April 15, 2014 – State of New Mexico v. Cameron Slade, No. 32,681

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	April 15, 2014
NO. 32,681
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CAMERON SLADE,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge
Gary K. King, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM
for Appellee
Templeman and Crutchfield
C. Barry Crutchfield
Lovington, NM
for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	Defendant Cameron Slade was convicted of attempted first degree murder after
attending a party that ended with one person dead and the victim, Brian Alexander,
seriously injured from multiple gunshot wounds. On appeal, Defendant maintains that
there was insufficient evidence to support the jury’s verdict. We agree that the State
failed to meet its burden to demonstrate that Defendant acted willfully, deliberately,
and with premeditated intent to kill the victim. We further conclude that because the
State elected to charge attempted first degree murder and not to instruct the jury on
attempted second degree murder, double jeopardy principles bar retrial of Defendant
for the lesser included charge of attempted second degree murder. 	Defendant’s
conviction is reversed and his sentence vacated.
BACKGROUND
{2} 	Defendant was charged with and convicted of attempted first degree murder for
the shooting of Brian Alexander at a party in Hobbs, New Mexico. 	Alexander
suffered multiple gunshot wounds. The other essential facts are as follows.
{3} 	After arriving at the party, Defendant waited outside the rented hall while his
friend, J.J. Royal, and his cousin, Dedrick Thomas, went inside. 	Defendant was
carrying a .38 revolver that he had borrowed from Royal, and Royal was carrying a

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semiautomatic .40 caliber pistol belonging to Defendant. 	Shortly after Royal and
Thomas entered the hall, a fight erupted and Royal and Alexander stepped in to break
it up. In an attempt to stop the fighting, the party’s organizers turned on the lights and
approximately thirty guests began leaving the hall. Once outside, the fight resumed
a few yards away from the entrance. Royal and Alexander also left the hall and began
fighting each other on a ramp just outside the hall’s entrance. A friend and roommate
of Alexander’s, Alton Granville, also joined in the fight. Thomas returned to his car,
which was parked a few yards away from the entrance, where he encountered
Defendant. 	After Thomas told Defendant about the fight, Defendant wordlessly
walked toward the hall entrance. Thomas then got in his car, drove toward the hall
entrance, and parked in the street near the ramp.
{4} 	Moments later, Royal heard gunshots from an unknown location. Believing he
had been shot, Royal drew the semiautomatic .40 caliber pistol and shot Granville four
times, killing him. 	Royal also shot at Alexander several times as Alexander was
running down the ramp and away from the hall entrance. Royal fired a total of six
times.
{5} 	Eyewitness testimony about Defendant’s whereabouts during the fighting was
mixed. At trial, Alexander testified that he did not see Defendant at all during the
shooting, but he had testified at a preliminary hearing that he had seen Defendant in

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the street. Thomas testified that he did not see Defendant near the fight and never saw
him fire a weapon. Royal testified that he did not see Defendant shoot at any time.
{6} 	After the shooting began, Defendant was seen running with Royal away from
the area of the fight, while people fired at them. Defendant and Royal then ran into
an alley, pursued by people in a car who were also shooting at them. 	Royal
exchanged weapons with Defendant and fired the .38 revolver at the vehicle one or
two times.
{7} 	Meanwhile, Thomas, whose car had been hit with one bullet, returned to his
apartment. 	Defendant arrived approximately thirty-five minutes later and hid the
semiautomatic .40 caliber pistol in a bedroom closet. 	This weapon was later
recovered from a house in Midland, Texas, belonging to a family member of Royal’s.
The barrel of the weapon had been removed.
{8} 	Defendant and Thomas went to the Hobbs Police Department the next day to
be interviewed. Defendant instructed Thomas to say that he did not know what had
happened, and Defendant told the police during the interview that he went to the party
only with Thomas, that he never saw Royal that night, that he stayed in his car most
of the time he was there, and that he rode home with Thomas. Thomas testified that
Defendant told him that Defendant had “shot . . . Alexander once.” Royal also told
police during the investigation that Defendant had admitted shooting Alexander one
time, but at trial denied that Defendant had admitted to the shooting.

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{9} 	Several different kinds of bullets and/or casings were recovered from the scene.
Six Remington brand .40 caliber casings, later determined to have been fired by the
semiautomatic .40 caliber pistol carried by Royal, were found near where Granville
was shot. The single bullet recovered from Alexander’s clothing was shown to have
been fired by the same gun as two bullets found in Granville’s body, although the
forensic examiner could not assess whether the three bullets had been fired by the
semiautomatic .40 caliber pistol because the barrel was missing. Five Federal brand
.40 caliber casings were also recovered from the street near where Thomas and
Defendant had parked. Analysis demonstrated that the Federal casings were all fired
from the same weapon, but that weapon was never recovered. 	One 9 mm unfired
bullet was also found at the scene. 	A bullet fragment found in Thomas’s car was
determined to be a different type than the bullets taken from Granville and Alexander.
No .38 caliber bullets or casings were recovered from the scene or Alexander,
although the .38 revolver itself was recovered from Royal’s family member.
{10} 	After a jury trial, Defendant was convicted of attempted first degree murder and
acquitted of tampering with evidence. He was sentenced to nine years of incarceration
for attempted first degree murder and one year for the use of a firearm. Additional
facts are included as necessary to our discussion.
DISCUSSION

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{11} 	Defendant argues that (1) the State’s evidence fails to demonstrate that he shot
Alexander at all; and (2) there was also insufficient evidence that he acted with the
requisite intent for first degree murder, i.e., deliberate intent to kill. Defendant also
argues that the “corpus delicti rule” was violated because the testimony as to his
admission was not trustworthy and there was no independent evidence that Defendant
shot Alexander. Because the disposition of Defendant’s sufficiency arguments makes
it unnecessary, we do not reach the latter point.
A. 	The Evidence of Deliberate Intent Was Insufficient
{12} 	Defendant argues that the evidence presented at trial was “totally insufficient”
to support a conclusion that Defendant “committed any criminal act” and that the
jury’s verdict rested on “mere guess or speculation.” Because the jury was instructed
on and returned a verdict as to attempted first degree murder, we focus our analysis
on the sufficiency of the evidence pertinent to that charge. We agree with Defendant’s
assertion that the evidence did not support a conclusion that he acted with deliberate
intent. 	We begin by discussing the standard of review of such an assertion, first
generally and then in the context of attempted first degree murder. We then apply the
standard of review to the State’s arguments.
1. 	Standard of Review
{13} 	On appeal, the appellate courts “review sufficiency of the evidence . . . from a
highly deferential standpoint.” State v. Dowling, 2011-NMSC-016, ¶ 20, 150 N.M.

6
110, 257 P.3d 930. All evidence is “viewed in the light most favorable to the [s]tate,
[and we] resolv[e] all conflicts and mak[e] all permissible inferences in favor of the
jury’s verdict.” Id. We examine each essential element of the crimes charged and the
evidence at trial “to ensure that a rational jury could have found the facts required for
each element of the conviction beyond a reasonable doubt.” Id. The appellate courts
“do not search for inferences supporting a contrary verdict or re-weigh the evidence
because this type of analysis would substitute an appellate court’s judgment for that
of the jury.” State v. Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285;
see State v. McGhee, 1985-NMSC-047, ¶ 17, 103 N.M. 100, 703 P.2d 877 (“The
determination of the weight and effect of the evidence, including all reasonable
inferences to be drawn from both the direct and circumstantial evidence is a matter
reserved for determination by the trier of fact.”).
{14} 	Although appellate courts are highly deferential to a jury’s decisions, it is “the
independent responsibility of the courts to ensure that the jury’s decisions are
supportable by evidence in the record, rather than mere guess or conjecture.” State
v. Vigil, 2010-NMSC-003, ¶ 4, 147 N.M. 537, 226 P.3d 636 (internal quotation marks
and citation omitted); see UJI 14-6006 NMRA (stating that the “verdict should not be
based on speculation, guess[,] or conjecture”). 	In other words, “[e]vidence from
which a proposition can be derived only by speculation among equally plausible
alternatives is not substantial evidence of the proposition.” 	Baca v. Bueno Foods,

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1988-NMCA-112, ¶ 15, 108 N.M. 98, 766 P.2d 1332. 	This principle necessarily
requires a reviewing court to distinguish between conclusions based on speculation
and those based on inferences, a task that is not always straightforward. See Romero
v. State, 1991-NMCA-042, ¶ 38, 112 N.M. 291, 814 P.2d 1019 (“[T]he line between
speculation and reasonable inference is not always clear.”), aff’d in part, rev’d in part,
1991-NMSC-071, 112 N.M. 332, 815 P.2d 628. Nevertheless, this Court has made
clear that an inference must be linked to a fact in evidence. “A reasonable inference
is a conclusion arrived at by a process of reasoning [which is] a rational and logical
deduction from facts admitted or established by the evidence[.]” Samora v. Bradford,
1970-NMCA-004, ¶ 6, 81 N.M. 205, 465 P.2d 88; see Bowman v. Inc. Cnty. of Los
Alamos, 1985-NMCA-040, ¶ 9, 102 N.M. 660, 699 P.2d 133 (“An inference is more
than a supposition or conjecture. It is a logical deduction from facts which are proven,
and guess work is not a substitute therefor.” (internal quotation marks and citation
omitted)). 	An ultimate inference may not be based on a series of inferences. 	See
United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996) (“[A] verdict may not
rest on . . . an overly attenuated piling of inference on inference.”); Hisey v. Cashway
Supermarkets, Inc., 1967-NMSC-081, ¶ 7, 77 N.M. 638, 426 P.2d 784 (“It is true that
[the] plaintiff is entitled to [resolution of] all inferences in [its] favor but such
inferences must be reasonably based on facts established by the evidence, not upon
conjecture or other inferences.”). Finally, even when a permissible logical inference

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may be drawn from the facts, if it “must be buttressed by surmise and conjecture” in
order to convict, the conviction cannot stand. State v. Tovar, 1982-NMSC-119, ¶ 8,
98 N.M. 655, 651 P.2d 1299 (internal quotation marks and citation omitted).
2. 	Application of the Standard of Review to This Case
{15} 	A review of the sufficiency of the evidence proceeds in a two-step fashion.
“First we review the evidence . . . with deference to the trial court’s resolution of
factual conflicts and inferences[.]” State v. Apodaca, 1994-NMSC-121, ¶ 6, 118 N.M.
762, 887 P.2d 756. “[T]hen we make a legal determination of whether the evidence
viewed in this manner could justify a finding by any rational trier of fact that each
element of the crime charged has been established beyond a reasonable doubt.” Id.
(internal quotation marks and citation omitted). Thus, our review necessarily occurs
within the context of the crimes charged and the standard of proof at trial. See State
v. Wynn, 2001-NMCA-020, ¶ 5, 130 N.M. 381, 24 P.3d 816 (“We must be satisfied
that the evidence was sufficient to establish the facts essential to conviction with the
level of certainty required by the applicable burden of proof.”); State v. Taylor, 2000-
NMCA-072, ¶ 18, 129 N.M. 376, 8 P.3d 863 (reviewing the evidence under a clear
and convincing standard of proof).
{16} 	Here, because Defendant was charged with attempted first degree murder, the
jury was instructed in the elements of both attempt and first degree murder. See UJI
14-2801 NMRA (attempt); UJI 14-201 NMRA (first degree murder). 	The murder

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statute defines first degree murder as a “willful, deliberate[,] and premeditated”
killing. NMSA 1978, § 30-2-1(A)(1) (1994). The jury instructions associated with
this statute require the jury to find that the defendant acted with “deliberate intention.”
UJI 14-201(2). 	Under these instructions, the State was required to prove that
Defendant “deliberate[ly] inten[ded]” to kill Alexander. 	See State v. Hernandez,
1998-NMCA-167, ¶ 16, 126 N.M. 377, 970 P.2d 149 (stating that “the crime of
attempt to commit a felony requires a specific intent to commit the underlying
felony”).
{17} 	The 	element 	of 	“willful, 	deliberate[,] 	and 	premeditated” 	intent, 	called
“deliberate intention” in the jury instruction, distinguishes first degree murder from
second degree murder. 	See State v. Tafoya, 2012-NMSC-030, ¶ 37, 285 P.3d 604
(stating that the distinction is “whether a killing was deliberate and premeditated,
or . . . only rash and impulsive” (internal quotation marks and citation omitted)).
What constitutes “deliberate intention” is thus a critical and difficult inquiry in first
degree murder cases. See id. ¶ 38 (“Although a seemingly straightforward distinction
to draw, time has shown that sometimes this is far from the case.”). What is clear,
however, is that “first[]degree murder is reserved for the most heinous and
reprehensible of killings[.]” 	Id. (alteration, internal quotation marks, and citation
omitted). 	“Also well settled is the understanding that, due to the steep penalty
reserved for first degree murder convictions, the Legislature did not mean for first

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degree murder to serve as a catch-all category for every intentional killing.” 	Id.
Consequently, “[t]o prove first[]degree murder, the [prosecution] has a heightened
burden commensurate with the severity of punishment reserved for that crime.” State
v. Adonis, 2008-NMSC-059, ¶ 14, 145 N.M. 102, 194 P.3d 717.
{18} 	Uniform Jury Instruction 14-201(2) provides insight into how to distinguish
between “deliberate intention” and an impulsive act.
A deliberate intention refers to the state of mind of the defendant.
A deliberate intention may be inferred from all of the facts and
circumstances of the killing. The word deliberate means arrived at or
determined upon as a result of careful thought and the weighing of the
consideration for and against the proposed course of action. A calculated
judgment and decision may be arrived at in a short period of time. A
mere unconsidered and rash impulse, even though it includes an intent
to kill, is not a deliberate intention to kill. 	To constitute a deliberate
killing, the slayer must weigh and consider the question of killing and his
reasons for and against such a choice.
Id.
{19} 	As noted in Tafoya, this instruction embodies two seemingly opposite ideas: (1)
that “deliberate intent” requires a “high level of requisite contemplation,” and (2) that
such contemplation may occur in a short period of time. See 2012-NMSC-030, ¶ 41
(stating that “[t]he notion that careful reasoning can occur in a short period of time
seems somewhat counterintuitive, and . . . impulsive killings are far more likely to be
the product of an expedited decision-making process than are carefully contemplated
killings”). 	The problems posed by these apparently conflicting ideas have been

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addressed by New Mexico cases and scholars for over twenty years. See, e.g., State
v. Garcia, 1992-NMSC-048, ¶ 30, 114 N.M. 269, 837 P.2d 862 (“But what is a ‘short
period of time’? A second or two? 	If so, then it is hard to see any principled
distinction 	between 	an 	impulsive 	killing 	and 	one 	that 	is 	deliberate 	and
premeditated.”); Leo M. Romero, 	A Critique of the Willful, Deliberate, and
Premeditated Formula for Distinguishing Between First and Second Degree Murder
in New Mexico, 18 N.M. L. Rev. 73, 87 (1988) (“To engage in careful thought and to
weigh the considerations for and against the proposed course of action that might
result in a killing must involve the passage of time; otherwise, the formation of the
intent to kill would be impulsive and rash.” (footnote omitted)).
{20} 	The Tafoya Court resolved this conflict by “recogniz[ing] that it is possible in
certain cases for a jury to reasonably infer from evidence presented that the
deliberative process occurred within a short period of time—the crucial element being
the presentation of other evidence.” 	2012-NMSC-030, ¶ 42 (emphasis omitted).
Hence, in those cases where deliberate intent was found to have been formed in a short
period of time, there was “evidence beyond the temporal aspect of the crime in order
to find sufficient evidence of deliberation.” 	Id. 	In other words, mere evidence of
sufficient time to form a deliberate intent is not enough to prove first degree murder.
Rather, there must be other evidence that the defendant actually formed such intent.
See Adonis, 2008-NMSC-059, ¶ 22 (“While the retrieval of a weapon before killing

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a victim could potentially give a killer an opportunity to deliberate, the burden
remains on the [s]tate to produce evidence that tends to show that the killer actually
did so.” (internal quotation marks and citation omitted)).
{21} 	Such other evidence of deliberate intent may include “the large number of
wounds, the evidence of a prolonged struggle, the evidence of the defendant’s attitude
toward the victim, and the defendant’s own statements[,]” State v. Flores, 2010-
NMSC-002, ¶ 21, 147 N.M. 542, 226 P.3d 641; as well as “a carefully crafted plan to
kill,” or “hot pursuit of the victim,” Taylor, 2000-NMCA-072, ¶ 22. On appeal, these
factors are viewed as a whole. We avoid “pars[ing] the testimony and view[ing] the
verdict only in light of the probative value of individual pieces of evidence.” Graham,
2005-NMSC-004, ¶ 13. Instead, although “each component may be insufficient to
support the conviction when viewed alone [they may] form substantial . . . support for
the conviction when viewed as a whole.” State v. Rojo, 1999-NMSC-001, ¶ 23, 126
N.M. 438, 971 P.2d 829. As discussed in more detail in our discussion of the State’s
arguments, the corollary to this principle is that, although it is possible for individual
pieces of evidence to permit an inference of deliberate intent, in many cases they must
be analyzed in the context of other evidence. 	Cf. Flores, 2010-NMSC-002, ¶ 24
(discussing the “totality of the evidence in [the] record”); Vigil, 2010-NMSC-003, ¶
18 (analyzing the state’s evidence “individually or collectively”).

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3. 	The State Failed to Present Evidence That Defendant Acted Willfully,
Deliberately, and With Premeditation
{22} 	We now assess the sufficiency of the evidence of deliberate intent in light of the
foregoing discussion. The State contends that evidence of Defendant’s premeditated
and deliberate intent to kill Alexander may be inferred from (1) Defendant’s alleged
motive to kill Alexander; (2) Defendant’s “arrival at the scene with a weapon”; (3)
Defendant’s “demeanor and conduct after the killing”; and (4) the number of shots
fired. 	After careful examination of the evidence in the light most favorable to the
State, we conclude that an inference of deliberate intent does not follow from the
evidence and that the jury would have had to speculate in order to reach that
conclusion. “This it may not do.” Vigil, 2010-NMSC-003, ¶ 20 (internal quotation
marks and citation omitted).
Motive to Kill
{23} 	The State argues that the jury could have reasonably inferred that Defendant
had a motive to kill Alexander based on (1) Defendant’s knowledge of Royal’s
previous conflict with Alexander, or (2) Defendant’s “personal animus” toward
Alexander based on their membership in rival gangs. See Rojo, 1999-NMSC-001, ¶
24 (concluding that the physical evidence supported deliberate intent “[w]hen
combined with the evidence concerning [the d]efendant’s motive for the killing); State
v. Motes, 1994-NMSC-115, ¶ 14, 118 N.M. 727, 885 P.2d 648 (considering evidence

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of motive in assessment of whether the defendant had a deliberate intent to kill). But
there was no evidence indicating that Defendant knew of Royal’s conflict with
Alexander, had his own conflict with Alexander, or was a member of a gang. Indeed,
Alexander testified that he and Defendant never had any conflict and that he could
think of no reason Defendant would have to shoot at him. 	Royal testified that
Defendant knew that Royal was in a gang, but also stated that he could not say
whether Defendant knew that Royal had a conflict with Alexander.
{24} 	Although the State cites to several cases in which the New Mexico Supreme
Court held that an inference of motive may be drawn from past conflict, each of these
cases is inapposite because, in those cases, there was evidence that the defendant
himself had a history of conflict with the victim. See State v. Coffin, 1999-NMSC-
038, ¶ 76, 128 N.M. 192, 991 P.2d 477 (stating that the defendant shot the victim after
the victim witnessed the defendant shoot the victim’s father) Rojo, 1999-NMSC-001,
¶ 22 (stating that recent termination of relationship between the defendant and the
victim provided evidence of motive); State v. Salazar, 1997-NMSC-044, ¶¶ 4, 46, 123
N.M. 778, 945 P.2d 996 (stating that the victim and the defendant had a “troubled”
relationship and the defendant “pursued” the victim just before the killing); Motes,
1994-NMSC-115, ¶ 14 (stating that the defendant was “distraught about the breakup
of a lengthy marriage” and did not dispute that there was sufficient motive). 	To
conclude, as the State argues, that Defendant formed a deliberate intent to kill

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Alexander based on Royal’s gang membership and past conflict with Alexander
requires at least two inferences. 	The first is that Royal’s previous conflict with
Alexander and/or gang affiliation gave Royal a motive to kill Alexander. The second
is that Defendant knew of Royal’s motive and would act based on that knowledge.
While “[i]t is true that [the] plaintiff is entitled to [resolution of] all inferences in [its]
favor[,] such inferences must be reasonably based on facts established by the
evidence, not upon conjecture or other inferences.” Hisey, 1967-NMSC-081, ¶ 7; cf.
State v. Trujillo, 2002-NMSC-005, ¶ 58, 131 N.M. 709, 42 P.3d 814 (acknowledging
“the danger of ‘guilt by association’ when evidence of gang membership is
introduced”); State v. Torrez, 2009-NMSC-029, ¶¶ 26, 32, 146 N.M. 331, 210 P.3d
228 (stating that “we are especially wary of the threat of guilt by association [where
the d]efendant’s intent was the primary issue to be resolved at trial” and holding that
the value of testimony on a gang’s practices “was outweighed by the danger of unfair
prejudice [in part] because there was no evidence presented at trial that [the d]efendant
was a gang member at the time of the shooting”). 	We conclude that the evidence
establishing Royal’s previous conflict with Alexander and gang membership is
insufficient to prove that Defendant had a motive to kill Alexander.
Arrival at the Hall With a Weapon
{25} 	The State maintains that Defendant’s “arrival at the scene [of a shooting] with
a weapon” is evidence of planning that supports a conclusion that he formed a

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deliberate intent to kill Alexander. 	It analogizes the facts here to three cases in
support of this argument. In State v. Manus, the defendant became angry when his
wife was stopped by police on the street near their house, went inside to get his gun,
and returned to shoot two officers, killing one. 1979-NMSC-035, ¶¶ 3, 10, 93 N.M.
95, 597 P.2d 280 (“[The defendant’s] statement that he got angry when the police
stopped his wife is evidence of motive. His statement that he went and got his gun,
and the testimony of shotgun shells loose on his table next to boxes of shells, is
evidence which the jury could infer manifested a plan or design.”), overruled on other
grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162. In State v.
Lucero, the defendant took a loaded gun to a methadone clinic where his wife was
receiving treatment and shot two people, one of whom he suspected of being a police
informer. 1975-NMSC-061, ¶ 7, 88 N.M. 441, 541 P.2d 430. The defendant himself
was not being treated by the clinic. Id. Both Manus and Lucero are distinguishable
from this case because in both cases there was evidence that the defendant had a
motive to kill before he obtained the weapon. The defendant in Manus sought out and
loaded his gun only after he became angry about his wife’s detention by police. 1979-
NMSC-035, ¶¶ 3, 10. Similarly, in Lucero, the defendant suspected the decedent of
being an informant before he took the gun to the clinic. 1975-NMSC-061, ¶ 7. Thus,
in those cases, the presence of the weapons was evidence of the defendants’ intent to

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act on their motives. 	In contrast, here, as discussed, there was no evidence that
Defendant had a motive to kill Alexander when he decided to carry the gun.
{26} 	Furthermore, the specific circumstances here, without evidence of motive, do
not permit an inference that Defendant planned to kill Alexander when he carried the
.38 revolver to the hall. 	State v. Leyba, the third case on which the state relies,
provides an example. 	2012-NMSC-037, ¶¶ 2, 6, 289 P.3d 1215. 	In that case, the
defendant, a security guard, shot and killed his girlfriend and her father and was
convicted of first degree murder and felony murder. Id. The Supreme Court reversed
on the ground that the girlfriend’s diary had been improperly admitted at trial. 	Id.
¶ 45. The Court further determined that admission of the diary was not harmless error,
since without it “the [prosecution] could offer only loosely circumstantial evidence
to create an inference of willful deliberation.” 	Id. ¶ 32. 	The Court rejected the
prosecution’s argument that the fact that the defendant brought his gun to the victims’
apartment indicated a plan to kill them, stating that “[the d]efendant . . . regularly
carried a gun while at work, and he was on break from work when he went to [the
scene] . . . . Obviously, [the d]efendant’s possession of the gun is still relevant. Its
probative value, however, is diminished by the specific circumstances of the case.”
Id. ¶ 33. In other words, in the context of the defendant’s normal practice to carry a
gun while on break from work, the mere presence of the weapon was insufficient to
demonstrate a willful and deliberate intent to kill the victims. Id.

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{27} 	Here, the probative value of the fact that Defendant was carrying a .38 revolver
is similarly diminished by the circumstances of this case. Defendant does not dispute
that he was carrying the revolver when he went to the hall. Thomas testified that he
and Defendant had recently completed a concealed weapon permit class. Defendant
therefore had a legal right to carry the weapon. 	See U.S. Const. amend II. 	Royal
testified that he “always had a gun.” The testimony indicated that other guests were
carrying weapons and police found five Federal brand casings at the scene that were
not fired by either the semiautomatic .40 pistol or the .38 revolver, indicating at least
one other weapon was fired there. 	Indeed, the party organizers had arranged for
guests to be searched for weapons before entering the hall, indicating that they
anticipated people would be carrying weapons to the party. In this context, the fact
that Defendant was also carrying a weapon is not enough evidence from which to infer
that he planned to kill Alexander that night.
Conduct After the Shooting
{28} 	The State also argues that “[l]ooking further to [the] totality of the evidence, the
jury could infer Defendant intended to kill . . . Alexander from Defendant’s demeanor
and conduct after the [attempted] killing.” See Flores, 2010-NMSC-002, ¶ 23 (“Not
only may [the d]efendant’s acts before and during the crime provide evidence of
intent, evidence of flight or an attempt to deceive the police may prove consciousness
of guilt.” (internal quotation marks and citation omitted)). It points to evidence that

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Defendant fled from the scene, hid the semiautomatic .40 pistol in a closet, lied to the
police about the incident, and told Thomas not to talk about what happened. It also
asserts that Defendant’s statements to the effect that he had shot Alexander one time
could be reasonably interpreted by the jury to indicate intent. 	Even viewing this
evidence in the light most favorable to the verdict, we are unpersuaded that this
evidence supports the attempted first degree murder verdict because this evidence tells
us nothing about Defendant’s state of mind before the shooting, which is the central
inquiry of a crime based on premeditation.
{29} 	First, Defendant was shot at as he ran away from the hall. 	Under these
circumstances, assigning some further reason or significance to Defendant’s flight
amounts to pure speculation. Second, even if Defendant hid the gun, lied to police,
or 	told 	Thomas 	not 	to 	talk, 	these 	factors, 	while 	potentially 	indicative 	of 	a
consciousness of guilt as to some involvement in the shooting, are not indicative of
Defendant’s state of mind before the shooting. See Garcia, 1992-NMSC-048, ¶ 31
(holding that the defendant’s attempt to conceal his identity from police “did not give
rise to any inference as to his state of mind before the [killing]”).
{30} 	Similarly, Defendant’s statements that he shot Alexander one time do not
indicate his state of mind before the shooting. They simply indicate that he shot at
Alexander at least one time. Statements like this that indicate only that a shooting
occurred cannot serve as the basis for an inference about whether Defendant

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premeditated the shooting. See Adonis, 2008-NMSC-059, ¶¶ 4, 25 (stating that the
defendant’s statement that shooting the victim “will teach this guy a lesson not to park
in my place no more” was “insufficient on its own to prove deliberation” absent
corroborative evidence that the defendant “actually deliberated” before shooting the
victim (internal quotation marks omitted)); Garcia, 1992-NMSC-048, ¶ 32 (holding
that the defendant’s statement that he would kill the victim again “does not show that
[the defendant] deliberated and intended to kill his victim before the [killing]”);
Taylor, 2000-NMCA-072, ¶ 22 (stating that the defendant’s admission to police that
he shot the victim was not evidence of his deliberate intent to do so where “[w]e have
no statements before the shooting that he wanted to kill [the victim] or wished her
dead”).
{31} 	The State relies on State v. Duran for the proposition that intent may be inferred
from post-killing statements by a defendant. See 2006-NMSC-035, ¶ 9, 140 N.M. 94,
140 P.3d 515 (“[T]he statements made by [the d]efendant would also support a jury’s
finding that the killing was deliberate” where the defendant admitted killing the
victim). But the statements in Duran were not evidence of intent simply because the
defendant admitted the killing. 	Rather, it was the content of the statements—“[I]
straight up murdered some bitch”—that supported the jury’s finding of deliberate
intent because the statements evinced the defendant’s attitude toward the victim. Id.
The Court held that the jury could infer deliberate intent from the combination of the

21
defendant’s attitude and the prolonged nature of the attack. 	Id. (“When combined
with evidence of [the d]efendant’s attitude toward the victim, this evidence is
sufficient to support the jury’s finding that the murder of the victim was done with
deliberate intent.”). 	In contrast, Defendant’s statements tell us nothing about his
attitude toward Alexander or his state of mind before the shooting. Thus, there is no
basis in Defendant’s post-incident statements from which to draw an inference that
Defendant formed a deliberate intent to kill Alexander.
Number of Shots Fired
{32} 	The State next argues that the fact that Alexander was shot five or six times
supports an inference that Defendant acted willfully and deliberately and points to
cases in which evidence that a shooter continued to attack the victim after the victim
was incapacitated or began leaving the scene supported an inference of intent to kill.
See, e.g., State v. Riley, 2010-NMSC-005, ¶ 20, 147 N.M. 557, 226 P.3d 656
(deliberate intent supported where the defendant “first shot from about thirty-eight
feet away and then ran towards [the v]ictim and fired four or five more shots. [The
d]efendant fired two of the shots from less than four inches from [the v]ictim’s body
and then shot [the v]ictim one final time as [the v]ictim was attempting to escape from
the car”), overruled on other grounds by State v. Montoya, 2013-NMSC-020, 306
P.3d 426; State v. Sosa, 2000-NMSC-036, ¶ 14, 129 N.M. 767, 14 P.3d 32 (stating
that “a reasonable jury could determine that [the d]efendant intended to kill [the

22
victim] when he went to [the victim’s] home armed with a gun, waited for him to
arrive, and then shot the unarmed victim numerous times” and that “[it] also could
have found that [the d]efendant formed the deliberate intent to kill [the victim] during
the time between shooting him in the face on his porch and pursuing the wounded and
defenseless victim into the street and shooting him from behind”); 	State v.
Cunningham, 2000-NMSC-009, ¶¶ 2, 28, 128 N.M. 711, 998 P.2d 176 (stating that
the defendant shot at the victim multiple times with one gun, then obtained another
gun from his car and fired the fatal shot with it “after [the victim] was incapacitated
and defenseless”); Coffin, 1999-NMSC-038, ¶¶ 5, 76 (stating that the defendant shot
the victim four times in the back after the victim had turned to get in his car as the
defendant requested); State v. Garcia, 1980-NMSC-141, ¶ 4, 95 N.M. 260, 620 P.2d
1285 (stating that the defendant shot the victim after the victim had turned to run
away).
{33} 	We reject the State’s argument. Careful review of these cases reveals that the
number of shots fired takes on significance only in the context of other evidence of
intent. For instance, in Garcia, the “[d]efendant admitted that he had accomplished
his purpose of warning or scaring the deceased before he aimed and fired” and before
he fired, the defendant “looked at the bottom of the gun, held his arms up with the gun
straight out in both hands, crouched a bit, hesitated a moment[,] and then fired toward
the deceased.” 1980-NMSC-141, ¶ 4. In Coffin, a witness testified that the defendant

23
had told him that he had killed the victim because the victim had seen him kill another
person. 1999-NMSC-038, ¶ 76. In Cunningham, there was testimony that there was
“a volley of . . . seven or eight shots[,]” a pause, then “one other distinct shot,” as well
as evidence that the defendant had threatened the victim. 2000-NMSC-009, ¶¶ 6, 28,
29.
{34} 	The importance of analysis of the number of shots in conjunction with the
totality of the circumstances was highlighted in Tafoya and Adonis. In Tafoya, the
defendant had been drinking and taking drugs with the victims before he, “without any
evidence of motive, shot [one victim] and then in very quick succession shot [the other
victim].” 2012-NMSC-030, ¶ 46. The defendant fired five times, possibly pausing
between the fourth and fifth shots. 	Id. ¶ 47. 	Although the state argued that the
defendant formed an intent to kill the second victim “in order to eliminate a potential
eyewitness” to the first killing, id. ¶ 48, the Court held that there was insufficient
evidence to support attempted first degree murder because while “the law allows for
a jury to infer that a short amount of time can be sufficient to form deliberate intent,”
there was no evidence that deliberate intent was in fact formed. Id. ¶ 54. 	Similarly,
in Adonis, the defendant fired multiple shots at the victim, who was getting out of a
car. 2008-NMSC-059, ¶ 4. The Court held that “multiple shots . . . alone do[] not
indicate that [a d]efendant deliberated before shooting [the v]ictim” and contrasted the
Adonis facts with those in Sosa and Duran, in which there were other “details

24
reflecting on the accused’s state of mind.” 	Adonis, 2008-NMSC-059, ¶¶ 23, 24.
Since in Adonis such other evidence was lacking, the Court held that the evidence of
multiple shots was insufficient to demonstrate deliberate intent. Id. But see State v.
Jett, 1991-NMSC-011, ¶ 10, 111 N.M. 309, 805 P.2d 78 (“Regardless of what
happened at the time of the first shot, . . . once [the victim] was wounded [the
defendant] then fired two additional shots into her head, chest, or abdomen.
Therefore, even if he had fully established his struggle contention, [the defendant’s]
admission to the subsequent shots convincingly supports the verdict of first degree
murder.”).
{35} 	The State devotes a substantial portion of its brief to discussion of the number
of possible shots that could have been fired by the semiautomatic .40 pistol carried by
Royal and the .38 revolver carried by Defendant. 	The State argues that “[t]he
evidence 	demonstrates 	. 	. 	. 	Royal 	could 	have 	fired 	no 	more 	than 	twice
at . . . Alexander, and that one of those bullets may have struck the pavement rather
than . . . Alexander. From this, it is apparent that . . . possibly five of the bullets that
struck . . . Alexander were fired by Defendant.” The State’s analysis depends on a
number of presumptions and inferences. 	Even if we accept the State’s assertions,
however, when considered in context, the number of shots in this case is not indicative
of deliberate, premeditated intent to kill. There is no dispute that Royal was engaged
in a fistfight near the hall entrance, that others were also fighting nearby, that

25
Defendant went toward the entrance after learning that Royal was fighting, that
someone not engaged in the fight fired a gun into the air, and that thereafter multiple
shots were fired. Royal testified that, upon hearing the first shot, he believed he had
been shot and immediately began shooting Granville. He agreed with defense counsel
that all of the shooting occurred very quickly. Alexander also agreed that he heard ten
to fifteen shots fired very quickly. One witness stated there were six or seven shots,
and another testified that the shots sounded “like fireworks.” Thomas testified that
there were “at least a dozen” shots from multiple guns which “rang out” right after the
first shot was fired into the air. 	In the context of this melee, and without other
evidence of Defendant’s state of mind, the number of shots fired is insufficient to
support an inference that Defendant deliberated before shooting Alexander.
{36} 	In summary, when considered individually and collectively and in the context
of the “heightened burden” on the prosecution to prove a willful, deliberate, and
premeditated killing, the state’s evidence in this case is insufficient to sustain an
inference of deliberate intent beyond a reasonable doubt. See Adonis, 2008-NMSC-
059, ¶ 14.
Double Jeopardy Bars Retrial
{37} 	Since we conclude that the evidence was too speculative to support the jury’s
verdict, we next examine whether to remand for entry of judgment on attempted
second degree murder, as the State requests, or for a new trial. 	We conclude that

26
remand for resentencing for attempted second degree murder is inappropriate here.
We further conclude that retrial of Defendant for attempted second degree murder
would violate his right to be free from double jeopardy. We explain.
{38} 	Generally, “appellate courts have the authority to remand a case for entry of
judgment on the lesser included offense and resentencing rather than retrial when the
evidence does not support the offense for which the defendant was convicted but does
support a lesser included offense.” State v. Haynie, 1994-NMSC-001, ¶ 4, 116 N.M.
746, 867 P.2d 416; see Tafoya, 2012-NMSC-030, ¶ 35 (stating that attempted second
degree murder is a lesser included offense of first degree murder); § 30-2-1(B)
(“Murder in the second degree is a lesser included offense of the crime of murder in
the first degree.”). In State v. Villa, however, the Supreme Court declined to extend
the so-called “direct remand” rule to those cases where a conviction is reversed based
on insufficient evidence to support the greater charge and the jury had not been
instructed on the lesser included offense. 2004-NMSC-031, ¶¶ 12-13, 136 N.M. 367,
98 P.3d 1017. 	It held that the direct remand rule did not apply under these
circumstances “because a conviction of an offense not presented to the jury would
deprive the defendant of notice and an opportunity to defend against that charge and
would be inconsistent with New Mexico law regarding jury instructions and
preservation of error.” Id. ¶ 1.

27
{39} 	Here, the State did not request an instruction on attempted second degree
murder. In charging and instructing only on attempted first degree murder, the State
apparently “pursued an ‘all-or-nothing’ trial strategy,” a tactical decision we do not
second-guess on appeal. 	Id. ¶ 14. 	Hence, direct remand for resentencing is not
appropriate.
{40} 	Neither is a new trial. “Where a defendant successfully challenges his or her
conviction on some basis other than insufficiency of the evidence, double jeopardy
does not apply.” State v. Gonzales (Gonzales I), 2011-NMCA-081, ¶ 34, 150 N.M.
494, 263 P.3d 271 (alteration, internal quotation marks, and citation omitted), aff’d on
other grounds, 2013-NMSC-016, 301 P.3d 380; see U.S. Const. amend. V; N.M.
Const. art. II, § 15. 	But because here we hold that the State’s evidence was
insufficient to support a conviction for attempted first degree murder, double jeopardy
applies. “The Double Jeopardy Clause protects against successive prosecutions for
the same offense after acquittal or conviction and against multiple criminal
punishments for the same offense.” 	State v. Gonzales (Gonzales II), 2013-NMSC-
016, ¶ 15, 301 P.3d 380 (internal quotation marks and citation omitted). 	The
prohibition includes “successive prosecutions for two offenses arising out of the same
conduct if either one is a lesser[]included offense within the other.” State v. Meadors,
1995-NMSC-073, ¶ 5, 121 N.M. 38, 908 P.2d 731. In cases such as this one, “reversal
of the greater offense . . . for insufficient evidence would also . . . ‘bar a subsequent

28
indictment on the implicit lesser included offenses’ that were never presented to the
jury.” 	Gonzales II, 2013-NMSC-016, ¶ 19 (alterations omitted) (quoting United
States v. Gooday, 714 F.2d 80, 82 (9th Cir. 1983)).
{41} 	The State argues that dismissal of the charges against Defendant is improper
because “the physical evidence presented at trial clearly established ‘Defendant
knowingly created a strong probability of death or great bodily injury[,]’ the standard
for establishing the offense of attempted second[]degree murder.” See § 30-2-1(B).
It is possible that the evidence supports a conviction for attempted second degree
murder. 	Nevertheless, the State pursued a trial strategy that did not include this
charge. “As our courts have stated many times, the parties should be liable for the
risks of their respective trial strategies. To do otherwise would be to violate the very
essence of fairness at the core of the Double Jeopardy Clause.” 	Gonzales I, 2011-
NMCA-081, ¶ 38 (internal quotation marks and citation omitted); see Gonzales II,
2013-NMSC-016, ¶ 33 (stating that “[tactical] decisions have consequences”). We
hold that since attempted second degree murder is a lesser included offense of
attempted first degree murder and there was insufficient evidence of the greater
offense, Defendant may not be retried for attempted second degree murder.
CONCLUSION
{42} 	For the foregoing reasons, we reverse Defendant’s conviction and remand to
the district court to vacate his sentence.

29
{43} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
__________________________________
RODERICK T. KENNEDY, Chief Judge
__________________________________
JONATHAN B. SUTIN, Judge