January 29, 2026- State of New Mexico v. Bobby Charles Crawford, No. A-1-CA-41857

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: January 29, 2026	3
No. A-1-CA-41857	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
BOBBY CHARLES CRAWFORD,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	10
Richard M. Jacquez, District Court Judge	11
Raúl Torrez, Attorney General	12
Benjamin L. Lammons, Assistant Solicitor General	13
Santa Fe, NM	14
for Appellee	15
Bennett J. Baur, Chief Public Defender	16
Caitlin C.M. Smith, Assistant Appellate Attorney	17
Santa Fe, NM	18
for Appellant	19
Court of Appeals of New Mexico
Filed 1/29/2026 8:08 AM

OPINION	1
HOUGHTON, Judge.	2
{1} 	Defendant Bobby Crawford appeals his convictions for attempting to evade,	3
shoot, and kill police officers. At trial, a jury found Defendant guilty of two counts	4
of attempted first-degree murder, in violation of NMSA 1978, Section 30-28-1	5
(1963, amended 2024) and NMSA 1978, Section 30-2-1(A)(1) (1994); two counts	6
of aggravated assault on a peace officer, in violation of NMSA 1978, Section 30-22-	7
22(A)(1), (B) (1971); one count of shooting from a motor vehicle, in violation of	8
NMSA 1978, Section 30-3-8(B) (1993); and one count of aggravated fleeing a law	9
enforcement officer, in violation of NMSA 1978, Section 30-22-1.1(A), (B) (2022).1
10
Defendant challenges all but the aggravated fleeing conviction, arguing that: (1)	11
insufficient evidence of deliberate intent supports his convictions for attempted first-	12
degree murder; (2) the State made improper arguments in its opening statement and	13
closing arguments; and (3) several convictions constitute double jeopardy.	14
{2} 	We affirm all convictions except Defendant’s conviction for shooting from a	15
motor vehicle. First, we hold that the evidence presented at trial allowed a reasonable	16
jury to infer the deliberate intent element of attempted first-degree murder. Second,	17
although some of the State’s remarks in its opening and closing arguments were	18
1 Defendant was also charged for being a felon in possession of a firearm,
which was severed from this case and is not a basis of this appeal.

2
improper, 	we 	hold 	that 	they 	did 	not—singularly 	or 	cumulatively—deprive	1
Defendant of his right to a fair trial. Third, we hold that convictions for both	2
attempted murder and assault on a peace officer do not violate double jeopardy.	3
Finally, we vacate Defendant’s conviction for shooting from a motor vehicle because	4
it violates the protection against double jeopardy.	5
BACKGROUND	6
{3} 	On June 21, 2023, the Las Cruces Police Department (LCPD) received a	7
dispatch call from the New Mexico State Police (NMSP) for assistance with a	8
vehicle pursuit. LCPD officers responded in marked police vehicles and joined	9
NMSP’s unmarked vehicles in pursuit of Defendant, who was driving a white SUV.	10
Evidence of the pursuit prior to LCPD’s involvement was not presented at trial, but	11
LCPD officers testified that the chase lasted between five and ten minutes after they	12
joined and reached speeds up to 70 miles per hour over a combination of paved and	13
dirt roads, as well as through the desert, in a development on the outskirts of Las	14
Cruces, New Mexico. One LCPD officer described the pursuit as “like a rodeo.”	15
Another described it as “almost comical the way it was going . . . over and over and	16
we . . . were trying to dodge one another as officers in our units.”	17
{4} 	After several unsuccessful attempts to disable Defendant’s vehicle, Defendant	18
drove through a gate into a residential property and passed between two bystanders	19
before “plow[ing] through the fence line of that yard back into the desert.” After	20

3
several more minutes, Defendant was finally brought to a halt by a pursuit	1
intervention technique (PIT) maneuver executed by one of the LCPD officers,	2
causing Defendant’s car to spin out. By this time, there were at least seven separate	3
law-enforcement vehicles involved: the three unmarked NMSP vehicles that had	4
begun the pursuit and the four LCPD vehicles that responded to the dispatch. When	5
Defendant was brought to a halt, he immediately fired a gun at the LCPD officers	6
that had performed the PIT maneuver and boxed him in. The LCPD officers returned	7
fire and took cover behind their patrol vehicles. One LCPD officer estimated that the	8
exchange of gunfire lasted between three and fifteen seconds. None of the LCPD	9
officers were struck by the rain of bullets that penetrated the cabins of their	10
respective vehicles. Defendant barricaded himself in his vehicle and was subdued	11
and arrested fifteen to twenty minutes after the shooting when a nearby SWAT team	12
deployed chemical munitions.	13
{5} 	Defendant was tried before a jury and found guilty on all but a third charged	14
count of aggravated assault on a peace officer. Defendant now appeals.	15
DISCUSSION	16
I. 	There Was Sufficient Evidence Presented at Trial to Sustain a Conviction	17
Based on Deliberate Intent	18
{6} 	Defendant alleges that the State presented insufficient evidence of deliberate	19
intent. As a result, Defendant asks us to either reverse his conviction for attempted	20
first-degree murder or to exercise our direct remand authority for entry of a	21

4
conviction for attempted second-degree murder. Defendant does not dispute,	1
however, that “the shooting happened immediately after a prolonged car chase that	2
ended when police made [him] spin out” and that the jury could have reasonably	3
inferred intent to kill. He argues, rather, that there was no evidence of the	4
deliberation requirement to support a conviction of attempted first-degree murder.	5
{7} 	“[O]ur review of the trial record must defer to ‘the jury’s fundamental role as	6
factfinder’ yet satisfy our autonomous responsibility ‘to ensure that . . . jury	7
decisions are supportable by evidence in the record, rather than mere guess or	8
conjecture.’” State v. Bahney, 2012-NMCA-039, ¶ 25, 274 P.3d 135 (quoting State	9
v. Flores, 2010-NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641). “We view the	10
evidence in the light most favorable to the jury’s guilty verdicts, which must be based	11
upon proof beyond a reasonable doubt.” Id. (internal quotation marks and citation	12
omitted). “We resolve all conflicts and make all permissible inferences in favor of	13
the jury’s verdict.” State v. Slade, 2014-NMCA-088, ¶ 13, 331 P.3d 930 (text only)	14
(citation omitted). “An inference is permissible if the evidence necessary to invoke	15
the inference (the evidence as a whole, including the basic fact or facts) is sufficient	16
for a rational juror to find the inferred fact beyond a reasonable doubt.” State v.	17
Barragan, 2001-NMCA-086, ¶ 29, 131 N.M. 281, 34 P.3d 1157 (internal quotation	18
marks and citation omitted), overruled on other grounds by State v. Tollardo, 2012-	19
NMSC-008, 257 P.3d 110.	20

5
{8} 	We measure the sufficiency of the evidence against the jury instructions. See	1
State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409. Under New Mexico law:	2
A deliberate intention refers to the state of mind of the defendant. A	3
deliberate 	intention 	may 	be 	inferred 	from 	all 	of 	the 	facts 	and	4
circumstances of the killing. The word deliberate means arrived at or	5
determined upon as a result of careful thought and the weighing of the	6
consideration 	for 	and 	against 	the 	proposed 	course 	of 	action. 	A	7
calculated judgment and decision may be arrived at in a short period of	8
time. A mere unconsidered and rash impulse, even though it includes	9
an intent to kill, is not a deliberate intention to kill. To constitute a	10
deliberate killing, the slayer must weigh and consider the question of	11
killing and the slayer’s reasons for and against such a choice.	12
UJI 14-201 NMRA.	13
{9} 	“A deliberate intention is rarely subject to proof by direct evidence and often	14
must be inferred from the circumstances.” State v. Astorga, 2015-NMSC-007, ¶ 60,	15
343 P.3d 1245 (citing State v. Duran, 2006-NMSC-035, ¶ 7, 140 N.M. 94, 140 P.3d	16
515). “Intent is subjective and is almost always inferred from other facts in the	17
case . . . .” Duran, 2006-NMSC-035, ¶ 7 (internal quotation marks and citation	18
omitted).	19
{10} 	Our inferred deliberate intent caselaw can be viewed on a spectrum. On one	20
end are cases like State v. Flores, in which the record “support[ed] rational findings	21
by a jury that [the d]efendant . . . acted deliberately rather than rashly and	22
impulsively, in killing [the victim]” because “[t]he jury would have been amply	23
justified in reasoning from the evidence . . . that [the d]efendant made and carried	24
out a plan over a two-week period to exact revenge on [the victim] for rejecting him	25

6
and to make sure that if he could not have [the victim], no one else ever would.”	1
2010-NMSC-002, ¶ 24 (internal quotation marks and citation omitted), overruled on	2
other grounds by State v. Martinez, 2021-NMSC-002, 478 P.3d 880. On the other	3
end are cases like State v. Tafoya, where “[t]he void of evidence to support deliberate	4
intent . . . is filled with evidence of rash and impulsive behavior[:] . . . [the defendant	5
and his victims] had been drinking and doing drugs earlier in the day, and they were	6
drinking and doing drugs at the time of the shootings. They were listening to loud	7
music and driving around town, and then [the d]efendant suddenly shot [the	8
victims].” 2012-NMSC-030, ¶ 53, 285 P.3d 604.	9
{11} 	Along that spectrum, our appellate courts have sorted a number of cases	10
involving deliberate intent. Among them, Astorga is the most factually similar to the	11
instant case. Astorga was a fugitive who killed a sheriff’s deputy during a routine	12
traffic stop. Astorga, 2015-NMSC-007, ¶¶ 1-6. Astorga was convicted of first-	13
degree murder for the killing. Id. ¶ 1. In the absence of eye witnesses, the State’s	14
evidence supporting deliberation was that the license plate number the deputy had	15
given to dispatch at the outset of the traffic stop belonged to Astorga, who had an	16
outstanding warrant and had been living under a different name; the deputy was shot	17
twice from a distance of “less than 12 inches,” indicating Astorga waited for the	18
deputy to approach the driver’s side window before shooting him; Astorga fled to	19
Mexico after the deputy was killed; and Astorga later explained to a friend that he	20

7
had “started to do good again” until the sheriff’s office “fucked it up,” and confessed	1
to an acquaintance that he “blasted that cop.” Id. ¶¶ 4-8, 59-65.	2
{12} 	Our Supreme Court upheld Astorga’s first-degree murder conviction, holding:	3
The jury could have reasonably inferred that, once [the d]efendant saw	4
that he was being pulled over, he faced several options, including	5
whether: (1) to cooperate with [the victim] during the stop and likely	6
be arrested on the outstanding warrant; (2) to attempt to flee from [the	7
victim]; or (3) the option that he chose—to wait for [the victim] to	8
approach the truck and shoot him in the face at point-blank range. The	9
jury could have found that [the d]efendant contemplated all of these	10
choices and, even if he did not make his final decision until the last	11
second, the decision to kill [the victim] was nonetheless a deliberate	12
one.	13
Id. ¶ 63.	14
{13} 	Defendant here faced the very same choice as Astorga: he could have	15
surrendered, fled, or killed the officers to escape. To be sure, the State did not present	16
evidence of Defendant’s statements after the shooting, as it did in Astorga. But as	17
our Supreme Court noted, Astorga’s “statements, standing alone, might have been	18
insufficient to prove [the d]efendant’s deliberate intention.” Id. ¶ 65. We have held	19
that “the central inquiry of a crime based on premeditation” is “[the d]efendant’s	20
state of mind before the shooting.” Slade, 2014-NMCA-088, ¶ 28. Compared to	21
Astorga, there was more evidence of Defendant’s actions in the moments prior to	22
his decision to shoot and kill the officers. There were no eyewitnesses in Astorga, so	23
the state relied on circumstantial evidence to show that he fatally shot the deputy at	24
point-blank range during the traffic stop, indicating that he laid in wait while the	25

8
deputy approached. 2015-NMSC-007, ¶ 60. The jury then needed to infer that	1
Astorga’s decision was motivated to avoid arrest based on his outstanding arrest	2
warrant and his efforts to conceal his identify in the months before the shooting. See	3
id. ¶ 65.	4
{14} 	Here, on the other hand, Defendant engaged in a lengthy and dangerous police	5
chase, punctuated by LCPD’s multiple attempts to disable Defendant’s vehicle	6
during the five-to-ten minutes that one officer testified was among the longest chases	7
in his sixteen-year career. The jury heard testimony that at times during the chase	8
Defendant reached speeds as high as 70 miles per hour, and that he crashed through	9
a residential gated fence, narrowly missing two bystanders. By the time police ended	10
the prolonged chase, it was plain that Defendant intended to avoid arrest at great risk	11
to himself, the police, and bystanders.	12
{15} 	The jury also heard evidence that Defendant “immediately” began firing at	13
the LCPD officers once his car came to rest as a result of the PIT maneuver. Viewed	14
in the light most favorable to the jury’s verdict, the immediacy of Defendant’s firing	15
supports the conclusion that Defendant armed himself at some point during the chase	16
prior to the PIT maneuver. Relatedly, the jury saw photographs of where the bullets	17
fired by Defendant impacted the first officer’s passenger window and the second	18
officer’s front windshield, and heard them both testify that the shots were aimed at	19
head level, indicating an intent to kill instead of to intimidate or disable their	20

9
vehicles. Coupling those facts—that Defendant armed himself prior to being stopped	1
and then immediately and repeatedly shot toward one officer with an intent to kill	2
and then toward another officer with the same intent—the jury could have	3
reasonably inferred that Defendant selected the final option on his decision matrix:	4
kill the LCPD officers chasing him. We conclude that Defendant’s arming himself	5
with a gun during the chase and then firing at the officers immediately upon being	6
brought to a halt is similar to Astorga’s decision to arm himself and then shoot the	7
deputy once he approached Astorga at his driver’s side window.	8
{16} 	We distinguish Defendant’s conduct here from that in State v. Hernandez,	9
another case that involved an attempted first-degree murder during a flight from	10
authorities. 	See 	1998-NMCA-167, 126 N.M. 377, 970 	P.2d 	149. Hernandez	11
“attempted to escape from custody while he was in the Otero County courthouse for	12
a hearing.” Id. ¶ 2. As Hernandez attempted to make his escape, he was tackled by a	13
detention officer, and in the ensuing struggle Hernandez was able to take control of	14
the officer’s sidearm and fire a shot towards a court employee who ran to assist. Id.	15
¶ 4. Hernandez tried to continue firing, but both the cylinder and hammer of the	16
officer’s revolver were physically prevented from moving by the various authorities	17
involved in the struggle. Id. ¶¶ 5-6. Throughout the altercation, Hernandez was	18
shouting, “I’ll kill you,” “I’m going to shoot you,” and “I’m going to shoot you	19
again.” Id. ¶¶ 5, 7.	20

10
{17} 	This Court reversed Hernandez’s attempted first-degree murder conviction	1
based 	on 	insufficient 	evidence 	because 	“[t]o 	say 	that 	[the 	d]efendant 	was	2
deliberating during this sudden struggle would not leave any principled distinction	3
between an impulsive killing and one that is deliberate and premeditated.” Id. ¶ 14	4
(internal quotation marks and citation omitted). There was no evidence that showed	5
Hernandez formed a deliberate intent to kill—or even obtained a gun—prior to	6
attempting his escape, and this Court noted that “[the d]efendant did not reach for	7
[the officer’s] gun and fire it until immediately after [the officer] had tackled [the	8
d]efendant from behind and a physical struggle . . . ensued.” Id. By contrast,	9
Defendant here brought the firearm with him, as did Astorga, and had the duration	10
of the chase to consider whether to use it. And critically, Defendant immediately	11
fired upon the LCPD officers when brought to a stop, evincing that he did in fact	12
prepare himself with his gun during the prolonged chase.	13
{18} 	We acknowledge these facts presented a close call for the jury, but on appeal	14
“[w]e view the evidence in the light most favorable to the jury’s guilty verdicts”	15
rendered at trial and draw all reasonable inferences in support thereof. See Bahney,	16
2012-NMCA-039, ¶¶ 25, 35 (internal quotation marks and citations omitted). In that	17
light, we hold that a jury could have reasonably inferred that Defendant’s actions	18
were part of one continuous, escalating attempt to avoid being caught, and that	19
Defendant made the deliberate decision to escape—including killing the officers if	20

11
necessary—before readying himself with the firearm and pulling the trigger. This is	1
not a case where the evidence, viewed in the light most favorable to the verdict and	2
with all reasonable inferences drawn, remains “equally consistent” with a rash	3
impulse and with deliberate intent. See State v. Garcia, 1992-NMSC-048, ¶ 32, 114	4
N.M. 269, 837 P.2d 862 (internal quotation marks and citation omitted).	5
{19} 	We take care to note that an opportunity to deliberate alone is insufficient	6
proof of deliberation, see id. ¶ 30, and that flight from police prior to a shooting is	7
not irrefutable proof of deliberate intent. See, e.g., Hernandez, 1998-NMCA-167,	8
¶ 10. These facts are simply indicators that, coupled with all the other evidence	9
offered, a rational juror could have relied upon to find that Defendant deliberately	10
intended to kill the officers chasing him.	11
II. 	There Was No Fundamental Error	12
{20} 	Defendant claims three instances of prosecutorial misconduct that deprived	13
him of his right to a fair trial, both singularly and cumulatively. None were preserved	14
for appeal with a timely objection at trial, so we review these claims for fundamental	15
error. See State v. Sosa, 2009-NMSC-056, ¶ 35, 147 N.M. 351, 223 P.3d 348.	16
{21} 	“To find fundamental error, we must be convinced that there is ‘a reasonable	17
probability that the error was a significant factor in the jury’s deliberations in relation	18
to the rest of the evidence before them.’” State v. Medema, 2025-NMCA-011, ¶ 32,	19
___ P.3d ___ (quoting State v. DeGraff, 2006-NMSC-011, ¶ 21, 139 N.M. 211, 131	20

12
P.3d 61). “Only in the most exceptional circumstances should we . . . determine that	1
all the safeguards at the trial level have failed. Only [then] should we reverse the	2
verdict of a jury and the judgment of a trial court.” Sosa, 2009-NMSC-056, ¶ 25.	3
{22} 	“As with any fundamental error inquiry, we will upset a jury verdict only (1)	4
when guilt is so doubtful as to shock the conscience, or (2) when there has been an	5
error in the process implicating the fundamental integrity of the judicial process.”	6
Id. ¶ 35.	7
{23} 	Our Supreme Court has held that prosecutorial misconduct amounts to	8
fundamental error when it is “so egregious and had such a persuasive and prejudicial	9
effect on the jury’s verdict that the defendant was deprived of a fair trial.” State v.	10
Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (internal quotation marks	11
and citation omitted). We now turn to each of Defendant’s claims of error.	12
A. 	The State’s Comments About Hesitation	13
{24} 	Defendant contends that the State encouraged the jury to disregard the	14
reasonable doubt standard by “mocking” defense counsel’s focus on hesitation as it	15
pertains to reasonable doubt. During closing argument, defense counsel read the jury	16
instruction defining reasonable doubt as “the kind of doubt that would make a	17
reasonable person . . . hesitate to act in the graver and more important affairs of life.”	18
UJI 14-5060 NMRA. Defense counsel then emphasized hesitation throughout	19

13
closing, highlighting aspects of the case that caused him to personally hesitate and	1
urged the jury to do the same.	2
{25} 	The State picked up on this theme in rebuttal, arguing, “[T]here were all these	3
things that [defense counsel] was saying that caused him to hesitate to act. That’s all	4
good and well, but you know who couldn’t hesitate to act? Sergeant Boehne and	5
Sergeant Doyle. Because we heard if they did hesitate, they’d almost certainly be	6
dead.” Our courts have held that “closing argument, and rebuttal argument in	7
particular, is necessarily responsive and extemporaneous, not always capable of the	8
precision that goes into prepared remarks.” Sosa, 2009-NMSC-056, ¶ 24.	9
{26} 	Through that lens, we view the State’s remarks as responsive to the defense’s	10
theme in closing and intended as a rhetorical flourish to repurpose defense counsel’s	11
own words in service of the State’s case. At no point did the State urge the jury to	12
ignore the jury instructions as written, nor did the State claim that the jury	13
instructions were incorrect. In fact, moments after addressing the defense’s theme of	14
hesitation, the State returned the jury’s focus to the jury instruction that directs the	15
jury to “only focus on the evidence and the testimony presented.” As for the State’s	16
creative repurposing of the defense’s focus on hesitation, we detect no error and end	17
our review.	18

14
B. 	The State’s References to the Element of Intent	1
{27} 	Defendant argues that the State committed prosecutorial misconduct by	2
misstating the element of deliberate intent throughout closing. In support, Defendant	3
points to three places in the record. First, Defendant faults the State for “argu[ing]	4
that the jury should find that [Defendant] acted with deliberate intent because he	5
demonstrated ‘intent to kill’ rather than ‘aimlessly shooting around.’” But nowhere	6
in Defendant’s citation to the State’s closing does the State use the term, “deliberate	7
intent,” or ask the jury to draw a conclusion about deliberate intent. Upon review of	8
the record, the State merely argued that the evidence that Defendant “shot through	9
. . . Sergeant Doyle’s window” supported “intent to kill” as opposed to “aimlessly	10
shooting around.” The State was required to show “intent to kill” to sustain a	11
conviction for both first- or second-degree murder. Arguing how the evidence met	12
that requirement was not improper.	13
{28} 	Next, Defendant takes issue with the State’s argument in rebuttal “that	14
[Defendant’s] choices were not mistaken or accidental, but ‘something that you have	15
to try to do.’” Defendant claims “[t]his argument was misleading, because non-	16
accidental conduct is not necessarily deliberate.” But the State never equated non-	17
accidental conduct with a deliberate intent to kill. The State referenced “deliberate	18
intent” just once within the entire cited passage, stating, “I’m very glad defense	19
brought up the aggravated fleeing charge and the pursuit because that’s where the	20

15
intent, that deliberate intent, that’s where that begins.” The State’s use of evidence	1
to support its theory that deliberate intent began to form during the pursuit was not	2
in error. Moreover, the challenged portion of the State’s rebuttal that contrasted	3
mistaken conduct with intentional conduct was responsive to Defendant’s argument	4
that he was initially chased by “unmarked vehicles.” Defendant’s argument sought	5
to sow doubt about whether Defendant knew he was being chased by police, which	6
was relevant to several counts. Counts 3, 4, and 5, which charged aggravated assaults	7
on three separate police officers, required the State to prove Defendant knew each	8
victim “was a peace officer and was performing duties of a peace officer.” Count 6,	9
which charged aggravated fleeing a law enforcement officer, also required proof that	10
Defendant “knew that a law enforcement officer had given [him] an audible or visual	11
signal to stop.”	12
{29} 	Finally, Defendant claims the State incorrectly argued that “picking up and	13
shooting a gun proves deliberate intent” by making the following argument:	14
“[Defendant] reached over into that passenger seat, he grabbed the gun, he picked it	15
up, he pointed at Sergeant Doyle, and then he fired, and then he fired again. So just	16
that small sequence alone, that shows six thought-out and intentional choices that	17
. . . [D]efendant made.” Again, Defendant infers more than the State actually argued.	18
Nowhere in the passage did the State make the incorrect statement of law that simply	19
picking up and shooting a gun equates to deliberate intent to kill.	20

16
{30} 	Defendant argues that these three instances of prosecutorial misconduct	1
constitute fundamental error, citing to State v. Garvin, 2005-NMCA-107, ¶ 20, 138	2
N.M. 164, 117 P.3d 970, because the State “understated what [it] was required to	3
prove” to establish deliberate intent to kill. Defendant puts particular weight on the	4
statements made in rebuttal because those were “the last words the jury heard before	5
beginning deliberations.” Medema, 2025-NMCA-011, ¶ 35. We disagree.	6
{31} 	As demonstrated above, Defendant does not prove that the State made a single	7
misstatement of law in closing. Accordingly, Defendant’s reliance on Garvin is	8
misplaced. There, the defendant was charged and convicted for a single count of	9
forgery, which required actual knowledge that the check he was trying to pass was	10
forged. See Garvin, 2005-NMCA-107, ¶¶ 1, 6. During its closing, the state misstated	11
the law by repeatedly telling jurors that they should render a guilty verdict because	12
the defendant “had a duty to know” that the signature on the check was forged, which	13
reduced the requisite mens rea from knowingly to negligently or recklessly. Id. ¶ 15	14
(emphasis 	and 	internal 	quotation 	marks 	omitted). This 	Court 	held 	that 	“the	15
misstatements likely had such a persuasive effect as to cause the jury to convict the	16
defendant based on a less than criminal state of mind.” Id. ¶ 21.	17
{32} 	To the extent the State’s arguments were imprecise, we will not disturb the	18
jury’s 	judgment 	on 	that 	basis. 	Imprecise 	arguments, 	as 	opposed 	to 	actual	19
misstatements of law, do not amount to prosecutorial misconduct, let alone	20

17
fundamental error. See State v. Duffy, 1998-NMSC-014, ¶ 53, 126 N.M. 132, 967	1
P.2d 807 (“[T]he prosecutor’s statements may have been somewhat imprecise but	2
they were not a misleading misstatement of the law.”), overruled on other grounds	3
by Tollardo, 2012-NMSC-008, ¶ 37 n.6; State v. Paiz, 2006-NMCA-144, ¶ 54, 140	4
N.M. 815, 149 P.3d 579 (“Although somewhat imprecise, the statement could not	5
be said to have compromised the fundamental fairness of the proceedings.”).	6
{33} 	Finally, so long as the jury is properly instructed, the State “did not have a	7
particular responsibility to explain the distinction [between attempted first- and	8
second-degree murder] in closing.” State v. Carrasco, 2007-NMCA-152, ¶ 14, 143	9
N.M. 62, 172 P.3d 611. At trial, the correct jury instructions for first-degree murder	10
by deliberate killing were read by the district court prior to the State’s closing	11
statement, and were closely referenced in closing arguments by both defense and the	12
State. At one point during its closing, the State projected for the jury the first-degree	13
murder instructions related to Defendant’s charges and read from them directly,	14
along with the lesser included offense of second-degree murder. For its part, the	15
defense specifically focused on the deliberate intent instruction by reading it slowly	16
and emphatically to the jury. And in rebuttal, the State reiterated that the jury	17
instruction “is the law” and that the jury “can only focus on the evidence and the	18
testimony presented and what that evidence and testimony shows.”	19
{34} 	In sum, we detect no error in the State’s comments addressing intent.	20

18
C. 	The 	State’s 	“Visualization 	Exercise” 	During 	Opening 	and 	Closing	1
Remarks	2
{35} 	Last, Defendant challenges certain statements made by the State in its opening	3
statement and closing arguments as improperly “invit[ing] the jury to convict based	4
on an emotional appeal rather than the elements of the offenses.” We agree that these	5
statements were improper but, as we explain below, we do not hold that they	6
amounted to fundamental error.	7
{36} 	During its opening argument, the State led the jury in a visualization exercise,	8
directing the jury as follows:	9
I just want everybody to close their eyes for a moment and listen to the	10
next things I’m going to say. I want you to visualize yourself sitting in	11
your car in the driver’s seat. It’s a bright sunny day. You’re sitting there	12
looking right through your windshield. I want you to imagine if	13
someone wanted to kill you, where would a bullet have to go through	14
to hit you in a fatal area on your body—your head, your heart. I want	15
you to visualize that bullet hole in your windshield, in the glass of your	16
windshield. And I want you to take a second and feel how you’re	17
feeling about that. What did that make you feel like?	18
The State then recalled that exercise in its closing argument while showing a	19
photograph of a bullet hole in one of the officer’s windshields, telling the jurors:	20
[D]uring my opening . . . I asked all of you to close your eyes and	21
visualize this very thing, right? . . . This is not imagination, this is reality	22
right here. This is a real photo depicting a bullet hole from the incident	23
that day involving [D]efendant. So it’s manifested out here on this piece	24
of paper, what I asked you to visualize that day in my opening. Sitting	25
in your driver’s seat, looking out through the front windshield and	26
imagining a bullet hole, okay? And I want you to take into account what	27
the officers were feeling that day, what they saw was going to happen	28
to them.	29

19
{37} 	We agree with Defendant that these statements are improper, erroneous, and	1
prosecutorial misconduct. The State concedes the comments were “awkward at	2
best.” But the problem is not that the visualization exercise might have been	3
awkward. The problem is that the State’s comments improperly invited the jurors to	4
see themselves in the position of the victims, which could have caused them to render	5
a verdict based on emotion and not on the careful weighing of the evidence. So-	6
called “golden rule arguments,” in which jurors are asked to put themselves in the	7
place of the victims, are “universally condemned because [they] encourage[] the jury	8
to depart from neutrality and to decide the case on the basis of personal interest and	9
bias rather than on the evidence.” United States v. Palma, 473 F.3d 899, 902 (8th	10
Cir. 2007) (internal quotation marks and citation omitted). Unsurprisingly, these	11
arguments also contradict our Supreme Court’s uniform jury instruction, which	12
states that “[n]either sympathy nor prejudice should influence your verdict.” UJI 14-	13
6006 NMRA.	14
{38} 	We understand that the State might have hoped that this exercise would	15
illustrate the threat the officers faced and the intent behind the placement of the	16
bullets to argue how certain elements had been met. But asking the jurors to imagine	17
someone trying to kill them, place themselves in the physical position of the victims,	18
and consider their feelings about that prospect, crosses the line into argument that is	19
clearly prohibited. We reiterate that “[a] guilty verdict must be based upon the	20

20
evidence and the reasonable inferences therefrom, not on an irrational response	1
which may be triggered if the prosecution unfairly strikes an emotion in the jury.”	2
State v. Sena, 2020-NMSC-011, ¶ 21, 470 P.3d 227 (internal quotation marks and	3
citation omitted).	4
{39} 	It 	does 	not 	necessarily 	follow, 	however, 	that 	these 	improper 	remarks	5
constitute fundamental error warranting reversal. To determine whether an error	6
rises to the level of fundamental error, we must “presum[e] that the verdict was	7
justified,” Sosa, 2009-NMSC-056, ¶ 37, and the defendant bears the burden of	8
rebutting that presumption. See id. ¶ 36. An error is fundamental only if intervention	9
by an appellate court is necessary to prevent “a miscarriage of justice.” Id. ¶ 41. To	10
determine whether an improper and erroneous argument amounts to fundamental	11
error, we look to three factors:	12
(1) 	whether 	the 	statement 	invades 	some 	distinct 	constitutional	13
protection;	14
(2) 	whether the statement is isolated and brief, or repeated and	15
pervasive; and [finally]	16
(3) 	whether the statement is invited by the defense.	17
See id. ¶ 26. We evaluate these factors “objectively in the context of the prosecutor’s	18
broader argument and the trial as a whole.” Id.	19
{40} 	Under the first prong of the test, our courts have found fundamental error	20
where, for example, a prosecutor commented on a defendant’s post-Miranda silence,	21

21
and where repeated reference was made to a defendant’s lack of consent to a	1
warrantless search. See, e.g., Allen, 2000-NMSC-002, ¶ 27; Garcia v. State, 1986-	2
NMSC-007, ¶ 10, 103 N.M. 713, 712 P.2d 1375. No distinct constitutional	3
protection is implicated by the State’s improper comments here.	4
{41} 	Second, such error may be reversible where it is “pronounced and persistent,	5
with a probable cumulative effect upon the jury.” State v. Diaz, 1983-NMCA-091,	6
¶ 21, 100 N.M. 210, 668 P.2d 326 (internal quotation marks and citation omitted).	7
By calling back to the visualization exercise during closing we consider the error	8
“pronounced.” However, we see no indication that the jury was improperly swayed	9
by these comments for the reasons discussed below.	10
{42} 	We review the trial as a whole to determine whether “the prosecutor’s	11
comments materially altered the trial or likely confused the jury by distorting the	12
evidence.” Sosa, 2009-NMSC-056, ¶ 34. Defendant must persuade us “that the	13
prosecutor’s conduct created a reasonable probability that the error was a significant	14
factor in the jury’s deliberations in relation to the rest of the evidence before them.”	15
Id. ¶ 35 (text only) (citation omitted).	16
{43} 	The State’s improper argument went to Defendant’s general intent to kill the	17
officers, and Defendant concedes there was ample evidence presented at trial to	18
support that finding. As noted above, Defendant’s multiple shots towards the heads	19
of the officers, as supported by both the testimony of the officers and the physical	20

22
evidence, palpably demonstrate an intent to kill. The overwhelming evidence of	1
Defendant’s intent to kill makes it less likely that the prosecutor’s conduct was a	2
significant factor in the jury’s deliberations. See id.	3
{44} 	Finally, Defendant did not “open the door” or otherwise invite the State’s	4
arguments. We note however, Defendant responded to the arguments, immediately	5
criticizing then leveraging the improper visualization argument in his own opening	6
statement:	7
When they ask you to visualize and close your eyes and visualize what	8
happened, I would expect to have seen a video, a lapel cam, of what	9
happened. Ladies and gentlemen, that is something that causes me to	10
hesitate. Instead of imagining being shot at. I would expect to have	11
what’s called a toolmark expert, somebody who would have said this is	12
where the bullets were shot, this is where they came through, this is the	13
angle, this is the speed, a ballistics expert. This is how fast the cars were	14
going, an accident reconstructionist: here’s the PIT maneuver, here’s	15
what happened, here’s this, here’s that . . . . It’s not your job to think	16
about what is happening because you’re not supposed to speculate. That	17
causes me to hesitate.	18
We do not intend to disadvantage Defendant for effectively responding to improper	19
arguments by the State. We simply note that our review requires us to consider the	20
entirety of the trial record.	21
{45} 	Based on our review of the whole record and considering the specific	22
arguments made by Defendant in this case, we conclude that Defendant “has not	23
carried his burden to establish the existence of fundamental error.” State v. Astorga,	24
2016-NMCA-015, ¶ 13, 365 P.3d 53; see also State v. Baca, 1997-NMSC-059, ¶ 55,	25

23
124 N.M. 333, 960 P.2d 776 (prosecutorial misconduct in closing argument that	1
compared victim and his mother to “‘the Madonna holding Jesus off the cross’” did	2
not amount to fundamental error), abrogated by State v. Revels, 2025-NMSC-021,	3
572 P.3d 974.2
4
{46} 	Although we do not order a new trial today, we conclude with a cautionary	5
note for the State. “A prosecutor represents the public interest and must ensure above	6
all else that a criminal defendant receives a fair trial.” State v. Torres, 2012-NMSC-	7
016, ¶ 3, 279 P.3d 740 (emphasis added) (internal quotation marks and citation	8
omitted). Golden rule arguments, such as those made in this case, are incompatible	9
with that fundamental duty. Such arguments also create risks for the prosecution	10
itself: mistrial orders and reversals of convictions on appeal. While we have no	11
reason to believe that the prosecution did so here, we caution prosecutors against	12
seeking 	to 	exploit 	deferential 	standards 	of 	review—particularly 	review 	for	13
fundamental error—in the hope that convictions will survive despite the use of	14
2 Defendant cites multiple out-of-state cases in support of his argument, all of
which we find unpersuasive. Nearly all of those authorities confront prosecutors’
arguments that were objected to at trial and thus not subject to review for
fundamental error. See Commonwealth v. Cherry, 378 A.2d 800 (Pa. 1977); State v.
Reese, 633 S.E.2d 898 (S.C. 2006); Holliman v. State, 2010-KA-00397-SCT. (Miss.
2011). One of those cases, Palma, 473 F.3d at 902, assessed a preserved golden rule
argument. There the Eighth Circuit did not find an abuse of discretion by the district
court, which declined to grant a mistrial and did not provide a curative instruction.
Id. at 901-03. The only out-of-state case cited that featured an unpreserved challenge
to an improper argument, Commonwealth v. Bizanowicz, 945 N.E.2d 356 (Mass.
2011), did not result in reversal.

24
improper arguments. See State v. Cooper, 2000-NMCA-041, ¶ 16, 129 N.M. 172, 3	1
P.3d 149.	2
D. 	There Was No Cumulative Error	3
{47} 	As noted above, the State’s presentation was not without missteps. We hold,	4
however, that only one of the State’s alleged improprieties amounted to error, and	5
that error was not fundamental. Because the cumulative error doctrine can apply only	6
where there are multiple errors, see State v. Salas, 2010-NMSC-028, ¶ 39, 148 N.M.	7
313, 236 P.3d 32, there can be no cumulative error here. Cf. State v. Baca, 1995-	8
NMSC-045, ¶ 39, 120 N.M. 383, 902 P.2d 65 (finding reversible cumulative error	9
where “the trial court made several egregious errors, including improperly admitting	10
hearsay testimony without providing the defense with an opportunity to rebut the	11
evidence and improperly excluding evidence that was to be used to impeach the	12
[s]tate’s primary witness”).	13
III. 	Defendant’s Convictions for Attempted Murder and Assault on a Peace	14
Officer Do Not Violate Double Jeopardy	15
{48} 	Defendant argues that “the time has come to reconsider” State v. Demongey,	16
2008-NMCA-066, 144 N.M. 333, 187 P.3d 679 and State v. Urquizo, 2012-NMCA-	17
113, 288 P.3d 919. Demongey and Urquizo held that convictions for both attempted	18
murder and assault on a peace officer are not violative of double jeopardy under a	19
double-description argument. We disagree for the reasons that follow.	20

25
{49} 	We 	evaluate 	double-description 	claims 	according 	to 	the 	two-part 	test	1
articulated in Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223. First,	2
we look to see “whether the conduct underlying the offenses is unitary, i.e., whether	3
the same conduct violates both statutes.” 	Id. 	¶ 25. The parties concede that	4
Defendant’s conduct was unitary, as to the shots fired toward each officer, for the	5
purposes of our double jeopardy analysis. Although we are not required to accept	6
the parties’ concession, “we accept it under the facts of this case as supported by our	7
precedent and offer a brief analysis.” State v. French, 2021-NMCA-052, ¶ 17, 495	8
P.3d 1198.	9
{50} 	Second, we look at “the statutes at issue to determine whether the legislature	10
intended to create separately punishable offenses.” Swafford, 1991-NMSC-043,	11
¶ 25. This Court has been repeatedly asked to determine whether the Legislature	12
intended to create separately punishable offenses for crimes similar to those for	13
which Defendant was convicted. See, e.g., Urquizo, 2012-NMCA-113, ¶ 12 (“The	14
social harm targeted by the crime of aggravated battery upon a peace officer is	15
distinct from that targeted by the crime of attempted murder. Aggravated battery	16
upon a peace officer falls within an entirely different article of the Criminal Code	17
. . . , entitled ‘Interference with Law Enforcement,’ than does general aggravated	18
battery or attempted murder.”). And we have repeatedly held that the general	19
prohibition against homicide is different than the specific prohibitions against	20

26
impeding peace officers in the discharge of their duties. Id. ¶¶ 12-14; Demongey,	1
2008-NMCA-066, ¶¶ 22-23. The reasons for this distinction are numerous, and our	2
analysis on this question has not changed. See Urquizo, 2012-NMCA-113, ¶¶ 12-14	3
(discussing the likelihood that these crimes will be committed together, the different	4
types of social harm targeted by the statutes, and the Legislature’s specificity in	5
placing crimes against peace officers in a separate and distinct section of the New	6
Mexico statutes).	7
{51} 	Defendant argues that Urquizo and Demongey should be overturned because	8
“[o]ur double jeopardy jurisprudence has continued to grow away from the historical	9
strict mechanical elements test and increasingly toward a substantive sameness	10
analysis.” State v. Montoya, 2013-NMSC-020, ¶ 46, 306 P.3d 426. It is true that this	11
Court has of late issued nonprecedential opinions holding that convictions for battery	12
on a household member alongside other assaultive crimes violate double jeopardy,	13
but none of those cases involve convictions for impeding peace officers in the	14
discharge of their duties. See State v. Perez, A-1-CA-37025, mem. op. (N.M. Ct.	15
App. Nov. 15, 2019) (nonprecedential); State v. Francis, A-1-CA-35792, mem. op.	16
(N.M. Ct. App. Nov. 22, 2019) (nonprecedential); State v. Trejo-Vigil, A-1-CA-	17
39183, mem. op. (N.M. Ct. App. Dec. 13, 2022) (nonprecedential). We are unwilling	18
to collapse that distinction where the Legislature has created additional protections	19
for peace officers.	20

27
{52} 	We continue to hold that convictions for attempted murder and aggravated	1
assault on a peace officer do not constitute double jeopardy, even when the	2
convictions 	arise 	out 	of 	unitary 	conduct. 	We 	therefore 	affirm 	Defendant’s	3
convictions for attempted first-degree murder, charged as Counts 1 and 2; and for	4
aggravated assault on a peace officer, charged as Counts 3 and 4.	5
IV. 	We Vacate Defendant’s Conviction for Shooting From a Motor Vehicle	6
{53} 	Finally, Defendant requests that we vacate his conviction for shooting from a	7
motor vehicle because it was based on the same conduct as his convictions for	8
attempted murder and for assault on a peace officer. The State concedes that the	9
conviction should be vacated. This concession is not binding, see State v. Comitz,	10
2019-NMSC-011, 	¶ 	25, 	443 	P.3d 	1130, 	but 	having 	independently 	assessed	11
Defendant’s claims, we accept the State’s concession as correct.	12
{54} 	The State’s theory of the case shows that the charges for shooting from a	13
motor vehicle are based on the same acts of shooting as the convictions for attempted	14
murder and aggravated assault on a peace officer. See State v. Porter, 2020-NMSC-	15
020, ¶ 21, 476 P.3d 1201 (“Whether one offense subsumes the other depends entirely	16
on the State’s theory of the case.”). Our Supreme Court has previously held that	17
convictions for shooting at a motor vehicle and homicide when premised on the same	18
shooting constitute double jeopardy. Montoya, 2013-NMSC-020, ¶ 54. Similarly,	19
we agree that allowing Defendant’s convictions to stand for both attempted first-	20

28
degree murder and shooting from a motor vehicle would violate his double jeopardy	1
protections. Because shooting from a motor vehicle violates double jeopardy	2
alongside attempted first-degree murder, we need not determine whether it is	3
violative alongside Defendant’s convictions for assault on a peace officer.	4
{55} 	Moreover, our analysis would be identical. “[W]here one of two otherwise	5
valid convictions must be vacated to avoid violation of double jeopardy protections,	6
we must vacate the conviction carrying the shorter sentence.” Id. ¶ 55. Because we	7
uphold Defendant’s convictions for attempted murder, we vacate his conviction for	8
shooting from a motor vehicle, which was Count 7 below.	9
CONCLUSION	10
{56} 	We affirm all counts of conviction with the exception of Defendant’s	11
conviction for shooting from a motor vehicle, which we vacate as a double jeopardy	12
violation. We remand this case to the district court for amendment of the judgment	13
and sentence consistent with this opinion.	14
{57} 	IT IS SO ORDERED.	15
___________________________________	16
KRISTOPHER N. HOUGHTON, Judge	17
WE CONCUR:	18
___________________________________	19
ZACHARY A. IVES, Judge	20
___________________________________	21
SHAMMARA H. HENDERSON, Judge	22