CourtListener 10778389

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This decision of the Supreme Court of New Mexico was not selected for publication in
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: January 22, 2026

No. S-1-SC-40649

STATE OF NEW MEXICO,

Plaintiff-Appellee,

NICHOLAS M. HUBBARD,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Stephen P. Ochoa, District Judge

Bennett J. Baur, Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Raúl Torrez, Attorney General
Santa Fe, NM
Christa Street, Assistant Solicitor General
Albuquerque, NM

for Appellee

DECISION

ZAMORA, Justice.

{1} Defendant Nicholas Hubbard appeals his convictions for the first-degree willful
and deliberate murder of his mother Esther Hubbard (Victim) contrary to NMSA 1978,
Section 30-2-1(A)(1) (1994), and tampering with evidence, contrary to NMSA 1978,
Section 30-22-5(A) (2003). Defendant asks this Court to reverse his convictions,
claiming (1) there is insufficient evidence to convict him of first-degree murder and
tampering with evidence; (2) the failure to instruct the jury on voluntary and involuntary
manslaughter was fundamental error and/or ineffective assistance of counsel; (3) the
admission of evidence of a broomstick, knife, and Defendant’s participation in Mixed
Martial Arts (MMA) constituted plain error; and (4) the district court abused its discretion
by not imposing sanctions for law enforcement’s failure to record interviews with
witnesses. We affirm.1

I. BACKGROUND

{2} On the night of the killing, Defendant drank beer at a grocery store bar as his
grandmother shopped. At home later that night, Defendant and a friend spoke on the
phone, after which Defendant changed his clothes and went to bed. Defendant’s friend
then spoke with Defendant’s grandmother, sharing that he was concerned by his
conversation with Defendant, to which she responded that Defendant was “acting a little
funny” or “upset” and that she did not know what was wrong with him. Defendant’s
grandmother also spoke about Defendant to Victim in a separate phone call. Victim then
drove approximately an hour to the house where Defendant lived with his grandmother.

{3} Victim arrived and entered Defendant’s bedroom. Shortly thereafter, Defendant
and Victim began arguing in the bedroom. Defendant emerged into the hallway
dragging Victim by her hair; Victim was unconscious and her face was covered in blood.
Defendant’s grandmother then witnessed Defendant “beating” Victim in the living room,
hitting her in the head and face. His grandmother tried to stop the attack, attempting to
push Defendant off of Victim. Defendant’s grandmother then called 911 sometime
between midnight and 1:00 a.m., but Defendant took the phone and told dispatch there
was “no emergency.” Defendant’s grandmother then went to her neighbors’ house for
help as Defendant continued his attack on Victim. The neighbor promptly went to
Defendant’s grandmother’s house, and police arrived on the scene almost immediately
thereafter.

{4} Upon entering the house, police found Defendant in the bathroom; Defendant
was nude and wet and still had Victim’s blood on his back. Police officers arrested
Defendant, and around three hours later, facilitated a blood test which showed alcohol
in Defendant’s bloodstream.

{5} Police found Victim’s body in the living room but were unable to revive her. Near
Victim’s body, police discovered and photographed two items with blood on them: a
bent broomstick and a knife with brass knuckles for the handle. According to the
autopsy report, Victim had bruises and lacerations on her scalp, face, eyes, neck, chest,
abdomen, arms, and legs; her cause of death was blunt force trauma and strangulation;
her manner of death was homicide.

{6} Prior to trial, Defendant filed a motion to dismiss for the State’s failure to collect
material evidence when law enforcement did not activate their body cameras to record
several interviews with potential witnesses. Following a hearing, the district court denied

1We exercise our discretion to decide this appeal by nonprecedential decision. See Rule 12-405(B)(1)
NMRA.
Defendant’s motion, concluding that the unrecorded interviews were immaterial to
Defendant’s defense.

{7} At trial, Defendant was convicted of first-degree willful and deliberate murder,
tampering with evidence, and interference with communications.2 Defendant was
subsequently sentenced to life imprisonment and timely appealed to this Court. See
Rule 12-102(A)(1) NMRA (requiring “appeals from the district courts in which a
sentence of . . . life imprisonment has been imposed” be taken directly to the New
Mexico Supreme Court).

II. DISCUSSION

A. The Evidence Was Sufficient to Convict Defendant of First-Degree Willful
and Deliberate Murder and Tampering with Evidence

{8} On appeal, we begin by addressing whether there was sufficient evidence to
support Defendant’s convictions for first-degree murder and tampering with evidence.
The evidence is considered sufficient when substantial evidence “support[s] a verdict of
guilt beyond a reasonable doubt with respect to every element essential to a
conviction.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal
quotation marks and citation omitted). The sufficiency of the evidence is measured
against the jury instructions, which are “the law of the case.” State v. Arrendondo, 2012-
NMSC-013, ¶ 18, 278 P.3d 517 (internal quotation marks and citation omitted). When
reviewing for substantial evidence, “we resolve all disputed facts in favor of the [s]tate,
indulge all reasonable inferences in support of the verdict, and disregard all evidence
and inferences to the contrary.” State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532
(internal quotation marks and citation omitted).

1. The State presented sufficient evidence of deliberate intent

{9} Defendant does not contest killing Victim but argues the State did not present
sufficient evidence that Defendant acted with the deliberate intent necessary to convict
him of first-degree willful and deliberate murder and failed to overcome Defendant’s
voluntary intoxication defense.3 The State responds that, even considering Defendant’s
claims of intoxication, the jury was presented “abundant evidence” from which it could
have inferred that Defendant acted with deliberate intent—namely, the prolonged nature
of Defendant’s attack, which occurred in multiple rooms and stopped and started
multiple times; the number and severity of the injuries Defendant inflicted on Victim’s
body; and Defendant’s expressed motivation.

2Defendant does not appeal his conviction for interference with communications.
3Defendant further asserts he lacked the capacity to form deliberate intent because of his trauma from
alleged childhood abuse. However, Defendant fails to cite controlling authority that childhood trauma
supports a diminished capacity defense. The Court therefore assumes no authority exists and thus
refrains from addressing this assertion. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,
676 P.2d 1329 (refraining from considering issues unsupported by cited authority and explaining that “an
appellant must submit argument and authority” to have an issue reviewed on appeal).
{10} First-degree willful and deliberate murder is “the killing of one human being by
another . . . by any kind of willful, deliberate and premeditated killing.” Section 30-2-
1(A)(1). To convict, a jury must find that the defendant killed the victim with “deliberate
intention to take away the life of [the victim].” UJI 14-201 NMRA. The evidence must
show that the killing did not occur as merely an “unconsidered and rash impulse,” but
rather that the defendant “weigh[ed] and consider[ed] the question of killing and his
reasons for and against such a choice.” Id. Deliberate intent may be “inferred from all of
the facts and circumstances of the killing.” Id.

{11} A jury can infer deliberate intent from the prolonged nature of the killing, the
extensiveness of the victim’s injuries, and the defendant’s relationship with the victim.
See State v. Smith, 2016-NMSC-007, ¶ 22, 367 P.3d 420. Here, there was sufficient
evidence of deliberate intent based on the duration of Defendant’s attack which
continued even after Victim was unconscious, the high number of wounds on Victim’s
body, statements made by Defendant during the attack expressing motive, and
Defendant’s efforts to prevent police interference.

{12} Here, the duration of the attack supports a reasonable inference of deliberate
intent. After Victim approached Defendant in his bedroom, Defendant emerged dragging
Victim by her hair into the hallway and then the living room. Victim appeared
unconscious with a bloodied face and did not regain consciousness throughout the
attack. During the assault, Defendant strangled Victim and repeatedly struck Victim in
her face, head, and stomach. Defendant’s grandmother’s efforts to physically stop
Defendant proved futile as Defendant’s violence ultimately killed Victim.

{13} The extensiveness of Victim’s fatal injuries further supports an inference of
deliberate intent. Victim’s injuries included bruising beneath her scalp and on the top of
her skull; numerous overlapping lacerations, bruises, and hemorrhages on her face and
head from blunt force trauma; and additional hemorrhages, burst blood vessels in one
eye, and a broken hyoid collectively caused by strangulation. See State v. Guerra,
2012-NMSC-027, ¶ 29, 284 P.3d 1076 (holding that the defendant’s act of “rendering
the victim unable to defend himself” and then proceeding to “stab[] the victim thirteen
times,” mostly in vital organs, supported the jury’s finding of deliberate intent).

{14} Finally, Defendant’s own statements suggest deliberate intent. Defendant paused
his attack momentarily to tell his grandmother he was hurting Victim because she
spanked him as a child. See State v. Cunningham, 2000-NMSC-009, ¶¶ 28-29, 128
N.M. 711, 998 P.2d 176 (holding that there was sufficient evidence of deliberate intent
when the defendant expressed anger and intent to kill the victim, incapacitated the
victim, and then fatally shot the victim). When Defendant’s grandmother called 911,
Defendant grabbed the phone from her, told dispatch there was “no emergency” but
rather his “grandmother fell” and was “overreacting,” and then continued his attack after
hanging up. See Largo, 2012-NMSC-015, ¶¶ 33-35 (holding that there was sufficient
evidence of deliberate intent because the victim attempted to stop the defendant’s
aggression and pleaded with the defendant during the fatal attack, and shortly
thereafter, the defendant called his boss explaining away his need to miss work). The
facts and circumstances of Defendant’s statements during the attack are sufficient to
support a reasonable juror’s inference that Defendant carefully weighed and considered
the killing and his reasons for and against it.

{15} Defendant contends that evidence of deliberate intent was insufficient because
he lacked the capacity to form the requisite intent due to voluntary intoxication. We
disagree. The jury was instructed to consider “whether or not the defendant was
intoxicated from use of alcohol . . . and if so, what effect this had on the defendant’s
ability to form the deliberate intent to take away the life of another.” See UJI 14-5110
NMRA. Even when evidence shows voluntary intoxication, a reasonable juror can find
that intoxication did not undermine the defendant’s capacity to form deliberate intent.
See State v. Blea, 1984-NMSC-055, ¶¶ 2, 5, 101 N.M. 323, 681 P.2d 1100 (holding that
a reasonable jury could infer deliberation and premeditation despite evidence that
showed the defendant “drank 10 to 20 shots of tequila and 15 to 20 beers” on the day
he shot the victims).

{16} Dr. Kaplan and Dr. Kaufman, who testified on behalf of Defendant, opined that
Defendant lacked the ability to form deliberate intent due to intoxication. Defendant’s
post-arrest blood test showed his blood alcohol content was 0.18. However, evidence of
Defendant’s alcohol consumption need not negate the jury’s finding of deliberate intent
given that “evidence supporting acquittal does not provide a basis for reversal because
the jury is free to reject [the d]efendant’s version of the facts.” State v. Rojo, 1999-
NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

{17} Here, a reasonable juror could have found that Defendant’s voluntary intoxication
did not undermine his capacity to form deliberate intent. The State’s expert opined that
Defendant had the capacity to, and did, form deliberate intent to kill Victim. The 911 call
made by Defendant’s grandmother shows the attack occurred hours after Defendant
drank at the bar. The arresting officer also testified that Defendant appeared calm and
did not show signs of intoxication, such as stumbling or slurring his words, shortly after
the attack. Additionally, when Defendant answered dispatch’s callback during the
attack, his speech was not slurred and, without hesitation, Defendant came up with a
false story and false identifying information.

{18} We hold that substantial evidence supported the jury’s conviction of Defendant
for first-degree willful and deliberate murder.

2. The State presented sufficient evidence of tampering with evidence

{19} Defendant argues that the State failed to prove a “completed” crime of tampering
with evidence because, when police discovered Defendant in the bathroom with the
shower running, he was nude and wet but “still had blood on him.” Defendant does not
dispute the sufficiency of the evidence of his intent to tamper with evidence. The State
responds that a rational juror could have found Defendant accomplished the physical
act of tampering with evidence by washing some of Victim’s blood off his person in the
shower, thereby destroying or changing evidence.
{20} Tampering with evidence requires the state to prove a defendant “destroy[ed],
chang[ed], hid[], plac[ed], or fabricat[ed] . . . physical evidence.” Section 30-22-5(A).
“[I]ntentional conduct which, by its nature, aims to prevent identification of an underlying
offense or to obstruct an investigation is sufficient for [a tampering with evidence]
conviction.” State v. Apodaca, 2025-NMSC-015, ¶ 44, 572 P.3d 913 (first alteration in
original) (internal quotation marks and citation omitted). Successfully destroying even a
portion of the evidence constitutes an act of tampering. State v. McClennen, 2008-
NMCA-130, ¶¶ 9-10, 144 N.M. 878, 192 P.3d 1255, overruled on other grounds by,
State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. To convict, the jury must
also find that the act of tampering was committed “with intent to prevent . . .
apprehension, prosecution or conviction.” Section 30-22-5(A).

{21} In this case, there was sufficient evidence for the jury to infer that Defendant
committed an overt act of tampering with evidence intentionally undertaken to obstruct
investigation or prevent prosecution. First, the jury was presented evidence showing
that officers found Defendant in the bathroom with Victim’s blood on his back and found
Victim’s blood in the running shower. A reasonable juror could find that, by cleaning
Victim’s blood off himself and washing it down the shower drain, Defendant destroyed
evidence of Victim’s DNA and committed an act of tampering. Defendant cites no
authority showing that this Court distinguishes between washing away all, or only some,
of a victim’s blood. And this Court has held that a jury can infer a defendant is guilty of
tampering with evidence when the defendant cleaned up blood at a crime scene. See
Apodaca, 2025-NMSC-015, ¶¶ 43, 46 (affirming a conviction for tampering with
evidence when the defendant cleaned his truck and thereby “destroyed, changed, or hid
blood evidence” (internal quotation marks omitted)). Second, a reasonable juror could
have inferred that Defendant intended to obstruct the police investigation and prevent
conviction when Defendant knew dispatch had been alerted and, immediately after
killing Victim, washed off the blood that directly linked Defendant to Victim’s killing. See
id. ¶¶ 47-48 (holding there was sufficient evidence the defendant intended to disrupt a
police investigation when he cleaned the victim’s blood from the crime scene and “there
c[ould] be no doubt that [he] was aware of the possibility that he would be
investigated”).

{22} For these reasons, we hold that sufficient evidence supported Defendant’s
conviction for tampering with evidence.

B. There Was Not Evidence to Support a Jury Instruction on Voluntary
Manslaughter

{23} Relying on State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, and
State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, Defendant argues he was
entitled to a voluntary manslaughter instruction because there was evidence that he
acted in the heat of passion following sufficient provocation when Victim allegedly woke
Defendant up by verbally confronting him. The State responds that Victim’s verbal
confrontation of Defendant did not constitute sufficient provocation to reduce murder to
voluntary manslaughter.
{24} At trial, defense counsel did not request instructions on voluntary manslaughter,
so we review Defendant’s argument for fundamental error. State v. Benally, 2001-
NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. To review for fundamental error, we
start by determining “whether an error occurred.” State v. Silva, 2008-NMSC-051, ¶ 11,
144 N.M. 815, 192 P.3d 1192. If an error occurred, “we then consider whether the error
was fundamental.” Id. “Fundamental error only applies in exceptional circumstances
when guilt is so doubtful that [allowing the conviction to stand] would shock the judicial
conscience.” Cunningham, 2000-NMSC-009, ¶ 13 (internal quotation marks and citation
omitted). Defendant concedes that “no New Mexico appellate court has yet found that
the failure to instruct on a lesser-included offense constitutes fundamental error.”

{25} Voluntary manslaughter is the “unlawful killing of a human being without malice
. . . committed upon a sudden quarrel or in the heat of passion.” NMSA 1978, § 30-2-
3(A) (1994). “Mere sudden anger or heat of passion will not reduce the killing from
murder to manslaughter”; there must be sufficient provocation. State v. Stills, 1998-
NMSC-009, ¶ 36, 125 N.M. 66, 957 P.2d 51 (internal quotation marks and citation
omitted). Sufficient provocation can be “any action, conduct or circumstances which
arouse anger, rage, fear, sudden resentment, terror or other extreme emotions.” UJI 14-
222 NMRA. “The ‘provocation’ is not sufficient if an ordinary person would have cooled
off before acting.” Id.

{26} Defendant contends there was evidence of provocation because Victim startled
him in bed through a verbal confrontation while he was in an “emotionally fragile” state.
We disagree. “[W]ords alone are not enough to arouse the passions such that murder is
reduced to manslaughter.” State v. Lobato-Rodriguez, 2024-NMSC-014, ¶ 30, 548 P.3d
21 (internal quotation marks and citation omitted). Therefore, the alleged verbal
confrontation when Victim startled Defendant did not establish a factual basis to instruct
the jury on voluntary manslaughter.

{27} Additionally, a reasonable juror could find that an ordinary person would have
cooled off. Even after Defendant rendered Victim unconscious in the bedroom,
Defendant continued with his attack. Defendant moved Victim from the bedroom
through a hallway and into the living room, spoke to his grandmother as she attempted
to pull him away from Victim, and spoke with dispatch twice during the attack. We hold
that the district court did not err by not instructing the jury on voluntary manslaughter.
Because the lack of instructions on voluntary manslaughter did not constitute error, we
need not address whether the high bar has been met for fundamental error.

C. The Evidence Did Not Support an Instruction on Involuntary Manslaughter

{28} Defendant argues that he was entitled to an involuntary manslaughter instruction
because Defendant, knowing he could be aggressive when intoxicated, negligently
consumed alcohol and “became impaired to the point that his subsequent actions
caus[ed Victim’s] death.” Defendant advances this argument pursuant to Franklin, 1967-
NMSC-151, and Boyer, 1985-NMCA-029. The State counters that Defendant’s claim
that he was entitled to an involuntary manslaughter instruction is not legally consistent
with his “concession [in closing argument] that he murdered [Victim].” Because defense
counsel did not request an instruction on involuntary manslaughter, again we review
Defendant’s argument for fundamental error. Benally, 2001-NMSC-033, ¶ 12.

{29} Involuntary manslaughter is “the killing of a human being without malice . . . in
the commission of a lawful act which might produce death . . . without due caution and
circumspection.” State v. Yarborough, 1996-NMSC-068, ¶ 8, 122 N.M. 596, 930 P.2d
131 (internal quotation marks omitted) (quoting Section 30-2-3(B)). The required mens
rea for an involuntary manslaughter conviction includes “recklessness, [by] which a
defendant consciously disregards a substantial and unjustifiable risk that harm will result
from his conduct.” State v. Henley, 2010-NMSC-039, ¶¶ 15-16, 148 N.M. 359, 237 P.3d
103 (internal quotation marks and citation omitted).

{30} The facts of this case do not support a jury instruction on involuntary
manslaughter. Defendant’s intentional acts attacking Victim showed more than mere
recklessness. An intentional attack that specifically targets the victim, such as when a
defendant takes aim at and shoots a victim, “wrongly describes the mens rea
associated with involuntary manslaughter.” State v. Salazar, 1997-NMSC-044, ¶ 57,
123 N.M. 778, 945 P.2d 996. Here, a reasonable juror could find that Defendant
specifically targeted Victim. Despite his grandmother’s attempt to physically stop the
attack, Defendant responded lovingly to his grandmother and remained focused on
attacking Victim.

{31} Because a reasonable juror could find that Defendant’s actions were the result of
intent to harm Victim, not the result of recklessness, we hold that the district court did
not err by not instructing the jury on involuntary manslaughter.

D. Defendant Did Not Establish a Prima Facie Case of Ineffective Assistance
of Counsel

{32} To establish a prima facie case of ineffective assistance of counsel, the
defendant “must show both deficient performance of counsel and prejudice caused by
the deficient performance.” State v. Rivas, 2017-NMSC-022, ¶ 23, 398 P.3d 299. “We
review claims of ineffective assistance de novo.” Id.

{33} When considering whether defense counsel’s performance was deficient, the
Court “must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Lytle v. Jordan, 2001-NMSC-016, ¶ 26,
130 N.M. 198, 22 P.3d 666 (internal quotation marks omitted) (quoting Strickland v.
Washington, 466 U.S. 668, 689 (1984)). “A prima facie case for ineffective assistance of
counsel is not made if there is a plausible, rational strategy or tactic to explain the
counsel’s conduct.” Id. (internal quotation marks and citation omitted).

{34} Relying on Franklin, 1967-NMSC-151, and Boyer, 1985-NMCA-029, Defendant
argues that defense counsel’s performance was deficient because defense counsel
failed to request the jury be instructed on voluntary and involuntary manslaughter.
Defendant contends that the charge of manslaughter more accurately reflects his actual
culpability under the facts. In light of the evidence supporting the jury’s finding on
Defendant’s deliberate intent, as well as the lack of evidence to support voluntary or
involuntary manslaughter instructions, defense counsel’s decision not to request
manslaughter instructions falls within the range of reasonable professional assistance.
Cf. State v. Garcia, 2011-NMSC-003, ¶ 37, 149 N.M. 185, 246 P.3d 1057 (concluding
that the defense counsel had a “legitimate strategy well within the ‘wide range of
reasonable professional assistance’” when deciding not to seek a voluntary intoxication
instruction (citation omitted)).

{35} Because Defendant has not shown counsel’s performance was deficient, we
need not consider prejudice to address his claim. We hold Defendant has not made a
prima facie case of ineffective assistance. Nevertheless, if “facts beyond those in the
record on appeal could establish a legitimate claim of ineffective assistance of counsel,
[the d]efendant may assert it in a habeas corpus proceeding.” State v. Crocco, 2014-
NMSC-016, ¶ 24, 327 P.3d 1068.

E. Plain Error Did Not Result from the Admission of Relevant Evidence

{36} We next address Defendant’s arguments challenging the admissibility of two
types of evidence presented at trial: first, photo and testimonial evidence of items
discovered at the scene, and second, evidence that Defendant had training in MMA,
which he argues was improper character evidence. Because neither admissibility
argument was preserved, we review for plain error, which we apply “sparingly.” State v.
Chavez, 2024-NMSC-023, ¶ 10, 562 P.3d 521 (internal quotation marks and citation
omitted); see also Rule 11-103(E) NMRA. Plain error requires that the admission of
evidence “constituted an injustice that created grave doubts concerning the validity of
the verdict.” State v. Montoya, 2015-NMSC-010, ¶ 46, 345 P.3d 1056 (internal quotation
marks and citation omitted). In making our determination, we “must examine the alleged
errors in the context of the [evidence] as a whole.” Id. (internal quotation marks and
citation omitted).

1. Admission of testimony and photo evidence depicting a bent broomstick
and a brass-knuckle-handled knife did not constitute plain error

{37} Pursuant to Franklin, 1967-NMSC-151, and Boyer, 1985-NMCA-029, Defendant
argues that the admission of photographs depicting a bent broomstick and brass-
knuckle-handled knife was plain error because those items had minimal probative value
since neither was definitively tied to Victim’s death and thus did not establish any
relevant fact. Defendant further argues that introducing those items created a
substantial risk of prejudice outweighing any probative value because the presentation
of photographs of the bloodied broomstick and brass-knuckle-handled knife “risked
evoking visceral reactions from the jury.” The State responds that the evidence was
relevant and that the probative value of those items outweighed any risk of unfair
prejudice because the broomstick and brass-knuckle-handled knife were discovered
near Victim’s body with Victim’s blood on them, and because Victim’s blunt-force trauma
injuries could have been inflicted by those items, which helped prove deliberate intent.
{38} “Evidence is relevant if . . . it has any tendency to make a fact [of consequence]
more or less probable than it would be without the evidence.” Rule 11-401 NMRA
(emphasis added). Evidence need not conclusively prove a proposition to be relevant.
Cf. State v. Soto, 2025-NMSC-051, ¶ 27, ___ P.3d ___ (S-1-SC-39785, June 3, 2025)
(reasoning that, while “evidence of flight need not be interpreted by the fact-finder as
evidence of consciousness of guilt, we have long recognized that such evidence is
relevant because it tends to do so”). The district court may, however, “exclude relevant
evidence if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Rule 11-403 NMRA. “The determination of unfair prejudice is fact sensitive,
and, accordingly, much leeway is given [to] trial judges.” State v. Bailey, 2017-NMSC-
001, ¶ 16, 386 P.3d 1007 (internal quotation marks and citation omitted).

{39} First, testimony and photos of the bent broomstick and brass-knuckle-handled
knife, which were found next to Victim, were admissible as relevant evidence under
Rule 11-401. A reasonable jury can consider the manner in which a victim was killed to
find deliberate intent. State v. Motes, 1994-NMSC-115, ¶¶ 12, 15, 118 N.M. 727, 885
P.2d 648. Because the manner in which Defendant killed Victim was a fact of
consequence relevant to Defendant’s intent, and because testimony explained that
Defendant could have inflicted Victim’s blunt-force trauma injuries with the bent
broomstick and brass-knuckle-handled knife, that evidence tended to make it more
probable that Defendant had deliberate intent to kill Victim. Evidence of the bloodied
broomstick and brass-knuckle-handled knife was therefore relevant, and “[r]elevant
evidence is probative evidence.” Chavez, 2024-NMSC-023, ¶ 20.

{40} Second, the probative value of the bent broomstick and brass-knuckle-handled
knife outweighed any unfair prejudice and therefore did not warrant exclusion under
Rule 11-403. When deciding whether the prejudicial effect of evidence outweighs its
probative value, we consider that the “purpose of Rule 11-403 is not to guard against
any prejudice whatsoever, but only against the danger of unfair prejudice.” See State v.
Otto, 2007-NMSC-012, ¶ 16, 141 N.M. 443, 157 P.3d 8 (brackets, internal quotation
marks, and citation omitted). The danger of unfair prejudice “refers to evidence that
tends to suggest decision on an improper basis.” State v. Anderson, 1994-NMSC-089, ¶
63, 118 N.M. 284, 881 P.2d 29. Because Defendant’s defense to first-degree willful and
deliberate murder was the lack of deliberate intent and because the State’s deliberate
intent argument relied, in part, on the manner of Victim’s killing, we conclude that any
prejudicial effect of the bent broomstick and brass-knuckle-handled knife was not unfair,
nor enough to outweigh their probative value.

{41} The evidence did not unfairly prejudice the jury into deciding deliberate intent on
an improper basis. We conclude that the admission of this evidence did not constitute
error, much less plain error.

2. Admission of testimony that Defendant participated in MMA did not
constitute plain error

{42} Again, citing Franklin, 1967-NMSC-151, and Boyer, 1985-NMCA-029, Defendant
argues that the district court abused its discretion in admitting character evidence
regarding Defendant’s participation in MMA. Because the admissibility of Defendant’s
MMA training was not preserved, we review for plain error. Chavez, 2024-NMSC-023, ¶
10. When reviewing whether the high bar of plain error has been met, we “focus . . . on
the fairness of the trial.” Id. ¶ 11. We reverse for plain error only where we determine
that the error affected a “substantial right,” such as when improperly admitted evidence
impacted the defendant’s right to a fair trial by “significantly affect[ing] the verdict.” Id. ¶
36.

{43} “Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance
with the character.” Rule 11-404(B)(1) NMRA. However, character evidence may be
admitted “for another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” Rule 11-404(B)(2).

{44} Here, the State argues that the testimony about Defendant’s MMA training was
relevant to show Defendant had “knowledge of how to inflict harm with his bare hands,”
which is how Defendant attacked Victim in this case. We do not need to address
whether the MMA evidence was inadmissible. Even assuming that testimony about
Defendant’s MMA participation was inadmissible character evidence, we hold that its
admission does not meet the high bar of plain error.

{45} Defendant argues that the State improperly relied on inadmissible character
evidence to portray Defendant as “trained to fight, prone to aggression and inevitably
violent.” At trial, the State elicited testimony from Defendant’s grandmother about
Defendant’s MMA participation, and in closing arguments, the State relied on those
statements to make inferences by asserting that “anyone who has ever seen an MMA
fight knows” that when an MMA fighter “gets somebody down, they hammer fist—they
try to knock that person out.” However, “a determination of whether reversal is
warranted on the ground of plain error ultimately requires an examination of the alleged
errors in the context of the testimony as a whole.” State v. Muller, 2022-NMCA-024, ¶
43, 508 P.3d 960 (internal quotation marks and citation omitted). Defendant fails to
develop an argument explaining how admission of the MMA evidence rises to the level
of plain error, particularly when considered in light of the State’s other evidence of
deliberate intent. See State v. Flores, 2015-NMCA-002, ¶ 17, 340 P.3d 622 (stating “it is
the responsibility of the parties to set forth their developed arguments, it is not the
[C]ourt’s responsibility to presume what they may have intended”). Defendant’s guilt is
supported by more than sufficient uncontested evidence showing that Defendant
committed the killing and did so with deliberate intent. Focusing on whether the
admission of testimony about Defendant’s MMA participation impacted the fairness of
the trial resulting in plain error, we hold it did not.

F. The Court Did Not Abuse Its Discretion When It Did Not Sanction the State
for the Officers’ Failure to Record Witness Interviews

{46} Defendant appeals the district court’s ruling not to sanction the State for the
officers’ failure to turn on their body cameras to record several interviews with potential
witnesses as Defendant asserts they were required to do under NMSA 1978, Section
29-1-18 (2020, amended 2023). Defendant raises this argument under Franklin, 1967-
NMSC-151, and Boyer, 1985-NMCA-029.

1. Section 29-1-18 (2020) does not apply to criminal cases

{47} Defendant argues that a jury instruction on spoliation of evidence was
appropriate under Section 29-1-18 (2020). He asserts that Section 29-1-18 (2020) has
force in criminal proceedings because “[t]he Legislature embedded a mandatory
evidentiary presumption of bad faith into [subsection B of the] statute[, which] govern[s]
police conduct in criminal investigations.” The State responds that Section 29-1-18(B)
(2020) is inapposite because it only “created a civil enforcement mechanism in the form
of tort remedies” and does not impact criminal cases. We agree with the State.

{48} Under Section 29-1-18(A)(1) (2020), law enforcement agencies must require
their officers to wear and activate body cameras “at the initiation of any . . . investigative
encounter.” Law enforcement who fail to comply with policies and procedures that
govern body camera activation “shall be presumed to have acted in bad faith and shall
be deemed liable for the independent tort of negligent spoliation of evidence or the
independent tort of intentional spoliation of evidence.” Section 29-1-18(B) (2020).

{49} The only remedies provided in Section 29-1-18(B) (2020) are civil tort remedies,
which are unavailable in criminal cases. Accordingly, the bad faith presumption in
Section 29-1-18 (2020) does not apply in this criminal case and the remedies it provides
are unavailable here.

2. The district court did not err by not imposing sanctions when the
unrecorded witness statements were immaterial to Defendant’s defense

{50} Defendant last argues that reversal is necessary because the district court
abused its discretion by not imposing sanctions to remedy the State’s failure to collect
evidence material to Defendant’s voluntary intoxication defense. The State responds
that the district court did not abuse its discretion by not imposing sanctions because the
interviews officers failed to record on their body cameras were immaterial and therefore
not adverse to Defendant’s defense.

{51} The district court correctly relied on State v. Ware, 1994-NMSC-091, 118 N.M.
319, 881 P.2d 679, to analyze whether sanctions were appropriate. The Ware test has
two steps. “First, the district court must determine as a matter of law whether the
evidence that the state failed to gather . . . is material to the defendant’s defense, as
opposed to being extraneous or duplicative of other evidence.” State v. Torrez, 2013-
NMSC-034, ¶ 27, 305 P.3d 944 (citing Ware, 1994-NMSC-091, ¶ 25). Second, if
materiality exists, the court then considers whether to impose sanctions based on
whether the failure to collect the evidence was “merely negligent, an oversight, or done
in good faith,” or “done in bad faith, in an attempt to prejudice the defendant’s case.”
Ware, 1994-NMSC-091, ¶ 26. Where law enforcement was “grossly negligent in failing
to gather the evidence[,] . . . the trial court may instruct the jury that it can infer that the
material evidence not gathered from the crime scene would be unfavorable to the
[s]tate.” Id. We review the court’s decision of whether to impose sanctions for an abuse
of discretion. Torrez, 2013-NMSC-034, ¶ 29.

{52} “Evidence is material only if there is a reasonable probability that, had the
evidence been available to the defense, the result of the proceeding would have been
different.” Id. ¶ 27 (brackets, internal quotation marks, and citation omitted). If the
evidence is immaterial, it is not appropriate to sanction the state when law enforcement
fails to gather evidence. Id. The court does not consider the second step of the Ware
test unless it “first concludes that the evidence is material to the defendant’s defense.”
Id. ¶ 28. Here, the officers’ failure to record interviews with potential witnesses was not
material. Therefore, the first step of the Ware test is dispositive.

{53} Defendant argues that the unrecorded witness interviews were material to his
voluntary intoxication defense because they included statements about Defendant’s
observed behavior leading up to the murder. He emphasizes that individuals involved in
those interactions were named on the State’s witness list which suggests their
statements were material. However, the district court found that Defendant relied on
speculation to support these claims. We agree. The witness statements about
Defendant’s intoxication at the bar were duplicative of the police reports written by
officers who conducted those interviews and who reviewed security camera recordings
of Defendant at the bar. Defendant’s counsel could have interviewed those witnesses,
too, and seemingly did not. Additionally, several hours passed between Defendant
drinking at the bar and attacking Victim. Defendant left the bar shortly before 9:00 p.m.,
Victim arrived at the house two and half hours later, and the first 911 call was placed
another hour after that.

{54} The district court did not err in concluding that the unrecorded statements were
immaterial to Defendant’s defense. Having established the evidence was not material,
we need not reach the second step of the Ware test to affirm the district court’s decision
not to impose sanctions.

III. CONCLUSION

{55} For the reasons above, we affirm Defendant’s convictions.

{56} IT IS SO ORDERED.

BRIANA H. ZAMORA, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice
JULIE J. VARGAS, Justice