State v. Telles
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: ________________ 3 Filing Date: March 20, 2019 4 NO. A-1-CA-34617 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 LEONARD TELLES, 9 Defendant-Appellant. 10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 11 Fernando R. Macias, District Judge 12 13 14 15 Hector H. Balderas, Attorney General Santa Fe, NM Walter M. Hart, III, Assistant Attorney General Albuquerque, NM 16 for Appellee 17 Robert E. Tangora, L.L.C. 18 Robert E. Tangora 19 Santa Fe, NM 20 for Appellant OPINION 1 HANISEE, Judge. 2 {1} A jury convicted Defendant Leonard Telles of second degree murder, 3 kidnapping, attempted tampering with evidence, and two counts of tampering with 4 evidence. On appeal, Defendant argues that (1) his right to a public trial was 5 violated; (2) his convictions for kidnapping, attempted tampering with evidence, 6 and tampering with evidence are not supported by sufficient evidence; and (3) his 7 convictions for kidnapping and attempted tampering with evidence violate double 8 jeopardy. Defendant also seeks reversal of his convictions based upon cumulative 9 error. Unpersuaded, we affirm. 10 BACKGROUND 11 {2} Defendant beat Jerome Saiz (Victim) to death with a baseball bat. At trial, 12 Defendant testified that he was at Victim’s house, assisting Rebecca Gomez, 13 Victim’s ex-girlfriend, with packing so she could move out. At some point after 14 Defendant and Ms. Gomez finished packing, Ms. Gomez’s two young daughters 15 alerted them that Victim had arrived. Defendant went into the living room where 16 Victim and Ms. Gomez were arguing. Defendant testified that Victim was holding 17 a baseball bat, seemed “high,” and threatened Defendant. Defendant said that 18 Victim “rushed” him, but that he fought Victim off and was able to take the bat 19 away from Victim while Victim was making a phone call. Defendant testified that 1 he warned Victim to stay away, but Victim came at him again, so he used the bat to 2 defend himself. 3 {3} After the altercation, and seeing Victim lying on the ground unresponsive, 4 Defendant believed Victim to be dead. Defendant told Ms. Gomez that they needed 5 to leave Victim’s house. Defendant covered Victim with a blanket and stashed the 6 bat behind the washing machine. He then dragged Victim to a back bedroom, 7 rolled him up in a carpet, and shut the door. Defendant next mopped the blood 8 from the living room floor. He testified that he took these actions, not to prevent 9 the police from finding Victim’s body or to conceal evidence, but to prevent Ms. 10 Gomez’s two daughters from seeing the body or the blood and getting upset. 11 {4} Defendant testified that he believed Victim was dead when he dragged him 12 to the back bedroom, but that when he heard police knocking at the door, he 13 “panicked” and began pacing throughout the house. He went to check on Victim, 14 heard Victim making loud snoring noises, and decided to inform the officers that 15 Victim was “knock[ed] . . . out.” Defendant also told the officers two things that he 16 admitted at trial were false: first, that Victim had broken into the home—which 17 Defendant misrepresented to the officers as belonging to Ms. Gomez—in the 18 middle of the night; and second, that upon entry, Victim had attacked Ms. Gomez. 19 {5} At trial, the State took the position that Defendant had not acted in self- 20 defense, but instead had killed Victim willfully and deliberately by repeatedly 2 1 striking him with the baseball bat. It was also the State’s theory that Defendant 2 kidnapped Victim by rolling him up in the carpet so that if Victim regained 3 consciousness, he would not be able to move or call for help. The State argued that 4 Defendant’s efforts to mop up the blood in the living room and stash the bat behind 5 the washing machine supported two counts of tampering with evidence. The State 6 additionally argued that, by moving Victim to the back bedroom and rolling him 7 up in a carpet, Defendant was trying to hide evidence of his crimes from the police, 8 thereby attempting to tamper with evidence. 9 {6} The jury convicted Defendant on all counts,1 and Defendant was sentenced 10 to fifteen years’ incarceration for second degree murder with two years of parole; 11 eighteen years’ incarceration for kidnapping followed by two years of parole; 12 eighteen months’ incarceration for attempted tampering with evidence followed by 13 one year of parole; and three years’ incarceration followed by two years of parole 14 for each of the tampering with evidence convictions. The district court ordered 15 Defendant to serve the sentences for murder, kidnapping, attempted tampering, and 16 one of the tampering charges consecutively, but ordered the second tampering with 17 evidence charge to be served concurrent with the sentence for second degree 1 Defendant was charged with first degree murder, but the jury was instructed on second degree murder, voluntary manslaughter, and involuntary manslaughter as well. The jury found Defendant guilty of second degree murder. 3 1 murder. We provide additional facts as needed to address Defendant’s claims on 2 appeal. 3 DISCUSSION 4 I. Defendant’s Right to a Public Trial Was Not Violated 5 Upon completion of a three-day jury trial, defense counsel learned that the {7} 6 courtroom had been closed to several members of the public, including, it appears, 7 three members of Defendant’s family, for a ten to fifteen minute period during 8 closing arguments. The closure occurred, unbeknownst to the district court and the 9 parties, when a court security officer barred entry to the would-be spectators in 10 response to a “Do Not Enter” sign that, for reasons unknown had been affixed to 11 the courtroom door. Defendant filed a post-verdict motion for a new trial, arguing 12 that the closure was of constitutional dimension, and the district court held a 13 hearing to determine the causes and circumstances of the temporary courtroom 14 closure. The upshot of the hearing was two-fold: the district court neither ordered 15 nor was aware of the closure, and no one could say with certainty who posted the 16 closure sign or why. The hearing testimony showed that the bailiff, upon learning 17 of the situation as it unfolded, immediately directed that all members of the public 18 be permitted entry. Despite the exclusion of a few, the courtroom was otherwise 19 full of spectators, including members of the media, who had entered before the 20 brief and inadvertent closure. The district court denied Defendant’s motion, 4 1 emphasizing the limited nature—both in time and scope—of the courtroom 2 closure. 3 {8} Defendant argues that the period of minutes during which the courtroom was 4 closed violated his right to a public trial under the Federal and New Mexico 5 Constitutions. We review de novo whether a defendant’s constitutional rights have 6 been violated. State v. Turrietta, 2013-NMSC-036, ¶ 14, 308 P.3d 964. 7 {9} The Federal Constitution provides that “[i]n all criminal prosecutions, the 8 accused shall enjoy the right to a speedy and public trial[.]” U.S. Const. amend. VI. 9 The New Mexico Constitution similarly provides that an accused shall have “a 10 speedy public trial by an impartial jury of the county or district in which the 11 offense is alleged to have been committed.” N.M. Const. art. II, § 14. The values 12 protected by the Sixth Amendment right to a public trial are to ensure a fair trial, 13 remind the prosecutor and judge of their responsibility to the accused and the 14 importance of their functions, encourage witnesses to come forward, and 15 discourage perjury. See Waller v. Georgia, 467 U.S. 39, 46 (1984). “The right to a 16 public trial is not absolute and may give way in certain cases to other rights or 17 interests, such as the defendant’s right to a fair trial or the government’s interest in 18 inhibiting disclosure of sensitive information.” Turrietta, 2013-NMSC-036, ¶ 15 19 (internal quotation marks and citation omitted). “A total courtroom closure is 20 allowed when there is ‘an overriding interest based on findings that closure is 5 1 essential to preserve higher values and is narrowly tailored to serve that interest.’ ” 2 Id. ¶ 17 (quoting Waller, 467 U.S. at 45). To determine whether there is an 3 “overriding interest” sufficient to justify a courtroom closure, the district court 4 must adhere to the following standard: “[1] the party seeking to close the hearing 5 must advance an overriding interest that is likely to be prejudiced, [2] the closure 6 must be no broader than necessary to protect that interest, [3] the district court 7 must consider reasonable alternatives to closing the proceeding, and [4] it must 8 make findings adequate to support the closure.” Id. (alterations in original) 9 (quoting Waller, 467 U.S. at 48). 10 {10} Defendant contends that because the courtroom closure at issue did not meet 11 the “overriding interest” standard, it was unconstitutional. See id. But Defendant’s 12 application of Turrietta to the facts at hand is misplaced. In that case our Supreme 13 Court applied the “overriding interest” standard in the specific context of a 14 courtroom closure sought by the State and ordered over a defense objection. See id. 15 ¶¶ 5-6. In this case, the district court had no knowledge of, much less any role in, 16 the closure, and there was no defense objection to the closure, which came and 17 went without notice by the district court or the parties. 18 {11} New Mexico jurisprudence has yet to address this precise situation. The 19 State urges us to follow federal case law, which has consistently declined to find a 20 violation of a defendant’s constitutional right to a public trial where, as is the case 6 1 here, the closure is fairly characterized as “trivial.” We agree, persuaded as we are 2 by the reasoning of the federal cases cited by the State. 3 {12} In Peterson v. Williams, 85 F.3d 39, 41-42 (2d Cir. 1996), the district court 4 properly closed a courtroom during the testimony of an undercover officer, but 5 inadvertently left it closed for an additional fifteen to twenty minutes during the 6 defendant’s ensuing testimony. The defendant argued that this inadvertent closure 7 violated his right to a public trial. Id. at 41. The Second Circuit disagreed, holding 8 that the closure did not violate the values protected by the right to a public trial 9 because the closure was short and inadvertent and because the relevant portions of 10 the defendant’s testimony, which some members of the public may have been 11 prevented from hearing, were repeated by defense counsel in summation. Id. at 4312 44. In other words, the closure was too trivial to violate the Sixth Amendment. Id. 13 at 44; see also Carson v. Fischer, 421 F.3d 83, 92-95 (2d Cir. 2005) (holding that 14 the intentional exclusion of the defendant’s ex-mother-in-law from the courtroom 15 during testimony of a confidential informant was too trivial to implicate the Sixth 16 Amendment); United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir. 1994) 17 (holding that the defendant was not denied a public trial where the courthouse 18 closed at its usual time, 4:30 p.m., the trial continued for no more than twenty 19 minutes, and only defense counsel’s wife and child were prevented from entering); 20 Snyder v. Coiner, 365 F. Supp. 321, 323-24 (N.D.W. Va. 1973) (mem. order) 7 1 (holding that the accidental closure of the courtroom during summation did not 2 amount to denial of a public trial where the closure was relatively short and it was 3 unclear whether any spectators were in the courtroom during the closure), aff’d on 4 other grounds, 510 F.2d 224 (4th Cir. 1975). 5 {13} Defendant cites no authority to support the position he advances: that any 6 wrongful courtroom closure, no matter how trivial or de minimus, violates a 7 defendant’s right to a public trial. Nor are we aware of any such authority. Indeed, 8 as the Washington Supreme Court recently observed in analogous circumstances, 9 “[T]here is no jurisdiction we are aware of that has adopted a rule completely 10 rejecting the doctrine of de minimis closures.” State v. Schierman, 415 P.3d 106, 11 126 (Wash. 2018). 12 {14} We agree with the uniform line of authority holding that a courtroom closure 13 that is determined to be trivial does not meaningfully infringe upon the values 14 protected by the right to a public trial. See Peterson, 85 F.3d at 43 (considering the 15 impact of the closure vis-à-vis the “the values furthered by the public trial 16 guarantee”); see also Weaver v. Massachusetts, ___ U.S. ___, ___, 137 S. Ct. 17 1899, 1909 (2017) (recognizing that “not every public-trial violation results in 18 fundamental unfairness”). Such is the circumstance in this case. First, we can only 19 characterize what occurred in this case as a “closure” in the most technical sense of 20 the term, considering that, as Defendant now readily acknowledges, “the 8 1 courtroom was full of spectators and the media” during the isolated portion of the 2 proceedings—a period of no more than fifteen minutes during closing arguments— 3 around which Defendant’s constitutional argument centers. It was, at most, a brief, 4 inadvertent, partial closure, one promptly remedied by the bailiff as soon as the 5 problem was reported. Defendant offers no explanation, and none readily comes to 6 mind, as to how such a limited closure deprived him of a fair trial. See United 7 States v. Scott, 564 F.3d 34, 38 (1st Cir. 2009) (concluding that, despite the trial 8 court’s directive barring spectators from entering or leaving the courtroom during 9 the jury charge, no closure occurred because “the public was indeed present at the 10 jury charge and with its presence cast the sharp light of public scrutiny on the trial 11 proceedings, thus providing the defendant with the protections anticipated by the 12 public trial provision of the Constitution”). Second, as was true of all the trial’s 13 participants, the judge and prosecutor were not aware of the occurrence of the 14 courtroom closure, a circumstance which alleviates any concern that the closure 15 somehow diminished their “sense of . . . responsibility [to the accused] and . . . the 16 importance of their functions[.]” Waller, 467 U.S. at 46 (internal quotation marks 17 and citation omitted). Lastly, the closure occurred following the evidentiary stage 18 of the trial during closing statements, at a time when respective counsel were 19 summarizing and commenting on the evidence presented during proceedings that 20 undisputedly had been open to the public. As such, the Waller goals of 9 1 encouraging witnesses to come forward and discouraging perjury are not remotely 2 implicated by the closure here involved. We therefore hold that the brief, 3 inadvertent closure of the courtroom during closing argument was trivial and did 4 not violate Defendant’s right to a public trial. 5 II. 6 7 Defendant’s Challenges to the Sufficiency of the Evidence Supporting His Convictions for Kidnapping, Tampering With Evidence and Attempted Tampering With Evidence Fail 8 Defendant argues, in perfunctory fashion, that there was insufficient {15} 9 evidence to support his convictions for kidnapping, the two tampering with 10 evidence counts, and attempted tampering with evidence. We begin by cautioning 11 Defendant’s appellate counsel that the presentation of these issues is woefully 12 inadequate and undeveloped, spanning less than a single page for each contention 13 and offering scant legal or factual analysis. See Rule 12-318(A)(4) NMRA 14 (requiring citations to applicable New Mexico decisions); State v. Guerra, 201215 NMSC-014, ¶ 21, 278 P.3d 1031 (observing that the appellate courts are under no 16 obligation to consider undeveloped or unclear arguments); State v. Clifford, 199417 NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 (reminding counsel that the 18 appellate courts are not required to do their research); State v. Vigil-Giron, 201419 NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts will not consider an issue if 20 no authority is cited in support of the issue and that, given no cited authority, we 21 assume no such authority exists[.]”); Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 10 1 N.M. 451, 200 P.3d 104 (“We will not search the record for facts, arguments, and 2 rulings in order to support generalized arguments.”). Consequently, and to the 3 extent feasible given the cryptic nature of Defendant’s arguments, we briefly 4 address the evidence supporting Defendant’s four convictions. Further, where 5 possible, we rely on the counterarguments advanced by the State in its answer brief 6 to better understand the vague sufficiency challenges raised by Defendant. 7 {16} “The test for sufficiency of the evidence is whether substantial evidence of 8 either a direct or circumstantial nature exists to support a verdict of guilty beyond a 9 reasonable doubt with respect to every element essential to a conviction.” State v. 10 Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and 11 citation omitted). The reviewing court “view[s] the evidence in the light most 12 favorable to the guilty verdict, indulging all reasonable inferences and resolving all 13 conflicts in the evidence in favor of the verdict.” State v. Cunningham, 200014 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and 15 inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 16 126 N.M. 438, 971 P.2d 829. 17 A. Kidnapping 18 As explained by the State in its response to Defendant’s cursory challenge to {17} 19 the sufficiency of the evidence supporting his conviction for kidnapping, the 20 State’s case at trial rested on alternative theories regarding how Defendant’s act of 11 1 moving Victim’s moribund body to the back bedroom and rolling him up in the 2 carpet constituted kidnapping under NMSA 1978, Section 30-4-1 (2003). First, the 3 State argued that Victim was “kidnapped” based on being “held to service,” i.e., 4 prevented from trying to assist himself or reporting the crime to police, in violation 5 of Section 30-4-1(A)(3). See id. (providing that “[k]idnapping is the unlawful 6 taking, restraining, transporting or confining of a person, by force, intimidation or 7 deception, with intent . . . that the victim be held to service against the victim’s 8 will”); State v. Vernon, 1993-NMSC-070, ¶ 13, 116 N.M. 737, 867 P.2d 407 9 (explaining that to “hold to service” means that the victim must “be held against 10 his or her will to perform some act, or to forego performance of some act, for the 11 benefit of someone or something” (internal quotation marks omitted)), superseded 12 by statute as stated in State v. Baca, 1995-NMSC-045, ¶ 41, 120 N.M. 383, 902 13 P.2d 65. Alternatively, the State argued that Defendant’s conduct in moving and 14 wrapping Victim’s body was actuated by an intent to inflict death or physical 15 injury on Victim, thus constituting kidnapping under Section 30-4-1(A)(4). See id. 16 (providing that “[k]idnapping is the unlawful taking, restraining, transporting or 17 confining of a person, by force, intimidation or deception, with intent . . . to inflict 18 death, physical injury or a sexual offense on the victim”). Consistent with the 19 State’s alternative theories, the jury was instructed that, to convict Defendant of 20 kidnapping it had to find that: 12 1 2 1. [D]efendant took or restrained or confined or transported [Victim] by force or intimidation; 3 2. [D]efendant intended to hold [Victim] against [Victim’s] will: 4 [(a)] to inflict death or physical injury on [Victim] 5 OR 6 7 3. [(b)] for the purpose of making [V]ictim do something[,] or for the purpose of keeping [V]ictim from doing something; 8 9 This happened in New Mexico on or about the 20th day of November, 2013. 10 {18} Thus, Defendant’s vague challenge to the sufficiency of the evidence 11 supporting his kidnapping conviction appears to boil down to a claim that “[n]o 12 service was performed” and that Defendant “committed the murder and then 13 moved [Victim]” in order “to hide the body from Ms. Gomez’s children.” Citing 14 only to Vernon, 1993-NMSC-070, ¶ 13, Defendant argues that his conviction for 15 kidnapping was unsupported by substantial evidence because his act of moving 16 Victim to the back bedroom and rolling him up in the carpet was merely an 17 incidental restraint to the homicide, and thus could not have satisfied the “held to 18 service” element of kidnapping. The State responds that Vernon is factually 19 distinguishable from the instant case because the act of asportation that formed the 20 basis for the insufficiently proven kidnapping charge in Vernon preceded and was 21 incidental to the ensuing homicide, see id. ¶ 6, whereas here, the acts giving rise to 22 the kidnapping charge followed and were “separate and distinct” from Defendant’s 13 1 infliction of the injuries that led to Victim’s death. Given the parties’ substantive 2 disagreement as to the applicability of Vernon to the kidnapping statute, we 3 address the current state of the law regarding both. 4 {19} Assuming, arguendo, that the State failed to prove that Victim was “held to 5 service” within the meaning of that term as interpreted in Vernon, Defendant’s 6 argument fails to appreciate that Vernon was superseded by the Legislature’s 7 amendment to the kidnapping statute in 1995, which added the taking of a person 8 “with intent to inflict death, physical injury, or a sexual offense” as an alternative 9 means of committing kidnapping. Compare NMSA 1978, § 30-4-1(A)(1)-(3) 10 (1994), with NMSA 1978, § 30-4-1(A)(1)-(4) (1995); see Baca, 1995-NMSC-045, 11 ¶ 41 (noting that the Legislature amended the statute to include taking a person to 12 facilitate the killing of that person after our Supreme Court decided Vernon). Thus, 13 under the post-1995 and current version of the kidnapping statute, a defendant can 14 be found guilty for taking someone against his or her will to hold that person, inter 15 alia, “to service” or “to inflict death, physical injury or a sexual offense on [that 16 person].” Section 30-4-1(A)(3), (4). Defendant’s argument under Vernon that his 17 “incidental movement” of Victim was not sufficient to satisfy the “held to service” 18 element of the kidnapping statute misapprehends the separate and distinct avenues 19 of criminal liability available to and pursued herein by the State. 14 1 {20} Having misunderstood the scope of the current, post-Vernon iteration of the 2 kidnapping statute and its separate avenues of liability, Defendant fails to address 3 whether sufficient evidence supported the State’s alternative theory of kidnapping 4 based on evidence that Defendant intended to inflict death or physical injury on 5 Victim by moving him to the back room and rolling him up in the carpet. This 6 omission is also fatal to Defendant’s challenge to the sufficiency of his kidnapping 7 conviction. See State v. Duttle, 2017-NMCA-001, ¶ 33, 387 P.3d 885 (explaining 8 that a “general verdict will not be disturbed if there is substantial evidence in the 9 record to support at least one of the theories of the crime presented to the jury”); 10 see also Rule 12-318(A)(4) (providing that a finding that is not attacked “shall be 11 deemed conclusive” and that “[a] contention that a verdict . . . or finding of fact is 12 not supported by substantial evidence shall be deemed waived unless the argument 13 identifies with particularity the fact or facts that are not supported by substantial 14 evidence”). Because Defendant has failed to demonstrate any error relating to his 15 kidnapping conviction, we affirm that conviction. See State v. Aragon, 199916 NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (noting that “it is [the appellant’s] 17 burden on appeal to demonstrate any claimed error below”). 18 B. Tampering With Evidence 19 Defendant challenges his convictions for tampering with evidence as being {21} 20 unsupported by substantial evidence. “Tampering with evidence consists of 15 1 destroying, changing, hiding, placing or fabricating any physical evidence with 2 intent to prevent the apprehension, prosecution or conviction of any person or to 3 throw suspicion of the commission of a crime upon another.” NMSA 1978, § 304 22-5(A) (2003). Intent to tamper with evidence can be inferred from circumstantial 5 evidence. See State v. Schwartz, 2014-NMCA-066, ¶ 36, 327 P.3d 1108 (stating 6 that the jury could infer the defendant’s intent to tamper with evidence from 7 evidence, inter alia, that the defendant owned a blue air mattress and sheets and 8 that the victim’s body was found in a nearby alley wrapped in a blue air mattress 9 and sheets); see also State v. Brenn, 2005-NMCA-121, ¶ 24, 138 N.M. 451, 121 10 P.3d 1050 (recognizing that “[i]ntent is usually established by circumstantial 11 evidence[,]” which can take the form of evidence of a defendant’s own actions and 12 prior inconsistent statements). The jury is free to disregard a defendant’s testimony 13 if it finds that the defendant is not credible. See State v. Cabezuela, 2011-NMSC14 041, ¶ 45, 150 N.M. 654, 265 P.3d 705 (stating that jurors may “reject [the 15 d]efendant’s version of the facts” (internal quotation marks and citation omitted)). 16 {22} The two counts for which Defendant was convicted were premised on his 17 actions of (1) mopping up Victim’s blood, and (2) hiding the baseball bat behind 18 the washing machine.1 At trial, Defendant did not dispute that he mopped up the 1 Defendant’s brief states that the State “failed to present sufficient evidence of three counts of tampering with evidence.” We believe this was a clerical error 16 1 blood or hid the bat but testified that he did so only to prevent Ms. Gomez’s 2 children from seeing and becoming upset by the blood. 3 {23} On appeal, Defendant does nothing more than refer to this testimony to 4 support his argument that the tampering convictions are unsupported by substantial 5 evidence. However, not only was the jury free to reject Defendant’s self-serving 6 account of his motives, see id., but it could also have inferred the requisite intent to 7 support Defendant’s tampering convictions from the evidence presented. 8 Specifically, the jury could have found that Defendant was not credible based on 9 the inconsistencies in his testimony regarding the frequency, sequence, and 10 location of the blows he inflicted upon Victim during the attack, as well as the 11 conflicts between his trial testimony and his statements to police at the scene. 12 Further, there was sufficient evidence for the jury to infer that Defendant intended 13 to hide evidence from the police, including the State’s showing that he failed to 14 call 911 when he initially thought he had killed Victim, that he did not attempt to 15 remove the children from the house in lieu of disturbing the scene, and that he did 16 not promptly allow officers into the house upon their arrival. Finally, Defendant 17 admitted on cross-examination that his acts of hiding the bat and mopping the floor 18 would make it harder for the police to find the incriminating evidence. We, 19 therefore, affirm Defendant’s convictions for tampering with evidence. because Defendant was only charged with and convicted of two counts of tampering with evidence. 17 1 C. Attempted Tampering With Evidence 2 Defendant asserts that his conviction for attempted tampering with {24} 3 evidence—premised upon Defendant’s act of “wrapping [Victim] in a blanket and 4 carpet and moving [Victim] from the living room to a back bedroom”—was not 5 supported by sufficient evidence because, by moving Victim’s body, he actually 6 completed the crime of tampering with evidence. Other than the definitional 7 language of NMSA 1978, Section 30-28-1 (1963), defining an “[a]ttempt to 8 commit a felony” as “tending but failing to effect its commission[,]” Defendant 9 cites no authority, identifies no particularized facts, and develops no argument as 10 to why his conduct in moving Victim’s body from one room to another should 11 serve to immunize him from attempt liability. Notable for its absence is any 12 attempt by Defendant to refute the State’s trial position that Defendant’s conduct 13 was directed not solely at moving Victim, but rather toward an unsuccessful effort 14 to prevent police from discovering Victim. Under these circumstances, we deem 15 Defendant’s contention on this issue waived. See Rule 12-318(A)(4) (providing 16 that “[a] contention that a verdict . . . is not supported by substantial evidence shall 17 be deemed waived unless the argument identifies with particularity the fact or facts 18 that are not supported by substantial evidence”). We reiterate that because we are 19 under no obligation to review unclear or undeveloped arguments, and because we 18 1 will not consider an issue if no authority is cited in support of the issue, we 2 conclude that Defendant has failed to show that his conviction for attempted 3 tampering with evidence is unsupported by substantial evidence. See Guerra, 4 2012-NMSC-014, ¶ 21 (observing that we need not consider undeveloped or 5 unclear arguments); Vigil-Giron, 2014-NMCA-069, ¶ 60 (stating that when a party 6 cites no authority in support of an argument, we may assume no such authority 7 exists). 8 III. 9 10 {25} Defendant’s Convictions for Attempted Tampering With Evidence and Kidnapping Do Not Violate Double Jeopardy Defendant next argues that his right to be free from double jeopardy was 11 violated by his convictions for attempted tampering with evidence and kidnapping. 12 We review Defendant’s double jeopardy claim de novo. See State v. Andazola, 13 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77. 14 {26} Defendant raises a double description claim, “in which a single act results in 15 multiple charges under different criminal statutes[.]” State v. Bernal, 2006-NMSC16 050, ¶ 7, 140 N.M. 644, 146 P.3d 289. In conducting a double description analysis, 17 we consider the elements of the statutes using the test set forth by the United States 18 Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932), to determine 19 whether each statute at issue “requires proof of a fact which the other does not.” 20 State v. Montoya, 2013-NMSC-020, ¶ 31, 306 P.3d 426 (internal quotation marks 21 and citation omitted). If one statute is subsumed within the other, the statutes are 19 1 the same for double jeopardy purposes and a defendant cannot be punished under 2 both statutes. Id. Our Courts have modified the Blockburger test, noting that “a 3 complete double jeopardy analysis may require looking beyond facial statutory 4 language to the actual legal theory in the particular case by considering such 5 resources as the evidence, the charging documents, and the jury instructions.” Id. ¶ 6 49. 7 {27} Where neither statute subsumes the other, we presume that the Legislature 8 intended separate punishments, but this presumption “may be overcome by other 9 indicia of legislative intent.” State v. Silvas, 2015-NMSC-006, ¶¶ 12-13, 343 P.3d 10 616 (internal quotation marks and citation omitted). In analyzing the legislative 11 intent underlying the statutes, we must consider “the language, history, and subject 12 of the statutes” in order to “identify the particular evil sought to be addressed by 13 each offense.” Id. ¶ 13 (internal quotation marks and citation omitted). “If several 14 statutes are not only usually violated together, but also seem designed to protect 15 the same social interest, the inference becomes strong that the function of the 16 multiple statutes is only to allow alternative means of prosecution.” Montoya, 17 2013-NMSC-020, ¶ 32 (internal quotation marks and citation omitted). Where a 18 statute is vague and unspecific, we must look to the State’s theory of the case in 19 evaluating the legislative intent by reviewing the charging documents and the jury 20 instructions given. See Silvas, 2015-NMSC-006, ¶ 14. 20 1 {28} Here, neither statute subsumes the other. Attempted tampering with evidence 2 requires the accused to take a substantial step toward “destroying, changing, 3 hiding, placing or fabricating any physical evidence with intent to prevent the 4 apprehension, prosecution or conviction of any person or to throw suspicion of the 5 commission of a crime upon another.” Section 30-22-5(A). By contrast, 6 kidnapping, as here relevant, requires that one take, restrain, transport or confine a 7 person “by force, intimidation or deception,” intending to hold the person to 8 service or with the intent to injure or kill him. Section 30-4-1(A)(3), (4); State v. 9 Montoya, 2011-NMCA-074, ¶ 37, 150 N.M. 415, 259 P.3d 820 (noting that the 10 pertinent inquiry for double description purposes is the state’s theory of 11 kidnapping). Plainly, each statute requires proof of a fact (or facts) that the other 12 does not—with tampering with evidence focusing on a defendant’s intent to hide 13 evidence to avoid prosecution, and kidnapping focusing instead on a defendant’s 14 intent in “unlawful[ly] taking, restraining, transporting or confining of a person[.]” 15 Compare § 30-22-5, with § 30-4-1(A)(3), (4). Tampering with evidence, or an 16 attempt to do the same, does not require that a person be held and made to do 17 something, nor does it require the infliction of death or physical harm upon 18 another. See § 30-22-5. Kidnapping does not require that evidence be hidden or 19 altered to prevent a criminal investigation. See § 30-4-1(A)(3), (4). Because neither 20 statute subsumes the other, we proceed to consider whether other indicia of 21 1 legislative intent prohibit Defendant from being punished separately under each 2 statute. See Silvas, 2015-NMSC-006, ¶¶ 12-13. 3 {29} The Legislature clearly intended the statutes here at issue to address distinct 4 social harms. Tampering with evidence is designed to punish individuals who 5 attempt to interfere with the administration of justice by hiding or changing 6 evidence that could be used in a criminal prosecution. See § 30-22-5. The pertinent 7 sections of the kidnapping statute, on the other hand, are intended to prevent 8 individuals from harming others or depriving others of their freedom with the 9 intent to force them to do something against their will. See § 30-4-1(A)(3), (4). Nor 10 is there any basis to conclude that these two crimes are typically committed 11 together. Cf. State v. Almeida, 2008-NMCA-068, ¶ 21, 144 N.M. 235, 185 P.3d 12 1085 (stating that “a charge for possessing a personal supply of a controlled 13 substance will almost always carry the additional charge of possession of drug 14 paraphernalia”). 15 {30} We hold that Defendant’s convictions for attempted tampering with 16 evidence and kidnapping do not violate the prohibition against double jeopardy 17 because neither statute is subsumed within the other, the statutes address distinct 18 social harms, and because there is no indication that the Legislature intended only 19 alternative punishment for conduct that violates both statutes. See Montoya, 201320 NMSC-020, ¶¶ 31-33 (setting forth the inquiry for double description cases). 22 1 D. There Was No Cumulative Error 2 Defendant argues that the violation of his right to a public trial and the {31} 3 violation of his right to be free from double jeopardy, taken together, amount to 4 cumulative error requiring a new trial. Having concluded there was no error, we 5 need not consider this argument. 6 CONCLUSION 7 {32} For the reasons set forth above, we affirm Defendant’s convictions. 8 {33} IT IS SO ORDERED. 9 10 ______________________________ J. MILES HANISEE, Judge 11 WE CONCUR: 12 _________________________________ 13 M. MONICA ZAMORA, Chief Judge 14 _________________________________ 15 KRISTINA BOGARDUS, Judge 23
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