April 13, 2015 – State of New Mexico v. Matthew Sanchez, No. 32,664

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: April 13, 2015

NO. 32,664

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

MATTHEW SANCHEZ,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Stephen D. Pfeffer, District J udge

Hector H. Balderas, Attomey General
Paula E. Ganz, Assistant Attomey General
Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Will O’ Connell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
HANISEE, Judge.
{1} 	Convicted of murder in the second degree and third-degree tampering with
evidence, Defendant Matthew Sanchez asserts three points of appeal: (1) the district
court committed reversible error by allowing the State to question a witness regarding
a prior act of Defendant that led to an unrelated assault charge, (2) insufficient
evidence existed to support his conviction for tampering with evidence, and (3) the
district court’s entry of conviction for third-degree tampering with evidence
constituted fundamental error. We determine that Defendant’s own areas of trial
inquiry permitted the State, as allowed and limited by the district court, to inquire
regarding the witness’s awareness of the prior act. We also hold that Defendant’s
conviction for third-degree tampering with evidence was supported by sufficient trial
evidence and was properly adjudicated. Accordingly, we affirm.
BACKGROUND
{2} 	On September 10, 2011, Defendant fatally stabbed his friend Tupac Amaru
Leyba (Victim) in the chest and later threw the weapon from his car window as he
departed the scene of the stabbing. The knife was never recovered. At trial, Defendant
testified and admitted that he stabbed Victim and lied to the police when interviewed
following the fatal event. However, he maintained that he acted exclusively in self-

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defense.
{3} 	During cross-examination of a State’s witness (Witness), defense counsel asked
if Witness remembered stating at a preliminary examination that Defendant “was a
very nice guy, that he’s very quiet and that he never really talked, that he was just a
nice guy.” When Witness indicated that she did recall making that statement, defense
counsel went on to inquire of Witness whether Victim had enemies, what if any
alcohol or other mood-altering substances had been consumed that night, and whether
Victim habitually carried a weapon. After this exchange, the State notified the court
that it intended to offer rebuttal evidence regarding Witness’s opinion of Defendant’s
demeanor and character. Despite the State’s warning, defense counsel further
questioned Witness if she had ever seen Defendant “become aggressive in any way
toward [Victim.]” Witness stated that she had not.
{4} 	Following this testimony, the State sought to rebut what it perceived to be the
presentation of character evidence by Defendant. It argued that by eliciting opinion
testimony from Witness regarding her impressions of Defendant’s peaceable
demeanor, defense counsel had opened the door to inquiry concerning three separate
incidents that bore the potential capacity to change Witness’s positive opinion of
Defendant. The events consisted of Defendant: (1) discharging a gun over the heads
of his family members, (2) threatening to kill a man over a debt, and (3) ramming a

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law enforcement vehicle and fleeing from police. Defense counsel objected, arguing
that his queries had not opened the door to the State’s desired topics of rebuttal and
that admission of such prior act evidence would unfairly prejudice Defendant.
{5} 	After pointing out that it was defense counsel’s questioning that elicited the
pertinent character trait of Defendant being a “calm and very nice guy” and
recognizing the State’s opportunity to “present evidence of something other than
that[,]” the district court conducted an inquiry designed to determine whether the
specific events of which the State proposed to question Witness were properly
admissible. Although it initially ruled that admitting questions regarding the three
prior incidents would cause undue delay and confusion of issues for the jury, after
conducting its own research, the district court determined that Rule 11-404(A)
NMRA, governing the admissibility of character evidence offered by a defendant and
rebutted by the State, controlled the inquiry. Pursuant to the rule, the court permitted
the State to question Witness regarding her awareness of one prior event in order to
rebut the character trait placed at issue by Defendant.
{6} 	Although the court found each of the State’s three desired topics of rebuttal
inquiry to be supported by good faith, it nonetheless disallowed inquiry regarding the
second and third events on the basis that both had been initially charged but were later
dismissed by the State. Noting that Defendant was then separately indicted for the

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crime of aggravated assault with a deadly weapon, the district court announced its
intention to allow the State to question Witness regarding any awareness she
possessed of Defendant having discharged a firearm over the heads of his family
members. It further ruled that upon any such inquiry, Defendant would be entitled to
a limiting instruction regarding the jury’s use of that evidence. The parties submitted
proposed versions of the question to be asked of Witness regarding the shooting
incident, and based again on its research the court chose to allow a “modified
. . . proposal of the State[.]” The question presented to Witness, in relevant part, was
as follows: “Were you aware that . . . Defendant had been accused of aggravated
assault with a deadly weapon for going to the property of an individual not associated
with this case and shooting a gun five to six times?” When Witness declared herself
to be unaware of the incident, the State asked: “If you were aware of that . . ., would
your opinion have changed?” Witness responded affirmatively.
{7} 	Immediately thereafter, the district court verbally provided the jury with a
previously agreed to limiting instruction, stating that it had “allowed questions by the
prosecution to test the opinion previously expressed by this witness to the effect
that . . . Defendant . . . is a calm and very nice person” and that the questions asked
were “not in and of themselves evidence that the matters which form the basis of the
questions did, in fact, occur and [the jury] must not consider these questions for any

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purpose other than the right of the prosecution to test an opinion of a witness as to an
asserted characteristic of . . . Defendant.” The instruction was repeated and twice
reiterated by the court prior to closing arguments and included within the printed
instructions given to the jury prior to deliberation. The jury convicted Defendant of
third-degree tampering with evidence and second-degree murder, and Defendant
appeals.
A. 	The District Court Properly Admitted Rebuttal Character Evidence
{8} 	Defendant contends that the district court committed reversible error in
allowing the State “to ask a question which recited unproven facts of an unrelated
aggravated assault case against [Defendant].” Defendant specifically argues that the
State’s “naked assertion” of the occurrence of a separate shooting incident was highly
prejudicial. He additionally appears to challenge allowance of the question on
grounds that it violated the general prohibition on prior acts evidence.
{9} 	Rule 11-404(A) governs both the allowance and limitation of character
evidence. See id. It states that “[e]vidence of a person’s character or character trait is
not admissible to prove that on a particular occasion the person acted in accordance
with the character or trait.” Rule 11-404(A)(1). However, an exception to this
prohibition exists in criminal cases, permitting “a defendant to “offer evidence of the
defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer

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evidence to rebut it[.]” Rule 11-404(A)(2)(a). Moreover, “[o]n cross-examination of
the character witness, the court may allow an inquiry into relevant specific instances
of the person’s conduct.” Rule 11-405(A) NMRA. We review the admission of
evidence during trial for an abuse of discretion and will not disturb a district court’s
ruling “absent a clear abuse of that discretion.” State v. Stanley, 2001-NMSC-037, ¶
5, 131 N.M. 368, 37 P.3d 85.
{10} 	We first emphasize that Defendant fails to provide any analysis or discussion
of Rule 11-404, or Rule 11-405, whatsoever in his briefing. Moreover, Defendant does
not appear to challenge whether his questioning of Witness during cross-examination
was directed toward the establishment of his peaceable nature. Instead, Defendant
relies exclusively on a single case, State v. Christopher, 1980-NMSC-085, 94 N.M.
648, 615 P.2d 263, in which our Supreme Court considered the propriety of the state’s
cross-examination of character witnesses regarding their knowledge of the defendant’s
criminal convictions twenty-three years earlier, as well as a separate and more recent
allegation of spousal assault. Id. ¶ 2.
{11} 	First addressing the prior convictions, our Supreme Court adopted the reasoning
of Michelson v. United States, 335 U.S. 469 (1948) (upholding cross-examination
inquiry of character witnesses regarding awareness of the defendant’s prior conviction
and the defendant’s separate prior arrest), and determined that the district court erred

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in allowing testimony regarding the prior convictions because: (1) the district court
failed to conduct an inquiry into whether the past events had occurred; (2) “none of
the witnesses had known the [defendant] for more than six years”; (3) the district court
did not provide the jury with a limiting instruction; (4) “the defendant offered no
evidence of specific prior acts”[;] and (5) defense counsel objected to the state’s
inquiry. Christopher, 1980-NMSC-085, ¶ 16-17. Separately, the Court considered the
propriety of the state’s inquiry into the alleged spousal assault and once more
determined that the district court erred, in part, because the abuse claim was supported
by nothing more than the wife’s allegation; further, the district court neglected to
separately assess the veracity of the state’s desired questions. Id. ¶¶ 21-23. Again, the
Court emphasized the district court’s failure to instruct the jury as to the limited
purpose of the state’s questioning. Id. ¶ 25.
{12} 	Defendant applies the Michelson factors, adopted in Christopher, and asks us
to reverse on these grounds. However, Christopher and its analysis of the Michelson
factors are distinguishable. First, we note that in spite of Defendant’s reliance on the
Michelson factors, our Supreme Court adopted that reasoning specifically with regard
to the prior convictions at issue in Christopher. 1980-NMSC-085, ¶ 11. Here, whether
or not Defendant had prior convictions was not at issue, nor was the admissibility of
any such evidence. Furthermore, unlike the circumstances surrounding the alleged

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spousal assault in Christopher, the district court here carefully assessed the veracity
of the events upon which the State sought to question Witness and ultimately found
only the shooting incident, for which Defendant’s indictment by a grand jury was then
pending, to be an appropriate avenue of rebuttive inquiry. In so ruling, the district
court rejected two of the prior acts that the State maintained to be appropriate
instances to rebut the implication of peaceableness provided to the jury during
Witness’s cross-examination by Defendant. Thus, the district court only allowed that
which fit within the plain language of the rule and bore independent indicia of
reliability pursuant to the independent charging process. Most critically, the court was
repetitiously diligent in ensuring that the jury was aware of the limited purpose of the
State’s questioning. Not only did it provide an immediate verbal limiting instruction
following Witness’s responsive testimony, but it again verbally admonished the jury
as to its limited ability to consider the testimony twice before closing arguments and
again within the jury instruction packet. For these reasons, we conclude that
Christopher, and its application of the Michelson factors, is distinguishable.
{13} 	Apart from Christopher, we reiterate that while Rule 11-404(A) prohibits the
admission of evidence of a person’s character trait “to prove that on a particular
occasion the person acted in accordance with the character or trait[,]” it does allow a
defendant to offer evidence of his or her own pertinent trait. Rule 11-404(A)(1),

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(A)(2)(a). Defendant, through his questioning of Witness, elicited evidence of his
nice, quiet, and non-aggressive nature, going so far as to refresh Witness’s
recollection of her own prior testimony. Under Rule 11-404(A)(2)(a), such evidence
is subject to rebuttal by the State. See State v. Martinez, 2008-NMSC-060, ¶ 24, 145
N.M. 220, 195 P.3d 1232 (stating that when a defendant offers evidence of his or her
own good character, the defendant opens the door to the state’s ability to question
witnesses about “their awareness of information inconsistent with good character”).
And while evidence of a person’s character or character trait is typically only
permitted to be proven by reputation or opinion testimony, pursuant to Rule 11-
405(A) “specific instances of the person’s conduct” are permitted on cross-
examination of a character witness. Evidence allowed by both rules was precisely the
nature of that which was made available to the jury during Defendant’s trial.
{14} 	Although we recognize that Witness was the State’s witness, and the State was
not cross-examining Witness, but redirecting, Defendant has not asserted the
inapplicability of Rule 11-404(A) or Rule 11-405 on appeal, and like the district court
before us, we note that this is a “parallel” situation where the State was essentially
“cross-examining [Witness] on redirect and [seeking] to bring up” matters already
raised by Defendant. As Defendant has cited no authority on this factual nuance, we
may assume none exists. State v. Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d 410

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(“Where a party cites no authority to support an argument, we may assume no such
authority exists.”). Thus, based on the distinguishable characteristics of Christopher
and our interpretation of the directly applicable provisions of Rule 11-404(A)(2)(a)
and Rule 11-405(A), we conclude that the limited inquiry allowed by the district court
coupled with its repeated cautionary instructions did not amount to an abuse of
discretion, and we affirm Defendant’s conviction for second-degree murder.
B. 	The Evidence was Sufficient to Support Defendant’s Conviction for
Tampering with Evidence
{15} 	Defendant challenges the sufficiency of the evidence against him for tampering
with evidence pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d
982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1. Defendant
argues that “a reasonable jury should have found him not guilty” due to the conflicting
evidence presented at trial. Defendant maintains that “the clear weight of the
evidence[] shows that he did not intend to mislead investigators when he disposed of
the knife.” The State responds that the evidence is for the jury to weigh, and the “jury
may draw its own conclusions about Defendant’s intent based upon [the] overt action
of throwing the knife out the [car] window as he drove away” from the crime scene.
We conclude that there was sufficient evidence presented to the jury to support
Defendant’s conviction for tampering with evidence.
{16} 	“The test for sufficiency of the evidence is whether substantial evidence of

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either a direct or circumstantial nature exists to support a verdict of guilt beyond a
reasonable doubt with respect to every element essential to a conviction.” State v.
Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks
and citation omitted). We review 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. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M.
185, 246 P.3d 1057 (internal quotation marks and citation omitted). In our capacity
as a reviewing court, we do not share the original ability of the jury to view the
evidence and witnesses firsthand; therefore, we defer to the jury’s findings. Id. We
will not “reweigh the evidence or attempt to draw alternative inferences from the
evidence.” State v. Estrada, 2001-NMCA-034, ¶ 41, 130 N.M. 358, 24 P.3d 793.
{17} 	Our Legislature has defined the elements of tampering with evidence to be: (1)
“destroying, changing, hiding, placing or fabricating any physical evidence[,]” (2)
“with intent to prevent the apprehension, prosecution or conviction of any person[,]
or to throw suspicion of the commission of a crime upon another.” NMSA 1978, § 30-
22-5(A) (2003). Because tampering with evidence is a specific intent crime,
conviction requires that the State present sufficient evidence to allow a jury to infer
both an overt act and the defendant’s subjective, specific intent. State v. Jackson,
2010-NMSC-032, ¶ 11, 148 N.M. 452, 237 P.3d 754. However, “[w]hen there is no

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other evidence of the specific intent of 	the defendant to disrupt the police
investigation, intent is often inferred from an overt act of the defendant.” Duran,
2006-NMSC-035, ¶ 14.
{18} 	In this case, Defendant testified that after he stabbed Victim with a knife, he
“jumped . . . in the car and . . . took off real fast” because he was scared and “just
freaked out.” He stated that he then “threw the knife out and . . . noticed [his phone]
charger was hanging out.” At this point, Defendant realized he had dropped his phone,
further deduced its possible presence at the scene of the stabbing, and reversed
direction to retrieve it. Upon arriving and observing that Victim remained where he
had been stabbed, Defendant left. He explained to the jury that he did not want Victim
to “start another conflict.” When asked why he discarded the knife, Defendant stated
that it “was [his] first reaction. [He] wanted to get it away” as he “just freaked out.”
He contended that his purpose in discarding the knife was not to avoid being
implicated in the crime.
{19} 	Defendant’s testimony describing having thrown the knife from his vehicle
satisfies the first element of tampering insofar as his act removed or concealed an item
of evidence. See § 30-22-5(A). Although Defendant contends that “the evidence
suggests [] a reasonable doubt . . . that [he] was guilty of tampering with evidence and
that a reasonable jury should have found him not guilty,” it is the role of the jury to

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weigh the credibility of a witness. State v. Santillanes, 1974-NMCA-092, ¶ 2, 86 N.M.
627, 526 P.2d 424. “The fact finder can choose to believe the [s]tate’s testimony and
disbelieve [the d]efendant's version of events.” State v. Fierro, 2014-NMCA-004, ¶
40, 315 P.3d 319, cert. denied, 2013-NMCERT-012, 321 P.3d 127. There is sufficient
evidence in the record to support Defendant’s conviction for tampering with evidence;
therefore we affirm the conviction. State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M.
126, 753 P.2d 1314 (“Where . . . a jury verdict in a criminal case is supported by
substantial evidence, the verdict will not be disturbed on appeal.”).
C. 	Entry of Conviction for Third-Degree Tampering Did Not Constitute
Fundamental Error
{20} 	Based on Defendant’s act discarding the knife used to kill Victim, he was
charged with third-degree tampering with evidence, which forbids tampering with
evidence relating to a capital crime or of a first-or second-degree felony. Section 30-
22-5(A), (B)(1). At trial, the jury was instructed that in order to find Defendant guilty
of tampering with evidence, Defendant must have “hid or placed the knife” used to
stab Victim in order to prevent his apprehension or prosecution. The jury was not,
however, instructed that the evidence must have related to a second-degree felony.
Therefore, Defendant argues that he was improperly convicted of third-degree
tampering because the State’s tampering instruction failed to ensure the jury’s
determination that Defendant intended to prevent his conviction related to a particular

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crime. Absent such a finding, Defendant argues that his sentence for third-degree
tampering with evidence violated his Sixth Amendment constitutional rights.
{21} 	We typically review this constitutional issue de novo. State v. Alvarado, 2012-
NMCA-089, ¶ 5, ___ P.3d ___. However, as Defendant concedes that this issue was
not properly preserved, we review solely for fundamental error. State v. Herrera,
2014-NMCA-007, ¶ 4, 315 P.3d 343. “The rule of fundamental error applies only if
there has been a miscarriage of justice, if the question of guilt is so doubtful that it
would shock the conscience to permit the conviction to stand, or if substantial justice
has not been done.” State v. Orosco, 1992-NMSC-006, ¶ 12, 113 N.M. 780, 833 P.2d
1146.
{22} 	As we have stated, tampering with evidence is, in relevant part, “destroying,
changing, hiding, placing or fabricating any physical evidence with intent to prevent
the apprehension, prosecution or conviction of any person[.]” Section 30-22-5(A).
“Section (B) [of the statute] establishes levels of punishment depending on the degree
of crime for which tampering with evidence is committed.” Jackson, 2010-NMSC-
032, ¶ 20 (internal quotation marks omitted). A person is guilty of third-degree
tampering “if the highest crime for which tampering with evidence is committed is a
capital or first[-]degree felony or a second[-]degree felony[.]” Section 30-22-5(B)(1).
“[I]f 	the 	highest 	crime 	for 	which 	tampering 	with 	evidence 	is 	committed 	is

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indeterminate,” such that no crime underlying the tampering could be identified, a
person is guilty of a fourth-degree felony. Section 30-22-5(B)(4); Jackson, 2010-
NMSC-032, ¶ 21.
{23} 	Defendant was charged with tampering with evidence of a second-degree felony
as prohibited by Section 30-22-5(B)(1). At trial, the district court generally instructed
the jury on tampering with evidence; the instruction did not require the jury to find
that Defendant’s act of tampering related specifically to a second-degree felony. It
merely stated that in order to find Defendant guilty of tampering with evidence, the
State must prove beyond a reasonable doubt that Defendant “hid or placed the knife
used to stab [Victim]” and by doing so, “[D]efendant intended to prevent his
apprehension, prosecution, or conviction.
{24} 	Defendant relies upon Alvarado, where we held that “when a defendant is
charged with third[-]degree tampering with evidence of a capital, first, or second[-
]degree felony,” the State must prove, beyond a reasonable doubt, that the evidence
with which the defendant tampered related to the underlying felony. 2012-NMCA-
089, ¶ 16. Because the State did not provide such proof, we determined that the proper
resolution was for the defendant to be sentenced under the indeterminate crime
provision of the statute. Id. While we acknowledge the analogous nature of Alvarado
and the case before us, we view Defendant’s case to be more appropriately on point

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with Herrera, 2014-NMCA-007, where, in an identical fundamental error analysis,
this Court considered the issue of whether, in the case of a conviction and sentence for
third-degree tampering with evidence, the omission of a finding that the weapon was
evidence of a second-degree felony violated a defendant’s right to have a jury find all
elements of the offense beyond a reasonable doubt. Herrera, 2014-NMCA-007, ¶¶ 4,
7. We determined that for the purpose of a Sixth Amendment challenge that argues for
entitlement to a jury determination of guilt beyond a reasonable doubt as to every
element of the charged crime, the factors contained within Subsection (B) of the
tampering statute were such that they “must be interpreted as elements of the offence,
rather than mere sentencing factors.” Herrera, 2014-NMCA-007, ¶¶ 8, 13. Although
we recognized that “the failure to instruct the jury on one of the elements of the
offense 	of 	third-degree 	tampering 	with 	evidence 	was 	error[,]” 	offending 	the
defendant’s rights under the Sixth Amendment, the error did not amount to
fundamental error as it was clear that on review of the entire record, the evidence
presented at trial established the missing element. Id. ¶ 17.
{25} 	Here, Defendant testified at trial that he stabbed Victim and “threw the knife
out” of the window of his moving vehicle. In finding Defendant guilty of tampering
with evidence, the jury determined that Defendant “tossed the knife” with the intent
to prevent his apprehension, prosecution, or conviction. Additionally, the jury found

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that the act of stabbing Victim with a knife was second-degree murder. Our review of
the record herein reveals that the only evidence presented at trial that related to
Defendant’s discard of the knife was the act of stabbing Victim. Because the jury
concluded that the stabbing constituted a second-degree felony, “the facts at trial
established that the tampering related to a second-degree felony.” Id. ¶ 18. While the
factors contained in Subsection (B) of Section 30-22-5 are essential elements of the
crime of tampering with evidence, and “the omission of an essential element of an
offense will often be found to be fundamental error,” the evidence at trial clearly
established the missing element, and therefore, we hold that the district court did not
fundamentally err. Herrera, 2014-NMCA-007, ¶ 17 (“If it is clear that the missing
element was established by the evidence at trial, the fact that the jury was not
instructed on the element is not considered fundamental error.”).
CONCLUSION
{26} 	For the forgoing reasons, we affirm Defendant’s convictions for second-degree
murder and third-degree tampering with evidence.
{27} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge

WE CONCUR:

MICHAEL E. VIGIL, Chief Judge

M. MONICA ZAMORA, Judge

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