September 17, 2018- State of New Mexico v. Melissa Rae Flores, No. A-1-CA-35500

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Filed

Court of Appeals of New Mexico
9/17/2018 11:30 AM
Office of the Clerk

FAPE 4°SOFT £ §8™™ OF NEW MEXICO

Opinion Number: |

Filing Date: September 17, 2018
STATE OF NEW MEXICO,
Plaintiff-Appellee,
V. NO. A-1-CA-35500
MELISSA RAEF Okh.3,
Defendant-Appellant.

APE AL FROM TE DIS: RIC. COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Hector H. alderas, Attorney General
Santa Fe, NM

John Kloss, Assistant Attorney General
Albuquerque, NM

for Appellee
Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Public Defender

Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

| [>
La al
Mark Reynolds

1 	OPINION
2 	V ANZI, Chief Judge.
3 	{I} 	Defendant Melissa Rae 	Flores 	appeals 	her 	convictions 	for 	rece1vmg 	or
4 transferring a stolen vehicle and possession of burglary tools. She argues that the
5 admission of a codefendant's indictment and plea, along with inadmissible hearsay
6 testimony, denied her a fair trial. Defendant also raises the issue of an erroneous jury
7 instruction and challenges the sufficiency of the evidence to support each of her
8 convictions. 	Because 	we 	conclude 	that 	the 	State 	used the 	codefendant's 	plea
9 agreement and indictment solely for the substantive purpose of proving the elements
10 	of receiving or transferring a stolen vehicle against Defendant thus violating her right
11 	to a fair trial and to due process under the Sixth and Fourteenth Amendments of the
12 	United States Constitution, we reverse and remand.
13 	BACKGROUND
14 	Facts 	Leading 	to 	the 	Charges 	Against 	Defendant 	and 	Codefendant 	Scott
15 	Veretto
16 	{2} 	Bernalillo 	County 	Sheriff's 	Department 	Detective 	Jerry 	Koppman 	was
17 	looking for Scott Veretto in August 2013. Koppman had previously arrested Veretto
18 	for stealing motorcycles and confirmed on NCIC that Veretto was a wanted fugitive.
19 	When Koppman arrived at Veretto's last known address, he saw Veretto leave the
20 	residence, get into a Mustang, and drive away. Koppman learned the Mustang was
21 	registered to Cameron Ezell, so Koppman went to Ezell' s house to speak to him.

1 Ezell told Koppman that he had let V eretto use his car and that V eretto was staying
2 with Defendant, who was V eretto' s girlfriend at the time. While at Ezell' s residence,
3 Koppman saw a partially disassembled Nissan Murano parked in the backyard. The
4 vehicle identification number (VIN) plate had been removed from the Murano's
5 dashboard, but Koppman found a label with the VIN on the inside of the driver's
6 side door. A National Crime Information Center (NCIC) check established that
7 Defendant's mother owned the vehicle.
8 	{3} 	Koppman then went to Defendant's mother's home, where Defendant also
9 lived, and located Defendant. There, he saw a different and fully assembled Nissan
10 	Murano. The VIN plate on the dashboard of the Murano "appeared to have been
11 	tampered with." Defendant gave Koppman access to the inside of the Murano by
12 	crawling through the back of the car to unlock the car, and an NCIC search of the
13 	VIN from the 	secondary label 	confirmed that the vehicle was not owned by
14 	Defendant or her mother, but had been reported as stolen. Also, when Defendant
15 	opened the Murano for Koppman to examine the secondary VIN, he saw "a little
16 	computer" in the back 	of the vehicle. 	Defendant explained that she used the
17 	computer "to reset her key in order to start the car" using written instructions that
18 	Veretto had given to her. Defendant's mother thought that she held legal title to the
19 	fully assembled Murano as she had purchased a similar one from a dealership a few
20 years earlier for Defendant to drive.
2

1 {4} 	Based on these facts, Defendant was charged with receiving or transferring a
2 stolen vehicle, conspiracy to receive or transfer a stolen vehicle, possession of
3 burglary tools, and two counts of harboring a felon. On the same date, the State
4 charged Veretto with receiving or transferring a stolen vehicle, conspiracy to receive
5 or transfer a stolen vehicle, possession of burglary tools, and other crimes related to
6 vehicle theft. Veretto subsequently entered into a plea and disposition agreement in
7 which he agreed to plead guilty to receiving or transferring a stolen 2007 white
8 Nissan Murano and conspiracy to commit receiving or transferring a stolen 2007
9 white Nissan Murano, among other offenses. Defendant's case proceeded to trial.
10 	The State's Motion in Limine
11 	{5} 	Prior to trial, the State filed a motion in limine requesting, among other things,
12 	to introduce Veretto' s plea and disposition agreement in order to "prove elements of
13 	the crime against ... Defendant[,] ... [s]pecifically, .. . to prove knowledge on
14 	behalf of ... Defendant that Scott Veretto had committed a felony or felonies, and
15 	that ... Defendant had reason to believe that the automobile which is the subject of
16 	Counts 1 and 2 was stolen." At a hearing on the motion, the State further explained
17 that it was going to call V eretto to testify at trial and that it wanted to present
18 	Veretto' s plea agreement as evidence for two reasons: First, "to show ... the amount
19 	of motor 	vehicle 	thefts 	that 	[Veretto J has 	committed[,]" 	which 	"goes 	to 	the
20 knowledge element ... that [Defendant] knew that [Veretto] had committed a
3

1 felony" on "the harboring of the felon" count; and second, "to show, for the receiving
2 	... a stolen motor vehicle [ count], ... that she knew it was stolen" because she
3 "presumably .. . got this motor vehicle from Mr. Veretto .... And conspiracy to
4 	commit. So that all goes to showing that [Veretto] conspired with [Defendant],
5 which is one of the charges [Defendant is] charged with[.]" The State further said
6 that it intended to admit the plea agreement "as substantive evidence ... to show the
7 knowledge components on [Defendant 's ] part." Defense counsel responded that he
8 was concerned about the way that the State was trying to use V eretto' s guilty plea.
9 Although he acknowledged that the plea agreement could be used to impeach
10 V eretto, defense counsel stated:
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I'm still a little concerned about the fact that the State is seeming to
argue that this is relevant because he was convicted of a crime. It
doesn't show that [Defendant] knew that [Veretto] committed a crime.
The crime they're talking about is receiving or transferring a stolen
motor vehicle, and the element that he could have pled to was that
[Veretto J should have known it was stolen. That doesn't do anything to
show [Defendant's] knowledge.
18 	The district court said that it had "no idea what the testimony is going to be " but that
19 the plea agreement was "usable for purposes of impeachment by [defense counsel],
20 	and [the StateJ can impeach [Veretto J with it as well, if, in fact, his testimony is
21 	contrary to what they intend to present here today." The court further stated that
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in terms 	of whether it'll actually be admitted, 	I don't know. 	And
whether that's 	going to 	be 	enough to 	show the 	state 	of mind 	of
[Defendant] here remains to be seen. So I guess it 's really hard for me
to say, it's a little premature to make a firm decision about it, until I
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know what the foundation is going to be for purposes of trying to get it
admitted .... So ... let's hold that in abeyance until we hear some
testimony.
4 As a final matter, the district court rejected Defendant's argument that the use of the
5 plea agreement was "m ore prejudicial than probative."
6 	Use of Veretto's Testimony and Plea Agreement at Trial
7 	{6} 	During its opening statement, the State told the jury that it would hear that
8 Veretto "pled to being in receipt [or] possession of' the stolen Murano that was
9 parked at Defendant 's house, that V eretto "also pled to conspiring to being in receipt
10 	of that car[,]" and that "those are the same charges that [Defendant] is now charged
11 	with, being in possession of that stolen car[.]" Defense counsel did not object and,
12 	in the course of his opening, stated that Veretto "did enter into a plea agreement in
13 	his case; and, yes, he did agree to testify for the State and do whatever they asked
14 	him to." He then elaborated, telling the jury that
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a big part of the incentive was the number of charges he was facing, the
fact that he was facing additional enhancements as a habitual offender,
anywhere up to eight years for each conviction that he has; and the fact
that he 	currently has 	a probation violation pending, 	and that that
probation violation has not been resolved, but he could end up going to
prison as a result of that probation violation. And his testimony here
today is happening before that probation violation issue is resolved for
him, one way or the other.
So you will hear evidence regarding the bias and motivations of
... Veretto[.]
5

1 {7} 	The State called Veretto to testify in its case in chief. Veretto initially refused
2 to testify about anything in his plea agreement which he characterized as "lies." As
3 a result, the State moved to admit certified copies of Veretto's indictment and plea
4 agreement into evidence. Defense counsel objected, and the parties held a bench
5 conference outside the presence of the jury. During the bench conference, defense
6 counsel said,
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I think the only problem we have is, we discussed this in the motion in
limine, and there was a more-prejudicial-than-probative argument with
regards to the same charges that were against [Defendant ]-against
[Veretto]. So ... [w]e don't want to waive any of the arguments we
made in limine on this.
12 The district court responded, "I'm not sure why that would be- 	why [Veretto ' s]
13 	testimony, based upon what he pled to in the indictment, is going to be prejudicial
14 to [Defendant] .... The question is whether it' s more prejudicial than probative, and
15 	I'm finding it more probative than prejudicial. ... They'll be admitted, over your
16 	objection."
17 	{8}
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At the State' s direction, Veretto read portions of his indictment to the jury:
[I]n Bernalillo 	County, 	New Mexico, the 	above 	named 	defendant
received or transferred possession of a . . . motor vehicle that the
defendant knew or had reason to believe had been stolen or unlawfully
taken from ... another person; to wit, a white 2007 Nissan Murano,
belonging to [another person] , contrary to [NMSA 1978, Section 30-
16D-4 (2009)].
24 	Veretto confirmed that the name of the defendant on the indictment was his. Veretto
25 	then 	read 	the 	following 	portion 	of 	his 	plea 	agreement 	to 	the 	jury:
6

1 "Receiving/transferring a stolen vehicle or motor ... vehicle, a fourth-degree felony
2 offense occurring on or between May 4, 2013, and October 19, 2013, as charged in
3 Count 4 of [the] indictment[.] . . . [T]he defendant agrees to plead guilty to these
4 crimes." Veretto further confirmed that the signature on the plea agreement was his.
5 The plea and disposition agreement was admitted into evidence, and the State
6 elicited no further testimony from Veretto.
7 	{9} 	After the State put on its case in chief, defense counsel moved for directed
8 verdict on all of the charges. As to the count of receiving a stolen vehicle, the State
9 argued that sufficient evidence supported the charge because, in pertinent part, "we
10 	have the fact that' Scott Veretto pied to receiving and transferring this stolen motor
11 	vehicle. And [Defendant] had a relationship with Scott Veretto. So a jury, in the light
12 	most favorable to the State, can make the inference . . . that because he knew it, she
13 	knew it[.]" The district court granted Defendant's motion for directed verdict on the
14 	conspiracy count and one of the harboring a felon counts. It denied the motion as to
15 	the three remaining counts of receiving a stolen vehicle, possession of burglary tools,
16 	and harboring a felon. With regard to the count of being in possession of a stolen
17 vehicle, the jury was instructed that the State had to prove beyond a reasonable doubt
18 	each of the following elements of the crime:
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1.
Murano;
2.
[D]efendant 	had 	possession 	of a 	white, 	2007 	Nissan
This vehicle had been stolen or unlawfully taken;
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1 	3. 	At the time [D]efendant had this vehicle in her possession
2 	she knew or had reason to know that this vehicle had been stolen or
3 	unlawfully taken;
4 	4. 	This happened in New Mexico on or about the 4th day of
5 	May through the 19th day of October, 2013.
6 	{IO} 	Thereafter, 	using 	Veretto's 	plea 	agreement 	to 	establish 	Defendant's
7 knowledge that the vehicle was stolen, the State argued during closing as follows:
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And then what's the final piece of evidence ... You have to show that
[Defendant] knew it was stolen .... [Y]ou have the testimony of Scott
Veretto. And you have in evidence his plea, and you have in evidence
the indictment that identifies what he pled to. And he pled to receiving
a stolen 2007 Nissan Murano.
14 	[Defendant] 	was aware, because her boyfriend was, ... as you'll see
15 	in the plea and disposition agreement that will go back to the jury room
16 	with you, a car thief, who stole several cars. This was one of them, the
17 	2007 white Murano.
18 	{11} 	Neither the State nor defense counsel asked for-and the district court did not
19 	give-a limiting instruction informing the jurors that Veretto' s plea agreement could
20 not be used 	as 	substantive evidence 	of Defendant's guilt. 	The jury acquitted
21 	Defendant of the remaining harboring a felon count, but found her guilty of receiving
22 	a stolen vehicle and possession of burglary tools. This appeal followed.
8

1 DISCUSSION
2 	Standard of Review
3 	{12} 	Defendant contends that the State introduced and used Veretto' s indictment
4 and plea agreement at trial solely as substantive evidence to establish her guilt. The
5 State counters that Defendant failed to preserve her claim for review and that she
6 "acquiesced in admission, 	and even 	'opened the 	door' 	to 	it. " 	We agree with
7 Defendant.
8 	{13} 	To the 	extent that the district court overruled defense 	counsel's timely
9 objection s, 	we 	review those 	evidentiary rulings 	under 	an 	abuse 	of discretion
10 	standard. See State v. Duran, 2015-NMCA-015, ,-r 11,343 P.3d 207. " But we review
11 	de novo a misapprehension of the law upon which a court bases an otherwise
12 	discretionary evidentiary ruling." Id. 	(alterations, internal quotation marks, and
13 	citation omitted). And, when a defendant 's federal constitutional rights have been
14 	violated, we review those violations under a harmless error standard. 	State v.
15 	Gutierrez, 2007-NMSC-033, ,-r 18 , 142 N.M. 1, 162 P.3d 156. Error is not harmless
16 	"if there is a reasonable possibility that the evidence complained of might have
17 	contributed to the conviction." Id. (internal quotation marks and citation omitted);
18 	see also State v. Tollardo, 2012-NMSC-008, ,-r 36, 275 P .3 d 110 (explaining that
19 	"reviewing courts should only conclude that a constitutional error is harmless when
20 there is no reasonable possibility it affected the verdict[,] " as opposed to the "lower
9

1 standard" of non-constitutional harmless error (alteration, internal quotation marks,
2 and citations omitted)). In determining whether it is reasonably possible that the
3 improper 	evidence 	contributed 	to 	the 	conviction, 	we 	evaluate 	"all 	of 	the
4 circumstances surrounding the error[,]" which may include examining "the source
5 of the error and the emphasis placed upon the error." Tollardo, 2012-NMSC-008,
6 ,r 43. Although other evidence of a defendant's guilt "can never be the singular
7 focus[,]" it "may often be relevant" to help us understand, for example, "what role
8 [the error] may have played in the trial proceedings[.]" Id. Thus, we may consider
9 "the importance of the erroneously admitted evidence in the prosecution's case[.]"
10 Id. 	(alteration, internal quotation marks, and citation omitted). The State has the
11 	burden on appeal to "establish[] beyond a reasonable doubt that the jury verdict was
12 	not tainted by the constitutional error." Gutierrez, 2007-NMSC-033 , ,r 18; see also
13 	Tollardo , 2012-NMSC-008, ,r 36 ("[T]he reasonable possibility standard continues
'
14 to resemble the reasonable doubt standard[.]" (internal quotation marks and citation
15 	omitted)).
16 	Use of a Codefendant's Guilty Plea
17 	{14} 	"A codefendant's guilty plea may not be used as substantive evidence of a
18 	defendant's guilt." United States v. 	Woods , 764 F.3d 1242, 1246 (10th Cir. 2014)
19 	(internal quotation marks and citation omitted); see also United States v. Halbert,
20 	640 F.2d 1000, 1004 (9th Cir. 	1981) (per curiam) ("As a principle of general
10

1 acceptance, the guilty plea or conviction of a codefendant may not be offered by the
2 government and received over objection as substantive evidence of the guilt of those
3 on trial."); Clemmons v. State, 720 A.2d 1170, 1173 (Md. 1998) (collecting cases
4 from numerous jurisdictions that demonstrate this principle). There are at least two
5 important purposes for this rule: First, "it curbs the jury's temptation to find guilt by
6 association"; and second, "it helps to ensure the government must prove every
7 element of an offense against the defendant; the government may not borrow proof
8 from another person's conviction." Woods, 764 F.3d at 1246. "The rule is grounded
9 in notions of fundamental fairness and due process[.]" Id.; see also Bisaccia v. Atty
10 	Gen. of the State of NJ., 623 F.2d 307, 312-13 (3d Cir. 1980) (explaining that this
11 	rule is grounded "on concepts of constitutional fairness" and holding that violation
12 	of the rule "amount[ s] to a denial of constitutional due process").
13 	{15} 	Our Supreme Court first recognized this rule a century ago, and our appellate
14 	courts have continued to endorse it. See State v. Martino, 1918-NMSC-128, ,r 2, 25
15 	N.M. 47, 176 P. 815 (holding that the criminal information and guilty pleas of four
16 	men who unlawfully engaged in gambling upon the defendant's premises were not
17 	admissible to 	prove that the 	defendant knowingly permitted gambling 	on his
18 	premises); see also State v. Jackson, 1943-NMSC-049, ,r,r 9, 10, 13, 47 N.M. 415,
19 	143 P.2d 875 (holding that a codefendant's testimony that he pleaded guilty to
20 receiving stolen money-the same charge that the defendant was faced with-was
11

1 erroneously admitted and "likely ... was extremely prejudicial"); State v. Gilbert,
2 	1982-NMCA-081, ,r 29, 98 N.M. 	77, 644 P.2d 	1066 (recognizing that a "co-
3 defendant's guilty plea may not be admitted ... when that evidence is offered solely
4 to prove [the] defendant's guilt"). In Jackson , our Supreme Court reasoned that the
5 codefendant's guilty plea "was sufficient to 	authorize the 	court to pronounce
6 sentence upon [the codefendant], but it was not conclusive proof of the truth of the
7 charge ... , and particularly not admissible as to elements of the offense as against
8 a person not a party to [that] proceeding." 1943-NMSC-049, ,r 14 (emphasis added).
9 Recognizing that "[a]ccused persons are sometimes motivated to plead guilty to a
10 	charge rather than go to trial in the hope of acquiring leniency or some other
11 	advantage," the Court suggested that the proper way for the prosecution to have used
12 	the codefendant as a witness in that case would have been to elicit testimony from
13 	the codefendant "that he knew" the money was "stolen when he received it[.]" Id.
14 	{16} 	There are no recognized exceptions to the rule that a codefendant's guilty plea
15 	may not be used as substantive evidence to prove a defendant's guilt. See United
16 States v. Torres-Colon, 790 F.3d 26, 31 (1st Cir. 2015) ("The government cites no
17 case-and we can find 	none-in which the guilty plea of a codefendant was
18 	permissibly used in this substantive way."); Woods, 764 F.3d at 1246 n.1 ("Because
19 	substantive evidence is evidence offered to help establish a fact in issue, as opposed
20 to evidence directed to impeach or to support a witness's credibility, allowing plea
12

1 evidence for any purpose other than credibility would require creating an exception
2 to the general prohibition against using pleas as substantive evidence." (alteration,
3 internal 	quotation 	marks, 	and 	citation 	omitted)). 	However, 	in 	certain 	narrow
4 instances, a codefendant's guilty plea evidence may be used non-substantively.
5 	United States v. Paterson, 780 F.2d 883, 886 (10th Cir. 1986). Most commonly,
6 guilty pleas may be used for the "purpose of aiding the jury in its assessment of the
7 codefendant's credibility as a witness." Woods, 764 F.3d at 1246 (internal quotation
8 marks and citation omitted); see also Halb ert, 640 F .2d at 1004 ("Admissibility of
9 the plea turns on the purpose for which it is offered. When that purpose is to further
10 the jury's difficult task of evaluating credibility, it is relevant and admissible[.]");
11 	Tollardo, 	2012-NMSC-008, 	il 	20 	("A co-defendant's conviction 	... 	may be
12 	admissible when it is introduced to impeach that co-defendant if he or she testifies,
13 	rather than as substantive evidence of the defendant's guilt."). A guilty plea may also
14 	be mentioned at trial "where other co-defendants plead guilty during trial and are
15 	conspicuously absent" 	or "where opposing counsel has 	left the impression of
16 	unfairness which raises the issue or invites comment on the subject." Paterson, 780
17 	F.2d at 886 (internal quotation marks and citation omitted). Anytime a codefendant's
18 	guilty plea is used in one of these permissible ways, it is "critical" that the trial court
19 	give the jury "cautionary instructions limiting the jury's use of the guilty plea ... as
20 	evidence relating to [the witness's] credibility" and not as proof that the defendant
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1 met any of the elements of the offenses with which she is charged. United States v.
2 Baez, 703 F.2d 453, 455 (10th Cir. 1983).
3 Use of Codefendant's Guilty Plea Deprived Defendant of a Fair Trial
4 	{I 7} 	In this case, the district court initially declined to "make a firm decision" on
5 whether Veretto's guilty plea would "actually be admitted," reserving its ruling for
6 trial when it could "hear some testimony." Defense counsel acknowledged that
7 evidence 	of Veretto's plea agreement could be admissible 	if it was used for
8 impeachment purposes. However, the record demonstrates that the State did not use
9 Veretto's plea for impeachment or other permissible reasons, nor does the State
10 	make any effort to assert on appeal that it used the plea for any of these proper
11 	purposes. From its direct examination of Veretto, to its admission of Veretto's
12 	indictment and guilty plea agreement into evidence, the State used this evidence for
13 	the 	sole 	purpose 	of 	substantively 	proving 	the 	knowledge 	elements 	against
14 	Defendant. The State's opening and closing arguments further emphasized to the
15 jury that it should use Veretto's guilty plea to find that Defendant knew or should
16 	have known that the vehicle was stolen. See Torres-Colon, 790 F.3d at 31 (stating
17 that they have found no precedent that allows a prosecutor's "bald introduction of a
18 	witness's guilty plea concerning facts 	or events 	similar to that for which the
19 	defendant is on trial[,] suggesting to the trier of fact that the defendant should be
20 	found 	guilty merely because 	of the 	witness's 	guilty plea" 	(omission, 	internal
14

1 quotation marks, and citation omitted)); United States v. Miranda, 593 F.2d 590, 593
2 (5th Cir. 1979) (concluding that the prosecutor "deprived the defendant of a fair trial
3 by deliberately urging the jury on two occasions to use [the guilty plea] evidence for
4 a prohibited purpose"). And if the State's behavior at trial leaves any doubt that it
5 planned to use the guilty plea improperly as substantive evidence, the statements it
6 made during the hearings on its motion in limine (that it intended to use the plea
7 agreement as substantive evidence) and Defendant's directed verdict motion ("that
8 because [Veretto] knew it, [Defendant] knew it") make its intentions unmistakably
9 clear. See Clemmons, 720 A.2d at 1175 (finding error where it was "unmistakably
10 	clear that [the codefendant]'s testimony regarding his conviction was offered, and
11 	was likely to be taken by the jury, as substantive evidence against [the defendant],"
12 	and concluding "that it was plainly inadmissible for that purpose, and that it was
13 	prejudicial" ). For these reasons, we conclude that the State's use and the district
14 	court's admission of V eretto' s guilty plea evidence in this case "amount[ ed] to a
15 	denial of constitutional due process[,]" Bisaccia, 623 F .2d at 313, and "deprived ...
16 	[D]efendant ofa fair trial[.]" Miranda, 593 F.2d at 593.
17 The Deprivation of Defendant's Constitutional Rights Is Not Harmless Error
18 	{18} 	We next consider whether this deprivation of Defendant's constitutional rights
19 	resulted 	in 	harmless 	error-in 	other 	words, 	whether 	"there 	is 	no 	reasonable
20 possibility" that the error "affected the verdict." Tollardo, 2012-NMSC-008, ,r 36
15

1 (internal quotation marks and citation omitted); see also Gutierrez, 2007-NMSC-
2 	03 3, ~ 18 (emphasizing that "in a proper harmless error analysis, the appellate court
3 defers to the jury verdict only when the [s]tate has established beyond a reasonable
4 doubt that the jury verdict was not tainted by the constitutional error." (internal
5 quotation marks and citation omitted)). We conclude that the error was harmful for
6 several reasons. First, "the source of the error" was not Defendant, but the State who
7 repeatedly emphasized to the jury that Veretto' s guilty plea evidence should be used
8 to prove that Defendant was aware the car was stolen. See Tollardo, 2012-NMSC-
9 008, ~ 43. Second, Veretto ' s guilty plea was critical to the State's case because there
10 	was no other evidence-other than that she used a computer to start the car at the
11 	direction of her boyfriend, and the Murano' s dashboard VIN showed evidence of
12 	tampering-to establish Defendant' s knowledge that the vehicle had been stolen or
13 	unlawfully taken. See id. And third, the State did not meet its burden because it did
14 	not provide any analysis in this regard in its answer brief on appeal. See Gutierrez,
15 	2007-NMSC-033, 	~ 	18 	("The 	[s]tate 	has 	the 	burden 	of establishing 	that the
16 	constitutional error was harmless beyond a reasonable doubt." (internal quotation
17 marks and citation omitted)). Under these circumstances, we cannot say that "there
18 	is 	no reasonable possibility" that the 	substantive use 	of Veretto's guilty plea
19 "affected 	the 	verdict." 	Tollardo, 	2012-NMSC-008, 	~ 	36 	(emphasis, 	internal
20 	quotation marks, and citation omitted). To the contrary, substantive use of the plea
16

1 in this case appears to have been highly prejudicial and tempted the jury to find
2 Defendant guilty by association. See Woods, 764 F.3d at 1246 (recognizing that the
3 reason for prohibiting substantive use of a codefendant's guilty plea is to "curb[] the
4 jury 's temptation to find guilt by association"); Miranda, 593 F.2d at 594 ("[A]
5 codefendant's guilty plea or conviction with respect to similar or identical charges
6 	... is extremely prejudicial."); see also Jackson, 1943-NMSC-049, ,113 (concluding
7 that the codefendant's guilty plea evidence was "likely ... extremely prejudicial");
8 	Clemmons, 720 A.2d at 117 5 (concluding that " [i]t is unmistakably clear" that
9 substantive use of the codefendant's guilty plea "was prejudicial").
10 	{19} 	We are not persuaded by the State's arguments on appeal that our conclusion
11 	should be different. Contrary to the State's assertions, Defendant preserved her claim
12 	and did not "open[] the door" to the State's use of the plea as substantive evidence.
13 	Defense counsel objected to the evidence during the pre-trial hearing on the State 's
14 	motion in limine and during trial while V eretto was on the stand, arguing both times
15 	that admission of the plea would be prejudicial to Defendant and that V eretto' s plea
16 	did 	not 	"do 	anything 	to 	show 	[Defendant 's ] 	knowledge." 	Defense 	counsel's
17 	discussion of the plea in his opening statement came in response to the State's use
18 	of the plea in its opening statement, and defense counsel's comments were confined
19 to Veretto's credibility-they did not comment or otherwise open the door to the
20 	State's substantive use of Veretto 's plea. See, e.g., Paterson, 780 F.2d at 885-86
17

1 (noting that where defense counsel did not invite the error and where defense
2 counsel's objection to the error was overruled, his subsequent failure to object to the
3 admitted evidence may have been the result of tactical considerations). Moreover,
4 any use that defense counsel tried to make of the improper guilty plea evidence
5 during Veretto ' s cross-examination after the district court admitted the evidence
6 over his objection does not waive his claim on appeal. See, e. g., State v. Zamarripa,
7 2009-NMSC-001 , 1 50 , 145 N.M. 402, 199 P.3d 846 ("There is no waiver where a
8 defense attorney, his or her original objection rejected by the court, determines to
9 	'make the best of a bad situation' and argues the improperly admitted evidence in
10 the client' s favor.").
11 	{20} 	The State next argues that, because the district court decided that Veretto's
12 	guilty plea testimony was more probative than prejudicial under Rule 	11-403
13 	NMRA, Rule 11-105 NMRA forecloses Defendant' s claim that Veretto's guilty plea
14 	should not have been used because defense counsel did not request a limiting
15 	instruction. We disagree. Rule 11-105 states, in pertinent part, "If the court admits
16 	evidence that is admissible ... for a purpose- 	but not ... [admissible] for another
17 purpose- 	the court, on timely request, must restrict the evidence to its proper scope
18 	and instruct the jury accordingly." Under these circumstances, a defendant's failure
19 to request a limiting instruction "waive[s] any right to complain of the trial court's
20 alleged error[,]" except in extreme circumstances under the fundamental and plain
18

1 error doctrines. DeMatteo v. Simon, 1991-NMCA-027, ,r 3, 112 N.M. 112 ,812 P.2d
2 361; see also State v. Allen, 2000-NMSC-002, ,r 51, 128 N.M. 482, 994 P.2d 728
3 (reviewing for fundamental and plain error the admission of evidence that had both
4 an admissible and an inadmissible purpose, where the defendant failed to ask for a
5 limiting instruction). Rule 11-105 does not apply in this case because Veretto's
6 guilty plea evidence was not admitted for an admissible purpose. As demonstrated
7 above, the State's sole purpose for including this evidence was for the inadmissible
8 purpose of using it as substantive proof for the knowledge element of the crimes that
9 Defendant was accused of committing.
10 	{21} 	Finally, the State contends that the rule against admitting a codefendant's
11 	guilty plea into evidence does not apply where a defendant is able to confront the
12 	codefendant at trial and the evidence served a non-hearsay purpose. We are not
13 	persuaded. The authorities cited by the State in support of this contention were
14 	limited to evidentiary rules against hearsay and a defendant's constitutional rights
15 	under the Confrontation Clause. Here, admission of V eretto' s guilty plea evidence
16 	for the sole purpose of using it as substantive proof against Defendant implicated her
17 	constitutional rights to due process and a fair trial. None recognize an exception to
18 	the rule against the substantive use of guilty plea evidence nor have we found a case
19 	that does so. See Torres-Colon, 790 F.3d at 31; Woods, 764 F.3d at 1246 n. l.
19

1 Possession of Burglary Tools
2 	{22} 	The 	reversal 	of Defendant's 	conviction 	for 	rece1vmg 	a 	stolen 	vehicle
3 necessarily requires that her conviction for possession of burglary tool_s be reversed
4 as well. The instructions given to the jury for possession of burglary tools required
5 the State to prove beyond a reasonable doubt, among other elements, that Defendant
6 intended to use the automobile computer "for the purpose of committing burglary[.]"
7 Whether Defendant intended to use this computer for the purpose of burglarizing the
8 stolen vehicle depended on whether she knew that the vehicle was stolen. Because
9 the district court improperly admitted Veretto 's guilty plea evidence as substantive
10 proof of Defendant's knowledge that the vehicle was stolen, there is a reasonable
11 	possibility that the improper evidence might have also contributed to the conviction
12 	for possession of burglary tools and that this conviction was similarly "tainted by
13 	the constitutional error." Gutierrez, 2007-NMSC-033, ,r 18 (internal quotation marks
14 	and citation omitted).
15 	CONCLUSION
16 	{23} 	We 	reverse 	Defendant's 	convictions 	for 	rece1vmg 	a 	stolen vehicle 	and
17 possession of burglary tools and remand this case for a new trial.
18 	{24} 	IT IS SO ORDERED.
19
20
20

1
WE CONCUR:
2 3
M. MONICA ZAMORA, Judge
4 5
Julie & Vanger
JULIE J. VARGAS, Judge
21