September 3, 2020- State of New Mexico v. London Word, No. A-1-CA-37739

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37739	4
LONDON WORD,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Cristina T. Jaramillo, District Judge	8
Hector H. Balderas, Attorney General	9
Emily Tyson-Jorgenson, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Allison H. Jaramillo, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
MEDINA, JUDGE.	18
{1} 	Defendant London Word appeals his convictions for possession of a deadly	19
weapon by a prisoner, in violation of NMSA 1978, Section 30-22-16 (1986), and	20
tampering with evidence, in violation of NMSA 1978, Section 30-22-5 (2003).	21
Defendant raises three issues on appeal: (1) his convictions violate double jeopardy;	22
Court of Appeals of New Mexico
Filed 9/3/2020 10:01 AM

2
(2) there was insufficient evidence to support his convictions; and (3) the district	1
court abused its discretion in admitting testimony contrary to the best evidence rule.	2
We affirm.	3
BACKGROUND	4
{2} 	During the relevant time period, Defendant occupied a single-person cell at	5
the Metropolitan Detention Center (MDC) in Bernalillo County. On March 25, 2017,	6
correctional officers searched his cell and found a six-inch long metal rod, sharpened	7
on one end with a sticky black substance on one side, inside an air vent. The State	8
charged Defendant with possession of a deadly weapon by a prisoner and tampering	9
with evidence. A jury found Defendant guilty of both crimes.	10
{3} 	During sentencing, defense counsel argued that both convictions were based	11
on unitary conduct and thus double jeopardy required the tampering conviction be	12
vacated. Referring to the jury instructions, the State responded that double jeopardy	13
did not apply because each conviction was based on “two separate and distinct acts.”	14
The district court denied Defendant’s motion explaining that under the jury	15
instructions, the two crimes “require[ed] two separate intents for purposes of	16
completing both actions.” This appeal followed.	17
{4} 	Because this is a memorandum opinion and the parties are familiar with the	18
facts and procedural history of this case, we reserve further discussion of specific	19
facts where necessary to our analysis.	20

3
DISCUSSION	1
Double Jeopardy	2
{5} 	Defendant argues that his convictions for possession of a deadly weapon by a	3
prisoner and tampering with evidence violate double jeopardy because they arise	4
from 	“unitary 	conduct 	for 	which 	the 	[L]egislature 	did 	not 	intend 	separate	5
punishments.” The State counters that assuming Defendant’s conduct was unitary,	6
Defendant’s convictions do not violate double jeopardy because the Legislature	7
intended separate punishments for each offense.	8
{6} 	We review double jeopardy claims de novo. See State v. Swick, 2012-NMSC-	9
018, ¶ 10, 279 P.3d 747 (“A double jeopardy challenge is a constitutional question	10
of law which we review de novo.”). “[D]ouble jeopardy protects against both	11
successive prosecutions and multiple punishments for the same offense.” State v.	12
Contreras, 2007-NMCA-045, ¶ 19, 141 N.M. 434, 156 P.3d 725 (internal quotation	13
marks and citation omitted). Defendant raises the latter type—multiple punishments	14
for the same offense. Multiple punishment cases are classified in one of two ways:	15
“double description cases in which a single act results in multiple charges under	16
different criminal statutes;” and “unit of prosecution cases in which an individual is	17
convicted of multiple violations of the same criminal statute.” State v. Gallegos,	18
2011-NMSC-027, ¶ 31, 149 N.M. 704, 254 P.3d 655 (alteration, internal quotation	19
marks, and citation omitted). Because Defendant asserts that unitary conduct	20

4
resulted in multiple convictions under different statutes, we apply the double-	1
description analysis.	2
{7} 	In analyzing a double-description claim, we apply the two-part test set forth	3
in Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. First, we	4
determine whether the conduct underlying the offenses is unitary, that is, whether	5
the same conduct violates both statutes. Id. “If the conduct is not unitary, there is no	6
double jeopardy violation.” State v. Lucero, 2015-NMCA-040, ¶ 21, 346 P.3d 1175.	7
If, however, the conduct is unitary, we then look to the statute “to determine whether	8
the Legislature intended to create separately punishable offenses.” Id. (alteration,	9
internal quotation marks, and citation omitted).	10
A. 	Defendant’s Convictions for Possession of a Weapon by a Prisoner and	11
Tampering With Evidence Were Based on Unitary Conduct	12
{8} 	Defendant argues that his conviction for tampering with evidence violates	13
double jeopardy because the State relied on the same evidence to prove both	14
constructive possession of a weapon by a prisoner and tampering, i.e. “possession of	15
a shank in the vent in his jail cell.” When determining whether conduct is unitary,	16
“we consider such factors as whether acts were close in time and space, their	17
similarity, the sequence in which they occurred, whether other events intervened,	18
and the defendant’s goals for and mental state during each act.” State v. Franco,	19
2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104. The discovery of the shank	20

5
inside the air vent in Defendant’s single-person cell lead to the charges in this case	1
and provided the factual basis supporting each of Defendant’s convictions.	2
{9} 	Because there is no evidence of any intervening events or significant	3
separation of time or physical distance between Defendant’s possession of the shank	4
in the air vent of his cell and his concealment of it there, we conclude that the conduct	5
in this case was unitary. See Lucero, 2015-NMCA-040, ¶ 22 (considering in part	6
whether the conduct underlying the offenses were close in time and space, their	7
similarity, 	the 	sequence 	in 	which 	they 	occurred, 	and 	whether 	other 	events	8
intervened). Having determined that Defendant’s conduct was unitary, we turn to	9
the second prong of our double-description analysis and determine whether the	10
Legislature intended to create separately punishable offenses for the same conduct.	11
Franco, 2005-NMSC-013, ¶ 11.	12
B. 	Possession of a Weapon by a Prisoner and Tampering With Evidence	13
May Be Charged Together	14
{10} 	“The test for determining whether more than one act has occurred was never	15
intended to be the sole test for determining whether the Legislature intended to	16
punish conduct under more than one statute.” Id. ¶ 12. Therefore, “[t]o determine	17
legislative intent, we look first to the language of the statute.” State v. Silvas, 2015-	18
NMSC-006, ¶ 11, 343 P.3d 616. Section 30-22-16 defines the crime of possession	19
of a deadly weapon by a prisoner as “any inmate of a penal institution, reformatory,	20
jail or prison farm or ranch possessing any deadly weapon or explosive substance.”	21

6
Section 30-22-5(A) on the other hand, defines the crime of tampering with evidence	1
as “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.”	4
{11} 	Because neither the possession of a weapon by a prisoner nor the tampering	5
with evidence statute expressly provide for multiple punishments, we “apply	6
the Blockburger test to the elements of each statute.” Swafford, 1991-NMSC-043,	7
¶ 30. “Under Blockburger [v. United States, 284 U.S. 299 (1932)], the test to be	8
applied to determine whether there are two offenses or only one, is whether each	9
provision requires proof of a fact which the other does not.” Swick, 2012-NMSC-	10
018, ¶ 12 (internal quotation marks and citation omitted).	11
{12} 	“If [the Blockburger analysis] establishes that one statute is subsumed within	12
the other, the inquiry is over and the statutes are the same for double jeopardy	13
purposes—punishment cannot be had for both.” Swafford, 1991-NMSC-043, ¶ 30.	14
Conversely, “[i]f one statute requires proof of a fact that the other does not, then the	15
Legislature is presumed to have intended a separate punishment for each statute	16
without offending principles of double jeopardy.” Silvas, 2015-NMSC-006, ¶ 12.	17
“That presumption, however, is not conclusive and it may be overcome by other	18
indicia of legislative intent, which may be gleaned from statutory schemes by	19
identifying the particular evil addressed by each statute; determining whether the	20

7
statutes are usually violated together; comparing the amount of punishment inflicted	1
for a violation of each statute; and examining other relevant factors.” State v.	2
Jackson, 2020-NMCA-___, ¶ 36, ___ P.3d ___ (No. A-1-CA-36400, Feb. 26, 2020)	3
(alteration, internal quotation marks, and citations omitted), cert. denied, 2020-	4
NMCERT-___ (No. S-1-SC-38203, June 9, 2020).	5
{13} 	However, when a statute is vague and unspecific or written with many	6
alternatives, we apply a modified version of the Blockburger test. See State v.	7
Gutierrez, 2011-NMSC-024, ¶ 48, 150 N.M. 232, 258 P.3d 1024 (adopting “a	8
modified version of the Blockburger test for double jeopardy claims involving	9
statutes that are ‘vague and unspecific,’ in addition to those that are ‘written with	10
many alternatives.’ ” (internal quotation marks and citation omitted)). Under the	11
modified Blockburger test, “we no longer apply a strict elements test in the abstract;	12
rather, we look to the state’s trial theory to identify the specific criminal cause of	13
action for which the defendant was convicted, filling in the case-specific meaning of	14
generic terms in the statute when necessary.” State v. Serrato, 2020-NMCA-___,	15
¶ 16, ___ P.3d ___ (No. A-1-CA-36381, Feb. 17, 2020) (internal quotation marks	16
and citation omitted). Hence, instead of analyzing the “statute in the abstract, we	17
look at the legal theory of the offense that is charged” when comparing the elements	18
of the statute. Gutierrez, 2011-NMSC-024, ¶ 58 (internal quotation marks and	19
citation omitted).	20

8
{14} 	To determine the State’s legal theory, we consider “such resources as the	1
evidence, the charging documents, and the jury instructions.” State v. Montoya,	2
2013-NMSC-020, ¶ 49, 306 P.3d 426. “Where neither the indictment nor the jury	3
instructions shed any light on the state’s trial theory, and/or to confirm our	4
understanding of the state’s theory, we may also look to the state’s closing argument	5
for evidence of the specific factual basis supporting its theory.” State v. Luna, 2018-	6
NMCA-025, ¶ 10, 458 P.3d 457 (alterations, internal quotation marks, and citation	7
omitted). “By doing this, we may properly identify the appropriate ‘provisions’ for	8
comparison that are at the heart of the Blockburger test.” Id.	9
{15} 	Both the possession of a weapon by a prisoner and tampering with evidence	10
statutes, as well as the indictment and jury instructions indicate that each crime	11
requires proof of facts which the other does not. The possession of a weapon by a	12
prisoner 	statute, 	indictment, 	and 	jury 	instructions 	required 	proof 	that: 	(1)	13
“[D]efendant was in custody or confinement at [MDC];”1 and (2) “[D]efendant was	14
in possession of a [six-inch] long metal rod with a sharpened end [and] that [a six-	15
inch] long metal rod with a sharpened end is a deadly weapon only if [the jury finds]	16
that if used as a weapon, a [six-inch] long metal rod with a sharpened end could	17
cause death or great bodily harm[,]” see § 30-22-16; UJI 14-2254 NMRA, facts not	18
1 Defendant and the State stipulated that Defendant was in custody or
confinement at MDC.

9
required 	for 	tampering 	with 	evidence. The 	tampering 	with 	evidence statute,	1
indictment, and jury instruction, required proof that: Defendant “hid or placed the	2
[six-inch] long metal rod with a sharpened end into an air vent” and Defendant	3
“intended to prevent [his] apprehension, prosecution or conviction for [p]ossession	4
of a [w]eapon by a [p]risoner.” See § 30-22-5; UJI 14-2241. Each of these factual	5
elements are distinct from those required for possession of a weapon by a prisoner.	6
{16} 	Defendant contends, however, that because the State’s theory of possession	7
of a deadly weapon relied on constructive possession, under the jury instructions in	8
this case, “[t]he entire crime of possession is captured in the actus reus of the	9
tampering charge (hid or placed) and thus subsumed into the tampering conviction.”	10
We disagree. The grand jury indictment and jury instructions for constructive	11
possession of a weapon by a prisoner do not require a finding that Defendant “hid or	12
placed” the sharpened metal rod in the air vent in order to prevent apprehension,	13
prosecution or conviction of a crime. Rather, possession of a weapon by a prisoner	14
only required the jury to find that Defendant, while in the lawful custody of MDC,	15
possessed the sharpened metal rod discovered in the air vent of his single-person	16
cell, because “he [knew] what and [where] it [was] and he exercise[d] control over	17
it.” The State’s legal theory for the constructive 	possession of a weapon by a	18
prisoner charge relies not only on Defendant’s placement of the weapon in the air	19

10
vent, but as the State argued during closing, also on Defendant’s exclusive	1
occupancy of the cell.	2
{17} 	With regard to the crime of tampering with evidence, the State argued during	3
closing that Defendant “placed [the deadly weapon] in the [air] vent to avoid	4
prosecution for himself for having contraband[,]” demonstrating that its legal theory	5
for 	tampering 	with 	evidence 	relied 	on 	Defendant’s 	specific 	intent 	to 	avoid	6
prosecution. See Silvas, 2015-NMSC-006, ¶¶ 19-20 (turning to the state’s closing	7
argument 	as 	evidence 	of 	the 	state’s 	legal 	theory 	in 	applying 	the 	modified	8
Blockburger analysis). Thus, although Defendant’s unitary act of placing the weapon	9
in the air vent supports both the State’s theory of constructive possession and	10
tampering with evidence, the State’s theory for tampering with evidence additionally	11
relied on Defendant’s mental state, that is, his specific intent or objective behind	12
hiding or placing the weapon in the air vent, which was to avoid apprehension,	13
prosecution, or conviction. Cf. State v. Guerra, 2012-NMSC-027, ¶¶ 11-12, 284 P.3d	14
1076 (recognizing that tampering with evidence requires evidence of a defendant’s	15
specific intent to tamper).	16
{18} 	As the district court observed, the possession of a weapon by a prisoner	17
charge, requiring intent to possess the weapon, and the tampering with evidence	18
charge, 	requiring 	a 	specific 	intent 	to 	prevent 	apprehension, 	prosecution, 	or	19
conviction, require two different mental states. Compare § 30-22-5, with § 22-22-	20

11
16. Rather than addressing the distinct mental states for each crime, Defendant cites	1
to State v. Benally, 2019-NMCA-048, 448 P.3d 592, asserting that the “evidence	2
only established one act of possession in a hidden location . . . with the same mental	3
state and purpose[.]”	4
{19} 	Our review of Benally indicates that the double jeopardy issue in that case	5
concerned multiple convictions under the same general intent crime of possession of	6
a deadly weapon by a prisoner. Id. ¶ 1. In contrast, here, Defendant was charged and	7
convicted of a general intent crime—possession of a deadly weapon—and a specific	8
intent crime—tampering with evidence. See Guerra, 2012-NMSC-027, ¶ 12 (stating	9
that our Supreme Court “has previously recognized that the crime of tampering with	10
evidence requires evidence that the defendant specifically intended to tamper with	11
evidence”); State v. Baca, 1997-NMSC-059, ¶ 51, 124 N.M. 333, 950 P.2d 776 (“In	12
New Mexico, specific intent is the intent to do a further act or achieve a further	13
consequence.” (internal quotation marks and citation omitted)). Thus, despite the	14
fact that the weapon’s location in the air vent of Defendant’s single-person cell is	15
evidence of Defendant’s knowledge and control over the weapon and that he	16
intended to hide the weapon to avoid prosecution, it does not change the fact that	17
each charge required proof of facts that the other did not, including different mental	18
states. These distinctions raise a presumption that the Legislature intended a separate	19
punishment for the violation of each statute. See Jackson, 2020-NMCA-___, ¶ 48.	20

12
{20} 	We next consider whether the particular evil sought to be addressed by each	1
offense is distinct. See Swafford, 1991-NMSC-043, ¶ 32 (“Statutes directed toward	2
protecting different social norms and achieving different policies can be viewed as	3
separate and amenable to multiple punishments.”). The purpose of Section 30-22-16	4
“is to protect inmates and officers from assaults with dangerous weapons perpetrated	5
by armed prisoners.” State v. Baca, 1992-NMSC-055, ¶ 16, 114 N.M. 668, 845 P.2d	6
762. In contrast, Section 30-22-5, seeks to preserve evidence for trial, Franco, 2005-	7
NMSC-013, ¶ 18, and punish “those who try to frustrate the criminal justice system	8
by obstructing access to evidence of a crime.” State v. Radosevich, 2018-NMSC-	9
028, ¶ 10, 419 P.3d 176. The focus of the tampering with evidence statute is not to	10
protect inmates and officers from assaults with dangerous weapons but instead to	11
prevent interference with criminal investigations by preserving evidence and	12
punishing those who seek to hide or destroy evidence of a crime. The distinct social	13
harms addressed in these two statutes suggest that the Legislature intended to punish	14
the two crimes separately. We next examine whether these crimes are likely to be	15
committed together.	16
{21} 	Defendant contends the majority of possession of weapon by prisoner cases	17
will involve hidden weapons and asserts that the two statutes in this case are usually	18
violated together. The State counters that the crimes at issue “are not necessarily	19

13
violated together because possession can be committed without tampering and,	1
similarly, tampering can be committed without actually possessing the [weapon].”	2
{22} 	In support of his argument Defendant directs our attention to State v. Almeida,	3
in which we concluded that “the [L]egislature did not intend to punish a defendant	4
for possession of a controlled substance and possession of [drug] paraphernalia when	5
the paraphernalia [charge] consists of only a container that is storing a personal	6
supply of the charged controlled substance.” 2008-NMCA-068, ¶ 21, 144 N.M. 235,	7
185 P.3d 1085. Defendant’s reliance on Almeida is unpersuasive because, as	8
discussed in that case, use of a small container to hold a personal supply of drugs is	9
inherent in the crime of possession of a controlled substance. Id. ¶ 19. For that reason	10
both crimes are usually committed together. Id. ¶ 17. Conversely, we do not believe	11
that tampering with evidence is inherent in the crime of possession of a weapon by	12
a prisoner. While some possession of weapons by a prisoner charges may arise	13
through the discovery of hidden weapons, others may arise during assaults, the very	14
evil sought to be addressed by the statute. See Baca, 1992-NMSC-055, ¶ 16; see also	15
NMSA 1978, § 30-22-17 (1963) (defining assault by prisoner).	16
{23} 	Finally, we look to the quantum of punishment as it is also probative of	17
legislative intent to punish. See Swafford, 1991-NMSC-043, ¶ 33 (stating that	18
“[w]here one statutory provision incorporates many of the elements of a base statute,	19
and extracts a greater penalty than the base statute, it may be inferred that the	20

14
[L]egislature did not intend punishment under both statutes.”). Here, violations of	1
the two statutes result in differing degrees of punishment, compare Section 30-22-	2
16, a second-degree felony carrying a sentence of up to nine years, with Section 30-	3
22-5, a fourth-degree felony, carrying a sentence of up to eighteen months. Although	4
Swafford provided that different degrees of punishment may indicate a legislative	5
intent against separate punishments, “this Court and our Supreme Court have	6
previously noted that a difference in the quantum of punishment alone is insufficient	7
to overcome other indicia of legislative intent.” State v. Caldwell, 2008-NMCA-049,	8
¶ 19, 143 N.M. 792, 182 P.3d 775. On balance, application of the principles used to	9
determine legislative intent support the presumption that the legislature intended	10
separate punishment for violation of Section 30-22-16 and Section 30-22-5. Thus,	11
we conclude that Defendant’s convictions do not violate double jeopardy.	12
Sufficiency of the Evidence	13
{24} 	Defendant next argues that his convictions are not supported by substantial	14
evidence. “The test for sufficiency of the evidence is whether substantial evidence	15
of either a direct or circumstantial nature exists to support a verdict of guilty beyond	16
a reasonable doubt with respect to every element essential to a conviction.” State v.	17
Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and	18
citation omitted). We “view the evidence in the light most favorable to the guilty	19
verdict, indulging all reasonable inferences and resolving all conflicts in the	20

15
evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128	1
N.M. 711, 998 P.2d 176. The question on appeal is whether the jury’s “decision is	2
supported by substantial evidence, not whether the [fact-finder] could have reached	3
a different conclusion.” In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562,	4
915 P.2d 318. We therefore disregard all evidence and inferences that support a	5
different result. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.	6
A. 	Sufficient Evidence Supports Defendant’s Conviction for Possession of a	7
Weapon by a Prisoner	8
{25} 	Defendant argues that his conviction for possession of a weapon by a prisoner	9
is not supported by substantial evidence because he “did not have exclusive control	10
over the air vent or jail cell where guards found the shank[.]” Specifically, Defendant	11
contends that because “[n]o one testified that they saw [him] with the [shank] and	12
the State did not present fingerprint evidence or other forensic evidence tying [him]	13
to the [shank,] evidence that he was assigned to the “single-man cell for a few	14
months” was insufficient to prove constructive possession because the State failed	15
to present evidence that the shank was not left in the air vent by a prior inmate. We	16
disagree.	17
{26} 	Section 30-22-16 defines the crime of possession of a weapon by an inmate	18
in relevant part as:	19
Possession of a deadly weapon . . . by prisoner in lawful custody	20
consists of any inmate of a penal institution, reformatory, jail or prison	21
farm or ranch possessing any deadly weapon[.]	22

16
The only element at issue in this appeal is that of possession.	1
{27} 	Because the weapon was not found on Defendant’s person but instead inside	2
the air vent located in Defendant’s cell, this case rests on constructive, not actual	3
possession. “[C]onstructive possession is a legal fiction used to expand possession	4
and include those cases where the inference that there has been possession at one	5
time is exceedingly strong.” State v. Barber, 2004-NMSC-019, ¶ 22, 135 N.M. 621,	6
92 	P.3d 	633 	(internal 	quotation 	marks 	and 	citation 	omitted). 	“Constructive	7
possession exists when the accused has knowledge of the prohibited items and	8
exercises control over them.” Benally, 2019-NMCA-048, ¶ 9 (alteration, internal	9
quotation marks, and citation omitted). “While knowledge of the presence of [the	10
prohibited items] may be inferred where exclusive possession of the premises is	11
shown, where exclusive possession is not shown, additional evidence is required to	12
support such an inference.” State v. Becerra, 1991-NMCA-090, ¶ 14, 112 N.M. 604,	13
817 P.2d 1246. In the end we “must be able to articulate a reasonable analysis that	14
the fact-finder might have used to determine knowledge and control.” State v.	15
Garcia, 2005-NMSC-017, ¶ 13, 138 N.M. 1, 116 P.3d 72 (alteration, internal	16
quotation marks, and citation omitted).	17
{28} 	Viewing the evidence in the light most favorable to the guilty verdict, we	18
conclude that sufficient evidence supports a reasonable inference that Defendant had	19
knowledge of and control over the weapon. Officer Steven Nez testified that before	20

17
moving an inmate into a single-person cell, officers on duty at MDC perform an	1
exhaustive search of the cell, including searching air vents, for damage or anything	2
in the cell that may harm the inmate. Sergeant Keith Brandon and Officer Nez both	3
testified that Defendant was assigned to a single-person cell beginning on December	4
28, 2016. Additionally, officers in Defendant’s cell unit perform sixteen random cell	5
searches per day resulting in a search of each cell every four days. These searches	6
include the same areas searched before occupancy assignments.	7
{29} 	Sergeant 	Brandon 	testified 	that 	he 	did 	not 	have 	“first-hand, 	on-sight	8
knowledge” that officers performed a search of Defendant’s single-person cell	9
before he was assigned occupancy of the cell and could not personally confirm that	10
every subsequent search of Defendant’s cell occurred. However, he testified that	11
searches are standard procedure and that a supervisor reviews records of searches	12
conducted during each shift to ensure they are completed. A weapon was located in	13
an air vent in Defendant’s cell on March 25, 2017. From this evidence a reasonable	14
jury could conclude that: (1) prior to placing Defendant into his single-person cell	15
MDC officers followed standard procedure and performed a thorough search of the	16
cell during which no weapon was located; (2) pursuant to standard operating	17
procedures, officers searched Defendant’s cell every four days; and (3) until March	18
25, 2017, no weapon was located in Defendant’s cell.	19

18
{30} 	Sergeant Brandon also testified that only the inmate assigned to the cell and	1
officers assigned to work with the inmate may enter single-person cells. Further,	2
when an inmate leaves his cell, the door is secured behind the inmate. From this	3
evidence a reasonable jury could conclude that aside from correctional officers,	4
Defendant had exclusive access to and control of his cell.	5
{31} 	Although the inmate handbook precludes inmates from storing items in air	6
vents, according to Officer Nez, air vents are a common place to hide items. During	7
the March 25, 2017 search of Defendant’s cell, Officer Nez located the weapon	8
inside an air vent in Defendant’s cell. The air vent was not positioned “very high [in	9
the cell]” and was “within reaching distance.” Sergeant Brandon explained that	10
because of the vent system’s configuration, it is impossible for another inmate to	11
have placed the weapon in Defendant’s vent from another cell. The weapon had a	12
black sticky substance on one end which, according to Sergeant Brandon, is used to	13
hide objects such as razor blades, drugs, or in this case a shank. Sergeant Brandon	14
explained that the sticky substance on the shank enabled the shank to stick to the	15
very edge of the air vent grate with no chance of falling in and becoming	16
inaccessible.	17
{32} 	Evidence of Defendant’s exclusive occupancy of his single-person cell—	18
restricted to access by only Defendant and officers—in addition to the air vent’s	19
arms-reach 	location 	and 	sticky 	substance 	found 	on 	the 	weapon, 	supports 	a	20

19
reasonable inference that Defendant had knowledge of where the weapon was	1
located and that he exercised control over it. Cf. State v. Montoya, 1973-NMCA-	2
060, ¶¶ 4-5, 85 N.M. 126, 509 P.2d 893 (holding that sufficient evidence supported	3
constructive possession of heroin where the defendant occupied a motel room for	4
six days even though people were seen entering and leaving the room before the	5
search began). Considering this evidence in a light most favorable to the guilty	6
verdict, we conclude that sufficient evidence supports Defendant’s constructive	7
possession of the weapon.	8
{33} 	Defendant argues that because officers also had access to Defendant’s cell, he	9
did not have exclusive possession. To the extent Defendant suggests the officers may	10
have planted the weapon in the air vent, under our standard of review we determine	11
whether the jury’s “decision is supported by substantial evidence, not whether the	12
[fact-finder] could have reached a different conclusion.” In re Ernesto M., Jr., 1996-	13
NMCA-039, ¶ 15. Defendant also challenges the sufficiency of the evidence by	14
arguing 	that 	Sergeant 	Brandon 	could 	not 	confirm that 	previous 	searches 	of	15
Defendant’s 	cell 	occurred. 	However, 	Sergeant 	Brandon 	testified 	that 	regular	16
searches of cells in Defendant’s unit were standard procedure. The jury was free to	17
weigh this testimony and infer that MDC officers followed standard procedures and	18
searched Defendant’s cell on a regular basis. See State v. Ryan, 2006-NMCA-044,	19
¶ 20, 139 N.M. 354, 132 P.3d 1040 (It is the fact[-]finder’s prerogative to weigh the	20

20
evidence and to judge the credibility of the witnesses.”). We will not second-guess	1
the fact-finder nor will we reweigh the evidence. State v. Garcia, 2011-NMSC-003,	2
¶ 5, 149 N.M. 185, 246 P.3d 1057 (“New Mexico appellate courts will not invade	3
the jury’s province as fact-finder by second-guessing the jury’s decision concerning	4
the credibility of witnesses, reweighing the evidence, or substituting its judgment for	5
that of the jury.” (alterations, internal quotation marks, and citation omitted)).	6
B. 	Sufficient Evidence Supports Defendant’s Tampering With Evidence	7
Conviction	8
{34} 	With regard to his tampering with evidence conviction, Defendant contends	9
“the State failed to prove that [he] hid or placed the [shank] in the [air] vent with the	10
required intent.” “Tampering with evidence consists of destroying, changing, hiding,	11
placing or fabricating any physical evidence with intent to prevent the apprehension,	12
prosecution or conviction of any person or to throw suspicion of the commission of	13
a crime upon another.” Section 30-22-5(A). Viewing the evidence in a light most	14
favorable to the guilty verdict, we conclude that sufficient evidence supports	15
Defendant’s conviction for tampering with evidence.	16
{35} 	As we previously concluded, the jury could reasonably infer Defendant placed	17
the weapon in the air vent in his cell from the testimony that prior to single-cell	18
occupancy assignments, MDC officers thoroughly search the cell, the cells are	19
subject to random searches thereafter, and aside from the occupant, the cell is	20
accessible only by officers. With regard to intent, sufficient evidence was presented	21

21
from which the jury could infer that Defendant acted with an intent to prevent his	1
apprehension, prosecution or conviction for the crime of possession of a weapon by	2
a prisoner. State v. Silva, 2008-NMSC-051, ¶ 18, 144 N.M. 815, 192 P.3d 1192	3
(identifying tampering with evidence as a specific intent crime).	4
{36} 	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 that	6
the jury could infer the defendant’s intent to tamper with evidence from evidence,	7
inter alia, that the defendant owned a blue air mattress and sheets and that the	8
victim’s body was found in a nearby alley wrapped in a blue air mattress and sheets).	9
Testimony in this case revealed that air vents are a common place to hide items and	10
that inmates are aware that placing items in air vents is prohibited. In addition, there	11
was testimony explaining that inmates use sticky substances, such as the substance	12
found on the weapon in Defendant’s cell, to keep objects from falling down the air	13
vent. This evidence, viewed in the light most favorable to the verdict, was sufficient	14
to permit the jury to infer Defendant intended to prevent his apprehension,	15
prosecution, or conviction for possession of a deadly weapon by a prisoner by	16
placing the weapon in the air vent of his cell—thereby hiding it—to prevent	17
discovery.	18
{37} 	Defendant 	argues 	that 	because 	officers 	search 	air 	vents 	routinely, 	the	19
weapon’s placement in the air vent only minimally delayed its discovery and	20

22
therefore Defendant’s actions do not evince an intent to avoid apprehension,	1
prosecution, or conviction. In support of his position, Defendant cites to State v.	2
Roybal, 1992-NMCA-114, 115 N.M. 27, 846 P.2d 333. The facts in Roybal, are	3
distinguishable, and we find Defendant’s reliance on Roybal unpersuasive. In	4
Roybal, officers observed the defendant participated in what they believed to be a	5
narcotics transaction. Id. ¶ 7. The officers approached and identified themselves to	6
the defendant at which point the defendant dropped heroin onto the ground. Id. In	7
reviewing the sufficiency of the evidence supporting the defendant’s tampering with	8
evidence conviction, this Court concluded that the word “place” in the jury	9
instruction, indicated “an act of putting evidence in a particular place” and that	10
although the “[d]efendant might have tried to conceal the evidence by dropping it to	11
the ground, there was no evidence that he acted to ‘place’ the heroin in a particular	12
location.” Id. ¶¶ 24, 30. We further held that while the defendant’s actions indicated	13
an immediate reaction to the predicament in which he found himself, they did not	14
prove beyond a reasonable doubt that he formed a specific intent to thwart the	15
officers. Id. ¶ 29.	16
{38} 	Unlike the facts in Roybal, Defendant did not merely abandon evidence in	17
police presence but instead placed the weapon in a particular location, in such a	18
manner that it was hidden from plain view. Therefore Defendant’s actions support a	19

23
reasonable inference that he deliberately placed the weapon in the air vent with the	1
specific intent to conceal his possession of a deadly weapon by a prisoner.	2
{39} 	Defendant also cites multiple cases from other jurisdictions for the proposition	3
that when a defendant does nothing to prevent the recovery of the item, a conviction	4
for tampering with evidence cannot be sustained. However, we have reviewed these	5
cases and find them factually distinguishable. Like Roybal, all but one of the cases	6
address tampering or obstruction charges in the specific context of abandonment of	7
evidence in the presence of police officers.2 See State v. Jones, 2007-1052 (La.	8
6/3/08); 983 So. 2d 95, 99, 102 (considering whether “dropping . . . marijuana to the	9
ground in the presence of the police constitute[s] obstruction of justice or attempted	10
obstruction of justice” and concluding that it did because “success is not required,	11
only specific intent and the requisite act”); State v. Lasu, 768 N.W.2d 447, 449-450	12
(Neb. 2009) (reviewing sufficiency of the evidence for tampering with evidence	13
2 The lone case cited by Defendant not involving abandonment of evidence in
the presence of police is Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011). In
Mullins the evidence at issue was never recovered, however, the prosecution charged
the defendant with tampering with evidence arguing that a witnesses saw the
defendant flee the scene of the crime with a gun. Id. at 442. The court in Mullins
concluded that removal of the gun was a continuation of the defendant’s act of
murder and therefore not sufficient to also serve as grounds for tampering. Id. at 443.
The court also concluded that conviction of tampering based on concealment of the
gun was not permissible solely because the weapon was never found and where
“there is no proof that the defendant acted with the intent to prevent evidence from
being available at trial.” Id. at 444. Unlike the facts in Mullins, Defendant was not
charged and convicted of tampering based on removal of evidence, but rather the
concealment of evidence.

24
where the defendant discarded a large bag of marijuana on top of a bin after being	1
confronted and followed by police); Anderson v. State, 123 P.3d 1110, 1112, 1117	2
(Alaska 2005) (concluding that the act of “tossing” a handgun and ammunition from	3
a car window while being pursued by the police did not constitute the crime of	4
evidence tampering); In re M.F., 734 N.E.2d 171, 178-179 (Ill. 2000) (concluding	5
that the element of concealment was not present where accused discarded bags of	6
drugs in view of a police officer shining a flashlight on him); People v. Comage, 946	7
N.E.2d 313, 319 (Ill. 2011) (holding that the act of throwing a crack pipe and push	8
rod while being chased by police and in their presence did not amount to	9
concealment within the meaning of the obstruction of justice statute). Unlike the	10
facts in these cases, Defendant did not discard the weapon in the presence of guards	11
but instead concealed it in the air vent of his cell.	12
Sergeant Brandon’s Testimony Did Not Violate the Best Evidence Rule	13
{40} 	Finally, Defendant argues that the district court abused its discretion by	14
allowing Sergeant Brandon to testify “that he reviewed surveillance video footage	15
to make sure generally that officers were doing cell searches[,]” because the	16
testimony violated the best evidence rule. We disagree.	17
{41} 	“Rulings admitting or excluding evidence are generally reviewed for an abuse	18
of discretion.” State v. Campbell, 2007-NMCA-051, ¶ 9, 141 N.M. 543, 157 P.3d	19
722. The district court abuses its discretion when its ruling is “obviously erroneous,	20

25
arbitrary and unwarranted” or “clearly against the logic and effect of the facts and	1
circumstances before the court.” Id. (internal quotation marks and citation omitted).	2
“[T]he threshold question of whether the [district] court applied the correct	3
evidentiary rule or standard is subject to de novo review on appeal.” State v. Torres,	4
1999-NMSC-010, ¶ 28, 127 N.M. 20,976 P.2d 20. Additionally, “[a district] court	5
abuses its discretion when it exercises its discretion based on a misunderstanding of	6
the law.” State v. Lente, 2005-NMCA-111, ¶ 3, 138 N.M. 312, 119 P.3d 737.	7
{42} 	The best evidence rule provides that “[a]n original writing, recording, or	8
photograph is required in order to prove its content unless these rules or a statute	9
provides otherwise.” Rule 11-1002 NMRA.	10
{43} 	During cross-examination, Sergeant Brandon affirmed that as part of his	11
investigation he reviewed surveillance footage from the day the officers found the	12
weapon in Defendant’s cell. Defense counsel also asked if—while viewing the	13
video—Sergeant Brandon witnessed any interaction between the inmates, to which	14
Sergeant Brandon answered “no.” The State questioned Sergeant Brandon on re-	15
direct during which the following colloquy took place.	16
State: Do you routinely see officers searching the cells as they’re	17
supposed to?	18
Sergeant Brandon: Yes. We are on a random basis we are required to	19
look through video to see if the officers are actually doing their	20
searches. This verifies the paperwork that we get at the end of our shift	21
to say that they have done their cell searches. You randomly pick one	22

26
or two of those cells that they searched and were supposed to review	1
the footage to actually. . . [witness is cut off].	2
Defense: I’m going to object, may we approach?	3
Defendant argued that Sergeant Brandon’s testimony describing search reports made	4
by officers and surveillance videos reviewed by supervising officers was contrary to	5
the best evidence rule. The State responded that Sergeant Brandon’s testimony did	6
not discuss the content of the records or videos but only his experience and	7
requirements of his job. The district court overruled the objection and advised the	8
State to keep its questions narrowed to Sergeant Brandon’s job duties.	9
{44} 	Our review of Sergeant Brandon’s testimony reveals that he only described	10
his duty to review videos generally, stating that he did so in order to verify records	11
of reported searches and that he did not discuss the specific content of any videos or	12
records. Therefore the best evidence rule did not apply to his testimony. See State v.	13
Landlee, 1973-NMCA-143, ¶ 10, 85 N.M. 726, 516 P.2d 697 (concluding that the	14
best evidence rule did not apply where “[t]he state did not attempt to prove the	15
contents of any document”). To the extent Sergeant Brandon briefly addressed the	16
content of the surveillance video on the day officers discovered the weapon in	17
Defendant’s cell, he did so in response to defense counsel’s questioning. See State	18
v. Jim, 2014-NMCA-089, ¶ 22, 332 P.3d 870) (observing that “[it] is well established	19
that a party may not invite error and then proceed to complain about it on appeal”).	20

27
Accordingly, 	we 	hold 	that 	the 	district 	court 	properly 	overruled 	Defendant’s	1
objection.	2
CONCLUSION	3
{45} 	For the foregoing reasons, we affirm Defendant’s convictions.	4
{46} 	IT IS SO ORDERED.	5
_________________________________	6
JACQUELINE R. MEDINA, Judge	7
WE CONCUR:	8
_________________________________	9
J. MILES HANISEE, Chief Judge	10
_________________________________	11
KRISTINA BOGARDUS, Judge	12