State v. Chavez

                                                                    Office of the
                                                                                            New Mexico
                                                                        Director            Compilation
                                                                                            Commission
                                                                     2024.12.17
                                                                '00'07- 13:52:05
            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: August 26, 2024

No. S-1-SC-39691

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

SEIG ISAAC CHAVEZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Abigail Aragon, District Judge

Rothstein Donatelli LLP
Marc M. Lowry
Roshanna K. Toya
Albuquerque, NM

for Appellant

Raúl Torrez, Attorney General
Meryl E. Francolini, Assistant Attorney General
Santa Fe, NM

for Appellee

                                        OPINION

BACON, Justice.

{1}     In this direct appeal from his convictions for first-degree murder (willful and
deliberate) and tampering with evidence, Defendant Seig Isaac Chavez raises four
issues: insufficient evidence, improper denial of his motion to change venue,
prosecutorial comment on silence, and improper admission of an audio recording of a
jail phone call from Defendant to his son. We hold that the district court’s admission of
the jail phone call was plain error, and accordingly we vacate Defendant’s convictions.
We further hold that Defendant’s convictions were supported by substantial evidence,
and thus double jeopardy does not preclude retrial on the charges. In view of our
disposition, we do not reach the remaining issues raised in this appeal.

I.     BACKGROUND

{2}     On the evening of August 15, 2019, Defendant drove into the parking lot of the
Little Moon restaurant in Las Vegas, New Mexico. William “Skip” Smith (Victim) was
sitting on the sidewalk. Victim was a developmentally disabled man who lived in a
boarding home, did not work or drive, and was known in the community to frequent
businesses along Grand Avenue. According to an employee of the Little Moon,
Defendant approached Victim and invited Victim to go with him to get food at another
location. Victim readily got into Defendant’s truck. According to this witness, the
encounter was brief and nonaggressive.

{3}   The following day, Victim’s body was found in an alleyway. He had been stabbed
24 times, sustaining wounds to his head, neck, trunk, and extremities. Some wounds
appeared to be defensive. As Defendant was the last person to be seen with Victim,
Defendant became the prime suspect.

{4}     Surveillance video showed that Defendant had driven past Victim several times
before their encounter. Defendant was first seen driving his gold colored pickup truck,
with a silver colored toolbox in the bed, southbound along Grand Avenue as Victim
walked north towards the Little Moon. Defendant passed Victim and made a right turn
off Grand Avenue where he turned around and then drove northbound along Grand
Avenue. About two minutes later, Defendant made another U-turn, drove southbound
again, and entered the Little Moon parking lot. Defendant drove past Victim to the back
of the lot, then returned to park in a spot closer to Grand Avenue. Defendant remained
in his parked truck for approximately one minute and forty seconds before exiting the
truck and approaching Victim.

{5}    When police located Defendant ten days after finding Victim’s body, they
observed that Defendant’s truck had been sanded down to a gray color. The toolbox in
the bed had been painted black from its previous silver color. During a subsequent
search, Police found sandpaper and cans of black spray paint at Defendant’s home.
Police cut three pieces of upholstery from the passenger seat of Defendant’s truck of
which two later tested positive for Victim’s blood. Victim’s blood was also found on the
sleeve of a jacket found in Defendant’s home.

{6}   Prior to trial, the State moved in limine for the admission of Defendant’s jail
phone calls, including one call to his teenage son. In that call, Defendant is heard to
say:

       And you don’t trust anybody. You keep that door locked. And you keep
       your fucking knife on you. Anybody gets close to you, you stick ‘em in their
       fucking throat, and you stick ‘em again and again. I ain’t fucking around.
       This is your daddy telling you this.
       Anybody tries touching you, you put that fucking knife straight in their
       fucking throat, and you do it again and again until they don’t fucking move.
       Then you do it to everybody. You’re the man of the house. You are the
       one to protect everyone. Time for you to grow up, son. You understand
       me?

       I’m ordering you. And I’ll go down and go to hell for it. You don’t worry
       about that shit. I’m telling you to do this. You keep that knife in your pocket
       that I got you, that sharp one. And you keep it on you at all times. And you
       never let that fucking thing out of your sight. You understand me?

       And I don’t give a fuck who it is. If they look at you funny or . . . you don’t
       trust nobody. You don’t turn your back on nobody. You make sure them
       doors are locked at all fucking times. And you get up—anybody tries
       touching you—you stick that fucker. You bury it in their fucking throat. You
       understand me?

       I ain’t fucking around, dude. Daddy’s going to prison.

{7}    The State argued that those statements were admissible because they were
“relevant as several injuries sustained by [Victim] were stab wounds to the throat area.”
Citing Rule 11-801(D)(2) NMRA, the State argued that the statements were not hearsay
because they were statements of a party opponent, made by Defendant but offered by
the State against Defendant. Moreover, the State argued Defendant had no reasonable
expectation of privacy in the conversations because he was on notice that his phone
calls were being recorded. Defense counsel responded that a ruling on admissibility
would be premature because the State provided incomplete transcripts.

{8}     At the hearing on the motion, the State again argued that the jail phone calls
were admissible as relevant “habit” evidence. Defense counsel stipulated that the State
did not need to lay “normal[]” foundation for the jail phone calls, but objected to the
relevance of the recordings, noting that “even if the State is trying to show habit,” it is
not relevant. Although Defense counsel stated that he did not “know how it’s relevant,”
he did not raise the issue of improper character evidence under Rule 11-404(A) NMRA
or the danger of unfair prejudice under Rule 11-403 NMRA. The district court observed
that “relevancy is a low burden” and held that the danger of unfair prejudice did not
substantially outweigh the probative value of the statements. Defense counsel later
stipulated to the admission of the jail phone calls. In its written order, the district court
relied on the stipulation as the basis for admitting the jail phone calls into evidence and
provided no further rationale.

{9}    Based on the above-described evidence that the State adduced at trial, the jury
convicted Defendant of first-degree murder and tampering with evidence. The district
court sentenced Defendant to “thirty (30) years to Life Imprisonment”1 plus three years,
to be served concurrently.

II.     DISCUSSION

A.      The Admission of the Jail Phone Call Was Plain Error

1.      Standard of review

{10} Unpreserved evidentiary errors are reviewable on appeal under a plain error
standard. Rule 11-103(E) NMRA. Because “[p]lain error is an exception to the general
rule that parties must raise timely objection to improprieties at trial, . . . it is to be used
sparingly.” State v. Dylan J., 

, 

, 

(internal quotation marks and citation omitted). We will not reverse on the basis of plain
error unless the error “affect[ed] a substantial right” of the defendant. Rule 11-103(E).

{11} For a determination of plain error, we have interpreted this language to require
“that admission of the [evidence] constituted an injustice that created grave doubts
concerning the validity of the verdict.” State v. Montoya, 

, 

 (internal quotation marks and citation omitted). However, plain error does not
require that “the defendant’s guilt is so doubtful that it would shock the conscience of
the court to allow it to stand.” State v. Lucero, 

, ¶ 13, 

,

. Instead, the focus of plain error review is on the fairness of the trial.
Under plain error review, we consider the error’s effect on the overall “fairness, integrity,
or public reputation of judicial proceedings.” State v. Paiz, 

, 

, 

 (quoting U.S. v. Olano, 

 (1993) (internal
quotation marks omitted)). “An error may seriously affect the fairness, integrity or public
reputation of judicial proceedings independent of the defendant’s innocence.” Olano,

 (text only) 2 (citation omitted).

{12} We apply this standard to the facts of this case by examining whether the district
court committed error when it admitted the jail phone call, then asking whether this
admission affected a substantial right of Defendant and significantly affected the



1We note that the district court erred by imposing a term-of-years sentence for first-degree murder. The
mandatory minimum sentence for first-degree murder is life. NMSA 1978, § 30-2-1(A) (1994) (“Whoever
commits murder in the first degree is guilty of a capital felony.”); NMSA 1978, § 31-18-14 (2009) (“When a
defendant has been convicted of a capital felony, the defendant shall be sentenced to life imprisonment
or life imprisonment without possibility of release or parole.”); see generally Compton v. Lytle, 2003-
NMSC-031, ¶ 12, 

, 

 (discussing the difference between life and term-of-years
sentences), superseded by statute on other grounds as stated in State v. Tafoya, 

,

, 

. We note this error because it implicates our direct appellate jurisdiction,
which only obtains “from a judgment of the district court imposing a sentence of death or life
imprisonment.” N.M. Const. art. VI, § 2. But because we vacate Defendant’s convictions in this opinion,
we do not otherwise address the error.
2The “text only” parenthetical indicates omission of nonessential punctuation marks⸺including internal
quotation marks, ellipses, and brackets⸺that are present in the text of the quoted source, leaving the
quoted text otherwise unchanged.
verdicts. Because we conclude that all of those conditions are met, we vacate
Defendant’s convictions.

2.     The admission of the jail phone call was error

{13} “Evidence is relevant if [] it has any tendency to make a fact more or less
probable than it would be without the evidence, and [] the fact is of consequence in
determining the action.” Rule 11-401 NMRA. Ordinarily, “[r]elevant evidence is
admissible.” Rule 11-402 NMRA. However, two exceptions are important here: the
prohibition on propensity evidence, and the prohibition on evidence that is substantially
more prejudicial than probative.

{14} Under Rule 11-404(A)(1), character evidence is not admissible to prove a
person’s propensity to act in a certain manner. Id. (“Evidence of a person’s character or
character trait is not admissible to prove that on a particular occasion the person acted
in accordance with [or exhibited a propensity for] the character or trait.”). Propensity
evidence is inadmissible for its probative value solely. “One might argue that the
defendant’s propensity to commit the crime would be highly relevant evidence. Indeed,
it might. Its exclusion is based on policy concerns, not on relevancy grounds.” 1 Barbara
E. Bergman, et al., Wharton’s Criminal Evidence § 4:22 (15th ed. 2023).

{15} Those policy concerns center on the potential for wrongful conviction. “[J]urors
are too likely to give undue weight to evidence of a defendant’s prior misconduct and
perhaps even to convict the defendant solely because of a belief that the defendant is a
bad person.” State v. Lovett, 

, 

 (internal quotation
marks and citation omitted); accord Bergman, supra, § 4:18 (noting the policy concern
that “jurors may well convict not because they believe the defendant is guilty of the
current charges, but because he appears to be a person of bad character”). This
longstanding prohibition on propensity evidence is fundamental to a fair trial, as it flows
from the presumption of innocence. See, e.g., U.S. v. Foskey, 

 (D.C.
Cir. 1980) (“It is fundamental to American jurisprudence that a defendant must be tried
for what he did, not for who he is. That precept is . . . [a] concomitant of the presumption
of innocence.” (internal quotation marks and citation omitted)); see also People v. Allen,

 (Mich. 1988) (“[I]n our system of jurisprudence, we try cases,
rather than persons.” (citation omitted)).

{16} Although character evidence is categorically inadmissible if it is relevant only to
the defendant’s propensity to commit the crime charged, Rule 11-404(A)(1), it may be
admissible to prove something other than propensity. See, e.g., State v. Samora, 2016-
NMSC-031, ¶ 40, 

 (noting that the “rule only prohibits the use of otherwise
relevant evidence when its sole purpose or effect is to prove criminal propensity”
(internal quotation marks and citation omitted)). In a criminal case, evidence of a
defendant’s “crime, wrong, or other act” that could be probative of character may be
admissible for a nonpropensity purpose “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Rule
11-404(B)(1)-(2) NMRA. 3 These examples of permissible uses are “intended to be
illustrative rather than exhaustive, and evidence of other wrongs may be admissible on
alternative relevant bases so long as it is not admitted to prove conformity with
character.” State v. Martinez, 

, 

, 

.

{17} The burden is on the proponent of the evidence to identify “a probative use of the
evidence that is not based on the proposition that a bad person is more likely to commit
a crime.” State v. Lymon, 

, 

 (quoting State v. Jones,

, ¶ 8, 

, 

); see also State v. Serna, 2013-
NMSC-033, ¶ 17, 

 (explaining that the proponent of the evidence bears the
burden of demonstrating “the rationale for admitting the evidence to prove something
other than propensity”) (citation omitted). The proponent must make a cogent argument
as to how the evidence has “real probative value, and not just possible worth” to a
nonpropensity issue. Serna, 

 (internal quotation marks and
citation omitted). “In other words, more is required to sustain a ruling admitting otheracts evidence than the incantation of the illustrative exceptions contained in the Rule.”

 (text only) (citation omitted).

{18} Additionally, relevant and otherwise admissible evidence may nevertheless be
excluded “if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Rule 11-403. Thus, even “[i]f the evidence is probative of something other
than propensity,” we still must “balance the prejudicial effect of the evidence against its
probative value.” Lymon, 

 (internal quotation marks and citation
omitted).

a.      The statements in the jail phone call were solely probative of propensity,
        except one statement that was probative of consciousness of guilt

{19} In the jail phone call, Defendant ordered his son, in very clear and graphic terms,
to stab “anybody” and “everybody” in the throat with a knife “again and again until they
don’t fucking move.” The self-evident relevance of these statements is to demonstrate
that Defendant is the type of person who would kill another person by stabbing the
person in the throat multiple times, precisely as the assailant did to the Victim. From
there, the natural inference is that because Defendant had the propensity to stab people
in the throat, he must have done so to the Victim on the date in question. Such an
inference is impermissible. Rule 11-404(A)(1). If Defendant’s statements have no
purpose other than to allow the jury to draw that impermissible inference, then they are
inadmissible. We, therefore, turn to examine the State’s various arguments for the
admissibility of the jail phone call on other grounds.



3Even though the jail phone call contained statements of Defendant’s opinion or belief rather than
evidence of a prior “crime, wrong, or other act,” we nevertheless look to the examples listed in Rule 11-
404(B)(2) to determine whether the evidence could be relevant to an issue other than propensity. See,
e.g., State v. Allen, 

, 

, 

 (determining that the defendant’s
“statement of his intent to ‘shoot it out’ with” police was not, strictly speaking, “a prior bad act” and that it
was admissible as nonpropensity “consciousness of guilt” evidence).
{20} On appeal, the State first argues that the jail phone call was admissible as the
statement of a party opponent (the State offered the statement, made by Defendant,
against Defendant) under Rule 11-801(D)(2). This argument leapfrogs over the
threshold question of admissibility, which is always relevance. See Lovett, 2012-NMSC-
036, ¶ 30 (“Only relevant evidence is admissible.”); Rule 11-402 (“Irrelevant evidence is
not admissible.”). Relevant evidence is probative evidence. Rule 11-401 (stating that
relevant evidence is that which tends to make a material “fact more or less probable
than it would be without the evidence”). Like any other evidence, the admissibility of the
statement of a party opponent depends on whether the statement is probative of a
material fact. Thus, contrary to the State’s position, the jail phone call was inadmissible
simply because it was a statement of a party opponent solely—while instead, it must
prove something meaningful to the case.

{21} To determine the threshold relevance of the jail phone call, we examine the
State’s arguments as to how the jail phone call was potentially probative of a fact
material to any issue in the case other than Defendant’s propensity. At various times,
the State has asserted five different nonpropensity grounds for the relevance of the jail
phone call: (1) habit; (2) “identity and modus operandi”; (3) Defendant’s state of mind or
intent; (4) “a potential motive for the killing”; and (5) consciousness of guilt. We address
each of these arguments in turn.

{22} Contrary to the State’s argument prior to trial, the jail phone call was not habit
evidence. Even though the State has abandoned this argument on appeal, we
nevertheless take the opportunity to clarify that the jail phone call could not have been
habit evidence under Rule 11-406 NMRA. “Habit describes one’s regular response to a
repeated specific situation. [It] is the person’s regular practice of meeting a particular
kind of situation with a specific type of conduct.” De La O v. Bimbo’s Rest., Inc., 1976-
NMCA-115, ¶ 11, 

, 

 (internal quotation marks and citation
omitted). Thus, habit is a routine, specific behavior. For example,

       a person may be in the habit of bounding down a certain stairway two or
       three steps at a time, of patronizing a particular pub after each day’s work,
       or of driving his automobile without using a seatbelt. The doing of the
       habitual act may become semi-automatic, as with a driver who invariably
       signals before changing lanes.

1 Kenneth S. Broun, et al., McCormick on Evidence § 195 (Robert P. Mosteller, ed., 8th
ed. 2022). The “[s]pecificity” of habit “provides the key. If specific conduct usually results
from specific stimuli,” such that “the witness more likely than not acted in conformity with
this virtually autonomic behavior,” then the conduct is admissible as habit evidence.
Bergman, supra, § 4:43; see also Rule 11-406(B) (“Habit . . . may be proved by . . .
specific instances of conduct sufficient in number to warrant a finding that the habit
existed.”).

{23} In this case, Defendant’s statements revolve around actions he advised his son
to take in the future. They do not disclose anything about Defendant’s previous
behavior, much less his routine and specific behavior—that is, that he regularly stabbed
people in a “virtually autonomic” response to a specific set of stimuli. Therefore, nothing
in the jail phone call was probative of Defendant’s habit, and his statements could not
have been admitted under that theory.

{24} Similarly, the jail phone call was not evidence of identity or modus operandi. Like
habit evidence, modus operandi is established by patterns of behavior. See Modus
Operandi, Black’s Law Dictionary (12th ed. 2024) (defining “modus operandi” as “[a]
method of operating or a manner of procedure; esp., a pattern of criminal behavior so
distinctive that investigators attribute it to the work of the same person” (emphasis
added)). When a defendant’s previous behavior “demonstrates a unique or distinct
pattern easily attributable to one person,” State v. Martinez, 

, 

 (quoting State v. Peters, 

, 

, 

),
that previous behavior can be introduced as modus operandi evidence to establish the
defendant’s identity.

{25} The relevance of the previous behavior “depends on the degree of similarity”
between the previous behavior and the charged crime. Peters, 

.
For example, we have permitted evidence of two separate sexual assaults to show a
defendant’s modus operandi when the “assaults shared a marked number of similarities
which could logically lead a jury to the inference that these two women were attacked by
the same man,” including that in each attack the attacker targeted elderly women in
their homes at night, entered through a window, raped the victims at knifepoint, tied
their ankles and wrists, gagged them, covered their heads with a cloth, and asked them
for their purses before leaving. Id. ¶ 15. “Taken together,” we held that those shared
characteristics were the “[d]efendant’s ‘signature’ for evidentiary purposes which
satisfies the stricter test of admissibility under Rule 11-404(B) for purposes of identity.”
Peters, 

.

{26} The State argues that Defendant’s statements are equivalent to the “signature” in
Peters because Defendant “described [Victim’s] exact manner of death,” including “the
same weapon and identical wounds.” It is true that Defendant’s advice to his son—
including the admonition to use a knife to inflict multiple stab wounds to the throat—
bears some similarity to the charged crime. But unlike the laundry list of unique aspects
of the crimes in Peters, “[t]his list of characteristics is not idiosyncratic or even unusual.”
State v. Beachum, 

, ¶ 10, 

, 

. “[F]or evidence
to be admissible” to prove modus operandi, “the similarity required must rise above the
level of characteristics common to many incidents of the crime; it must demonstrate a
unique or distinct pattern easily attributable to one person.” Id. ¶ 9. The use of a knife as
a murder weapon is not unique: the most recently available nationwide crime data
shows that knives are second only to guns as the weapon most often used in
homicides. Fed. Bureau of Investigation, Crime Data Explorer, Expanded Homicide
Offense Characteristics in the U.S.
https://cde.ucr.cjis.gov/LATEST/webapp/#/pages/explorer/crime/shr (last visited August
9, 2024). And it is not rare for knife attacks to result in a large number of injuries. See,
e.g., State v. Smith, 

, 

 (describing the deadly knife
attack resulting in “ninety stab wounds over [the victim’s] body”); see also State v.
Guerra, 

, 

 (discussing “overkill” murder where the
victim was stabbed thirteen times); State v. Duran, 

, 

,

 (describing “the victim’s death . . . from multiple stab wounds”). There is
nothing particularly “unique or distinct” about the behavior that Defendant advocated in
the jail phone call to his son. Certainly, it is not comparable to the multifaceted attacks
that created the assailant’s “signature” in Peters.

{27} More crucially, Defendant’s words are solely words, not deeds. The State points
to nothing in our modus operandi caselaw to indicate that words alone—not in
themselves criminal—can be sufficient to establish a modus operandi. The
overwhelming majority of our modus operandi cases involve a comparison between
completed courses of criminal conduct. See, e.g., Lovett, 

(“Peters is about cross-admissibility of evidence when it suggests that the perpetrator in
one crime is the same as the perpetrator in another crime, because the two crimes were
committed with a common modus operandi.”); see also, e.g., id. ¶ 40 (comparing
evidentiary patterns across two murders); Martinez, 

(comparing evidentiary patterns between a drive-by shooting and charged homicides);
State v. Griffin, 

, ¶ 11, 

, 

 (comparing
evidentiary patterns across two car thefts); Beachum, 

, ¶¶ 1, 5, 10
(comparing evidentiary patterns of previous rapes to charged aggravated burglary and
criminal sexual contact). Absent any argument as to how words alone rather than
behavior can establish a modus operandi, we cannot conclude that they did in this case.
We hold that because Defendant’s statements in the jail phone call did not show an
evidentiary pattern of behavior, they were not probative of modus operandi and were
not admissible as proof of identity.

{28} We also find no support for the State’s contention that the jail phone call was
evidence of Defendant’s state of mind or intent. The State does not elaborate on this
argument other than to note that “Defendant explicitly contemplated repeatedly stabbing
any person . . . in the throat in order to end their life if they did something he took issue
with,” and to quote Defendant’s assertion that these statements were “‘the State’s most
probative evidence of premeditated and deliberate murder in this case.’” These
undeveloped assertions are insufficient for us to conclude that the statements in the jail
phone call are relevant to establishing Defendant’s intent. See Serna, 

 (explaining that proponents of other acts evidence must make a cogent argument
for a nonpropensity use of the evidence beyond a rote “incantation of the illustrative
exceptions” in Rule 11-404(B) (internal quotation marks and citation omitted)). A
defendant’s subsequent statements are only probative of criminal intent if they relate
back to the defendant’s mens rea prior to the commission of the crime. Compare Duran,

 (holding that the defendant’s statement, “‘I straight up
murdered some bitch,’” was relevant to deliberate intent because it demonstrated
animus toward the victim), with State v. Garcia, 

, ¶ 32, 

,

 (holding that the defendant’s remark after the killing that he would kill the
victim “‘again’” could not show his deliberate intent prior to the killing), and State v.
Slade, 

, 

 (holding that the defendant’s admission
that he shot the victim “tells us nothing about [the d]efendant’s state of mind before the
shooting, which is the central inquiry of a crime based on premeditation”), and State v.
Taylor, 

, ¶ 22, 

, 

 (stating that the defendant’s
admission that he shot the victim was not evidence of deliberate intent because “[w]e
have no statements before the shooting that he wanted to kill [the victim] or wished her
dead”). In this case, Defendant’s statements are entirely future-oriented and make no
reference to his state of mind on the date of the killing in question. We cannot conclude,
therefore, that these statements are probative of Defendant’s intent.

{29} The State’s argument that the jail phone call was probative of Defendant’s motive
is similarly unsupported. The State argues that Defendant’s advice to kill anyone who
might touch, approach, or even look at his son, “suggests Defendant could have been
motivated to stab [Victim] because [Victim] engaged in the relatively innocuous
behaviors that Defendant apparently finds unacceptable and worthy of death.” The
State’s suggestion that Defendant “could have been motivated” by Victim’s behavior is
entirely ungrounded in the evidence: no evidence was admitted as to anything Victim
did after he voluntarily entered Defendant’s truck. Nevertheless, the State asks us to
infer that at some point thereafter, Victim’s behavior provided a motive for Defendant to
kill Victim, even though the State identifies neither Victim’s behavior nor Defendant’s
motive. This is a call for “speculation, conjecture, or the piling of inference upon
inference,” which we will not do. Adamson v. Highland Corp., 

, ¶ 15, 

, 

.

{30} In any event, Defendant’s statements do not show any animus toward Victim and
therefore are not probative of motive. Defendant’s statements were broad
generalizations applying equally to “anybody” and “everybody,” with no reference or
allusion to the specific victim in this case. From such general language, one could draw
the forbidden propensity inference, but one cannot discern motive. Motive is specific; it
is generally based on “evidence that the defendant himself had a history of conflict with
the victim.” Slade, 

; see also Broun, supra, § 190.5 (noting that,
in the context of violent crimes, motive is established by evidence “evincing not merely a
general disposition toward violence, but a virulent hostility toward a specific individual”).
We have stated that motive in homicide cases involve “the relationship of the parties
and the animus of the accused toward the deceased.” State v. Flores, 

, 

, 

 (internal quotation marks and citation omitted),
overruled on other grounds by Martinez, 

. While we recognize
that there may be cases in which statements of animus against a group or class could
be relevant to motive, 4 in this case Defendant’s statements displayed animus toward, if
anything, humanity at large. We are not prepared to conclude that evidence of general
misanthropy is evidence of motive in a specific case. Therefore, nothing in the jail phone
call was probative of Defendant’s motive, and his statements could not have been
admitted under that theory.



4Statements of animus against a group or class could be relevant if the victim is a member of the group
or class against whom the defendant expressed animus. See, e.g., State v. McDonald, 

, 

, 

 (holding that “anti-Hispanic animus” as shown by the defendant’s
“comments about the [Hispanic] victim and others could be put before the jury on the issue of motive”).
“[W]hen the motive for a crime is racial [or other identity-based] hatred . . . , evidence of such hatred is
relevant and admissible in spite of its potential prejudicial effect.” Id. ¶ 13.
{31} We turn now to the State’s final theory of admissibility, which is that the jail phone
call was probative of consciousness of guilt. Although not expressly listed in Rule 11-
404(B)(2), it has long been recognized that “consciousness of guilt . . . has independent
relevance” and therefore “constitutes a permissible use of other acts or wrongs under
Rule 11-404(B).” Martinez, 

 (internal quotation marks and citation
omitted). Plainly, the majority of the above-discussed statements in the jail phone call
do not constitute consciousness-of-guilt evidence because they are future-oriented
statements of advice rather than admissions of past wrongdoing. Thus, the State
correctly focuses its consciousness-of-guilt argument on only a few statements in the
phone call: “particularly Defendant’s assurances that he would ‘go down’ and ‘go to hell’
for any stabbing deaths and that he was ‘going to prison.’”

{32} Placed into context, we do not view Defendant’s statement, “[a]nd I’ll go down
and go to hell for it,” as an admission of guilt to the killing of Victim (or, as the State puts
it, an admission of guilt “for any stabbing[] deaths”). “I’ll go down and go to hell for it”
came directly on the heels of Defendant “ordering” his son to repeatedly stab people as
part of his duty as “the man of the house” who is charged with “protect[ing] everyone.”
The statement was immediately followed by more advice in the same vein. Thus, the “it”
for which Defendant expressed his willingness to “go down and go to hell” seemed to
relate solely to the advice he was imparting to his son, which most people would find
morally repugnant. If anything, Defendant was expressing his emphatic commitment to
that unsavory advice, come what may. We do not understand that statement as an
expression of guilt for the charged crime, as the context in which it was made was in the
vein of general advice to his son as the man of the house, purely advisory, and future-oriented.

{33} Nevertheless, we agree with the State that the statement “Daddy’s going to
prison” could indicate consciousness of guilt, because it reasonably could be construed
as an acknowledgment that Defendant committed a criminally culpable act for which he
would be sentenced. See, e.g., Commonwealth v. Velasquez, 

(Mass. App. Ct. 1999) (holding that defendant’s remark that “he was going to jail for two
years . . . can be taken as an expression of consciousness of guilt”); see also People v.
Jefferson, 

 (N.Y. App. Div. 2015) (holding that the defendant’s
statement “that he might be ‘going to jail’” was admissible to prove consciousness of
guilt).

{34} We hold that of all of the statements Defendant made in the jail phone call, it is
only this latter statement—“Daddy’s going to prison”—that has any permissible
probative value because it tends to show Defendant’s consciousness of guilt. All other
statements in the jail phone call are solely probative of Defendant’s propensity for
violence, which the jury cannot be permitted to consider under any circumstances. Rule
11-404(A). We next analyze whether the probative value of the jail phone call is
outweighed by the danger of unfair prejudice under Rule 11-403.
b.     The jail phone call was substantially more prejudicial than probative

{35} Having determined that all but one of the statements in the jail phone call were
exclusively probative of Defendant’s propensity for violence, which is a prohibited
inference, we conclude that the limited probative value of that isolated statement does
not overcome the propensity evidence contained within the jail phone call as a whole,
thus rendering the unredacted phone call substantially more prejudicial than probative.
See Lovett, 

 (“Because we have already concluded that evidence
of each murder was not offered for any permissible purpose, the inherent prejudicial
effect of admitting evidence of prior bad acts necessarily outweighs the probative value
of the evidence.”). Because propensity evidence is strictly inadmissible under Rule 11-
404(A), we have no difficulty concluding that the district court erred by admitting this
evidence. See State v. Gallegos, 

, 

, 

(holding that propensity evidence “should be automatically excluded . . . because it is
unfairly prejudicial as a matter of law”); see also Rule 11-103(D) NMRA (“To the extent
practicable, the court must conduct a jury trial so that inadmissible evidence is not
suggested to the jury by any means.”). In light of the limited probative value of
Defendant’s single statement “Daddy’s going to prison,” the unredacted jail phone call
as heard by the jury was undoubtedly substantially more prejudicial than probative.

{36} We determine whether this error rose to the level of plain error by inquiring next
into the impact of the error on Defendant’s rights and the jury’s verdict. The error
affected Defendant’s substantial right to a fair trial and significantly affected the verdict.

{37} In this case, the jury heard Defendant’s own voice and words instructing his son
to commit wanton, extreme acts of violence against other human beings. These
instructions would give rise to aversion and dismay in any reasonable person. The
prosecutor discussed the jail phone call in the opening statement, played the call in its
entirety during the presentation of evidence, then summarized and replayed the jail
phone call during closing argument. Certainly, the prosecutor did not minimize this
evidence, but placed it front and center for the jury’s consideration. See State v. Sosa,

, 

, 

 (explaining in the context of
prosecutorial misconduct that appellate courts consider the extent to which the jury is
exposed in reviewing for error).

{38} We cannot overlook the power of this propensity evidence to sway the jury in this
case. As the United States Supreme Court has noted, jurors are attentive to the whole
cloth woven from individual strands of evidence:

       Evidence . . . has force beyond any linear scheme of reasoning, and as its
       pieces come together a narrative gains momentum, with power not only to
       support conclusions but to sustain the willingness of jurors to draw the
       inferences, whatever they may be, necessary to reach an honest verdict.
       This persuasive power of the concrete and particular is often essential to
       the capacity of jurors to satisfy the obligations that the law places on them.
       . . . [T]he evidentiary account of what a defendant has thought and done
        can accomplish what no set of abstract statements ever could, not just to
        prove a fact but to establish its human significance.

Old Chief v. U.S., 

 (1997). Particularly in this case, where the
impermissible evidence comprised “‘the State’s most probative evidence of
premeditated and deliberate murder’” by the State’s own admission in quoting
Defendant on appeal, we conclude that the propensity evidence contained in the jail
phone call significantly impacted the jury’s verdicts. Concomitantly, Defendant’s right to
a fair trial was compromised. Therefore, the admission of this evidence was plain error.

{39} The remedy for plain error is to vacate the convictions and remand to the district
court. See Lucero, 

, ¶ 22 (reversing and remanding after determining
that there had been plain error); see also, e.g., Paiz, 

 (same).
To avoid violating double jeopardy, retrial is allowed on remand only when the
defendant’s convictions were supported by substantial evidence. State v. Consaul,

, 

; State v. Cabezuela, 

,

, 

. We therefore turn to whether Defendant’s convictions
were supported by substantial evidence in this case.

B.      Retrial Is Warranted Because Defendant’s Convictions Were Supported by
        Substantial Evidence

{40} Our standard of review for sufficiency of the evidence is highly deferential to the
jury’s verdict. We view the evidence

        in the light most favorable to the guilty verdict, indulging all reasonable
        inferences and resolving all conflicts in the evidence in favor of the verdict.
        In particular, New Mexico appellate courts will not invade the jury’s
        province as fact-finder by second guessing the jury’s decision concerning
        the credibility of witnesses, reweighing the evidence, or substituting its
        judgment for that of the jury. So long as a rational jury could have found
        beyond a reasonable doubt the essential facts required for a conviction,
        we will not upset a jury’s conclusions.

State v. Garcia, 

, 

, 

 (text only)
(citations omitted).

{41} The jury instructions in this case provided that the jury could find Defendant guilty
of first-degree murder if it found that Defendant killed Victim “with the deliberate
intention to take away the life” of Victim. 5 The findings that Defendant invited Victim into
his truck, Victim’s blood was found in Defendant’s truck and on the sleeve of

5The Court does note that the State engages in roulette when only charging a defendant with first-degree
murder without a step-down instruction to second-degree murder. See State v. Villa, 

, 

, 

 (“In this case the State and Defendant pursued an ‘all-or-nothing’ trial
strategy, in which neither party requested instructions on any lesser-included offenses. . . . We believe
that both parties are entitled to the benefits and should be liable for the risks of their respective trial
strategies.”)
Defendant’s jacket, and Victim was not seen alive again after being in Defendant’s
company constituted substantial evidence that Defendant killed Victim. See Flores,

 (“The law does not require testimony from a witness who
personally saw [the d]efendant at the very moment he actually stabbed his victim.”).

{42} The primary focus of Defendant’s sufficiency challenge is not on the actus reus
but the mens rea element of first-degree murder—deliberate intention—which, as the
jury was instructed,

       may be inferred from all of the facts and circumstances of the killing. The
       word deliberate means arrived at or determined upon as a result of careful
       thought and the weighing of the consideration for and against the
       proposed course of action. A calculated judgment and decision may be
       arrived at in a short period of time. A mere unconsidered and rash
       impulse, even though it includes an intent to kill, is not a deliberate
       intention to kill. To constitute a deliberate killing, the slayer must weigh
       and consider the question of killing and his reasons for and against such a
       choice.

UJI 14-201 NMRA.

{43} Defendant argues that there was insufficient evidence of deliberation, relying on
a reinterpretation of each individual piece of evidence in a manner that could be
consistent with Defendant’s innocence. Defendant argues that the State presented no
evidence of a motive; witness testimony indicated that Defendant was not aggressive
towards Victim when Defendant invited him into his truck and that Victim “departed
amicably” with Defendant; and Defendant’s driving behavior—making several U-turns
before picking up Victim—was “equally consistent with two friends meeting” as with
deliberation before killing.

{44} However, “[t]his divide-and-conquer approach is not contemplated in appellate
review for sufficiency of the evidence.” State v. Graham, 

, 

, 

. We do not “parse[] the testimony and view[] the verdict only in
light of the probative value of individual pieces of evidence,” nor do we “evaluate the
evidence to determine whether some hypothesis could be designed which is consistent
with a finding of innocence.” 

 (internal quotation marks and citation omitted). Instead,
“we view the evidence as a whole and indulge all reasonable inferences in favor of the
jury’s verdict.” 

{45} Viewed in the light most favorable to the verdict, sufficient evidence supported
the jury’s finding that Defendant acted with deliberate intention when he killed Victim.
The jury heard evidence that Defendant made several U-turns near Victim before
picking him up; convinced Victim to get in Defendant’s truck with an offer of food; drove
Victim to another, unknown location; drew a knife on Victim and proceeded to stab him
24 times; dumped Victim’s body in an alleyway; and Defendant’s truck was sanded and
the toolbox spray-painted. These facts shed light on Defendant’s behavior before,
during, and after the killing. From the totality of these facts, the jury could reasonably
have inferred that Defendant killed Victim with the requisite mens rea.

{46} Defendant’s behavior prior to the killing supports a reasonable inference that
Defendant deliberately targeted Victim for murder, lured him into the truck on false
pretenses, and transported him to an isolated location for the purpose of the murder that
Defendant then committed. See, e.g., State v. Baca, 

, ¶¶ 41-42, 

, 

 (inferring that the movement of a murder victim to a remote
location is generally “for the purpose of facilitating the murder” and to ensure “that there
are no witnesses to the murder”); see also generally 2 Wayne R. LaFave, Substantive
Crim. L. § 14.7(a) (3d ed. 2023) (noting that “taking the prospective victim to a place
where others are unlikely to intrude” can support an inference of deliberation). The fact
that Defendant did not behave aggressively towards Victim during the initial encounter
is immaterial; criminal ends may be achieved by deception. See, e.g., State v. Ortega,

, ¶¶ 4, 53, 

, 

 (affirming convictions where
the defendant deceived the victims into accompanying him to a remote area where he
robbed and murdered them), abrogated on other grounds as recognized by Kersey v.
Hatch, 

, 

, 

; State v. Sokolic, 

, 58-59 (Mo. Ct. App. 2023) (“A reasonable jury could infer [the defendant’s]
deception is consistent with a deliberate plan to induce [the victim] to drive behind the
barn so he could more readily conceal the attack.”).

{47} The sheer brutality of the attack likewise supports a reasonable inference that
Defendant deliberated, particularly when accompanied by other evidence tending to
show deliberation. See, e.g., State v. Thomas, 

, 

(“[A] large number of wounds . . . can indicate deliberation. The fact that the number of
wounds could instead indicate impulsivity, as [the d]efendant argues, does not mean
that the jury was required to interpret them that way.”); see also Guerra, 2012-NMSC-
027, ¶ 29 (concluding that thirteen stab wounds, along with evidence that the defendant
rendered the victim helpless before attacking him and later expressed no remorse,
constituted sufficient evidence of premeditation); Duran, 

 (“[A]
reasonable jury could have believed the [d]efendant had the deliberate intent to kill the
victim by inferring from the physical evidence of a prolonged struggle and multiple stab
wounds.”); Sokolic, 660 S.W.3d at 58 (“Deliberation can be readily inferred from the 27
stab wounds to a vital part of the body inflicted by a deadly weapon.” (text only) (citation
omitted)).

{48} In addition, evidence of Defendant’s behavior after the killing, while perhaps not
establishing deliberation by itself, can show consciousness of guilt which could be
considered in tandem with the evidence of deliberation prior to and during the killing.
See, e.g., Flores, 

 (“Not only may [a d]efendant’s acts before and
during the crime provide evidence of intent, evidence of flight or an attempt to deceive
the police may prove consciousness of guilt. (internal quotation marks omitted)). In this
case, after Defendant killed Victim, Defendant dumped Victim’s body in an alleyway,
sanded down his truck, and spray-painted his toolbox in acts that could be seen as
calculated. 6

{49} While any of these factors standing alone might not permit the inference of
deliberation beyond a reasonable doubt, they did not stand alone in this case. In
combination, the jury could have reasonably inferred from the totality of these
circumstances that Defendant acted with deliberate intention when he killed Victim. See
Flores, 

 (analyzing evidence of the defendant’s deliberation
through the lens of “[t]he totality of the evidence”). Because substantial evidence
supported Defendant’s convictions, retrial is not barred by double jeopardy. Consaul,

.

III.    CONCLUSION

{50} The district court committed plain error by allowing the jury to hear evidence that
was relevant only to Defendant’s propensity for violence. This evidence was highly
inflammatory and deprived Defendant of a fair trial. We therefore vacate Defendant’s
convictions and remand this case for proceedings consistent with this opinion.

{51}    IT IS SO ORDERED.

C. SHANNON BACON, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

MICHAEL E. VIGIL, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice




6These latter two facts also provide sufficient evidence for Defendant’s tampering with evidence
conviction, in which the jury found that Defendant (1) “destroyed, changed, hid, [or] fabricated the pickup
truck” (2) in order “to prevent [his] apprehension, prosecution, or conviction . . . for the crime of murder.”