¶1(concurring in part, dissenting in part).
¶2{47} I concur with the majority’s conclusion that the admission of Perches’ statement violates the Confrontation Clause based on the analysis of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). I also agree with the majority’s limited overruling of State v. Torres, 1998-NMSC-052, ¶¶ 30-32, 126 N.M. 477, 971 P.2d 1267, as well as the observation that Crawford does not undermine our other precedent dealing with statements against penal interest made outside the context of a custodial interrogation. See, e.g., State v. Reyes, 2002-NMSC-024, ¶¶ 34-40, 132 N.M. 576, 52 P.3d 948; State v. Toney, 2002-NMSC-003, ¶¶3-12, 131 N.M. 558, 40 P.3d 1002; State v. Martinez-Rodriguez, 2001-NMSC-029, ¶¶ 21-27, 131 N.M. 47, 33 P.3d 267; State v. Gonzales, 1999-NMSC-033, ¶¶ 15-20, 32-40, 128 N.M. 44, 989 P.2d 419. In fact, even before the Supreme Court decided Crawford, we emphasized that the distinction between a “statement to an acquaintance in a casual conversation rather than to the police during a custodial interrogation” is critical for Confrontation Clause purposes. Toney, 2002-NMSC-003, ¶ 12,131 N.M. 558, 40 P.3d 1002. Whereas Crawford does not conflict with our cases that have allowed the admission of statements made to acquaintances and cellmates, it does raise questions about other cases involving non-testimonial statements. For example, certain non-testimonial statements that we have previously held to violate the Confrontation Clause might now be admissible consistent with the Constitution even without cross-examination. See State v. Ross, 1996-NMSC-031, 122 N.M. 15, 26, 919 P.2d 1080, 1091 (concluding that a statement made by the victim to her boyfriend that the defendant was holding her hostage, although admissible under the Rules of Evidence as a statement of recent perception, lacked particularized guarantees of trustworthiness as required by Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)); State v. Austin, 104 N.M. 573, 574-76, 725 P.2d 252, 253-55 (Ct.App.1985) (concluding that computerized private business records admitted under the business records exception as evidence of embezzlement violated the Confrontation Clause); State v. Martinez, 99 N.M. 48, 51-52, 653 P.2d 879, 882-83 (Ct. App.1982) (holding that the admission of a victim’s report of an ongoing crime to a passing police officer violated the Confrontation Clause). The majority in Crawford, or at least three of its members, appears to have a clear' vision of the Confrontation Clause under which these types of non-testimonial statements could be admitted despite the absence of cross-examination. See Lilly v. Virginia, 527 U.S. 116, 142, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (Breyer, J., concurring) (“[T]he current hearsay-based Confrontation Clause test is arguably too broad.”); White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment) (“The federal constitutional right of confrontation extends to any witness who actually testifies at trial, but the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.”) (emphasis added); id. at 364, 112 S.Ct. 736 (discussing the Confrontation Clause implications of “a victim who blurts out an accusation to a passing police officer, or the unsuspecting social-services worker who is told of possible child abuse”). See generally Crawford, 124 S.Ct. at 1364 (“[N]ot all hearsay implicates the Sixth Amendment’s core concerns.”).
¶3{48} In addition to my agreement with the application of Crawford, I concur with the majority’s determination that the admission of Perches’ statement is not harmless beyond a reasonable doubt with respect to Defendant’s conviction for aggravated burglary and conspiracy. Perches’ statement was the only evidence that a tire iron was used to break the window. This statement was critical to the State’s case on aggravated burglary, was not cumulative to other evidence, and was not corroborated. As a result, the State has not shown beyond reasonable doubt that a rational jury would have found Defendant guilty of aggravated burglary without this statement. With respect to the conspiracy conviction, “[i]t is not necessary in proving a conspiracy to show ... the making of an express or formal agreement. The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent____” UJI 14-2813 NMRA 2004. The circumstantial evidence in this ease, which is discussed below in more detail, could lead to a reasonable inference that Defendant and Perches agreed to commit the burglary. Nonetheless, Perches’ statement, which was the only direct testimony of an agreement, was of central importance to the State’s prosecution on conspiracy and was not insignificant in comparison with the circumstantial evidence supporting an agreement. Thus, there is a reasonable doubt that a jury would not have convicted Defendant of conspiracy without Perches’ statement.
¶4{49} As a final point of agreement, I concur with the majority’s determination that convictions of both larceny of a firearm valued at less than $2500 and larceny over $250 does not violate the constitutional protection against double jeopardy. I agree with the majority that the Legislature explicitly specified two types of property, firearms and livestock, that are excluded from the general larceny scheme based not on property value but instead on the nature of the property. The Legislature intended to carve out for separate punishment the theft of these two types of property based on a legislative determination that they deserve special protection in this State. See generally State v. Pacheco, 81 N.M. 97, 100, 463 P.2d 521, 524 (Ct.App.1969) (“[T]he larceny of livestock statute was apparently enacted to protect the ownership thereof, to prevent a kind of larceny peculiarly easy of commission and difficult of discovery and punishment, and to protect the important industry of stock raising.”).
¶5{50} I respectfully dissent from the majority’s adoption of a new standard for harmless error review based on a violation of a federal constitutional right and from the majority’s application of this standard to Defendant’s larceny convictions. The standard for harmless error in this context is a federal question, and in my view, it exceeds this Court’s authority to diverge from clear and binding precedent from the United States Supreme Court. Applying the Supreme Court’s standard to the larceny convictions, I conclude that the admission of Perches’ statement was harmless error.
¶6{51} “Whether a conviction for crime should stand when a State has failed to accord federal constitutionally guaranteed rights is every bit as much of a federal question as what particular federal constitutional provisions themselves mean, what they guarantee, and whether they have been denied.” Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Therefore, the Supreme Court’s pronouncements on harmless error review of federal constitutional errors are binding on this Court. Under the Supreme Court’s formulation, there are two types of constitutional errors, structural errors and trial errors. Most constitutional errors fall into the latter class and are subject to a harmless error inquiry, while a very limited class of errors are deemed structural and require automatic reversal because they necessarily render a trial fundamentally unfair. Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The erroneous admission of an accomplice’s statement implicating the accused is a trial error that is subject to a harmlessness inquiry. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). For this type of constitutional trial error, there is no dispute that Chapman sets forth the appropriate test for harmless error: the State must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. 824. Unfortunately, though, this standard proved sufficiently ambiguous that it produced two seemingly distinct approaches to harmless error.
¶7{52} In a series of cases addressing the error at issue in this case, that is, a Confrontation Clause violation by admitting the out-of-court statement of an accomplice without the opportunity for cross-examination, the Supreme Court, applying the Chapman test, held that, “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); accord Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) (“The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury.”); Harrington, 395 U.S. at 254, 89 S.Ct. 1726. By contrast, in the context of a eonstitutionally-deficient reasonable doubt instruction, the Court stated that “[t]he inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Because, as the majority recognizes, the Court did not actually apply Chapman in Sullivan due to the existence of structural error, this dicta would not be sufficient to supplant the Court’s previously adopted harmless error standard. Nevertheless, Sullivan did raise questions about the proper interpretation of Chapman, with a line of cases focusing on the existence of overwhelming evidence of guilt and the effect of the error on a hypothetical rational jury and another case appearing to offer a different interpretation that focused on the effect of an error on the jury’s actual deliberations. Even in Chapman itself, the Court’s rationale appeared to rest on both of these approaches. Compare 386 U.S. at 25-26, 87 S.Ct. 824 (“[Ajbsent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts.”), with id. at 26, 87 S.Ct. 824 (“[I]t is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the [error] did not contribute to petitioner’s convictions.”).
¶8{53} However, the Supreme Court recently resolved this ambiguity. In Neder, the Supreme Court clearly stated that reviewing courts must answer the following question in applying Chapman: “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” Neder, 527 U.S. at 18, 119 S.Ct. 1827 (emphases added); see Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 12, 157 L.Ed.2d 263 (2003) (concluding that an instructional error was harmless because “the jury verdict would surely have been the same had it been instructed” properly). Contrary to the assertion by the majority that Neder did not reject Sullivan’s interpretation of Chapman, this articulation of a rational jury standard directly contradicts the effect-on-the-jury language of Sullivan quoted and relied upon by th'e majority and clearly signals a return to the standard applied in Schneble, Brown, and Harrington. In addition, the Court in Neder reiterated the significance of overwhelming evidence of guilt in evaluating harmless error. 527 U.S. at 17, 119 S.Ct. 1827. As a result, “[flollowing the Supreme Court’s Neder decision, the overwhelming evidence standard for harmless error has won a clear, if narrow, victory.” Jeffrey O. Cooper, Searching for Harmlessness: Method and Madness in the Supreme Court’s Harmless Constitutional Error Doctrine, 50 U. Kan. L.Rev. 309, 333 (2002). Neder “explicitly rejected the reasoning, if not the result, of Sullivan.” Id. at 323, 113 S.Ct. 2078. “At present, then, a clear, if narrow, majority of the Court supports the overwhelming evidence standard for harmless error in all cases involving trial error, while four Justices would look to the effect of the error on the jury.” Id. at 324, 113 S.Ct. 2078. As a federal question, the overwhelming evidence standard of Neder, Schneble, Brown, and Harrington is binding precedent in this Court’s application of the Chapman standard.
¶9{54} The majority opinion appears to me to apply the Sullivan effect-on-the-jury standard in place of Neder and unduly minimizes the effect of overwhelming evidence of guilt. See Majority opinion, ¶¶27 (quoting Sullivan), 32 (“Our focus must remain squarely on assessing the likely impact of the error on the jury’s verdict.”). Much like Justice Scalia’s dissent, the majority complains that harmless error review focusing on overwhelming evidence of guilt infringes on the right to a jury. See Neder, 527 U.S. at 36, 119 S.Ct. 1827 (Scalia, J., concurring in part, dissenting in part) (stating that the Court’s opinion “throws open the gate for appellate courts to trample over the jury’s function”). The majority also contends that an overwhelming evidence of guilt test undermines a defendant’s constitutional rights.
¶10{55} I believe this analysis is inconsistent with Neder. The Supreme Court in that case clearly rejected the same criticisms found in the majority opinion.
A reviewing court making this harmless-error inquiry does not, as Justice Traynor put it, “become in effect a second jury to determine whether the defendant is guilty.” Rather a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is “no,” holding the error harmless does not reflec[t] a denigration of the constitutional rights involved. On the contrary, it servefs] a very useful purpose insofar as [it] blockfs] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.
¶11Neder, 527 U.S. at 19,119 S.Ct. 1827 (quoted authority and quotation marks omitted) (alterations in original).
¶12{56} Despite the Supreme Court’s rejection of the concerns expressed in the majority opinion, the majority appears to agree with those commentators who argue that “review of constitutional error for effect on the jury is the preferred course” and that Neder should be overruled in favor of Sullivan. See Cooper, supra, at 340, 345. It is not within this Court’s power to reject binding precedent from the Supreme Court.
¶13{57} Moreover, even if we could choose between Neder and Sullivan, I believe that Neder contains the better policy for constitutional trial errors. I agree with the majority that our review for harmless error is distinct from a review for sufficiency of the evidence. In reviewing a claim for sufficiency, we do not review the record to determine whether there is overwhelming evidence of guilt but only whether there is enough evidence for a rational jury to have found each element beyond a reasonable doubt. Harmless error review, on the other hand, assesses the strength of the properly admitted evidence in relation to the significance of the constitutional error. However, the difference in these standards does not mean that the jury verdict is entitled to no deference in a harmless error review due to the existence of any constitutional error. On this point, it is important to distinguish between structural and trial error. “[T]he central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence____” Neder, 527 U.S. at 18, 119 S.Ct. 1827 (quotation marks and quoted authority omitted). Structural errors “affect[ ] the framework within which the trial proceeds,” thereby making it impossible to achieve the central purpose of determining guilt or innocence. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
¶14{58} The same is simply not true of trial errors. Even if a constitutional trial error occurs, it is still possible to obtain a constitutionally rehable jury verdict. The Neder standard is designed to “promote[] public respect for the criminal process by focusing on the underlying fairness of the trial.” Neder, 527 U.S. at 18, 119 S.Ct. 1827 (quotation marks and quoted authority omitted). The Supreme Court sought to strike “an appropriate balance between society’s interest in punishing the guilty [and] the method by which decisions of guilt are to be made.” Id. (quotation marks and quoted authority omitted) (alteration in original). The Court explicitly determined that a more rigid harmless error standard, such as the one articulated in Sullivan, would disrupt this balance. “To set a barrier so high that it could never be surmounted would justify the very criticism that spawned the harmless-error doctrine in the first place: Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” Id. (quotation marks and quoted authority omitted). The Supreme Court explained that its harmless error analysis furthers the constitutional right to a jury by upholding a constitutionally reliable jury verdict. “[Sjafeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record.” Id. at 19, 119 S.Ct. 1827. Giving no deference to a jury verdict due solely to the existence of a trial error would undermine the jury system itself, for “there can be no such thing as an error-free, perfect trial.” United States v. Hasting, 461 U.S. 499, 508, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). “[T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). “The goal ... is to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error.” Hasting, 461 U.S. at 509, 103 S.Ct. 1974 (quotation marks and quoted authority omitted). By applying too rigid of a harmless error standard, appellate courts would relinquish their role as guardians of the fundamental right to a fair trial, “becoming instead impregnable citadels of technicality.” Id. (quotation marks and quoted authority omitted).
¶15{59} In fact, the standard articulated in Sullivan was premised on the existence of some structural error that meant that “there ha[d] been no jury verdict within the meaning of the Sixth Amendment.” Sullivan, 508 U.S. at 280, 113 S.Ct. 2078; accord Neder, 527 U.S. at 39, 119 S.Ct. 1827 (Scalia, J., concurring in part, dissenting in part) (contrasting the “limited harmless-error approach of Sullivan ” with the “ordinary harmless-error analysis that the Court would apply”). Although the majority appears to adopt Justice Scalia’s dissent in Neder, I believe that the reason for his dissent was not because he disagreed with the Court’s traditional harmless error standard for trial errors, such as the one articulated in Schneble. Instead, he believed that the error in Neder, the omission of an essential element from a jury instruction, was structural and that this structural error nullified the jury’s verdict and left no verdict to confirm through harmless error. See Neder, 527 U.S. at 38, 119 S.Ct. 1827 (Sealia, J., concurring in part, dissenting in part) (“Harmless-error review applies only when the jury actually renders a verdict — that is, when it has found the defendant guilty of all the elements of the crime.”). “The amount of evidence against a defendant who has properly preserved his [or her] objection, while relevant to determining whether a given error was harmless, has nothing to do with determining whether the error is subject to harmless-error review in the first place.” Id. at 34, 119 S.Ct. 1827 (Sealia, J., concurring in part, dissenting in part) (emphasis added). “When no structural error is involved, that is, when the jury has found the defendant guilty beyond a reasonable doubt of all elements of the crime, the question under harmless-error review even for Justice Sealia is whether the trial error is significant enough to render the jury’s verdict constitutionally unreliable. “In finding, for example, that the jury’s verdict would not have been affected by the exclusion of evidence improperly admitted ... a court is speculating on what the jury would have found.” Id. at 37, 119 S.Ct. 1827 (Sealia, J., concurring in part, dissenting in part). By analyzing how a trial error would affect a hypothetical rational jury in light of the properly admitted evidence, an appellate court is not substituting its judgment for that of the jury but rather confirming a judgment that the jury has already made. Id. at 38-39, 119 S.Ct. 1827 (“The right to render the verdict in criminal prosecutions belongs exclusively to the jury; reviewing it belongs to the appellate court. ‘Confirming’ speculation does not disturb that allocation, but ‘substituting’ speculation does.”). Thus, because the jury in the present case found each element of the convictions beyond a reasonable doubt, the limited harmless-error standard of Sullivan would not apply even if it had not been modified by Neder; instead, whether applying Neder or Sullivan, the question is whether a rational jury would have reached the same verdict absent the error, and consistent with Brown, Schneble, and Harrington, overwhelming evidence of guilt is central to this inquiry. See Cooper, supra, at 337 (“Justice Sealia distinguishes between harmless error review of constitutionally-based evidentiary errors and harmless error review of verdicts reached after constitutionally-deficient jury instructions .... The difference, in essence, is that in the first instance the jury has made a finding of guilt beyond a reasonable doubt as to all the essential elements of the crime, while in the second the required jury finding is necessarily absent.”) (footnotes omitted).
¶16{60} The majority also criticizes the Supreme Court’s overwhelming evidence of guilt approach as inconsistent with the role of an appellate court. However, the majority’s effect-on-the jury approach is susceptible to the same criticism. Constitutional trial errors “infringe upon the jury’s factfinding role and affect the jury’s deliberative process in ways that are, strictly speaking, not readily calculable.” Neder, 527 U.S. at 18, 119 S.Ct. 1827. Thus, an effect-on-the-jury approach that asks whether the error influenced this jury, overlooking the amount of additional evidence presented, is more at odds with the role of an appellate court, requiring perhaps a greater degree of speculation about jury deliberations, than the Neder hypothetical rational jury model.
It is argued that we must reverse if we can imagine a single juror whose mind might have been made up because of [the accomplices’] confessions and who otherwise would have remained in doubt and unconvinced. We of course do not know the jurors who sat. Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the two confessions on the minds of an average jury.
¶17Harrington, 395 U.S. at 254, 89 S.Ct. 1726; accord Cooper, supra, at 333 (“[R]eview of error for its effect on the jury requires a eounterfactual determination that judges are not qualified to make”). While the Supreme Court’s harmless-error inquiry is framed in terms of a hypothetical rational jury, the answer to this question is not a judge-rendered verdict but, instead, simply the product of the typical presumption employed by appellate courts that the jury that actually heard the ease acted rationally, thereby determining whether the actual verdict, not a hypothetical one, is constitutionally reliable. In my view, it would do more injury to the judicial system to overturn a jury verdict supported by overwhelming evidence of guilt for an insignificant trial error than merely attributing rational acts to the jury. “[R]e-versing a conviction for a new trial would be a miscarriage of justice when the outcome would surely be the same.” State v. Livernois, 1997-NMSC-019, ¶15, 123 N.M. 128, 934 P.2d 1057. Defendant was afforded his constitutional right to a jury and that jury found each of the elements of larceny beyond a reasonable doubt. As a result, this verdict is entitled to some appellate deference even if a constitutional trial error occurred, though considerably less than in the absence of such of an error. If a constitutional trial error occurs, the verdict should be affirmed if the State demonstrates beyond a reasonable doubt, such as through overwhelming evidence of guilt, that the conviction itself is constitutionally reliable, thereby ensuring that Defendant received a fair trial.
¶18{61} Of course, even under the Neder standard that I believe we are bound to apply, overwhelming evidence of guilt is not the sole criterion in harmless error review. Appellate review of harmless error
depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
¶19Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431 (emphasis added). Nevertheless, “[t]he strength of the government’s case against the defendant is probably the most critical factor in determining whether an error affected the verdict. Accordingly, a reviewing court may find that the admission of evidence was harmless where there is sufficient corroborating evidence to support the conviction.” United States v. Dhinsa, 243 F.3d 635, 650 (2d Cir.2001) (quotation marks, quoted authority, and citation omitted). The presence of overwhelming evidence is likely to coincide with other Van Arsdall factors, including evidence cumulative to or corroborative of the erroneously admitted evidence and the absence of contradictory evidence, and it is much more likely that a constitutional error will be relatively insignificant when the State has established guilt by overwhelming evidence.
¶20{62} By diminishing the importance of overwhelming evidence of guilt in our harmless error review, the majority not only rejects Neder but also implicitly overrules numerous New Mexico cases that have relied on the Supreme Court’s standard. State v. Rondeau, 89 N.M. 408, 416, 553 P.2d 688, 696 (1976) (“[T]he admission of those statements which might possibly be considered violative of the Bruton rule was harmless beyond a reasonable doubt since the properly admitted evidence of guilt was overwhelming, and the prejudicial effect of the codefendants’ statements was insignificant by comparison. See Schneble .... ”); accord, e.g., State v. Herrera, 102 N.M. 254, 259, 694 P.2d 510, 515 (1985) (relying on overwhelming evidence of guilt for constitutional error); State v. Finnell, 101 N.M. 732, 738, 688 P.2d 769, 775 (1984) (same); State v. Trujillo, 95 N.M. 535, 541, 624 P.2d 44, 50 (1981) (same); State v. Gutierrez, 2003-NMCA-077, ¶ 17, 133 N.M. 797, 70 P.3d 787 (same and citing cases); State v. Aragon, 116 N.M. 291, 296, 861 P.2d 972, 977 (Ct.App.1993) (same); State v. Roybal, 107 N.M. 309, 312, 756 P.2d 1204, 1207 (Ct.App.1988) (same); State v. Martinez, 99 N.M. 48, 52, 653 P.2d 879, 883 (Ct.App.1982) (“Where other properly admitted evidence in the record, overwhelming in its nature, independently establishes proof of defendant’s guilt the admission of the challenged evidence is harmless error.”); State v. Thurman, 84 N.M. 5, 9, 498 P.2d 697, 701 (Ct.App. 1972) (applying Schneble). While I do not disagree with the majority that some of these cases considered factors beyond overwhelming evidencé of guilt, consistent with Van Arsdall, the focus on the strength of the prosecution’s case in our prior cases clearly differs from the majority’s discussion of this factor. I respectfully believe that it is the majority’s analysis of harmless error, and not this precedent, that diverges from binding federal law.
¶21{63} As a final point regarding the majority’s analysis of harmless error, I respectfully disagree that an accomplice’s out-of-court statement has the same effect on a jury as the confessions of defendants themselves. In contrast to the out-of-court statements of an accomplice, an admission of a defendant is treated as non-hearsay under the Rules of Evidence for two reasons. First, admissions do not present any Confrontation Clause concerns because the party is present in court to explain, deny, or rebut the offered statement. Second, and more importantly in terms of the comparison made by the majority, an admission is highly probative because, when offered against the party, “the admission discredits the party’s statements inconsistent with the present claim asserted in pleadings and testimony.” 2 Kenneth S. Broun et al., McCormick on Evidence § 254, at 136 (John W. Strong ed., 5th ed.1999). Thus, a defendant’s confession is highly likely to influence a jury because the confession is inconsistent with the defendant’s own plea of not guilty, somewhat analogous to a prior inconsistent statement. The same cannot be said of an accomplice's accusation of guilt. In this case, for example, defense counsel argued in closing that the jury should not believe Perches’ statement because it was hearsay, it was based on misperception, and it was motivated by a desire to shift blame. These attacks could not have been made on a defendant’s own confession. Thus, I believe it is incorrect to suppose that an accomplice’s out-of-court statement will have the same “profound impact” on the jury as an admission from the defendant himself or herself. The Supreme Court did not treat the accomplices’ statements in Brown, Schneble, and Harrington the same as the confession in Fulminante. In any event, the majority’s focus on the “profound impact” of the testimony on the jury reveals its departure from the Neder rational jury standard. Under the Neder inquiry, we do not evaluate the impact of the impugned evidence on the jury because we “do not know the jurors who sat.” Harrington, 395 U.S. at 254, 89 S.Ct. 1726. Instead, “the appellate court ... simply reviews the remainder of the evidence against the defendant to determine whether the admission of the [statement] was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 310, 111 S.Ct. 1246. Because Neder establishes the relevant question as whether a rational jury would have convicted a defendant in the absence of the constitutional trial error, it is unnecessary to speculate about the likely impact that an improperly admitted accomplice’s statement had on the jury.
¶22{64} Given the limits placed on the use of overwhelming evidence of guilt in a harmless error inquiry and the treatment of accomplices’ out-of-court statements like confessions as likely to influence a jury, it is difficult for me to imagine a case involving a Crawford error in which the error would be deemed harmless. In this way, it seems to me that the majority’s analysis could be interpreted as elevating a simple trial error to virtual structural status. I believe it is unwise, and contrary to the Supreme Court’s intent, to compound the dramatic change in the law occasioned by Crawford by making a Crawford error the functional equivalent of a structural one. For these reasons, I respectfully disagree with the majority’s harmless error analysis.
¶23{65} Applying the Neder harmless error inquiry, I believe that there is overwhelming evidence of guilt on the larceny convictions and that it is clear beyond a reasonable doubt that a rational jury would have convicted Defendant of larceny even without Perches’ statement. In order to prove the larcenies, the State had the burden to show beyond a reasonable doubt that Defendant carried away property with a market value of over $250 and firearms belonging to another with the intent to permanently deprive the owner of them. “ ‘Carried away’ means moving the property from the place where it was kept or placed by the owner.’ ” UJI141603 NMRA 2004. In addition, the jury was instructed on accomplice liability. Thus, the State did not have to prove that Defendant actually committed the larceny, only that Defendant intended that the crime be committed, that the crime was committed, and that Defendant helped, encouraged, or caused the crime to be committed.
¶24{66} Ignoring Perches’ statement, the State introduced evidence that Defendant, accompanied by a Mend, went to a family friend’s house in Anthony, New Mexico, on the morning of the burglary and left with the Mend around noon in his teal Camaro that had a Texas license plate. Shortly after lunchtime, two men were seen looking in the front window of a mobile home on a five-acre lot in Anthony. The owner, who testified by deposition due to a medical disability that prevented him from traveling to court, arrived at the mobile home within minutes and found a teal Camaro with a Texas license plate in the driveway with no one inside. The owner wrote down the license plate number, which matched the license plate number on Defendant’s teal Camaro. The owner then went around the east side of the residence and looked around the back but did not see anyone. He also looked around the west end of the residence but again did not see anyone. He told his brother, who was 100 feet away, to call the police. A few minutes after the owner arrived at the house, a man came around the east side of the residence through a closed gate in a small fenced yard in the back of the residence. He told the owner he was looking for someone dealing with horses, but there were no horses, horse facilities, or barns on the five-acre piece of land. He got into the Camaro and left. The owner identified the man as Defendant in a photo array. The owner’s brother, who testified in court, also saw the teal Camaro and wrote down five digits of the Texas license plate, again matching Defendant’s car. The owner subsequently went behind the house and found another man coming out of his laundry-room door holding the owner’s tape measure and razor knife. The owner noticed a broken window at the back of the house. He told the man to wait for him under the watch of the owner’s employee, and the owner went into his residence to find a pile of his belongings in the hallway, including ten rifles, a VCR valued at $200, boots valued at over $50, and tennis shoes valued at $25. The rifles were removed from the owner’s gun cabinet by breaking the glass, and the VCR was removed from an entertainment center. The owner stated that none of the items were in the hallway when he left after eating lunch soon before the burglary. A police detective who had investigated numerous burglaries testified that it is common for burglars to put the items they intend to remove in a pile near the exit in order to allow for a quick getaway. The State introduced crime scene photographs showing the broken window and the pile of the owner’s belongings. Defendant’s family friend testified that Defendant told him, on the night of the burglary, that the Mend Defendant had brought with him that morning had been arrested.
¶25{67} From this evidence, it is clear that Defendant had to have been inside the gate in the backyard near the broken window or the owner would have seen him during his initial investigation. This occurred shortly after two men were seen looking into the front windows. Two men were identified at the scene: one was Defendant and one was Perches. Defendant had to have been behind the gate for several minutes while the owner investigated and, if he had been outside at the time, certainly would have heard the owner tell his brother, who was 100 feet away, to call the police. Perches, whose presence at the residence was established by the owner, had no car or other means to take the items in the house after Defendant left. Perches would not have been able to carry ten rifles, a VCR, a pair of boots, a pair of tennis shoes, a tape measure, and a knife from this isolated area without a car or other transportation. Perches was arrested on the day of the burglary, which coincides with Defendant’s statement to his family friend that the man he was with that day was arrested.
¶26{68} This evidence corroborates Perches’ statements regarding the larceny and renders most of his statements cumulative. Corroboration and cumulative evidence are both listed in Van Arsdall as factors relevant to harmless error. 475 U.S. at 684, 106 S.Ct. 1431. In fact, the Supreme Court has specifically indicated in the context of an erroneously admitted out-of-court statement by an accomplice that “the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless.” Idaho v. Wright, 497 U.S. 805, 823, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). We applied this principle from Wright in both Torres, 1998-NMSC-052, ¶ 29 n. 4, 126 N.M. 477, 971 P.2d 1267, and Gonzales, 1999-NMSC-033, ¶39, 128 N.M. 44, 989 P.2d 419. Reference to corroborating evidence has also been made in numerous cases applying Chapman and Van Arsdall. Eg., Ross, 1996-NMSC-031, 122 N.M. at 27, 919 P.2d at 1092 (relying on corroborative evidence based on Wright). In addition, because Defendant chose not to present any evidence at trial, Perches’ statements are uncontradicted, which is another Van Arsdall factor in favor of finding the error harmless.
¶27{69} The majority concludes that Perches’ statement was the “clearest evidence” of guilt on the larceny convictions. I respectfully disagree. Perches’ statement may have been the clearest evidence of Defendant’s actions as a principal, but it was also the State’s weakest evidence. Defense counsel attacked the statement on numerous grounds, including misperception and motive to lie. The State’s strongest evidence of Defendant’s participation in the larcenies was the eyewitness testimony of the victim and his brother that Defendant was at the scene of the crime, near the broken window, during its occurrence, supplemented by the undisputed evidence that the owner’s property was moved from its usual place, the evidence that Defendant’s vehicle was the only available means to remove the items placed in the hallway, and the evidence that Defendant and Perches were together. To me, the only reasonable conclusion to be drawn from this evidence is that Defendant committed the larcenies or helped Perches commit them. In relation to this overwhelming evidence, Perches’ statement was relatively unimportant to the State’s case.
¶28{70} In light of the clear evidence of guilt, I believe that the State has shown beyond a reasonable doubt that a rational jury would have convicted Defendant of larceny had Perches’ statement been excluded. Cf Schneble, 405 U.S. at 432, 92 S.Ct. 1056 (concluding that “ ‘the minds of an average jury’ would not have found the State’s case significantly less persuasive had the testimony ... been excluded” because there was independent evidence overwhelmingly establishing the defendant’s guilt and the co-defendant’s confession merely corroborated other evidence). I would therefore affirm these convictions. The majority holding otherwise, I respectfully dissent.