State v. Veleta

                                                                        Office of the
                                                                            Director         New Mexico
                                                                                             Compilation
                                                                         2023.11.08          Commission
                                                                    '00'07- 11:08:08
            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: August 14, 2023

No. S-1-SC-38169

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

JAIME VELETA,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cindy Leos, District Judge

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

for Appellant

Hector H. Balderas, Attorney General
Walter M. Hart, III, Assistant Attorney General
Santa Fe, NM

for Appellee

                                        OPINION

VARGAS, Justice.

{1}    This case comes to the Court on direct appeal pursuant to Rule 12-102(A)(1)
NMRA. Defendant Jaime Veleta appeals his conviction for willful and deliberate first-degree murder, claiming the district court made several evidentiary errors, improperly
instructed the jury, permitted the entry of inconsistent verdicts, and violated his double
jeopardy rights by allowing the inconsistent verdicts to stand. Defendant presents a
novel argument that a verdict convicting him of first-degree murder but acquitting him of
the lesser-included offenses of second-degree murder and voluntary manslaughter is
legally inconsistent. We take this opportunity to address New Mexico law on
inconsistent verdicts to explain that only inconsistent convictions and not inconsistent
verdicts are reviewed. When the evidence is sufficient to support the verdict of
conviction, 1 we will not speculate as to why the jury acquitted a defendant of other
charges. To examine the verdict of acquittal requires that either we rule based on pure
speculation or we inquire into the jury’s deliberations, neither of which we are willing to
do.

I.      BACKGROUND

{2}    In January 2008, Defendant and four others went to the house of Danny Baca
(Victim) to confront him about a missing car that contained drugs. After discovering that
the car had been stripped and the drugs were missing, Defendant and the other men
took Victim from his home. Eventually, Defendant and two of his accomplices, Jose and
Mario Talavera, drove Victim out to the mesa where Defendant shot Victim at least
eighteen times, killing him, before lighting his body on fire. Shortly after killing Victim,
Jose and Mario took Defendant to the bus depot where Defendant boarded a bus to
Mexico. Defendant was charged with the murder of Victim in 2011 but was not
extradited to New Mexico until 2018.

{3}      At trial, Jose and another of Defendants’ accomplices, Gerardo Nuñez, testified
at length about Defendant’s involvement in Victim’s murder. At the conclusion of the
trial, the jury entered verdict forms convicting Defendant of willful and deliberate first-degree murder, felony murder in the first-degree, kidnapping, conspiracy, and tampering
with evidence. The jury also entered verdict forms acquitting Defendant of second-degree murder and voluntary manslaughter. The district court vacated his felony murder
conviction, merging it into his conviction for willful and deliberate first-degree murder,
and sentenced him to life in prison. Defendant appealed directly to this Court. N.M.
Const. art. VI, § 2 (“Appeals from a judgment of the district court imposing a sentence of
death or life imprisonment shall be taken directly to the supreme court.”); Rule 12-
102(A)(1).

II.     DISCUSSION

{4}    Defendant asks this Court to vacate his convictions, alleging the district court (1)
abused its discretion when it permitted the introduction of evidence that Defendant fled
the country following the murder of Victim, (2) erred when it improperly limited
Defendant’s cross-examination of two witnesses, violating his right to confrontation, (3)
erred when it improperly instructed the jury with regard to the stepdown instruction and
the lesser-included offenses of first-degree murder leading to a legally inconsistent
verdict, and (4) erred when it entered his conviction for first-degree murder despite his
implied acquittal. Defendant further claims that he is entitled to the reversal of his
convictions and requests that the case be remanded to the district court for a new trial.

1This opinion uses verdict of conviction to refer to the jury’s guilty verdict on a charge, giving rise to the
district court’s conviction on that charge. Similarly, we use verdict of acquittal to refer to the jury’s not
guilty verdict on a charge, giving rise to the district court’s acquittal on that charge.
He argues, however, that retrial for first-degree murder, second-degree murder, or
voluntary manslaughter is barred by double jeopardy. Finally, Defendant claims
cumulative error. Concluding that there was no error, we affirm the district court.

A.     Claims of Evidentiary Error

{5}    Defendant claims that the district court made evidentiary errors requiring reversal
by (1) admitting evidence of Defendant’s flight from New Mexico to demonstrate
consciousness of guilt, (2) denying Defendant the opportunity to cross-examine Gerardo
about his uncle’s federal drug charges, and (3) limiting Defendant’s cross-examination
of Jose about his cooperation with law enforcement. “The admission or exclusion of
evidence is within the discretion of the trial court. On appeal, the trial court’s decision is
reviewed for abuse of discretion.” State v. Hughey, 

, 

,

. “An abuse of discretion arises when the evidentiary ruling is clearly
contrary to logic” or when the district court “misapplies or misapprehends the law.” State
v. Pacheco, 

, 

, 

 (internal quotation
marks and citation omitted). For the reasons that follow, we conclude that the district
court did not abuse its discretion in any of the evidentiary rulings challenged by
Defendant.

1.     Flight evidence as consciousness of guilt

{6}      Defendant contends the district court abused its discretion by admitting evidence
of his travel to Mexico immediately after Victim was killed as evidence of consciousness
of guilt because the State failed to show that he knew he was being pursued by law
enforcement at the time he left for Mexico. The State contends that knowledge of law
enforcement pursuit is not a prerequisite for admission of flight evidence and asserts
that “it is the contemporaneity of the occurrence of the crime and the flight that creates
the reasonable inference of consciousness of guilt.”

{7}     We agree with the State. “Flight evidence is admissible because [it] tends to
show consciousness of guilt.” State v. Trujillo, 

, 

, 

 (internal quotation marks and citation omitted). “[T]he prosecution is not
required to establish the reason for a defendant’s flight,” and “a defendant’s knowledge
that he was being pursued is not a predicate to the admission of flight evidence.”
Pacheco, 

. Therefore, we determine there was no abuse of
discretion and instead defer to the district court’s determination that the probative value
of this evidence substantially outweighed its prejudicial effect. See State v. Bailey,

, 

 (explaining that Rule 11-403 NMRA gives the
district court “much leeway” in deciding whether evidence’s probative value substantially
outweighs its prejudicial effect (internal quotation marks and citation omitted)), aff’d,

, ¶ 26, 

 (“[T]he task under Rule 11-403 is not to exclude
all uniquely prejudicial evidence—just that evidence having an unduly prejudicial impact
on a defendant that far outweighs the evidence’s probative effect.”).

2.     Limitation on cross-examination of witnesses
{8}     Defendant next contends that the district court abused its discretion by limiting
his cross-examination of two of the State’s witnesses and that this violated the
Confrontation Clause of the Sixth Amendment to the United States Constitution.
Defendant argues that the district court abused its discretion when it “prohibited
[Defendant] from cross-examining [Gerardo] regarding [Gerardo’s] uncle’s federal
charges” and limited his questioning of Jose regarding his cooperation with authorities.
However, the record reflects that the district court allowed Defendant to cross-examine
both witnesses thoroughly with minimal limitation. We hold that the district court did not
abuse its discretion or violate Defendant’s right to confrontation. 2 See State v. Sanders,

, ¶ 23, 

, 

 (“The [district] court retain[s] wide
latitude insofar as the Confrontation Clause is concerned . . . . The Confrontation
Clause merely guarantees an opportunity for effective cross-examination . . . .” (second
alteration in original) (internal quotation marks and citation omitted)).

{9}    “[W]hile the scope of cross-examination usually lies within the sound discretion of
the district court, Confrontation Clause claims are issues of law that we review de novo.”
State v. Gonzales, 

, 

, 

 (internal
quotation marks and citation omitted). “The Sixth Amendment to the Constitution
guarantees the right of an accused in a criminal prosecution to be confronted with the
witnesses against him.” Davis v. Alaska, 

 (1974) (internal quotation
marks and citation omitted). “[A] primary interest secured by [the Sixth Amendment] is
the right of cross-examination.” 

 (internal quotation marks and citation omitted).
“Cross-examination of adverse witnesses is the primary means for testing their truth and
credibility and is essential to insure the integrity of the fact-finding process.” Sanders,

, ¶ 22. “Nevertheless, the right of cross-examination of adverse
witnesses is not absolute.” Id. ¶ 23. Rather, “[t]he Confrontation Clause merely
guarantees an opportunity for effective cross-examination; it does not guarantee that
the defense may cross-examine a witness in whatever way, and to whatever extent, the
defense might wish.” Id. (internal quotation marks and citation omitted). Therefore,
“[r]easonable restrictions on the exercise of a constitutional right are permissible.” State
v. Herrera, 

, ¶¶ 25, 40, 

, 

. With this framework in
mind, we turn to Defendant’s arguments regarding the testimony of Gerardo.

a.      Gerardo Nuñez

{10} Defendant argues that the district court abused its discretion on two separate
grounds by prohibiting him from inquiring into federal drug charges made against
Gerardo’s uncle. Defendant asserts that the district court abused its discretion when it
excluded the testimony about the uncle’s drug charges as irrelevant and that the
exclusion violated Defendant’s Sixth Amendment right to confront witnesses. Defendant
explained that he sought to inquire into the uncle’s federal indictment for drug trafficking
to show that Gerardo was knowledgeable about drug trafficking. Defendant claimed that
this was part of his defense to show that it was Gerardo and the other men who stole

2We note that the State claims that Defendant did not properly preserve his Confrontation Clause claims.
Because we conclude there has been no Confrontation Clause violation, we need not address the
preservation issue.
the drugs and needed someone to blame. The State objected to Defendant’s inquiry on
relevance grounds.

{11} The district court concluded that Gerardo’s uncle’s federal drug trafficking
charges had limited relevance to Gerardo’s knowledge of drug trafficking and therefore
that the value of the evidence was substantially outweighed by its prejudicial effect. See
Bailey, 

 (noting the district court’s discretion to exclude evidence
when the prejudicial impact substantially outweighs the probative value). Although the
district court did not allow Defendant to ask about the federal indictment, it gave
Defendant great latitude to ask questions regarding the uncle’s status as a drug dealer
and to inquire about the knowledge and experience in the drug trafficking trade gained
from his uncle, including the time frame during which Gerardo received this information
from his uncle. These questions gave Defendant the “opportunity for effective cross-examination” of Gerardo about his experience and knowledge of the drug trade.
Sanders, 

, ¶ 23. The district court did not abuse its discretion in
excluding evidence of the uncle’s drug charges as irrelevant, and Defendant’s right to
confrontation was not violated. See State v. Meadors, 

, ¶¶ 26, 33, 

, 

 (holding that the district court did not violate a defendant’s right
to confrontation or abuse its discretion by excluding testimony it deemed more
prejudicial than probative as it was not sufficiently indicative of the fact that the
defendant sought to prove).

b.     Jose Talavera

{12} Next, Defendant contends that the district court violated his right to confront Jose
Talavera and abused its discretion by limiting his cross-examination into Jose’s
cooperation with law enforcement. Defendant also asserts that the district court erred by
precluding him from impeaching Jose with sealed pleadings after Jose denied
cooperating with authorities. Defendant’s arguments lack merit because he was
permitted to inquire into Jose’s cooperation with both state and federal authorities, and
he was only precluded from inquiring into matters for which the district court determined
Jose lacked personal knowledge.

{13} To challenge a witness’s credibility before the jury, a defendant is allowed to
inquire into “whether a witness hoped to curry favor by cooperating with the
prosecution.” Gonzales, 

 (internal quotation marks and citation
omitted). The United States Supreme Court has “recognized that the exposure of a
witness’ motivation in testifying is a proper and important function of the constitutionally
protected right of cross-examination.” Delaware v. Van Arsdall, 

(1986) (internal quotation marks and citation omitted).

{14} Here, Defendant was permitted to inquire into whether Jose cooperated with the
State in exchange for a lighter sentence in this case and another unrelated federal case.
Defendant was also permitted to question Jose at length about his federal indictment for
drug trafficking. Accordingly, he received the opportunity to cross-examine Jose
effectively about his cooperation with authorities, and so his right to confrontation was
not violated. Sanders, 

, ¶ 23 (explaining that when a defendant is given
“an opportunity for effective cross-examination” of a witness, there is no Confrontation
Clause violation).

{15} Defendant further contends that he was denied the opportunity to impeach Jose
with evidence of sealed federal pleadings to show that Jose was lying about
cooperating with federal authorities. “Impeachment is crucial to effective cross-examination because it gives a party the opportunity to discredit a witness, so the jury
properly has a way to determine whether a witness is untruthful or inaccurate.” State v.
Gomez, 

, 

, 

. However, impeachment
evidence is still subject to the rules of evidence and, as such, is admitted or excluded at
the discretion of the district court. See id. ¶¶ 12, 14 (explaining that the district court’s
admission of impeachment evidence is reviewed for an abuse of discretion and is
subject to the rules of evidence).

{16} Defendant attempted to impeach Jose, after he denied being a federal informant,
by asking him why certain pleadings in the federal case were sealed, theorizing that the
pleadings were sealed because Jose was a federal informant. The district court barred
this line of questioning, concluding that Jose lacked the appropriate knowledge to
answer why the documents were sealed. Considering Defendant’s thorough cross-examination into Jose’s charges, sentencing, and potential status as an informant,
Defendant was given “the opportunity to discredit [the] witness.” Id. ¶ 12. Therefore,
limiting Defendant’s impeachment of Jose due to Jose’s lack of personal knowledge
was not an abuse of discretion. Rule 11-602 NMRA (“A witness may testify to a matter
only if evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.”).

{17} Having addressed Defendant’s evidentiary challenges, we now turn to
Defendant’s contention that improper jury instructions require reversal.

B.     Jury Instructions

{18} Defendant argues that the district court committed reversible error in issuing its
stepdown instruction to the jury, resulting in a “constitutionally infirm conviction.” The
infirmity, Defendant contends, manifested itself in two ways. First, he alleges the district
court erred by not complying with State v. Lewis, which requires the jury to be informed
that it may “consider both the greater and lesser offenses under a count in any order it
deems appropriate provided it return a verdict of not guilty on the greater offense before
the court may accept a verdict on the lesser included offense,” 

,

. Second, he contends the jury instructions created “serious juror
confusion” because they were internally inconsistent and contained undefined terms.

1.     Standard of review

{19} Preservation of a party’s argument generally determines which of two pertinent
standards of review will guide this Court’s reviews of claimed error in jury instructions.
State v. Sandoval, 

, 

, 

. “Under both
standards of review, we determine whether a reasonable juror would have been
confused or misdirected by the jury instruction.” 

 (internal quotation marks and
citation omitted). Because we conclude that a reasonable juror would not have been
confused or misled and therefore that there was no error in the first instance, we need
not consider whether Defendant’s argument was preserved.

2.     Compliance with Lewis

{20} In Lewis, this Court considered the “ambiguity in our existing jury instructions
regarding the order in which a jury must deliberate on counts which include both greater
and lesser included offenses.” 

. Recognizing a defendant’s interest
in preventing jury deliberations from being improperly restricted and the state’s interest
“in requiring the jury to grapple with the prospect of [a] defendant’s guilt of the greatest
offense charged,” the Lewis Court adopted the “modified acquit first approach,”
providing that “juries shall be instructed that they have discretion to choose the order in
which they deliberate on the offenses within a count but that they may not return a
verdict on a lesser included offense unless they unanimously find the defendant not
guilty on the greater offense.” Id. ¶¶ 37-38, 40 (internal quotation marks and citation
omitted). Defendant claims that the district court violated this holding in Lewis. The
applicable instruction in this case provided in relevant part:

       You may not find the defendant guilty of an included offense until you
       have unanimously decided that the defendant is not guilty of the offense
       that includes the included offense. For example, you may not find the
       defendant guilty of second degree murder until you have decided that he
       is not guilty of first degree murder. However, you have the discretion to
       choose the manner and order in which you deliberate on these offenses.

{21} According to Defendant, the stepdown instruction did not comply with Lewis
because it did not “state that the jury must acquit of a greater offense before rendering a
verdict as to any lesser-included offense.” However, a close examination of the first
sentence of the given instruction reveals that it satisfies Lewis. This sentence instructed
the jury that it “may not find [D]efendant guilty of an included offense until [the jury] ha[s]
unanimously decided that [D]efendant is not guilty of the offense that includes the
included offense” (emphasis added). Similarly, under the Lewis mandate, a jury cannot
return a verdict on the lesser offense unless it first “return[s] a unanimous verdict of not
guilty on the greater offense.” 

. Though the given instruction uses
the term “included offense” in place of “lesser offense” and “offense that includes the
included offense” in place of “greater offense,” both iterations convey the same
information to the jury, and therefore the stepdown instruction complied with Lewis. It
provided the language necessary to prevent the jury from “grappl[ing] with the prospect
of [a] defendant’s guilt of the greatest offense charged.” Id. ¶ 37 (internal quotation
marks and citation omitted). Because the Lewis mandate is satisfied, we decline to
reverse on this basis.

3.     Juror confusion
{22} Defendant next argues that even if the Lewis mandate was satisfied, the
instructions confused the jury, resulting in error. To obtain reversal of his conviction,
Defendant must show that a reasonable juror would be “confused or misdirected” by the
given jury instructions. Sandoval, 

 (internal quotation marks and
citation omitted). The determination of “juror confusion or misdirection may stem not
only from instructions that are facially contradictory or ambiguous, but from instructions
which, through omission or misstatement, fail to provide the juror with an accurate
rendition of the relevant law.” State v. Benally, 

, 

, 

. Defendant argues the jury instructions were confusing in three ways: (1)
they were inconsistent, (2) they used “the term ‘included offense’ without defining it,”
and (3) the curative instruction provided only that the stepdown instruction applied to
first-degree willful and deliberate murder, failing to identify the stepdown instruction by
instruction number.

{23}   The stepdown instruction, Instruction No. 18, stated:

You have been instructed on the crimes of first degree murder, second degree murder,
and voluntary manslaughter. You must consider each of these crimes. You should be
sure that you fully understand the elements of each crime before you deliberate further.

       You will then discuss and decide whether the defendant is guilty of murder
       in the first degree. If you unanimously agree that the defendant is guilty of
       murder in the first degree, you will return a verdict of guilty of murder in the
       first degree. If you do not agree, you should discuss the reasons why
       there is a disagreement.

       If, after reasonable deliberation, you do not agree that the defendant is
       guilty of murder in the first degree you should move to a discussion of
       murder in the second degree. If you unanimously agree that the defendant
       is guilty of murder in the second degree, you will return a verdict of guilty
       of murder in the second degree. If you do not agree you should discuss
       the reasons why there is a disagreement.

       If, after reasonable deliberation, you do not agree that the defendant is
       guilty of murder in the second degree, you should consider whether the
       defendant is guilty of voluntary manslaughter. If you unanimously agree
       that the defendant is guilty of voluntary manslaughter, you will return a
       verdict of guilty of voluntary manslaughter. If you do not agree, you should
       discuss the reasons why there is a disagreement.

       You may not find the defendant guilty of more than one of the foregoing
       crimes. If you have a reasonable doubt as to whether the defendant
       committed any one of the crimes, you must determine that he is not guilty
       of that crime. If you find him not guilty of all of these crimes, you must
       return a verdict of not guilty.
        You may not find the defendant guilty of an included offense until you
        have unanimously decided that the defendant is not guilty of the offense
        that includes the included offense. For example, you may not find the
        defendant guilty of second degree murder until you have decided that he
        is not guilty of first degree murder. However, you have the discretion to
        choose the manner and order in which you deliberate on these offenses.

(Emphasis added.)

a.      Internal inconsistency

{24} Defendant contends the stepdown instruction was internally inconsistent because
it prescribed the order in which the jury “must” consider the offenses then later
instructed the jury that it had the discretion to choose the order in which it considered
the offenses. However, the relevant portion of the instruction does not use the word
“must” as Defendant claims, but rather the term “should.” The term “should,” similar to
“may,” is permissive or suggestive—not mandatory. See Cerrillos Gravel Prods., Inc. v.
Bd. of Cnty. Comm’rs of Santa Fe Cnty., 

, ¶ 10, 

, 

 (“The word ‘may’ is permissive, and is not the equivalent of “shall,’ which is
mandatory.”), aff’d, 

, ¶ 12, 

, 

; see also, e.g.,
Aragon v. United States, 

, 826 (10th Cir. 1988) (holding that the use of the
word “should” is suggestive language, rather than mandatory language). Examining the
instructions as a whole, as the jury was instructed to do and as our caselaw requires,
State v. Cabezuela, 

, 

, 

, any
permissive suggestion regarding the order of consideration was clarified by the express
instruction informing the jury that it had the discretion to consider the offenses in any
order it wished.

{25} We see no internal inconsistency in the instruction that would confuse or
misdirect a reasonable juror. Furthermore, the stepdown instruction provided the jury
with an accurate rendition of the relevant law, as it recites the language of UJI 14-250
NMRA, the stepdown instruction for varying degrees of homicide in place at the time of
trial. 3

b.      Included offense not defined

{26} Defendant next claims the district court erred in failing to define “included
offense” because it resulted in jury confusion. Defendant contends that a layperson
would not comprehend that second-degree murder is a lesser-included offense of first-


3The stepdown instruction was subsequently amended when we recognized an ambiguity in New
Mexico’s prior uniform stepdown instructions in that it failed to explain “whether a jury may proceed to
consideration of a lesser offense if it is unable to agree on the greater offense”—an issue that is not
presented by this case. Lewis, 

. Following Lewis, our prior stepdown
instructions were replaced with UJI 14-6002B NMRA, which “serve[s] as a single adaptable instruction”
adopted to “clarify the process for the jury to deliberate and return verdicts on lesser-included offenses.”
UJI 14-6002B comm. cmt.
degree murder or that voluntary manslaughter is a lesser-included offense of second-degree murder based on this instruction.

{27} We again apply the error analysis set out in Sandoval, 

.
We are unpersuaded that the lack of a definition for “included offense” would confuse or
misdirect a reasonable juror because the jury was provided with an example of a lesser-included offense. The jury was instructed that it could not find Defendant guilty of
second-degree murder without first finding him not guilty of first-degree murder.
Because the jury received this helpful example and because the jury never requested a
definition, see State v. Romero, 

, 

, 

(inferring that the jury was not confused because it did not request a definition), we
conclude that the instructions would not confuse or misdirect a reasonable juror and that
there is no error. See Sandoval, 

.

c.     Curative instruction

{28} Defendant also asserts that the jury was confused by the curative instruction
given in response to its question about whether it could “charge both felony murder and
first-degree murder/second-degree murder/manslaughter” (emphasis added).
Addressing the jury’s question, the district court gave a curative instruction stating, “The
step-down instruction applies only to willful and deliberate murder.” Defendant contends
that the curative instruction confused the jury both because it did not refer to the
stepdown instruction by its number (eighteen), leaving the jury with no way to know that
the curative instruction applied to the stepdown instruction and because the curative
instruction only refers to willful and deliberate murder, resulting in “an ambiguous
limitation which could be reasonably read to limit” application of the stepdown
instruction to only first-degree murder. Defendant claims that the jury’s not-guilty
verdicts for second-degree murder and voluntary manslaughter are clear evidence of
this confusion.

{29} Again applying the Sandoval analysis to Defendant’s claimed error in the curative
instruction, this Court must first determine if the lack of reference to Instruction No. 18
and the fact that the instruction was limited to the explanation that the stepdown
instruction applied only to willful and deliberate murder would confuse or misdirect a
reasonable juror. Sandoval, 

. Here, the jury did not express any
confusion as to which instruction the curative instruction applied. The jury also did not
express any confusion in relation to whether its consideration should be limited to first-degree murder. The jury’s lack of inquiry suggests that it was not confused. See, e.g.,
Romero, 

 (inferring that the jury was not confused because it did
not request clarification). While Defendant contends that this confusion is demonstrated
by the jury returning verdicts of not guilty for second-degree murder and voluntary
manslaughter, the jury’s act of expressly entering these not-guilty verdicts instead
demonstrates that it did not limit its consideration to first-degree murder and also
understood the stepdown instruction, which explained that the jury “may not find the
defendant guilty of more than one of the foregoing crimes.” These verdicts, along with
the jury’s conviction of felony murder, demonstrate that the jury connected the curative
instruction to the stepdown instruction. Therefore, we conclude that the jury was not
confused or misdirected by the curative instruction.

{30} Instead, the jury appeared confused as to whether it could convict on both felony
murder and the other homicide offenses charged, questioning whether it could “charge
both felony murder and first-degree murder/second-degree murder/manslaughter”
(emphasis added). The district court correctly interpreted the jury’s question as
confusion related to whether the jury could convict for felony murder and one of the
other charged homicide offenses. The district court noted that the confusion was likely
due to the stepdown instruction referring to first-degree murder, but not differentiating
between first-degree, felony murder and willful and deliberate first-degree murder. The
jury’s guilty verdicts for both felony murder and willful and deliberate first-degree murder
support that this was the point of confusion and that the confusion was resolved by the
curative instruction. Because any confusion was cured, reversal is unwarranted. See
State v. Parish, 

, ¶¶ 4, 13, 

, 

 (explaining that
a confusing instruction, in contrast with a legally erroneous instruction, may be cured
when examining the instructions as a whole).

C.     Inconsistent Verdicts

{31} Defendant next claims that reversal is warranted because the verdicts are legally
inconsistent. Defendant insists that the verdicts acquitting him of the lesser-included
offenses, but convicting him of first-degree murder are inconsistent because the
charged homicide offenses share the elements that (1) Defendant killed Victim and (2)
that this occurred in New Mexico on or about January 11, 2008. Defendant argues that
due to not-guilty verdicts for second-degree murder and voluntary manslaughter,
inconsistency is apparent in the guilty verdicts as to the findings of mens rea. Defendant
says “it is equally as possible that the jury determined that there was not sufficient
evidence to convict” on the shared essential elements as it is that the jury’s verdict
shows a rejection of the distinct elements—the mens rea. Defendant reasons that the
possibility that the jury found the shared elements for first-degree murder but not for
second-degree murder and voluntary manslaughter renders the verdicts legally
inconsistent.

{32} We disagree. This Court reviews inconsistent convictions, not inconsistent
verdicts. When the evidence is sufficient to support the verdict of conviction, we will not
speculate as to why the jury acquitted a defendant of other charges—even if the
conviction and acquittal are allegedly inconsistent. To examine the verdict of acquittal
would require us to rule based on pure speculation or else would require an inquiry into
the jury’s deliberations, both of which we decline to undertake. See United States v.
Powell, 

 (1984)

{33} Whether a legal inconsistency in a jury’s verdict requires acquittal is a matter of
law reviewed de novo. United States v. Pierce, 

, 821 (2d Cir. 2019). The
general rule is that “[c]onsistency in the verdict is not necessary.” Dunn v. United States,

 (1932). The state must prove each element of a charged offense
beyond a reasonable doubt. In re Winship, 

 (1970) (“[T]he Due
Process Clause protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is
charged.”). Where there is sufficient evidence to support the conviction, reversal is not
required. See State v. Fernandez, 

, ¶ 39, 

, 

(explaining that reversal of a conviction supported by sufficient evidence is not required
even if it is irreconcilable with an acquittal because appellate courts review
convictions—not acquittals).

{34} The rule set out in Dunn was upheld more than fifty years later in Powell, 

. In Powell, the defendant was both acquitted of the predicate offenses of
conspiracy to possess cocaine and possession of cocaine and convicted of the
compound offense of “using the telephone to facilitate those offenses.” 

 The
defendant in Powell, like Defendant in this case, asserted that the alleged inconsistency
between the convicted offense and acquitted offenses necessarily required reversal. 

. The Powell Court disagreed, holding that any inconsistency between acquittal
and conviction did not require reversal because “[i]t is equally possible that the jury,
convinced of guilt, properly reached its conclusion on the compound offense, and then
through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the
lesser offense.” 

. It reasoned that “an individualized assessment of the reason
for the inconsistency would be based either on pure speculation, or would require
inquiries into the jury’s deliberations that courts generally will not undertake.” 

.
Instead, a criminal defendant, the Powell Court explained, is sufficiently protected
“against jury irrationality or error by the independent review of the sufficiency of the
evidence” as to those counts upon which a defendant is convicted. 

.

{35} Even though New Mexico is not bound by Powell, see, e.g., State v. Halstead,

 (Iowa 2010) (explaining that, because the Powell Court did not
base its decision on constitutional considerations, states are free to address
inconsistent verdicts as they see fit in state criminal proceedings), we are persuaded by
its reasoning and hereby expressly adopt it in New Mexico. Further, we view the Powell
approach as consistent with the approach taken by our lower courts over the past fifty
years. See, e.g., State v. Roper, 

, 

, 

(“We have frequently said that our business is to review the verdicts of conviction, and
not concern ourselves with any alleged acquittals, and thus we do not entertain
contentions alleging that the verdicts are irreconcilable.”); State v. Leyba, 1969-NMCA-
030, ¶¶ 36-37, 

, 

 (“The verdict of acquittal is beyond our
control. . . . Since we may only speculate as to why the jury acquitted defendant . . . ,
that acquittal, even though irreconcilable with conviction . . . , does not require the
conviction to be set aside as a matter of law.”); State v. Nichols, 

, 

 (discussing inconsistent verdicts in dicta and basing its “ultimate
decision” not on any alleged inconsistency, but upon insufficient evidence to support the
conviction). Indeed, the majority of jurisdictions have applied the rule announced in
Dunn and reaffirmed in Powell. See, e.g., State v. Davis, 

 (Tenn.
2015) (recognizing that inconsistent verdicts can take multiple forms, and when there is
an alleged inconsistency between a conviction and an acquittal, the majority of
jurisdictions follow Dunn and Powell in declining to upset a conviction as long as there is
sufficient evidence); see also Beattie v. State, 

 (Ind. 2010)
(reasoning that a jury may return inconsistent verdicts for a number of reasons, and
“agree[ing] with and adopt[ing] the federal rule expressed by the United States Supreme
Court in Dunn and Powell, which has been for the most part the prevailing rule of
Indiana jurisprudence”).

{36} Applying Powell, Defendant has not presented this Court with inconsistent
convictions, and we decline to examine the jury’s rationale for acquitting Defendant of
second-degree murder and voluntary manslaughter while convicting him of willful and
deliberate first-degree murder because such an examination would require that we rule
based on pure speculation or else inquire into the jury’s deliberations, both endeavors
that we decline to undertake. See Powell, 

. As Defendant concedes and
the record reflects, the State presented sufficient evidence to support the conviction of
willful and deliberate first-degree murder, and we will not vacate that conviction. See
Fernandez, 

, ¶ 39, (declining to vacate a conviction supported by
substantial evidence acknowledging that “we review the verdict of conviction, not the
verdict of acquittal”); see also Powell, 

 (explaining that, when a defendant
is given the benefit of acquittal on certain counts, “it is neither irrational nor illogical to
require [a defendant] to accept the burden of conviction on the counts on which the jury
convicted”).

D.      Implied Acquittal and Double Jeopardy

{37} We now turn to Defendant’s argument that his conviction for willful and deliberate
first-degree murder should be vacated under the implied acquittal doctrine as this
conviction violates his right to be free from double jeopardy. For the reasons explained
below, both the implied acquittal doctrine and double jeopardy are inapposite here.

1.      Implied acquittal doctrine

{38} Defendant contends that State v. Montoya, an implied acquittal case, supports
reversal. 

, ¶ 25, 

. In Montoya, we held that the defendant,
having been acquitted by a jury of the lesser offense of second-degree murder, was
constitutionally protected from subsequent prosecution for that offense or for a related
greater offense because acquittal of the lesser offense resulted in an implied acquittal of
the greater offense. Id. ¶¶ 25-27.

{39} Montoya is of no assistance to Defendant because the implied acquittal doctrine
has not been extended to cases where, as here, the jury was not silent on the greater
offense but rather expressly convicted the defendant of the greater offense. 4 See United

4Defendant insists that Florida caselaw supports his position. The Florida cases Defendant cites are
inapplicable because they did not hold that the implied acquittal doctrine is automatically invoked where
the jury convicts on the greater offense. Instead, the Florida Supreme Court has made clear that the
implied acquittal doctrine is limited to situations where the jury is silent on the greater offense. Greene v.
City of Gulfport, 

 (Fla. 1958) (precluding subsequent trial for the higher-grade offense
“since the verdict convicting of one of the lower grades, but saying nothing as to the higher, necessarily
implies a finding of not guilty of the higher offense”).
States v. Bordeaux, 

 (8th Cir. 1997) (rejecting the application of the
applied acquittal doctrine where the jury was not silent on the greater offense);
Saulsberry v. Lee, 

, 649 (6th Cir. 2019) (explaining that the implied
acquittal doctrine only applies where “the jury remained silent in the face of a free
choice to convict”). Defendant concedes that there is no New Mexico or federal
authority to support his position that the implied acquittal doctrine operates even where
the jury has expressly convicted on the greater offense. And where Defendant has not
provided authority to support his position, we may assume no such authority exists. Lee
v. Lee (In re Doe), 

, ¶ 2, 

, 

 (noting that
where a party fails to cite authority, this Court assumes no such authority exists).

2.    Double jeopardy

{40} Defendant also asserts that his conviction violates double jeopardy and that
retrial for any of the homicide offenses would be barred by double jeopardy. “The Fifth
Amendment of the United States Constitution prohibits double jeopardy and is made
applicable to New Mexico by the Fourteenth Amendment.” State v. Swick, 2012-NMSC-
018, ¶ 10, 

. The Double Jeopardy Clause of the Fifth Amendment
guarantees that no person shall “be twice put in jeopardy of life or limb” for the same
offense. U.S. Const. amend. V. Double jeopardy is implicated where there is “(1) a
second prosecution for the same offense after acquittal, (2) a second prosecution for
the same offense after conviction, [or] (3) multiple punishments for the same offense.”
Montoya, 

 (internal quotation marks and citation omitted).
Because this case does not involve any of the enumerated protections, double jeopardy
is not implicated.

{41} First, there has only been one prosecution, and while Defendant insists retrial
would be barred on double jeopardy grounds, as we determine no error below
warranting reversal, retrial is not contemplated. In addition, this is not a multiple
punishment case. Defendant was only left with one homicide conviction after his felony
murder conviction was merged, and he does not argue that his convictions for
conspiracy, evidence tampering, and kidnapping are punishments for the same offense
in violation of double jeopardy. Rather, Defendant insists that his right to be free from
double jeopardy is violated because he was simultaneously convicted of willful and
deliberate first-degree murder and acquitted of second-degree murder and voluntary
manslaughter. Defendant fails to make a justifiable double jeopardy argument.

{42} For the first time at oral argument, Defendant argued that the language of the
New Mexico Constitution provides greater protection than its federal counterpart and
called upon this Court to expand the protections of the New Mexico Constitution based
on principles of res judicata and collateral estoppel to cases where, as here, a
defendant has been convicted on a greater offense but acquitted on a lesser-included
offense. However, under either constitution, double jeopardy and principles of res
judicata and collateral estoppel are simply not implicated where there has been neither
multiple punishments nor successive prosecutions. See State v. Gallegos, 2011-NMSC-
027, ¶ 30, 

, 

 (providing that both state and federal double
jeopardy clauses are applicable when there have been successive prosecutions or
multiple punishments); Alba v. Hayden, 

, 

, 

 (explaining that res judicata and collateral estoppel “only apply to successive
litigation and not to issues or claims raised in the same proceeding”). Therefore, we do
not further entertain Defendant’s double jeopardy and estoppel arguments.

E.     Cumulative Error

{43} Finally, Defendant asserts that, even if the claimed errors above individually do
not warrant reversal, cumulative error deprived him of a fair trial requiring reversal. In
light of our conclusion that the district court did not err, there can be no cumulative error.
See State v. Casillas, 

, 

, 

.

III.   CONCLUSION

{44}   For the foregoing reasons, we affirm.

{45}   IT IS SO ORDERED.

JULIE J. VARGAS, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

MICHAEL E. VIGIL, Justice

DAVID K. THOMSON, Justice