April 16, 2019- State of New Mexico v. Daniel Aguilar, No. A-1-CA-34520

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

—

10
1]
12
13
14
15
16
17
18
19
20
21

22

IN .AE ka OF APPEALS OF . dE S.1 ATE Gi: NEW MEXIC€

Court of Appeals of New Mexico
Filed 4/16/2019 8:46 AM

STATE OF NEW MEXICO, ;
fy
Mn
Plaintiff-Appellee, Mark Reynolds
V. No. A-1-CA-34520
DANIEL AGUILAR,

™efendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM
for Appellee
Law Offices of Jennifer J. Wernersbach, P.C.
Jennifer J. Wernersbach
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
B. ZAMORA, Judge.
{1} Defer © it aniel 4 ilar appeals his convictions for second de~~ee murder

and tampering with evidence. Defendant argues that there is insufficient evidence to

support either of his convictions, that the district court erred in failing to instruct the

1 jury on the lesser included offense of voluntary manslaughter, and that the admission
2 	of witness testimony solely for the purpose of impeachment was error. We affirm.
3 	BACKGROUND
4 	{2} 	Defendant's convictions stem from the fatal shooting of Dominic Sanchez.
5 	On July 31, 2012, at approximately 3:30 p.m., Shawn Parker called Defendant and
6 	invited him over to her apartment. Approximately thirty to forty-five minutes later,
7 	Defendant arrived at the apartment complex in a green Subaru station wagon and
8 	visited with Parker in her apartment for about fifteen to twenty minutes. According
9 	to Parker, Defendant was wearing jeans, was shirtless, and had several noticeable
10 tattoos. After Defendant left, Parker went to her bedroom, and within minutes she
11 	heard three gunshots and screaming. As Parker ran outside, she saw Sanchez on the
12 	ground surrounded by family members.
13 	{3} 	Crystal and Leanna, Sanchez's sisters, lived at the same apartment complex
14 	with other family members, including Sanchez. On the afternoon of the shooting,
15 	their next-door neighbor came to their door and invited Sanchez outside. Sanchez
16 	and his neighbor smoked underneath a tree in front of Sanchez's apartment, and
17 	within minutes both sisters heard gunshots.
18 	{4} 	Sanchez ' s sisters looked out the front window of their apartment and saw a
19 	man brandishing a firearm and quickly fleeing from the apartment complex in a
20 	green Subaru. Crystal described the man as bald and wearing "a wife beater, a white
2

1 one." Leanna also described the driver of the green Subaru as bald, but could not
2 recall if he was wearing a shirt. Both sisters ran outside and found Sanchez lying
3 face 	up 	and 	unresponsive. The 	scene 	was 	chaotic-Crystal ' s 	daughters 	were
4 screaming, Sanchez' s mother was frantic and, according to Crystal, they "were all
5 going crazy." When Leanna turned her brother's body over, she observed a bullet
6 hole in the back of his head.
7 {S} 	Paula Estrada, another resident of the apartment complex, heard a "ruckus"
8 and "people ... screaming" on the afternoon of the shooting. As Estrada looked out
9 the window, she saw a dark-colored vehicle with a male driver and a female
10 passenger leaving the complex. Estrada testified she had known Defendant for years,
11 	but from her vantage point, she was unable to identify whether Defendant was the
12 	driver of the green Subaru. This testimony conflicted with her prior statements, in
13 	which she identified Defendant as the driver of the green Subaru and as the shooter.
14 	Prior to trial, an officer had interviewed Estrada and prepared a photographic lineup
15 	from which Estrada identified Defendant as the shooter. Despite this, she clarified at
16 trial 	that 	she 	merely 	repeated 	to 	police 	what 	she 	had 	overheard 	from 	other
17 unidentified persons.
18 	{6} 	Dr. Benjamin Soriano, a forensic pathologist at the Office of the Medical
19 	Investigator, performed the autopsy on Sanchez' s bod y. Dr. Soriano opined that
20 	Sanchez had a single bullet wound and that the bullet lodged into the left side of
3

1 Sanchez's brain. Based on the entrance wound, Dr. Soriano determined that the
2 	trajectory of the bullet went from the back of his head to the front and from the right
3 	side to the left. Because there was no stippling (unburnt gunshot particles) found
4 	near the entry wound, Dr. Soriano opined that the shooter shot at Sanchez from a
5 range of more than eighteen to twenty-four inches away. Dr. Soriano concluded that
6 	Sanchez's cause of death was a gunshot wound to the head and the manner of death
7 	was a homicide.
8 	{7} 	Officers located three .25 caliber automatic casings at the crime scene. They
9 	found two casings in the parking lot in front of the apartment and the other in the
10 middle of the street. Officers also found a loaded, but unfired, .22 caliber firearm
11 	adjacent to Sanchez's body, which apparently had fallen from his waistband.
12 	{8} 	By the time the officers left the crime scene, Defendant was identified as a
13 	suspect and officers began searching for him and the green Subaru. Later that night,
14 at approximately 9:20 p.m., officers located a green Subaru at an address in the
15 	foothills. When officers located the green Subaru, it appeared to have been recently
16 washed and, as a result, they were unable to collect DNA or fingerprint marks.
17 Moreover, the green Subaru contained no paperwork that established ownership of
18 the vehicle. The following morning, officers located and apprehended Defendant at
19 a Motel 6.
4

1 {9} 	The State introduced several photographs of the green Subaru during trial.
2 Parker identified the Subaru in the photographs as the vehicle Defendant drove to
3 her apartment on the day of the shooting. Sanchez's sisters identified the green
4 	Subaru depicted in the photographs as the vehicle they observed fleeing from the
5 apartment 	complex 	on 	the 	afternoon 	of the 	shooting. 	Finally, 	a 	crime 	scene
6 	investigator verified that the photographs of the Subaru located in the foothills was
7 the same green Subaru identified in the photographs by Parker and Sanchez's sisters.
8 {IO} 	After 	the 	State 	presented 	its 	case 	in 	chief, the 	Court 	granted, 	in 	part,
9 Defendant' s motion for directed verdict and dismissed the following charges in the
10 	grand jury indictment: felony murder; two counts of shooting at or from a motor
11 	vehicle; and conspiracy to commit tampering with evidence. 1 The jury con victed
12 Defendant of the two remaining counts: the lesser included offense of second degree
13 	murder with a firearm enhancement and tampering with evidence.
14 	DISCUSSION
15 	I. 	Sufficiency of the Evidence
16 	A. 	Standard of Review
1 The grand jury originally indicted Defendant on the charge of felon in
possession of a firearm. However, the felon in possession of a firearm charge was
severed from the remaining charges and was not part of this trial. Subsequently, the
State dismissed the charge of felon in possession of a firearm.
5

1 {II} 	Defendant challenges the sufficiency of the evidence supporting both of his
2 convictions. We must determine "whether substantial evidence of either a direct or
3 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt
4 with respect to every element essential to a conviction." State v. 	Flores, 2010-
5 NMSC-002,, 2, 147 N.M. 542,226 P.3d 641 (internal quotation marks and citation
6 omitted). "View[ing] the evidence in the light most favorable to the state," we
7 resolve all conflicts and indulge "all permissible inferences therefrom in favor of the
8 verdict." State v. 	Sexson, 	1994-NMCA-004, , 	11, 117 N.M. 	113 , 869 P.2d 301
9 (internal quotation marks and citation omitted). We measure the sufficiency of the
10 evidence against the jury instructions, which become the law of the case. State v.
11 	Smith, 1986-NMCA-089, , 7, 104 N.M. 729, 726 P.2d 883.
12 	B. 	Second Degree Murder
13 	{12} 	We first address Defendant's argument that there was insufficient evidence
14 	identifying him as the shooter. To support a conviction for second degree murder,
15 	the State had to prove beyond a reasonable doubt that (1) Defendant killed Sanchez,
16 and (2) Defendant knew his acts created a strong probability of death or great bodily
17 	harm to Sanchez or any other human being. See UJI 14-211 NMRA; NMSA 1978,
18 	§ 30-2-l(B) (1994). "The law does not require testimony from a witness who
19 	personally saw [a d] efenda nt at the very moment he actually [killed] his victim."
20 	Flores, 20 1O-NMSC-002,, 17. Our Courts have held that circumstantial evidence
6

1 can be enough to connect a defendant to the commission of a crime. See State v.
2 	Gallegos, 2009-NMSC-017, 1 32, 146 N.M. 88, 206 P.3d 993 (holding that there
3 was sufficient evidence linking defendant to the murder where he was found at the
4 crime scene, as were his duffel bags containing inculpatory evidence); State v.
5 	Gurule, 2004-NMCA-008, 139, 134 N.M. 804, 82 P.3d 975 (concluding that there
6 was sufficient evidence for the jury to conclude that defendant was responsible for
7 the fatal stabbing, where he was seen washing the murder weapon and fleeing the
8 crime scene).
9 	{13} 	Defendant claims that his conviction "is based only on evidence linking [him]
10 to a green Subaru wagon and separate testimony linking a green Subaru to the
11 	murder." We disagree. Not only was there evidence connecting Defendant to the
12 	green Subaru that was seen fleeing from the crime scene, there was also evidence
13 	placing Defendant at the crime scene in the immediate aftermath of the shooting.
14 Defendant left Parker's apartment within minutes of the shooting, and eyewitnesses
15 	observed a bald man (matching Defendant's description) driving the green Subaru
16 while displaying a gun. Several witnesses identified photographs establishing that
17 	Defendant drove the same Subaru to the apartment complex that was later seen
18 	fleeing from the apartment complex after the shooting. Lastly, Defendant revealed
19 knowledge of the shooting when he called Parker shortly after the shooting asking
20 "what was going on over there." Viewing the evidence in the light most favorable to
7

1 the State, we hold there was substantial evidence to convict Defendant of second
2 degree murder.
3 	C. 	Tampering With Evidence
4 	{14} 	We 	next 	address 	whether 	there 	was 	substantial 	evidence 	to 	support
5 Defendant's conviction for tampering with evidence. Defendant maintains that
6 because there was no evidence that he "personally wiped the car clean" there was
7 insufficient evidence that he committed this crime. The State contends that it
8 presented sufficient circumstantial evidence, which allowed the jury to infer that
9 Defendant tampered with evidence intending to thwart a police investigation.
10 	{IS} 	To support a conviction for tampering with evidence, the State had to prove
11 	beyond a reasonable doubt that Defendant washed the Subaru with the intent of
12 preventing his apprehension, prosecution, or conviction. See NMSA 1978, § 30-22-
13 	5(A) (2003). Direct evidence is not necessary to prove tampering with evidence. See
14 State v. 	Duran, 2006-NMSC-035 , 1 16, 140 N.M. 94, 	140 P.3d 515. Witness
15 	statements "regarding the disposition of evidence may allow a jury to reasonably
16 	infer an overt act and intent, as may many other kinds of circumstantial evidence
17 	that would tend to prove a defendant acted to tamper with evidence and in so acting
18 	intended to thwart a police investigation." Id.
19 	{16} 	Both parties rely on Duran to support their arguments. In Duran, our Supreme
20 Court held that there was insufficient evidence of tampering with evidence because
8

1 there was "no evidence of an overt act to destroy or hide any knife or blood stained
2 clothing, if such clothing did in fact exist[,]" despite the state's contention that a
3 knife or sharp object was used in the commission of the crime and any clothing worn
4 by the attacker would have been blood stained. Id. 1113, 15. Although recognizing
5 that direct evidence is not "necessary to prove tampering with evidence[,]" id. 1 16,
6 the Duran Court reversed the defendant's conviction based on the State's failure to
7 prove an overt act in circumstances where neither a knife nor blood stained clothing
8 was ever located. Id. 11 15-16.
9 	{17} 	Here, the conviction was not based on evidence that only existed theoretically,
10 as was the case with the knife and bloody clothing in Duran. Instead, the State
11 	furnished evidence of an overt act of tampering-the cleaning of the Subaru and
12 	evidence that placed Defendant with the Subaru both prior to and immediately after
13 	the shooting-which allowed the jury to reasonably infer that Defendant tampered
14 	with evidence and intended to thwart police. Indeed, the evidence established that
15 	Defendant drove the green Subaru to the crime scene, fled the scene in what was
16 	identified by witnesses as the same green Subaru, and that, within hours of the
17 	shooting, law enforcement located the Subaru, washed and wiped of any latent
18 	fingerprints and potential DNA evidence. The evidence further revealed that the
19 interior 	of the 	vehicle 	was 	completely 	devoid 	of any 	evidence 	establishing
20 ownership of the vehicle. Given the Subaru's connection to the murder scene,
9

1 Defendant' s connection to the Subaru, and the temporal proximity between the
2 murder and the police recovery of the abandoned Subaru, there was sufficient
3 evidence from which the jury could reasonably conclude that Defendant committed
4 the "overt act" of cleaning the Subaru with the intent to prevent his apprehension,
5 prosecution, or conviction. See id. ,r 14. Viewing the evidence in the light most
6 favorable to the verdict, there was substantial evidence to uphold Defendant' s
7 conviction for tampering with evidence.
8 II. 	Voluntary Manslaughter Instruction
9 	{18} 	Defendant argues the district court erred by failing to instruct the jury on the
10 	lesser included offense of voluntary manslaughter. Specifically, Defendant argues
11 	the jury could have 	reasonably 	inferred the 	shooting resulted 	from 	sufficient
12 provocation because Sanchez had a loaded gun, a witness testified that she heard a
13 	"ruckus," and there was no evidence of a preexisting relationship between Defendant
14 and Sanchez. The State responds that because there was no evidence of provocation,
15 	the district court did not err in denying a step-down instruction for voluntary
16 manslaughter.
17 	{19} 	The propriety of denying a jury instruction is a mixed question oflaw and fact
18 	that we review de novo. State v. Candelaria, 2019-NMSC-004, ,r 31,434 P.3d 297.
19 "Failure to instruct the jury on a defendant' s theory of the case is reversible error
20 only if the evidence at trial supported giving the instruction." State v. Boyett, 2008-
10

1 NMSC-030,, 12, 144 N.M. 184, 185 P.3d 355. To obtain an instruction on a lesser
2 included offense, "there must be some view of the evidence pursuant to which the
3 lesser offense is the highest degree of crime committed, and that view must be
4 reasonable." State v. Brown, 1998-NMSC-037,, 12, 126 N.M. 338, 969 P.2d 313
5 (alteration, internal quotation marks, and citation omitted). New Mexico courts
6 apply a three-prong analysis in determining whether a district court's failure to
7 instruct the jury on a lesser included offense is reversible error, examining whether:
8
9
10
11
12
( 1) the lesser offense is included in the greater, charged offense; (2)
there is evidence tending to establish the lesser included offense and
that evidence establishes that the lesser offense is the highest degree of
crime 	committed; 	and 	(3) 	the 	defendant has tendered 	appropriate
instructions preserving the issue.
13 	State v. Jernigan, 2006-NMSC-003,, 21, 139 N.M. 1, 127 P.3d 537. The first and
14 third factors are not in play here since both sides agree that "voluntary manslaughter
15 	is a lesser included offense of second[]degree murder," id. , 	22, and that the jury
16 	instruction issue was preserved below when the State, apparently as the result of an
17 oversight, itself tendered a voluntary manslaughter instruction with its proposed
18 	instructions, thereby invoking a ruling on the issue by the district court. Since only
19 the second prong is at issue in this case our inquiry is limited to determining whether
20 there was enough evidence to warrant a voluntary manslaughter instruction.
21 	{20} 	There 	must 	be 	evidence 	of sufficient 	provocation 	to 	give 	a 	voluntary
22 manslaughter instruction to the jury. Brown, 	1998-NMSC-037, , 	13. Sufficient
11

1 provocation is what distinguishes voluntary manslaughter from 	second degree
2 murder. See UJI 14-220 NMRA ("The difference between second degree murder
3 and voluntary manslaughter is sufficient provocation."). "Sufficient provocation" is
4 "any action, conduct or circumstances which arouse anger, rage, 	fear, 	sudden
5 resentment, terror or other extreme emotions." UJI 	14-222 NMRA. 	Sufficient
6 provocation occurs when it would affect an ordinary person's ability to reason and
7 cause a temporary loss of self-control. Id. Words alone are insufficient "to arouse
8 the passions such that murder is reduced to manslaughter." State v. Stills, 1998-
9 NMSC-009, 136, 125 N.M. 66, 957 P.2d 51.
10 	{21} 	The record is devoid of any evidence that emotions were aroused or that
11 	Defendant was angry at or in fear of Sanchez. The fact that Sanchez was shot in the
12 	back of the head from an intermediate range strongly counters any argument that the
13 	shooting was the result of sufficient provocation. No casings were located from
14 	Sanchez's firearm nor was there evidence that Sanchez had taunted Defendant or
15 	brandished his gun, much less shot his gun at Defendant. Sanchez's mere possession
16 	of a firearm, unaccompanied by evidence that Defendant had knowledge of the
17 firearm, 	is insufficient to raise an issue of sufficient provocation. See State v.
18 Herrera, 2014-NMCA-007, 130,315 P.3d 343 (holding that there was insufficient
19 	evidence of provocation where the defendant did not see the victim's gun and he
12

1 shot the victim in the back). Thus, we hold that the district court did not err in
2 declining Defendant's request for a voluntary manslaughter instruction.
3 III. 	Impeachment of Paula Estrada
4 	{22} 	Defendant argues the sole reason the State called Estrada was to impeach her
5 with her prior inconsistent statement identifying Defendant as the driver of the
6 Subaru and as the shooter. Defendant claims he preserved this issue when he
7 objected to this testimony on hearsay grounds; however, he also argues that ifhe did
8 not preserve the 	issue, the admission 	of this evidence was fundamental 	error
9 requiring reversal. Alternatively, Defendant argues the district court erred in failing
10 to provide a limiting instruction, while acknowledging he failed to request such an
11 	instruction. The State contends Defendant failed to preserve this issue, and thus, the
12 	appropriate standard of review is plain error. The State claims that prior to calling
13 	Estrada to testify, it had no knowledge it would have to impeach her since Estrada
14 	consistently gave pretrial statements identifying Defendant as the driver of the
15 	Subaru and as the shooter. Finally, the State argues that Defendant failed to request
16 	a limiting instruction and the district court did not err in failing to sua sponte provide
17 such an instruction.
18 	{23} 	To preserve an issue for review on appeal, "it must appear that the appellant
19 	fairly invoked a ruling of the district court on the same grounds argued in the
20 appellate court." State v. Garcia, 2013-NMCA-064, ~ 37, 302 P.3d 111 (alterations,
13

1 internal quotation marks, and citation omitted); see Rule 12-321(A) NMRA ("To
2 preserve an issue for review, it must appear that a ruling or decision by the trial court
3 was fairly invoked."). Defendant failed to preserve the issue of whether the State
4 impermissibly called Estrada for the sole purpose of impeaching her because he
5 failed to invoke a ruling by the district court as to this specific issue. As such, we
6 analyze 	Defendant's 	claims 	for 	plain 	and 	fundamental 	error. 	See 	Rule 	12-
7 321(B)(2)(b), (c) ("This rule does not preclude a party from raising or the appellate
8 court, in its discretion, from considering .. . issues involving ... plain error [or] ...
9 fundamental error[.]").
10 	{24} 	In reviewing a claim for either plain or fundamental error, we must first
11 	determine whether an error occurred. See State v. Silva, 2008-NMSC-051 , ~ 11 , 144
12 N.M. 815 , 192 P.3d 1192; State v. Bregar, 2017-NMCA-028, ~ 30, 390 P.3d 212. In
13 	applying the doctrine of fundamental error, we exercise our discretion to employ the
14 exception "very guardedly," and apply it "only under extraordinary circumstances
15 	to prevent the miscarriage of justice[.]" Silva, 	2008-NMSC-051, ~ 13 (internal
16 quotation marks and citations omitted). The standard of review for fundamental error
17 	is whether Defendant' s guilt is so doubtful that it would shock the conscience of the
18 	court to let the verdict stand. See State v. Samora, 2 01 3-NMSC-038, ~ 17, 307 P .3 d
19 	328. Conversely, the plain error doctrine applies to evidentiary errors that affect the
20 substantial rights of a defendant, see Rule 11-103 (D), (E) NMRA, and is invoked
14

1 where the admission of evidence constitutes an injustice creating "grave doubts
2 concerning the validity of the verdict." State v. Montoya, 2015-NMSC-010, ,r 46,
3 345 P.3d 1056.
4 	{25} 	Rule 11-613 NMRA permitted the State to use Estrada's prior inconsistent
5 statement to attack her credibility. "Generally, however, if a party knowingly calls a
6 witness for the primary purpose of introducing a prior statement which otherwise
7 would 	be 	inadmissible, impeachment should 	ordinarily 	be 	excluded." 	State 	v.
8 Brown, 	1998-NMSC-037, ,r 52 (emphasis added) (internal quotation marks and
9 citation omitted); see id. 	,r 51 	(stating that "impeachment by prior inconsistent
10 	statement may not be permitted where employed as a mere subterfuge to get before
11 	the jury evidence not otherwise admissible" (internal quotation marks and citation
12 	omitted)). If the primary purpose of the proffered testimony is to introduce relevant
13 	evidence, and not a "back-door attempt to introduce otherwise inadmissible hearsay
14 under the auspices of impeachment," then the district court should allow admission
15 	of the evidence. See State v. Lopez, 2011-NMSC-035, ,r 16, 150 N.M. 179,258 P.3d
16 458. To determine whether a witness's testimony has a proper primary purpose, the
17 court examines the witness's testimony to determine whether it contains evidence
18 	that is both favorable and unfavorable to the proponent. Id. ,r 17. If the State utilized
19 Estrada's testimony to prove any significant fact in the litigation, the State may
20 	impeach her with her prior inconsistent statement as to other matters. See id. ,I 18.
15

1 {26} 	The record does not support Defendant's contention that the State's sole
2 purpose in calling Estrada was to engage 	in a backdoor attempt to admit her
3 otherwise inadmissible prior out-of-court statements. We can safely conclude the
4 State did not knowingly call Estrada as a witness for the purpose of impeaching her
5 because, based upon her prior statements, it could not have anticipated the need to
6 impeach her. In her prior statements, she consistently identified Defendant as the
7 shooter who drove the Subaru. Additionally, Estrada provided both favorable and
8 unfavorable testimony to the State. The testimony that she was Sanchez's neighbor,
9 had a view facing the parking lot, heard a "ruckus" and then observed a dark-colored
10 vehicle with a male driver leaving the apartment complex was favorable to the State.
11 	However, her testimony that there was a female passenger in the Subaru and that the
12 	Subaru was not speeding out of the apartment complex contradicted the testimony
13 	of Sanchez's sisters and was unfavorable to the State. Our examination of the record
14 	reveals no error in the admission of Estrada's testimony.
15 	{27} 	We next consider Defendant's argument that the district court erred by not sua
16 sponte instructing the jury that it was solely to consider Estrada's prior inconsistent
17 	statement for impeachment purposes. "If the court admits evidence that is admissible
18 	against a party or for a purpose-but not against another party or for another
19 purpose-the court, on timely request, must restrict the evidence to its proper scope
20 and instruct the jury accordingly." Rule 11-105 NMRA (emphasis added); see UJI
16

1 14-5009 NMRA (evidence admitted for a limited purpose). The Use Notes for UJI
2 	14-5009 provide that " [u ]pan request, the court must instruct the jury that evidence
3 is admitted for a limited purpose. This is a general instruction .... Use only if jury
4 was admonished at the time the evidence was admitted." (Emphasis added.) As
5 specified in the use notes, the district court should give a limiting instruction upon
6 Defendant' s request however, here, Defendant made no such request. See State v.
7 Lopez, 	1997-NMCA-075, i1 	18 , 	123 	N.M. 	599, 	943 	P.2d 	1052 	("[I]t 	is 	well
8 established that when evidence is admitted for the wrong purpose, there is no error
9 when the defendant does not request a limiting instruction.").
10 	{28} 	However, assuming arguendo 	that the 	district court erred 	in permitting
11 	Estrada' s testimony or in failing to give a limiting instruction, the error did not rise
12 to the level of plain or fundamental error. There was substantial evidence to convict
13 	Defendant apart from Estrada's testimony. Notably, the evidence placed Defendant
14 	at the crime scene with a firearm, multiple witnesses heard gunshots minutes after
15 	Defendant left Parker's apartment, and witnesses described Defendant's Subaru as
16 the vehicle fleeing the crime scene. We hold that because there was not "an injustice
17 that creates grave doubts concerning the validity of the verdict[,]" there was neither
18 	plain nor fundamental error in this case. State v. Paiz, 1999-NMCA-104, ,-r 28, 127
19 N.M. 776, 987 P.2d 1163 (internal quotation marks and citation omitted).
17

1 IV. 	Ineffective Assistance of Counsel
2 	{29} 	For the first time in his reply brief, Defendant raises the issue of ineffective
3 assistance of counsel based on his trial attorney's failure to request a limiting
4 instruction. He did not raise the issue in his brief in chief nor did the State on its own
5 raise the issue of ineffective assistance of counsel. "A reply brief ... shall reply only
6 to arguments or authorities presented in the answer brief." Rule 12-318(C) NMRA.
7 see State v. Martinez, 2005-NMCA-052, 17, 137 N.M. 432, 112 P.3d 293 (declining
8 to address a defendant's assertions raised for the first time in his reply brief because
9 it deprived the state an opportunity to rebut the argument as contemplated by the
10 rules). Because Defendant failed to raise the issue of ineffective assistance of
11 	counsel until the filing of his reply brief, the State did not have an opportunity to
12 	rebut Defendant's arguments. We therefore decline to address Defendant's claim of
13 	ineffective assistance of counsel.
14 	CONCLUSION
15 	{30} 	For the foregoing reasons, we affirm.
16 	{3 1} 	IT IS SO ORDERED.
17
18
18

—

WE CONCUR:

2. —

J. MILES HANISEE, Judge

JACQUELINE "i MEDINA, Judge

19