December 16, 2025- State of New Mexico v. Alford T. Johnson III, No. A-1-CA-41845

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: December 16, 2025	3
No. A-1-CA-41845	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
ALFORD T. JOHNSON III,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	10
Daylene A. Marsh, District Court Judge	11
Raúl Torrez, Attorney General	12
Santa Fe, NM	13
Meryl E. Swanson, Assistant Solicitor General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Kimberly Chavez Cook, Appellate Defender	18
Santa Fe, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 12/16/2025 7:18 AM

OPINION	1
HANISEE, Judge.	2
{1} 	Following a jury trial, Defendant Alford T. Johnson III was convicted of	3
shooting at a dwelling, contrary to NMSA 1978, Section 30-3-8(A) (1993);	4
aggravated assault with a deadly weapon, contrary to NMSA 1978, Section 30-3-	5
2(A) (1963); abandonment of a child, contrary to NMSA 1978, Section 30-6-1(B)	6
(2009); and criminal trespass, contrary to NMSA 1978, Section 30-14-1(B) (1995).	7
On appeal, Defendant argues that (1) the evidence of child abandonment presented	8
by the State was insufficient as a matter of law; (2) the State failed to prove that	9
Defendant shot at a dwelling; (3) Defendant’s convictions for shooting at a dwelling	10
and aggravated assault violate principles of double jeopardy; and (4) evidentiary	11
error and prosecutorial misconduct cumulatively deprived Defendant of a fair trial.	12
For the reasons discussed below, we affirm.	13
BACKGROUND	14
{2} 	On the evening of January 13, 2023, Defendant left his home to take a walk	15
around his neighborhood. A bit thereafter, James Moore (Victim), observed a	16
trespasser in his backyard initially on his home security cameras. Victim went	17
outside, approached and tried engaging with the trespasser, who said nothing and	18
continued toward the front of Victim’s property, hopping over a gate and departing	19
from the front of Victim’s property. When Victim began walking back toward his	20

2
home, he heard gunshots coming from the side of his property, prompting him to run	1
inside and ask his wife to call the police.	2
{3} 	Shortly thereafter, Defendant was stopped nearby on foot at the intersection	3
of Largo Street and Kayenta Drive by police responding to Victim’s call. Defendant	4
was wearing a dark hoodie, khaki pants, and a beanie hat, all of which matched the	5
description of the person described to police by Victim’s wife. Police detained	6
Defendant, and a search of his person revealed a firearm, one empty fifteen-bullet	7
magazine, and a second such magazine holding thirteen bullets. Defendant told	8
police the firearm was for his protection while he was on a walk and admitted that	9
he was intoxicated. Defendant also informed police that his five-year-old son, M.J.,	10
was alone and asleep at his house.	11
{4} 	Victim was brought to the location where Defendant was being held and	12
Victim identified Defendant as the person he had encountered on his property. From	13
there, police took Victim back to his home, asked for his home security footage, and	14
began searching the property for evidence of bullet casings. Police eventually found	15
seventeen bullet casings on the road in front of Victim’s home, an impact location	16
on Victim’s pool house, and were later made aware by Victim of an impact location	17
on Victim’s “shop.” Video security footage revealed sparks where bullets struck the	18
pavement in front of Victim’s home and outside the exterior gate.	19

3
{5} 	Defendant was charged with shooting at a dwelling, aggravated assault with a	1
deadly weapon, abandonment of a child, two counts of criminal trespass and	2
negligent use of a deadly weapon. The jury found Defendant guilty of all charges	3
but for a single count of criminal trespass that the State dropped the morning of trial.	4
This appeal followed.	5
DISCUSSION	6
{6} 	Defendant makes several assertions of error on appeal that we address in the	7
order raised.	8
I. 	There Was Sufficient Evidence of Child Abandonment	9
{7} 	Defendant 	asserts 	that 	there 	was 	insufficient 	evidence 	to 	support 	his	10
conviction for child abandonment under Section 30-6-1. In his argument, Defendant	11
maintains that the State failed to show that he put his child at risk and urges this	12
Court to define “risk of harm” as it appears in the annotations of Section 30-6-1(B),	13
which as the jury was instructed required it to find in pertinent part that “[a]s a result	14
of [D]efendant leaving or abandoning [M.J.], [M.J.] was without proper parental care	15
and control necessary to prevent harm to [him]” and that “the circumstances exposed	16
[M.J.] to a risk of harm.” More specifically, Defendant suggests that in doing so, this	17
Court be guided by the standard for civil negligence in the context of child neglect,	18
and not that with which the jury was instructed to establish Defendant’s potential	19
criminal culpability, as the statutes are otherwise identical. Defendant raises this	20

4
issue for the first time on appeal, as the record reflects that he did not request a jury	1
instruction defining “risk of harm.” Our standard of review as applied to jury	2
instructions depends on whether an issue has been preserved, and if it has not been	3
preserved, we review for fundamental error. State v. Benally, 2001-NMSC-033,	4
¶ 12, 131 N.M. 258, 34 P.3d 1134.	5
{8} 	Defendant points to State ex rel. Children, Youth and Families Department v.	6
Heather S., 2025-NMSC-002, 563 P.3d 821, which addresses the civil abuse and	7
neglect “risk of harm” element under NMSA 1978, Section 32A-4-2(G)(2) (2018,	8
amended 2025) with a two-part test. See Heather S., 2025-NMSC-002, ¶ 29.	9
Defendant claims that under the standard for civil neglect, there is insufficient	10
evidence to support his conviction of child abandonment.0F
1 Unable to agree that such	11
analysis is legally sound in the criminal context, which is geared toward the punitive	12
consequences of child abandonment rather than the immediate safety of a child that	13
has been abandoned, we analyze Defendant’s claim under Section 30-6-1(B). See	14
State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts	15
1 In Heather S., our state Supreme Court defined “risk of harm,” stating, “[T]he
child must be subjected to circumstances that create a serious risk to the child’s
mental or physical health and safety. A serious risk is one that is likely to result in
important or dangerous consequences for the child.” 2025-NMSC-002, ¶¶ 35, 36. It
is not clear to us that even were this the standard applicable to this case the result
would be different given evidence that Defendant left M.J. alone and engaged in the
acts committed against Victim, evidence suggesting that in so doing Defendant
created a serious risk to the physical health and safety of M.J. that likely could have
resulted in dangerous consequences to M.J.

5
will not consider an issue if no authority is cited in support of the issue and . . . given	1
no cited authority, we assume no such authority exists.”).	2
{9} 	Accordingly, the applicable test to determine sufficiency remains “whether	3
substantial evidence of either a direct or circumstantial nature exists to support a	4
verdict of guilt beyond a reasonable doubt with respect to every element essential to	5
a conviction.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d	6
1314. “A reviewing court must view the evidence in the light most favorable to the	7
state, resolving 	all conflicts therein 	and 	indulging 	all 	permissible inferences	8
therefrom in favor of the verdict.” Id. This Court “does not weigh the evidence and	9
may not substitute its judgment for that of the fact[-]finder so long as there is	10
sufficient evidence to support the verdict.” Id. Where “a jury verdict in a criminal	11
case is supported by substantial evidence, the verdict will not be disturbed on	12
appeal.” Id.	13
{10} 	The jury was instructed that in order to find Defendant guilty of child	14
abandonment, the State was required to prove beyond a reasonable doubt, in	15
pertinent part, that “[D]efendant left or abandoned [M.J.]” and that “[a]t the time that	16
[D]efendant left or abandoned [M.J.], the circumstances exposed [M.J.] to a risk of	17
harm.” Defendant argues that the State failed to show that he left M.J. under	18
circumstances that placed him at risk, likening the instant facts to those of State v.	19
Stephenson. See 2017-NMSC-002, ¶¶ 1-2, 389 P.3d 272 (holding there to have been	20

6
insufficient evidence to conclude that a mother who left her child in his locked	1
bedroom for the night did so under circumstances where that child might have or did	2
suffer neglect). We disagree.	3
{11} 	Here, just as in Stephenson, the State is not required to show that Defendant	4
left M.J. without the intent to return, but rather whether there was sufficient evidence	5
for a reasonable juror to conclude that Defendant intentionally left M.J. at a time	6
when and under circumstances where M.J.’s well-being was at risk of harm. See id.	7
¶ 17. Defendant contends that he intended to take a “[five-] to [ten]-minute walk”	8
after putting M.J. to sleep and had he not been arrested, he would have returned	9
home before M.J. awoke. Defendant also argues that the State presented no evidence	10
that M.J. had a history of waking up in the middle of the night or that dangerous	11
circumstances in Defendant’s home presented a “particular risk of harm over a short	12
period of time.” Defendant’s argument is unsound.	13
{12} 	While the State points out that Defendant was a mile away from his home	14
where M.J. was sleeping at the time of his arrest, the State also points out that	15
Defendant put himself in a position by which he could have been unable to let anyone	16
know that M.J. was home alone without care. This Court acknowledges that “the	17
Legislature did not intend to criminalize conduct creating a mere possibility,	18
however remote, that harm may result to a child.” Id. ¶ 28 (internal quotation marks	19
and citation omitted). However, the facts of this case do not present mere possibility,	20

7
as was the case when the child in Stephenson was put to bed for the night in a room	1
near where his parents slept, but rather what actually happened—Defendant left his	2
five-year-old alone while he traipsed through the neighborhood intoxicated, armed,	3
and intending to cause criminal mischief, and therefore put M.J. at a risk of harm, as	4
M.J. was alone in Defendant’s home with no adult present or able to return to resume	5
caretaking responsibilities.	6
{13} 	Our state’s Supreme Court recognized in Stephenson that “to uphold [the	7
d]efendant’s conviction could potentially criminalize parents’ actions every single	8
time they tuck[ed] their children into bed and harm befalls their children at night	9
through some unfortunate accident, which we refuse to do.” Id. Such a circumstance	10
stands in stark contrast to Defendant’s choice to criminally trespass while armed and	11
intoxicated and fire multiple bullets in the direction of Victim and his house, which	12
foreseeably placed M.J.’s well-being at risk should Defendant himself have been	13
shot by Victim—or arrested, as he was. We conclude, then, that there was sufficient	14
evidence that supports Defendant’s conviction for child abandonment.	15
II. 	There Was Sufficient Evidence that Defendant Shot at a Dwelling	16
{14} 	Defendant’s next contention is that the State failed to prove that he shot “at”	17
a dwelling, asserting that under the State’s theory, Defendant was shooting only at	18
Victim and not at his home. In arguing that there is insufficient evidence to support	19
his conviction for shooting at a dwelling, Defendant claims that the State did not	20

8
present 	sufficient 	evidence 	that 	he 	intentionally 	shot 	at 	Victim’s 	home 	and	1
analogizes the facts here to those in State v. Comitz. See 2019-NMSC-011, ¶ 18, 443	2
P.3d 1130 (determining that the defendant intentionally targeted individuals and not	3
the house behind them, and therefore trial evidence was insufficient to support	4
conviction of felony murder predicated on the felony of shooting at a dwelling). The	5
State asserts that the facts here are distinguishable from those of Comitz, while also	6
stating that the evidence presented at trial was sufficient to convict Defendant of	7
shooting at a dwelling, and we agree. See id.	8
{15} 	We apply the same standard of review stated previously regarding sufficiency	9
of the evidence. We address Defendant’s argument here in two parts: first, as the	10
facts of this case relate to Comitz; and second, the element instruction given to the	11
jury.	12
{16} 	Defendant’s assertion that the facts of the case before us are similar to that of	13
Comitz and consequently warrant the same outcome is flawed. See 2019-NMSC-	14
011. In Comitz, days after a physical altercation regarding a narcotic debt between	15
the defendant and his friend’s stepson, the defendant—along with armed friends—	16
returned to his friend’s home armed with a handgun, shooting to death one victim	17
and injuring two others. Id. ¶¶ 2-8. Despite evidence a dwelling was behind the	18
direction to which many bullets were fired, our Supreme Court concluded that the	19
State failed to prove that the defendant committed the predicate felony of shooting	20

9
at a dwelling, and that evidence showed that “the goal of [the d]efendant and his	1
companions was to shoot at the [victims], not at the house.” Id. ¶ 18. Our Supreme	2
Court noted the absence of “bullet trajectory evidence” to demonstrate aim at the	3
dwelling, rather than the victims. Id. ¶ 22. There is a very stark contrast between	4
those facts and the facts of this case.	5
{17} 	Our view of the instant facts is that they are more akin to those of State v.	6
Arrendondo. 	See 	2012-NMSC-013, 278 P.3d 517 (holding that when a jury	7
considered evidence of bullets entering a home and the trajectory of those bullets,	8
they could reasonably infer that the defendant intentionally shot at a dwelling). Here	9
the State, as in Arrendondo, presented evidence supporting the conclusion that	10
Defendant intentionally shot at Victim’s home. See id. ¶¶ 36-37. For example, the	11
hail of gunfire Defendant fired hit a pool house on one side of the house and a shop	12
on the opposite end of the property. Victim testified that the damage to the shop was	13
found “roughly fifteen [feet] up from the outside level” and that he heard bullets	14
“whizzing through the trees” that stood between Defendant on one side and Victim	15
and his house on the other. Unlike in Comitz but similar to Arrendondo, these facts	16
indicate that Defendant fired from the street indiscriminately toward Victim’s home.	17
{18} 	Here, the jury was instructed that in order to find Defendant guilty of shooting	18
at a dwelling, the State was required to prove beyond a reasonable doubt that, in	19
pertinent part, “[D]efendant willfully shot a firearm at a dwelling” and “knew that	20

10
the building was a dwelling.” See UJI 14-340 NMRA. The crime of shooting at a	1
dwelling or occupied building is substantively defined as “willfully discharging a	2
firearm at a dwelling or occupied building.” Section 30-3-8(A). The evidence	3
supports a finding that Defendant willfully shot his firearm at a dwelling and had	4
knowledge that it was a dwelling because of his interaction with Victim, as required	5
by Section 30-3-8(A), and by the elements instruction. Viewing the evidence “in the	6
light most favorable to the guilty verdict and indulging all reasonable inferences and	7
resolving all conflicts in the evidence in favor of the verdict,” we conclude that the	8
State presented sufficient evidence to prove that Defendant shot at a dwelling. See	9
Comitz, 2019-NMSC-011, ¶ 16.	10
III. 	Defendant’s Convictions Do Not Result in a Double Jeopardy Violation	11
{19} 	Defendant’s third contention is that his convictions for shooting at a dwelling	12
and aggravated assault resulted in double jeopardy. Defendant argues that although	13
he fired multiple shots, the conduct of shooting at a dwelling and the aggravated	14
assault cannot be separated, making the conduct unitary. The State contends that	15
Defendant’s conduct was not unitary, evidenced not only by the gunshots hitting	16
opposite sides of Victim’s property but also by the number of shell casings recovered	17
near Victim’s home and their relation to the missing bullets from two clips found on	18
Defendant’s person.	19

11
{20} 	“Appellate review of a claim that multiple punishments have been imposed	1
for the same offense in violation of the Fifth Amendment prohibition against double	2
jeopardy presents a question of law which we review de novo.” State v. Sena, 2020-	3
NMSC-011, ¶ 43, 470 P.3d 227. Defendant contends that he was unconstitutionally	4
subjected to multiple punishments for the same conduct under two different statutes.	5
See Swafford v. State, 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 P.2d 1223 (describing	6
double description cases). The Swafford Court provided a two-part analysis for	7
evaluating such “double description” challenges. Id. ¶ 25. The first part of the	8
analysis asks “whether the conduct underlying the offenses is unitary, i.e., whether	9
the same conduct violates both statutes.” Id. If it is established that the conduct is	10
unitary, we then move to the second part of the analysis, which focuses on the	11
statutes in question “to determine whether the legislature intended to create	12
separately punishable offenses.” Id.	13
{21} 	“When determining whether [the d]efendant’s conduct was unitary, we	14
consider whether [the d]efendant’s acts are separated by sufficient indicia of	15
distinctness.” State v. DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61	16
(internal quotation marks and citation omitted). “Conduct is unitary when not	17
sufficiently separated by time or place, and the object and result or quality and nature	18
of the acts cannot be distinguished.” State v. Silvas, 2015-NMSC-006, ¶ 10, 343 P.3d	19
616. “Distinctness may also be established by the existence of an intervening event,	20

12
the defendant’s intent as evinced by his or her conduct and utterances, the number	1
of victims, and the behavior of the defendant between acts.” State v. Barrera, 2001-	2
NMSC-014, ¶ 36, 130 N.M. 227, 22 P.3d 1177 (internal quotation marks and citation	3
omitted). “The proper analysis is not what a reasonable jury could have concluded	4
but whether there are ‘sufficient facts in the record’ to support distinct conduct which	5
would defeat a double jeopardy claim.” State v. Phillips, 2024-NMSC-009, ¶ 41, 548	6
P.3d 51 (quoting State v. Sanchez, 1996-NMCA-089, ¶ 11, 122 N.M. 280, 923 P.2d	7
1165).	8
{22} 	As the State argues, “Defendant’s intent was not limited to assaulting	9
[Victim]—Defendant also intended specifically to shoot the dwelling,” and we	10
agree. There are sufficient facts in the record to support distinct conduct. The jury	11
was presented with Victim’s testimony and video evidence from Victim’s security	12
camera system showing Defendant walking then running from Victim toward	13
Victim’s front gate. Defendant is shown scaling the gate and is depicted running in	14
a northeasterly direction on Railroad Street toward Largo Street. Victim testified that	15
he did not follow Defendant off the property, and the video shows him instead	16
turning and walking back toward his house. Seconds later, three flashes of light can	17
be seen coming from the area where Defendant ran down Railroad Street. Defendant	18
testified that he believed those flashes were gunfire ricocheting off of Railroad Street	19
toward the front gate, which was the last place Defendant interacted with Victim.	20

13
The trajectory of those shots was not in the direction of the home, but in the location	1
near where Defendant interacted with Victim last.	2
{23} 	Separately, Victim testified that he heard bullets “whistling through the trees”	3
and that “he was concerned that he might get shot” as he was sprinting into his house.	4
And evidence was presented that two of Defendant’s shots impacted structures on	5
extreme opposite sides of Victim’s property. For example, the impact on the pool	6
house supports a bullet traveling in a northwesterly direction, while the gunfire down	7
Railroad Street toward the gate supports bullets traveling in a southwesterly	8
direction. This indicates that Defendant intended to shoot not only at Victim but also	9
separately at his home and other structures.1F
2 See Herron v. State, 1991-NMSC-012,	10
¶ 15, 111 N.M. 357, 805 P.2d 624 (providing that a change in the defendant’s intent	11
supports distinct conduct); cf. State v. Demongey, 2008-NMCA-066, ¶ 16, 144 N.M.	12
333, 187 P.3d 679 (stating that there was no evidence indicating that the defendant	13
rethought his actions or ceased his actions and then reformulated his intent).	14
{24} 	The jury was free to reject the State’s theories as to Defendant’s conduct, but	15
we will not substitute our judgment for that of the finder of fact. See State v.	16
2 This case is similar to a memorandum opinion filed by this court last year, in
which the defendant shot bullets through both the front and rear windows of his own
truck. See State v. Andazola, A-1-CA-39763, mem. op. (N.M. Ct. App. Apr. 20,
2023) (nonprecedential). In Andazola, we wrote that the “fact that the second shot
was fired in the opposite direction indicates that [the d]efendant had a different
objective and intent in discharging his firearm the second time.” Id. ¶ 16.

14
Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737. As this conduct is	1
not unitary, we need not evaluate whether the Legislature intended to create	2
separately punishable offenses. See State v. Torres, 2018-NMSC-013, ¶ 21, 413 P.3d	3
467 (“When unitary conduct is the basis for multiple convictions, we must attempt	4
to determine whether the Legislature intended to punish the crimes separately.”	5
(alterations, internal quotation marks, and citation omitted)). Therefore, we hold that	6
Defendant’s convictions for both shooting at a dwelling and aggravated assault do	7
not violate double jeopardy.	8
IV. 	Defendant’s Unpreserved Claims of Error Did Not Result in Plain Error	9
{25} 	Defendant’s final contention is that several unpreserved evidentiary errors and	10
prosecutorial misconduct cumulatively deprived him of a fair trial. Specifically,	11
Defendant contends that (1) his attorney did not object to improper testimony	12
regarding uncharged acts at the Smith house and addressing the ultimate issue by	13
asserting he committed abandonment and substantiating the case agent’s charging	14
decisions; (2) prosecutorial misconduct in closing argument requires reversal; and	15
(3) cumulatively, evidentiary error and misconduct require reversal for a new trial.	16
We review unpreserved evidentiary matters for plain error, see State v. Montoya,	17
2015-NMSC-010, ¶ 46, 345 P.3d 1056, and unpreserved claims of prosecutorial	18
misconduct for fundamental error. See State v. Trujillo, 2002-NMSC-005, ¶ 52, 131	19
N.M. 709, 42 P.3d 814.	20

15
{26} 	The doctrine of plain error, arising from our Rules of Evidence, applies	1
specifically to evidentiary matters and permits a court to “take notice of a plain error	2
affecting a substantial right, even if the claim of error was not properly preserved.”	3
Rule 11-103(E) NMRA. “To find plain error, the Court must be convinced that	4
admission of the testimony constituted an injustice that created grave doubts	5
concerning the validity of the verdict.” Montoya, 2015-NMSC-010, ¶ 46 (internal	6
quotation marks and citation omitted). “[I]n determining whether there has been	7
plain error, we must examine the alleged errors in the context of the testimony as a	8
whole.” Id. (omission, internal quotation marks, and citation omitted).	9
A. 	Uncharged Acts at the Smith House and the Police Officers’ Testimony	10
{27} 	At trial, Paula and Ken Smith (Mr. Smith and Mrs. Smith) testified regarding	11
events that happened to them the same night that Defendant was arrested. Mrs. Smith	12
testified that she was woken up by someone trying to enter her bedroom by rattling	13
the bedroom doors from the exterior of the home in her backyard. Mrs. Smith stated	14
that “[i]t was terrifying” and that she immediately went to find her husband across	15
the hall to alert him that someone was trying to enter their home, and then called the	16
police. Mr. Smith testified that he went out the front door of the home and noticed	17
someone walking on his driveway. Mr. Smith stated that the trespasser was wearing	18
a black hoodie and was about five feet, ten inches tall. Mr. Smith tried engaging with	19

16
the trespasser, who told Mr. Smith that he was “lost” and eventually left the Smiths’	1
property.	2
{28} 	Defendant argues that all testimony brought by the Smiths was evidence of	3
uncharged conduct that could serve no other purpose than propensity under Rule 11-	4
404(B) NMRA, and that because the State dismissed the original Count 4 (trespass	5
at the Smiths’ home), defense counsel had not reviewed an amended information or	6
jury instructions before the State’s case-in-chief. Defendant also argues that	7
testimony by Officers Lin and Standley constitutes plain error because it bore on the	8
“ultimate issue” of child abandonment.	9
{29} 	We note that “Rule 11-404(B) is a rule of inclusion, not exclusion, providing	10
for the admission of all evidence of other acts that is relevant to an issue in trial,	11
other than the general propensity to commit the crime charged.” State v. Phillips,	12
2000-NMCA-028, ¶ 21, 128 N.M. 777, 999 P.2d 421 (internal quotation marks and	13
citation omitted). Evidence of a prior bad act is admissible “if it bears on a matter in	14
issue, such as intent, in a way that does not merely show propensity.” State v.	15
Sarracino, 1998-NMSC-022, ¶ 22, 125 N.M. 511, 964 P.2d 72 (internal quotation	16
marks and citation omitted). “If evidence of prior acts is relevant and admissible for	17
a purpose other than proving a defendant’s propensity to commit a crime, the	18
probative value of evidence must outweigh its prejudicial effect.” State v. Hnulik,	19
2018-NMCA-026, ¶ 28, 458 P.3d 475.	20

17
{30} 	The State offered the Smiths’ testimony as “circumstantial evidence that was	1
relevant to the non[]propensity issues” and not to confirm evidence of Defendant’s	2
alleged other acts. Although the incident at the Smiths’ home did not lead to trial,	3
the State argues that their testimony was relevant to the identity of the Defendant	4
and for rebutting Defendant’s “claim that he was simply out for an innocent walk	5
when he encountered police.” The State also contends that admission of the Smiths’	6
testimony was not unduly prejudicial as the Smiths did not affirmatively state that	7
the trespasser who entered their property was Defendant, nor that the trespasser was	8
armed with a weapon or committed any acts of violence on their property. We agree	9
with the State.	10
{31} 	Moving to the testimony of both Officers Lin and Standley, we are not	11
persuaded that either officer gave their opinion as to the ultimate issue in the case. It	12
is undisputed by the parties that “it is improper for a law enforcement officer to give	13
his opinion as to the ultimate issue in [a] case.” See State v. Ashley, 1997-NMSC-	14
049, ¶ 19, 124 N.M. 1, 946 P.2d 205. Neither officer was asked to reach a legal	15
conclusion or offered a legal conclusion as to whether Defendant committed the	16
crime of child abandonment, but rather each testified to the information gathered	17
from the investigation such as what they were told by Defendant about where M.J.	18
was at the time he was arrested. The jury was free to reject both the testimony of	19
Officers Lin and Standley as the jury had other evidence to make its determination	20

18
of Defendant’s guilt as to the child abandonment charge, such as the lapel footage	1
and testimony from M.J.’s mother. Cf. Lopez v. Heesen, 1961-NMSC-122, ¶ 28, 69	2
N.M. 206, 365 P.2d 448 (“Opinion evidence on an ultimate issue of fact does not	3
attempt or have the power to usurp the functions of the jury, and this evidence could	4
not usurp the jury’s function because the jury may still reject these opinions and	5
accept some other view.”). To the extent the officers’ testimony could be viewed as	6
answering any of the ultimate questions, we are not “convinced that admission of	7
[such] testimony constituted an injustice that created grave doubts concerning the	8
validity of the verdict[s]” after considering “the testimony as a whole.” Montoya,	9
2015-NMSC-010, ¶ 46 (internal quotation marks and citations omitted).	10
{32} 	We hold that it was not plain error to admit the testimony of the Smiths and	11
Officers Lin and Standley without objection from the defense at trial.	12
B. 	Prosecutorial Misconduct	13
{33} 	Defendant next argues that statements made by the State during closing	14
argument constitute prosecutorial misconduct warranting reversal, specifically when	15
the State asked the jury “not to hold it against” the State when it failed to present	16
forensic evidence, and rather only rely on what was presented to the jury throughout	17
the trial.	18
{34} 	When no claim of prosecutorial conduct was raised at trial, we review for	19
fundamental error. See State v. Allen, 2000-NMSC-002, ¶ 95 128 N.M. 482, 994	20

19
P.2d 728. While we find no error in the statement by the State during closing	1
argument, we will explain why even if the comment were erroneous, it falls short of	2
fundamental error. See State v. Sosa, 2009-NMSC-056, ¶ 35, 147 N.M. 351, 223	3
P.3d 348.	4
{35} 	Fundamental 	error 	occurs 	when 	prosecutorial 	misconduct 	in 	closing	5
statements compromises a defendant’s right to a fair trial, and we will reverse a	6
conviction despite defense counsel’s failure to object. See State v. Rojo, 1999-	7
NMSC-001, ¶ 55, 126 N.M. 438, 971 P.2d 829. In order to find fundamental error,	8
we 	must 	be 	convinced 	that 	the 	prosecutor’s 	conduct 	created 	“a 	reasonable	9
probability that the error was a significant factor in the jury’s deliberations relative	10
to the other evidence before them.” DeGraff, 2006-NMSC-011, ¶ 22. In order to	11
determine whether Defendant was deprived of a fair trial, this Court “review[s] the	12
comment in context with the closing argument as a whole . . . so that we may gain a	13
full understanding of the comments and their potential effect on the jury.” State v.	14
Fry, 2006-NMSC-001, ¶ 50, 138 N.M. 700, 126 P.3d 516 (internal quotation marks	15
and citation omitted). “[T]he general rule is that an isolated comment made during	16
closing argument is not sufficient to warrant reversal.” Sosa, 2009-NMSC-056, ¶ 29,	17
147 N.M. 351, 223 P.3d 348 (internal quotation marks and citation omitted).	18
{36} 	Upon reviewing the record, we conclude that the State’s closing argument	19
when analyzed as a whole did not deprive Defendant of a fair trial. We conclude that	20

20
the State’s statements regarding the absence of testing connecting the seventeen	1
casings to Defendant’s firearm was not the primary focus of the State’s closing	2
argument, and we therefore cannot say that it impacted the jury’s verdict. As	3
Defendant points out, the State reiterates its argument that Defendant’s gun and	4
magazines would have held thirty-one rounds fully loaded, which was consistent	5
with the seventeen casings and fourteen live rounds found on him when stopped by	6
the police. Further, as the State attests, some of the statements made in closing	7
argument by the State regarding the seventeen casings were in response to	8
Defendant’s closing argument. We cannot conclude that the State’s comments	9
during closing argument significantly altered the trial or confused the jury. See id.	10
¶ 34 (“[T]he common thread running through the cases finding reversible error is	11
that the prosecutor[’]s comments materially altered the trial or likely confused the	12
jury by distorting the evidence, and thereby deprived the accused of a fair trial.”).	13
{37} 	With the evidence presented by the State at trial considered as a whole, as well	14
as the minimal prejudicial effect of its comments during closing argument, we hold	15
that Defendant has not shown fundamental error.	16
{38} 	Because we found no evidentiary error nor prosecutorial misconduct, we need	17
not address Defendant’s claim that together those claims require reversal.	18
CONCLUSION	19
{39} 	For the reasons set forth above, we affirm.	20

21
{40} 	IT IS SO ORDERED.	1
_________________________	2
J. MILES HANISEE, Judge	3
WE CONCUR:	4
____________________________________	5
JACQUELINE R. MEDINA, Chief Judge	6
____________________________________	7
KRISTOPHER N. HOUGHTON, Judge	8