March 21, 2023- State of New Mexico v. Jason Stalter, No. A-1-CA-39984

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:	2
Filing Date: March 21, 2023	3
No. A-1-CA-39984	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JASON STALTER,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	10
Karen L. Townsend, District Court Judge	11
Raúl Torrez, Attorney General	12
Maris Veidemanis, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Bennett J. Baur, Chief Public Defender	16
Santa Fe, NM	17
Mark A. Peralta-Silva, Assistant Appellate Defender	18
Albuquerque, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 3/21/2023 10:38 AM

OPINION	1
WRAY, Judge.	2
{1} 	Defendant Jason Stalter appeals his convictions for larceny over $20,000,	3
contrary to NMSA 1978, Section 30-16-1 (2006), and burglary, contrary to NMSA	4
1978, Section 30-16-3 (1971), in connection with money stolen from the Lowe’s	5
Home Improvement (Lowe’s) store in Farmington, New Mexico on December 2,	6
2017 (the incident). At trial, Defendant presented alibi evidence and requested the	7
uniform jury instruction on alibi, UJI 14-5150 NMRA. The district court denied the	8
jury instruction based on the direction in the accompanying use note (Use Note). On	9
appeal, Defendant challenges the denial of the alibi jury instruction as well as the	10
admission, exclusion, and sufficiency of the evidence. We affirm but express our	11
rationale for our reservations related to the Use Note’s categorical prohibition of the	12
alibi instruction. See State v. Wilson, 1994-NMSC-009, ¶ 6, 116 N.M. 793, 867 P.2d	13
1175 (encouraging this Court to “express its rationale for any reservations it might	14
harbor over Supreme Court precedent”).	15
BACKGROUND	16
{2} 	Defendant worked at Lowe’s as an overnight department manager but was	17
fired on November 30, 2017, two days before the incident. As a department manager,	18
Defendant had keys to enter the store and a code to disarm the alarm system.	19
Defendant testified that he returned his keys on the day he was fired, and Lowe’s	20

2
security personnel, Elizabeth Nickel, testified that all the keys were accounted for	1
the 	following 	day 	and 	that 	Defendant’s 	code 	had 	been 	deactivated. 	Video	2
surveillance from December 2, 2017, at 10:40 p.m. (incident footage), showed that	3
an individual “wearing all black” used a key to enter Lowe’s through the front doors,	4
disabled the alarm system, went into to the “cash office,” unlocked a code-protected	5
safe, took cash from the safe, and left the store in a little over two minutes.	6
{3} 	Nickel received a call around 5:00 a.m., informing her of the theft. When she	7
arrived at the store, she ensured that the police were called and reviewed the incident	8
footage. Officer Flores was the responding officer. He first spoke to the store	9
manager, who conveyed his suspicion that Defendant was the person in the incident	10
footage. Officer Flores next investigated the area for evidence and received a copy	11
of the incident footage from Nickel. Nickel also suspected Defendant had taken the	12
money and provided Officer Flores with additional video footage of Defendant from	13
his time working at Lowe’s (workplace footage). Shortly thereafter, Detective Rock	14
took over the investigation.	15
{4} 	Defendant maintained throughout the investigation and trial that he could not	16
have stolen from the Lowe’s in Farmington on December 2, 2017, because he was	17
visiting friends in Cedar City, Utah. According to Defendant, from December 1,	18
2017, through December 4, 2017, he visited and stayed with his friend, Wayne	19
Majeski and Wayne’s husband, Secondo Docimo. Before trial, the district court	20

3
agreed to admit into evidence Docimo’s preliminary examination testimony but	1
during trial reversed that ruling. As a result, only Defendant and Majeski testified at	2
trial that Defendant was in Cedar City, Utah at the time of the incident. In order to	3
establish a timeline for the alibi, Defendant offered receipts and copies of his bank	4
and phone records. One receipt indicated that Defendant purchased dinner from a	5
restaurant in Cedar City, Utah at 6:15 p.m. on December 2, 2017. Defendant argued	6
that it would have been impossible for him to have the time to return to Farmington,	7
New Mexico by 10:40 p.m., when the incident took place. The evidence at trial	8
confirmed that it would take over six hours to drive from Cedar City to Farmington.	9
{5} 	For over an hour at trial, the State showed multiple videos and screenshots of	10
the incident and workplace footage. Nickel testified about her interpretation of the	11
videos and screenshots, identified Defendant in the workplace footage, and gave her	12
opinion that Defendant was the person in black in the incident footage. According	13
to Nickel, she concluded that Defendant was the person in black after reviewing the	14
incident footage and further confirmed this conclusion when she reviewed the	15
workplace footage of Defendant next to the incident footage.	16
{6} 	During trial, Defendant requested that the district court give the uniform alibi	17
jury instruction. See UJI 14-5150. Defendant argued that the State appeared to be	18
shifting the burden to Defendant to prove his alibi and that the uniform instruction	19
would clarify and prevent any burden shifting. The State maintained that the	20

4
accompanying Use Note to UJI 14-5150 “says no instruction on this subject shall be	1
given, period, it doesn’t say except in certain circumstances” and that the alibi	2
instruction 	was 	not 	necessary to 	explain 	the 	burdens, 	because 	the 	elements	3
instruction required the State to prove that Defendant was present for both offenses.	4
The district court denied the alibi instruction, based on the accompanying Use Note,	5
which states, “No instruction on this subject shall be given.” See UJI 14-5150 use	6
note. 	The 	State’s 	closing 	argument 	criticized 	Defendant’s 	alibi 	evidence 	as	7
inconsistent and not credible and culminated with the assertion that “the only way	8
he’s not guilty is if you believe him and Mr. Majeski.”	9
{7} 	The jury found Defendant guilty on both Count I, larceny over $20,000, and	10
Count II, burglary. At sentencing, the district court ordered Defendant to pay	11
restitution in the amount of $33,040.83 and sentenced Defendant to nine years’	12
incarceration. Defendant appeals the convictions and sentence.	13
DISCUSSION	14
{8} 	Defendant makes three arguments on appeal: (1) he was entitled to have the	15
district court give the requested uniform alibi instruction; (2) Docimo’s preliminary	16
hearing testimony was improperly excluded at trial and Nickel’s identification	17
testimony was improperly admitted; and (3) the State failed to present evidence as	18
to the amount stolen that was sufficient to support the conviction and the restitution	19
order. We begin our analysis with the alibi instruction.	20

5
I. 	The Alibi Instruction	1
{9} 	New Mexico’s uniform alibi jury instruction states as follows:	2
Evidence has been presented concerning whether or not the	3
defendant was present at the time and place of the commission of the	4
offense charged. If, after a consideration of all the evidence, you have	5
reasonable doubt that the defendant was present at the time the crime	6
was committed, you must find him not guilty.	7
UJI 14-5150. The accompanying Use Note expressly states, “No instruction on this	8
subject 	shall 	be 	given.” 	The 	committee 	commentary provides 	the 	following	9
explanation:	10
The language of this instruction is derived from California Jury	11
Instructions Criminal, 4.50. The New Mexico Supreme Court has held	12
that the defendant’s alibi is a question for the jury. The [C]ourt has also	13
held that it is improper to instruct that the burden is on the defendant to	14
prove his alibi. There are no New Mexico decisions holding that the	15
jury must be instructed on the question of alibi. Analytically, an alibi is	16
not a technical or “legal” defense but it is used to cast doubt on the	17
proof of elements of the crime. Consequently, the committee believed	18
that no instruction on alibi should be given since it merely comments	19
on the evidence.	20
UJI 14-5150, comm. cmt. (citations omitted). Defendant contends that despite the	21
Use Note and commentary, the requested alibi instruction was (1) warranted because	22
the evidence supported an alibi, and (2) necessary to avoid juror confusion.	23
Defendant has not challenged the text of the jury instruction. At oral argument,	24
however, the State maintained that giving UJI 14-5150 in the present case would not	25
have cured any error because the instruction does not clarify the burden of proof	26
with respect to alibi and suggested that the jury instruction approved by the Fourth	27

6
Circuit 	Court of Appeals is 	more comprehensive and appropriate under the	1
circumstances. See Frye v. Procunier, 746 F.2d 1011, 1012-13 (4th Cir. 1984).	2
{10} 	The parties’ arguments raise significant questions. We cannot, however, avoid	3
the threshold question of this Court’s authority to reject jury instructions and use	4
notes. While committee commentary is not binding, State v. Barber, 2004-NMSC-	5
019, ¶ 10 n.1, 135 N.M. 621, 92 P.3d 633, use notes are binding and in particular,	6
are “binding on district courts,” Delfino v. Griffo, 2011-NMSC-015, ¶ 19, 150 N.M.	7
97, 257 P.3d 917. Indeed, our Supreme Court has equated UJI 14-5150 with the Use	8
Note. See State v. McGuire, 1990-NMSC-067, ¶ 31, 110 N.M. 304, 795 P.2d 996	9
(noting that “the uniform jury instruction on this topic provides that no instruction	10
shall be given”). Defendant’s arguments would require us to reject the Use Note.	11
This Court may only “amend, modify, or abolish” a uniform jury instruction if it has	12
not been “reviewed and ruled upon” by our Supreme Court. Wilson, 1994-NMSC-	13
009, ¶ 6; see also State v. Parish, 1994-NMSC-073, ¶ 24, 118 N.M. 39, 878 P.2d	14
988 (“The only restriction is that if there exists precedent from [our Supreme] Court	15
that specifically addresses the validity of a Uniform Jury Instruction, the Court of	16
Appeals may not overrule that precedent nor alter or reject that instruction.”	17
(alterations, internal quotation marks, and citation omitted)). Our Supreme Court has	18
“sustain[ed]” and “reaffirm[ed]” the Use Note at issue. See State v. Robinson, 1980-	19
NMSC-049, ¶ 31, 94 N.M. 693, 616 P.2d 406 (referring to the alibi instruction as	20

7
N.M.U.J.I.Crim. 41.30 (current version at UJI 14-5150)). But see McGuire, 1990-	1
NMSC-067, ¶ 31 (affirming the denial of the alibi uniform jury instruction absent	2
“considerations 	contrary 	to” 	the 	analysis 	in 	the 	committee 	commentary).	3
Accordingly, we are bound by Robinson and precluded from overruling the Use	4
Note. See Wilson, 1994-NMSC-009, ¶ 4 (“[T]he Court of Appeals is not precluded	5
from considering error in jury instructions, but is precluded only from overruling	6
those instructions that have been considered by [our Supreme] Court in actual cases	7
and controversies that are controlling precedent.”). We therefore can discern no error	8
in the district court’s denial of the alibi instruction.	9
{11} 	Nevertheless, our Supreme Court has encouraged this Court “to express its	10
rationale for any reservations it might harbor over Supreme Court precedent.” Id.	11
¶ 6. The Use Note appears to limit both the district court’s general authority to	12
consider the circumstances of the case when deciding to instruct the jury on alibi and	13
this Court’s application of the standard of review for preserved challenges to the	14
denial of an instruction. Our Supreme Court has broadly approved the district court’s	15
“authority to disregard uniform jury instructions in cases in which under the facts or	16
circumstances of the particular case the published instruction is erroneous or	17
otherwise improper, and the [district] court so finds and states of record its reasons.”	18
Id. ¶ 4 (alteration, internal quotation marks, and citation omitted). This is in line with	19
the district court’s duty “to properly instruct the jury on the law.” See UJI Crim. Gen.	20

8
NMRA use note (instructing the district court both that “[n]o instruction shall be	1
given on a subject which a use note directs that no instruction be given” and that	2
“[t]o avoid fundamental error, it is the duty of the court to properly instruct the jury	3
on the law”). But that discretion to alleviate juror confusion is countermanded by the	4
Use Note’s direction that “[n]o instruction on this subject shall be given.” UJI 14-	5
5150 use note (emphasis added).	6
{12} 	The district court’s mandatory compliance with the Use Note further prevents	7
this Court from meaningfully applying the standard of review for preserved jury	8
instruction error. We generally review whether reversible error resulted from juror	9
confusion or misdirection, see State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M.	10
258, 34 P.3d 1134, and in our de novo review, we consider “the evidence in the light	11
most favorable to the giving of the requested instructions,” State v. Skippings, 2011-	12
NMSC-021, ¶ 10, 150 N.M. 216, 258 P.3d 1008 (alteration, internal quotation	13
marks, and citation omitted). In the context of use notes, our courts have concluded	14
that error resulting from the failure to follow mandatory use notes does not	15
automatically result in reversal. See Barber, 2004-NMSC-019, ¶ 20 (agreeing	16
generally that the failure to give a definitional instruction that is mandated by a use	17
note is not fundamental error); State v. Dominguez, 2014-NMCA-064, ¶ 18, 327 P.3d	18
1092 	(stating 	that 	the 	“failure 	to 	give 	a 	mandatory 	instruction” 	does 	not	19
“automatically” 	require 	the 	“reversal 	or 	modification 	of 	an 	otherwise 	valid	20

9
conviction,” but rather, “it is the failure to give a mandatory instruction on the law	1
essential for a conviction that constitutes reversible error”). But here, our Supreme	2
Court has adopted and approved a categorical directive not to give UJI 14-5150.1
3
Thus, the district court has no discretion to give the instruction and consequently,	4
this Court has no role on review.	5
{13} 	While we are bound by the restrictions that are outlined in Wilson and	6
solidified as to UJI 14-5150 in Robinson, we are keenly aware of the tension between	7
these restrictions and the role that each court plays to safeguard the rights of New	8
Mexicans. This tension is heightened by both the significant case law that has	9
developed across the country addressing alibi instructions and the particular	10
circumstances of this case. For these reasons, as encouraged by our Supreme Court	11
in Wilson, we offer our analysis in this regard. We first review the national landscape	12
of alibi law as it relates to jury instructions, and in that context, further (1) evaluate	13
the 	State’s 	arguments 	in 	support 	of 	both 	the 	Use 	Note 	and 	the 	committee	14
1 UJI 14-5150 is not the only uniform instruction accompanied by a mandatory
use note directing that no instruction be given. See, e.g., UJI 14-2823 NMRA use
note (accessories to crimes); UJI 14-5024 NMRA use note (weighing conflicting
testimony); UJI 14-5030 NMRA use note (flight); UJI 14-5140 NMRA use note
(excusable homicide). At oral argument, Defendant pointed out that our uniform
instructions include approximately thirty such use notes. We limit our discussion,
however, to the instruction at hand, and we have not considered the propriety of any
other instruction and use note.

10
commentary; and (2) consider whether denying the instruction in the present	1
circumstances created an untenable risk of juror confusion or misdirection.	2
A. 	The Majority and Minority Approaches to Alibi Instructions	3
{14} 	The law of alibi instructions went through a remarkable shift in the last	4
century and a half. The early cases often involved defendants seeking reversal	5
because a prejudicial alibi instruction was given. See, e.g., State v. Taylor, 24 S.W.	6
449, 456 (Mo. 1893) (reversing based on an instruction that shifted the burden of	7
proof); 	State v. McClellan, 59 P. 924, 924-26 (Mont. 1900) (concluding an	8
instruction that shifted the burden of proof was “radically wrong”); State v. Johnson,	9
17 N.W.2d 345, 346 (S.D. 1945) (“The courts generally hold that an instruction	10
which 	advises 	the 	jury 	that 	an 	unsuccessful 	attempt 	to 	prove 	an alibi 	is 	a	11
circumstance to be weighed against the defendant on the question of the sufficiency	12
of the evidence to prove defendant’s guilt beyond a reasonable doubt, is erroneous	13
and prejudicial.”). In later years, the arguments shifted to whether an instruction was	14
required to ensure that juries understood the burdens of proof. See, e.g., Ferguson v.	15
State, 488 P.2d 1032, 1038 (Alaska 1971) (“[W]ithout proper instruction the jury	16
might erroneously believe that the defendant has the burden of proving alibi.”); State	17
v. Hunt, 197 S.E.2d 513, 518 (N.C. 1973) (“Notwithstanding the court’s instruction	18
that the burden of proof is on the [s]tate to satisfy the jury from the evidence beyond	19
a reasonable doubt that the defendant was present and that [the defendant] committed	20

11
the crime, if a particular defendant is apprehensive that the jury will be misled unless	1
the court gives an instruction . . . [the defendant] will be entitled to such instruction	2
[u]pon special request therefor.”); Commonwealth v. Mikell, 729 A.2d 566, 570 (Pa.	3
1999) (“Where such evidence has been introduced, a defendant is entitled to an alibi	4
instruction to alleviate the danger that the jurors might impermissibly view a failure	5
to prove the defense as a sign of the defendant’s guilt.”). Different jurisdictions	6
define alibi slightly differently or require different amounts of evidence to justify an	7
instruction. See, e.g., Greenhow v. United States, 490 A.2d 1130, 1134 (D.C. 1985)	8
(requiring alibi evidence to “be of such a character that, if believed, it would show	9
that the defendant could not have committed the crime”); Dixon v. State, 227 So. 2d	10
740, 742-43 (Fla. Dist. Ct. App. 1969) (requiring less than “absolute impossibility”	11
to 	establish 	an 	alibi). 	These 	complexities—the 	changing 	contexts 	for 	alibi	12
instructions 	and 	distinctions 	between 	alibi 	analyses—make 	discussing 	trends	13
difficult 	because 	the 	nuances 	complicate 	broad 	statements 	about 	the 	law.	14
Nevertheless, our review leads us to conclude that most jurisdictions permit the	15
district courts to exercise some discretion about whether to give an alibi instruction.	16
{15} 	New Mexico’s categorical denial of an alibi instruction is the minority	17
approach among state and federal jurisdictions. Most other jurisdictions offer a	18
defendant the opportunity for an alibi instruction either by uniform instruction or	19

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special submission of the parties.2 In most offering jurisdictions, a defendant must	1
request the alibi instruction and provide a level of evidentiary showing to support	2
2 These jurisdictions are Alabama, see Alabama Pattern Jury Instructions:
Criminal, Non-Statutory Special Instructions, Alibi (approved April 15, 2016)
(currently found at https://judicial.alabama.gov/docs/library/docs/alibi.pdf); Alaska,
see Alaska Criminal Pattern Jury Instruction 1.40 (Revised 1999), AK-JICRIM 1.40
(West); Arizona, see RAJI (Criminal) 5th, No. 46 (2019); California, see CALCRIM
No. 3400 and Cal. Jury Instructions--Criminal CALJIC 4.50; Connecticut, see Conn.
Criminal 	Jury 	Instructions 	§ 	2.7-2 	(Nov. 	2021), 	available 	at
https://jud.ct.gov/JI/Criminal/Criminal.pdf; Delaware, see Del. P.J.I. Crim. § 5.61;
District of Columbia (D.C.), see 1 Barbara E. Bergman, Criminal Jury Instructions
for the District of Columbia § 9.200 (Matthew Bender, Rev. Ed.), available by
request, filed herein as part of this Court’s Supplemental Record Proper (SRP) at
0001-7; Florida, see Fla. Std. Jury Instr. (Crim.) 3.6(i), JICRIM FL-CLE 3-1, 3.6(i)
(West); Georgia, see Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal
Cases, § 3.30.10 (4th ed. 2022), GAJICRIM 3.30.10 (West); Hawai’i, see Hawai’i
Pattern Jury Instructions--Criminal 7.14, HI R CR JURY Instr. 7.14 (West); Iowa,
see Iowa State Bar Ass’n, Criminal Jury Instructions § 200.15 (2022), available by
request, SRP at 008-09; Maryland, see MD-JICRIM 5:00; Massachusetts, see
Instruction 9.120 of the Criminal Model Jury Instructions for Use in the District
Court (2009), MJ MA-CLE 9.100 (West); Michigan, see MI-MJICRIM 7.4 (Lack of
Presence (Alibi)), MI-MJICRIM 7.8 (Identification); Mississippi, see Miss. Prac.
Model Jury Instr., Crim. § 2:1 (2d ed.) and Miss. Plain Lang. Model Jury Instr. Crim.
500; Missouri, see 27 Mo. Prac., Criminal Practice Forms § 9.33 (2d ed.), available
by 	request, 	SRP 	at 	0018-21; 	Montana, 	see 	MCJI 	2-119, 	available 	at
https://courts.mt.gov/Courts/boards/CriminalJuryInstructionsCommission 	(select
Ch. 2); Nebraska, see 1 Neb. Prac., NJI2d Crim. 8.1 (2016-2017 ed.); Nevada, see
Duckett v. State, 752 P.2d 752, 754 (Nev. 1988); New Hampshire, see N.H. Criminal
Jury Instructions 3.02 (1985), available at https://nhba.s3.amazonaws.com/wp-
content/uploads/2020/07/14150407/NH-Criminal-Jury-Instructions-1985.pdf; New
Jersey, see New Jersey Model Jury Charges (Criminal), “Alibi (Non 2C)” (rev. May
12, 2018), NJ-JICRIM Non 2C Charges (West); New York, see CJI2D(NY) GA 21–
Alibi and 1 Charges to Jury & Requests to Charge in Crim. Case in N.Y. §§ 5:7-:9
(Oct. 2022 update); North Carolina, see 	N.C.P.I.-Crim. 301.10 (2003); North
Dakota, see N.D. Jury Instructions - Criminal, K 3.05 Alibi 	(2022 ed.), available at
https://www.sband.org/page/pattern_jury_instruc; Ohio, see 2 Ohio Jury Instructions §
421.03, 2 OJI-CR 421.03 (West); Oklahoma, see VRN-OKFORM OUJI-CR 8-57;

13
Oregon, see Uniform Criminal Jury Instruction 1101, OR-JICRIM 1101 (West);
Pennsylvania, see PA-JICRIM 3.11; South Carolina, see Anderson’s S.C. Requests
to Charge - Criminal § 6-19 (2d ed. 2012), SC-JICRIM 6-19; South Dakota, see S.D.
Pattern Jury Instructions (Criminal) 2-1-1 (rev. 2020), available on request, SRP at
0022-23; Tennessee, see 7 T.P.I.-Crim. 42.13 (2022), TNPRACJICR 42.13 (West);
Utah, see State v. Hanna, 21 P.2d 537, 539 (1933), but see State v. Lynch, 2011 UT
App 1, 246 P.3d 525; Vermont, see Vt. Model Criminal Jury Instructions § 9-011
(2005), 	available 	at 	https://www.vtjuryinstructions.org/criminal/MS09-011.htm
(last 	visited 	Jan. 	30, 	2023) 	and 	§ 	9-021 	(2010), 	available 	at
https://www.vtjuryinstructions.org/criminal/MS09-021.htm (last visited 	Jan. 30,
2023); Virginia, see Va. Prac. Jury Instruction §§ 65:1 to -:3, VAPRAC JI 65:1-:3
(West); West Virginia, see Public Defender’s Services, West Virginia’s Criminal
Jury Instructions, 8.1 (7th ed.), available at https://pds.wv.gov/attorney-and-staff-
resources/research-center/legal-
resources/Documents/Jury%20Instructions%207th%20Edicition.pdf; 	and 	Wisconsin,
see WIS JI-CRIMINAL JI-775. Additionally, the federal circuit courts of appeal
have all adopted or affirmed some form of alibi instruction. See Comm. on Pattern
Crim. 	Jury 	Instructions 	1st 	Cir., 	5.01, 	available 	at
https://www.mad.uscourts.gov/resources/pattern2003; United States v. Burse, 531 F.2d 1151,
1152-54 (2d Cir. 1976); Comm. on Model Crim. Jury Instructions 3d Cir., 8.02 (2021), available at
https://www.ca3.uscourts.gov/sites/ca3/files/2021%20Chapter%208%20for%20post
ing%20final.pdf; Frye, 746 F.2d at 1012-14 (4th Cir.); Comm. on Pattern Jury
Instructions 	Dist. 	Judges 	Ass’n 	5th 	Cir., 	1.37, 	Alibi 	(2019), 	available 	at
https://www.lb5.uscourts.gov/juryinstructions/fifth/crim2015.pdf; 	Sixth 	Circuit
Comm. 	on 	Pattern 	Crim. 	Jury 	Instructions, 	6.02 	(2021), 	available 	at
https://www.ca6.uscourts.gov/sites/ca6/files/documents/pattern_jury/pdf/Chapter%
206_1.pdf; Comm. on Fed. Crim. Jury Instructions of the 7th Cir., 6.03 (2022),
available 	at 	https://www.ca7.uscourts.gov/pattern-jury-
instructions/pattern_criminal_jury_instructions_2020edition.pdf; Comm. on Model
Jury Instructions for the District Courts of the 8th Cir., 9.07 (2021), available at
https://juryinstructions.ca8.uscourts.gov/instructions/criminal/CriminalJuryInstruction
s.pdf; 	9th 	Cir. 	Crim. 	Jury 	Instr. 	5.1 	(2022), 	available 	at
https://www.ce9.uscourts.gov/jury-instructions/node/865; 	Crim. 	Pattern 	Jury
Instruction 	Comm. 	for 	the 	10th 	Cir., 	1.35 	(2021), 	available 	at
https://www.ca10.uscourts.gov/sites/ca10/files/documents/downloads/Jury%20Inst
ructions%202021%20Version.pdf; 	Eleventh 	Circuit 	Pattern 	Jury 	Instructions,
Criminal 	Cases, 	S14 	(2016); 	available 	at
https://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCriminalPatternJ

14
the alibi.3 Some offering jurisdictions go so far as to suggest or place a sua sponte	1
duty on the district court to instruct on the subject of alibi when the evidence supports	2
the 	instruction. 4 Many 	jurisdictions—including 	offering 	jurisdictions—also	3
uryInstructionsRevisedMAR2022.pdf; United States v. Alston, 551 F.2d 315, 319
(D.C. Cir. 1976).
3See Ex parte Brown, 812 So. 2d 305, 307 (Ala. 2001); Ferguson v. State, 488
P.2d 1032, 1038-39 (Alaska 1971); State v Rodriguez, 961 P.2d 1006, 1011 (Ariz.
1998) (en banc); People v. Whitson, 154 P.2d 867, 872 (Cal. 1944); State v. Butler,
543 A.2d 270, 276 (Conn. 1988); Brown v. State, 958 A.2d 833, 834 (Del. 2008);
Henderson v. United States, 619 A.2d 16, 19 (D.C. 1992); Truett v. State, 105 So.
3d 656, 660 (Fla. Dist. Ct. App. 2013); Henderson v. State, 252 S.E.2d 83, 84 (Ga.
Ct. App. 1979); State v. Holm, 478 P.2d 284, 288 n.9 (Idaho 1970); Smith v. State,
486 A.2d 196, 198 (Md. 1985); Commonwealth v. Medina, 404 N.E.2d 1228, 1237
(Mass. 1980); People v. McGinnis, 262 N.W.2d 669, 671 (Mich. 1978); State v.
Taylor, 24 S.W. 449, 454 (Mo. 1893); Duckett, 752 P.2d at 754; State v. Dale, 770
A.2d 1111, 1113-14 (N.H. 2001); State v. Echols, 972 A.2d 1091, 1102 (N.J. 2009);
People v. Vera, 462 N.Y.S.2d 467, 468 (N.Y. App. Div. 1983); State v. Kalmio, 2014
ND 101, ¶ 41, 846 N.W.2d 752, 765; State v. Mitchell, 574 N.E.2d 573, 576 (Ohio
Ct. App.1989); Davis v. State, 237 P. 471, 472 (Okla. Crim. App. 1925); State v.
Dudley, 564 P.2d 711, 713 (Or. Ct. App. 1977); Mikell, 729 A.2d at 568, 570; State
v. Robbins, 271 S.E.2d 319, 319-20 (S.C. 1980); S.D. Pattern Jury Instructions
(Criminal) 2-1-1, available on request, SRP at 0022-23 ; Poe v. State, 370 S.W.2d
488, 489 (Tenn. 1963); State v. Powers, 47 A. 830, 832-33 (Vt. 1900); Acord v.
Hedrick, 342 S.E.2d 120, 126 (W. Va. 1986); WIS JI-CRIMINAL JI-775; United
States v. Bryser, 954 F.2d 79, 87 (2d Cir. 1992); United States v. Hicks, 748 F.2d
854, 857 (4th Cir. 1984) (citing the Sixth, Seventh, and Eighth Circuit Courts of
Appeal); United States v. Schmick, 904 F.2d 936, 942-43 (5th Cir. 1990); United
States v. Lillard, 354 F.3d 850, 855 (9th Cir. 2003); cf. People v. Whitson, 154 P.2d
867, 872 (Cal. 1944); Hamlin v. State, 2019-KA-00172-COA, ¶ 4, 306 So. 3d 843
(Miss. Ct. App. 2020); State v. Moreno, 422 N.W.2d 56, 61-62 (Neb. 1988); State v.
Green, 151 S.E.2d 606, 608 (N.C. 1966).
4See State v. Searles, 197 A.2d 384, 386-87 (N.J. Super. Ct. App. Div. 1964);
Commonwealth v. Andrews, 83 A. 412, 414 (Pa. 1912); Commonwealth v. Smidl,
577 A.2d 210, 213 (Pa. Super. Ct. 1990) (per curiam) (Johnson, J., dissenting)
(explaining the majority opinion reversing a conviction where no sua sponte alibi
instruction was given)); T.P.I.-Crim. 42.13, cmt. 1 (citing Poe, 370 S.W.2d at 489).

15
conclude that the denial of the instruction or an erroneous instruction is harmless,	1
not reversible error, or otherwise not prejudicial.5
2
{16} 	New Mexico’s approach to the alibi instruction is in the minority.6 Most of	3
these minority jurisdictions recommend no alibi instruction for the same reasons set	4
5See, e.g., Dixon v. State, 227 So. 2d 740, 743 (Fla. Dist. Ct. App. 1969);
Medina, 404 N.E.2d at 1237 (Massachusetts); People v. Matthews, 413 N.W.2d 755,
756-57 (Mich. Ct. App. 1987); State v. Rickman, 920 S.W.2d 615, 618 (Mo. Ct. App.
1996) (finding no prejudice); State v. Cobos, 863 N.W.2d 833, 838 (Neb. Ct. App.
2015); Duckett, 752 P.2d at 754 (Nevada); Echols, 972 A.2d at 1103 (New Jersey);
People v. Merritt, 698 N.Y.S.2d 735, 735, 265 A.D.2d 733, 734 (N.Y. App. Div.
1999) (nonprecedential); State v. Hood, 422 S.E.2d 679, 682 (N.C. 1992); Mitchell,
574 N.E.2d at 577 (Ohio); Davis, 237 P. at 473 (Oklahoma); State v. Bardwell, 2021
WI App 20, ¶¶ 16-19, 396 Wis. 2d 702, 958 N.W.2d 160 (per curiam) (unpublished
disposition); United States v. Burse, 531 F.2d 1151, 1153 (2d Cir. 1976) (citing cases
from the Second, Fifth, Seventh, and Eighth Circuit Courts of Appeal that held the
failure to provide an alibi instruction does not automatically require reversal); United
States v. Simon, 995 F.2d 1236, 1244 (3d Cir. 1993).
6 The minority jurisdictions include Arkansas, see AMCI 2d 608, cmt., (Lexis)
(“While alibi instructions have often been used by trial courts in Arkansas, alibi is
neither a defense nor an affirmative defense under the Arkansas Criminal Code, but
rather a position the defendant may assert to create a reasonable doubt of [their] guilt.
Therefore, no jury instruction should be given.”); Colorado, see Colo. Jury Instr.,
Criminal Ch. H cmt. 3 (2021); Illinois, see Committee Note to Illinois Pattern Jury
Instructions, Criminal 24-25.05, IL-IPICRIM 24-25.05 (West) (explaining the
committee decided to omit an alibi instruction because alibi is not an affirmative
defense and the use of one would be a comment on the evidence); Indiana, see Ind.
Pattern Jury Instructions-Crim. No. 10.21, IN-JICRIM 10.2000 (West) (“This
instruction 	has 	been 	withdrawn.”); 	Kansas, 	see 	KS-PIKCRIM 	51.190 	(“The
Committee recommends that there be no separate instruction given as to alibi.”);
Kentucky, see 1 Cooper & Cetrulo, Kentucky Instructions to Juries, §§ 1.04(D),
1.09(D) (6th ed. 2021) (stating that no affirmative instruction on alibi is to be given
[1.04(D)] explaining that it would result in a comment on the evidence and interfere
with the jury’s right to weigh the evidence [1.09(D)]), available by request, SRP at
010-17; Maine, see Alexander, Maine Jury Instruction Manual, § 6-7 cmt., §§ 6-14
to -16, § 6-55 cmt., §§ 6-107 to -112 (2022 ed.), available on request, SRP at 0025-

16
forth in our committee commentary, but some of the minority jurisdictions have	1
nevertheless considered the alibi instruction a matter that is within the district court’s	2
discretion 	or 	affirmed 	giving 	the 	instruction. 7 Further, 	only 	a 	single 	other	3
jurisdiction, Idaho, has drafted an alibi instruction in combination with a directive	4
not to use it, like New Mexico. See ICJI 1502 Alibi Defense, cmt. Idaho, however,	5
is among the minority jurisdictions that have also affirmed a district court’s decision	6
to give the instruction under certain circumstances. See State v. Holm, 478 P.2d 284,	7
288-89 (Idaho 1970).	8
{17} 	Regardless of whether a jurisdiction is an offering or a minority jurisdiction,	9
most have considered some or all of the points made by the committee commentary	10
accompanying UJI 14-5150. On appeal, the State’s arguments largely echo these	11
29 (directing that the jury only receive instructions on justification defenses provided
in Me. Rev. Stat. Ann. 17-a, §§ 101-110 (West 2023), which omits alibi from
justification defenses); Minnesota, see 10 Minn. Prac., Jury Instr. Guides-Criminal
7.08 (6th ed. 2022), CRIMJIG 7.08 (West) (“The Committee recommends no
instruction.”); Texas, see 22 Elizabeth Berry & George Gallagher, Texas Criminal
Jury Charges § 3:390 (2021 ed.), TXJICRIM 3:390 (West) (“Alibi instructions are
no longer required because the defensive issue of alibi constitutes no more than a
negation of an essential element of the State’s burden of proof.” (emphasis omitted));
and Washington, see Wash. Prac., Pattern Jury Instr. Crim. 18.15 (5th ed. 2021), 11
WAPRAC WPIC 18.15 (West).
7Decker v. State, 499 S.W.2d 612, 616 (Ark. 1973); Ind. Judges Ass’n, Ind.
Pattern Jury Instructions-Criminal 10.21 cmt., available on request, SRP at 031-33
(providing a jury instruction example “If an instruction on this topic is appropriate”
despite the official instruction being withdrawn); Remsen v. State, 495 N.E.2d 184,
187 (Ind. 1986); State v. Peters, 656 P.2d 768, 769-70 (Kan. 1983) (finding it was
not reversible error to give the alibi instruction); State v. Landa, 642 N.W.2d 720,
727 (Minn. 2002).

17
points. We therefore address the State’s arguments primarily within the context of	1
the committee commentary of UJI 14-5150.	2
B. 	The State’s Arguments Against UJI 14-5150 and in Favor of Strict	3
Application of the Use Note and Committee Commentary	4
{18} 	The State first adopts the committee commentary’s two reasons not to give	5
the instruction: (1) alibi is not an affirmative defense but only casts doubt on the	6
elements of the crime; and (2) an instruction on alibi would “merely” be a	7
“comment[] on the evidence.” UJI 14-5150, comm. cmt. The State additionally	8
argues that the jury did not need a specific alibi instruction and could simply apply	9
its “common sense,” because the district court sufficiently instructed the jury about	10
the law. We disagree that this reasoning justifies what we fear is the ultimate result—	11
restricting the district court’s discretion to instruct on alibi in all circumstances.	12
{19} 	In New Mexico an alibi is not an affirmative defense, but “an attempt to cast	13
doubt on the proof of the elements of the crime.” McGuire, 1990-NMSC-067, ¶ 31.	14
Nearly every other jurisdiction that has addressed the matter has similarly concluded	15
that alibi is not an affirmative defense, but also has allowed an alibi instruction under	16
some circumstances.8 As the Delaware Supreme Court explained,	17
8 Like New Mexico, most jurisdictions that generally deny an alibi instruction
rely at least in part on the conclusion that alibi is not an affirmative defense,
including the following: Arkansas, see Blaney v. State, 657 S.W.2d 531, 533-34
(Ark. 1983) (comparing alibi to accident); Colorado, see People v. Huckleberry, 768
P.2d 1235, 1239 (Colo. 1989) (en banc); Illinois, see People v. Poe, 272 N.E.2d 28,
31-32 (Ill. 1971); Kansas, see Peters, 656 P.2d at 769-70; Kentucky, see Parsley v.

18
Commonwealth, 321 S.W.2d 259, 260 (Ky. Ct. App. 1958); Nebraska, see State v.
El-Tabech, 405 N.W.2d 585, 593 (Neb. 1987); Texas, see Giesberg v. State, 984
S.W.2d 245, 248, 250 (Tex. Crim. App. 1998) (en banc); and Utah, see Lynch, 2011
UT App 1, ¶ 17. Many others, however, offer an alibi instruction even though those
jurisdictions also conclude that alibi is not an affirmative defense, including:
Alabama, see Ragland v. State, 192 So. 498, 501 (Ala. 1939) (noting alibi is not an
affirmative defense); Ex parte Brown, 812 So. 2d at 307 (holding an alibi instruction
should have been given); Alaska, see Ferguson, 488 P.2d at 1038-39; Arizona, see
Rodriguez, 961 P.2d at 1011; California, see People v. Freeman, 149 Cal. Rptr 396,
398 (1978) (in bank) (noting alibi is not an affirmative defense); People v. Seabourn,
11 Cal. Rptr. 2d 641, 644-45 (Ct. App. 1992) (holding that giving the instruction
was not error because the facts supported it); Connecticut, see State v. Vasquez, 36
A.3d 739, 748 (Conn. App. Ct. 2012); Delaware, see Brown, 958 A.2d at 839;
District of Columbia, see Gray v. United States, 549 A.2d 347, 349 n.3 (D.C. 1988);
Georgia, see Rivers v. State, 298 S.E.2d 10, 19-20 (Ga. 1982) (noting alibi is not an
affirmative defense); Henderson, 252 S.E.2d at 84 (holding that it is reversible error
not to give an alibi instruction when the evidence supports it); Hawai’i, see State v.
Gabrillo, 877 P.2d 891, 894 (Haw. Ct. App. 1994) (noting that alibi is not an
affirmative defense); Hawai’i Pattern Jury Instructions—Criminal 7.14, HI R CR
JURY Instr. 7.14 (West); Maryland, see Pulley v. State, 382 A.2d 621, 624 (Md. Ct.
Spec. App. 1978); Missouri, see Taylor, 24 S.W. at 454, 456 (noting that alibi is not
an affirmative defense); State v. Franklin, 591 S.W.2d 12, 14 (Mo. Ct. App. 1979)
(stating the rule that a defendant is entitled to an alibi instruction if requested and if
the evidence is sufficient to raise a reasonable doubt about the defendant’s presence);
Montana, see State v. McClellan, 59 P. 924, 925 (Mont. 1900); MCJI 2-119, available
at https://courts.mt.gov/Courts/boards/CriminalJuryInstructionsCommission (select “2022
Criminal Jury Instructions” and Chapter 2, at p. 41); Nevada, see Williams v. State, 671
P.2d 635, 636 (Nev. 1983) (noting that alibi is not an affirmative defense); Duckett,
752 P.2d at 754 (concluding that an alibi instruction should be given in Nevada
“when requested and supported”); New Jersey, see Searles, 197 A.2d at 386 (noting
that alibi is not an affirmative defense); Echols, 972 A.2d at 1102 (holding that the
failure to give an alibi instruction is error); New York, see People v. Victor, 465
N.E.2d 817, 818 (N.Y. 1984); North Carolina, see State v. Hunt, 197 S.E.2d 513,
518 (N.C. 1973); Ohio, see State v. Sorrels, 593 N.E.2d 313, 316 (Ohio Ct. App.
1991) (noting that alibi is not an affirmative defense); Mitchell, 574 N.E.2d at 576
(holding it is error to refuse an alibi instruction if the alibi is properly supported by
the evidence); Pennsylvania, see Commonwealth v. Winebrenner, 265 A.2d 108, 114
(Pa. 1970) (noting that alibi is not an affirmative defense); Mikell, 729 A.2d at 568,
570 (holding a defendant is entitled to an alibi defense when the evidence supports

19
because the defense of alibi is not an affirmative defense, the defendant	1
does not have the burden of proving his alibi. Instead, a proper alibi	2
instruction 	informs 	the 	jury 	that, 	if 	the 	proof 	adduced 	raises 	a	3
reasonable doubt 	of the defendant’s 	guilt, either by itself or in	4
conjunction with all other facts in the case, the defendant must be	5
acquitted.	6
Brown, 958 A.2d at 838-39 (emphasis added) (alteration, internal quotation marks,	7
and citation omitted). The Brown Court continued:	8
Without an alibi instruction in this case, the jury was erroneously left	9
free to assume that the defendant bore the burden of proving alibi. An	10
alibi instruction is required so that a jury does not make a determination	11
of guilt based on the failure of the defense rather than because the	12
evidence introduced by the state had satisfied the jury of the defendant’s	13
guilt beyond a reasonable doubt.	14
Id. at 839 (alterations, footnotes, internal quotation marks, and citation omitted); see	15
also Robertson v. State, 685 A.2d 805, 815 (Md. Ct. Spec. App. 1996) (“Because an	16
alibi is not an affirmative defense, a specific alibi instruction eliminates the	17
possibility that the jury will place the burden of proof on the defense with respect to	18
that issue.”). Similarly in New Mexico, for alibi, a defendant need only “cast doubt	19
on the proof of the elements of the crime” and bears no burden of proof. McGuire,	20
1990-NMSC-067, ¶ 31; see UJI 14-5150, comm. cmt. (noting that “it is improper to	21
instruct that the burden is on the defendant to prove his alibi”). These principles are	22
it); South Carolina, see State v. Bealin, 23 S.E.2d 746, 753, 755 (S.C. 1943);
Tennessee, see Christian v. State, 555 S.W.2d 863, 864, 866 (Tenn. 1977); and
Vermont, see State v. Ovitt, 535 A.2d 1272, 1274 (Vt. 1987) (noting that alibi is not
an affirmative defense); Powers, 47 A. at 832-33 (concluding the district court
correctly instructed the jury on alibi).

20
in line with New Mexico’s law of self-defense, which is also not an affirmative	1
defense and for which the defendant bears no burden of proof. See Parish, 1994-	2
NMSC-073, ¶ 17. “The defendant’s only obligation is to introduce evidence that will	3
raise in the minds of the jurors a reasonable doubt about the matter.” Id. ¶ 16. For	4
self-defense, it is the State’s burden to disprove the defense and the jury must be so	5
instructed to avoid misunderstandings about the burdens. See id. ¶ 20. For these	6
reasons, we question whether the categorization of alibi as “not an affirmative	7
defense” 	justifies 	the 	committee 	commentary’s 	explanation 	for 	categorically	8
refusing to instruct the jury on the topic. See id. ¶ 17.	9
{20} 	We are similarly skeptical of the committee commentary’s classification of	10
the alibi jury instruction as an inappropriate comment on the evidence. See UJI 14-	11
5150, comm. cmt. Under well-established New Mexico law, an improper comment	12
on the evidence is one that (1) contextualizes specific facts presented; (2) argues or	13
hypothesizes on factual issues within the jury’s purview to decide; or (3) otherwise	14
makes a statement about the weight or credibility of evidence in the presence of the	15
jury. See State v. Padilla, 1977-NMCA-055, ¶ 13, 90 N.M. 481, 565 P.2d 352	16
(requiring instructions be “free from hypothesized facts” (internal quotation marks	17
and citation omitted)); Amador v. Lara, 1979-NMCA-129, ¶¶ 24-32, 93 N.M. 571,	18
603 P.2d 310 (considering a court’s note to the jury that included an explanation of	19
the damages evidence); State v. Sanchez, 1991-NMCA-037, ¶¶ 26-28, 112 N.M. 59,	20

21
811 P.2d 92 (noting that comments that reflect on the weight of evidence or witness	1
credibility are prejudicial); see also Rule 11-107 NMRA (“The court shall not	2
comment to the jury upon the evidence or the credibility of the witnesses.”); UJI	3
Crim. Gen. NMRA use note (“For other subject matters not covered by a uniform	4
instruction, the court may give an instruction that is brief, impartial, free from	5
hypothesized facts, and otherwise similar in style to these instructions.”). Other	6
jurisdictions have characterized commenting on the evidence slightly differently, but	7
ultimately, warn courts against expressing an opinion about evidence9 or drawing	8
attention to particular evidence.10 The Supreme Court of Arizona explained that a	9
comment on the evidence ultimately “express[es] an opinion as to what the evidence	10
proves . . . that would interfere with the jury’s independent evaluation of that	11
evidence.” 	Rodriguez, 	961 	P.2d 	at 	1011 	(evaluating 	the 	state 	constitutional	12
prohibition on comment on evidence). With these principles in mind, we set forth	13
our alibi instruction again:	14
9State v. Kim, 2001 ME 99, ¶ 8, 773 A.2d 1051 (“Because traditional alibi
instructions are in the nature of a comment by the court on the evidence, such
instructions are neither required nor appropriate in most instances.” (citing 14
M.R.S.A. § 1105 (1980))).
10 See Landa, 642 N.W.2d at 728 n.2 (cautioning Minnesota courts “that
instructions that single out a particular category of evidence shall be avoided”);
Giesberg, 984 S.W.2d at 250 (holding that in Texas, “a separate instruction on alibi
as a defense would draw unwarranted attention to evidence that appellant was at
another place when the crime was committed and would therefore constitute an
improper comment on the weight of the evidence”).

22
Evidence has been presented concerning whether or not the	1
defendant was present at the time and place of the commission of the	2
offense charged. If, after a consideration of all the evidence, you have	3
reasonable doubt that the defendant was present at the time the crime	4
was committed, you must find him not guilty.	5
UJI 14-5150. This instruction does not contextualize or hypothesize the facts or	6
express an opinion about the evidence. The instruction does not “suggest to the jury	7
that the evidence should lead them to any particular result [but r]ather, it reframes	8
the burden of proof in the context of [the defendant]’s alibi theory.” See Rodriguez,	9
961 P.2d at 1012. As a result, we do not believe that UJI 14-5150 functions as a	10
comment on the evidence, despite the committee commentary’s characterization.11
11
{21} 	The State last maintains that “[t]here [was] no reason why the jury needed to	12
be instructed on ‘how to properly evaluate’ [Defendant’s] alibi,” because the given	13
instructions sufficiently explained the law. In support of its contention, the State	14
argues that “it is self-evident that, if the jury believed Defendant was in Cedar City	15
that night, he could not have committed the theft and was not guilty of the charges”	16
11 It is worth noting that “comment on evidence” is often tied to older versions
of the instruction like this one: “The law says that the defense of alibi should be
received by the jury discreetly and cautiously because it is a defense that can be
easily manufactured or fabricated.” Christian, 555 S.W.2d at 864 (internal quotation
marks and citation omitted). The Christian Court rejected this instruction because
“[t]he overwhelming weight of authority in other states where trial judges are
prohibited from making comments upon the evidence is that disparaging comments
or references to the issue of alibi are erroneous.” Id. at 864, 866.

23
and “UJI 14-5150 does not tell jurors anything they d[id] not already know as a	1
matter of common sense.” The Supreme Court of Alaska took a different view:	2
Instructions serve purposes other than to inform the jury on the law	3
applicable to the case, one such other purpose being to remind the jury	4
of the main factual disputes raised during trial. Moreover, without	5
proper instruction the jury might erroneously believe that the defendant	6
has the burden of proving alibi.	7
Ferguson, 488 P.2d at 1038. Similarly, the Supreme Court of Pennsylvania observed	8
that:	9
“‘[G]eneral instructions on the [c]ommonwealth’s burden of proving	10
each element of the offense beyond a reasonable doubt, the absence of	11
a burden of proof on the defendant, and assessing the credibility of	12
witnesses do not adequately protect against’” the danger posed by the	13
misapprehensions a jury might indulge regarding the relevance and	14
effect of alibi evidence.	15
Commonwealth v. Hawkins, 894 A.2d 716, 718 (Pa. 2006) (quoting Commonwealth	16
v. Pounds, 417 A.2d 597, 634 (Pa. 1980)); see Rodriguez, 961 P.2d at 1011	17
(“[S]tandard instructions about the burden of proof provide a poor substitute for a	18
properly supported alibi instruction.”); Brown, 958 A.2d at 838-39 (rejecting the	19
state’s argument that general instructions on burden of proof eliminated prejudice);	20
Pulley, 382 A.2d at 626 (same); Poe, 370 S.W.2d at 489 (same); Duckett, 752 P.2d	21
at 754 (“Although alibi instructions may, to some extent, merely be a reiteration of	22
other instructions, they are not totally redundant . . . [and] may prevent a jury from	23
mistakenly believing that the defendant has the burden of proving that he was	24
elsewhere, thereby minimizing the prospect of prejudicial error on the point.”). We	25

24
find this reasoning persuasive, particularly in the context of the trial in the present	1
case. We turn then to review the facts as they developed at trial through closing	2
argument but not to discern any error, because, as we have explained, we are	3
precluded from finding error under these circumstances. Instead, we relay the facts,	4
viewed through the lens of our reversible error standard, to demonstrate the risk run	5
by the categorical denial of the instruction.	6
C. 	The Present Case Demonstrates the Elevated Risk of Juror Confusion	7
and Misdirection When Alibi Evidence is Offered	8
{22} 	A defendant is entitled to a jury instruction on their theory of the case when	9
the instruction is supported by sufficient evidence at trial. See State v. Romero, 2009-	10
NMCA-012, ¶ 22, 145 N.M. 594, 203 P.3d 125; see also Skippings, 2011-NMSC-	11
021, ¶ 10 (“A defendant is entitled to an instruction on his or her theory of the case	12
if evidence has been presented that is sufficient to allow reasonable minds to differ	13
as to all elements of the offense.” (internal quotation marks and citation omitted)).	14
Denial of a jury instruction rises to reversible error if the defendant shows they were	15
entitled to the denied instruction or that “a reasonable juror [c]ould have been	16
confused or misdirected” by the omission. State v. Montoya, 2015-NMSC-010, ¶ 25,	17
345 P.3d 1056 (internal quotation marks and citation omitted). 	Confusion or	18
misdirection may arise “despite the fact that the juror considers the instruction	19
straightforward and perfectly comprehensible on its face.” Benally, 2001-NMSC-	20
033, ¶ 12 (internal quotation marks and citation omitted). Thus, even if a jury	21

25
instruction is not facially contradictory or ambiguous, it may create juror confusion	1
or misdirection if the instruction, “through omission or misstatement, fail[s] to	2
provide the juror with an accurate rendition of the relevant law.” Id.; see State v.	3
Ellis, 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186 P.3d 245 (“A jury instruction	4
which does not instruct the jury upon all questions of law essential for a conviction	5
of any crime submitted to the jury is reversible error.” (internal quotation marks and	6
citation omitted)).	7
{23} 	In the present case, the jury received correct instructions on the State’s burden	8
of proof. See UJI 14-5060 NMRA. The elements instructions reiterated the State’s	9
burden of proof. See UJI 14-1601 NMRA (Larceny; essential elements.); UJI 14-	10
1630 (Burglary; essential elements.). During closing argument, the State referred to	11
the alibi evidence as the “alibi card” and repeatedly warned the jury to the effect that	12
Defendant was “trying to get out from under the truth” and get the jury “to buy into	13
that alibi card.” After arguing about the alibi evidence, the State asked the jury “as	14
we stand here now, what evidence do you as a jury have to establish the alibi that he	15
wasn’t at Lowe’s at 10:40 [p.m.] on December 2nd?” Defendant objected, and the	16
trial court warned the State that the argument was “getting close” but overruled the	17
objection. The State continued, told the jury that it had the testimony of Defendant	18
and Majeski and the restaurant receipt, and asked, “Who else could have added to	19
the alibi?” Defendant again objected and the State indicated it would move on,	20

26
though continued to make comments that an alibi had not been proved. On rebuttal,	1
the State began by correctly asserting that “if you believe [Defendant] and Mr.	2
Majeski, I should just sit down, because that is reasonable doubt and the verdict	3
would have to be not guilty.” The State continued and argued to the jury that the	4
alibi evidence was “being used against [Defendant] to challenge his credibility	5
because the only way he’s not guilty is if you believe him and Mr. Majeski.”	6
{24} 	Undoubtedly, as the parties agree, the State may challenge credibility of the	7
alibi evidence and witnesses. The State may not, however, present an argument that	8
serves to shift the burden of proof. The alibi instruction would have told the jury that	9
“[i]f, after a consideration of all the evidence, you have reasonable doubt that the	10
defendant was present at the time the crime was committed, you must find him not	11
guilty.” See UJI 14-5150. This instruction creates a framework for the jury to	12
understand the State’s burden to prove beyond a reasonable doubt that Defendant	13
was present when the crime took place when Defendant contends he was elsewhere.	14
This is especially so in the context of the present case, with the State’s continued	15
references to Defendant’s failure to prove the alibi, culminating in the argument on	16
rebuttal that the only way Defendant would be “not guilty” was if the jury did not	17
believe the alibi evidence. Absent such an instruction,12 the likelihood of juror	18
12 We observe that other jurisdictions have instructions that more explicitly set
forth the burdens. See Alabama Pattern Jury Instructions: Criminal, Non-Statutory
Special 	Instructions, 	Alibi 	(approved 	April 	15, 	2016), 	available 	at

27
confusion escalated. We agree with Defendant’s observation at oral argument that	1
UJI 14-5150 would have offered an appropriate reminder given the facts and	2
arguments in this case of the State’s burdens. The facts of this case further	3
demonstrate the danger of relying on “common sense” to ensure that a jury	4
understands difficult concepts. The elements of larceny require the State to prove	5
the market value of the stolen property, which is unrelated to Defendant’s presence.	6
See UJI 14-1601 (requiring the State to prove: “1. The defendant took and carried	7
away [property], belonging to another, which had a market value [over $ 20,000]”).	8
The State was required to prove all of the elements of larceny, even if the jury did	9
not believe Defendant’s alibi evidence. We therefore observe that despite the proper	10
instructions on reasonable doubt and the State’s burden, “a reasonable juror [c]ould	11
https://judicial.alabama.gov/docs/library/docs/Alibi.pdf; 	Conn. 	Criminal 	Jury
Instructions 	§ 	2.7-2 	(Nov. 	2021), 	available 	at
https://jud.ct.gov/JI/Criminal/Criminal.pdf; 	Georgia 	Suggested 	Pattern 	Jury
Instructions, Vol. II: Criminal Cases, § 3.30.10, GAJICRIM 3.30.10 (West);
Instruction 9.120 of the Criminal Model Jury Instructions for Use in the District
Court 9.120 (2009), MJ MA-CLE 9.100 (West) (Massachusetts); New Jersey Model
Jury Charges (Criminal), “Alibi (Non 2C)” (rev. May 12, 2018), NJ-JICRIM Non
2C Charges (West); CJI2D(NY) GA 21–Alibi and 1 Charges to Jury & Requests to
Charge in Crim. Case in N.Y. §§ 5:7-:9 (Oct. 2022 update) (New York). Still other
jurisdictions have adopted an instruction similar to the instruction that the State
referenced at oral argument. See Frye, 746 F.2d at 1012-13 (4th Cir.); see also Miss.
Prac. Model Jury Instr., Crim. § 2:1 (2d ed.) (West) and Miss. Plain Lang. Model
Jury Instr. Crim. 500 (West); N.H. Criminal Jury Instructions 3.02 (1985), available
at 	https://nhba.s3.amazonaws.com/wp-content/uploads/2020/07/14150407/NH-
Criminal-Jury-Instructions-1985.pdf; 	N.C.P.I.—Crim. 	301.10 	(2003) 	(North
Carolina); Anderson’s S.C. Requests to Charge - Criminal § 6-19 (2d ed. 2012), SC-
JICRIM 6-19 (West); WIS JI-CRIMINAL JI-775 (West).

28
have been confused or misdirected” by the omission of the alibi instruction. See	1
Montoya, 2015-NMSC-010, ¶ 25 (internal quotation marks and citation omitted);	2
see also Romero, 2009-NMCA-012, ¶ 22.	3
{25} 	For these reasons, we express our reservations regarding the Use Note and	4
New Mexico’s prohibition against giving the uniform alibi jury instruction at the	5
district court’s discretion in appropriate circumstances. Wilson, 1994-NMSC-009,	6
¶ 6 (encouraging “the Court of Appeals to express its rationale for any reservations	7
it might harbor over Supreme Court precedent”).	8
II. 	The Evidentiary Issues	9
{26} 	Defendant challenges the district court’s admission of Nickel’s opinion	10
testimony and exclusion of Docimo’s preliminary hearing testimony. We review the	11
evidentiary rulings for an abuse of discretion. State v. Vargas, 2016-NMCA-038,	12
¶ 10, 368 P.3d 1232. “An abuse of discretion occurs when a ruling is clearly against	13
the logic and effect of the facts and circumstances of the case, or when a ruling	14
indicates a misapprehension of the law.” State v. Chavez, 2022-NMCA-007, ¶ 39,	15
504 P.3d 541 (alterations, internal quotation marks, and citations omitted). We will	16
only reverse where the abuse is “clearly untenable or not justified by reason.” State	17
v. Maxwell, 2016-NMCA-082, ¶ 10, 384 P.3d 116 (internal quotation marks and	18
citation omitted).	19
20

29
A. 	The District Court Did Not Abuse Its Discretion in Admitting Nickel’s	1
Opinion Testimony	2
{27} 	At trial, Defendant argued that Nickel’s testimony amounted to expert	3
testimony and not lay testimony. Since trial, this Court decided Chavez. In that case,	4
we rejected police officer testimony that “form[ed] conclusions for jurors that they	5
are competent to reach on their own.” 2022-NMCA-007, ¶ 42 (internal quotation	6
marks and citation omitted). Defendant now relies on Chavez to argue that Nickel’s	7
testimony that identified Defendant in the incident video was improper. The heart of	8
the parties’ dispute about Nickel’s testimony is whether her opinion was helpful to	9
the jury in accordance with Rule 11-701(B) NMRA and that is where we focus our	10
inquiry.	11
{28} 	The district court viewed Nickel’s testimony to be lay opinion testimony. Lay	12
opinion testimony is admissible only if it is “helpful to clearly understanding the	13
witness’s testimony or to determining a fact in issue.” Rule 11-701(B). The	14
helpfulness of opinion testimony that identifies an individual in video evidence is	15
based on whether “the witness is more likely than the jury to make an accurate	16
identification.” Chavez, 2022-NMCA-007, ¶ 41 (stating this Court’s acceptance of	17
“this general rule” (citing State v. Sweat, 2017-NMCA-069, ¶¶ 21-24, 404 P.3d 20)).	18
In Sweat, this Court adopted five factors “relevant to a determination of whether a	19
lay witness is more likely than the jury to identify the defendant correctly” in video	20
or photographic evidence, including,	21

30
(1) the witness’s general level of familiarity with the defendant’s	1
appearance; 	(2) 	the 	witness’s 	familiarity 	with 	the 	defendant’s	2
appearance at the time the surveillance photograph was taken or	3
whether the defendant was dressed in a manner similar to the individual	4
depicted; (3) whether the defendant disguised his or her appearance at	5
the time of the offense; (4) whether the defendant had altered his or her	6
appearance prior to trial; and (5) the degree of clarity of the surveillance	7
recording and the quality and completeness of the subject’s depiction	8
in the recording.	9
2017-NMCA-069, ¶ 22 (alterations, internal quotation marks, and citations omitted).	10
Any one of these five factors can demonstrate that the witness is more likely than	11
the jury to make a correct identification of a person appearing in a video recording.	12
Id.; Chavez, 2022-NMCA-007, ¶ 41.	13
{29} 	This Court in Chavez stressed the importance of preventing a witness from	14
drawing conclusions that the jury was in an equally apt position to draw on its own.	15
2022-NMCA-007, ¶ 41. The district court in Chavez permitted an officer, based on	16
her “training and experience,” to provide opinion testimony identifying “a dark	17
object” in a black-and-white surveillance video as a gun. Id. ¶ 40 (internal quotation	18
marks omitted). This Court determined, however, that the officer (1) had no more	19
interaction or “special familiarity with the visual appearance” of the gun, which was	20
“an ordinary object;” (2) “was not present on the night of the incident” and “had no	21
opportunity to observe whether [the d]efendant was armed;” and (3) did not have	22
“knowledge of anything idiosyncratic about [the d]efendant or his belongings.” Id.	23
¶ 42. Because the officer solely relied on evidence already admitted and available to	24

31
the jury to identify the gun in the video and had no more knowledge or interaction	1
with the gun than the jury, the officer had no special familiarity with the gun that	2
made her more likely than the jury to accurately identify the gun in the video	3
evidence. Id. The identification testimony was therefore not helpful to the Chavez	4
jury. Id.	5
{30} 	In the present case, Defendant’s argument hinges on Chavez. According to	6
Defendant, because the jury had access to the “plethora” of video evidence, the jury	7
had “a similar level of competence as Nickel” to determine whether Defendant was	8
the person in the incident footage. Consequently, Defendant argues that “Nickel’s	9
opinions in her testimony were conclusions that the jury could have arrived at based	10
on the evidence provided at trial” and that Nickel’s opinion testimony was therefore	11
unhelpful and improper. Defendant’s argument disregards Nickel’s undisputed	12
personal knowledge of Defendant.	13
{31} 	Nickel worked with Defendant for about two years and had almost daily	14
contact with Defendant during that time. This evidence establishes a special	15
familiarity beyond that of the officer in Chavez. Defendant concedes that this	16
evidence satisfies one of the five Sweat factors, the witness’s familiarity with	17
Defendant’s appearance. See 2017-NMCA-069, ¶ 22. Defendant further concedes	18
that because the person in the incident footage was dressed in disguise, a second	19
Sweat 	factor supports admission of Nickel’s identification testimony. 	See id.	20

32
Nickel’s knowledge of Defendant and the fact that the face of the person in the	1
incident footage was concealed makes it more likely that Nickel’s testimony could	2
help the jury to identify Defendant in the recordings. As a result, the district court	3
did not abuse its discretion by admitting Nickel’s opinion testimony.	4
B. 	The District Court Did Not Abuse Its Discretion in Excluding Docimo’s	5
Preliminary Hearing Testimony	6
{32} 	Defendant also challenges the district court’s exclusion of the preliminary	7
examination testimony of Docimo. Generally, a transcript would be considered	8
inadmissible hearsay, except in certain circumstances if the witness is unavailable.	9
See Rule 11-801(C) NMRA (defining hearsay); Rule 11-802 NMRA (excluding	10
hearsay as inadmissible); Rule 11-804 NMRA (unavailable witness). A witness is	11
unavailable if the party calling the witness was unable “by process or other	12
reasonable 	means, 	to 	procure” 	the 	witness’s 	attendance. 	Rule 	11-804(A)(5).	13
Throughout this case, Defendant has contended that he met the burden to establish	14
that he was unable by “other reasonable means” to procure Docimo’s attendance at	15
trial. See State v. Ewing, 1982-NMSC-003, ¶ 17, 97 N.M. 235, 638 P.2d 1080	16
(explaining the burden is on the party offering the transcript to demonstrate	17
unavailability (internal quotation marks and citation omitted)). Initially, the district	18
agreed that Docimo was unavailable and therefore ruled that the preliminary hearing	19
transcript was admissible. At trial, however, Majeski, testified that he had contact	20
with Docimo in the weeks before trial. Based on this testimony, the district court	21

33
determined that Plaintiff did not establish Docimo’s unavailability for the purposes	1
of Rule 11-804. Defendant maintains his position on appeal that the investigator had	2
not been able to locate Docimo and Defendant himself had no knowledge of	3
Docimo’s whereabouts.	4
{33} 	For support, Defendant analogizes to Ewing, in which our Supreme Court held	5
that the party seeking admission of hearsay had made reasonable efforts to secure	6
the witness. See 1982-NMSC-003, ¶ 17. Defendant contends that like in Ewing, his	7
investigator had difficulty serving Docimo. Docimo did not want to come to trial,	8
see id. ¶¶ 14, 17, and therefore, Defendant maintains that his efforts to secure	9
Docimo were reasonable. Unlike in Ewing, however, Defendant did not check other	10
potential addresses, schools, welfare offices, or talk to neighbors. See id. ¶ 14. To	11
the contrary, the evidence shows that Defendant’s investigator did not even ask	12
Majeski about Docimo’s whereabouts, even though Majeski was Docimo’s husband.	13
Under these circumstances, we cannot say that the district court’s exclusion of the	14
preliminary hearing transcript was an abuse of discretion and “clearly against the	15
logic and effect of the facts and circumstances of the case.” Maxwell, 2016-NMCA-	16
082, ¶ 10 (internal quotation marks and citation omitted).	17

34
III. 	The Sufficiency of the Evidence	1
{34} 	Defendant last challenges the sufficiency of the evidence supporting the	2
larceny conviction and the amount of the restitution order. We are satisfied that	3
sufficient evidence supported both.	4
A. 	The Evidence Supported Defendant’s Larceny Conviction	5
{35} 	The elements essential to conviction are set forth in the relevant uncontested	6
jury instructions. See State v. Garcia, 2016-NMSC-034, ¶ 17, 384 P.3d 1076 (“Jury	7
instructions become the law of the case against which the sufficiency of the evidence	8
is to be measured.” (alteration, internal quotation marks, and citation omitted)). In	9
this case, the jury instruction as to Count I, Larceny Over $20,000, provided:	10
For you to find . . .Defendant guilty of Larceny as Charged in	11
Count 1, the State must prove to your satisfaction beyond a reasonable	12
doubt each of the following elements of the crime:	13
1. 	Defendant took and carried away Cash—United States	14
Currency, belonging to another, which had a market value over	15
$20,000;	16
2. 	At the time he took this property, Defendant intended to	17
permanently deprive the owner of it;	18
3. 	This happened in New Mexico on or about the 2nd day of	19
December[,] 2017.	20
See UJI 14-1601. Defendant challenges the sufficiency of the evidence only as to the	21
first element. “In reviewing for sufficiency of the evidence, we must determine	22
whether substantial evidence of either a direct or circumstantial nature exists to	23

35
support a verdict of guilt beyond a reasonable doubt with respect to every element	1
essential to a conviction.” State v. Torres, 2018-NMSC-013, ¶ 42, 413 P.3d 467	2
(internal quotation marks and citation omitted). We view the evidence in the light	3
most favorable to the guilty verdict and only find evidence is substantial when “a	4
reasonable mind might accept [it] as adequate to support a conclusion.” Id. (internal	5
quotation marks and citation omitted); see State v. Cunningham, 2000-NMSC-009,	6
¶ 26, 128 N.M. 711, 998 P.2d 176.	7
{36} 	At trial, the State presented the testimony of both Nickel and Detective Rock	8
that over $20,000 had been stolen, but the two witnesses testified to different	9
amounts. Nickel testified that approximately $36,000 had been stolen, based on her	10
review of accounting paperwork that was not introduced at trial. Detective Rock,	11
based on Officer Flores’s report, testified that the amount was $33,040.85. Any	12
conflict between Nickel’s and Detective Rock’s testimony was to be resolved by the	13
fact-finder, and regardless, a rational jury could conclude that this evidence	14
establishes that more than $20,000 was stolen. See State v. Landlee, 1973-NMCA-	15
112, ¶ 3, 85 N.M. 449, 513 P.2d 186 (considering conflicting testimony as to the	16
amount stolen in a larceny trial); see also State v. Dominguez, 1977-NMCA-128,	17
¶¶ 14, 15, 91 N.M. 296, 573 P.2d 230 (permitting the jury to determine that the value	18
of items stolen).	19

36
{37} 	Defendant maintains that this evidence—at best—supports the notion that	1
Nickel and Detective Rock believed that more than $20,000 was taken but that	2
without the accounting or report supporting their testimony, the evidence was legally	3
insufficient for conviction. Therefore, Defendant contends that the State failed to	4
meet its burden of proof in violation of Defendant’s due process rights under both	5
the federal and state constitutions. We disagree. No authority suggests the amount	6
taken must be established by documentary evidence. See Landlee, 1973-NMCA-	7
112, ¶¶ 2, 3. To the extent Defendant urges us to adopt a requirement for	8
documentary evidence, based on a New York trial court’s slip opinion in People v.	9
Cruz, 130 A.D.3d 1538 (N.Y. App. Div. 2015), we decline to do so. Applying our	10
well-established standard, viewing the evidence in the light most favorable to the	11
guilty verdict, we conclude that a jury could rationally determine over $20,000 was	12
taken from Lowe’s. See § 30-16-1(F); see Landlee, 1973-NMCA-112, ¶ 3.	13
B. 	The Evidence Supported the Restitution Order	14
{38} 	Defendant additionally contends that there was no basis for the district court’s	15
order requiring $33,040.83 in restitution, because (1) the amount of restitution did	16
not match the evidence from trial, and (2) no presentencing investigation or evidence	17
supported the amount. As a result, Defendant argues that he had no notice or	18
mechanism to challenge the amount of restitution. Defendant concedes this issue is	19
not preserved, and we therefore review for fundamental error. See In re Aaron L.,	20

37
2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 431. The fundamental error	1
exception to the preservation rule applies “only under extraordinary circumstances	2
to prevent the miscarriage of justice.” State v. Silva, 2008-NMSC-051, ¶ 13, 144	3
N.M. 815, 192 P.3d 1192 (internal quotation marks and citation omitted), holding	4
modified on other grounds by State v. Guerra, 2012-NMSC-027, ¶¶14, 15, 284 P.3d	5
1076.	6
{39} 	According to Defendant, the trial evidence did not support the restitution	7
amount ($33,040.83) because it differed from the amounts testified to by Nickels	8
($36,000) and Detective Rock ($33,040.85). We note, however, that the amount	9
ordered for restitution was two cents less than the amount testified to by Detective	10
Rock. Defendant had notice of Detective Rock’s testimony from the trial, and the	11
difference 	between 	Detective 	Rock’s 	testimony 	and 	the 	restitution 	order 	is	12
nominal—and ultimately the restitution order required Defendant to pay two cents	13
less than the testimony indicated. We decline to view this two-cent decrease as an	14
“extraordinary” circumstance requiring our intervention “to prevent the miscarriage	15
of justice.” See id. (internal quotation marks and citation omitted). Because the	16
restitution amount was sufficiently supported by the trial evidence, we do not	17
consider Defendant’s argument that a presentence report was necessary to provide	18
notice of the restitution amount. Accordingly, we find no fundamental error.	19

38
CONCLUSION	1
{40} 	For the reasons stated herein, we affirm.	2
{41} 	IT IS SO ORDERED.	3
__________________________________	4
KATHERINE A. WRAY, Judge	5
WE CONCUR:	6
_________________________________	7
J. MILES HANISEE, Judge	8
_________________________________	9
MEGAN P. DUFFY, Judge	10