State v. Wood

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: June 9, 2025

No. S-1-SC-40305

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

MATTHEW WOOD,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
David A. Murphy, District Judge

The Gorence Law Firm, LLC
Robert Gorence
Albuquerque, NM

Harrison & Hart, LLC
Carter B. Harrison IV
Nicholas T. Hart
Albuquerque, NM

for Appellant

Raúl Torrez, Attorney General
Walter Hart, Assistant Attorney General
Santa Fe, NM

for Appellee

DECISION

ZAMORA, Justice.
{1} Defendant Matthew Wood challenges his convictions for first-degree felony
murder and shooting at a motor vehicle resulting in great bodily harm. Defendant argues
on appeal that: (1) the evidence was insufficient to support the convictions; (2) the State
engaged in prosecutorial misconduct in its closing argument; (3) his due process rights
were violated when the jury convicted him of felony murder without convicting him of the
predicate offense; (4) the jury instructions failed to properly instruct the jury as to the
felony murder charge; and (5) there was cumulative error sufficient to warrant reversal.
We affirm and exercise our discretion to resolve this case by nonprecedential decision
and thus limit our discussion of the law and the facts to that necessary to decide the
merits of this appeal. See Rule 12-405(B) NMRA; State v. Gonzales, 1990-NMCA-040,
¶ 48, 110 N.M. 218, 794 P.2d 361 (explaining nonprecedential decisions are written
solely for the benefit of the parties, who know the details of the case).

I. BACKGROUND

{2} In September 2019, Noah Tafoya (“Victim”) posted on social media advertising a
handgun for sale. A friend of Defendant, Everton McNab, agreed to meet Victim at
Victim’s apartment complex to purchase the gun. Defendant drove McNab to the
meeting.

{3} Upon arriving at the apartment complex, Defendant backed his Toyota Camry
into a parking spot close to the entrance of the complex. Defendant exited the car and
walked away. After Defendant exited the vehicle, McNab moved from the passenger
seat to the driver’s seat.

{4} Victim, who lived in the complex, told his friend Jorden Chavez that he was
meeting someone to sell the person a gun. Victim asked Chavez to drive him there in
Chavez’s car. Chavez backed his car, a white Mercedes Benz, into a spot next to
Defendant’s car. Victim got out of Chavez’s car (the Mercedes) and entered the
passenger seat of Defendant’s Camry. Chavez remained in the driver’s seat of his
Mercedes and began scrolling on his phone. Defendant’s car—the Camry—was parked
so that its driver’s side was facing the passenger side of the Mercedes.

{5} According to the testimony at trial, Chavez’s Mercedes was parked adjacent to
Defendant’s Camry, with both vehicles facing outward toward the roadway leading to
the entrance of the apartment complex. Chavez was seated in the driver’s seat of his
Mercedes, McNab was seated in the driver’s seat of Defendant’s Camry, and Victim
was seated in the passenger seat of Defendant’s Camry. Defendant testified that he
was approximately 50 yards away from his Camry.

{6} What happened next was contested at trial. The State’s version of events was
that McNab attempted to rob Victim at gunpoint in Defendant’s Camry and shot Victim
after the two struggled over McNab’s gun. According to the State, prior to Victim being
shot, Defendant approached Chavez’s Mercedes from the driver’s side of the vehicle
and held a knife to Chavez’s throat. Chavez, who was armed with his own gun, testified
that he looked up from his phone and saw Victim in the passenger seat of Defendant’s
Camry with his hands up, while McNab, who was in the driver’s seat of the Camry, said
“Don’t move. Don’t fuckin’ do it.” Chavez heard the driver’s side door of his car open
and felt the knife. Chavez’s testimony indicated that the man with the knife was white
with a scruffy beard. Chavez offered to give Defendant his car and then shot at
Defendant when Defendant briefly stepped backwards. Chavez then felt a gunshot and
was thrown onto the pavement from the driver’s side of his vehicle. Chavez got up off
the ground, climbed back into his car and drove out of the parking lot. He turned to the
right in front of the Camry, hearing additional gunshots as he fled. Chavez suffered
several gunshot wounds, including one in his right side, two or three in his left side, and
one in the lower left side of his back. According to the State, it was Defendant who shot
at Chavez’s Mercedes while Chavez attempted to flee.

{7} Finally, the State argued that, after firing at the Mercedes, Defendant walked
back over to the passenger side of his Camry and shot Victim in the leg after Defendant
heard and saw McNab and Victim struggling over McNab’s gun. The State presented
evidence that Victim was shot in his abdomen from the left at close range and in his
thigh from the right, at a slightly longer range. The State’s expert testified that Victim
died as a result of these wounds.

{8} Defendant testified that he was unaware of McNab’s plan to rob Victim, that he
never spoke to or threatened Chavez, that he did not carry a gun, and that he did not
have or shoot a .40 caliber Glock that night. He admitted to having a knife in his hand as
he approached Chavez, testifying that he approached the car to defend his vehicle.

{9} All four men were seriously wounded by gunfire. Victim died on the way to the
hospital. Before dying, Victim told a witness on the scene that he had been robbed.

{10} Defendant was subsequently charged. Following a trial, Defendant was convicted
of felony murder, conspiracy to commit armed robbery, shooting at a motor vehicle
resulting in great bodily harm, aggravated battery, and aggravated assault. The jury
deadlocked on the charge of armed robbery. Defendant was sentenced to a term of life
in prison for felony murder, and the remaining sentence of fourteen and a half years
was set to run concurrently with the life sentence. Defendant timely appealed to this
Court.

II. DISCUSSION

A. Sufficiency of the Evidence

1. Standard of review

{11} Evidence is sufficient to sustain a conviction if substantial evidence of either a
direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable
doubt as to every element of the offense. State v. Montoya, 2015-NMSC-010, ¶ 52, 345
P.3d 1056. “In reviewing the sufficiency of the evidence, the reviewing court views the
evidence in the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.” Id. (internal
quotation marks, brackets, and citation omitted). “Contrary evidence supporting acquittal
does not provide a basis for reversal because the jury is free to reject Defendant’s
version of the facts.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515
(internal quotation marks and citation omitted). The “[j]ury instructions become the law
of the case against which the sufficiency of the evidence is to be measured.” State v.
Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d 517 (internal quotation marks and citation
omitted).

2. Felony murder

{12} To find Defendant guilty of felony murder based on aiding and abetting, the State
was required to prove beyond a reasonable doubt that: (1) Defendant intended that
McNab commit the felony of armed robbery; (2) McNab committed or attempted to
commit the felony of armed robbery under circumstances or in a manner dangerous to
human life; (3) Defendant helped, encouraged, or caused the felony of armed robbery to
be committed or attempted; (4) during the commission or attempted commission of the
felony, Victim was killed; (5) Defendant helped, encouraged, or caused the killing to be
committed; (6) Defendant intended the killing to occur or knew that he was helping to
create a strong probability of death or great bodily harm; and (7) this happened in New
Mexico on or about the 12th day of September 2019.

{13} Defendant contests the sufficiency of the evidence only as to the fifth and sixth
elements of the offense. Defendant argues the evidence adduced at trial was not
sufficient to prove he aided and abetted the killing of Victim because the jury was
required to draw impermissible inferences from the evidence to sustain the conviction.
We disagree.

{14} “The evidence of aiding and abetting may be as broad and varied as are the
means of communicating thought from one individual to another; by acts, conduct,
words, signs, or by any means sufficient to incite, encourage or instigate commission of
the offense or calculated to make known that commission of an offense already
undertaken has the aider’s support or approval.” State v. Salazar, 1967-NMSC-187, ¶ 4,
78 N.M. 329, 431 P.2d 62 (internal quotation marks and citation omitted); see also UJI
14-2821 NMRA (stating aiding and abetting in a killing requires the jury to find that the
defendant “helped, encouraged, or caused the killing to be committed” (use note
omitted)). Here, there was both testimonial and physical evidence that Defendant
helped, encouraged, or caused the killing to be committed by holding Chavez at
knifepoint in the Mercedes as McNab robbed and shot Victim in the nearby Camry, and
by shooting at Chavez as Chavez attempted to flee. Evidence that a defendant held a
third party at bay while the defendant’s associates committed a killing nearby is
sufficient to establish aiding and abetting of the killing. State v. Nieto, 2000-NMSC-031,
¶ 28, 129 N.M. 688, 12 P.3d 442.

{15} There was ample evidence from which the jury could reasonably infer that
Defendant held Chavez at knifepoint and thereby helped McNab rob and shoot Victim.
Specifically, Chavez testified that he observed Victim being robbed in the vehicle next to
him, he then felt a knife against his neck, and he was shot at as he attempted to flee in
his car. Although Chavez did not get a good look at the man who held the knife to him,
an investigator testified at trial that he believed Chavez described the man as white with
a “scraggly” beard in an interview conducted shortly after the shooting and Chavez’s
testimony at trial was consistent with this description. McNab is African American and
Defendant is white. A video of Defendant in the hospital played at trial showed that,
immediately after the shooting, Defendant had a beard. Based on this evidence, a
reasonable jury could have determined that Defendant aided and abetted McNab’s
killing of Victim. See Nieto, 2000-NMSC-031, ¶ 28; see also State v. Ochoa, 1937-
NMSC-051, ¶ 39, 41 N.M. 589, 72 P.2d 609 (concluding a jury could find two
defendants guilty of aiding and abetting the killing of a sheriff when the defendants
assaulted the sheriff’s deputy who “would be expected to come to the aid of his chief in
peril” after the sheriff’s party had been fired upon).

{16} We further conclude there was sufficient evidence from which a reasonable jury
could find that Defendant “intended the killing to occur or knew that he was helping to
create a strong probability of death or great bodily harm” by holding Chavez at
knifepoint while McNab robbed and shot victim in the Camry. See UJI 14-2821
(requiring proof that the defendant “intended the killing to occur or knew that the
defendant was helping to create a strong probability of death or great bodily harm”).
“The felony-murder intent requirement is satisfied if there is proof that the defendant
intended to kill, knew that his actions created a strong probability of death or great
bodily harm to the victim or another person . . . or acted in a manner greatly dangerous
to the lives of others.” State v. Griffin, 1993-NMSC-071, ¶ 23, 116 N.M. 689, 866 P.2d
1156.

{17} Based on the evidence at trial, a jury could reasonably have found that
Defendant’s holding of a knife to Chavez evinced at least the knowledge that he was
creating a strong probability of Victim’s death or great bodily harm. In Nieto, we held
that sufficient evidence supported accessory liability for murder where the defendant
held a third party at gunpoint while the principals killed two people inside a nearby
cabin. 2000-NMSC-031, ¶ 28. Although the defendant in that case claimed he never
agreed to participate in the murder and only acted out of fear for his life, we concluded
his outward actions in accompanying the principals to the place of the murder and
incapacitating a third party while the killings took place was sufficient evidence of the
defendant’s intent that the principals commit the murders. Id. ¶¶ 6-8, 28.

{18} In this case, Defendant willingly accompanied McNab to the site of the crime and
held Chavez at bay while McNab robbed Victim at gunpoint. Additionally, a witness for
the State testified that he had overheard McNab and Defendant discuss their plans to
commit robberies in the past, and, at some point during the week before the robbery
and killing, he overheard McNab describe to Defendant an “easy come up” of a young
person selling a gun. The witness further testified that McNab and Defendant regularly
carried .40 caliber handguns, and Defendant admitted in a pretrial interview played for
the jury that he saw McNab with a gun the day of the murder.

{19} A jury could therefore reasonably conclude that Defendant, who was aware that
McNab was likely armed, knew his actions in assisting McNab rob Victim would create a
strong probability that Victim would suffer death or great bodily harm. See State v.
Baca, 1997-NMSC-059, ¶¶ 20-21, 124 N.M. 333, 950 P.2d 776 (concluding that a
reasonable jury could find that an accessory’s knowledge that the principal had a gun
supported an inference that the accessory’s subsequent action in positioning his vehicle
near the victim’s car constituted assistance in carrying out an act “greatly dangerous to
the lives of others”), abrogated on other grounds by State v. Revels, ___-NMSC___, ¶
37, ___P.3d___ (S-1-SC-39841, April 7, 2025).

{20} Accordingly, we conclude the evidence was sufficient to support Defendant’s
conviction for felony murder.

3. Shooting at a motor vehicle

{21} Defendant argues the evidence that he shot at a motor vehicle was insufficient
because the State never demonstrated that he had or used a gun that night. Evidence is
sufficient to sustain a conviction if substantial evidence of either a direct or
circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt as to
every element of the offense. Montoya, 2015-NMSC-010, ¶ 52. While no direct
evidence was presented at trial tying Defendant to any gun found at the scene, the
circumstantial evidence that Defendant possessed and fired a gun at Chavez’s
Mercedes was substantial. “Just because the evidence supporting the conviction was
circumstantial does not mean it was not substantial evidence.” Id. ¶ 53 (internal
quotation marks and citation omitted).

{22} First, Chavez testified that there was an extended magazine sticking out of
Defendant’s hoodie pocket when he approached Chavez’s car, and Defendant admitted
in a pretrial statement played for the jury that he had a magazine in his jacket that night.
Also, a .40 caliber handgun was found on the passenger side floorboard of Defendant’s
Camry next to one of Defendant’s knives, and Defendant admitted to holding a knife
when he approached Chavez in the Mercedes. Defendant testified at trial that he got
into the passenger seat of the Camry after the shooting, and the State presented
evidence that the other .40 caliber handgun found in the Camry was wedged under the
driver’s seat, where McNab was sitting. Based on these facts, it was not unreasonable
for the jury to conclude that Defendant possessed a gun that night. See State v. Garcia,
2005-NMSC-017, ¶¶ 22, 35, 138 N.M. 1, 116 P.3d 72 (concluding that evidence of the
defendant’s possession of a gun was sufficient where the defendant was sitting on a clip
that matched the gun under the defendant’s seat, and the clip was “easily accessible to
[him] and arguably more accessible to him than to anyone else”).

{23} Second, there was circumstantial evidence that Defendant was the only person
who could have shot at Chavez’s Mercedes as Chavez attempted to flee the parking lot.
Forensic evidence showed that Chavez’s Mercedes was struck from outside of the rear
of the driver’s side of the vehicle. In a pretrial statement played for the jury, Defendant
stated that McNab was in Defendant’s Camry “the whole time”—that is, positioned on
the passenger side of Chavez’s vehicle. By contrast, there was evidence presented at
trial that Defendant was on the driver’s side of the Mercedes during and after the time
when the first shots were exchanged.
{24} Additionally, a resident of the complex observed Chavez’s Mercedes drive out of
the parking lot before the Camry, which required the Mercedes to turn to the right in
front of the Camry as it exited, exposing only its passenger side to the Camry. Because
McNab never exited the Camry, had he fired at the Mercedes, the bullets from his gun
would have struck the passenger side of the Mercedes. Viewing the evidence in its
entirety, a reasonable jury could have found that it was Defendant who fired at the
Mercedes from the driver’s side of the vehicle as Chavez attempted to flee. See State v.
Cunningham, 2000-NMSC-009, ¶ 28, 128 N.M. 711, 998 P.2d 176 (holding that a
reasonable jury could have found defendant intentionally shot at victim based on
testimonial and forensic evidence establishing location of the defendant and
characteristics of firearms used in the shooting). We conclude sufficient evidence
supports Defendant’s conviction for shooting at a motor vehicle.

B. Prosecutorial Misconduct

{25} Conceding the issue was not preserved, Defendant next argues the State
committed fundamental error when the prosecutor made arguments unsupported by the
evidence in her closing argument, inviting the jury to speculate. We review unpreserved
issues for fundamental error. Rule 12-321(B)(2) NMRA. “Prosecutorial misconduct rises
to the level of fundamental error when it is so egregious and had such a persuasive and
prejudicial effect on the jury’s verdict that the defendant was deprived of a fair trial.”
State v. Trujillo, 2002-NMSC-005, ¶ 52, 131 N.M. 709, 42 P.3d 814 (internal quotation
marks and citation omitted).

{26} Defendant points to three instances of alleged misconduct. First, Defendant
argues the State “made an improper argument when it claims [sic] that the evidence
supported the inference that [Defendant], after being shot by Mr. Chavez, managed to
stand up, shoot at Mr. Chavez’s car, walk back to the passenger side of the vehicle,
shoot [Victim] in the thigh, and then remove [Victim] from the vehicle to flee” when
“[t]here was simply no evidence that would allow such inferences.” Defendant does not
identify where, in the State’s closing arguments, the prosecutor made such assertions
and our review of the transcript reveals that she never stated that Defendant “managed
to stand up” after being shot by Chavez. “We will not search the record for facts,
arguments, and rulings in order to support generalized arguments.” Muse v. Muse,
2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104; see also Rule 12-318(A)(3) NMRA
(requiring an appellant’s brief in chief to contain “a summary of the facts relevant to the
issues presented for review” which “shall contain citations to the record proper,
transcript of proceedings or exhibits supporting each factual representation” (emphasis
added)).

{27} The prosecutor did argue that the evidence showed Defendant shot Victim in the
thigh from the passenger side of the Camry (and therefore to the right of Victim), but this
assertion was supported by the testimony at trial. Because there was evidence that
McNab never left the driver’s seat of the Camry until after he and Defendant fled the
scene, the prosecutor’s statement that Defendant shot Victim and “that’s how you get a
right-to-left impact into [Victim]’s leg” because “there is no way for [Victim] to have
gotten shot in the leg from the position he was sitting from right to left if it was from Mr.
McNab’s gun” amounted to a single reasonable inference derived from the evidence
presented at trial. No error arises where the prosecutor’s remarks in closing are based
on the evidence and “the fair and reasonable inferences to be drawn therefrom.” State
v. Duffy, 1998-NMSC-014, ¶ 56, 126 N.M. 132, 967 P.2d 807 (internal quotation marks
and citation omitted), overruled on other grounds by State v. Tollardo, 2012-NMSC-008,
275 P.3d 110.

{28} Second, Defendant argues the prosecutor engaged in misconduct when she
“argued to the jury that the statement that [Defendant] could not be included or excluded
as a contributor meant that [Defendant]’s DNA could have been on [the firearm found on
the passenger floormat of the Camry].” According to Defendant, this was an improper
argument because “[Defendant]’s DNA being on that firearm was no more likely than
anybody’s DNA being on it because the State’s expert witness could not come to any
conclusion.”

{29} Again, our review of the transcript reveals no such argument. “It is not our
practice to rely on assertions of counsel unaccompanied by support in the record. The
mere assertions and arguments of counsel are not evidence.” Chan v. Montoya, 2011-
NMCA-072, ¶ 9, 150 N.M. 44, 256 P.3d 987 (internal quotation marks and citation
omitted). The prosecutor argued that “when defense counsel gets up here and says that
[Defendant]’s DNA was not located on any of the firearms, it’s only half-true” because
“[w]e cannot determine if [Defendant]’s DNA was located on [the gun on the Camry’s
floorboard] or not.” The prosecutor then noted that the knife on the floorboard, which
Defendant admitted to having handled, did not contain DNA sufficient to identify
Defendant, demonstrating that “just because you’ve touched something, doesn’t mean
there’s 100 percent certainty that we’re going to find your DNA.”

{30} The prosecutor’s explanation of the DNA evidence at trial was consistent with the
testimony of the State’s forensic expert and therefore gave rise to no error. See Duffy,
1998-NMSC-014, ¶ 56. The expert witness testified that, due to technical limitations of
the testing equipment at the Albuquerque Police Department’s laboratory, whenever
three or more profiles are detected in a sample, investigators do not attempt to “tease
them apart and develop a major or a partial minor or anything like that.” When asked if
this meant Defendant could not be excluded from contributing to the sample from the
trigger of the gun on the floorboard, the expert testified that she “didn’t do any
comparisons” so she could not “include or exclude anybody.” Accordingly, the State’s
argument in closing was consistent with the expert’s testimony that the presence of a
sufficient quantity of DNA on an item is not always sufficient to include or exclude a
particular contributor.

{31} Finally, Defendant argues the presence of $800 in cash found on the floorboard
of the Camry “does not allow, as the State argued, that Mr. McNab attempted to steal
cash from [Victim]” and, instead, points to the opposite conclusion: that “McNab brought
cash with him to buy a firearm.” The prosecutor stated during closing argument that “[a]ll
of that money in the vehicle” belonged to Victim and “[t]here was no intention that . . .
McNab was going to buy a firearm on that day.” The prosecutor then referred to
Defendant’s testimony that “he never saw [McNab] with any money.” At trial, the State
presented no evidence directly establishing the money belonged to Victim. However,
Chavez testified that Victim “always” carried a “flash roll” (or large wad) of cash with
him. The prosecutor’s argument was therefore based on the evidence at trial as well as
reasonable inferences that might be drawn from that evidence. See id. Defendant has
failed to establish any misconduct arising from the State’s closing arguments, much less
misconduct sufficient to cast doubt on the fairness of the proceedings. See Trujillo,
2002-NMSC-005, ¶ 52.

C. Jury’s Failure to Convict on the Predicate Felony for Felony Murder

{32} Armed robbery was the predicate felony establishing that Defendant was guilty of
felony murder. The jury deadlocked on the charge of armed robbery. Defendant
contends his due process rights were violated because he was convicted of felony
murder in the absence of a conviction for armed robbery. In essence, Defendant
complains the jury returned inconsistent verdicts.

{33} As a preliminary matter, we note that Defendant was not acquitted of the armed
robbery charge; rather, the jury could not return a verdict on that count of the indictment.
To the extent the verdicts might be deemed inconsistent, we disagree with Defendant
that such an outcome violated his right to due process. The Supreme Court has held
that “where truly inconsistent verdicts have been reached, ‘[t]he most that can be said
. . . is that the verdict shows that either in the acquittal or the conviction the jury did not
speak their real conclusions, but that does not show that they were not convinced of the
defendant’s guilt.’” United States v. Powell, 469 U.S. 57, 64-65 (1984) (quoting Dunn v.
United States, 284 U.S. 390, 393 (1932). The rule is the same in New Mexico. “When
the evidence is sufficient to support the verdict of conviction, we will not speculate as to
why the jury acquitted a defendant of other charges–even if the conviction and acquittal
are allegedly inconsistent” because “[t]o examine the verdict of acquittal would require
us to rule based on pure speculation or else would require an inquiry into the jury’s
deliberations.” State v. Veleta, 2023-NMSC-024, ¶ 32, 538 P.3d 51 (citing Powell, 469
U.S. at 66). Inconsistent verdicts may arise for many reasons that are unsuited to
appellate review. Veleta, 2023-NMSC-024, ¶ 34. A defendant is adequately protected
against unlawful conviction by the availability of sufficiency review. Id. ¶¶ 34-35. As we
have held there was sufficient evidence supporting Defendant’s conviction for felony
murder, we further hold there was no error arising from the jury’s failure to convict
Defendant of armed robbery.

D. Jury Instructions

{34} Defendant argues the jury was improperly instructed because the felony murder
instruction included only an aiding and abetting theory of Defendant’s culpability for
armed robbery while the armed robbery instruction included both an aiding and abetting
theory and a “completed” robbery theory. According to Defendant, this resulted in juror
confusion. Defendant contends “the aiding and abetting and completed robbery were
not merely different theories, they were also separate elements of the offense because
it changed the legal definition of the offense.”
{35} Defendant appears to concede he did not object to the jury instructions below,
and that he must therefore demonstrate fundamental error. State v. Benally, 2001-
NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating that unpreserved errors in jury
instructions are reviewed for fundamental error).

{36} The relevant portion of the felony murder instruction provided:

For you to find the defendant guilty of felony murder, as charged in Count
1, even though the defendant did not commit the murder, the state must
prove to your satisfaction beyond a reasonable doubt each of the following
elements:

1. The defendant, Matthew Wood, intended that another person
commit the felony of armed robbery;

2. Another person committed or attempted to commit the felony of
armed robbery under circumstances or in a manner dangerous to human
life;

3. The defendant, Matthew Wood, helped, encouraged, or caused
the felony of armed robbery to be committed or attempted . . . .

{37} The armed robbery instruction provided in relevant part:

For you to find the defendant guilty of armed robbery as charged in Count
2, the State must prove to your satisfaction beyond a reasonable doubt
each of the following elements of the crime:

1. The defendant took and carried away a firearm from Noah
Tafoya or from his immediate control intending to permanently deprive
Noah Tafoya of that item;

2. The defendant was armed with a firearm;

3. The defendant took the item by force or violence . . . .

{38} The jury was also provided a standalone instruction on accessory liability
instructing:

The defendant may be found guilty of a crime even though the defendant
did not do the acts constituting the crime if the State proves to your
satisfaction beyond a reasonable doubt [that] (1) the defendant intended
that another person commit the crime; (2) another person committed the
crime; and (3) the defendant helped, encouraged, or caused the crime to
be committed . . . .
The standalone instruction expressly stated that it did not apply to the charge of felony
murder.

{39} “[I]n a fundamental error analysis jury instructions should be considered as a
whole.” Cunningham, 2000-NMSC-009, ¶ 21. Here, the felony murder instruction clearly
asserted an aiding and abetting theory of the crime. The armed robbery instruction,
considered together with the accessory liability instruction, may be read as (1) providing
two paths toward conviction of armed robbery (direct or accessory) or (2) an aiding and
abetting theory of armed robbery divided into two instructions. Even assuming the
armed robbery instruction offered two theories of liability while the felony murder
instruction offered only one, Defendant has failed to demonstrate how such a
construction was error, much less error resulting in “the existence of circumstances that
‘shock the conscience’ or implicate a fundamental unfairness within the system.” Id.
(citation omitted).

{40} Defendant seeks to fit his claim of error within “[t]he general rule . . . that
fundamental error occurs when the trial court fails to instruct the jury on an essential
element.” State v. Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72.
Defendant argues that aiding and abetting in the commission of the crime and directly
committing the crime are not different means of committing the same offense but,
instead, are comprised of different elements, all of which should have been included in
the felony murder instruction.

{41} We disagree. Aiding and abetting a robbery and committing a robbery as the
principal are not legally distinct offenses. State v. Nance, 1966-NMSC-207, ¶ 18, 77
N.M. 39, 419 P.2d 242, abrogated on other grounds by State v. Wilson, 2011-NMSC-
001, 149 N.M. 273, 248 P.3d 315; State v. Carrasco, 1997-NMSC-047, ¶ 6, 124 N.M.
64, 946 P.2d 1075 (recognizing that the distinction between liability as a principal and
liability as an accessory has been abrogated in New Mexico). The State’s theory of the
case was that Defendant aided and abetted the armed robbery, during which Victim was
killed, and Defendant possessed the requisite intent for felony murder. The felony
murder instruction reflected this theory of the case and included all the elements
necessary to establish it. See UJI 14-2821 (providing the elements for felony murder as
an accessory).

{42} Defendant next argues the instructions were confusing, noting the jury failed to
convict Defendant of armed robbery when presented with two theories of liability while
convicting him of felony murder when presented with only one theory of liability for
armed robbery. Fundamental error can occur when a reasonable juror is confused or
misdirected by a jury instruction. Benally, 2001-NMSC-033, ¶ 12. However, juries may
reach inconsistent verdicts for many reasons, including mistake, compromise and lenity,
and we will not speculate as to how or why a jury reached its decisions. Veleta, 2023-
NMSC-024, ¶¶ 34-35. “For fundamental error to exist, the instruction given must differ
materially from the uniform jury instruction, omit essential elements, or be so confusing
and incomprehensible that a court cannot be certain that the jury found the essential
elements under the facts of the case.” State v. Candelaria, 2019-NMSC-004, ¶ 31, 434
P.3d 297 (internal quotation marks and citation omitted). Even if the jury was confused
by the instructions on felony murder and armed robbery, Defendant has failed to identify
the kind of confusion that would call into question the soundness of his conviction. See
e.g., State v. Mascarenas, 2000-NMSC-017, ¶¶ 13, 20-21, 129 N.M. 230, 4 P.3d 1221
(holding that fundamental error occurred where the jury was improperly instructed on
the legal standard and there is a distinct possibility that the defendant was convicted of
criminal negligence under a civil negligence standard); State v. Anderson, 2016-NMCA-
007, ¶¶ 8, 15-16, 364 P.3d 306 (finding fundamental error where the jury was not
instructed on the right to stand one’s ground because the court could not “determine
that the jury delivered its verdict on a legally sound basis”).

{43} If Defendant’s construal of the instructions is correct, the jury was offered one,
instead of two, legally valid pathways to finding him guilty of felony murder. We fail to
see how this could have prejudiced Defendant. See State v. Wilson, 1990-NMSC-019,
¶¶ 17-18, 33, 109 N.M. 541, 787 P.2d 821 (declining to find fundamental error where it
could be argued that the trial court’s “rejection of the instruction on aiding and abetting,
in conjunction with the court’s slight alteration of the instruction on first degree murder,
was helpful to [the defendant]”).

E. Cumulative Error

{44} No error having been established, Defendant’s claim of cumulative error fails as
well. State v. Samora, 2013-NMSC-038, ¶ 28, 307 P.3d 328 (stating that “where there is
no error to accumulate, there can be no cumulative error” (internal quotation marks,
brackets, and citation omitted).

III. CONCLUSION

{45} We hold (1) sufficient evidence supported Defendant’s convictions for felony
murder and shooting at a motor vehicle; (2) the State did not engage in prosecutorial
misconduct in delivering its closing argument to the jury; (3) the jury’s failure to convict
Defendant of the predicate felony of armed robbery while convicting him of felony
murder did not violate his right to due process; (4) Defendant has failed to demonstrate
fundamental error arising from the jury instructions issued in this case; and (5) there
was no cumulative error in the proceedings. We therefore affirm Defendant’s
convictions for felony murder and shooting at a motor vehicle.

{46} 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