March 17, 2014 – State v. Bruce Schwartz, No. 32,451

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	March 17, 2014
NO. 32,451
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BRUCE SCHWARTZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Robert S. “Bob” Schwartz, District Judge
Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM
for Appellee
Law Office of Adrianne R. Turner
Adrianne R. Turner
Albuquerque, NM
for Appellant

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OPINION
BUSTAMANTE, Judge.
{1} 	Bruce Schwartz (Defendant) asserts that his rights under the confrontation
clauses of the United States and New Mexico Constitutions were violated when the
district court permitted four witnesses to testify by two-way video over the Internet
without the necessary findings that use of video was necessary. 	We agree and,
because there is no reasonable possibility that the video testimony did not affect the
verdict, conclude that the testimony was not harmless. 	Consequently, we reverse
Defendant’s convictions. 	Concluding there is sufficient evidence to support
Defendant’s convictions, we also remand for retrial.
BACKGROUND
{2} 	In March 2008 Martha McEachin left her home in Los Angeles on a train bound
for Albuquerque, intending to begin writing a long-planned novel in Mexico. After
arriving in Albuquerque, McEachin lived with Defendant for approximately one and
a half months before she disappeared. 	In May, a badly decomposed body was
discovered wrapped in a blue air mattress and sheets and covered with a mattress in
an alley approximately 500 feet from Defendant’s apartment.

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{3} 	After a two-year investigation, Defendant was charged with McEachin’s murder
and tampering with evidence. He was convicted by a jury of second degree murder
and tampering with evidence and sentenced to fifteen years in the Department of
Corrections. Additional facts are included in our discussion of Defendant’s points on
appeal.
DISCUSSION
{4} 	Defendant makes a number of arguments based on allegations of error in the
admission or exclusion of evidence. 	Because we conclude that Defendant’s
confrontation rights were violated and that the violation was not harmless, we reverse
Defendant’s convictions. 	We also conclude that there is sufficient evidence of
Defendant’s guilt to permit retrial on remand. Given the disposition of these issues,
we do not address Defendant’s other arguments.
A. 	Confrontation Clause
{5} 	At trial, four of the State’s witnesses testified using Skype, an “Internet
software application[] that . . . allow[s] users to engage in real time video and audio
communications between two or more locations.” 131 Am. Jur. Trials 475 § 1 (2014).
Defendant argues that admission of their testimony via Skype violated his rights under
the Sixth Amendment to the United States Constitution and Article II, Section 14 of
the New Mexico Constitution. 	Both the Federal and New Mexico constitutions
provide that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

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confronted with the witnesses against him[.]” 	See U.S. Const. amend. VI; N.M.
Const. art. II, § 14. 	We will refer to the clause in both constitutions as “the
confrontation clause.”
{6} 	“[T]he [c]onfrontation [c]lause guarantees the defendant a face-to-face meeting
with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016
(1988). But a defendant’s rights under the confrontation clause are not absolute. See
State v. Almanza, 2007-NMCA-073, ¶ 8, 141 N.M. 751, 160 P.3d 932. Rather, they
“may give way to other important interests” when those interests are “narrowly
tailored to include only those situations where the exception is necessary to further an
important public policy.” Id. (internal quotation marks and citations omitted). Thus,
there must be “a particularized showing of necessity in the service of an important
public policy before a court may approve an exception to physical presence.” State
v. Smith, 2013-NMCA-081, ¶ 8, 308 P.3d 135, cert. denied, 2013-NMCERT-006, 304
P.3d 425. “The necessity must be supported by specific findings by the trial court.”
Id. ¶ 5.
{7} 	“[M]ere inconvenience to the witness is not sufficient to dispense with face-to-
face confrontation.” State v. Chung, 2012-NMCA-049, ¶ 11, 290 P.3d 269 (internal
quotation marks and citation omitted), cert. quashed, 2013-NMCERT-003, 300 P.3d
1182. Thus, this Court has reversed convictions where a witness testified via video
or telephone conference when (1) the witness was located in Santa Fe and the hearing

1The State requests that this Court reconsider its holding in Smith that two-way
“video testimony does not itself ‘satisfy’ the requirements of the [confrontation
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was held in Aztec, New Mexico, see id.¶ 3; (2) the witness would have had to travel
seven hours and be absent from the State Laboratory Division when it was
shorthanded, see Smith, 2013-NMCA-081, ¶¶ 2, 11; and (3) when a chemist with the
state crime lab was called on short notice and had a “busy schedule,” Almanza, 2007-
NMCA-073, ¶ 12. Our review of confrontation issues is de novo. See Smith, 2013-
NMCA-081, ¶ 3.
The District Court Erred in Permitting Video Testimony
{8} 	An FBI agent, two forensic scientists, and Defendant’s mother testified via
video. The State concedes that it “did not list any reason for the video testimony” of
FBI Agent Bas or forensic scientist Gross “other than their residing outside of New
Mexico.” 	Additionally, it acknowledges that “the district court failed to make
individualized factual findings [as] required to excuse [forensic scientist Pearn’s] in-
person appearance.” 	Thus, it concedes that “[t]hese witnesses’ testimony violated
Defendant’s confrontation rights.” Although we are not bound by this concession, we
agree with this conclusion because the district court failed to make specific findings
supporting its conclusion that video testimony by these witnesses was necessary. See
id. ¶ 5 (“The necessity must be supported by specific findings by the [district]
court.”).1

clause].” Id. ¶ 7. We decline to do so.
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{9} 	Whether it was error to permit Defendant’s mother, Patricia Labance, to testify
via video presents a more complex question. As justification for permitting Labance
to appear by video, the State argued that “Labance was born in 1938 and resides in
Florida. . . . Labance currently suffers from severe stress, anxiety[,] and depression.”
It attached a letter from Labance’s doctor, which stated that “this patient is suffering
from severe stress, anxiety[,] and depression and is physically and psychologically
unable to travel out of the state for the for[e]seeable future.” At the hearing on the
motion, the district court inquired into the substance of Labance’s testimony and
discussed with the parties how Skype works. Although the State said that Labance
was available to speak to the district court, no evidence was taken at the hearing. The
State also said that “[Labance was] not happy to be coming out here. She hasn’t seen
her son in a number of years. 	But she will come if necessary, but because of her
failing health, . . . we’d like to do her [testimony via] live video.” 	The State also
distinguished Chung, in which this Court held that a defendant’s confrontation rights
were violated when the district court permitted video testimony based on a witness’s
seven-hour travel time, by arguing that “in our case, the travel is so much further and
costly.” See Chung, 2012-NMCA-049, ¶ 12. After argument, the district court stated

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that, “given the letter from [Labance’s doctor] describing [Labance], I’m going to
allow her to testify via . . . Skype[.]” The district court did not make written findings.
{10} 	The State arranged for Labance to testify via Skype from a courthouse in
Naples, Florida. During cross-examination, Defendant questioned Labance about her
health. Labance testified that she was nervous and that the trial was “upsetting.” In
addition, counsel for Defendant and Labance had the following exchange.
Q: 	. . . What type of health issues are you dealing with right now,
ma’am?
A: 	Well, physically I have arthritis really bad. Mentally, I’ve been
very stressed, anxious. I’ve been very depressed over this whole
situation.
Q: 	And arthritis would be the main medical diagnosis you’re
suffering from?
A: 	Yes.
Q: 	Do you have trouble breathing?
A: 	Not necessarily, no.
{11} 	After cross-examination was completed, Defendant moved for Labance’s
testimony to be stricken from the record. A bench conference was held. Defendant
argued that, based on Labance’s testimony, there was “no decent reason” that Labance
could not have traveled to New Mexico to testify and that, therefore, his confrontation
rights had been violated. 	The district court expressed some confusion about the
contents of the doctor’s letter, asking, “Is the doctor specific as to diagnoses, or is it

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general issues regarding health[?]” It is not clear from the record whether the letter
was produced for the district court’s review during the bench conference. Ultimately,
the district court denied Defendant’s motion stating, “None of us are doctors, and we
don’t have the medical records. I’m going to accept, again on the basis of good faith,
that there’s a legitimate basis for [Labance to appear] by the Skype.”
{12} 	We interpret the district court’s statements to be a finding that it was medically
necessary for Labance to testify via video. See Smith, 2013-NMCA-081, ¶ 9 (citing
Commonwealth v. Atkinson, 2009 PA Super 239, ¶ 12, in which that court held that
adult witnesses may testify by video only “when a witness is too ill to travel and when
a witness is located outside of the United States”) (internal quotation marks and
citation omitted)). In doing so, we note that the district court’s oral comments are
perilously close to being inadequate for appellate review and note again that “[t]he
necessity [for video testimony] must be supported by specific findings by the trial
court.” Id. ¶ 5; see State v. Benny E., 1990-NMCA-052, ¶ 11, 110 N.M. 237, 794 P.2d
380 (“Absent findings indicating the [district] court was persuaded and why, the
decision to deny a defendant his or her right of confrontation cannot be adequately
reviewed on appeal.”). The State argues that, because the district court’s finding was
supported by the “medical judgment” in the doctor’s letter, we must affirm. 	We
disagree that the letter alone is sufficient to demonstrate a compelling need to protect
the witness as required to outweigh Defendant’s rights under the confrontation clause.

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{13} 	“[A]ny exceptions to the general rule providing for face-to-face confrontation
[must be] narrowly tailored.” 	Chung, 2012-NMCA-049, ¶ 11 (internal quotation
marks and citation omitted); see Smith, 2013-NMCA-081, ¶ 9 (stating that “[c]ourts
define 	[policy 	concerns 	that 	outweigh 	the 	defendant’s 	confrontation 	rights]
narrowly”). Given the importance of the confrontation right and the narrowness of the
exceptions to it, we conclude that the doctor’s letter was inadequate as a matter of law
to support a conclusion that Labance could not testify in person. See id. ¶ 15 (stating
that “the reasons articulated by the district court for finding it necessary to allow the
use of video testimony were insufficient as a matter of law to support its use”); see,
e.g., Bush v. State, 2008 WY 108, ¶ 52, 193 P.3d 203 (Wyo. 2008) (medical necessity
supported where the district court considered medical records); State v. Sewell, 595
N.W.2d 207, 211 (Minn. Ct. App. 1999) (medical necessity supported where the
witness’s doctor indicated by affidavit and through telephone contact with the court
that the witness was too ill to travel); cf. State v. Tafoya, 1988-NMCA-082, ¶ 16, 108
N.M. 1, 765 P.2d 1183 (finding of necessity for use of video depositions of child
witnesses at trial supported by substantial evidence where there was a “full day of
testimony” by experts and the witnesses’ parents); State v. Vigil, 1985-NMCA-103,
¶¶ 6-7, 103 N.M. 583, 711 P.2d 28 (finding of necessity for video deposition of a child
witness supported by substantial evidence where the state presented expert testimony
on the possible impact on the witness of in-person testimony). The fact that the State

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conceded that Labance could travel to New Mexico to testify if necessary simply
highlights the inadequacy of the evidence behind the district court’s conclusion.
{14} 	Based on the foregoing, we conclude that it was error to permit video testimony
by Bas, Gross, Pearn, and Labance because the necessity for video testimony was not
supported by sufficient findings.
With One Exception, Admission of Video Testimony Was Not Harmless
{15} 	A violation alone, however, does not require a new trial. Rather, only when a
violation of the confrontation clause is harmful to the defendant does the violation
require a new trial. 	See State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110
(“Improperly admitted evidence is not grounds for a new trial unless the error is
determined to be harmful.”). The State bears the burden of demonstrating that the
error was harmless. See State v. Gutierrez, 2007-NMSC-033, ¶ 18, 142 N.M. 1, 162
P.3d 156.
{16} 	To determine whether an error in admission of evidence is harmless, this Court
reviews “the error itself, including the source of the error and the emphasis placed on
the error at trial. 	To put the error in context, we often look at the other, non-
objectionable evidence of guilt, not for a sufficiency-of-the-evidence analysis, but to
evaluate what role the error played at trial.” State v. Leyba, 2012-NMSC-037, ¶ 24,
289 P.3d 1215. In addition, “courts may, depending upon the circumstances of the
cases before them, examine the importance of the erroneously admitted evidence in

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the prosecution’s case, as well as whether the error was cumulative or instead
introduced new facts.” 	Tollardo, 2012-NMSC-008, ¶ 43 (alterations, internal
quotation marks, and citations omitted). 	Whether certain evidence is harmless
depends on a variety of factors unique to each case. See id. ¶ 44 (“Reviewing courts
must keep in mind that harmless error review necessarily requires a case-by-case
analysis.”).
{17} 	We begin by addressing the testimony presented by video related to DNA
analyses, then turn to Labance’s testimony. 	The State presented four forensic
scientists, of which two—Pearn and Gross—testified by video. Pearn developed a
DNA profile of McEachin based on DNA found on McEachin’s shoes. 	She also
tested DNA found on the waistband of a pair of jeans found near the body. 	She
concluded that “neither [the victim] or [Defendant] could be excluded as contributors
to [the DNA on the waistband].” Thus, Pearn’s work (1) resulted in a DNA profile
of the victim, and (2) provided a possible link between the body and Defendant.
{18} 	Gross tested a femur taken from the body, created a DNA profile for the femur,
and then compared that profile to the DNA profile of McEachin’s daughter. 	The
daughter’s DNA profile had been completed by an analyst at the Federal Bureau of
Investigation (FBI) and provided to Gross. 	Gross identified the DNA types in
common between the two samples and testified that it was “42,000 times more likely
to observe th[e common] genetic information if [the daughter] was the true biological

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daughter [of the victim] as compared to an untested random woman from the
population.” 	The bulk of Ms. Gross’s testimony thus went to identification of the
body as McEachin’s.
{19} 	Bas testified that he obtained a blood sample from McEachin’s daughter that
was then forwarded to the FBI for analysis. Bas’s testimony went to a portion of the
chain of events that led to the daughter’s sample being analyzed by the FBI and then
compared to the profile of the body by Gross, thus leading to identification of the
body as McEachin’s.
{20} 	There is no reasonable possibility that Bas’s testimony had the evidentiary
importance to impact Defendant’s conviction. 	Bas testified only about how he
collected blood from McEachin’s daughter and sent it to the Albuquerque field office
of the FBI. At the hearing on the State’s motion to permit video testimony, Defendant
stipulated that Bas’s testimony only established a chain of custody of the daughter’s
sample and, on appeal, Defendant does not address how he was prejudiced by Bas’s
testimony at all. 	In the context of this case and in light of the totality of the
circumstances surrounding the testimony, we conclude that Bas’s testimony by video
was harmless.
{21} 	The same is not true of the testimony by forensic scientists Pearn and Gross.
The State argues that their testimony was harmless for two reasons. It first argues that
because Defendant had an opportunity to cross-examine the witnesses, the use of

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video had “only a marginal impact on his right of confrontation.” 	It contends
secondly that the video testimony was “relative[ly] insignifican[t] . . . in comparison
to the overall evidence of guilt.” 	Despite these efforts to minimize the role of the
video testimony in the State’s case, we conclude that the video testimony was critical
to identification of the body and association of Defendant with the body, both of
which were essential to the State’s case. Hence, there is no reasonable possibility that
this evidence did not contribute to Defendant’s conviction. See id. ¶ 45.
{22} 	In its first contention, the State argues that “Defendant had the ability to cross-
examine all of the witnesses appearing by video conference in full view of the jury
such that there was only a marginal impact on his right of confrontation.” Cf. State
v. Lopez, 1996-NMCA-101, ¶ 14, 122 N.M. 459, 926 P.2d 784 (“The right to cross-
examination is viewed as the most important element of the right of confrontation.”).
The State argues that Defendant’s limited cross-examination of the witnesses “show[s]
that the video testimony had no impact on the trial or the jury’s verdict.” Although
a defendant’s cross-examination of witnesses may be considered in assessing the role
of evidence at trial, whether and how Defendant cross-examined the witnesses is not
dispositive of the ultimate question of harmlessness because that analysis focuses on
whether the evidence affected the verdict, not how Defendant responded to it. 	See
State v. Serna, 2013-NMSC-033, ¶ 25, 305 P.3d 936 (discussing the defendant’s
cross-examination as part of the assessment of the amount of emphasis placed on

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erroneously admitted evidence); Tollardo, 2012-NMSC-008, ¶ 42 (“[T]he central
inquiry of [the harmless error analysis is] whether an error was likely to have affected
the jury’s verdict.”). Because the State’s argument shifts the focus away from this
central inquiry, we are unpersuaded. Thus, we turn to the State’s contentions as to the
role of Pearn’s and Gross’s testimony at the trial and its impact on the jury.
{23} 	The State’s second argument is that Gross’s and Pearn’s testimony was
insignificant in comparison to the overall evidence of guilt. Specifically, it argues that
(1) the video testimony as to identity was duplicative of other evidence and therefore
insignificant, and (2) the video testimony tying Defendant to the body was of “minor
significance” compared to evidence of “the victim’s blood on the carpet in
Defendant’s bedroom,” which was established through in-person testimony. 	We
address these arguments in turn.
{24} 	We disagree that the video testimony as to identity was duplicative and
therefore harmless for two reasons. 	First, the video testimony was not merely
cumulative of other evidence. Although in-person testimony by McEachin’s friends
described her physical features, and the jury could infer from other in-person
testimony that those features matched the body, the State nevertheless devoted a
substantial amount of time presenting DNA evidence to establish identity. 	Three
different analyses were conducted to do so: Pearn developed a profile using DNA
from shoes belonging to McEachin, Gross developed a profile from a femur of the

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body and compared it to McEachin’s daughter’s profile, and a third witness, testifying
in person, compared the Pearn and Gross profiles and found that they matched. The
State’s attempt to minimize the importance of the DNA evidence is belied by the
amount of time and effort the State took to present the DNA evidence and the
emphasis placed on it. Indeed, the State itself described the body’s characteristics as
less probative than the DNA evidence in its opening argument. We cannot conclude
that the video testimony did not have an impact on the verdict simply because there
was also in-person testimony on the identity of the body. Second, even if the video
testimony was cumulative, “improperly admitted evidence that is cumulative is not
ipso facto harmless beyond a reasonable doubt.” 	Tollardo, 2012-NMSC-008, ¶ 43
(footnote, internal quotation marks, and citation omitted). Rather, even cumulative
evidence may be harmful if it had an impact on the jury’s verdict.
{25} 	To the extent the State also argues that Defendant did not contest that the body
was McEachin’s and therefore any improperly admitted testimony on that issue was
harmless, we disagree. 	We note first that at trial, the State acknowledged that
Defendant “disput[ed] that it’s even . . . McEachin’s body[.]” In any case, whether
Defendant disputed this fact is not conclusive of whether the testimony is harmless.
In State v. Sisneros, our Supreme Court addressed a similar argument and held that
erroneous admission of a forensic pathologist’s testimony as to the cause of death was
harmless because “the cause and manner of death were never in dispute, only the

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identity of the shooter.” 	2013-NMSC-049, ¶ 33, 314 P.3d 665. 	The premise
underlying that holding is that there was nothing about the cause and manner of death
that pointed to the defendant as the shooter. That premise does not apply here. In this
case, Defendant did not contest that he knew McEachin and that she had lived with
him briefly. 	Rather, he maintained in his statement to officers that she left his
apartment and never returned. Thus, the identification of the body as McEachin’s,
coupled with the fact that McEachin had lived with Defendant until shortly before the
body was found, implicated Defendant. This argument is unavailing.
{26} 	In its final argument, the State maintains that Pearn’s testimony about the DNA
found on the jeans “held only minor significance in tying Defendant to the scene
where the body had been hidden” and that because the material—presumed to be
blood—found in Defendant’s apartment was “the most damning physical evidence[,]”
the testimony about the jeans paled in comparison. As discussed, however, Defendant
never denied that McEachin had lived with him and argued at trial that McEachin’s
DNA could have gotten on the carpet any number of ways during that time. In this
context, the DNA on the carpet merely showed that McEachin had been in the
apartment. Because Defendant did not dispute this fact, evidence tying Defendant to
the body in the alley was critical to the State’s case. 	We are unpersuaded by the
State’s characterization of the video testimony about the jeans in comparison to the
DNA found on the carpet.

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{27} 	Finally, the centrality of DNA evidence, including the video testimony, to the
State’s case is also evident in the State’s opening and closing arguments. 	In its
opening, the State referred to the jeans as “[Defendant’s] jeans” and stated they were
“[o]ne of the most important pieces of the evidence . . . at th[e] scene[.]” It described
the DNA testing as determinative that the jeans were Defendant’s. 	It stated that
Defendant “put his jeans, evidence of the murder” near the body. The State discussed
the DNA testing of the femur from the body and McEachin’s daughter, stating that the
physical characteristics of the body did not allow the police to be “absolutely certain”
of the identity of the body. In closing argument, the State referred to DNA evidence
at least four times and devoted a substantial portion of its rebuttal argument to the
jeans and DNA evidence related to them, referring to the jeans as “the one piece of
evidence that could tie [Defendant] to th[e] body[.]” Based on the role Gross’s and
Pearn’s testimony played in the State’s case, we conclude that there is no reasonable
possibility that the DNA evidence they presented did not contribute to Defendant’s
conviction. 	See Leyba, 2012-NMSC-037, ¶ 30 (stating that the use of the victim’s
diary at trial was not harmless where “[b]oth its placement and the repetitive manner
in which the [s]tate referred to the diary during closing argument[] strongly suggest
how useful it was to the [s]tate. As any good trial lawyer knows, a jury is most likely
to remember the first and last things heard before retiring”).

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{28} 	We turn next to the question of whether Labance’s testimony was harmless.
Labance testified as to the nature of Defendant’s relationship with McEachin, as well
as how and when they met. 	She testified that she had sent Defendant a blue air
mattress in early 2008, as well as a set of sheets, a blanket, and other household goods.
She authenticated a receipt for those items that she had sent to a detective, which was
admitted into evidence. The detective used the authenticated receipt to purchase an
air mattress of the same model, a photo of which was also admitted into evidence.
During trial, a photo of the air mattress found with the body was compared to the
photo of the purchased air mattress. Labance also authenticated letters Defendant had
sent her, which were then admitted into evidence. A detective later read the letters
during his testimony. 	In one letter, Defendant acknowledged receipt of the air
mattress and stated that he loved McEachin. 	In another, dated a little more than a
week before the body was found, Defendant wrote that McEachin was “headed to El
Paso a few weeks ago” and that she was going on to Juarez. Finally, Labance testified
that Defendant told her he had given the air mattress away.
{29} 	The State concedes on appeal that it was “significant that Defendant’s . . . air
mattress and sheets [] were not only at the scene but wrapped around the victim.” In
its motion for video testimony, the State acknowledged that Labance’s testimony was
important not only to authenticate the receipt for the air mattress, sheets, and letters
from him acknowledging receipt of those items, but also to establish Defendant’s

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relationship with McEachin. Labance’s testimony provided evidence that Defendant
had owned a blue air mattress, as well as details about the air mattress that matched
the one found with the body. In addition, her authentication of Defendant’s letters
allowed the State to use Defendant’s own statements against him. 	Labance’s
testimony thus established a link between Defendant, the air mattress, and the body.
Although the State argues that the documents could have been authenticated another
way, the State chose to rely on Labance to get the documents admitted. Having made
that choice, the State cannot now argue, simply because there was another method for
admission of the documents, that the jury did not rely on Labance’s testimony to
convict Defendant. We conclude that Labance’s testimony played a key role in the
State’s case and that the State has failed to demonstrate that Labance’s testimony was
harmless.
II. 	SUFFICIENCY OF THE EVIDENCE
{30} 	We next examine whether the evidence was sufficient to convict Defendant for
second degree murder and tampering with evidence both because Defendant asserts
the evidence was insufficient and because this Court must address sufficiency in order
to determine whether retrial would offend principles of double jeopardy. See State v.
Cabezuela, 2011-NMSC-041, ¶ 47, 150 N.M. 654, 265 P.3d 705 (“Because we find
that there was sufficient evidence to convict [the d]efendant, . . . retrial is not barred
by double jeopardy implications.”).

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{31} 	In a review of the sufficiency of the evidence, “we [first] view the evidence in
the light most favorable to the verdict, indulging all reasonable inferences and
resolving all conflicts in the evidence in favor of the verdict.” State v. Armendariz-
Nunez, 2012-NMCA-041, ¶ 16, 276 P.3d 963, cert. denied, 2012-NMCERT-003, 293
P.3d 183. We “then . . . make a legal determination of whether the evidence viewed
in this manner could justify a finding by any rational trier of fact that each element of
the crime charged has been established beyond a reasonable doubt.” 	Id. (internal
quotation marks and citation omitted). 	“The reviewing court does not weigh the
evidence or substitute its judgment for that of the fact finder as long as there is
sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124
N.M. 346, 950 P.2d 789, abrogated on other grounds as recognized by Kersey v.
Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683. Defendant bears the
burden of “identif[ying] with particularity the fact or facts that are not supported by
substantial evidence” on appeal. Rule 12-213(A)(4) NMRA.
{32} 	In an apparent attempt to reframe the standard of review, Defendant’s only
argument on appeal relies on State v. Malouff, a 1970 case in which this Court held
that “when circumstances alone are relied upon, they must point unerringly to [the]
defendants and be incompatible with and exclude every reasonable hypothesis other
than guilt.” 	1970-NMCA-069, ¶ 3, 81 N.M. 619, 471 P.2d 189. 	Defendant’s
argument rests entirely on the premise that the State’s case, being based on

21
circumstantial evidence, failed to “exclude every reasonable hypothesis other than
guilt.” 	Id. 	But the standard stated in Malouff was expressly repudiated by our
Supreme Court in State v. Brown. See 1984-NMSC-014, ¶ 7, 100 N.M. 726, 676 P.2d
253 (stating that “the traditional distinctions between direct and circumstantial
evidence have been abolished” and that “[t]he only test recognized by [our Supreme]
Court to test the sufficiency of evidence is whether substantial evidence of 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”); see also State v.
Garcia, 2005-NMSC-017, ¶¶ 18, 19, 138 N.M. 1, 116 P.3d 72 (stating that “After
Brown, . . . the proposition that substantial evidence in support of a conviction must
be inconsistent with any reasonable hypothesis of innocence” is no longer the standard
in New Mexico). Defendant’s reliance on Malouff is, therefore, unavailing.
{33} 	Here, the State was required to prove that
1. 	[D]efendant killed . . . McEachin;
2. 	[D]efendant knew that his acts created a strong probability of
death or great bodily harm to . . . McEachin or any other human
being;
3. 	[D]efendant did not act as a result of sufficient provocation;
4. 	This happened in New Mexico on or between the 23rd day of
April and the 14th day of May, 2008.

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See UJI 14-210 NMRA. 	Other than asserting that circumstantial evidence is
insufficient to support the verdict, Defendant makes no argument identifying which
facts lack sufficient evidence. Although we generally do not address undeveloped
arguments, we do so here in order to ascertain whether Defendant may be retried on
remand. See Cabezuela, 2011-NMSC-041, ¶ 40.
{34} 	Here, the jury heard testimony that McEachin and Defendant lived together
until a few weeks before the body was discovered and that they shared an intimate
relationship. Testimony by detectives established that the body was found in an alley
500 feet from Defendant’s apartment, wrapped in a blue air mattress and sheets,
covered with another mattress. Defendant’s mother testified that she had sent him a
blue air mattress and sheet set as a gift. 	The jury saw photographs and heard
testimony that grid marks on the air mattress looked like the grid of a shopping cart
and that there was a shopping cart at the scene. 	They also heard testimony that
Defendant had shopping carts in his apartment. They heard testimony that a pair of
jeans with DNA on it—for which Defendant could not be ruled out as the
source—was found near the body. A forensic scientist testified that McEachin’s blood
was found on the carpet in Defendant’s apartment. There was also testimony that the
cause of death was “multiple blunt force injuries . . . [to t]he head and chest area” and
that Defendant gave two different explanations for why he no longer had the air
mattress his mother sent him. Viewed in the light most favorable to the verdict and

23
indulging all reasonable inferences in favor of conviction, this evidence was sufficient
to permit the jury to find Defendant guilty of second degree murder.
{35} 	We turn to the charge of tampering with evidence. “Tampering with evidence
is a specific intent crime, requiring sufficient evidence from which the jury can infer
that the defendant acted with an intent to prevent apprehension, prosecution or
conviction of any person or to throw suspicion of the commission of a crime upon
another.” 	State v. Silva, 2008-NMSC-051, ¶ 18, 144 N.M. 815, 192 P.3d 1192
holding modified by State v. Guerra, 2012-NMSC-027, ¶¶ 12-14, 284 P.3d 1076
(internal quotation marks and citation omitted); see NMSA 1978, § 30-22-5(A)
(2003). The State was required to prove that
1. 	[D]efendant 	destroyed 	and/or 	changed 	and/or 	hid 	and/or
fabricated 	and/or 	placed 	clothing 	belonging 	to 	himself
and[/]or . . . Mc[E]achin and/or the body of . . . Mc[E]achin and/or
her suitcases, her laptop, her printer, her purse[;]
2. 	[By doing so, D]efendant intended to prevent the apprehension,
prosecution[,] or conviction of himself;
3. 	This happened in New Mexico on or between the 23rd day of
April and the 14th day of May, 2008.
See UJI 14-2241 NMRA. The State concedes that it did not present direct evidence
or evidence of “an overt act with respect to” McEachin’s suitcase, purse, laptop, or
printer. Nevertheless, any lack of evidence regarding McEachin’s belongings does
not require reversal here because there was sufficient evidence to support one or more

24
of the other alternative bases for conviction. See State v. Olguin, 1995-NMSC-077,
¶ 2, 120 N.M. 740, 906 P.2d 731 (“[D]ue process does not require a guilty verdict to
be set aside if an alternative basis of conviction is only factually inadequate to support
a conviction.”).
{36} 	In addition to tampering with McEachin’s laptop, printer, purse, or suitcase, the
jury instruction permitted conviction on the basis of tampering with Defendant’s own
clothing, the victim’s clothing, or the victim’s body. 	The jury could infer that
Defendant placed the victim’s body in the alley from the testimony that Defendant
owned a blue air mattress and sheets, that the body was found wrapped in a blue air
mattress and sheets, that clothes bearing his DNA were found with the body, and that
the alley was approximately 500 feet from his apartment. 	In addition, there was
testimony that a mattress was placed over the body in the alley. Although Defendant
argues that this evidence is “only” circumstantial, New Mexico does not recognize a
distinction between direct or circumstantial evidence, as previously discussed. We
conclude that the evidence presented, viewed in the light most favorable to the verdict,
was sufficient to permit the jury to infer that Defendant intended to “prevent [his]
apprehension, prosecution, or conviction” by covering and placing the body in the
alley. UJI 14-2241.
{37} 	In conclusion, there was sufficient evidence to support Defendant’s convictions
for second degree murder and tampering with evidence.

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III. 	CONCLUSION
{38} 	Having concluded that video testimony by Pearn, Gross, and Labance was
admitted in error and that this error was not harmless, we reverse Defendant’s
convictions. 	In addition, since the evidence was sufficient for conviction of both
second degree murder and tampering, we remand for a new trial. We need not address
Defendant’s other allegations of error in the admission of evidence.
{39} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
__________________________________
MICHAEL E. VIGIL, Judge
__________________________________
TIMOTHY L. GARCIA, Judge