State v. Cardenas

Office of the New Mexico
Director Compilation
Commission
11:06:56 2025.08.04
'00'06-
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2025-NMSC-020

Filing Date: March 27, 2025

No. S-1-SC-39517

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CRISTAL CARDENAS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Conrad F. Perea, District Judge

Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Raúl Torrez, Attorney General
Serena R. Wheaton, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

VIGIL, Justice.

{1} Defendant Cristal Cardenas appeals directly to this Court from her convictions of
first-degree murder, NMSA 1978, § 30-2-1(A)(1) (1994), conspiracy to commit first-
degree murder, NMSA 1978, § 30-28-2 (1979), and criminal solicitation to commit first-
degree murder, NMSA 1978, § 30-28-3 (1979). Defendant presents four arguments: (1)
a series of evidentiary rulings resulted in reversible cumulative error, (2) the State
presented insufficient evidence to convict Defendant of first-degree murder, (3) the
convictions for conspiracy and criminal solicitation constitute double jeopardy, and (4)
the district judge violated her constitutional right to a public trial.
{2} We reverse Defendant’s convictions based on a single evidentiary ruling. We
conclude that the district court abused its discretion and committed reversible error
when it allowed the State to question Defendant about her six-month-old child’s positive
methamphetamine test. We reject Defendant’s sufficiency of the evidence and double
jeopardy arguments and, therefore, remand for a new trial on all charges for which the
jury convicted Defendant. Finally, we emphasize that the First Amendment to the United
States Constitution provides the general public and the press with the right to access
criminal trials. Therefore, although we do not reverse Defendant’s convictions on the
basis of this issue, we conclude that the district court erred by seizing the notes of
Defendant’s trial observer without legal justification.

I. BACKGROUND

{3} In the early morning hours of March 25, 2018, Mario Cabral and Vanessa Mora
were shot to death in their home. Mora’s thirteen-year-old daughter, S.D., awoke to the
sounds of a vehicle. She heard sliding glass doors shattering, footsteps, and gunshots.
Struck with fear, S.D. covered herself with her blanket and fell asleep. She was
awakened at about 9:00 a.m. by Cabral’s and Mora’s phones ringing without an answer.
Upon entering the living room, she found Cabral and Mora deceased. S.D. ran to her
neighbor’s home for help, and the neighbor called the police.

{4} In 2007, Defendant and Cabral had a child together, Y.C., but the couple’s
relationship ended. In 2015, Defendant filed a petition in family court against Cabral to
establish paternity, determine custody and time-sharing, and assess child support.
Subsequently, in early November 2016, the family court entered an interim child custody
and visitation order limiting Cabral’s visitation with Y.C.

{5} Defendant testified that she was not angry about the family court’s decision to
allow expanded visitation with Cabral, but the State presented evidence that Defendant
hired a hitman to kill Cabral over the custody case. Edward Alonso testified at trial that,
shortly after he got out of prison in January 2018, a friend connected him by phone with
Defendant, who asked if he would kill someone for her. For $10,000—half upfront—he
agreed.

{6} Alonso testified that he met with Defendant several times and that sometimes
Defendant’s boyfriend, Luis Flores, was present. Defendant gave him the layout of the
property where Cabral lived, the address of the property, a description of the property,
and a photo of Cabral. Together, Defendant and Alonso surveilled where Cabral lived.
Defendant told Alonso that there was a narrow time frame for the murder because of the
custody battle and that if he would not murder Cabral, Flores would do it. At one
meeting, Defendant and Flores showed Alonso a .45-caliber gun. Defendant paid
Alonso $3,000. Because it was less than the agreed-upon amount, he decided not to
murder Cabral.

{7} In mid-February of 2018, Alonso was arrested on the way back from where
Cabral lived for having a gun while on probation. He decided to inform the FBI of the
plot to kill Cabral. He told the FBI that Cabral would be killed in the following month with
a .45-caliber gun and gave them a description of the property where Cabral lived.

{8} Former FBI agent George Dougherty testified about his interactions with Alonso.
He stated that Alonso offered information about a murder for hire that Alonso agreed to
commit. According to Agent Dougherty, Alonso offered physical descriptions of the
persons involved, Defendant’s first name, Cabral’s first name, and directions to where
Cabral lived. Following Alonso’s directions, Agent Dougherty was able to locate where
Cabral lived, which matched Alonso’s description. He learned that Defendant was, in
fact, involved in a custody battle with Cabral.

{9} Agent Dougherty concluded that he “couldn’t find anything to show that [Alonso]
wasn’t being 100 percent truthful” and that Alonso’s account “had merit.” On the basis of
Alonso’s information, the FBI warned Cabral that there was a threat against his life.

{10} Additional inculpatory evidence presented by the State included photographs
from Defendant’s phone showing the back of the house where the murders occurred.
Although a witness testified that she took pictures of where Cabral lived at Defendant’s
request to assist in the custody battle, that witness did not recall ever taking pictures of
the back of the house. Defendant also had numerous aerial images on one of her
phones depicting where the victims lived and the surrounding area.

{11} Further, Cabral’s aunt and uncle both testified that Defendant picked up a gun
that, according to the aunt, Defendant had previously left with her. Neither the aunt nor
uncle was certain about when the gun was picked up, and their accounts differed by
several years. The uncle testified that the gun was .45-caliber. Police found .45 caliber
ammunition, among other types, in one of the bedrooms in Defendant’s house. At the
scene of the killings, police found .45 caliber shell casings.

{12} Defendant testified that she never had a gun, did not know Alonso, never paid
Alonso any money, never told him that Flores would kill Cabral, and did not want Cabral
dead.

{13} The jury acquitted Defendant of the first-degree murder of Mora but convicted her
of the first-degree murder of Cabral, conspiracy to commit first-degree murder, and
criminal solicitation of first-degree murder.

{14} Additional facts are provided as necessary in the following discussion.
II. DISCUSSION

A. The District Court Erred by Allowing the State to Question Defendant About
Her Child’s Positive Methamphetamine Test; Because the Error Is Not
Harmless, We Reverse Defendant’s Convictions

1. Cross-examination of Defendant

{15} Defendant had a child, Y.C., with Cabral. She also had a child, A.F., with Flores,
who was approximately six months old at the time of Defendant’s arrest.

{16} Defendant testified in her defense. During cross-examination, the State asked
Defendant why six-month-old A.F. tested positive for methamphetamine. The exchange
was as follows:

State: [Cabral] didn’t care as much about [Y.C.] as you did, did he?
Defendant: I always had [Y.C.] since she was born.
State: And [A.F.]?
Defendant: And [A.F.]
State: Both of those girls, they are your life, right?
Defendant: Yes, they are.
State: You would do anything to keep them safe?

....

Defendant: Like, danger-wise?
State: Danger-wise, yes.
Defendant: Well, that’s what a parent would keep a child safe.
State: I agree. So why is it that your child [A.F.] tested positive for
meth when y’all got arrested?

Defense counsel objected immediately. In a sidebar, defense counsel explained to the
district court that he had not received the required notice that the State intended to use
this evidence and that he had not heard until that moment of a child of Defendant
testing positive for methamphetamine. He further argued that the methamphetamine
test seemed to relate to the actions of Flores, not Defendant, and that the evidence was
prejudicial and without probative value.

{17} The State asserted that Flores pleaded guilty to endangering A.F. The State
argued Defendant was

leaving a misrepresentation on this jury of how great parents they are,
how she’s the only one who cared for them, that all she ever wanted . . .
was these children to be safe and calm and comfortable. And that is a big
misrepresentation because if that were the truth, your honor, these
children would not be testing positive for methamphetamine.
{18} The State further argued that Defendant’s testimony on direct examination
placed her character at issue. More specifically, the State argued to the district court
that Defendant stated that she is “peaceful,” “a good mother,” and a “law-abiding
citizen.” In addition, the State argued that Defendant was incorrect in maintaining that
notice is required under these facts:

[Rule 11-]404 [NMRA] goes to notice and character evidence when you
are trying to use that in your case in chief, not when if the defendant is
going to take the stand and this and that. That goes when you are trying to
bring in extraneous offenses in the case in chief for the purposes of
there’s relevancy; there’s modus operandi, whatever it is that you’re going
to try and prove under that except . . . under the exception to hearsay and
under [Rule] 404, etc.

{19} The district court concluded that the State could elicit limited testimony about
A.F.’s positive methamphetamine test. Upon return to the courtroom, the State asked
Defendant whether A.F. tested positive for methamphetamine, to which she responded,
“I believe so.”

{20} On redirect examination, Defendant stated that subsequent to A.F.’s positive
drug test, Flores was charged on the basis of A.F.’s test. She further testified that she
believed that the case against Flores was dismissed by the prosecutor.

2. Preservation and standard of review

{21} At trial, Defendant objected and preserved five distinct arguments against the
State’s questioning regarding A.F.’s positive methamphetamine test. See State v.
Clarkson, 1938-NMSC-012, ¶¶ 6-7, 42 N.M. 289, 76 P.2d 1161 (holding an objection
must specify particular reasons for a “review . . . by this [C]ourt” on appeal).

{22} First, in accord with Rules 11-401 NMRA and 11-403 NMRA, Defendant argued
that the State’s questioning was prejudicial and lacked value probative to this case. See
Rule 11-401 (“Evidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence, and the fact is of consequence in
determining the action.”); Rule 11-403 (“The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”). Next, in response to the State’s assertion
under Rule 11-404(A)(2)(a) 1 that Defendant “put[] her character in on direct,” Defendant
argued that she did not, in fact, do so. See 11-404(A)(2)(a) (stating that if evidence is
admitted of a defendant’s “pertinent trait, . . . the prosecutor may offer evidence to rebut
it”). Finally, Defendant argued that the State’s inquiry concerning A.F.’s positive test did
not comply with Rule 11-404(B) due to insufficient notice and that this Rule generally

1Rule 11-404 NMRA was amended in 2022 and became effective following the trial of this case. The
2022 amendment, which added subparagraph (B)(3), does not affect our substantive analysis. For clarity
and ease of reference, we refer to the current version of the rule throughout this opinion.
prohibits such character evidence. See 11-404(B)(1) (“Evidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.”); Rule 11-
404(B)(3) (requiring “reasonable notice” to a defendant when the prosecution intends to
use “any evidence of crimes, wrongs, or other acts”; the notice must be provided prior to
trial unless the court excuses that failure “for good cause”).

{23} The district court then issued an oral ruling as follows: “This is a 11-404
argument, and with that, I’m not looking at propensity itself; I am just looking, in fact,
that the door was opened, and we can use this; I am going to allow this question, but I
am going to ask that it be, that it be limited.”

{24} Based on the district court’s language in its oral ruling, we infer that it considered
the arguments made by counsels to be governed by Rule 11-404(A)(2)(a), thus
permitting rebuttal character evidence by “opening the door.” See Christopher B.
Mueller and Laird C. Kirkpatrick, 1 Federal Evidence, § 4.24 at 703-04 (4th ed. 2013)
(“When testimony ranges beyond these basic [background] facts . . . and beyond
matters that are directly relevant to the charges or defenses, and paints not only a
picture of innocence but a self-portrait of a person whose background, outlook,
personality, or philosophy make it unlikely that he committed the crime or had the
necessary mental state, then it is fair to view this strategy as an effort to prove good
character, thus opening the door to counterattack by the prosecutor.”).

{25} Defendant, on appeal, only argues that the State’s inquiry into A.F.’s positive
methamphetamine test was improper under Rule 11-404(B). Thus, Defendant may have
abandoned her objections under Rules 11-401, -403, and -404(A) despite raising these
objections at trial. See State v. Sandoval, 1975-NMCA-096, ¶ 11, 88 N.M. 267, 539
P.2d 1029 (concluding that issues not addressed in briefings were deemed abandoned).

{26} However, this unique preservation and potential abandonment issue can and
should be cured by this Court by addressing the Rule 11-404(A)(2)(a) issue sua sponte.
See State v. Goss, 1991-NMCA-003, ¶ 12, 111 N.M. 530, 807 P.2d 228 (“Where
defendants have failed to comply with [briefing rules] . . . , an appellate court may
decline to address such contention on appeal.” (emphasis added)); State v. Martinez,
1996-NMCA-109, ¶ 13, 122 N.M. 476, 927 P.2d 31 (stating that the defendant’s failure
to explain how the issue was preserved in his briefing did not compel the Court of
Appeals to disregard the issue); cf. Doe v. State, 1975-NMCA-108, ¶ 36, 88 N.M. 347,
540 P.2d 827 (recognizing that an issue of a party’s fundamental rights which trial
counsel “adequately notified” the district court of, but did not raise on appeal, could still
be reviewed on appeal). Because Defendant articulated the proper objections at trial,
fairness tilts in favor of reviewing the Rule 11-404(A) issue as if put adequately before
this Court. Cf. Huckins v. Ritter, 1983-NMSC-033, ¶ 3, 99 N.M. 560, 661 P.2d 52 (“The
transcripts and briefs in this case are sufficient to present the essential question for
review on the merits.”). We review because the issue was adequately preserved in the
district court. Rule 12-321 NMRA (“To preserve an issue for review, it must appear that
a ruling or decision by the trial court was fairly invoked.”).
{27} “We review the district court’s decision to admit or exclude evidence for an abuse
of discretion.” State v. Fernandez, 2023-NMSC-005, ¶ 8, 528 P.3d 621 (internal
quotation marks and citation omitted). “An abuse of discretion occurs when the ruling is
clearly against the logic and effect of the facts and circumstances of the case. We
cannot say the trial court abused its discretion by its ruling unless we can characterize it
as clearly untenable or not justified by reason.” State v. Bailey, 2017-NMSC-001, ¶ 12,
386 P.3d 1007 (internal quotation marks and citation omitted).

{28} As we explain below, the result is the same for analyses under Rules 11-
404(A)(2)(a) and -404(B): the district court abused its discretion to admit this inquiry.
Because we further conclude that the error was not harmless, we reverse Defendant’s
convictions.

3. Analysis

a. Inquiry into A.F.’s positive methamphetamine test was inadmissible under
Rule 11-404(B)

{29} Defendant argues that the State did not give the notice required by Rule 11-
404(B)(3) and that A.F.’s test was not admissible for any permitted use under Rule 11-
404(B)(2). The State counters that the notice was sufficient because Defendant seemed
“familiar[] with the issue” based on the discussion with the district court during the
sidebar. The State additionally argues “that Defendant opened the door” to the question
about the positive methamphetamine test, invoking the doctrine of curative admissibility.

{30} Rule 11-404(B)(1) states, “Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” However, such evidence is
admissible “for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Rule
11-404(B)(2). Further, Rule 11-404(B)(3)(a) requires that “[i]n a criminal case, the
prosecution must provide reasonable notice of the general nature of any evidence of
crimes, wrongs, or other acts that the prosecutor intends to offer at trial, so that the
defendant has a fair opportunity to review it.”

{31} We need not reach Defendant’s notice argument because the State has not
offered, or even made a serious attempt at presenting, any admissible purpose under
Rule 11-404(B) in this Court or the district court. Moreover, the doctrine of curative
admissibility argued by the State is inapposite. “Under the doctrine of curative
admissibility, a party may introduce inadmissible evidence to counteract the prejudice
created by their opponent’s earlier introduction of similarly inadmissible evidence.” State
v. Gonzales, 2020-NMCA-022, ¶ 12, 461 P.3d 920; see also United States v. Nardi, 633
F.2d 972, 977 (1st Cir. 1980) (stating that the doctrine applies “only when inadmissible
evidence has been allowed, when that evidence was prejudicial, and when the proffered
testimony would counter that prejudice”); Frederick C. Moss, The Sweeping-Claims
Exception and the Federal Rules of Evidence, 1982 Duke L.J. 61, 76 (February 1982)
(“The doctrine of curative admissibility should be limited, at least conceptually, to cases
. . . in which the admission of rebuttal evidence is justified to counteract prejudicial
inadmissible evidence introduced by the other side.”). The State does not argue that
Defendant presented inadmissible evidence. Therefore, the doctrine of curative
admissibility cannot justify the prosecutor’s inquiry into A.F.’s positive
methamphetamine test.

{32} “[I]t is incumbent upon the proponent of Rule 11-404(B) evidence to . . . cogently
inform the court—whether the trial court or a court on appeal—[of] the rationale for
admitting the evidence to prove something other than propensity.” State v. Gallegos,
2007-NMSC-007, ¶ 25, 141 N.M. 185, 152 P.3d 828. Here, the State has made no
argument that the inquiry into A.F.’s positive methamphetamine test was admissible to
prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident” or any other purpose that might satisfy Rule 11-404(B)(2).

{33} In light of the total absence of a permissible use under Rule 11-404(B)(2), we
conclude that it was an abuse of discretion to admit the inquiry into A.F.’s positive
methamphetamine test under Rule 11-404(B). See Bailey, 2017-NMSC-001, ¶ 12
(stating that a district court abuses its discretion when the ruling is “‘untenable or not
justified by reason’” (citation omitted)).

b. Inquiry into A.F.’s positive methamphetamine test was inadmissible under
Rule 11-404(A)(2)(a)

{34} Under Rule 11-404(A)(2)(a), a criminal defendant “may offer evidence of the
defendant’s pertinent [character] trait.” See also State v. Martinez, 2008-NMSC-060, ¶
29, 145 N.M. 220, 195 P.3d 1232 (stating that “substantive character testimony” may be
offered by a defendant to “establish a general character inconsistent with guilt of the
crime with which [the defendant] stood charged” (internal quotation marks and citation
omitted)). But if a defendant does so, a prosecutor may offer evidence to rebut evidence
of the pertinent character trait. Id. ¶ 24; cf. id. ¶ 33 (stating that by requiring a pertinent
trait, Rule 404(A) confirms “that character evidence must relate to a specific relevant
trait in order to be admissible” and that “Rule 404 permits evidence of traits only”
(internal quotation marks and citation omitted)).

{35} The classic way of offering character evidence involves calling a “defense
character witness” who testifies to the defendant’s reputation or provides an opinion on
a defendant’s pertinent trait. See Mueller & Kirkpatrick, supra, § 4.24 at 698. However,
defendant-witnesses can also address their own character by testifying beyond
background information and presenting self-portraits as persons whose experience,
personality, philosophy, and disposition make it less likely that they committed the
crime. See id. at 703-04. In such cases, “the defendant personally opens the door to . . .
counterattacks” on character, allowing the State to offer evidence to rebut the image the
defendant has created. Id. The State claims the latter method of introducing character
evidence is what happened in this case.

{36} At trial, the State argued that Defendant offered evidence of three character
traits: that she is a “law-abiding citizen,” “peaceful,” and “a good mother.” Our review of
the record indicates that Defendant did not offer, or attempt to offer, proof of these
character traits on direct examination. In other words, there was no such testimony to
rebut.

{37} Defendant did not testify that she was a law-abiding citizen. The testimony in that
broad ambit was that she was not prohibited from exercising her Second Amendment
rights and did not have a conviction for a felony, a crime of violence, or domestic
violence. Defendant’s specific statements do not constitute evidence for her character
as a generally law-abiding citizen. See State v. Bogle, 376 S.E.2d 745, 751 (N.C. 1989)
(stating that evidence of a lack of convictions merely indicates that one has not been
convicted of a crime, whereas “law-abiding” addresses a person’s character trait of
abiding by all laws).

{38} The State similarly overreaches to contend that Defendant testified that she had
a character trait of peacefulness. Defendant stated that she was not angry with the
judge adjudicating her custody issues and that she “just wanted everything to go right
for [her] daughter[, Y.C.].” She stated that she “always encouraged [her daughter, Y.C.,]
to have visits with her dad” despite parenting difficulties, that she never had a gun, and
that she did not have a conviction for a felony, a crime of violence, or domestic violence.
This testimony does not equate to Defendant testifying that she had a peaceful
character. Moreover, even if she had, the State’s inquiry into A.F.’s positive
methamphetamine test would be off-target and inadmissible as a rebuttal.

{39} Finally, we conclude that Defendant did not testify that she had the specific
character trait of being a good mother. In addition to stating that she wanted everything
to go well for her daughter, Y.C., Defendant testified that she planned to transfer
ownership of their house to Y.C. and that she put child support payments into a savings
account for Y.C. and encouraged Y.C. to have visits with her father, Cabral. This does
not amount to a proof or attempted proof of a character trait of being a good mother.
And there is no suggestion in this case that Defendant was responsible for A.F.’s
exposure to methamphetamine, so we are not persuaded that the inquiry into A.F.’s
positive test would be admissible to rebut evidence that she had the character trait of a
good mother had there been such evidence.

{40} When as in this case the defendant-witness testimony is focused on background
information and facts relevant to the charged crime, no “door” is opened to an attack on
character. See Mueller & Kirkpatrick, supra, § 4.24 at 703-04. Only if the defendant-
witness “ranges beyond these basic [background and relevant] facts” to “personally”
self-identify to a jury as the kind of person who would not engage in the charged crime
does the character-evidence “door” open. Id. Accordingly, we conclude that it was an
abuse of the district court’s discretion to allow the inquiry into the evidence under Rule
11-404(A)(2)(a) because Defendant did not personally open the door to evidence of the
specific character traits of being law-abiding, peaceful, or a good mother. See Bailey,
2017-NMSC-001, ¶ 12 (stating that a district court abuses its discretion when its ruling is
“‘untenable or not justified by reason’” (citation omitted)).
c. The district court’s error was not harmless

{41} Having concluded that a nonconstitutional error has been committed, it is our
responsibility to reverse and remand for a new trial unless there is no reasonable
probability that the error affected the jury’s verdict. State v. Tollardo, 2012-NMSC-008,
¶¶ 25, 36, 275 P.3d 110. To assess the probable effect of evidentiary error, we evaluate
the circumstances surrounding the error. Fernandez, 2023-NMSC-005, ¶ 24. This
evaluation includes, but is not limited to, “the source of the error, the emphasis placed
on the error, evidence of the defendant’s guilt apart from the error, the importance of the
erroneously admitted evidence to the prosecution’s case, and whether the erroneously
admitted evidence was merely cumulative.” Id. (internal quotation marks and citation
omitted).

{42} We begin by noting that the issue of A.F.’s drug test arose again during
Defendant’s closing argument. Defendant stated that the question about the positive
drug test was a “punch below the belt,” given that it referred to a case brought against
Flores, not her. And furthermore, argued Defendant, the case was dismissed.

{43} The State interrupted with an objection: Defendant was “misrepresenting things.”
The prosecutor asserted that there was no evidence put forth that the case against
Flores was dismissed and vehemently asserted that the case was not, in fact,
dismissed. The district court sustained the State’s objection and instructed the jury to
disregard the discussion related to the charges against Flores.

{44} During her closing statement, Defendant attempted to mitigate the prejudice from
the inquiry but was improperly thwarted by the State. Defendant sought to highlight that
the child endangerment case against Flores was dismissed. But the State objected and
argued to the district court that there was no evidence presented that the case against
Flores was dismissed. This was false: Defendant testified that she thought the case was
dismissed. The prosecutor further stated unequivocally that the case was not dismissed.
This, too, was a false statement: as the State concedes on appeal, the case was, in
fact, dismissed. And, boldly, the prosecutor accused Defendant’s attorney of
“misrepresenting things.” All of these false statements were made in front of the jury and
quickly reinforced by the district court in its sustaining of the State’s objection. Under
these circumstances, we are unconvinced by the State’s contention that the error was
harmless.

{45} Moreover, the harmless error argument offered by the State is weak. The State
argues that it only “asked one question to rebut the image Defendant had painted of
herself” and that the “question did not go the heart of the State’s case or Defendant’s
defense.” Essentially, the State argues that the inquiry into A.F.’s positive
methamphetamine test was not very important or impactful. And yet the State made
multiple misstatements to the district court that, cumulatively, had the effect of keeping
this question in front of the jury and adding to the question’s impact.

{46} Defendant makes a more compelling argument that the error was not harmless.
Defendant states that Defendant’s credibility was an important aspect of the case. The
evidence, although sufficient to support Defendant’s convictions, was largely
circumstantial. Defendant contends that the State’s inquiry into A.F.’s positive
methamphetamine test portrayed her in a negative light, suggesting to the jury that she
might have criminal ties and might be capable of hiring a hitman or committing murder.
Moreover, the prosecutor’s false statements during closing—which were implicitly
endorsed by the district court’s ruling to disregard Defendant’s discussion of Flores’s
case—unfairly undermined her credibility by implying to the jury that she and her lawyer
were untrustworthy.

{47} We conclude there is a reasonable probability that the error affected the jury’s
verdict. See Tollardo, 2012-NMSC-008, ¶ 36 (stating that our harmless error review of
nonconstitutional error examines whether there was a reasonable probability that the
error affected the verdict). In this case, the State was the source of the error; the
evidence of Defendant’s guilt, although substantial, was circumstantial; the error
affected an important issue in the case—credibility; the State, although it disavows the
importance of the evidence at issue, went to great lengths to preserve its impact; and,
finally, the evidence at issue was not cumulative. See Fernandez, 2023-NMSC-005, ¶
24 (instructing appellate courts to examine “the source of the error, the emphasis placed
on the error, evidence of the defendant’s guilt apart from the error, the importance of the
erroneously admitted evidence to the prosecution’s case, and whether the erroneously
admitted evidence was merely cumulative” (internal quotation marks and citation
omitted)). Accordingly, we reverse Defendant’s convictions and remand for a new trial.

B. Defendant’s Convictions of Criminal Conspiracy and Criminal Solicitation
Do Not Violate Double Jeopardy Protections

{48} “A double jeopardy challenge is a constitutional question of law which we review
de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747.

{49} Defendant argues that her convictions of conspiracy to commit first-degree
murder and criminal solicitation of first-degree murder violate double jeopardy
protections afforded by the Fifth Amendment to the United States Constitution. When
we conclude that there was a double jeopardy violation, we “vacate the conviction
carrying the shorter sentence.” State v. Montoya, 2013-NMSC-020, ¶ 55, 306 P.3d 426.

{50} “Double jeopardy protects against multiple punishments for the same offense.”
State v. Silvas, 2015-NMSC-006, ¶ 8, 343 P.3d 616. “Cases involving multiple violations
of a single statute are referred to as ‘unit-of-prosecution’ cases, while cases involving
violations of multiple statutes are ‘double-description’ cases.” Id. This is a double-
description case.

{51} To analyze double-description cases, we apply a two-part framework. Id. ¶ 9.
First, we examine whether the defendant’s conduct is unitary. Id. If not, there is no
double jeopardy violation and our analysis concludes. Id.

{52} However, if the conduct at issue is unitary, we examine whether the Legislature
intended to punish the offenses separately. Id. If we conclude that separate
punishments for the offenses are the Legislature’s intent, there is no double jeopardy
violation. Id. Thus, to establish a double jeopardy violation in double-description cases,
a defendant must demonstrate that the conduct is unitary and that the Legislature did
not intend separate punishments for the offenses at issue. Id.

{53} To determine whether conduct is unitary, we examine whether the defendant’s
acts are “separated by sufficient indicia of distinctness.” State v. Phillips, 2024-NMSC-
009, ¶ 38, 548 P.3d 51 (internal quotation marks and citation omitted). “Conduct is
unitary when not sufficiently separated by time or place, and the object and result or
quality and nature of the acts cannot be distinguished.” Silvas, 2015-NMSC-006, ¶ 10.

{54} Defendant argues that we must presume that unitary conduct underlies the
solicitation and conspiracy convictions pursuant to the Foster presumption. See State v.
Foster, 1999-NMSC-007, ¶ 28, 126 N.M. 646, 974 P.2d 140, abrogated on other
grounds by Kersey v. Hatch, 2010-NMSC-020, ¶¶ 9, 17, 148 N.M. 381, 237 P.3d 683.
Under Foster, we presume that conduct is unitary where jury instructions provide
alternative bases for conviction of an offense, one of which violates double jeopardy,
and where the record fails to disclose which alternative the jury relied on. State v. Sena,
2020-NMSC-011, ¶ 47, 470 P.3d 227.

{55} The solicitation charge, in this case, required the jury to find that Defendant
“intended that another person commit first degree murder” and that Defendant “solicited,
requested, induced, or employed the other person to commit” the murder. The
conspiracy charge required the jury to find that “[D]efendant and another person by
words or acts agreed . . . to commit first degree murder” and that “[D]efendant and the
other person intended to commit first degree murder.” Defendant argues that both
relevant jury instructions indicated the same date of offense—“on or about” the date of
the murders—and both stated that Defendant acted with “another person” without
specifying the other person. Furthermore, the prosecutor said during the closing
argument that Defendant conspired with Alonso and Flores. In other words, argues
Defendant, the jury could have found Defendant guilty of conspiracy not with Flores but
with Alonso, which would have been based on the same conduct by Defendant as for
the crime of solicitation. Defendant concluded that “[t]he evidence presented at trial did
not establish separate factual bases for conspiracy and solicitation.”

{56} We disagree. In this case, the record discloses which alternative the jury relied
upon. The solicitation conviction is clearly based on Defendant’s request that Alonso
murder Cabral for money. The crime was completed at the time of the request; the later
payment bolstered the evidence of Defendant’s intent that Alonso commit the murder.

{57} We further conclude that Defendant’s conspiracy conviction was not grounded in
these actions but, instead, in an agreement with Flores. The jury acquitted Defendant of
the murder of Mora but convicted her of the murder of Cabral. We can infer that
Defendant was convicted of conspiracy with Flores in the killing of Cabral.

{58} The evidence comports with this theory. There was testimony indicating that a
conspiracy between Defendant and Flores developed in response to Alonso’s delay and
ultimate failure to complete the murder for hire. That is, Alonso testified that Defendant
told him that Flores would murder Cabral if Alonso “wasn’t able to finish the job.”
Defendant and Flores also showed Alonso a .45 caliber gun and asked whether he had
an extra magazine for it. The structure of the verdict, in combination with the evidence,
indicates that the jury found a conspiracy between Defendant and Flores, whereas the
solicitation conviction is based on Defendant’s request to Alonso. Stated otherwise, the
solicitation and conspiracy convictions were based on entirely distinct conduct.
Accordingly, we conclude that the Foster presumption has been overcome in this case.
See Sena, 2020-NMSC-011, ¶¶ 52, 56 (concluding that the Foster presumption was
overcome because “[a]lthough the [jury] instructions permitted the jury to convict” the
defendant of multiple crimes under the same instruction’s alternatives, the evidence
demonstrated that the crimes were separated by sufficient indicia of distinctness); see
also State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (“The proper
analytical framework is whether the facts presented at trial establish that the jury
reasonably could have inferred independent factual bases for the charged offenses.”
(internal quotation marks and citation omitted)). We thus conclude that there was no
double jeopardy violation in Defendant’s convictions of both conspiracy and solicitation.
Silvas, 2015-NMSC-006, ¶ 9.

C. Substantial Evidence Supports Defendant’s Conviction of First-Degree
Murder

{59} Defendant argues that the first-degree murder conviction is not supported by
sufficient evidence, which, if true, would bar retrial for that charge. State v. Consaul,
2014-NMSC-030, ¶ 41, 332 P.3d 850. The jury was required to find beyond a
reasonable doubt that, in relevant part, Defendant killed Cabral and did so with the
deliberate intent to take away his life.

{60} “Our standard of review for sufficiency of the evidence is highly deferential to the
jury’s verdict.” State v. Chavez, 2024-NMSC-023, ¶ 40, 562 P.3d 521. The jury’s verdict
can be supported by “substantial evidence of either a direct or circumstantial nature.”
State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314.

{61} “We view 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.” Chavez, 2024-NMSC-023, ¶ 40 (internal quotation marks and citation omitted).
We do “not invade the jury’s province as fact-finder by second guessing the jury’s
decision concerning the credibility of witnesses, reweighing the evidence, or substituting
[our] judgment for that of the jury.” Id. (internal quotation marks and citation omitted).
Accordingly, “evidence supporting acquittal does not provide a basis for reversal
because the jury is free to reject [the d]efendant’s version of the facts.” State v. Rojo,
1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “So long as a rational jury could
have found beyond a reasonable doubt the essential facts required for a conviction, we
will not upset a jury’s conclusions.” Chavez, 2024-NMSC-023, ¶ 40 (internal quotation
marks and citation omitted).
{62} Alonso identified Defendant as the person with whom he discussed murdering
Cabral, testifying that Defendant expressed a desire to have him killed within sixty days.
The murder ultimately occurred within that approximate time frame. Cabral’s aunt and
uncle testified that Defendant obtained a .45-caliber gun from them before the murders
and Alonso testified that Defendant and Flores showed him a .45-caliber gun. Police
found .45-caliber ammunition in one of the bedrooms in Defendant’s home. The murder
weapon was a .45-caliber gun. On a phone seized from Defendant’s car or home, police
found photos of the back of the house where Cabral lived—where the murders took
place. Additionally, on a phone seized from Defendant’s home, police found numerous
aerial images of the property where the murders took place and the surrounding area.
Alonso testified that Defendant told him that if he was not able to murder Cabral, her
boyfriend “was gonna take care of it.”

{63} Defendant argues that because the evidence from the crime scene was, as she
characterizes it, exculpatory of both herself and Flores, the foregoing nominally
circumstantial evidence is insufficient. Defendant notes, for example, that footprints
found at the scene did not match any shoes belonging to Flores and fingerprints found
on shell casings did not match Flores’ fingerprints. However, to accept Defendant’s
argument would invade the province of the jury, which we cannot do. See Chavez,
2024-NMSC-023, ¶ 40 (stating that we will not reweigh the evidence or substitute our
judgment for that of the jury); Rojo, 1999-NMSC-001, ¶ 19 (“[E]vidence supporting
acquittal does not provide a basis for reversal because the jury is free to reject [the
d]efendant’s version of the facts.”). Accordingly, we conclude that Defendant’s
conviction of first-degree murder is supported by sufficient evidence.

D. The First Amendment Affords a Right of Access to Criminal Trials to the
General Public and the Press

{64} On the third day of trial, the district court judge confirmed the State’s
“understanding” that notetaking by trial observers is generally forbidden. Then, having
been alerted by the State that there was a woman taking notes in the back of the
courtroom, the judge instructed the woman to surrender her notes. Nothing in the record
demonstrates that she interfered with or disrupted the proceedings in any way.

{65} Defense counsel argued that observers may take notes at a public trial. Defense
counsel identified the notetaker as a family friend of Defendant, the sister of a local
attorney, and the only guest observer allowed to Defendant during her COVID-19-era
trial. On appeal, Defendant argues that the ban on notetaking was tantamount to an
unjustified “partial closure of the courtroom” that “violated her right to public trial,”
warranting reversal.

{66} Defendant has the right to a public trial under the Sixth Amendment to the United
States Constitution, Gannett Co. Inc. v. DePasquale, 443 U.S. 368, 379-80 (1979), and
New Mexico has an established test to determine whether a closure violates that right,
State v. Turrietta, 2013-NMSC-036, ¶ 19, 308 P.3d 964. But, because we have already
granted Defendant a new trial, we decline to reach her argument on this issue.
{67} Defendant, however, is not the only party with a constitutional interest in the
public nature of a criminal trial. “[T]he press and general public have a constitutional
right” to access criminal trials. Globe Newspaper Co. v. Superior Ct. for Cnty. of Norfolk,
457 U.S. 596, 603 (1982). The right to access criminal trials “is embodied in the First
Amendment.” Id. We are compelled to discuss this issue based on the actions of the
district court judge.

{68} The First Amendment to the United States Constitution, of course, protects
freedom of expression. But not just that. The First Amendment “has a structural role to
play in securing and fostering our republican system of self-government”. Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 587 (1980) (Brennan, J., concurring in
judgment) (emphasis in original). This structural role reflects “not only the principle that
debate on public issues should be uninhibited, robust, and wide-open but also the
antecedent assumption that valuable public debate . . . must be informed.” Id. (internal
quotation marks and citation omitted); see also Globe Newspaper, 457 U.S. at 603
(“[T]he First Amendment serves to ensure that the individual citizen can effectively
participate in and contribute to our republican system of self-government.”).

{69} The constitutional guarantee of open trials has two important functions. “Open
trials . . . assure the criminal defendant a fair and accurate adjudication.” Richmond
Newspapers, 448 U.S. at 593 (Brennan, J., concurring in judgment). But in addition, and
importantly, open trials “serve[] other, broadly political, interests” by allowing the public
to keep watch over the justice system itself. See id. at 594, 596 (Brennan, J., concurring
in judgment). “[J]udges bear responsibility for the vitally important task of construing and
securing constitutional rights.” Id. at 595 (Brennan, J., concurring in judgment). And
“court rulings impose official and practical consequences upon members of society at
large.” Id. (Brennan, J., concurring in judgment) “Under our system, judges are not mere
umpires, but, in their own sphere, lawmakers—a coordinate branch of government.” Id.
at 595-96 (Brennan, J., concurring in judgment). The trial—as a “genuine governmental
proceeding”—“plays a pivotal role in the entire judicial process, and, by extension, in our
form of government.” Id. at 595-96 (Brennan, J., concurring in judgment).

{70} “It follows that the conduct of the trial is pre-eminently a matter of public interest.”
Id. at 596 (Brennan, J., concurring in judgment). And open trials are “akin in purpose to
the other checks and balances that infuse our system of government.” Id. (Brennan, J.,
concurring in judgment); see also In re Oliver, 333 U.S. 257, 270 (1948) (“The
knowledge that every criminal trial is subject to contemporaneous review in the forum of
public opinion is an effective restraint on possible abuse of judicial power.”). “‘Without
publicity, all other checks are insufficient: in comparison of publicity, all other checks are
of small account.’” In re Oliver, 333 U.S. at 271 (quoting 1 Jeremy Bentham, Rationale
of Judicial Evidence 524 (1827)). “Open trials assure the public that . . . justice is
afforded equally.” Richmond Newspapers, 448 U.S. at 595 (Brennan, J., concurring in
judgment); see also Globe Newspaper, 457 U.S. at 606 (“[P]ublic access to the criminal
trial fosters an appearance of fairness, thereby heightening public respect for the judicial
process.”).
{71} Secrecy, on the other hand, “is profoundly inimical to” to demonstrating “the
fairness of the law to our citizens.” Richmond Newspapers, 488 U.S. at 594-95
(Brennan, J., concurring in judgment). “Closed trials breed suspicion of prejudice and
arbitrariness, which in turn spawns disrespect for law.” Id. at 595 (Brennan, J.,
concurring in judgment). And closed trials are deeply contrary to historical practice: the
United States Supreme Court was unable to find a single instance of an in camera
criminal trial in any federal, state, or municipal court in our country’s entire history. See
Globe Newspaper Co., 457 U.S. at 605.

{72} In sum, “a right of access to criminal trials . . . is properly afforded protection by
the First Amendment.” Id. at 605-06 (emphasis in original). “Where . . . the [s]tate
attempts to deny the right of access in order to inhibit the disclosure of sensitive
information, it must be shown that the denial is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that interest.” Id. at 606-07. In
this case, the district court wrongly construed notetaking by a member of the public as a
problematic rather than protected activity, compelling us to issue this reproach.
Prohibiting handwritten notes during court sessions restricts the public’s and press’s
rights of access, distancing the judicial process from public scrutiny and weakening the
opportunity for informed discussions on judicial matters. See Craig v. Harney, 331 U.S.
367, 374 (1947) (“There is no special perquisite of the judiciary which enables it, as
distinguished from other institutions of democratic government, to suppress, edit, or
censor events which transpire in proceedings before it.”).

III. CONCLUSION

{73} For the reasons stated, we reverse Defendant’s convictions and remand for a
new trial.

{74} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

C. SHANNON BACON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice

DAVID K. THOMSON, Chief Justice, dissenting

THOMSON, Chief Justice (dissenting).

{75} The majority bases its decision to order a new trial on what it calls cumulative
error, a result of the trial court’s admission of one piece of testimony regarding
Defendant’s infant child, A.F., testing positive for methamphetamine and the State’s
objection when Defendant raised the issue a second time in closing argument. Maj. op.
¶¶ 1-2, 42-45. I disagree that admitting the evidence was an abuse of discretion and
would hold that it was proper rebuttal evidence under Rule 11-404(A)(2)(a) NMRA in
light of Defendant’s testimony. Even if admitting the testimony was error, it was neither
cumulative nor reversible. For these reasons, I respectfully dissent.

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION

{76} The trial court’s conclusion that Defendant opened the door to the State’s
question regarding the positive methamphetamine test makes it apparent that the court
admitted the testimony as rebuttal evidence under Rule 11-404(A)(2)(a). We review the
trial court’s decision to admit the testimony under that rule for an abuse of discretion.
State v. Sena, 2008-NMSC-053, ¶ 12, 144 N.M. 821, 192 P.3d 1198. An abuse of
discretion “occurs when the court’s ruling is clearly against the logic and effect of the
facts and circumstances of the case. We cannot say the trial court abused its discretion
. . . unless we can characterize [its ruling] as clearly untenable or not justified by
reason.” Id. (internal quotation marks and citation omitted).

{77} The defense repeatedly elicited testimony from Defendant surrounding her
children, her demeanor as a parent, and her care for her children. As the majority notes,
Defendant testified that she was not angry about the judge’s ruling in the custody
dispute because she wanted what was right for her daughter, Y.C., that she encouraged
her daughter to see Cabral even though the child was reluctant, and that she “had to put
[Y.C.] in counseling.” She testified that she was sad to hear of Cabral’s death because
“that was [Y.C.]’s father.” While Defendant may not have outright stated “I am a good
mother,” that is not required. Rule 11-404(A)(2)(a) does not require that the prosecution
be confronted with proof of a trait as the majority suggests, only that the defense offer
evidence of the character trait to open the door to rebuttal. See Rule 11-404(A)(2)(a)
(“[A] defendant may offer evidence of the defendant’s pertinent trait, and if the evidence
is admitted, the prosecutor may offer evidence to rebut it.”); State v. Moultrie, 1954-
NMSC-056, ¶ 7, 58 N.M. 486 , 272 P.2d 686 (“‘The price a defendant must pay for
attempting to prove his good name is to throw open the entire subject which the law has
kept closed for his benefit and to make himself vulnerable where the law otherwise
shields him.’” (quoting Michelson v. United States, 335 U.S. 469, 479 (1948))). The trial
court, having heard the testimony, concluded that Defendant presented testimony
seeking to portray herself as a good parent, something otherwise irrelevant. With that,
Defendant expanded the scope of relevant evidence in the case, opening the door to
rebuttal evidence on her otherwise irrelevant character as a parent. See Coates v. Wal-
Mart Stores, Inc., 1999-NMSC-013, ¶ 38, 127 N.M. 47, 976 P.2d 999 (reasoning that a
party opens the door to the admission of rebuttal evidence when it makes a statement
that causes the evidence to become “relevant to rebut[tal]”). Given Defendant’s
statements, the trial court’s decision to admit testimony on Defendant’s child testing
positive for methamphetamines as rebuttal evidence cannot be characterized as “clearly
untenable or not justified by reason,” and this Court should defer to the trial court’s
conclusion. Sena, 2008-NMSC-053, ¶ 12 (internal quotation marks and citation
omitted).
{78} The majority asserts, however, that because Defendant’s boyfriend, Luis Flores,
was charged with child endangerment and not Defendant herself, the positive test
cannot be relevant to Defendant’s character as a parent. Maj. op. ¶¶ 16, 39. I disagree.
Defendant need not be charged with child endangerment in order for the jury to
reasonably infer a level of responsibility for her child testing positive for
methamphetamine. The young child tested positive after living in the home that
Defendant shared with Flores. There is no dispute that the child was in her care and
that Defendant was responsible for her well-being. The majority provides no reasoning
for limiting the jury’s ability to infer that Defendant knew there was meth in the home
and that her child might be exposed, and there is no basis for questioning such an
inference. The positive methamphetamine test was relevant and appropriate rebuttal
evidence given Defendant’s portrayal of her character as a parent, and the trial court did
not abuse its discretion in admitting the testimony under Rule 11-404(A)(2).

II. THERE WAS NO REVERSIBLE ERROR

{79} Even if the trial court abused its discretion in admitting the testimony regarding
the positive methamphetamine test, there is no reasonable probability of that evidence
inducing the guilty verdict given “all of the circumstances surrounding” the testimony.
State v. Fernandez, 2023-NMSC-005, ¶ 24, 528 P.3d 621 (internal quotation marks and
citation omitted); State v. Bailey, 2015-NMCA-102, 357 P.3d 423, ¶¶ 29-30 (holding that
admitting testimony is not error if there is no reasonable probability that the testimony
affected the verdict), aff’d, 2017-NMSC-001, ¶ 29, 386 P.3d 1007.

{80} The majority frames the evidence in this case as circumstantial, with Defendant’s
credibility as key. See maj. op. ¶¶ 46-47. However, the “evidence of the defendant’s
guilt apart from the” testimony was substantial. Fernandez, 2023-NMSC-005, ¶ 24
(internal quotation marks and citation omitted). The jury heard testimony from Edward
Alonso, the man whom Defendant allegedly hired to kill Victim Cabral mere weeks
before Victim Cabral was found dead. Alonso described his conversations with
Defendant and the plot in detail, recounted meeting with Defendant multiple times so
Defendant could lead Alonso to Cabral, and identified Defendant for the jury as the
woman who hired him. Alonso testified that Defendant pressured him to kill Cabral and
told him that her boyfriend “Luis was going to take care of it” if Alonso did not kill Cabral.

{81} The jury also heard from George Dougherty, the federal agent who interviewed
Alonso regarding what Alonso described as “a murder for hire” scheme stemming out of
a custody dispute. Agent Dougherty testified that Alonso told him the first names of the
parties involved, including the woman who hired Alonso, “Cristal,” which is Defendant’s
first name, and “Mario,” which is Cabral’s first name. Alonso testified that he told Agent
Dougherty the place and time frame for the killing and that Cabral would be killed with a
.45 caliber gun, which was the caliber ultimately used. Additionally, Agent Dougherty
was able to corroborate the existence of a custody battle between Defendant and
Cabral and identified police reports indicating conflict between the two. Using the
detailed information Alonso provided, Agent Dougherty was able to identify Defendant
as the likely individual who hired Alonso and to locate and warn Cabral that his life was
in danger. In terms of physical evidence, police found .45 caliber ammunition in
Defendant’s home and dozens of photos of the house Cabral occupied, obtained from a
cell phone located in a car seized from Defendant.

{82} To overcome the evidence and reach reversible error, the majority portrays the
State’s reliance on the positive methamphetamine test as pervasive and rooted in
egregious prosecutorial behavior. Maj. op. ¶¶ 44-47. However, in doing so, the majority
diminishes Defendant’s own actions centering the evidence as well as our caselaw
governing reversible error and closing argument.

{83} The State’s invocation of the methamphetamine test was limited to one question
asked of Defendant on cross-examination. It was Defendant who raised the issue for a
second time on redirect examination and chose to rehash it again in closing argument.
And while the State objected in closing argument and ultimately misstated the
disposition of the case against Flores, it was not the State’s actions that had the effect
of “keeping this question in front of the jury and add[ing] to the question’s impact.” Maj.
op. ¶¶ 44-45. Ultimately, the State’s actions simply do not satisfy the requirements of
reversible error; the State did not emphasize the information, and it was not central or
necessary to the State’s case while the other evidence of Defendant’s guilt was
overwhelming. See Fernandez, 2023-NMSC-005, ¶ 24.

{84} Seemingly aware of this, the majority frames the State’s statements in closing as
egregious and unduly harmful to Defendant’s credibility in order to support a finding of
error. Maj. op. ¶¶ 44-47. But damage to Defendant’s credibility is not enough, nor are
statements in closing argument evidence. UJI 14-104 NMRA. To determine whether the
State’s erroneous statements during closing argument support reversal, we assess “(1)
whether the statement invades some distinct constitutional protection; (2) whether the
statement is isolated and brief, or repeated and pervasive; and (3) whether the
statement is invited by the defense.” See State v. Sosa, 2009-NMSC-056, ¶ 26, 147
N.M. 351, 223 P.3d 348. “In applying these factors, the statements must be evaluated
objectively in the context of the prosecutor’s broader argument and the trial as a whole.”
Id.

{85} Here, the statements did not violate any constitutional protection, and they were
completely isolated. Most importantly, the statements were invited by the defense. Id. ¶
33 (“[W]e are least likely to find error where the defense has ‘opened the door’ to the
prosecutor's comments by its own argument or reference to facts not in evidence.”).
There is also no reason to believe the State was deliberately misleading the court and
jury, but rather it appears that the State was confused and acting out of perceived need
to correct the record. Those actions simply do not support reversible error justifying a
new trial, particularly given the totality of the trial where “evidence of guilt is
overwhelming.” Id. ¶ 34.

{86} Accordingly, I would affirm Defendant’s convictions.

DAVID K. THOMSON, Chief Justice