”
UJI 14-2215.

{30} In this case, the district court instructed the jury on the essential elements of
“resisting, evading, or obstructing an officer” in the following manner:

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

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

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

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

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

(Emphasis added.) This instruction was consistent with the way Defendant was charged in
the grand jury indictment, and the third element was the appropriate alternative to give in
light of Defendant being specifically charged under Subsection (B) of the statute. See Leal,
1986-NMCA-075, ¶ 15 (“A defendant may not be convicted of a crime for which he was not
charged or tried.”). The question is whether the State presented evidence to prove the third
essential element: that Defendant “fled, attempted to evade[,] or evaded” Detective Downs
or Officer Savage before they were able to arrest him.

{31} Defendant argues that the ordinary meaning of “evade” is “to stay away from
someone or something or to slip away.” The State urges us to define “evade” as “to avoid
doing (something required).” Because the term “evade” is susceptible of multiple meanings,
as evidenced by the parties’ competing definitions that they urge us to adopt, we turn to rules
of statutory construction to determine how the Legislature intended to define “evade” in
Section 30-22-1. See Russell Motor Car Co. v. United States, 261 U.S. 514, 519 (1923)
(explaining that rules of statutory construction “have no place . . . except in the domain of
ambiguity”).

{32} A “plain meaning” analysis is not appropriate here because of the facial ambiguity
of the term “evade.” See Padilla, 2008-NMSC-006, ¶ 7 (“If the language of the statute is

10
doubtful[ or] ambiguous . . . the court should reject the plain meaning rule in favor of
construing the statute according to its obvious spirit or reason.” (internal quotation marks
and citation omitted)). Therefore, we start by applying the interpretive maxim of noscitur
a sociis, which expresses the notion that “a word may be known by the company it keeps.”
Russell Motor Car Co., 261 U.S. at 519.

{33} “The maxim noscitur a sociis applies and confines the word to a meaning kindred
to that of the words with which it is associated.” City of Albuquerque v. Middle Rio Grande
Conservancy Dist., 1941-NMSC-021, ¶ 33, 45 N.M. 313, 115 P.2d 66 (Salder, J.,
dissenting). This canon of statutory construction instructs that, when interpreting an unclear
or ambiguous term within a statute, we “look[] to the neighboring words in a statute to
construe the contextual meaning of a particular word in the statute.” In re Gabriel M., 2002-
NMCA-047, ¶ 19, 132 N.M. 124, 45 P.3d 64; see United States v. Williams, 553 U.S. 285,
294 (2008) (explaining that words that are “susceptible of multiple and wide-ranging
meanings” can be “narrowed by the commonsense canon of noscitur a sociis—which
counsels that a word is given more precise content by the neighboring words with which it
is associated”).

{34} In this case, Subsection (B) of Section 30-22-1 associates “attempting to evade or
evading” with “fleeing.” We think the fact that these terms are collocated within the same
subsection evinces the Legislature’s intent to liken an act of evasion or attempted evasion
to fleeing. “Flee” as a transitive verb, as it is used in Section 30-22-1, is commonly defined
as “to run away from.” Merriam-Webster Dictionary, http://www.merriam-
webster.com/dictionary/flee (last visited on Dec. 9, 2016). Reading “evade” and “flee” as
kindred terms leads us to conclude that the Legislature intended that “evade” be understood
by the common definition that most closely connects “evade” to “flee.” We believe the
correct way to define the term “evade” as used in Section 30-22-1 is as meaning “to elude
by dexterity or stratagem” or, more simply, “to be elusive to[.]” Merriam-Webster
Dictionary, http://www.merriam-webster.com/dictionary/evade (last visited on Dec. 9,
2016). This definition of “evade” most closely parallels our understanding of the term “flee”
as meaning “to run away from” because it shares the common characteristic of connoting the
stealing away of oneself by affirmative, intentional conduct.

{35} In order, however, to not render “evade” mere surplusage, we note that these terms,
while associated, are not identical or synonymous. What distinguishes them is the nature of
the conduct and how evasion is achieved: “flee” being conduct that is open and obvious, and
“evade” including conduct that is surreptitious. See State v. Gutierrez, 2005-NMCA-093, ¶
20, 138 N.M. 147, 117 P.3d 953 (evaluating circumstances where an officer asked the
defendant to stop, the defendant ignored the officer, went inside a house claiming that he
needed to use the bathroom, walked out the back door of the house, then jumped over a
backyard fence), aff’d in part, rev’d in part on other grounds by 2007-NMSC-033, 142 N.M.
1, 162 P.3d 156. In Gutierrez, we described a charge under Section 30-22-1(B) as being
“evading and eluding.” 2005-NMCA-093, ¶ 20. While the statute does not use the term
“elude,” Gutierrez’s interpretation of the term “evade” to also mean “elude” is an

11
interpretation that too is consistent with flight.

{36} We cannot say the same about equating “evade” with “avoid.” While we
acknowledge that the State correctly points to one definition of “evade” as being “to avoid
doing (something required)”, see Merriam-Webster Dictionary, http://www.merriam-
webster.com/dictionary/evade (last visited on Dec. 9, 2016), we conclude that this is not the
definition that the Legislature intended to be used in the context of Section 30-22-1(B).
While one who “evades” or “eludes” is necessarily also avoiding, the inverse is not true. One
can avoid (doing something required) without necessarily evading or eluding. The
Legislature made “evade” the “linguistic neighbor,” Bullock v. BankChampaign, N.A., ___
U.S. ___, ___, 133 S. Ct. 1754, 1760 (2013), of “flee” in subsection (B), which means we
are to give “evade” the meaning that most closely and logically associates it with its
neighbor, “flee.”

{37} This interpretation is consistent with our cases that construe Subsection (B). What
all of our Subsection (B) cases have in common is that the defendant’s conduct that
supported conviction under Subsection (B) involved an affirmative physical act to move
and/or stay away from an officer in order to avoid capture altogether (i.e., fleeing or
evading), rather than the mere forestallment of being arrested (i.e., resisting or refusing to
comply with commands to surrender). See, e.g., State v. Akers, 2010-NMCA-103, ¶¶ 1, 9-10,
149 N.M. 53, 243 P.3d 757 (describing a situation where the defendant, after briefly stopping
his truck for officers who were attempting an investigatory stop, sped away and was later
charged under Subsection (B)); Gutierrez, 2005-NMCA-093, ¶ 20, (describing
circumstances where an officer asked the defendant to stop, the defendant ignored the
officer, went inside a house claiming that he needed to use the bathroom, walked out the
back door of the house, then jumped over a backyard fence); State v. Diaz, 1995-NMCA-
137, ¶ 17, 121 N.M. 28, 908 P.2d 258 (explaining that “evidence that [the d]efendant was
backing away from the officers . . . would have supported a finding that [the d]efendant was
. . . attempting to evade arrest in violation of Section 30-22-1(B)”); State v. Andazola, 1981-
NMCA-002, ¶¶ 3-5, 95 N.M. 430, 622 P.2d 1050 (evaluating facts where the defendant
walked away from the police, went into his house, and used his dog to keep police at bay).
We believe these cases make clear that, in order to violate Section 30-22-1(B), a defendant
must engage in conduct that is tantamount to fleeing, which, as the language of Subsection
(B) suggests, can be accomplished either openly (e.g., by running or driving away from an
officer, or “fleeing”), or surreptitiously (i.e., by “evading” or “attempting to evade”).

{38} By contrast, our cases that deal with Subsection (D)—“resisting or abusing”—make
it clear that violations of Subsection (D) differ from Subsection (B) violations in that a
defendant’s violation is predicated on a direct engagement with, rather than evasion of an
officer. See State v. Cotton, 2011-NMCA-096, ¶ 23, 150 N.M. 583, 263 P.3d 925 (describing
the defendant’s conduct that resulted in his being charged under Subsection (D) as kicking
at officers who were trying to place him in police car and positioning his legs and head to
prevent the door from being closed); Diaz, 1995-NMCA-137, ¶ 14 (explaining that
“[a]nyone who commits aggravated assault [on a police officer] . . . also commits resisting

12
in violation of [Section] 30-22-1(D)”); State v. Padilla, 1983-NMCA-096, ¶¶ 2, 9, 10, 101
N.M. 78, 68 P.2d 706 (holding that resisting an officer, such as by kicking the officer in the
groin, is a lesser included offense of battery on a police officer).

{39} Our cases illustrate that another way a person can violate Subsection (D) is by
avoiding doing something required, including refusing to comply with an officer’s orders.
See, e.g., Diaz, 1995-NMCA-137, ¶¶ 4, 16-23 (providing that “resisting” refers not only to
a defendant’s overt physical act, but also to the failure to act when refusing to obey lawful
police commands, such as dropping a weapon); see also City of Roswell v. Smith, 2006-
NMCA-040, ¶ 5, 139 N.M. 381, 133 P.3d 271 (affirming the defendant’s conviction under
Roswell’s “obstructing an officer” ordinance, Roswell, N.M., Code of Ordinances ch. 10,
art. 1, § 10-48 (1999), which is equivalent to Section 30-22-1(A), (D), based on the
defendant’s refusal to leave a fast-food restaurant parking lot after being ordered to do so by
an officer).5 While it is true that one (and the State’s preferred) definition of “evade” is “to
avoid doing (something required),” these cases illustrate that our courts interpret a refusal
to do something required as constituting “resisting” not “evading” an officer, which violates
Subsection (D), not (B).

{40} In sum, understood temporally and geospatially, violations of Subsection (B) and
Subsection (D) are distinguishable based on at what point in an encounter a defendant first
begins to exhibit resistant conduct. A defendant who is not yet physically capable of being
apprehended and who attempts to avoid apprehension by trying to evacuate himself from the
presence of an officer is more likely to be in violation of Subsection (B). By contrast, a
defendant who is effectively “cornered,” i.e., whose apprehension is imminent, but who,
nonetheless, chooses to challenge or forestall his arrest—either by physical battery, refusing
to comply with orders, or verbally—violates Subsection (D).

{41} We turn, now, to the evidence in this case regarding Defendant’s conviction under
Count 2. The State relies exclusively on evidence related to the telephonic interaction
between Defendant and Detective Downs to establish a violation of Section 30-22-1(B).
Specifically, the State argues that Defendant’s “refus[al] to comply” with Detective Downs’
orders to surrender constituted evasion of Detective Downs. We disagree.

{42} Defendant’s entire interaction with Detective Downs occurred via telephone and
lasted somewhere between five and ten minutes, according to Defendant, and one hour,
according to Detective Downs. Detective Downs testified that the reason his call with
Defendant ended was that the battery in Defendant’s phone died. Detective Downs further
testified that, during the course of the call, Defendant agreed on perhaps two or three

5
The State’s reliance on Smith is perplexing and unavailing. The section of the
Roswell Code under which the defendant was convicted, Section 10-48, parallels Section 30-
22-1(D). The Roswell Code contains a separate section—Section 10-49—that criminalizes
“eluding an officer” and contains, verbatim, the language of Section 30-22-1(B).

13
occasions to surrender to police. Although Defendant ultimately did not willingly surrender
to police, we believe the fact that Defendant repeatedly agreed to surrender, coupled with
his continued presence in the club, is evidence that he lacked the requisite intent to “flee,
attempt to evade, or evade” Detective Downs under Subsection (B). While refusing to
comply with Detective Downs’ orders to surrender may have constituted “resisting” under
our case law, see Diaz, 1995-NMCA-137, ¶¶ 4, 16-23, in this case we do not believe that this
conduct alone was sufficient to convict Defendant as charged. And we reiterate that there
was no evidence presented to suggest that Defendant surreptitiously tried to escape from the
Arid Club, such as out the back or side door, in order to evade arrest. We conclude that there
was insufficient evidence to convict Defendant of fleeing, evading, or attempting to evade
Detective Downs.

{43} While the State acknowledges that the jury instructions allowed the jury to convict
Defendant of Count 2 based on either his interaction with Detective Downs or Officer
Savage, the State, in its briefing, points to no evidence related to Defendant’s interactions
with Officer Savage that would support conviction under Section 30-22-1(B). Our review
of the record likewise indicates that the prosecutor, in her closing argument, focused on the
fact that Detective Downs and Officer Savage “issued commands to [D]efendant” and that
Defendant “didn’t comply” to support a conviction under Count 2. Even viewed in the light
most favorable to sustaining the jury’s verdict, we are unable to identify facts that support
a conviction for fleeing, evading, or attempting to evade Officer Savage.

{44} The record reflects that Officer Savage, a member of the Las Cruces Police
Department’s K-9 unit, entered the Arid Club after the SWAT team made contact with
Defendant. Along with other officers, Officer Savage commanded Defendant to surrender.
He directed Defendant also to put down the nunchucks, and Defendant complied. Defendant
was then given conflicting orders, including to “get on the floor,” on the one hand, and to
“[co]me to us[,]” on the other hand. Defendant did not comply with either command. Officer
Savage testified that “[e]ventually, very quickly a plan was put together for use of force. A
bean bag shotgun along with the K-9 was going to be used to take the subject into custody.”
Defendant was first “engaged with several bean bag rounds in the legs” which were
ineffective. Officer Savage’s K-9 was then given an “apprehension command.” After that,
Defendant picked up a chair and threw it in the direction of the dog. The K-9 then “went in
for an engagement[.]” Defendant was “kicking and striking at the dog as the SWAT team
made entry and moved towards [Defendant].” In the process of Defendant being taken into
custody, Officer Savage’s dog bit Defendant and Defendant was tasered. All of this
transpired in approximately five to eight minutes.

{45} Based on these facts, there is insufficient evidence to support a finding that
Defendant “fled, attempted to evade, or evaded” Officer Savage. Defendant’s actions more
closely resemble conduct that we have previously stated constitutes “resisting” an officer in
violation of Subsection (D). The act of throwing a chair, kicking, and striking at Officer
Savage’s K-9—an act of direct physical confrontation and engagement—is more similar to
kicking at an officer while resisting being put in a police car like in Cotton. See 2011-

14
NMCA-096, ¶ 23. Additionally, quite the opposite of fleeing the officers (and the K-9),
Defendant stayed exactly where he was and made no attempt to leave. With respect to
refusing to comply with Officer Savage’s commands that he surrender, again we have held
that refusing to comply with an officer’s order violates Section 30-22-1(D), resisting an
officer. See, e.g., Diaz, 1995-NMCA-137, ¶¶ 4, 16-23. We do not believe that Defendant’s
failure to follow Officer Savage’s orders—particularly when Officer Savage conceded that
Defendant was being given conflicting commands—constituted evasion or attempted evasion
of Officer Savage.

{46} It matters not whether Defendant was “resisting” because he “feared for [his] life”
and was defending himself as he claims, or because he was confused by the conflicting
commands, or because he simply did not want to surrender. The burden was on the State to
prove that Defendant “fled, attempted to evade, or evaded” Officer Savage. The State failed
to carry its burden, and for that reason we reverse Defendant’s conviction under Count 2 and
remand for resentencing.

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

{47} Because Defendant stipulated to being a convicted felon, the critical element that the
State was required to prove in order for the jury to convict Defendant of violating Section
30-7-16(A) was that Defendant “possessed a firearm” on or about February 25, 2012. See
UJI 14-701 NMRA.

{48} “Possession” may be actual or constructive. See UJI 14-130 NMRA. A person is in
actual possession of a firearm when, “on the occasion in question, he knows what [the
firearm] is, he knows it is on his person or in his presence[,] and he exercises control over
it.” UJI 14-130. Alternatively, the State may proceed on a theory of constructive possession,
whereby it must prove that, “[e]ven if the [firearm] is not in [Defendant’s] physical presence,
. . . he knows what it is and where it is and he exercises control over it.” Id. In the case of
constructive possession, we “must be able to articulate a reasonable analysis that the fact-
finder might have used to determine knowledge and control.” State v. Garcia, 2005-NMSC-
017, ¶ 13, 138 N.M. 1, 116 P.3d 72 (alteration, internal quotation marks, and citation
omitted). Under either an actual possession or constructive possession theory, the two key
elements the State must establish are knowledge and control. See UJI 14-130. The State must
prove that the defendant knows of the “presence and character of the item possessed.”
Garcia, 2005-NMSC-017, ¶ 14 (internal quotation marks and citation omitted). Knowledge
may be proved by circumstantial evidence, and the jury is permitted to draw a reasonable
inference of knowledge. Id. ¶ 15. Control may also be established by drawing reasonable
inferences from circumstantial evidence. Id. ¶¶ 20-22. A defendant’s ability to exercise
control over ammunition may give rise to an inference of control over a firearm that can
utilize that ammunition. Id. ¶ 22.

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

15
under the theory of either actual or constructive possession. A reasonable jury could have
found that Defendant’s possession of the firearm was established through the testimony of
Detective Downs. Detective Downs testified on direct examination that Defendant told him
that he was armed with a gun. Detective Downs further testified that Brandon Chandler, the
volunteer who was working at the snack bar at the Arid Club on the date in question, told
him over the phone that Defendant had a gun. If the jury chose to believe Detective Downs,
his testimony was sufficient to prove beyond a reasonable doubt that Defendant had
knowledge and control, and thereby possession of a gun on February 25, 2012.

{50} There was additional evidence from which a reasonable jury could infer Defendant’s
possession of a firearm. Police recovered a handgun inside the club, sitting on a countertop
within arm’s reach of where Defendant admitted he had been sitting and just feet from where
police apprehended Defendant. This was sufficient evidence to circumstantially establish
Defendant’s ability to exercise control over the gun. Police also recovered forty-five rounds
of ammunition from inside the car that Defendant drove to the Arid Club on February 25,
2012. While the car belonged to Defendant’s then-girlfriend, Defendant admitted that his
girlfriend did not possess a firearm and would not have had any need for the ammunition that
was found in the car.

{51} Finally, Defendant seems to argue that there was insufficient evidence to link him,
as opposed to someone else, to the gun found at the club because it was found on a counter
in an area that was open to the public. As this Court recognized in State v. Maes, “[i]n non-
exclusive access cases, the problem the [s]tate faces is the alternative inference that some
other individual with access to the premises is responsible for the presence of the
contraband.” 2007-NMCA-089, ¶ 17, 142 N.M. 276, 164 P.3d 975. The problem lies in the
fact that “[e]vidence equally consistent with two hypotheses tends to prove neither.” Herron
v. State, 1991-NMSC-012, ¶ 18, 111 N.M. 357, 805 P.2d 624. Yet here, no evidence exists
to suggest that the gun belonged to or was possessed by anyone other than Defendant.
Instead, Defendant testified that Brandon Chandler, the only other person in the club with
him when police arrived on February 25, left the club before Defendant and did not place the
gun police found on the counter. Furthermore, like in Garcia, 2005-NMSC-017, ¶ 22, where
the court held that control over an ammunition clip gave rise to a fair inference of control
over the gun in a non-exclusive access situation, here, police found ammunition in
Defendant’s car that both matched the ammunition found inside the club and was usable by
the type of gun that Detective Downs testified that Defendant stated he was armed with. The
jury was free to reject any inference Defendant offered that the gun was possessed by anyone
other than himself.

{52} Because “a reviewing court will not second-guess the jury’s decision concerning the
credibility of witnesses, reweigh the evidence, or substitute its judgment for that of the
jury[,]” State v. Lucero, 1994-NMCA-129, ¶ 10, 118 N.M. 696, 884 P.2d 1175, we conclude
that the State presented sufficient evidence from which the jury could reasonably infer that
Defendant either actually or constructively possessed the .22-caliber handgun recovered
from inside the club.

16
III. The Trial Court Did Not Fundamentally Err by Failing to Give a Portion of the
Constructive Possession Jury Instruction

{53} Defendant argues that the district court committed fundamental error when it failed
to include optional language from UJI 14-130, the definitional instruction for “possession.”
We disagree.

{54} “The standard of review we apply to jury instructions depends on whether the issue
has been preserved.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134.
“If the error has been preserved we review the instructions for reversible error.” Id. If a party
fails to “object to the jury instructions as given, . . . we only review for fundamental error.”
Cunningham, 2000-NMSC-009, ¶ 8. “Under both standards we seek to determine whether
a reasonable juror would have been confused or misdirected by the jury instruction.”
Benally, 2001-NMSC-033, ¶ 12. Because Defendant failed to object to the instructions given
at trial, Defendant failed to preserve this issue, and we review for fundamental error only.
See State v. Varela, 1999-NMSC-045, ¶ 11, 128 N.M. 454, 993 P.2d 1280 (“Ordinarily a
defendant may not base a claim of error on instructions he or she requested or to which he
or she made no objection. . . . [F]undamental error need not be preserved . . . [and] cannot
be waived.” (internal quotation marks and citations omitted)).

{55} UJI 14-130 provides that “[a] person is in possession of (name of object) when, on
the occasion in question, he knows what it is, he knows it is on his person or in his
presence[,] and he exercises control over it.” When the theory of possession is based on
constructive possession, the instruction provides supplemental language that “may be used
depending on the evidence.” UJI 14-130, Use Note 2 (emphasis added). There are three
statements that can be used to supplement the main possession instruction. The first deals
with a situation where the object the defendant is accused of possessing is not in his physical
presence, but where he nevertheless exercises control over it. UJI 14-130. The second deals
with a situation where two or more people may be able to simultaneously constructively
possess an object. Id. The third explains that “[a] person’s presence in the vicinity of the
object or his knowledge of the existence or the location of the object is not, by itself,
possession.” Id. In this case, the district court instructed the jury as follows with respect to
the felon-in-possession charge:

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

1. [D]efendant possessed a firearm;

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

17
 3. This happened in New Mexico on or about the 25th day of
February, 2012.

See UJI 14-701.

{56} In addition to this elemental instruction, the district court instructed the jury as
follows with respect to the definition of “possession”:

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

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

{57} The district court included the latter statement even though the evidence showed that
Defendant was, in fact, in the physical presence of the gun. The district court, however, did
not include the third supplemental statement regarding proximity to the object: “A person’s
presence in the vicinity of the object or his knowledge of the existence or the location of the
object is not, by itself, possession.” UJI 14-130. Defendant failed to object to the instruction,
including the omission of the “proximity” statement, despite the court’s express invitations
to register any objections to proposed instructions and to submit competing instructions.
Because Defendant failed to preserve the matter, we review for fundamental error only.

{58} We begin our review by noting that in State v. Barber, our Supreme Court held that
it was not fundamental error to fail to give any part of the definitional instruction for
possession. 2004-NMSC-019, ¶ 1, 135 N.M. 621, 92 P.3d 633. In Barber, like in this case,
the defendant’s trial counsel failed to request a jury instruction defining possession. Barber
was a case dealing with possession of a controlled substance, in which case UJI 14-3130
NMRA rather than UJI 14-130 applies. See UJI 14-3130 comm. cmt. (“This instruction must
be given if possession is in issue and its use replaces UJI 14-130 which should not be used
in controlled substance cases.”). However, for our purposes, this distinction does not matter
because the instructions are, for all intents and purposes, identical, and the court’s reasoning
in Barber is what matters here.

{59} The Barber court explained that definitional instructions are not always essential, see
2004-NMSC-019, ¶ 25, and held that failing to give a definitional instruction was not
fundamental error because “the missing definition of possession does not implicate a critical
determination akin to a missing elements instruction[.]” Id. ¶ 26 (internal quotation marks
and citation omitted). Notably, the definitional instruction at issue in Barber was mandatory
in a case where possession was an issue, see UJI 14-3130 comm. cmt. (“[t]his instruction
must be given if possession is in issue” (emphasis added)), whereas UJI 14-130 provides that
the supplemental instructions are optional. See UJI 14-130, Use Note 2 (“One or more of the
following bracketed sentences may be used depending on the evidence.” (emphasis added)).

18
{60} In a case such as this, “we must place all the facts and circumstances under close
scrutiny to see whether the missing instruction caused such confusion that the jury could
have convicted [the d]efendant based upon a deficient understanding of the legal meaning
of possession as an essential element of the crime.” Barber, 2004-NMSC-019, ¶ 25. Here,
if the State had relied solely on Defendant’s proximity to the gun found inside the club—i.e.,
the fact that the chair he was sitting in was directly in front of the gun that police found on
the countertop inside the club—it may have been error to fail to give the “proximity”
instruction because the jury may have been confused and erroneously equated “proximity”
with “possession.” However, the State presented other evidence unrelated to Defendant’s
physical proximity to the gun from which the jury could have reasonably concluded that
Defendant possessed the gun. First, Detective Downs testified that Defendant told him over
the phone that he was armed with a gun. Second, Detective Downs testified that Brandon
Chandler stated to him over the phone that Defendant had a gun. From this evidence, the
State could have proceeded on a theory of actual possession, in which case the trial court’s
failure to give a portion of the constructive possession definition was not error at all.

{61} We also note that the district court’s instruction properly informed the jury that, in
order to convict Defendant of possession, it had to find both that he knew what the gun was
and that he exercised control over it. The omitted instruction of which Defendant now
complains does not add anything that was not already addressed by the main definitional
instruction. To instruct the jury that “[a] person’s presence in the vicinity of the object or his
knowledge of the existence or the location of the object is not, by itself, possession[,]” UJI
14-130, simply restates what the main instruction provides: that one can only be found to be
in possession of something if he both “knows” what the object is and “exercises control over
it.” Id. We are satisfied that, even under a constructive possession theory, it was not
fundamental error for the district court to fail to provide the jury with the optional
“proximity” language of UJI 14-130.

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

{62} Defendant argues that the district court erred when it allowed the State to introduce
the fact that Defendant has a pending lawsuit against the City of Las Cruces. While we find
the State’s responsive argument somewhat unpersuasive and the record scant as to the
district court’s justification for allowing the evidence, we hold that it was not an abuse of
discretion and that, even assuming it was, any error in allowing evidence of Defendant’s
pending lawsuit was harmless.

{63} We review decisions to admit or exclude evidence under an abuse of discretion
standard. See State v. Stampley, 1999-NMSC-027, ¶ 37, 127 N.M. 426, 982 P.2d 477;
Garcia, 2005 NMCA-042, ¶ 38. A trial court abuses its discretion “when the ruling is clearly
against the logic and effect of the facts and circumstances of the case. We cannot say the
[district] court abused its discretion by its ruling unless we can characterize [the ruling] as

19
clearly untenable or not justified by reason.” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation
marks and citations omitted).

{64} At trial, the prosecutor’s first question of Defendant on cross-examination was
whether he had “filed some sort of lawsuit against the City of Las Cruces.” After Defendant
responded affirmatively and answered the prosecutor’s next question about where the lawsuit
was filed, standby counsel requested a bench conference where he made a relevancy-based
objection to the prosecutor’s questions about the lawsuit. The prosecutor responded, “[g]oes
to bias, Your Honor. It’s absolutely relevant if a witness has filed a lawsuit. It has a
connection to the case.” The district court overruled the objection but cautioned the
prosecutor “not to belabor the point.” After reestablishing that Defendant had filed a lawsuit
against the City of Las Cruces related to the incident at the Arid Club, the prosecutor asked
Defendant what kind of damages he was seeking. Defendant initially resisted answering and
stated, “I feel . . . that has nothing to do with this case.” After the trial judge instructed him
to answer, Defendant began describing his claims, which included excessive force and false
imprisonment, rather than the damages Defendant sought.6 The district court stepped in to
clarify the question and explained to Defendant that the prosecutor was asking him to state
the amount of monetary damages he claimed to be appropriate in his civil suit. Defendant
disclosed that he asked for eighty million dollars for his claims related to the February 25,
2012, incident. The prosecutor then moved on to a different line of impeachment questioning
related to Defendant’s criminal history.

{65} Defendant argues that evidence of his pending civil lawsuit related to the events of
February 25, 2012, was not relevant to proving the charges against him and, therefore, was
inadmissible. He further argues on appeal, though he did not preserve the argument at trial,
that evidence of the lawsuit was “distracting to the jury, resulting in confusion of the issues
and unfair prejudice.” As already mentioned, the prosecutor’s counterargument to
Defendant’s relevancy challenge at trial was simply that the evidence “[g]oes to bias.” Once
the evidence was admitted, the prosecutor used it to argue in closing that “[Defendant] has
a bias because now he thinks he’s going to get a big paycheck. Apparently, he thinks if he’s
not convicted, that will help his lawsuit.” The prosecutor also told the jury, “you can factor
that in to the sort of bias [Defendant] might have for the way that he testified here today.”

{66} The State clarifies its argument on appeal as being that, because of the conflicting
evidence with which the jury was presented, evidence of Defendant’s lawsuit was “relevant
for the purpose of assisting the jury in determining what actually happened at the Arid Club
on February 25, 2012.” The State reasons that the evidence would assist the jury with

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

20
“reconciling . . . competing narratives” and “would have been helpful to the jury’s
assessment of witness credibility[.]” Echoing the prosecutor’s closing argument, the State
also argues that “[h]ad [Defendant] successfully persuaded the jury that his version of the
events in question was the more accurate one, he could have collected potent ammunition
for use in his litigation against the City.” While the State’s broader arguments are
unconvincing, we generally agree with the State that the evidence was admissible for the
purpose of attacking Defendant’s credibility.

{67} In order to be admissible, evidence must be relevant. Rule 11-402 NMRA; see State
v. Christopher, 1980-NMSC-085, ¶ 12, 94 N.M. 648, 615 P.2d 263. “Evidence is relevant
if [(a)] it has any tendency to make a fact more or less probable than it would be without the
evidence, and [(b)] the fact is of consequence in determining the action.” Rule 11-401
NMRA. “Any doubt whether the evidence is relevant should be resolved in favor of
admissibility.” State v. Balderama, 2004-NMSC-008, ¶ 23, 135 N.M. 329, 88 P.3d 845.

{68} “[W]hen a defendant testifies, he is subject, within the limits of certain rules, to
cross-examination the same as any other witness.” State v. Gutierrez, 2003-NMCA-077, ¶
13, 133 N.M. 797, 70 P.3d 797. The general rule is that the “[s]tate has a right to inquire into
and comment upon the credibility of the defendant as a witness.” State v. Hoxsie, 1984-
NMSC-027, ¶ 6, 101 N.M. 7, 677 P.2d 620, overruled on other grounds by Gallegos v.
Citizens Ins. Agency, 1989-NMSC-055, ¶ 28, 108 N.M. 722, 779 P.2d 99. Credibility is
“[t]he quality that makes something (as a witness or some evidence) worthy of belief.”
Black’s Law Dictionary 448 (10th ed. 2014).

{69} Bias is widely recognized as being one way to attack the credibility of a witness. See
1 Kenneth S. Broun, McCormick on Evidence § 33 (7th ed. 2013). “Bias is a term used in
the ‘common law of evidence’ to describe the relationship between a party and a witness
which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of
or against a party.” United States v. Abel, 469 U.S. 45, 52 (1984). A criminal defendant who
testifies at trial is presumed to be biased and to have an interest in the outcome of the case.
See United States v. Dickens, 775 F.2d 1056, 1059 (9th Cir. 1985) (explaining that, when a
criminal defendant testifies at trial, “the defendant’s bias in his own behalf [is] self-
evident”).7 Bias may also be inferred from “a witness’[s] like, dislike, or fear of a party, or
by the witness’[s] self-interest.” Abel, 469 U.S. at 52 (emphasis added). “Proof of bias is
almost always relevant because the jury, as finder of fact and weigher of credibility, has
historically been entitled to assess all evidence which might bear on the accuracy and truth
of a witness’[s] testimony.” Id.; see also State v. Chambers, 1986-NMCA-006, ¶ 15, 103
N.M. 784, 714 P.2d 588 (“Testimony concerning bias and credibility is always relevant.”).

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

21
{70} Defendant, having chosen to testify, put his credibility in issue, making evidence
related to his credibility relevant. The State used the evidence of Defendant’s pending
lawsuit to undermine his credibility by inferring that he had reason to be untruthful in his
testimony based on what the State argued was his interest in getting “a big paycheck.”
Because Defendant testified to the events at the Arid Club on February 25, 2012, and
because Defendant’s testimony was relevant to establishing whether it was more or less
probable that he committed the crimes with which he was charged, it was within the district
court’s discretion to allow the State to introduce evidence for the purpose of impeaching
Defendant’s testimony. We cannot say, as a matter of law, that the district court’s decision
to admit the evidence was “clearly untenable or not justified by reason.” Rojo, 1999-NMSC-
001, ¶ 41 (internal quotation marks and citation omitted). We, therefore, hold that the district
court did not abuse its discretion in allowing limited testimony regarding Defendant’s
pending lawsuit as a way of attacking Defendant’s credibility.

{71} As a final matter, we note that Defendant also argues, for the first time on appeal, that
the evidence of his pending lawsuit should have been excluded under Rule 11-403 NMRA,
which provides that “[t]he court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Because Defendant failed to timely object on this ground
at trial, we will reverse on this basis only if we are “convinced that admission of the
testimony constituted an injustice that creates grave doubts concerning the validity of the
verdict.” State v. Barraza, 1990-NMCA-026, ¶ 17, 110 N.M. 45, 791 P.2d 799; see State v.
Lucero, 1993-NMSC-064, ¶¶ 12-13, 116 N.M. 450, 863 P.2d 1071 (explaining that appellate
courts review un-preserved challenges to the admission of evidence for plain error—meaning
error that “affected substantial rights although the plain errors were not brought to the
attention of the judge” (alteration, internal quotation marks, and citation omitted)).

{72} Defendant argues that the evidence of his pending lawsuit was “highly prejudicial”
because it tended to paint him as a “litigious person and tried to demonstrate to the jury that
the only reason [Defendant] was fighting this case was because of a vendetta held against
other governmental agencies and so that he could win a significant amount of money.” Given
the other evidence in this case that the jury could have relied on to convict
Defendant—namely, the testimony of Detective Downs and the physical evidence the State
presented—we are not persuaded that the admission of evidence of Defendant’s pending
lawsuit, even if unfair, confusing, and distracting, “constituted an injustice that creates grave
doubts concerning the validity of the verdict.” Barraza, 1990-NMCA-026, ¶ 17.

{73} We hold that it was neither an abuse of discretion nor plain error for the trial court
to admit evidence of Defendant’s pending lawsuit.

V. The State Did Not Commit Prosecutorial Misconduct

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

22
fundamental error for the prosecutor to (1) repeatedly mention Defendant’s civil lawsuit, and
(2) fail to call as witnesses the police officers who obtained the search warrant for
Defendant’s car and arrested Defendant. We disagree. Defendant failed to object at trial to
conduct he now characterizes as prosecutorial misconduct; therefore, we will review
Defendant’s prosecutorial misconduct claims for fundamental error only. See State v.
Trujillo, 2002-NMSC-005, ¶ 52, 131 N.M. 709, 42 P.3d 814.

{75} “Prosecutorial misconduct rises to the level of fundamental error when it is so
egregious and had such a persuasive and prejudicial effect on the jury’s verdict that the
defendant was deprived of a fair trial.” State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482,
994 P.2d 728 (internal quotation marks and citation omitted). “To find fundamental error,
we must be convinced that the prosecutor’s conduct created a reasonable probability that the
error was a significant factor in the jury’s deliberation in relation to the rest of the evidence
before them.” State v. Sosa, 2009-NMSC-056, ¶ 35, 147 N.M. 351, 223 P.3d 348 (internal
quotation marks and citations omitted). We will reverse a jury verdict only “(1) when guilt
is so doubtful as to shock the conscience, or (2) when there has been an error in the process
implicating the fundamental integrity of the judicial process.” Id. “However, an isolated,
minor impropriety ordinarily is not sufficient to warrant reversal, because a fair trial is not
necessarily a perfect one.” State v. Garvin, 2005-NMCA-107, ¶ 13, 138 N.M. 164, 117 P.3d
970 (alteration, internal quotation marks, and citation omitted).

A. The Prosecutor’s References to Defendant’s Pending Lawsuit Against the City
of Las Cruces Did Not Constitute Prosecutorial Misconduct

{76} In assessing whether prosecutorial misconduct has occurred based on statements
made by a prosecutor at trial, reviewing courts are to evaluate a prosecutor’s challenged
statements “objectively in the context of the prosecutor’s broader argument and the trial as
a whole.” Sosa, 2009-NMSC-056, ¶ 26. We start from the long-accepted proposition that
“[d]uring closing argument, both the prosecution and defense are permitted wide latitude,
and the trial court has wide discretion in dealing with and controlling closing argument[.]”
State v. Smith, 2001-NMSC-004, ¶ 38, 130 N.M. 117, 19 P.3d 254 (internal quotation marks
and citations omitted). “[R]emarks by the prosecutor must be based upon the evidence or be
in response to the defendant’s argument.” Id. “It is misconduct for a prosecutor to make
prejudicial statements not supported by evidence.” State v. Duffy, 1998-NMSC-014, ¶ 56,
126 N.M. 132, 967 P.2d 807, overruled on other grounds by State v. Tollardo, 2012-NMSC-
008, 275 P.3d 110. However, “[s]tatements having their basis in the evidence, together with
reasonable inferences to be drawn therefrom, are permissible and do not warrant reversal.”
State v. Herrera, 1972-NMCA-068, ¶ 8, 84 N.M. 46, 499 P.2d 364 (internal quotation marks
and citation omitted).

{77} Defendant argues that the prosecutor’s repeated references to Defendant’s pending
civil litigation constituted misconduct because the litigation “had no bearing on the issues
in this case[ and were] irrelevant and prejudicial.” Defendant ignores the fact that the trial
court overruled his relevancy-based objection to the introduction of evidence of Defendant’s

23
pending lawsuit. The prosecutor’s statements during closing and rebuttal were based on facts
she had elicited from Defendant on cross-examination after standby counsel’s objection was
overruled. In closing, the prosecutor argued to the jury that Defendant “filed a lawsuit, thinks
he’s going to collect [eighty] million dollars.” The prosecutor also argued that the jury
should infer that Defendant “has a bias because now he thinks he’s going to get a big
paycheck.” During rebuttal, she commented, “[D]efendant is the one with bias. [D]efendant
is the one who thinks he’s going to collect an [eighty] million dollar[] paycheck from the
City of Las Cruces.” Nothing in the prosecutor’s comments during closing or rebuttal fell
outside of already-admitted evidence or assumed facts not in evidence.

{78} Because the evidence referred to by the prosecutor had been admitted—whether
erroneously or not—the prosecutor was free to comment on it. Compare State v. Santillanes,
1970-NMCA-003, ¶¶ 13-14, 81 N.M. 185, 464 P.2d 915 (explaining that the remarks of
prosecutor during closing were not improper because they were based on facts in evidence),
with State v. Cummings, 1953-NMSC-008, ¶ 8, 57 N.M. 36, 253 P.2d 321 (explaining that
“a statement of facts entirely outside of the evidence, and highly prejudicial to the accused,
cannot be justified as argument” (emphasis added)). We reject Defendant’s claim that his
conviction was tainted by prosecutorial misconduct.

B. The State Did Not Commit Prosecutorial Misconduct by Not Calling the
Officers Involved in Securing the Search Warrant and Arresting Defendant

{79} Defendant argues that the prosecutor committed misconduct by failing to call
necessary witnesses, specifically the officer who signed the affidavit for the search warrant
for Defendant’s car and the officer who arrested Defendant, whom Defendant argues he was
entitled to cross examine. As this Court has explained, “[t]he decision to call or not call a
witness is a matter of trial tactics and strategy within the control of counsel.” Maimona v.
State, 1971-NMCA-002, ¶ 11, 82 N.M. 281, 480 P.2d 171. For the same reasons that our
courts have long held that defense counsel’s failure to call witnesses is an insufficient basis
for finding ineffective assistance of counsel, see id., we reject Defendant’s argument that the
prosecutor’s decision not to call certain witnesses constituted misconduct.

CONCLUSION

{80} We hold that there was insufficient evidence to support Defendant’s conviction for
resisting, evading, or obstructing an officer under Count 2 of the indictment. We affirm
Defendant’s conviction for felon in possession of a firearm, reverse his conviction under
Count 2, and remand for resentencing in accordance with this opinion.

{81} IT IS SO ORDERED.

____________________________________
J. MILES HANISEE, Judge

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WE CONCUR:

____________________________________
TIMOTHY L. GARCIA, Judge

____________________________________
M. MONICA ZAMORA, Judge

25