January 26, 2012 – State of New Mexico v. Sheila Bahney, No. 29,817

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: January 26, 2012
NO. 29,817
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
SHEILA BAHNEY,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
John W. Pope, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
Jacqueline Cooper, Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
HANISEE, Judge.
{1} 	Defendant Sheila Bahney appeals from six counts of criminal conviction that
are the result of her participation in the kidnapping, killing, and incineration of
Barbara Lumsey, as well as the attempted cover-up of those crimes. We reject the
bulk of Defendant’s arguments and affirm all but one of her convictions, the lone
exception being conspiracy to commit aggravated arson. Supported by recent New
Mexico case law, we hold that Defendant’s separate conspiracy convictions, based on
one overarching agreement, violate double jeopardy. Based also on our precedent, we
reject Defendant’s remaining double jeopardy contentions and hold that the evidence
presented at trial was sufficient to support the jury’s verdict. We also determine that
the trial court did not abuse its discretion by admitting photographs which included
images of Lumsey, her injuries, and the crime scene, and conclude Defendant has
failed to establish ineffective assistance of trial counsel. We therefore affirm in part,
reverse in part, and remand with instructions to vacate Defendant’s conviction for
conspiracy to commit aggravated arson and re-sentence accordingly.
I. 	BACKGROUND
{2} 	On November 4, 2005, at approximately 7:00 p.m., Barbara Lumsey was found
dead in the trunk of a still-burning vehicle adjacent to a public elementary school in
Belen, New Mexico. 	Forensic investigators determined that although she was

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severely beaten—her hyoid bone and the thyroid structure in her throat having been
fractured, and a molar dislodged—it was the fire that caused her death. 	The
circumstances of Lumsey’s homicide are the subject of Defendant’s underlying
convictions and this appeal.
{3} 	The State’s evidence showed that at the time of the murder, Defendant lived in
her Belen mobile home with three other individuals: her husband, Tom Bahney; her
five-year-old grandson, Bobby; and her godson, Angel Esquibel. Esquibel’s girlfriend,
Jessica Cavasos, frequently stayed at the Bahney residence and was a participant in
the crimes against Lumsey. Also involved were Anthony Sanchez and Patricia Sipes,
neighbors and friends of Esquibel.
{4} 	In the early morning hours of November 4, 2005, Defendant and her husband
left for work, leaving Esquibel to prepare Bobby for school and ensure that he boarded
the school bus at 7:30 a.m. Following Bobby’s departure for school, events leading
to Lumsey’s death began to rapidly unfold: (1) Lumsey drove her car to the Bahney
residence and spoke with Esquibel, (2) Esquibel viciously beat Lumsey after an
argument, covering her head and upper torso, his hands, and parts of the living room
with blood, (3) Esquibel enlisted the assistance of Cavasos and Sanchez following the
initial assault and kept Lumsey quiet by threatening her with a knife retrieved by
Sanchez, (4) Esquibel force-fed Lumsey a handful of prescription pills located by

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Cavasos within the Bahney residence, and (5) Esquibel washed Lumsey’s blood from
his body, dressed, and contacted Defendant, who said she would be home “within five
to ten minutes.”
{5} 	Upon her return at 10:30 a.m., Defendant walked through the front door and
encountered a bloodied, beaten, and drugged Lumsey lying and moaning in the
hallway, with Esquibel, Cavasos, and Sanchez watching over her. 	Defendant and
Esquibel had a brief, private conversation, and Esquibel helped Defendant carry
groceries into the mobile home. Afterward, Defendant sat at a computer in the living
room, within close proximity to Lumsey, who was positioned in the hallway
immediately adjacent to the living room. Defendant remained seated and silent when
Esquibel forced Lumsey to rise and walk into his bedroom, where he duct-taped her
hands and tied her to his bed frame with rope.
{6} 	Esquibel then telephoned Sanchez, who had returned to his own mobile home,
and instructed him to come back to the Bahney residence because Defendant wanted
to speak with him. When Sanchez returned, Defendant—who remained seated at the
living room desk playing computer games—“looked at [Sanchez] and kind of giggled
and said, ‘You don’t look too good.’” Sanchez replied, “No, this is bullshit. I don’t
belong here.” 	Defendant then asked Sanchez if he needed “to smoke a bowl.”
Sanchez agreed and smoked marijuana with Defendant before again returning to his

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home across the street.
{7} 	Tom Bahney arrived home from work at 11:15 a.m. and also spoke privately
with Esquibel before entering the front door. Once inside, he sat on the living room
couch directly across from Defendant—who remained at the computer —and began
to watch television. 	Esquibel paced back and forth in the hallway between his
bedroom where Lumsey lay bound and tied and the living room where the Bahneys
sat. He repeatedly muttered “bitch” in Spanish, and expressed agitation regarding an
impending civil court hearing in Albuquerque that he was required to attend at 1:30
p.m. that day. At approximately noon, Esquibel declared his intention to take Lumsey
“to the state police office and kill her there and turn himself in.” Defendant abruptly
spoke in opposition to Esquibel’s plan, saying “don’t do it, just go to court.” Esquibel
agreed, acquired the car keys from Tom Bahney, and he and Cavasos walked to the
door to depart for court. On the way out, Esquibel instructed the Bahneys to “watch
[Lumsey]” and “make sure she [did not] make any noise.” No conversation ensued,
yet when Esquibel and Cavasos returned three hours later the Bahneys remained
posted at the house—Defendant at the computer and Tom Bahney stationed in the
hallway. 	Neither had notified the police and, consistent with Esquibel’s wishes,
Lumsey remained affixed to the bed, helpless and unassisted during Esquibel’s
lengthy absence.

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{8} 	Once home, Esquibel immediately checked on Lumsey and demanded that
Cavasos help her go to the bathroom. When Cavasos refused, Esquibel grabbed her
by the throat and asked her whether she wanted to end up like Lumsey. 	Cavasos
broke loose from Esquibel’s grip in the hallway and walked toward the living room,
but Esquibel again grabbed her violently, this time by the hair. Defendant and Tom
Bahney quickly reacted in defense of Cavasos, telling Esquibel, “Don’t do it.”
Esquibel promptly released Cavasos, who tearfully retreated to the living room sofa.
{9} 	Shortly following her intervention on behalf of Cavasos, Defendant instructed
Esquibel in a demanding tone to “do something or figure something out because
Bobby [is] going to be home soon.” 	Esquibel quickly enlisted the aid of Patricia
Sipes, who lived with Sanchez across the street. Sipes followed Esquibel’s requests
and “wiped . . . down” Lumsey’s car, which had been parked outside the Bahney
residence since her arrival that morning. As well, Esquibel instructed Cavasos to help
Sipes gather Lumsey’s effects and bring them into the Bahney home.
{10} 	At approximately 4:00 p.m., Bobby arrived home from school and the Bahneys
met him at the front door with toys and instructions to play outside. 	Even then,
Lumsey remained duct-taped and tied to Esquibel’s bed. Esquibel resumed pacing the
hallway between the bedroom and the living room, checking on Lumsey periodically,
until he announced to everyone in the living room, “I’m going to just torch the car.”

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Shortly thereafter, Defendant stated that she was “going to take Bobby to Walmart.”
Esquibel instructed Cavasos to accompany Defendant and Bobby.
{11} 	Esquibel and Tom Bahney remained at the Bahney home with Lumsey, while
the two women and Bobby proceeded to Walmart. 	There, they walked around for
nearly forty-five minutes, including an extended stop to watch lobsters in the store
tank, without placing a single item in their shopping cart. At some point, Esquibel
called Cavasos’s mobile phone to request lighter fluid and asked to speak with
Defendant. After Defendant’s short conversation with Esquibel, she turned the cart
and proceeded directly to the aisle containing charcoal lighter fluid. 	Cavasos
accompanied her, and the women acquired the last two remaining bottles of lighter
fluid in the store. 	They stopped briefly to get Bobby some food for dinner before
checking out at the register. Defendant paid for each item purchased, including the
lighter fluid. The trial record confirms that Defendant had no typical household need
for charcoal lighter fluid, as there existed only a propane-fueled barbeque grill at the
Bahney residence.
{12} 	Shortly after 6:00 p.m., Defendant, Cavasos, and Bobby arrived home.
Defendant placed a box containing both bottles of lighter fluid on the kitchen counter
and told Esquibel, “It’s in the box. It’s over there.” Thereafter, Defendant, joined by
Bobby, retreated to a bedroom separate from that occupied by Lumsey. 	By all

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accounts, Defendant had no further contact with any of the other adults until after
Lumsey’s car, with Lumsey imprisoned within it, had been successfully set ablaze and
abandoned.
{13} 	Esquibel, Cavasos, Sipes, and Tom Bahney undertook the process of removing
Lumsey from the house in order to depart the Bahney residence. 	Sipes positioned
Lumsey’s vehicle on the opposing side of a five-foot-tall fence immediately behind
the mobile home. 	Esquibel doused the car with the lighter fluid purchased and
supplied by Defendant, and used wire cutters retrieved by Cavasos to disable the
release cable normally accessible within the interior trunk. Esquibel and Tom Bahney
led Lumsey outside—with her hands still bound—before lifting and dropping her over
the fence, head first, into her own open trunk. Sipes then drove Lumsey’s lighter-
fluid-soaked car, with Lumsey trapped in the trunk, to the nearby elementary school
located several miles from the Bahney residence. Esquibel and Tom Bahney followed
Lumsey’s vehicle in a separate car, while Cavasos remained at the Bahney residence
to clean away evidence of Lumsey’s beating. On the roadside adjacent to the school,
Lumsey’s car was lit on fire. The trio immediately returned to the Bahney residence
in the remaining vehicle, having been alarmed by a school custodian who observed
them, and who following their departure notified police. Lumsey’s vehicle burned,
with her imprisoned in the trunk, for nearly ten minutes before emergency services

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arrived. 	Due to the volume of accelerant poured into and upon Lumsey’s vehicle,
firefighters were unable to completely extinguish the flames for approximately twenty
additional minutes. The fire resulted in Lumsey’s death and the consumption of much
of the vehicle’s interior, as well as both rear tires.
{14} 	After the series of crimes against Lumsey was completed and she was dead, the
Bahney household directed their attention to the ongoing clean-up effort. Cavasos
continued to scrub Esquibel’s room where Lumsey had been tied to the bed, as well
as the living room wall, a chair, and a portion of flooring that was spattered with
Lumsey’s blood. 	The next day, Defendant washed the blood-stained living room
blinds and reported her accomplishment to Esquibel. In the ensuing days, the Bahney
residence returned to normalcy. Defendant transported Cavasos to and from work,
and Defendant and Tom Bahney even attended a concert at the Route 66 Casino the
evening after Lumsey’s murder. Shortly thereafter, all participants were identified by
law enforcement and arrested.
{15} 	In district court, each case was independently resolved. Cavasos and Sanchez
pleaded guilty to lesser crimes and were called as witnesses by the State during
Defendant’s trial. Tom Bahney pleaded guilty to first-degree murder. Following the
commencement of his own trial, Esquibel entered into a plea agreement where he too
pleaded guilty to first-degree murder, as well as related crimes. Sipes and Defendant

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were tried separately and each was convicted by a jury of second-degree murder, in
addition to a handful of ancillary charges, including for Defendant: kidnapping,
aggravated arson, conspiracies to commit each, and tampering with evidence.
Defendant presents each of the following arguments on appeal: (1) her convictions
are unsupported by sufficient evidence, (2) the multitude of convictions based on the
same conduct violates double jeopardy, (3) the district court abused its discretion in
admitting photographs of Lumsey’s charred body and vehicle, and (4) her trial counsel
was ineffective by failing to inform her of her right to testify, failing to call an alibi
witness, and failing to object to certain testimony. We examine each claim in detail
below.
II. 	DISCUSSION
A. 	Double Jeopardy
{16} 	We begin our legal analysis by reviewing Defendant’s contentions that many
of her convictions violate the double jeopardy clauses of the United States and New
Mexico Constitutions. Double jeopardy affords a criminal defendant three layers of
protection: 	(1) “protects against a second prosecution for the same offense after
acquittal”; (2) “protects against a second prosecution for the same offense after
conviction”; and (3) “protects against multiple punishments for the same offense.”
Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991). This appeal relates to

10
the third level of protection identified by Swafford, which has been further divided
into two categories: 	“unit of prosecution” cases—“in which a defendant has been
charged with multiple violations of a single statute based on a single course of
conduct,” and “double-description” cases—“in which a defendant is charged with
violations of multiple statutes for a single conduct[.]” State v. DeGraff, 2006-NMSC-
011, ¶ 25, 139 N.M. 211, 131 P.3d 61. In this case, Defendant maintains that double
jeopardy bars (1) her conviction of two conspiracy counts based on facts that amount
to a single overarching agreement under our “unit of prosecution” analysis; and (2)
her remaining five convictions, with the exception of tampering with evidence, under
our “double-description” analysis. While our precedent within New Mexico case law
defeats the latter contention, we do agree that under these facts Defendant’s double
jeopardy rights were violated by her separate conspiracy convictions.
{17} 	Recently, the New Mexico Supreme Court addressed double jeopardy in the
context of multiple conspiracy convictions in a strikingly similar case, State v.
Gallegos, 2011-NMSC-027, 149 N.M. 704, 254 P.3d 655. 	In Gallegos, the Court
applied our “unit of prosecution” analysis to the crime of conspiracy. Id. ¶¶ 31, 50
(describing our “unit of prosecution” analysis as asking first whether “the statutory
language spells out the unit of prosecution,” and second, if no legislative guidance is
apparent, determining whether a defendant’s acts are separated by sufficient “indicia

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of distinctness” to justify multiple punishments under the same statute (internal
quotation marks and citation omitted)). Based on its detailed analysis of NMSA 1978,
Section 30-28-2 (1979) (Conspiracy), the Court determined that “the Legislature
established what we will call a rebuttable presumption that multiple crimes are the
object of only one, overarching, conspiratorial agreement subject to one, severe
punishment set at the highest crime conspired to be committed.” 	Gallegos, 2011-
NMSC-027, ¶ 55. The Court adopted “[t]he totality of the circumstances test utilized
by the federal circuits” in announcing the nature of evidence required to overcome the
presumption. The test asks whether:
(a) the [location] of the two alleged conspiracies is the same; (b) there is
a significant degree of temporal overlap between the two conspiracies
charged; 	(c) 	there 	is 	an 	overlap 	of 	personnel 	between 	the 	two
conspiracies (including unindicted as well as indicted co-conspirators);
and (d) the overt acts charged and the role played by the defendant . . .
[in the alleged conspiracies are] similar.
Id. ¶¶ 56, 42 (alterations in original).
{18} 	Applying the framework adopted in Gallegos to Defendant’s convictions for
conspiracy to commit kidnapping and aggravated arson, we hold that Defendant
“entered into only one agreement and took part in only one conspiracy.” Id. ¶¶ 57, 62
(holding that conspiracies of first-degree murder, kidnapping, and aggravated arson
must merge in light of the fact that “the conspiracy to commit kidnapping should be
understood as one aspect of a larger continuous combination that eventually embraced

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murder as its central objective”). As in Gallegos, the conspiracies of which Defendant
was convicted involved a single victim and each embraced a collective intent by co-
conspirators to inflict an interrelated series of harms upon her. See NMSA 1978, § 30-
4-1 (2003) (stating that conspiracy to commit kidnapping requires a finding that
Defendant intended to hold Lumsey “against [her] will [and] to inflict death [or]
physical injury.”); see also NMSA 1978, § 30-17-6 (1963) (stating that conspiracy to
commit 	aggravated 	arson 	requires 	a 	finding 	that 	Defendant 	“willful[ly] 	or
malicious[ly] . . . set[] fire to . . . [Lumsey’s] vehicle . . . causing [Lumsey] great
bodily harm”). 	Both conspiracies served to inflict personal injury on Lumsey and
eliminate her ability to freely depart her surroundings. 	Additionally, the series of
events occurred over a relatively short time frame, and the same individuals
participated in and were implicated by both charged conspiracies.
{19} 	We therefore agree with Defendant that she and her co-conspirators formed one
overarching agreement, rather than two distinct agreements separated by time and
space. Furthermore, even were we to credit her “argument that [she] was unaware of
the plot to [commit arson and] murder while taking part in the initial kidnapping, it
does not follow that Defendant entered a new combination when [she] later joined
[her] confederates in their efforts” to commit additional offenses. 	Gallegos, 2011-
NMSC-027, ¶ 62.

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{20} 	Defendant’s second double jeopardy argument, which challenges five counts
of conviction based on our aforementioned double description analysis, has already
been defeated in State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075.
In Carrasco, a getaway driver was convicted of five separate offenses: conspiracy to
commit robbery and accessory to attempted robbery, aggravated battery, aggravated
assault, and false imprisonment. 	Id. ¶ 1. 	The getaway driver’s only obvious role
within the trial record was drinking with his co-conspirators earlier in the evening and
later driving them away from a convenience store directly following a robbery
attempt. 	Id. ¶¶ 3-4. Thus, he was not physically present during the commission of
any offenses committed within the convenience store. The Court applied Swafford,
in the requisite two-part query: (1) “whether the conduct underlying the offenses is
unitary,” and (2) “whether the Legislature intended to impose multiple punishments
for the unitary conduct.” Carrasco, 1997-NMSC-047, ¶ 22. “Only if the first part of
the test is answered in the affirmative, and the second in the negative, will the double
jeopardy clause prohibit multiple punishment in the same trial.” Swafford, 112 N.M.
at 13, 810 P.2d at 1233.
{21} 	Assuming without concluding that the collective criminal conduct of Defendant
and her co-conspirators was unitary under the first prong of the Carrasco test, we
elect to address the latter, Legislative-intent prong. We note that although we follow

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the Carrasco approach here and presume unitary conduct under the first prong, our
case law separately makes it clear that analysis pursuant to either prong can be
dispositive of a Swafford-governed double jeopardy challenge. 	See, e.g., State v.
Urioste, 2011-NMCA-121, ¶¶ 16-29, ___ N.M. ___, ___ P.3d ___, cert. granted,
___-NMCERT-___, ___ N.M. ___, ___ P.3d ___ (No. 33,287, Dec. 7, 2011)
(rejecting double jeopardy challenge to convictions of voluntary manslaughter,
kidnapping, and aggravated battery based upon the conclusion that the underlying
conduct was not unitary). 	Accordingly, we must ascertain whether the underlying
crimes “require[] proof of at least one element that the other does not.” 	Carrasco,
1997-NMSC-047, ¶ 28 (internal quotation marks and citation omitted). 	Where
elements are distinct within the crimes being compared, “a presumption exists that the
Legislature intended to separately punish the . . . offenses.” Id. ¶¶ 23, 28.
{22} 	We conclude that second-degree murder, kidnapping, and aggravated arson
each requires a unique element the others do not. Thus, guided by Carrasco, we too
conclude that “[the d]efendant has not brought forth indicia of legislative intent to
overcome the presumption that the Legislature intended to punish” second-degree
murder, aggravated arson, and kidnapping separately. Id. ¶ 29.
{23} 	Defendant’s contention that her conspiracy convictions should merge with the
substantive crimes that underlie them similarly fails. 	This is so whether she was

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convicted as an accessory or as a principal. “The crimes of conspiracy and accessory
to a crime are separate offenses based on separate acts for which the Legislature has
intended multiple punishments.” Id. ¶ 36; see State v. Armijo, 90 N.M. 12, 15, 558
P.2d 1151, 1154 (Ct. App. 1976) (“[C]onspiracy and the completed offenses are
separate offenses and conviction of both does not amount to double jeopardy.”).
{24} 	In sum, while we find no merit in Defendant’s second double jeopardy claim,
we must reverse as to her conviction for conspiracy to commit aggravated arson.
“[T]he appropriate remedy is to vacate . . . [the] redundant [conspiracy conviction]
with punishment imposed on the single remaining conspiracy at the level of the
‘highest crime conspired to be committed,’ [which in this circumstance] is a
conspiracy to commit” kidnapping. 	Gallegos, 2011-NMSC-027, ¶ 64 (internal
quotation marks and citation omitted); 	compare 	§ 30-4-1(B) (“[C]ommit[ing]
kidnapping [that results in physical injury] is . . . a first degree felony.”), with § 30-17-
6 (“[C]ommit[ing] aggravated arson is . . . a second degree felony.”); see also NMSA
1978, § 30-28-1 (1963) (punishing conspiracy to commit first-degree felonies as
second-degree felonies and conspiracy to commit second-degree felonies as third-
degree felonies). Accordingly, we remand to the district court to vacate Defendant’s
conviction for conspiracy to commit aggravated arson and adjust Defendant’s
sentence in a manner consistent with this Opinion.

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B. 	Sufficiency of the Evidence
{25} 	Defendant next maintains that there is insufficient evidence to support any of
the six counts of which she was convicted. As to each such claim, our review of the
trial record must defer to “the jury’s fundamental role as factfinder” yet satisfy our
autonomous responsibility “to ensure that . . . jury decisions are supportable by
evidence in the record, rather than mere guess or conjecture.” State v. Flores, 2010-
NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641. We “view the evidence in the light
most favorable” to the jury’s guilty verdicts, which must be based upon proof “beyond
a reasonable doubt with respect to every element essential” to the convictions. State
v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks
and citation omitted); see State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867
(1992) (forbidding the substitution of appellate judgment for that of a jury).
{26} 	We divide the six crimes of conviction into categories of review for ease of
analysis: 	(1) accessory liability, (2) conspiracy, and (3) principal liability. 	The
verdict sheets returned by the jury did not specify whether its determinations of
Defendant’s guilt for second-degree murder, aggravated arson, and kidnapping were
based on principal or accessory liability, though both theories were presented to the
jury. 	Because we need only find sufficient evidence under one of the theories
presented to uphold Defendant’s convictions, we choose to address each of the three

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crimes under the State’s theory of accessory liability. 	See State v. Salazar,
1997-NMSC-044, ¶ 43, 123 N.M. 778, 945 P.2d 996 (“[D]ue process does not require
a general verdict of guilt to be set aside so long as one of the two alternative bases for
conviction is supported by sufficient evidence.”). 	We separately address the
sufficiency of Defendant’s remaining conviction for conspiracy and her conviction for
tampering with evidence as a principal.
1. 	Accessory Liability Convictions
{27} 	In New Mexico, a person may be “convicted of [a] crime as an accessory if he
procures, counsels, aids or abets in its commission[,] although he did not directly
commit the crime.” NMSA 1978, § 30-1-13 (1972). Likewise, “[a] person who aids
or abets in the commission of a crime is equally culpable” and faces “the same
punishment as a principal.” Carrasco, 1997-NMSC-047, ¶ 6. Under New Mexico’s
Uniform Jury Instructions, a defendant may be found guilty of a substantive offense
as an accessory, if the jury finds beyond a reasonable doubt that:
1. 	Defendant intended that the crime be committed;
2. 	The crime was committed;
3. 	Defendant helped, encouraged or caused the crime to be
committed.
UJI 14-2822 NMRA.
{28} 	Unlike other states that employ the “natural and probable consequences” test

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for accessory liability, see, e.g., People v. Beeman, 674 P.2d 1318, 1326 (Cal. 1984)
(in bank) (stating that accomplice liability extends to the natural and reasonable
consequences of the acts that the accessory knowingly and intentionally aids and
encourages), New Mexico law requires that a jury “find a community of purpose for
each crime of the principal.” 	Carrasco, 1997-NMSC-047, ¶ 9. In other words, “a
jury must find that a defendant intended that the acts necessary for each crime be
committed.” Id.
{29} 	Under our approach to accessory liability, Defendant elects to challenge the
sufficiency of only some of the elements essential to her convictions for second-
degree murder and aggravated arson, conceding the others. As to each offense, she
challenges the initial element—that she intended those crimes to be committed. She
agrees with the jury that the crimes were in fact committed, and even that her actions
“helped, 	encouraged 	or 	caused” 	their 	commission. 	Regarding 	the 	crime 	of
kidnapping, Defendant asserts that both the elements of intent and that she acted to
help, encourage, or cause the crime’s occurrence are unmet.
{30} 	Defendant’s challenge to the evidence that underpins the jury’s determination
of her guilt for second-degree murder and aggravated arson rests on three specific
assertions of insufficiency: (1) no evidence was presented that Defendant was aware
the lighter fluid would be used to kill Lumsey or burn her car, (2) the evidence

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presented merely proved Defendant knew Lumsey was being held by Esquibel, not
that her life was at stake, and (3) although Defendant heard Esquibel say he was going
to “torch the car,” she was not an active participant to the conversation and was later
“sealed off” from the actual killing of Lumsey. 	We disagree with Defendant’s
arguments and hold that the evidence was sufficient to establish the requisite mentes
reae of second-degree murder and aggravated arson.
{31} 	Notably, there is no legal requirement within our jurisprudence that an
accessory know in advance the exact method by which a crime is to be carried out, or
even that the accessory be physically present when the crime is committed. Again,
Carrasco is instructive. There, despite evidence that the defendant remained in the
getaway car from which he was unable to observe his criminal companions attack the
lone clerk on duty at Allsup’s convenience store, our New Mexico Supreme Court
upheld his convictions as an accessory to each of the crimes—false imprisonment,
assault, and aggravated battery. 	Carrasco, 1997-NMSC-047, ¶ 19. 	Based on
evidence that the defendant had been “cruising and drinking” with his companions
earlier that evening, had personal knowledge of Allsup’s shifts and hours having
himself worked at an Allsup’s for nearly six months, and finally that he drove his
fleeing companions quickly from the store following the attempted robbery, the Court
held “a rational jury could have inferred . . . that [the d]efendant intended the false

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imprisonment, assault with intent to commit a violent felony, and aggravated battery
on the store clerk be committed to accomplish the robbery.” Id. ¶¶ 12, 14.
{32} 	Likewise here, a rational jury could infer that Defendant intended both the
burning 	of 	Lumsey’s 	car 	and 	her 	death, 	based 	upon 	Defendant’s 	personal
communication 	with 	Esquibel 	and 	its 	consistency 	with 	her 	actions. 	Those
communications, which occurred throughout the day, demonstrated the existence of
a joint criminal enterprise. 	And Defendant’s presence during Esquibel’s verbal
brainstorming, during which he considered both murdering Lumsey and torching her
car, placed Defendant on notice of the potential ends of that enterprise. 	Finally,
individual actions that supported the jury’s verdict include: (1) Defendant’s calloused
response and provision of marijuana as a gesture meant to soothe Sanchez’s
discomfort at being recruited by Esquibel as an assistant following the beating of
Lumsey, (2) her lack of intervention on Lumsey’s behalf when contrasted with her
quick defense of Cavasos against Esquibel’s briefly redirected violence, (3) her and
her husband’s de-facto compliance with Esquibel’s request to ensure Lumsey did not
escape or make noise during his three-hour absence, (4) her demand that Esquibel
“figure something out” before Bobby returned from school, followed by her absence
of spoken objection to Esquibel’s idea of “torch[ing] the car” when contrasted with
her vocal and successful protests of his previous idea to kill Lumsey at the state police

21
office and turn himself in, (5) her retreat with Bobby to a separate bedroom while
others led Lumsey out of the house to her death, and most tellingly, (6) the physical
purchase and provision of charcoal lighter fluid for Esquibel. Of the many tangible
activities undertaken by Defendant in furtherance of the crimes against Lumsey, it is
this latter action which singularly appended a match tip to the bare stick that was
Esquibel’s idea to burn Lumsey’s car, a plan that 	provided no unrelated fate for
Lumsey herself.
{33} 	Based on the evidence listed above, it is within the purview of a rational jury
to have concluded Defendant acted in concert with Esquibel and played a supporting
role in the murder and arson. We disagree with Defendant’s assertions that there is
no direct evidence of her own intention to kill or cause great bodily injury to Lumsey,
or to burn her car. Indeed, it is inadequate to conclude that her actions merely enabled
the homicide when in fact she provided the one missing ingredient needed to
transform an object designed by automotive engineers to be incombustible into a
mobile pyre. 	Even absent such an extraordinarily inculpatory fact, however, the
“[c]ircumstantial evidence alone can amount to substantial evidence.” Flores, 2010-
NMSC-002, ¶ 19; see Duran, 2006-NMSC-035, ¶¶ 7-8 (“Intent is subjective and is
almost always inferred from other facts in the case[.]” (internal quotation marks and
citation omitted)). Further, the jury was aware that the Bahney household had no need

22
for charcoal lighter fluid from the standpoint of outdoor food preparation, based upon
the presence of only a propane grill at the residence. We conclude that facts within
the trial record are sufficient to convict Defendant of each of the elements of second-
degree murder and aggravated arson, as an accessory, beyond a reasonable doubt.
{34} 	Defendant similarly challenges the sufficiency of the evidence supporting her
kidnapping conviction. She argues that there was inadequate proof of her intent to
kidnap Lumsey, and that she helped, encouraged or caused the kidnapping. Defendant
insists that the record is devoid of indicia that she agreed to watch Lumsey while
Esquibel went to court and asserts that the kidnapping had already been perpetrated
by Esquibel before Defendant arrived home. She also maintains her fear of Esquibel
wholly dictated her actions during the entire Lumsey episode. 	Again, we are
unpersuaded.
{35} 	In reviewing the sufficiency of the evidence, an appellate court “does not
evaluate the evidence to determine whether some hypothesis could be designed which
is consistent with a finding of innocence.” State v. Sutphin, 107 N.M. 126, 130-31,
753 P.2d 1314, 1318-19 (1988). Rather “we must view the evidence in the light most
favorable to the guilty verdict, indulging all reasonable inferences and resolving all
conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-
009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Here again, there was substantial evidence

23
presented for the jury to infer that following Defendant’s arrival home, she became
an important participant in the ongoing forcible restraint of Lumsey. She not only sat
idly at the computer while Lumsey remained constrained in the bedroom, she and her
husband did nothing to free Lumsey and instead continued Lumsey’s imprisonment
for a three-hour period after Esquibel requested they do so. It is well settled in New
Mexico that kidnapping is a continuing crime, and it is immaterial that Esquibel had
already initiated the kidnapping before Defendant arrived. See State v. Hutchinson,
99 N.M. 616, 624, 661 P.2d 1315, 1323 (1983) (“Kidnapping which involves the
detention of another[] is a continuous offense.”). 	Finally, Defendant herself
confirmed to police detectives that at no time was Lumsey free to leave, even during
the three-hour period in which she and Tom Bahney were alone with Lumsey. Based
on the trial record of facts and the reasonable inferences that can be derived from them
by a considered jury, a finding that Defendant shared Esquibel’s intent that Lumsey’s
kidnapping continue unabated, and that she “helped, encouraged or caused” its
continuance by her own activities over a period of many hours, is demonstrably
supported by sufficient evidence.
2. 	Conspiracy Convictions
{36} 	As discussed previously, Defendant’s conviction on conspiracy to commit

24
aggravated arson is vacated on double jeopardy grounds. Thus, we need only review
the sufficiency of the evidence for conspiracy to commit kidnapping. 	Once more,
Defendant primarily contends that because the State’s evidence did not prove she was
present when Lumsey was initially beaten and because there was no direct
communicated acceptance to Esquibel’s command to watch and listen to Lumsey
while he was absent, her conviction for conspiracy to commit kidnapping is legally
deficient.
{37} 	We disagree with Defendant’s characterization of our law. In the context of
conspiracy liability, New Mexico has long held it unnecessary “to prove [the existence
of] a formal agreement to accomplish the illegal act.” State v. Deaton, 74 N.M. 87,
89-90, 390 P.2d 966, 967-68 (1964); see also Territory v. Leslie, 15 N.M. 240, 245,
106 P. 378, 379 (1910). In fact, the crime of conspiracy is rarely proven by direct
evidence. Deaton, 74 N.M. at 90, 390 P.2d at 968 (“[A]greement is generally a matter
of inference deduced from the facts and circumstances, and from the acts of the person
accused done in pursuance of an apparent criminal purpose.”); 	When Defendant
arrived home, it was apparent that Lumsey was being held against her will and had
been severely beaten. 	For many of the same reasons a jury could properly find
Defendant guilty of the substantive crime of kidnapping, it could as well reasonably
infer that Defendant agreed, together with Esquibel, Tom Bahney, and others with

25
whom the kidnapping was perpetrated, to collectively foreclose any possibility that
Lumsey’s freedom would be regained.
{38} 	The body of interaction by the team of participants to the crimes against
Lumsey—each perpetrated while Lumsey was in some manner restrained—invited the
jury’s reasonable inference that Defendant not only joined the conspiracy, but that
when expressly called upon to do so by her co-conspirator, she assumed responsibility
for the ongoing kidnapping. The evidence presented of a shared agreement to commit
and perpetuate the crime of kidnapping meets the substantial evidence test required
by our jurisprudence.
3. 	Principal Liability Conviction—Tampering with Evidence
{39} 	As a final sufficiency point of appeal, Defendant challenges the trial record’s
support of the jury’s conclusion that she tampered with evidence. She maintains the
State failed to prove both that she intended to prevent her own apprehension,
prosecution, or conviction when she washed blood spatter from her living room blinds
the day following the Lumsey homicide, and that she was not “acting under threats
and a reasonable fear of her safety” at the time. 	As discussed above, there was
sufficient evidence for the jury to conclude that Defendant joined a criminal enterprise
united in purpose as to each of the crimes that led to the death of Lumsey. 	The
previous day’s events in furtherance of that enterprise provide decisive context to

26
Defendant’s effort to later clean the deceased victim’s blood from the blinds. That
final action, we conclude, was wholly enmeshed with the prior undertakings of
Defendant and her co-conspirators. Each concerted criminal activity served to build
the evidentiary inference that when Defendant was wiping away human blood she was
concerned with more than the cleanliness of her home. The jury was well within its
fact-finding prerogative to conclude that Defendant’s removal of blood evidence that
would undoubtedly have been usable by the State against her was intended to prevent
her own apprehension, prosecution, and conviction.
{40} 	Finally, the jury was presented with substantial evidence showing that
Defendant’s actions were not dictated by her fear of Esquibel, a conclusion we cannot
second guess. See UJI 14-5130 NMRA (“[When e]vidence has been presented that
the defendant was forced to [commit the crime] under threat[s], . . . [t]he burden is on
the state to prove beyond a reasonable doubt that the defendant did not act under such
reasonable fear.”). Her contrary contention is primarily repudiated by her failure to
extract herself from the criminal events when twice having opportunities to do so, first
during Esquibel’s lengthy absence and then during her trip to Walmart. 	Further
repudiating her claim that she too feared physical harm at the hand of Esquibel are her
ably asserted demands that he abandon his plan to turn himself over to state police,
cease separately battering Cavasos, and resolve the obvious incongruence between the

27
immediate presence of a captive and the pending arrival of a child. 	Finally, her
professed fear of Esquibel is poorly demonstrated by her placation of Sanchez’s
discomfort and her later voluntary provision of far more than just double the volume
of lighter fluid required for normal use. 	We conclude that the trial record of
Defendant’s statements and actions belies the notion that she was subservient as a
product of self-preservation.
C. 	The Trial Court Did Not Abuse Its Discretion by Admitting the Crime
Scene Photographs
{41} 	At trial, Defendant objected to the admission of over forty of the State’s
photographs taken during the crime scene investigation. The defense stipulated to the
admissibility of merely two photographs in the set: one of Lumsey’s charred body
lying in the trunk of the burned car with police investigators standing by, and the other
of Lumsey’s body lying on a sheet after being removed from the car. 	The district
court considered each of the challenged photographs in light of Rule 11-403 NMRA,
and excluded the three for which it felt “the prejudice outweigh[ed] any possible
probative value.” Thus, forty of the initial forty-five photographs were admitted into
evidence over Defendant’s objections.
{42} 	We review a trial court’s determination that items of evidence are admissible
for abuse of discretion, Flores, 2010-NMSC-002, ¶ 25, which “occurs when the ruling

28
is clearly against the logic and effect of the facts and circumstances of the case.” State
v. Simonson, 100 N.M. 297, 301, 669 P.2d 1092, 1096 (1983). “[R]elevant[] evidence
may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice[.]” Rule 11-403. Nevertheless, “[t]he trial court ought to exclude
photographs which are calculated to arouse the prejudices and passions of the jury and
which are not reasonably relevant to the issues of the case.” State v. Boeglin, 105
N.M. 247, 253, 731 P.2d 943, 949 (1987).
{43} 	Graphic photographs of the injuries suffered by deceased victims of crime are
by their nature significantly prejudicial, but that fact alone does not establish that they
are impermissibly so. District courts are afforded “great discretion in balancing the
prejudicial impact of [evidence] against its probative value.” State v. Garcia, 2005-
NMCA-042, ¶ 50, 137 N.M. 315, 110 P.3d 531 (internal quotation marks and citation
omitted). Indeed, photographs may be admitted for proper purposes, “even if they are
gruesome.” Id. Such purposes include depicting the nature of an injury, clarifying
and illustrating testimony, and explaining the basis of a forensic pathologist’s expert
opinion. Id. “Photographs are the pictured expressions of data observed by a witness.
They are often more accurate than any description by words, and give a clearer
comprehension of the physical facts than can be obtained from the testimony of
witnesses.” State v. Pettigrew, 116 N.M. 135, 139, 860 P.2d 777, 781 (Ct. App. 1993)

29
(internal quotation marks and citation omitted).
{44} 	Of the forty photographs challenged by Defendant, six showed Lumsey’s body
after being burned to death. 	The six were close-ups of her body and head, which
collectively showed that the fire had burned the left side of her body to the point of
charring, but had spared some of her right side. The pictures were a graphic depiction
of the results of the arson and murder with which Defendant was charged, and thereby
relevant to the elemental requirement that the State show the crimes contained within
the indictment were in fact undertaken and completed.
{45} 	The remainder depicted the burning car, fire damage to its interior and exterior,
firefighters as they extinguished the flames, and the location where the vehicle was
burned. All were relevant, in that each made the existence of essential elements of the
crimes of murder and arson more probable within the burden of proof assigned to the
State. None were more prejudicial than probative—they simply showed the scene as
it was investigated, with no undue emphasis on the burned body or anything that
would unfairly prejudice Defendant. We cannot say the admission of illustratively
neutral photographs defied logic to a degree necessary to conclude that the trial court
abused its discretion in its determinations of admissibility.
{46} 	As to each image, the record is clear that the district court weighed the
probative and prejudicial impact outside the jury’s presence and excluded the three

30
that it felt were excessively prejudicial. Based on the trial court’s consideration of
Defendant’s arguments and analysis of the photographs, we see nothing to indicate
that it did not employ its discretion appropriately. Nor can we conclude that even if
there was error, it was not harmless in nature. Pettigrew, 116 N.M. at 139, 860 P.2d
at 781 (“[W]e are unaware of any case that has reversed a conviction due to allegedly
inflammatory photographs.”).
{47} 	In fact, we see nothing to distinguish this case from the many cases in which
district courts from around the State have properly used their discretion to admit
graphic photographs of victims. See, e.g., State v. Saiz, 2008-NMSC-048, ¶ 54, 144
N.M. 663, 191 P.3d 521 (holding that the district court did not abuse its discretion by
admitting five gruesome photographs of the victim’s decomposed body, when those
photographs aided the pathologist’s testimony), abrogated on other grounds by State
v. Belanger, 2009-NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d 783; State v. Mora,
1997-NMSC-060, ¶¶ 54-55, 124 N.M. 346, 950 P.2d 789 (upholding the admission
of multiple autopsy photos of child victim on grounds that they were illustrative),
abrogated on other grounds by State v. Frazier, 2007-NMSC-032, ¶ 1, 142 N.M. 120,
164 P.3d 1; State v. Perea, 2001-NMCA-002, ¶ 22, 130 N.M. 46, 16 P.3d 1105
(holding that a potentially inflammatory photograph of a victim’s slashed face was
relevant and that its admission was within the discretion of the district court), aff’d in

31
part, vacated in part, 2001-NMSC-026, 130 N.M. 732, 31 P.3d 1006; Boeglin, 105
N.M. at 253, 731 P.2d at 949 (holding that the admission of a close-up photograph
depicting gruesome neck wounds suffered by the victim was proper to “illustrate,
clarify, and corroborate the testimony of witnesses”); Pettigrew, 116 N.M. at 139, 860
P.2d at 781 (holding that photos of battered victim were relevant to depict the extent
of the victim’s injuries and to illustrate a physician’s testimony, and their admission
was not an abuse of discretion); State v. Blakley, 90 N.M. 744, 748, 568 P.2d 270, 274
(Ct. App. 1977) (holding that admission of photograph of the victim’s body was
proper because it “illustrated, clarified, and corroborated the testimony of various
witnesses”). We will not disturb the trial court’s judgment on these facts.
D. 	There is No Prima Facie Evidence of Ineffective Assistance of Counsel
{48} 	Defendant last argues she received ineffective assistance of counsel based on
three purported inactions by her trial attorney: 	(1) failure to locate a known alibi
witness, (2) failure to inform Defendant of her right to testify, and (3) failure to object
to second-hand statements originating from Esquibel. We review claims of ineffective
assistance of counsel de novo. 	Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d
466, 469-70 (1993). In order to establish a prima facie case of ineffective assistance
of counsel on direct appeal, a defendant must demonstrate that: (1) counsel’s
performance fell below that of a reasonably competent attorney; (2) no plausible,

32
rational strategy or tactic explains counsel’s conduct; and (3) counsel’s apparent
failings were prejudicial to the defense. See State v. Herrera, 2001-NMCA-073, ¶ 36,
131 N.M. 22, 33 P.3d 22. As Defendant acknowledges, “[a] record on appeal that
provides a basis for remanding to the [district] court for an evidentiary hearing on
ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition
for writ of habeas corpus.” State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950
P.2d 776.
{49} 	Defendant’s first two claims of ineffective assistance concern matters not in the
appellate record. 	Defendant argues that she identified an alibi witness to defense
counsel, but he failed to locate the witness during trial. She also argues that defense
counsel did not inform her of her right to testify and effectively prevented her from
testifying in her own defense. 	We have no basis to be aware of the occurrence or
nonoccurrence of these conversations other than Defendant’s assertions on appeal.
While we are willing to review matters of record for prima facie evidence of
ineffective assistance of counsel, we will not afford the same benefit to arguments
based on matters outside the trial record. State v. Telles, 1999-NMCA-013, ¶ 25, 126
N.M. 593, 973 P.2d 845 (holding that without a record, we cannot consider claims of
ineffective assistance of counsel on direct appeal). Such claims are best reserved for
habeas corpus, in which a subject-specific record can be developed before the trial

33
court. State v. Stenz, 109 N.M. 536, 538-39, 787 P.2d 455, 457-58 (Ct. App. 1990)
(“[Habeas corpus] provides a method for the defendant to present in a post-conviction
proceeding a record establishing ineffective assistance of counsel . . . .”).
{50} 	Defendant’s final claim of ineffective assistance is reviewable based upon the
trial record, but we disagree that it establishes a prima facie claim. Defendant argues
that counsel was deficient in failing to object to Cavasos’s testimony when she
recounted statements made by Esquibel to Defendant. Cavasos testified that Esquibel
requested Defendant and Tom Bahney watch and ensure the silence of Lumsey while
he was gone, and separately stated in Defendant’s presence that he was “just going to
torch the car.” We disagree that the statements were inadmissible hearsay and that her
right of confrontation was violated by their admission.
{51} 	Regarding Esquibel’s request that Defendant and Tom Bahney watch Lumsey
and ensure her ongoing silence while Esquibel attended his court hearing, we hold that
the statement was not offered at trial to prove the truth of the matter asserted, and
therefore is not hearsay at all. See Rule 11-801(C) NMRA (“‘Hearsay’ is a statement,
other than one made by the declarant while testifying at trial or hearing, offered in
evidence to prove the truth of the matter asserted.” (emphasis added)). 	Here, the
challenged statements are best described as directions or commands, rather than
assertions from which truth or falsity can be discerned. They are thus not hearsay.

34
See State v. Toney, 2002-NMSC-003, ¶ 3, 131 N.M. 558, 40 P.3d 1002 (holding that
an out-of-court statement was not hearsay where the statement “was a directive or a
command and was offered not for its truth but for the fact that it was made.”).
{52} 	Similarly, Esquibel’s assertion that he was “just going to torch the car,” was not
offered to prove the veracity of Esquibel’s intent to commit arson, but to demonstrate
Defendant’s knowledge that Esquibel contemplated burning Lumsey’s car. Esquibel’s
statement, which communicated his then-existing state of mind, was offered by the
State to establish Defendant’s motive when she later purchased lighter fluid for him.
“Evidence is not hearsay if admitted as circumstantial evidence of the motive of the
listener.” State v. Rosales, 2004-NMSC-022, ¶ 17, 136 N.M. 25, 94 P.3d 768 (citing
2 Kenneth S. Broun et al., McCormick on Evidence § 249, at 102 & n.12 (John W.
Strong ed., 5th ed. 1999)). Furthermore, even if we could characterize Esquibel’s out-
of-court statements as meeting the definition of hearsay under Rule 11-801(C) , they
would fall under the category of utterances identified as “statements which are not
hearsay,” under Rule 11-801(D)(2)(e) (including “statement[s] by a co-conspirator of
a party during the course and in furtherance of the conspiracy”). State v. Farris, 81
N.M. 589, 590, 470 P.2d 561, 562 (Ct. App. 1970) (“[T]he acts and declarations of
one conspirator during the existence of a conspiracy are competent evidence against
his co-conspirators.” (internal quotation marks and citation omitted)); see State v.

35
Zinn, 106 N.M. 544, 552, 746 P.2d 650, 658 (1987) (“[T]here is no requirement under
the 	Confrontation 	Clause 	for 	the 	prosecution 	to 	show 	that 	a 	nontestifying
co-conspirator is unavailable to testify when his out-of-court statement is offered into
evidence against the defendant/co-conspirator.”). Defendant’s claim of ineffective
assistance thus fails because “trial counsel is not incompetent for failing to make a
motion when the record does not support the motion.” Stenz, 109 N.M. at 538, 787
P.2d at 457.
{53} 	Our conclusion that Defendant has failed to meet her burden of demonstrating
a prima facie case of ineffective assistance of counsel in no way impairs Defendant’s
ability to later bring such a claim in a habeas proceeding if she considers there to be
a factual basis for such a motion. 	See Saiz, 2008-NMSC-048, ¶ 65, (noting that a
defendant “may pursue habeas corpus proceedings on [the ineffective assistance of
counsel] issue . . . if he is ever able to provide evidence to support his claims”).
III. 	CONCLUSION
{54} 	In summary, we affirm all but one of Defendant’s convictions, striking only her
conviction for conspiracy to commit aggravated arson. 	We reject Defendant’s
remaining challenges regarding the sufficiency of the evidence, the trial court’s
admission of crime scene photographs, and the effectiveness of her trial counsel.
Therefore, we remand this case to the district court to vacate the identified conviction

36
and re-sentence Defendant accordingly.
{55} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
_________________________________
CELIA FOY CASTILLO, Chief Judge
_________________________________
MICHAEL D. BUSTAMANTE, Judge