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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 30,844
5 NOEL R. CALDERON, JR.,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Lisa C. Schultz, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 M. Anne Kelly, Assistant Attorney General
12 Albuquerque, NM
13 for Appellee
14 Jacqueline L. Cooper, Chief Public Defender
15 Tania Shahani, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 GARCIA, Judge.
1 A jury convicted Defendant of two counts of armed robbery, conspiracy to
2 commit armed robbery, tampering with evidence, and conspiracy to commit tampering
3 with evidence. Defendant raises four issues on appeal: (1) his two conspiracy
4 convictions violated his right against double jeopardy; (2) there was insufficient
5 evidence to support his convictions; (3) his trial counsel was ineffective; and (4) the
6 prosecutor committed misconduct during closing argument and sentencing. We
7 reverse Defendant’s conviction for conspiracy to commit tampering with evidence on
8 double jeopardy grounds and affirm Defendant’s remaining convictions for armed
9 robbery, conspiracy to commit armed robbery, and tampering with evidence.
10 BACKGROUND
11 Because the parties are familiar with the factual and procedural background and
12 because this is a memorandum opinion, we do not provide an initial, detailed summary
13 of the proceedings below. We provide details as necessary in our discussion of each
14 issue.
15 DISCUSSION
16 Double Jeopardy
17 Defendant asserts on appeal that his two convictions for conspiracy violate the
18 constitutional prohibition against double jeopardy because the evidence at trial did not
19 support separate conspiratorial agreements to support more that one count of
2
1 conspiracy. We review the constitutional question of whether there has been a double
2 jeopardy violation de novo. State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M. 710,
3 82 P.3d 77. This includes double jeopardy challenges involving multiple conspiracy
4 charges. State v. Gallegos, 2011-NMSC-027, ¶ 50-51, 149 N.M. 704, 254 P.3d 655.
5 We note, however, that where factual issues are intertwined with the double jeopardy
6 analysis, the district court’s factual determinations are subject to a deferential
7 substantial evidence standard of review. State v. Rodriguez, 2006-NMSC-018, ¶ 3,
8 139 N.M. 450, 134 P.3d 737.
9 Defendant argues that double jeopardy was violated because he was charged
10 with multiple violations of the same statute based upon a single course of conduct.
11 See Gallegos, 2011-NMSC-027, ¶¶ 28-50 (recognizing the unit of prosecution test for
12 multiple charges under the conspiracy statute); State v. DeGraff, 2006-NMSC-011,
13 ¶ 25, 139 N.M. 211, 131 P.3d 61 (holding that there are two types of double jeopardy
14 cases with regard to multiple punishments: (1) when a defendant is charged with
15 multiple violations of the same statute based on a single course of conduct referred to
16 as “unit of prosecution” cases; and (2) when a defendant is charged with violations of
17 multiple statutes for the same conduct referred to as “double-description” cases
18 (internal quotation marks and citation omitted)). It is not disputed that we are dealing
19 with a unit of prosecution case.
3
1 A unit of prosecution challenge uses a two-step inquiry. First, we ask whether
2 the unit of prosecution is clearly defined by the statute at issue and, second, whether
3 the charged acts were sufficiently distinct to justify multiple punishments under the
4 same statute. State v. Swick, 2012-NMSC-018, ¶ 33, 279 P.3d 747; State v. Stewart,
5 2005-NMCA-126, ¶ 13, 138 N.M. 500, 122 P.3d 1269. In this case, the first inquiry,
6 whether a unit of prosecution is clearly defined in NMSA 1978, Section 30-28-2
7 (1979), is not at issue. The only issue is whether the two conspiracy charges were
8 sufficiently distinct to justify multiple punishments under the same statute. State v.
9 Bahney, 2012-NMCA-039, ¶ 17, 274 P.3d 134 (stating that “if no legislative guidance
10 is apparent, [the court must determine] whether a defendant’s acts are separated by
11 sufficient indicia of distinctness to justify multiple punishments under the same
12 statute” (internal quotation marks and citation omitted)).
13 Under Gallegos, we recognize that “the Legislature established what we call a
14 rebuttable presumption that multiple crimes are the object of only one, overarching,
15 conspiratorial agreement subject to one, severe punishment set at the highest crime
16 conspired to be committed.” 2011-NMSC-027, ¶ 55. We have “adopted ‘the totality
17 of the circumstances test utilized by the federal circuits’ in announcing the nature of
18 the evidence required to overcome the presumption.” Bahney, 2012-NMCA-039, ¶ 17
19 (alternation omitted). The federal test analyzes whether:
4
1 (a) the location of the two alleged conspiracies is the same; (b) there is
2 a significant degree of temporal overlap between the two conspiracies
3 charged; (c) there is an overlap of personnel between the two
4 conspiracies (including unindicted as well as indicted co-conspirators);
5 and (d) the overt acts charged and (e) the role played by the defendant .
6 . . in the alleged conspiracies are similar.
7 Gallegos, 2011-NMSC-027, ¶ 42 (alterations, internal quotation marks, and citation
8 omitted).
9 Our first inquiry is to determine “the precise nature and extent” of the
10 agreement between Defendant and Aldape that “embraces and defines its
11 object[ives].” Id. ¶ 37 (internal quotation marks and citation omitted). Where a
12 conspiracy involves a continuing crime, it may last for years and involve numerous
13 substantive offenses that end only when “the purposes of the conspiracy have been
14 accomplished or abandoned.” Id. ¶ 46 (internal quotation marks and citation omitted).
15 The agreement can also evolve over time to embrace a new objective to the original
16 criminal combination. Id. ¶ 62.
17 Similar to Gallegos, the evidence would support the presumption that
18 Defendant “entered into only one agreement and took part in only one conspiracy.”
19 See id. ¶ 57. Based upon the totality of the circumstances presented in this case, the
20 evidence indicates that Defendant and Aldape conspired to successfully commit
21 multiple convenience store robberies, thereby avoiding apprehension and arrest. As
22 a result, the agreement to successfully rob two stores appears singular and the State
5
1 would bear the heavy burden of rebutting the presumption of singularity. Id. ¶¶ 55-56.
2 The burden then shifted to the State to overcome the presumption of singularity
3 regarding the conspiratorial agreement between Defendant and Aldape. Id. Where
4 the State fails to overcome this presumption, “the appropriate remedy is to vacate [the
5 d]efendant’s redundant convictions with punishment imposed on the single remaining
6 conspiracy at the level of the highest crime conspired to be committed[.]” Id. ¶ 64
7 (internal quotation marks and citation omitted).
8 The evidence in this case cannot rebut the presumption that Defendant and
9 Aldape had one singular agreement to successfully commit the two robberies, thereby
10 avoiding apprehension and arrest. Defendant and Aldape were both involved in an
11 overlapping and continuous series of related events. Both robberies occurred during
12 the same evening, with the same weapon, wearing the same articles of clothing, and
13 with Defendant acting as the getaway driver in both situations. The evolving acts of
14 ducking down in the car, moving the car behind some bushes, and throwing the
15 incriminating evidence out the car window confirms that the co-conspirators intended
16 to avoid apprehension while carrying out the objectives of their singular agreement
17 to successfully commit the two robberies. Similar to the acts of hiding after the first
18 robbery, the evidence was thrown from Defendant’s car within minutes of the second
19 robbery while attempting to flee the scene. This singular conspiracy presumption is
6
1 consistent with the State’s indictment that sought only one conspiracy charge for the
2 two separate robberies that occurred only hours apart. We therefore vacate
3 Defendant’s conviction for conspiracy to commit tampering of evidence because it
4 was part of the singular conspiracy to successfully commit the two convenience store
5 robberies, while avoiding apprehension and arrest. We next address the sufficiency
6 of the evidence for Defendant’s remaining convictions.
7 Directed Verdict
8 Defendant asserts that the district court erred in denying his motion for directed
9 verdict because the evidence was insufficient to establish the requisite mens rea for
10 the crimes for which he was convicted. When reviewing the denial of a directed
11 verdict, we must determine whether there was sufficient evidence presented to support
12 the underlying charges. State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192
13 P.3d 1198.
14 The test for sufficiency of the evidence is whether substantial evidence
15 of either a direct or circumstantial nature exists to support a verdict of
16 guilt beyond a reasonable doubt with respect to every element essential
17 to a conviction. When considering the sufficiency of the evidence, [the
18 appellate courts do] not evaluate the evidence to determine whether some
19 hypothesis could be designed which is consistent with a finding of
20 innocence. Instead, we view the evidence as a whole and indulge all
21 reasonable inferences in favor of the jury’s verdict while at the same
22 time asking whether any rational trier of fact could have found the
23 essential elements of the crime beyond a reasonable doubt.
24 State v. Johnson, 2010-NMSC-016, ¶ 57, 148 N.M. 50, 229 P.3d 523 (internal
7
1 quotation marks and citation omitted). We have already vacated Defendant’s
2 conviction for conspiracy to commit tampering with evidence because it should have
3 merged with his conviction for conspiracy to commit armed robbery. As such, we
4 will only address the sufficiency of the evidence for Defendant’s remaining
5 convictions.
6 1. Armed Robbery and Conspiracy to Commit Armed Robbery
7 Both parties concede that Aldape committed the armed robberies in question.
8 The jury was instructed that it could find Defendant guilty of armed robbery based on
9 a theory of accessory liability if it found that Defendant intended the robberies to be
10 committed and that Defendant helped, encouraged, or caused the robberies to be
11 committed. As such, if substantial evidence exists to support Defendant’s conviction
12 for conspiracy to commit armed robbery, then it follows that his conviction for armed
13 robbery based on accomplice liability is also supported by substantial evidence.
14 To support Defendant’s conviction for conspiracy to commit armed robbery,
15 the State was required to show that he knowingly combined with Aldape to commit
16 the armed robberies. UJI 14-2810 NMRA. Defendant contends that the State
17 presented no testimony or other evidence establishing his knowledge or intent.
18 Defendant argues that his mere presence in the Cadillac “does not suggest that he was
19 or should have been aware of [Aldape’s] scheme,” because “[t]he simple fact that
8
1 [Defendant] was driving his car with [Aldape] in it after the second incident is not
2 sufficient evidence to convict [him].”
3 To support his contention that the evidence was insufficient, Defendant relies
4 on State v. Mariano R., 1997-NMCA-018, 123 N.M. 121, 934 P.2d 315. In Mariano
5 R., we reversed a defendant’s conviction for conspiracy where the underlying offense
6 involved multiple vehicle occupants shooting from the vehicle, even where the
7 defendant knew that there were guns in the car and was present when one was fired.
8 Id. ¶¶ 2, 5. We reasoned that “[t]he evidence would suffice to establish that the
9 [defendant] knew that there were firearms in the vehicle and was present when one
10 was fired. Beyond that, however, one must speculate.” Id.¶ 5. The evidence was
11 insufficient to support a conspiracy conviction because there was “no evidence
12 regarding what happened in the vehicle before the shot was fired.” Id.
13 We explained in Mariano R. that, while we reviewed the evidence “in light of
14 common knowledge or common experience[,]” we must not confuse common
15 knowledge and experience “with cynical speculation.” Id. ¶ 7 (internal quotation
16 marks and citation omitted). “In reviewing a determination of guilt, we cannot
17 sanction a view that assumes the worst about human nature. That is an essential
18 message of the presumption of innocence. Evidence is required[.]” Id. However,
19 unlike the evidence in Mariano R., the evidence in the instance case showed more than
9
1 mere presence. Viewed in the light most favorable to the State, the evidence presented
2 at trial established that Defendant knowingly and intentionally drove the getaway car
3 and was aware of both robberies. See State v. Carrasco, 1997-NMSC-047, ¶ 11, 124
4 N.M. 64, 946 P.2d 1075 (“In reviewing a claim of insufficient evidence, th[e
5 Supreme] Court will view the evidence in the light most favorable to supporting the
6 verdict and resolve all conflicts and indulge all inferences in favor of upholding the
7 verdict.” (internal quotation marks and citation omitted)).
8 During the first robbery, the record indicates that Defendant backed into a
9 parking space at the apartments next to the Pic Quik and waited for Aldape. After the
10 commission of the robbery, Aldape ran to Defendant’s car and slid into it. When a
11 police officer drove by shortly thereafter, Defendant and Aldape both ducked down
12 in the car as if to avoid detection. The car was then moved to a second spot behind
13 some bushes as two other police officers drove by the robbery location. In addition,
14 Defendant picked Aldape up after the second robbery and was still driving when
15 Aldape threw the items related to the robberies out of the car window. One of those
16 items was Defendant’s bandana with his initials on it, the same bandana that Aldape
17 wore while committing both robberies. Another item thrown from the car window
18 after it was taken from the second robbery was the cash drawer from the register with
19 cash still located inside. In addition, the State presented evidence that Defendant’s
10
1 testimony was fabricated based upon the search of Defendant’s car after the arrest and
2 the lack of any cell phone on his person or in his car.
3 It must be remembered that, while conspiracy requires an agreement, the
4 agreement can be nothing more than a mutually implied understanding that can be
5 proved by the cooperative actions of the participants involved. State v. Smith, 102
6 N.M. 512, 514, 697 P.2d 512, 514 (Ct. App. 1985). Conspiracy is often shown
7 through inference from the facts and circumstances considered as a whole. State v.
8 Ross, 86 N.M. 212, 214, 521 P.2d 1161, 1163 (Ct. App. 1974). In contrast to Mariano
9 R. and other cases on which Defendant relies, a rational jury could infer from the
10 totality of the circumstances in this case that Defendant was an active participant with
11 Aldape in the robberies. See Carrasco, 1997-NMSC-047, ¶¶ 11-14 (holding that the
12 evidence was sufficient to support accessory liability for armed robbery where the
13 defendant drove the car to the robbed convenience store and kept the engine running,
14 but claimed he was asleep during the robbery and did not intend the acts committed
15 by the principals). The jury is not required to accept Defendant’s version of the facts
16 that support an argument that he did not have the required mens rea for these offenses.
17 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary
18 evidence supporting acquittal does not provide a basis for reversal because the jury
19 is free to reject [the d]efendant’s version of the facts.”). Our review is only required
11
1 to determine that the evidence here was not so bare that, as a matter of law, no rational
2 jury could find the required facts to support a conviction. See Carrasco, 1997-
3 NMSC-047, ¶ 14. The foregoing evidence was sufficient for a rational jury to find
4 Defendant guilty of conspiracy to commit armed robbery.
5 The jury could easily infer from the evidence presented at trial that Defendant
6 and Aldape joined together in a mutually implied understanding to rob the two
7 convenience stores. Defendant’s story that, on two occasions, he was the unwilling
8 dupe of Aldape’s plan was somewhat incredulous and lacked credibility. See Rojo,
9 1999-NMSC-001, ¶ 19 (recognizing that a jury is free to reject a defendant’s version
10 of the events). The circumstantial evidence establishes that, as co-conspirator,
11 Defendant both helped and encouraged Aldape in the commission of the robberies.
12 As a result, there was sufficient evidence to find Defendant guilty of both armed
13 robberies.
14 2. Tampering With Evidence
15 To prove that Defendant was guilty of the crime of tampering with evidence,
16 the State was required to show beyond a reasonable doubt “that [D]efendant destroyed
17 or hid or placed a cash register drawer, and/or a brown handkerchief, and/or a black
18 beanie, and/or a machete . . . intend[ing] to prevent [his] apprehension, prosecution,
19 or conviction . . . .” See UJI 14-2241 NMRA. We have already held that the evidence
12
1 was sufficient for a jury to infer that Defendant and Aldape conspired to commit the
2 robberies, and there is no dispute that tampering with evidence occurred. However,
3 Defendant contends on appeal that the State presented no testimony or other evidence
4 which established that he knowingly or intentionally combined with or encouraged
5 Aldape to dispose of any evidence. We disagree.
6 At trial, the State presented evidence that Aldape threw the items he was
7 wearing and the proceeds from the second robbery from Defendant’s car as it left the
8 scene. Defendant himself testified that he believed Aldape discarded the items so that
9 the items could not be used to prosecute himself and Aldape. The jury could
10 reasonably infer from this evidence that Aldape discarded the evidence from
11 Defendant’s car to further the purposes of his conspiracy with Defendant. Surely,
12 Defendant and Aldape did not intend to be apprehended by the police when they
13 agreed to rob the convenience stores. As such, the evidence was sufficient for the jury
14 to find Defendant guilty of tampering with evidence based on a theory of accomplice
15 liability.
16 Ineffective Assistance of Counsel
17 We next address Defendant’s contention on appeal that defense counsel was
18 ineffective in failing to call witnesses material to his defense. We review claims of
19 ineffective assistance of counsel de novo. State v. Boergadine, 2005-NMCA-028,
13
1 ¶ 33, 137 N.M. 92, 107 P.3d 532. However, we are required to begin with the
2 presumption that counsel was competent. See id. To establish ineffective assistance
3 of counsel, a defendant has the burden to prove (1) that his counsel’s performance fell
4 below that of a reasonably competent attorney, and (2) that he was prejudiced by his
5 counsel’s deficient performance. Id. “Defense counsel’s performance is deficient if
6 counsel’s representation fell below an objective standard of reasonableness.” State
7 v. Roybal, 2002-NMSC-027, ¶ 21, 132 N.M. 657, 54 P.3d 61 (internal quotation
8 marks and citations omitted). We do not find ineffective assistance of counsel if there
9 is a plausible, rational trial strategy or tactic to explain counsel’s conduct. See State
10 v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289; State v. Richardson,
11 114 N.M. 725, 729, 845 P.2d 819, 823 (Ct. App. 1992), abrogated on other grounds
12 by Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806.
13 The record on appeal often does not provide enough information to adequately
14 determine whether an action was error or caused prejudice. Bernal, 2006-NMSC-050,
15 ¶ 33. When such questions arise, further evidence is often required. Id. Rather than
16 remand the case to the district court for further hearings, the appellate courts have a
17 general preference that such claims be brought and resolved through habeas corpus
18 proceedings. Id. Therefore, this Court will remand to the district court for evidentiary
19 proceedings on direct appeal only when a defendant presents a prima facie case of
14
1 ineffective assistance of counsel. Id.
2 Defendant argues that “defense counsel failed to subpoena material witnesses
3 and present other evidence that would have corroborated [Defendant’s] own testimony
4 at trial.” It is not our place on appeal to second guess trial strategies. State v. Hester,
5 1999-NMSC-020, ¶ 11, 127 N.M. 218, 979 P.2d 729. Whether a corroborating
6 witness will benefit or harm a particular case is a matter for counsel to determine as
7 part of one’s strategy in defending that case. Defense counsel’s strategy is best
8 evaluated during habeas corpus proceedings where trial counsel can provide
9 testimony. Such evidence is also necessary in this case to demonstrate that any
10 alleged errors caused prejudice. We therefore conclude Defendant has not presented
11 a prima facie case of ineffective assistance of counsel, and accordingly, we reject
12 Defendant’s ineffective assistance of counsel claim. However, this decision does not
13 preclude Defendant from pursuing habeas corpus proceedings on this issue should he
14 be able to garner evidence to support his claims.
15 Prosecutorial Misconduct
16 Defendant argues that some of the prosecutor’s remarks during closing
17 argument constituted misconduct that deprived him of a fair trial and that statements
18 made during sentencing constituted misconduct that deprived him of a fair sentencing
19 hearing. Defendant failed to object to the prosecutor’s remarks and asks us to review
15
1 his claims for fundamental error. State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M.
2 482, 994 P.2d 728 (“When the trial court had no opportunity to rule on a claim of
3 prosecutorial misconduct because the defendant did not object in a timely manner, we
4 review the claim on appeal for fundamental error.”). To qualify as fundamental error,
5 the remarks must have been “so egregious” and have “had such a persuasive and
6 prejudicial effect on the jury's verdict that the defendant was deprived of a fair trial.”
7 Id. (internal quotation marks and citation omitted). “As with any fundamental error
8 inquiry, we will upset a jury verdict only (1) when guilt is so doubtful as to shock the
9 conscience, or (2) when there has been an error in the process implicating the
10 fundamental integrity of the judicial process.” State v. Sosa, 2009-NMSC-056, ¶ 35,
11 147 N.M. 351, 223 P.3d 348.
12 1. Closing Argument
13 During closing argument, the prosecutor remarked that Defendant testified that
14 he picked up Aldape “a mile or a mile and a half from the Eagle Mart.” Defendant
15 argues that this statement was a misrepresentation of material facts rising to the level
16 of fundamental error. We disagree with Defendant that the prosecutor misstated
17 Defendant’s testimony, and therefore find no error in the prosecutor’s conduct.
18 Defendant first testified that the distance was “maybe, like, about a mile and a
19 half,” and later stated that it was “anywhere from maybe a mile to a half a mile.” In
16
1 response to Defendant’s later statement, the prosecutor said, “Okay. Let’s just use
2 that. A mile to a mile and a half. He was there?” Defendant responded, “Yeah” to
3 the prosecutor’s statement. Viewing the prosecutor’s remark in this context, there is
4 nothing in the record suggesting that it was an incorrect statement of Defendant’s
5 testimony. It did not, as Defendant claims, twist Defendant’s testimony into
6 unbelievable testimony. As such, the prosecutor’s remark during closing argument
7 about the distance from the Eagle Mart was not fundamental error.
8 2. Sentencing
9 At sentencing, the district court considered a pre-sentence report (PSR)
10 prepared by probation services. Relying on the PSR, the district court sentenced
11 Defendant to five years in prison with the rest of his twenty-five and a half year
12 sentence suspended. Defendant argues on appeal the State possessed inaccurate
13 information about him, confusing him with his father, and it was misconduct for the
14 State to suggest at sentencing that Defendant’s criminal history was worthy of
15 consideration.
16 Defendant’s argument appears to assert that the PSR conflated Defendant’s
17 criminal history with that of his father. The PSR is not part of the appellate record,
18 and we cannot presume, based on the available record, that it contained inaccurate
19 information or that the “the prosecutor inappropriately used his father’s prior felony
17
1 convictions to convince the judge to impose a more severe sentence.” To the contrary,
2 while the prosecutor noted Defendant’s criminal history to the district court, he did
3 not further elaborate on Defendant’s history and instead chose to focus his sentencing
4 arguments on the facts and circumstances of the instant case. Nothing in the record
5 suggests that the prosecutor was acting in bad faith, nor do the facts available on
6 appeal indicate that the prosecutor’s statement of a prior criminal history was so
7 egregious that it deprived Defendant of a fair hearing. Allen, 2000-NMSC-002, ¶ 95.
8 In addition, the record reflects that, as early as the initial bond hearing, Defendant was
9 aware of the possibility of confusion between his criminal record and that of his
10 father, who shares the same name. Despite this knowledge, Defendant never
11 challenged the accuracy of the PSR or the prosecutor’s statement that Defendant had
12 a criminal history. Defendant similarly chose not to rebut or contradict any criminal
13 history information when he was provided with the opportunity to speak before the
14 district court imposed a sentence. There is no evidence in the record regarding the
15 accuracy or inaccuracy of Defendant’s prior criminal history reflected in the PSR.
16 Under the circumstances, we will not reverse for fundamental error. See State v. Aker,
17 2005-NMCA-063, ¶ 22, 137 N.M. 561, 113 P.3d 384 (“[The d]efendant would be
18 entitled to re-sentencing if the lack of advance notice deprived him of the opportunity
19 to rebut evidence that the trial court relied upon in determining his sentence.”); State
18
1 v. Montoya, 91 N.M. 425, 427, 575 P.2d 609, 611 (Ct. App. 1978) (finding no error
2 in the district court’s consideration of a PSR that included arrests not resulting in
3 convictions, but implying that error might exist if the district court considered
4 inaccurate information or information that the defendant had no opportunity to
5 explain).
6 We recognize that a defendant has a right to be sentenced on the basis of
7 accurate information. State v. Lack, 98 N.M. 500, 508, 650 P.2d 22, 30 (Ct. App.
8 1982). But the district court in this case only relied on the PSR recommendation, not
9 necessarily upon any prior criminal history of Defendant or the statements made by
10 the prosecutor. We have no clear basis to conclude that the district court relied on any
11 inaccurate criminal history as the reason for the sentence imposed on Defendant. As
12 such, the record does not reflect that the prosecutor’s statements during sentencing
13 deprived Defendant of a fair hearing.
14 CONCLUSION
15 For the foregoing reasons, we reverse Defendant’s conviction for conspiracy
16 to commit tampering with evidence and affirm Defendant’s convictions for armed
17 robbery, conspiracy to commit armed robbery, and tampering with evidence. We
18 remand this matter to the district court for dismissal of the conspiracy to commit
19 tampering with evidence conviction and for any further proceedings that are necessary
19
1 upon remand.
2 IT IS SO ORDERED.
3 ______________________________
4 TIMOTHY L. GARCIA, Judge
5 I CONCUR:
6 ______________________________
7 RODERICK T. KENNEDY, Judge
8 JONATHAN B. SUTIN, (dissenting)
20
1 SUTIN, Judge (dissenting).
2 I respectfully disagree with the Majority’s conspiracy, double jeopardy analysis.
3 Defendant’s underlying and overarching criminal conspiratorial objective was to
4 engage in armed robberies. After the robberies, once pursued by the police,
5 Defendant’s newly formed underlying and overarching criminal objective was to get
6 rid of the incriminating evidence. The agreement to discard the evidentiary items
7 (including the cash-filled cash box obtained from the Eagle Qwik Mart) that gave rise
8 to the conspiracy to tamper with evidence charge cannot reasonably be viewed as
9 having been made in furtherance of the overarching criminal objective to commit the
10 armed robberies. The Majority’s incorporation of the caveat, “successfully,” into the
11 overarching conspiratorial agreement to commit multiple armed robberies, amounts
12 to an unsuccessful attempt to combine the two distinct, separate conspiratorial goals.
13 Conspiracy is a crime whose object may include the violation of two or more
14 criminal laws. See Gallegos, 2011-NMSC-027, ¶ 46. And, although a conspiracy
15 may “mature and expand over time, adding more members and embracing additional
16 criminal objectives without changing the fundamental nature of the single
17 agreement[,]” the conspiracy “ends . . . when the purposes of the conspiracy have been
18 accomplished or abandoned.” Id. (internal quotation marks and citation omitted). In
19 this case, the conspiracy to commit armed robberies ended when the robberies were
21
1 accomplished—that is, when Aldape took and “carr[ied] away” U.S. currency and a
2 cash register from the Eagle Qwik Mart (the second convenience store), with the
3 intention to permanently deprive the store of that property. Having accomplished that
4 particular overarching criminal objective, the conspiracy ended, and Defendant and
5 Aldape drove away.
6 It is, of course, every criminal’s intention that he or she is not caught by law
7 enforcement during the commission of the crime or during the getaway. That
8 intention is inherent in any criminal activity, including an overarching robbery goal.
9 But an inherent intention does not make the overarching conspiratorial robbery goal
10 blossom into a larger conspiratorial goal that somehow implicitly includes an
11 agreement, once the police are in pursuit, to get rid of their criminally obtained
12 proceeds. I tend to doubt that criminals consciously plan, at the outset, to throw away
13 their criminally obtained cash. Here, there exists no evidence of an early plan to
14 throw illegally obtained, stolen money or goods away if per chance pursued by law
15 enforcement after the robberies. Even were such a plan discussed before the crimes
16 occurred, my view would remain that the conspiracy to tamper with evidence can be
17 separately charged and a conviction obtained without violating double jeopardy.
18 Here, distinct and separate from their conspiracy to commit armed robberies
19 was the co-conspirators’ separately and later formed agreement to commit the acts that
22
1 formed the basis of the tampering with evidence charge—that was to “destroy, hide[,]
2 or place a cash register [and other evidentiary items] with the intent to prevent [their]
3 apprehension[.]” Evidence at trial demonstrated that the conspiracy to tamper with
4 evidence arose at approximately the same time when and in approximately the same
5 location where the co-conspirators were spotted and subsequently followed by the
6 police. The conspiracy to tamper with evidence ended when the purpose of the
7 criminal objective had been accomplished—that is, when Defendant’s co-conspirator
8 threw the items, including the cash box, out of the window of the moving vehicle.
9 Gallegos does not support the Majority’s holding. In Gallegos, each of the
10 separately charged conspiracies required the defendant and his co-conspirators to
11 contemplate inflicting great bodily harm or death upon the victim. Id. ¶ 57. And in
12 Gallegos, each separately charged conspiracy was formed and carried out in
13 furtherance of the single overarching conspiratorial goal of murdering the victim. Id.
14 ¶ 62.
15 In this case, unlike in Gallegos, the evidence and the applicable laws clearly
16 support the existence of two separate conspiratorial objectives. To convict Defendant
17 of conspiracy to commit armed robbery, the State was required to show that
18 Defendant and his co-conspirator agreed to
19 take and carry away a cash register and U.S. currency, which had some
20 value, from Pic Qwik or from [the store clerks’] immediate control,
23
1 intending to permanently deprive Pic Q[w]ik of the property, and . . .
2 [D]efendant was armed with a machete, a deadly weapon, and . . .
3 [D]efendant took the property by use or threatened use of force or
4 violence[.]
5 See UJI 14-1621 NMRA; UJI 14-2810. To convict Defendant of conspiracy to tamper
6 with evidence, the State was required to show that Defendant and his co-conspirator
7 agreed to “destroy, hide[,] or place a cash register [and other evidentiary items] with
8 the intent to prevent the apprehension, prosecution[,] or conviction of himself or
9 another[.]” See UJI 14-2241, 14-2810. Thus, unlike the separately charged
10 conspiracies at issue in Gallegos, the separately charged conspiracies in this case
11 shared neither elements nor intent. See Gallegos, 2011-NMSC-027, ¶ 57.
12 In sum, I do not believe that the facts of this case or the applicable law support
13 the existence of a single, overarching conspiracy that included both committing the
14 two armed robberies and discarding the fruits of their criminal pursuit. Application
15 of the principles articulated in Gallegos leads to a conclusion opposite that reached
16 by the Majority. I would affirm Defendant’s two separate conspiracy convictions.
17 __________________________________
18 JONATHAN B. SUTIN, Judge
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