State v. Vargas

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
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: March 2, 2020

No. S-1-SC-36773

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ROBERTO VARGAS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Jane Shuler-Gray, District Judge

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General
Eran Shemuel Sharon, Assistant Attorney General
Santa Fe, NM

for Appellee

DECISION

VIGIL, Justice.

{1} For his role in a drive-by shooting resulting in the death of one victim and injury to
another, Defendant Roberto Vargas was convicted of first-degree depraved mind
murder, contrary to NMSA 1978, Section 30-2-1(A)(3) (1994); conspiracy to commit
first-degree depraved mind murder, contrary to Section 30-2-1(A)(3) and NMSA 1978,
Section 30-28-2 (1979); aggravated battery, contrary to NMSA 1978, Section 30-3-5
(1969); shooting at a dwelling, contrary to NMSA 1978, Section 30-3-8(A) (1993);
tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003); and
contributing to the delinquency of a minor, contrary to NMSA 1978, Section 30-6-3
(1990).

{2} Considering Defendant’s various arguments on appeal, we conclude that: (A) the
evidence was insufficient to support Defendant’s convictions for tampering with
evidence and shooting at a dwelling; (B) we need not address whether Defendant’s
convictions for shooting at a dwelling and first-degree depraved mind murder violate the
prohibition against double jeopardy; (C) Defendant’s conviction for conspiracy to commit
depraved mind murder must be vacated because it is a nonexistent crime; (D) the lack
of an intoxication instruction did not result in fundamental error; (E) the district court’s
limitations on Defendant’s cross-examination of two witnesses was not an abuse of
discretion nor a violation of Defendant’s constitutional right to confront the witnesses
against him; and (F) Defendant’s judgment and sentence must be corrected to reflect
the jury’s verdict. Because the questions of law raised by this case are sufficiently
addressed by New Mexico precedent, we exercise our discretion under Rule 12-
405(B)(1) NMRA to dispose of this case by non-precedential decision.

I. BACKGROUND

{3} This incident began with Defendant driving his friend, Abraham Venegas, and
Abraham’s cousin, Carlos Venegas, to Abraham’s house in Carlsbad, New Mexico at
around midnight following a party on July 4, 2016. Abraham then went to sleep.

{4} In the early morning hours of July 5, 2016, Eric Flores, Janell Villareal, Jesus
“Jesse” Navarro, and Tamika Stearns were gathered outside of the home of Janell and
Jesse’s grandmother at 306 Peachtree Street in Carlsbad. As they were talking,
Defendant and Carlos pulled up in a white truck, and Defendant got out. Defendant told
the group he had been drinking and offered them some beer. Defendant then become
loud and told Jesse that he wanted to speak to Tamika about something she had
allegedly said. Jesse would not let Defendant talk to Tamika and asked Defendant to
keep his voice down because people were sleeping.

{5} Defendant refused, and Jesse either put his arm around Defendant to usher him
to leave or punched Defendant in the face. Defendant then took a swing at Jesse but
missed and fell over. Defendant mistook Jesse’s attempt to help him up as an attack
and a fight broke out between Defendant and Jesse.

{6} During the fight, Defendant ended up by the driver’s side door on the truck. From
inside the truck, Carlos hit Jesse with an aluminum bat before Eric reached in and took
it away. Eric then yelled for Janell to get his gun. Jesse, Janell, and Tamika all testified
at trial that none of them, including Eric, had a gun. At that point, Defendant got back
into the truck and fled, saying “I’m going to kill you . . . I’m going to kill all you
motherfuckers.”
{7} Abraham testified that he was woken up by Defendant and Carlos an hour or two
after he fell asleep. Defendant and Carlos told Abraham that they had been jumped and
that Carlos had been hit with a bat. Abraham testified that Defendant, who was angry
and “really drunk,” wanted to go back and fight. Abraham agreed to go because he was
upset that Carlos had been hit. The three men then got into Abraham’s truck, where
Abraham kept his AK-47, and Abraham drove back towards Peachtree Street.

{8} Abraham testified that they stopped along the way so that he could relieve
himself. At that point, Carlos got into the bed of the truck with the AK-47 and Defendant
told him to “get ready.” Abraham testified that, because he believed they were just going
to fight, he thought Carlos had the gun only as a precaution. Abraham explained that, as
they drove off, he turned off the lights of the truck but did not offer an explanation as to
why. After driving for another two or three minutes, they arrived at Peachtree Street.
Abraham testified that as he was bringing the truck to a stop at the house, he heard
gunfire from the bed of the truck and saw Defendant shooting a shotgun from the
passenger seat. Abraham claimed that he had not seen the shotgun in Defendant’s
hands until he started shooting. When the shooting started, Abraham sped away.

{9} Tamika testified that the white truck came back roughly five minutes after
Defendant had initially driven away. As the truck pulled up to 306 Peachtree, Eric and
Janell were backing out of the driveway in Eric’s van. Jesse and Tamika were outside of
Jesse’s car on the driveway. Jesse and Janell testified that they heard someone yell,
“What’s up now?” before the gunfire started. When the firing started, Jesse ducked
down behind his vehicle and testified that he could see a driver, a passenger, and
someone in the bed of the truck but could not identify who they were. Tamika got inside
Jesse’s car and testified that she could tell the gunshots were coming from the white
truck but did not see who was shooting. Janell testified that she saw Abraham driving
the truck, Carlos in the bed, and Defendant in the front passenger seat.

{10} Eric was fatally shot in the lungs and heart with bullets from the AK-47. Janell
was hit in the arm with pellets from the shotgun. The neighbor’s house at 304 Peachtree
was also damaged by gunfire.

{11} When Abraham, Carlos, and Defendant got back to Abraham’s home, Abraham
told Carlos and Defendant to get their things and leave. Abraham testified that he did
not get his AK-47 out of the truck and did not see what happened to it. In a later search
of Abraham’s home and truck, a rifle was found in his truck but the shotgun used in the
shooting was not found.

{12} Abraham took a plea deal and agreed to testify against Defendant. After a jury
trial, Defendant was convicted of first-degree depraved mind murder, conspiracy to
commit first-degree depraved mind murder, aggravated battery, shooting at a dwelling,
tampering with evidence, and contributing to the delinquency of a minor. The jury
additionally found that a firearm was used in the commission of the depraved mind
murder and aggravated battery. Defendant was sentenced to life imprisonment plus
thirty-nine years, and appeals his convictions directly to this Court pursuant to Rule 12-
102(A)(1) NMRA.

II. DISCUSSION

A. There Was Not Sufficient Evidence Presented to Support Defendant’s
Convictions for Either Tampering with Evidence or Shooting at a Dwelling

{13} Defendant challenges the sufficiency of the evidence supporting two of his
convictions: tampering with evidence and shooting at a dwelling. “The test for
sufficiency of the evidence is whether substantial evidence of either a direct or
circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with
respect to every element essential to a conviction.” State v. Duran, 2006-NMSC-035, ¶
5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). When
reviewing for sufficiency of the evidence, “we employ a deferential standard in favor of
the jury’s verdict” and “view the evidence in the light most favorable to the State,
resolving all conflicts and making all permissible inferences in favor of the jury’s verdict.”
State v. Consaul, 2014-NMSC-030, ¶ 42, 332 P.3d 850 (internal quotation marks and
citation omitted). “It is our duty to determine whether any rational jury could have found
the essential facts to establish each element of the crime beyond a reasonable doubt.”
Id. (internal quotation marks and citation omitted).

{14} Although Defendant raised the issue of the sufficiency of the evidence for all of
his convictions in his statement of issues, in his brief in chief he makes no arguments
regarding the sufficiency of the evidence for his convictions of first-degree depraved
mind murder, conspiracy to commit depraved mind murder, aggravated battery, or
contributing to the delinquency of a minor and has therefore abandoned those issues.
See State v. McDowell, 2018-NMSC-008, ¶ 34, 411 P.3d 337 (concluding that, under
Rule 12-318(A)(4) NMRA, sufficiency of the evidence arguments are abandoned if not
briefed). Accordingly, we turn now to an analysis only of the sufficiency of the evidence
supporting his convictions of tampering with evidence and shooting at a dwelling. We
conclude the evidence was insufficient to support either conviction.

1. Tampering with evidence

{15} Defendant first challenges the sufficiency of the evidence for his conviction of
tampering with evidence, contrary to Section 30-22-5. A conviction for tampering with
evidence required that the jury find that (1) Defendant hid physical evidence; (2) he did
so intending to prevent his “apprehension, prosecution, or conviction;” and (3) he did so
in New Mexico on or about July 5, 2016. See UJI 14-2241 NMRA. Defendant argues
and the State concedes that the only evidence related to this charge was testimony that
an AK-47 and 12-gauge shotgun were used in the shooting, Abraham’s testimony that
he did not know what happened to the AK-47 after the shooting, and police testimony
that a rifle, but not a 12-gauge shotgun, was found in a search of Abraham’s home and
truck.
{16} It is settled law that “[t]he State cannot convict Defendant of tampering with
evidence simply because evidence that must have once existed cannot now be found.”
State v. Guerra, 2012-NMSC-027, ¶ 16, 284 P.3d 1076. The State concedes that the
evidence in this case was insufficient to prove that Defendant had a specific intent to
tamper with evidence. Id. ¶ 14 (requiring either direct or circumstantial evidence of an
intent to tamper). Because the evidence merely establishes that a firearm used in the
shooting could not be found, the evidence is insufficient to support Defendant’s
conviction for tampering with evidence and that conviction must therefore be
overturned.

2. Shooting at a dwelling

{17} Defendant also argues that the evidence was insufficient to prove that he
“willfully shot at a dwelling,” contrary to Section 30-3-8(A). A conviction for this offense
required the jury to find that (1) Defendant “willfully shot a firearm at a dwelling house”;
(2) that he “knew that the building was a dwelling house”; and (3) that this happened in
New Mexico on or about July 5, 2016. See UJI 14-340 NMRA. We recently discussed
the evidence sufficient to support a conviction of shooting at a dwelling in State v.
Comitz, 2019-NMSC-011, 443 P.3d 1130.

{18} In Comitz, we held that the evidence was insufficient to support a conviction for
shooting at a dwelling where the evidence did not support that the house was the target
of the defendant’s gunfire. Id. ¶¶ 18, 22 (citing Webster’s Third New International
Dictionary 136 (3d ed. 1993) (defining “at” as “a function word to indicate that which is
the goal of an action or that toward which an action or motion is directed”)). In that case,
the defendant and his companions returned to a home four days after the defendant
fought one of its residents. Comitz, 2019-NMSC-011, ¶¶ 2-3. After the defendant called
for the resident to come outside, the resident came and stood on the porch steps with
two others. Id. ¶¶ 4-5. An argument erupted into a gunfight in which one person was
killed and two others were injured. Id. ¶¶ 6-8.

{19} We concluded that these facts were significantly distinguishable from opinions
upholding convictions for shooting at a dwelling. Id. ¶¶ 19-22. First, the defendant’s
specific targeting of the individuals in front of the house was distinct from the
indiscriminate firing at houses in previous cases. Id. ¶¶ 18-22; see State v. Torrez 2013-
NMSC-034, ¶¶ 2-4, 42, 305 P.3d 944 (upholding a conviction for shooting at a dwelling
where the defendant engaged in an altercation at the party, returned to the party, and
fired at the house); State v. Varela, 1999-NMSC-045, ¶¶ 1-2, 4, 7, 21, 128 N.M. 454,
993 P.2d 1280 (upholding a conviction for accessory to felony murder by shooting at a
dwelling where the defendant’s companion fired several rounds into the mobile home of
a gang rival’s father to “get even” with the rival). Second, we noted the absence of
testimony that the defendant had directly aimed at the house. Comitz, 2019-NMSC-011,
¶¶ 20, 22.

{20} In contrast to Comitz, in State v. Arrendondo we upheld a conviction for shooting
at a dwelling where the evidence allowed the jury to reasonably infer that the defendant
“intentionally shot into the house.” 2012-NMSC-013, ¶¶ 36-37, 278 P.3d 517. We based
this conclusion on evidence that (1) the defendant “was expressing hostility towards”
someone he knew was in the house; (2) “at least two bullets entered the house”; and (3)
“the trajectory of the bullets that entered the house was different from the trajectory of
the bullets that entered [the victim’s] body[,]” indicating that the defendant “was aiming
directly at the house.” Id.

{21} In this case, no evidence was presented that Defendant directly targeted any
dwelling or even a person in a dwelling. At closing and on appeal, the only evidence the
State relies on to prove that Defendant “willfully shot at a dwelling” is testimony from the
resident of 304 Peachtree that her home was hit and damaged by gunfire. Although
crime scene investigators testified to the damage to 304 Peachtree, no trajectory
evidence was presented to demonstrate that Defendant or Carlos directly aimed at the
house. Additionally, no evidence was presented that Defendant had any hostility
towards the residents of 304 Peachtree. Instead, the State argued at closing that
“concentration of fire was not on anywhere else except that vehicle and on the white
vehicle where . . . the two couples were when they left.”

{22} Like in Comitz, the evidence in this case supports that Defendant and his
companions fired at a group of people in front of houses, not at the houses themselves.
2019-NMSC-011, ¶ 18. Therefore, the evidence was insufficient to prove that the
dwelling was the target of Defendant’s gunfire and his conviction of shooting at a
dwelling must be overturned. See id. ¶¶ 22-23.

B. We Do Not Address Defendant’s Double Jeopardy Claims

{23} Defendant argues that his convictions for both depraved mind murder and
shooting at a dwelling subject him to double jeopardy, in violation of the Fifth and
Fourteenth Amendments to the United States Constitution as well as Article II, Section
15 of the New Mexico Constitution. As a remedy, Defendant requests that we vacate his
conviction for shooting at a dwelling. Because we vacate Defendant’s conviction for
shooting at a dwelling for a lack of sufficient evidence, we need not and do not address
Defendant’s double jeopardy claim. Schlieter v. Carlos, 1989-NMSC-037, ¶ 13, 108
N.M. 507, 775 P.2d 709 (“It is an enduring principle of constitutional jurisprudence that
courts will avoid deciding constitutional questions unless required to do so. We have
repeatedly declined to decide constitutional questions unless necessary to the
disposition of the case.”).

C. Conspiracy to Commit Depraved Mind Murder Is Not an Offense and
Defendant’s Conviction is Vacated

{24} Defendant argues that his conviction for conspiracy to commit depraved mind
murder should be vacated because it is a nonexistent crime. State v. Baca, 1997-
NMSC-059, ¶ 53, 124 N.M. 333, 950 P.2d 776. Although this issue is not preserved, a
conviction for a nonexistent crime is fundamental error which may be reversed on
appeal without preservation. State v. Maestas, 2007-NMSC-001, ¶¶ 7, 26, 140 N.M.
836, 149 P.3d 933. The State concedes that conspiracy to commit depraved mind
murder is a nonexistent crime, but requests that we remand for an entry of judgment for
conspiracy to commit second-degree murder under the direct remand rule.

{25} The direct remand rule allows this Court to remand for the entry of judgment on a
lesser-included offense where the evidence supports that lesser-included offense and
the jury was instructed on that lesser-included offense. State v. Haynie, 1994-NMSC-
001, ¶ 4, 116 N.M. 746, 867 P.2d 416; State v. Villa, 2004-NMSC-031, ¶¶ 1, 9, 12-18,
136 N.M. 367, 98 P.3d 1017. Direct remand is appropriate when the interests of justice
would not be served by a new trial on the lesser offense. Villa, 2004-NMSC-031, ¶ 9;
see State v. Garcia, 1992-NMSC-048, ¶¶ 36-37, 114 N.M. 269, 837 P.2d 862 (reversing
a conviction of first-degree murder and concluding that a new trial on second-degree
murder and manslaughter would better serve the interests of justice than the entry of
judgment on second-degree murder). The rationale behind the direct remand rule is that
we may order judgment to be entered on the lesser-included offense because the jury
necessarily found every essential element of the lesser-included offense by convicting
on the greater offense. Haynie, 1994-NMSC-001, ¶ 4.

{26} In this case, the jury was instructed on conspiracy to commit second-degree
murder as a lesser-included offense of conspiracy to commit depraved mind murder.
However, by convicting Defendant of conspiracy to commit depraved mind murder the
jury did not by necessity find that he had the intent to kill and, therefore, the jury did not
find all of the essential elements of conspiracy to commit second-degree murder.
Accordingly, we vacate Defendant’s conviction for conspiracy to commit depraved mind
murder without remanding for an entry of judgment for conspiracy to commit second-
degree murder.

{27} Conspiracy is defined by Section 30-28-2(A) as “knowingly combining with
another for the purpose of committing a felony within or without this state.” In Baca, we
recognized that conspiracy is a “paradigmatic specific intent offense[]” which “requires
both an intent to agree and an intent to commit the offense which is the object of the
conspiracy.” 1997-NMSC-059, ¶ 51. We considered Section 30-28-2 to be consistent
with the Model Penal Code, § 5.03(1), which requires that a person act “with the
purpose of promoting or facilitating [the] commission” of a crime to be guilty of
conspiracy to commit that crime. Baca, 1997-NMSC-059, ¶¶ 46-47, 52-53. Commentary
to the Model Penal Code explains that conspiracy to commit a result crime, such as
homicide, requires a purpose to bring about that result. Model Penal Code and
Commentaries, § 5.03 cmt. 2, at 407-08 (1985). In Baca, we agreed that “when
recklessness or negligence suffices for the actor’s culpability with respect to a result
element of a substantive crime, as for example when homicide through negligence is
made criminal, there could not be a conspiracy to commit that crime.” 1997-NMSC-059,
¶ 47 (quoting Model Penal Code and Commentaries, § 5.03 cmt. 2(c)(i), at 408). In
other words, co-conspirators “cannot agree to accomplish a required specific result
unintentionally.” Baca, 1997-NMSC-059, ¶ 52 (quoting State v. Beccia, 505 A.2d 683,
684-85 (1986)). Because depraved mind murder is a “killing resulting from highly
reckless behavior” which does not require an intent to kill, we held that conspiracy as
defined in New Mexico “does not encompass conspiracy to commit depraved-mind
murder.” Baca, 1997-NMSC-059, ¶¶ 51, 53.

{28} Similar to depraved mind murder, second-degree murder punishes individuals
who cause death by acts which they know create a substantial risk of harm to others.
Section 30-2-1(B) (providing that to be guilty of second-degree murder a defendant
must know that his or her acts “create a strong probability of death or great bodily harm
to [an] individual”); see generally State v. Candelaria, 2019-NMSC-004, ¶¶ 9-14, 434
P.3d 297 (explaining the distinctions between depraved mind murder and second-
degree murder). In certain circumstances, however, second-degree murder also
punishes intentional killings. For instance, an unjustified, unprovoked, intentional killing
is second-degree murder when it is committed “rashly or impulsively, rather than
deliberately[.]” State v. Tafoya, 2012-NMSC-030, ¶ 37, 285 P.3d 604. We have
recognized that the crime of “conspiracy to commit second degree murder [has] a mens
rea requirement that the accused must intend to commit the crime.” State v. McDonald,
2004-NMSC-033, ¶ 17, 136 N.M. 417, 99 P.3d 667. Under Baca, this requires that a
defendant intend “to achieve [the] particular result” prohibited by Section 30-2-1(B), the
death of another human being. Baca, 1997-NMSC-059, ¶ 46.

{29} Remand for an entry of judgment for conspiracy to commit second-degree
murder thus requires that the jury necessarily found that Defendant had the intent to kill
when it found Defendant guilty of conspiracy to commit depraved mind murder. See
Haynie, 1994-NMSC-001, ¶ 4. To find Defendant guilty of conspiracy to commit
depraved mind murder, the jury was instructed that it had to find beyond a reasonable
doubt that Defendant and another “agreed together to commit depraved mind murder”
and “intended to commit depraved mind murder[.]” However, depraved mind murder
does not require an intent to kill, and, by convicting Defendant of depraved mind
murder, the jury instead found that he acted with the knowledge that his conduct was
“greatly dangerous to the lives of others.” UJI 14-203 NMRA. As such, the conspiracy to
commit depraved mind murder instructions required the jury to find the internally
inconsistent fact that Defendant agreed to unintentionally accomplish the result of the
death of another human being. See Baca, 1997-NMSC-059, ¶ 52. By convicting
Defendant of the nonexistent crime of conspiracy to commit depraved mind murder, the
jury did not find that Defendant had the intent to achieve the result of the death of
another and therefore did not find all of the essential elements of conspiracy to commit
second-degree murder. For the foregoing reasons, we vacate Defendant’s conviction for
conspiracy to commit depraved mind murder and reject the State’s request that we
remand for the entry of judgment on conspiracy to commit second-degree murder.

D. The Lack of a Voluntary Intoxication Instruction Was Not Fundamental
Error

{30} Defendant argues that the jury should have been instructed on voluntary
intoxication because there is evidence in the record that he was very drunk around the
time of the shooting. The State contends that the evidence in the record would not have
entitled Defendant to a voluntary intoxication instruction and that, even if it did, the lack
of any such instruction was not fundamental error. We agree with the State that the lack
of a voluntary intoxication instruction in this case did not result in fundamental error.

{31} “[V]oluntary intoxication provides a defense to specific intent crimes where the
intoxication is to such a degree as would negate the possibility of the necessary intent.”
State v. Garcia, 2011-NMSC-003, ¶ 35, 149 N.M. 185, 246 P.3d 1057 (internal
quotation marks and citation omitted). Because it applies to specific intent crimes,
voluntary intoxication can provide a defense to several of the crimes for which
Defendant was convicted. See Section 30-3-5(A) (providing that aggravated battery
includes an intent to injure); Section 30-22-5(A) (providing that tampering with evidence
includes an “intent to prevent apprehension, prosecution, or conviction”); Section 30-28-
2(A) (providing that conspiracy requires “the purpose of committing a felony”). We have
held that voluntary intoxication can also provide a defense to the requirement of
depraved mind murder that a defendant have “ ‘subjective knowledge’ that his or her act
was extremely dangerous to the lives of others.” State v. Brown, 1996-NMSC-073, ¶¶
16, 27, 122 N.M. 724, 931 P.2d 69 (citation omitted). Although voluntary intoxication
applies to several of the charges against Defendant, he did not claim diminished
capacity due to intoxication or request a voluntary intoxication instruction. We therefore
review only for fundamental error. State v. Barber, 2004-NMSC-019, ¶¶ 7-8, 135 N.M.
621, 92 P.3d 633.

{32} Fundamental error occurs when “a defendant’s conviction shocks the conscience
because either (1) the defendant is indisputably innocent, or (2) a mistake in the
process makes a conviction fundamentally unfair notwithstanding the apparent guilt of
the accused.” State v. Astorga, 2015-NMSC-007, ¶ 14, 343 P.3d 1245 (internal
quotation marks, alteration, and citation omitted). Our analysis for fundamental error in
instructions begins, as with reversible error, with “whether a reasonable juror would
have been confused or misdirected by the jury instruction.” Barber, 2004-NMSC-019, ¶
19. If there was error, we must “review the entire record, placing the jury instructions in
the context of the individual facts and circumstances of the case, to determine whether
the [d]efendant’s conviction was the result of a plain miscarriage of justice.” Id. (internal
quotation marks and citation omitted).

{33} Whether the lack of a voluntary intoxication instruction resulted in fundamental
error in this case first depends on whether Defendant would have been entitled to a
voluntary intoxication instruction had he requested one. Id. ¶ 9. A diminished capacity
instruction is appropriate where the record contains evidence reasonably tending to
show that a defendant’s intoxication rendered that defendant incapable of forming the
necessary mens rea. State v. Begay, 1998-NMSC-029, ¶ 38, 125 N.M. 541, 964 P.2d
102; Arrendondo, 2012-NMSC-013, ¶ 43. “In deciding whether the instruction is proper,
the trial court must not weigh the evidence, but must simply determine whether such
evidence exists.” State v. Privett, 1986-NMSC-025, ¶ 20, 104 N.M. 79, 717 P.2d 55.
Here, Defendant relies on the testimony of several witnesses who said he was drunk
and described his behavior, such as falling over when he took a swing at Jesse, which
Defendant argues is consistent with intoxication. However, given the circumstances of
this case, it is unnecessary to determine whether this evidence would have entitled
Defendant to an intoxication instruction had he requested one. Even if we assume that
Defendant would have been entitled to an intoxication instruction, he never claimed the
defense of diminished capacity and the lack of a sua sponte intoxication instruction by
the district court was not fundamental error.

{34} Defendant contends that the lack of an intoxication instruction was fundamental
error because the district court has the obligation to “instruct the jury upon all questions
of law essential for a conviction of any crime submitted to the jury.” Rule 5-608(A)
NMRA. We agree that “[t]he general rule is 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. Moreover, when a defendant claims diminished
capacity and advances evidence tending to show an incapacity to form the necessary
intent, the ability to form the necessary intent becomes an essential element the State
has the burden of proving. State v. Balderama, 2004-NMSC-008, ¶ 38, 135 N.M. 329,
88 P.3d 845; Use Note 1, UJI 14-5110 NMRA (1997) (providing that when the
defendant has relied on the defense of diminished capacity, the ability to form the
necessary intent is added to the essential elements of the offense); Use Note 1, UJI 14-
5111 NMRA (1997) (same). However, Defendant made no arguments regarding his
intoxication and never claimed that his intoxication interfered with his ability to form the
mens rea necessary for depraved mind murder or the specific intent offenses. In other
words, Defendant never raised the defense of diminished capacity and the State did not
gain the burden of proving that Defendant was capable of forming the necessary mens
rea. Cf. State v. Sosa, 1997-NMSC-032, ¶ 26, 123 N.M. 564, 943 P.2d 1017 (“[W]here a
defendant raises the defense of self-defense, unlawfulness becomes a necessary
element of the crime charged. Once the defendant claims that the conduct in question
was lawful, the prosecution must prove unlawfulness beyond a reasonable doubt.”
(citations omitted)).

{35} That the district court did not sua sponte instruct the jury on the defense of
diminished capacity where Defendant made no claim that he was intoxicated to the
point he could not form the requisite mens rea does not shock our conscience. Contrary
to Defendant’s assertion, the lack of a voluntary intoxication instruction in this case does
not implicate “a fundamental unfairness within the system that would undermine judicial
integrity if left unchecked” and therefore did not result in fundamental error. Barber,
2004-NMSC-019, ¶ 18 (internal quotation marks and citation omitted).

E. The District Court Did Not Violate Defendant’s Right to Confrontation by
Limiting His Cross-Examinations of Janell and Abraham

{36} Defendant argues that the district court abused its discretion and violated his
right to confront the witnesses against him under the Confrontation Clause of the Sixth
Amendment to the United States Constitution1 by limiting his cross-examinations of
Janell and Abraham. Because Janell and Abraham were the only witnesses who

1Defendant cites Article II, Section 14 of the New Mexico Constitution but makes no argument that it provides
greater protection than the United States Constitution. We therefore limit our review to the Sixth Amendment. See
State v. Rivera, 2008-NMSC-056, ¶ 11 n.1, 192 P.3d 1213.
identified Defendant as one of the shooters, Defendant contends that they were key
witnesses for the State’s case. Defendant specifically argues that, by limiting his
questions regarding Janell’s intoxication and Abraham’s plea agreement, the district
court improperly limited his ability to impeach their credibility.

{37} “Generally, the district court has broad discretion to control the scope of cross-
examination, including the discretion to control cross-examination to ensure a fair and
efficient trial.” State v. Samora, 2016-NMSC-031, ¶ 43, 387 P.3d 230 (internal quotation
marks and citation omitted). As such, we normally review a district court’s limitations on
cross-examination for an abuse of discretion. State v. Brown, 1997-NMSC-029, ¶ 18,
123 N.M. 413, 941 P.2d 494. A trial court abuses its discretion when its “ruling is clearly
against the logic and effect of the facts and circumstances of the case” and is “clearly
untenable or not justified by reason.” Samora, 2016-NMSC-031, ¶ 37. However, we
review de novo the issue of whether those limitations violated a defendant’s right to
confront witnesses. Id. ¶ 48.

{38} A defendant’s right to confront the witnesses against him or her is guaranteed by
the Confrontation Clause of the Sixth Amendment. “The most important element of the
right of confrontation is the right of cross-examination.” State v. Sanders, 1994-NMSC-
043, ¶ 22, 117 N.M. 452, 872 P.2d 870. It is primarily through cross-examination that a
defendant is able to test the truth and credibility of adverse witnesses. Id. However, a
district court has “wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” Id. ¶ 23 (quoting Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986)). “Only when cross-examination is unduly
restricted does constitutional error result.” State v. Smith, 2001-NMSC-004, ¶ 19, 130
N.M. 117, 19 P.3d 254.

{39} Although Defendant raises Confrontation Clause arguments on appeal, he failed
to preserve those arguments below. Defendant’s claim involves the district court’s
decisions to sustain several objections by the State during the cross-examinations of
Janell and Abraham. Defense counsel accepted each of the district court’s decisions
and made no arguments regarding Defendant’s right to confront witnesses. As such, a
ruling by the district court on Defendant’s Confrontation Clause rights was not fairly
invoked and the issue was not preserved for review. Rule 12-321(A) NMRA (“To
preserve an issue for review, it must appear that a ruling or decision by the trial court
was fairly invoked.”). We therefore review this issue only for fundamental error. State v.
Silva, 2008-NMSC-051, ¶¶ 9-11, 144 N.M. 815, 192 P.3d 1192. As discussed, under
fundamental error review, we first consider whether there was any error and, if so,
whether that error resulted in a “miscarriage of justice.” Id. ¶¶ 11, 13 (internal quotation
marks and citation omitted).

{40} With these principles in mind, we turn to discuss Defendant’s arguments that the
district court erred by limiting his cross-examination of Janell and Abraham. For the
following reasons, we conclude that none of the district court’s limitations on
Defendant’s cross-examination were an abuse of discretion or a violation Defendant’s
right to confrontation. Accordingly, we deny Defendant’s request for a new trial on these
grounds.

1. Janell

{41} On direct examination, Janell testified that on July 4 she smoked
methamphetamine in the early afternoon and drank seven beers throughout the day. On
cross-examination, she stated that after the shooting she told the police a slightly
different story2 than her trial testimony because she was “buzzing.” Defense counsel
asked Janell whether she felt that she was too intoxicated to drive and the State
objected on relevance. Defense counsel explained that he was trying to establish the
extent of her impairment. The district court sustained the objection but allowed defense
counsel to rephrase his question.

{42} Defense counsel then confirmed that Janell was not thinking straight and asked
her whether that impairment would have affected her powers of observation. The State
objected on foundation grounds and the court sustained the objection. Again, the district
court allowed defense counsel to rephrase the question. In response to the next several
questions, Janell explained that she was “buzzed” but not drunk because she could still
walk and knew what had happened. Because Janell denied being falling-down drunk,
Defense counsel asked if that meant she had lied to police. Janell initially denied being
untruthful but eventually answered that she was not truthful because she was buzzed.
Defense counsel pushed against this answer, stating that someone could be buzzed but
still truthful and began asking Janell why she had lied. The State objected to the
question as argumentative, and the district court sustained.

{43} Defendant argues that these limitations on his cross-examination prevented him
from effectively inquiring into the extent of Janell’s intoxication and the effects of that
intoxication on her powers of observation. Defendant is correct that the credibility of a
witness is a relevant and proper inquiry in cross-examination. Rule 11-611(B) NMRA;
State v. Johnson, 2010-NMSC-016, ¶ 41, 148 N.M. 50, 229 P.3d 523 (“Evidence that
reflects on a witness’ credibility is relevant.”). While defense counsel’s specific
questions were arguably directed towards the extent and effect of Janell’s impairment,
the district court did not prevent Defendant from inquiring further regarding that
impairment. Rather, the district court allowed defense counsel to reformulate his
questions and, in fact, he was able to elicit testimony that she was “buzzed” but not
drunk and was aware of what happened. Defense counsel was then able to question
whether, if she was not falling-down drunk, that meant she had lied to police. Because
Defendant was permitted to impeach Janell’s credibility, including as to the extent and
effect of her impairment, we conclude that the district court did not abuse its discretion
by sustaining the State’s objections to defense counsel’s particular questions. See

2Despite this question, defense counsel never asked her about specific inconsistencies between her statement to
police and her trial testimony. On cross-examination Janell agreed that she told police a slightly different story but
on re-direct Janell claimed that she was truthful with the police and that she did not know what was inconsistent
between her statement to police and her trial testimony.
Samora, 2016-NMSC-031, ¶ 37 (“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.”
(internal quotation marks and citation omitted)).

{44} Likewise, we are not convinced that the limitations on Defendant’s cross-
examination of Janell violated his Confrontation Clause rights. We have recognized that
a violation of the Confrontation Clause occurs where “defense counsel should have
been permitted to expose to the jury the facts from which jurors, as the sole triers of fact
and credibility, could appropriately draw inferences relating to the reliability of the
witness.” Id. ¶ 49 (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)); see also
Sanders, 1994-NMSC-043, ¶ 26 (“[The] test for Confrontation Clause violation[s] is
whether [a] reasonable jury might have received [a] significantly different impression of
the witness’s credibility had counsel pursued [the] proposed line of cross-examination.”
(citing Van Arsdall, 475 U.S. at 680)). Here, Defendant was not prevented from
exposing the jury to testimony regarding Janell’s impairment at the time of the shooting
and the jury could have drawn inferences regarding the credibility of her account.
Therefore, the limitations on Defendant’s cross-examination was not a violation of the
Confrontation Clause, let alone a “miscarriage of justice.” Silva, 2008-NMSC-051, ¶¶
13-15 (internal quotation marks and citation omitted) (holding that there was no
fundamental error where the defendant was not permitted to ask whether a witness
received immunity in exchange for his testimony but was nevertheless able to effectively
cross-examine the witness).

2. Abraham

{45} On direct examination, Abraham testified that he did not see a shotgun in
Defendant’s hands until Defendant started shooting. On cross-examination, defense
counsel asked him about this testimony, confirming that Defendant had been in the front
of the truck with Abraham and was not wearing a large coat. Defense counsel then
asked Abraham, “Can you explain to us how you did not see a shotgun?” The district
court sustained the State’s objection that this question called for Abraham to speculate.
Defense counsel continued, “You saw the shotgun, didn’t you?” The district court
sustained an objection to this question as argumentative.

{46} Abraham also testified on direct examination that he had taken a plea agreement
regarding his involvement in the shooting. On cross-examination, Abraham confirmed
that part of this plea agreement included testifying. Defense counsel then asked if that
included testifying against his cousin, Carlos, and the State objected on relevance. The
district court sustained the objection.

{47} First, Defendant contends that the questions regarding why Abraham did not see
the shotgun were reasonably related to Abraham’s ability to observe, which is an
important part of a witness’s credibility. See UJI 14-5020 NMRA (instructing the jury to
consider, among other things, a witness’s “ability and opportunity to observe”).
Defendant argues that questioning Abraham’s claim that he did not see the gun until
they got to Peachtree Street would have allowed him to generally cast doubt on the
credibility of Abraham’s account of the events. However, as with Janell’s intoxication,
Defendant was permitted to question Abraham’s claim that he did not initially see the
shotgun. Defendant was able to confirm that Defendant was sitting in the front seat next
to Abraham and was not wearing a large coat that could have concealed the weapon.
Defense counsel then asked Abraham how he might not have seen the weapon. Given
these circumstances, the district court’s ruling that this question asked for Abraham to
speculate was not “clearly untenable” or unreasonable. Samora, 2016-NMSC-031, ¶ 37
(internal quotation marks and citation omitted). Moreover, because Defendant was able
to cross-examine Abraham on his claim that he did not initially see the shotgun, it is
unclear how a “reasonable jury might have received [a] significantly different
impression” of Abraham’s credibility had Defendant been able to ask Abraham to
explain why he did not see the shotgun. Sanders, 1994-NMSC-043, ¶ 26. Accordingly,
the district court’s ruling was neither an abuse of discretion nor a violation of the
Confrontation Clause.

{48} Second, Defendant argues that he was prevented “from fully exploring the terms
of Abraham’s plea agreement” and Abraham’s bias towards portraying Defendant as the
most culpable between Defendant, Abraham, and Carlos. Defendant correctly notes
that a witness’s bias or prejudice is important to impeaching the witness’s credibility.
See State v. Meadors, 1995-NMSC-073, ¶ 30, 121 N.M. 38, 908 P.2d 731 (recognizing
witness bias as “a classic ground for impeachment”); United States v. Abel, 469 U.S.
45, 52 (1984) (“Proof of bias is almost always relevant because the jury, as finder of fact
and weigher of credibility, has historically been entitled to assess all evidence which
might bear on the accuracy and truth of a witness’ testimony.”) As with his other claims,
Defendant was not prevented from questioning Abraham about his plea agreement and
whether it included testifying against Defendant. The district court only limited questions
about whether the agreement included testifying against Carlos. On appeal, Defendant
argues that, had the jury heard that Abraham agreed to testify against Carlos, they may
have doubted Abraham’s testimony portraying himself and Carlos as participants and
Defendant as the “mastermind” of the shooting. However, defense counsel made no
such argument before the district court. Defendant was allowed to question Abraham on
his plea agreement, tending to show his bias towards pointing the finger at Defendant,
and there was no indication below of how Abraham’s agreement to testify against
Carlos was independently relevant to Abraham’s bias against Defendant.

{49} On appeal, Defendant contends that whether he was the instigator of the
shooting or a mere participant was relevant to the jury’s distinction between first-degree
depraved mind murder and second-degree murder. As Defendant argues, the jury may
have convicted him of second-degree murder had they viewed him as having a “more
limited role in the shooting.” We are not persuaded. A person may be guilty of depraved
mind murder even as an accomplice and, as the State points out, the jury in this case
was indeed instructed on accomplice liability. See Baca, 1997-NMSC-059, ¶¶ 18-22
(affirming a conviction for depraved mind murder on an accomplice theory). Therefore,
regardless of whether Defendant was the instigator or a participant in the shooting, he
could be guilty of depraved mind murder. Defendant fails to convince this Court that
being a participant rather than the instigator of the shooting is relevant to any of the
distinctions between depraved mind murder and second-degree murder. See
Candelaria, 2019-NMSC-004, ¶ 10 (noting that the depraved mind murder is
distinguished from second-degree murder by four factors: “(1) more than one person
was endangered by the defendant’s act, (2) the defendant’s act was intentional and
extremely reckless, (3) the defendant had subjective knowledge that his act was greatly
dangerous to the lives of others, and (4) the defendant’s act encompassed an
intensified malice or evil intent” (internal quotation marks, alterations, and citation
omitted)). As long as Defendant acted with the requisite mens rea for depraved mind
murder, it is irrelevant whether he was the “mastermind,” a participant, or even an
accomplice. See State v. Carrasco, 1997-NMSC-047, ¶ 7, 124 N.M. 64, 946 P.2d 1075
(“[A]n accessory must share the criminal intent of the principal.”).

{50} For these reasons, the district court’s decision to sustain the State’s objection to
Defendant’s question was not “clearly untenable or not justified by reason.” Samora,
2016-NMSC-031, ¶ 37 (internal quotation marks and citation omitted). Moreover, this
limitation on the cross-examination of Abraham did not violate Defendant’s
constitutional rights. Abraham admitted on direct examination that he had taken a plea
deal and Defendant was allowed to question him about whether that plea deal included
testifying. The jury was already aware that Abraham had a bias towards portraying
Defendant in a more culpable light than himself. Had the jury also heard that Abraham
had agreed to testify against Carlos, his cousin, they would not have received a
“significantly different impression of [Abraham’s] credibility.” Sanders, 1994-NMSC-043,
¶ 26.

{51} We reject Defendant’s arguments that the limitations on the cross-examinations
of Janell and Abraham were an abuse of discretion or a violation of his right to
confrontation and deny Defendant’s request for a new trial on these grounds.

F. Defendant’s Judgment and Sentence Must Be Corrected to Reflect the
Jury’s Verdict

{52} The judgment and sentence issued by the district court indicate that Defendant
was convicted of first-degree willful and deliberate murder and conspiracy to commit
first-degree willful and deliberate murder. This is incorrect, as the jury convicted
Defendant of first-degree depraved mind murder and conspiracy to commit first-degree
depraved mind murder. Both Defendant and the State agree that this is a clerical error
which may be corrected at any time under Rule 5-113(B) NMRA. On remand, we
instruct the district court to correct the judgment and sentence to reflect the jury’s guilty
verdict for first-degree depraved mind murder on Count 1.

II. CONCLUSION

{53} For the foregoing reasons we deny Defendant’s requests for a new trial on the
grounds of either the lack of an intoxication instruction or the alleged errors in the district
court’s limitations on his cross-examination of witnesses. We remand to the district court
to: (1) vacate Defendant’s convictions for tampering with the evidence and shooting at a
dwelling for insufficient evidence; (2) vacate Defendant’s conviction for conspiracy to
commit depraved mind murder because it is a nonexistent crime; and (3) correct
Defendant’s judgment and sentence to properly reflect the jury’s verdict.

{54} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice