{ "id": 4188007, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ELIAS URIOSTE, Defendant-Appellant", "name_abbreviation": "State v. Urioste", "decision_date": "2011-12-07", "docket_number": "No. 33,287; Docket No. 30,110", "first_page": "74", "last_page": "85", "citations": [ { "type": "official", "cite": "2011-NMCA-121" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2010-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246234 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0557-01" ] }, { "cite": "104 N.M. 446", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594982 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "450", "parenthetical": "stating that a defendant may not \"urge his own action as a ground for reversing his conviction\" (internal quotation marks and citation omitted)" }, { "page": "701", "parenthetical": "stating that a defendant may not \"urge his own action as a ground for reversing his conviction\" (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0446-01" ] }, { "cite": "120 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558868 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "45-46", "parenthetical": "stating that a defendant may not invite error and later complain about it" }, { "page": "232-33", "parenthetical": "stating that a defendant may not invite error and later complain about it" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0038-01" ] }, { "cite": "2011-NMCA-018", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250024 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 41" }, { "page": "\u00b6\u00b6 25-26" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0294-01" ] }, { "cite": "1998-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18668 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0409-01" ] }, { "cite": "1998-NMCA-132", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834341 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 8-9" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0688-01" ] }, { "cite": "2011-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250059 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0704-01" ] }, { "cite": "2006-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670050 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 15-16" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0094-01" ] }, { "cite": "2008-NMSC-051", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002551 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 19-20" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0815-01" ] }, { "cite": "2006-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2544090 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 34" }, { "page": "\u00b6 1" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0211-01" ] }, { "cite": "2009-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243179 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/146/0357-01" ] }, { "cite": "2008-NMSC-048", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4001971 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 38" }, { "page": "\u00b6\u00b6 36, 41" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0663-01" ] }, { "cite": "2008-NMCA-049", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3784375 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0792-01" ] }, { "cite": "2008-NMCA-029", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3783611 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 5" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0549-01" ] }, { "cite": "2011-NMCA-053", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4248899 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0612-01" ] }, { "cite": "2006-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2545110 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0450-01" ] }, { "cite": "2010-NMCA-027", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4245178 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0761-01" ] }, { "cite": "2011-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248753 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0185-01" ] }, { "cite": "2006-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671204 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 12, 20-21" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0644-01" ] }, { "cite": "2006-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2541635 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 47" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0152-01" ] }, { "cite": "2008-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4003715 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0078-01" ] }, { "cite": "119 N.M. 252", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561267 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "260", "parenthetical": "stating that \"[t]he key to the restraint element in kidnapping is the point at which [a vjictim's physical association with [a djefendant was no longer voluntary\"" }, { "page": "868", "parenthetical": "stating that \"[t]he key to the restraint element in kidnapping is the point at which [a vjictim's physical association with [a djefendant was no longer voluntary\"" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0252-01" ] }, { "cite": "759 N.W.2d 900", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8184098 ], "year": 2009, "pin_cites": [ { "page": "904-05, 910", "parenthetical": "upholding the defendant's conviction for first degree murder in the course of a kidnapping due to the defendant's movement of the victim's unconscious body" } ], "opinion_index": 0, "case_paths": [ "/nw2d/759/0900-01" ] }, { "cite": "79 P.3d 169", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 12164016 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/kan/276/0737-01" ] }, { "cite": "977 P.2d 242", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 534237 ], "year": 1999, "pin_cites": [ { "page": "253", "parenthetical": "finding sufficient confinement for a kidnapping conviction where the victim's unconscious body was placed in a car and driven away" } ], "opinion_index": 0, "case_paths": [ "/kan/266/0774-01" ] }, { "cite": "97 Cal. Rptr. 3d 659", "category": "reporters:state", "reporter": "Cal. Rptr. 3d", "year": 2009, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "713 P.2d 811", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1471886 ], "year": 1985, "pin_cites": [ { "page": "812", "parenthetical": "holding that the defendant committed kidnapping by abducting the unconscious victim and killing her before she regained consciousness" } ], "opinion_index": 0, "case_paths": [ "/ariz/148/0149-01" ] }, { "cite": "2004-NMCA-100", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224599 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 27-28" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0337-01" ] }, { "cite": "2001-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352408 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0551-01" ] }, { "cite": "2008-NMCA-002", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3784464 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 16" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0274-01" ] }, { "cite": "112 N.M. 3", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720274 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "13-14" }, { "page": "1233-34" }, { "page": "14" }, { "page": "1234", "parenthetical": "stating that \"similar statutory provisions sharing certain elements may support separate convictions and punishments where examination of the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses\"" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0003-01" ] }, { "cite": "2007-NMCA-045", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668540 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0434-01" ] }, { "cite": "2006-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671970 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 20" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0182-01" ] }, { "cite": "2009-NMSC-015", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4242938 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0080-01" ] } ], "analysis": { "cardinality": 1325, "char_count": 34815, "ocr_confidence": 0.83, "pagerank": { "raw": 8.868734346276443e-08, "percentile": 0.49905052379501663 }, "sha256": "1be84d304d33d9ecdeb1f54d9ef9a2dbd8a9305eb59e7fcda5342f91bcc95773", "simhash": "1:f02ef0b6e4c01190", "word_count": 5541 }, "last_updated": "2023-07-14T17:47:49.050081+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JONATHAN B. SUTIN, Judge", "JAMES J. WECHSLER, Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ELIAS URIOSTE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} Following a jury trial, Defendant Elias Urioste was convicted of voluntary manslaughter, aggravated battery with a deadly weapon, three counts of tampering with evidence, and two counts of conspiracy to commit tampering with evidence. His victim was Vincent Espinosa (Victim). Defendant was sentenced to a total of forty years imprisonment. We affirm Defendant\u2019s convictions of voluntary manslaughter, aggravated battery, and tampering with evidence, and we reverse Defendant\u2019s convictions of conspiracy to commit tampering with evidence.\nBACKGROUND\n{2} Victim was last seen by his family on January 28, 2007. On that date, Victim and his brother were helping their grandmother move. Victim told his brother that he had to \u201cgo down to the valley[,]\u201d and later that day he had planned to go to a barbeque. Victim\u2019s friends and family never heard from him again.\n{3} On January 28,2007, Fred Barncastle and his family were driving around the Double Eagle Airport watching airplanes. As Barncastle drove east, away from the airport, he noticed a fire to the south that \u201cstarted up real fast, and then . . . died down[.]\u201d He guessed that the fire was on the mesa. Around the same time that he noticed the fire, Barncastle also noticed a \u201cdull gray\u201d Lincoln automobile coming from the south. Barncastle, who was going the speed limit, noticed that the Lincoln passed him \u201cpretty fast.\u201d\n{4} On February 19,2007, Matthew Cordova took his daughters \u201cout riding around\u201d near the Double Eagle Airport. As he drove down a dirt road, he spotted what he described as \u201ca man laying there burnfed] to death\u201d underneath a burned couch. The body was later identified as that of Victim.\n{5} Detective Jennifer Garcia, the lead criminalist in the investigation collected a number of items of evidence from the scene. Among other items near Victim\u2019s body, Detective Garcia found five .9 millimeter bullet casings just to the northwest of Victim\u2019s head.\n{6} Victim\u2019s body, having been transported to the office of the medical investigator, was examined by the chief medical investigator, Dr. Ross Zumwalt. Dr. Zumwalt determined that Victim had been shot three times, once in the chest and twice in the head. Two of the three bullets passed through Victim\u2019s body and were not recovered. One bullet, however, was recovered from just beneath the skin in the back of Victim\u2019s skull. Later analysis of the recovered bullet revealed that it was a .9 millimeter Luger, the same caliber as casings found near Victim\u2019s body.\n{7} Dr. Zumwalt could not determine whether the chest wound or the head wounds occurred first. He suspected that Victim was still alive when the chest wound occurred because Victim \u201ccertainly bled a lot.\u201d He added that the head wounds, which would have been fatal in and of themselves, \u201cwould not necessarily have caused [Victim\u2019s] heart and lungs to stop functioning for a little while[,]... so the chest wound could have been second or it could have been first[.]\u201d\n{8} Dr. Zumwalt concluded that the three shots occurred within minutes of one another, and he explained that Victim would not have lived long after either the shots to his head or to his chest. Dr. Zumwalt also concluded that Victim would have been rendered unconscious immediately from the head wounds and within a few seconds from the chest wound. Whether the head wounds or the chest wound came first, however, Victim would have lived for only a short period of time.\n{9} Victim\u2019s body had been burned. While Victim\u2019s body was \u201cbadly charred,\u201d Dr. Zumwalt concluded that Victim was probably dead before the fire because there was no evidence in Victim\u2019s body of soot or carbon monoxide inhalation. The arson investigator determined that the fire was incendiary or intentionally started.\n{10} \u201c[S]ometime before March 2007[,]\u201d for reasons unrelated to the present case, police raided the home of Brandon Neal, a member of the \u201cSouth Side\u201d gang. Nealbegan cooperating with the police and decided to \u201cgive [the police] everything [he knew]\u201d because he was planning to leave New Mexico. Among other things, Neal knew Defendant and knew details of Victim\u2019s murder as they had been related to Neal by Defendant.\n{11} According to Neal, Defendant said that he (Defendant), along with Victim and two others, were driving around in Defendant\u2019s gray Lincoln Town Car popping \u201czany bars\u201d (narcotic pills). Defendant and Victim \u201cgot into some kind of argument and [Defendant] happened to shoot [Victim,]\u201d and when this happened, Defendant was driving and Victim was in the back seat. After Victim had been shot, at first, they (Defendant and two others) were going to take Victim to the hospital but when they realized he was unconscious, they chose instead to \u201cput him on a couch in the mesa and .. . [light] him on fire.\u201d\n{12} According to Neal, Defendant also said that he and the two others had burned the vehicle. At some point prior to having burned the Lincoln, however, Defendant \u201cgave it away ... to one of [Neal\u2019s] little friends,\u201d but when Neal told his friend what had occurred in the vehicle, \u201cthe guy . . . dropped it off somewhere.\u201d Defendant claimed, however, that he sold the vehicle to Neal.\n{13} Another gang member, who belonged to the \u201cTCK\u201d gang and affiliated with the \u201cSouth Side\u201d gang, Jason Rubio, also shared information about Victim\u2019s death with police. According to Rubio, Defendant told him \u201c[t]hey[, Defendant and two others,] jacked [Victim], took him to the mesa, poured gas down his throaty made him drink gas, put the gun to his head, made him drink gas, shot him[,] and lit him on fire.\u201d Rubio also knew that the incident occurred in Defendant\u2019s \u201csilver\u201d Lincoln Town Car.\n{14} \u201c[A]t some point\u201d during the investigation into Victim\u2019s homicide, Detective Garcia learned from the lead homicide detective, Judy Chavez, that a Lincoln Town car that was suspected to have been involved in this case was at a tow yard in Albuquerque. Detective Garcia along with a team of criminalists and homicide detectives examined the vehicle. The interior of the vehicle was \u201ccompletely burned\u201d from a fire that appeared to have originated in the back seat. The front seat and the steering wheel were melted or charred, and there was much more damage to the back seat. A portion of the back seat was collected because it appeared to have a bullet hole through the metal behind the seat. The detectives also collected a bottle with a white rag or shirt tucked into it called a \u201cmolotov cocktail.\u201d\n{15} Defendant makes three arguments on appeal. First, he contends that his convictions for kidnapping and aggravated battery violate the prohibition against double jeopardy and argues that they were not supported by substantial evidence. Second, Defendant contends that his convictions for tampering with evidence and conspiracy to tamper with evidence were a violation of the prohibition against double jeopardy and a violation of his due process rights, and he argues that they were the result of cumulative errors at trial. Finally, Defendant argues that the district court erred in admitting evidence both of gang affiliation and of threats against witnesses. W e examine each of Defendant\u2019s arguments. We affirm all of Defendant\u2019s convictions with the exception of the conspiracy to tamper with evidence charges, which we reverse on the basis of a due process violation.\nDISCUSSION\nProhibition Against Double Jeopardy Was Not Violated by Defendant\u2019s Convictions for Kidnapping and Aggravated Battery\n{16} Defendant argues thathis convictions for kidnapping with an intent to inflict death or physical injury, in violation of NMSA 1978, Section 30-4-1 (A)(4) (2003), and for aggravated battery with a deadly weapon, inflicting great bodily harm, in violation of NMSA 1978, Section 30-3-5(C) (1969), when coupled with his conviction for voluntary manslaughter in violation of NMSA 1978, Section 30-2-3(A) (1994), violated his constitutional right to be free from double jeopardy because all three convictions were premised on the unitary conduct of fatally shooting Victim. We review de novo Defendant\u2019s claim that his right to be free from double jeopardy was violated. State v. Quick, 2009-NMSC-015, \u00b6 6, 146 N.M. 80, 206 P.3d 985.\n{17} This case is a double-description, multiple-punishment case. The proper analysis to determine whether a double jeopardy violation has occurred is a two-pronged test known as the Swafford test. State v. Armendariz, 2006-NMSC-036, \u00b6 20, 140 N.M. 182, 141 P.3d 526. The Swafford test first requires a determination of whether the conduct underlying the offenses was unitary. Armendariz, 2006-NMSC-036, \u00b6 21. \u201cIf the conduct [was] not unitary, then the inquiry is at an end and there is no double jeopardy violation.\u201d State v. Contreras, 2007-NMCA-045, \u00b6 20, 141 N.M. 434, 156 P.3d 725 (internal quotation marks and citation omitted).\n{18} \u201cIf two events are sufficiently separated by either time or space . . . , then it is a fairly simple task to distinguish the acts.\u201d Swafford v. State, 112 N.M. 3, 13-14, 810 P.2d 1223, 1233-34 (1991). \u201cIn determining whether [a defendant's conduct was unitary, we consider whether [a d]efendant\u2019s acts were separated by sufficient indicia of distinctness.\u201d State v. Lopez, 2008-NMCA-002, \u00b6 16, 143 N.M. 274, 175 P.3d 942 (internal quotation marks and citation omitted). \u201cDistinctness may ... be established by the existence of an intervening event, the defendant\u2019s intent as evinced by his or her conduct and utterances, the number of victims, and the behavior of the defendant between acts.\u201d Id. (internal quotation marks and citation omitted).\n{19} To the extent that Defendant and the State have differing views of the facts surrounding Victim\u2019s death and the associated crimes, we \u201cview the evidence in the light most favorable to the verdict and resolve all conflicts and indulge all inferences in favor of upholding the verdict.\u201d State v. McClendon, 2001-NMSC-023, \u00b6 3, 130 N.M. 551, 28 P.3d 1092. Our primary concern is to ensure that each act supporting Defendant\u2019s separate convictions was supported by sufficient evidence. See id. \u00b6 5. \u201cIn reviewing the facts of the case to determine if each [act was] distinct from the others, we must indulge in all presumptions in favor of the verdict.\u201d Id. (internal quotation marks and citation omitted).\n{20} Because the jury convicted Defendant on the charge of voluntary manslaughter and not on the charges of first or second degree murder, we must conclude that the jury found that the fatal shot was the first shot which was fired inside Defendant\u2019s vehicle and that this shot took place before Victim was transported to the mesa. The jury instruction on voluntary manslaughter required, for a determination of guilt, that the jury find sufficient provocation to justify Defendant\u2019s actions. Any provocation could have only occurred in the vehicle before Victim was transported to the mesa.\n{21} Dr. Zumwalt testified that, because of the destructive nature of the chest wound, Victim would have \u201cprobably been unconscious within a few seconds\u201d but may have been alive for \u201cseveral minutes}.]\u201d The only evidence of Victim\u2019s condition after having been shot twice in the head is that he would have been \u201cimmediately unconscious}.]\u201d Thus, it would be reasonable for the jury to presume that, once Victim was taken to the mesa, he could not possibly have provoked Defendant. The jury necessarily determined that the voluntary manslaughter occurred when Defendant shot Victim in the chest in the vehicle. We turn to the other criminal activity.\n{22} The jury could have concluded, based on the evidence presented, that either of the two gunshots on the mesa constituted an aggravated battery that occurred before Victim died from the initial gunshot wound to the chest. Those gunshot wounds occurred within minutes after the first gunshot wound in the vehicle and at a different location. We hold that Defendant\u2019s conduct in shooting Victim twice in the head was sufficiently \u201cseparated by ... time [and] space\u201d from the first gunshot wound inside Defendant\u2019s vehicle. See State v. Mireles, 2004-NMCA-100, \u00b6\u00b6 27-28, 136 N.M. 337, 98 P.3d 727 (concluding that convictions for second degree murder and shooting at or from a motor vehicle were separated by time and space because the defendant first shot the victim from inside a car, then exited the vehicle, chased the victim, and shot him again).\n{23} We turn now to the kidnapping charge. The jury was instructed that in order to find Defendant guilty of kidnapping, the State was required to prove that (1) \u201c. . . [Djefendanttook and transported [Victim] by force, intimidation, or deception; [and (2)] ... [Defendant intended to hold [Victim] against [his] will to inflict death or physical injury [upon him.]\u201d\n{24} With regard to the first kidnapping element, the State presented evidence that after shooting Victim in the chest, in the vehicle, Defendant and the two others considered taking him to the hospital but, because he was unconscious, decided instead to take him to the mesa. A number of other jurisdictions have determined that use of force required for a kidnapping conviction is significantly decreased when the victim is unconscious at the time that he is taken by his kidnapper. See State v. Bernal, 713 P.2d 811, 812 (Ariz. Ct. App. 1985) (holding that the defendant committed kidnapping by abducting the unconscious victim and killing her before she regained consciousness); People v. Daniels, 97 Cal. Rptr. 3d 659, 682 (Ct. App. 2009) (stating that \u201c[s]ince an incapacitated person, like an infant, has no ability to resist being taken and carried away,. . . the amount of force required to kidnap an incapacitated person is simply the amount of physical force required to take and carry the . . . person away\u201d (alterations omitted) (internal quotation marks and citation omitted)); State v. Valdez, 977 P.2d 242, 253 (Kan. 1999) (finding sufficient confinement for a kidnapping conviction where the victim\u2019s unconscious body was placed in a car and driven away), abrogated on other grounds by State v. James, 79 P.3d 169 (Kan. 2003); State v. Pendleton, 759 N.W.2d 900, 904-05, 910 (Minn. 2009) (upholding the defendant\u2019s conviction for first degree murder in the course of a kidnapping due to the defendant\u2019s movement of the victim\u2019s unconscious body). We agree with these authorities and hold that the jury could reasonably have concluded that the requisite force to support Defendant\u2019s kidnapping conviction was the force that was used to transport the unconscious Victim to the mesa after he was shot in the chest.\n{25} Regarding the second kidnapping element, the jury could reasonably have inferred that at the moment Victim was shot in the chest by Defendant, Victim was in the vehicle against his will, thereby making his physical association with Defendant no longer voluntary. See State v. Pisio, 119 N.M. 252, 260, 889 P.2d 860, 868 (Ct. App. 1994) (stating that \u201c[t]he key to the restraint element in kidnapping is the point at which [a vjictim\u2019s physical association with [a djefendant was no longer voluntary\u201d). Therefore, sufficient evidence was presented for the jury to conclude that both elements of the kidnapping instruction were met.\n{26} Unlike the aggravated battery, the underlying actions supporting Defendant\u2019s convictions for voluntary manslaughter and kidnapping were not sufficiently separated by time and space. We therefore rely on other indicia of distinctness to determine whether the jury could reasonably have inferred an independent factual basis for these two crimes. Lopez, 2008-NMCA-002, \u00b6 16. Distinctness may be indicated by a number of factors, including that different types of force were used to commit each crime. See State v. Stone, 2008-NMCA-062, \u00b6 22, 144 N.M. 78, 183 P.3d 963.\n{27} Here, evidence of Defendant\u2019s use of two different types of force to commit each crime constitutes a sufficient indication of distinctness to uphold Defendant\u2019s kidnapping conviction. The State presented evidence that after Defendant shot Victim and after some thought, D efendant kept V ictim \u2019 s unconscious body in the vehicle and drove him to the mesa. A jury could reasonably have inferred from this evidence that Defendant used two different types of force to commit voluntary manslaughter and kidnapping. The first, shooting Victim inside Defendant\u2019s vehicle, and the second, keeping the unconscious Victim in the vehicle and transporting him to the mesa. See State v. Martinez, 2006-NMSC-007, \u00b6 47, 139 N.M. 152, 130 P.3d 731 (concluding that actions underlying the defendant\u2019s conviction for kidnapping, based on tying up the victim, and murder, based on stabbing her in the chest, were sufficiently distinct); State v. Bernal, 2006-NMSC-050, \u00b6\u00b6 12, 20-21, 140 N.M. 644, 146 P.3d 289 (upholding two attempted robbery convictions where the assailants poked the victim with their guns and threatened her with violence, and shot and killed the other victim).\n{28} We conclude that the jury could reasonably have inferred an independent factual basis for all three of Defendant\u2019s convictions, and we do not second-guess the factual conclusions of a jury. See State v. Garcia, 2011-NMSC-003, \u00b6 5, 149 N.M. 185, 246 P.3d 1057 (explaining that the appellate courts will not \u201cinvade the jury\u2019s province as fact-finder by second-guessing [its] decision\u201d (alteration omitted) (internal quotation marks and citation omitted)). We therefore hold that Defendant\u2019s convictions for aggravated battery, kidnapping, and voluntary manslaughter were not based on unitary conduct and did not violate his right to be free from double jeopardy. See Swafford, 112 N.M. at 14, 810 P.2d at 1234 (stating that \u201csimilar statutory provisions sharing certain elements may support separate convictions and punishments where examination of the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses\u201d).\n{29} With regard to Defendant\u2019s claim that his convictions for voluntary manslaughter, kidnapping, and aggravated battery were not supported by sufficient evidence, we note that this contention, although it is raised in a point heading, is not expounded on in subsequent paragraphs of his brief in chief. While this Court\u2019s policy is to refrain from reviewing \u201cunclear or undeveloped arguments which require us to guess at what parties\u2019 arguments might be[,]\u201d we note that in this case, the facts sufficiently provide substantial evidence to support Defendant\u2019s convictions. State v. Fuentes, 2010-NMCA-027, \u00b6 29, 147 N.M. 761, 228 P.3d 1181.\nTampering with Evidence and Conspiracy\n{30} D efendant claims that his convictions for tampering with evidence and conspiracy to tamper with evidence were based on cumulative errors that violated his constitutional rights of due process and freedom from double jeopardy. Our review of double jeopardy claims is de novo. State v. Rodriguez, 2006-NMSC-018, \u00b6 3, 139 N.M. 450, 134 P.3d 737. Likewise, we conduct a de novo review of constitutional questions of due process. State v. Calabaza, 2011-NMCA-053, \u00b6 9, 149 N.M. 612, 252 P.3d 836.\n{31} We first examine Defendant\u2019s claimed due process violation with regard to the two convictions of conspiracy to tamper with evidence. Procedural due process \u201crequires the [prosecution] to provide reasonable notice of charges against a person and a fair opportunity to defend.\u201d State v. Dominguez, 2008-NMCA-029, \u00b6 5, 143 N.M. 549, 178 P.3d 834 (internal quotation marks and citation omitted). It \u201calso requires that criminal charges provide criminal defendants-with the ability to protect themselves from double jeopardy.\u201d Id. (internal quotation marks and citation omitted). In Dominguez, this Court affirmed the district court\u2019s dismissal of five counts against the defendant that \u201ccould not be tied to individual, factually distinguishable incidents of alleged misconduct.\u201d Id. \u00b6 1. Here, Defendant argues, and the State concedes, that the conspiracy to tamper with evidence charges violated Defendant\u2019s due process rights. Cf. State v. Caldwell, 2008-NMCA-049, \u00b6 8, 143 N.M. 792, 182 P.3d 775 (\u201cThis Court ... is notboundby the [prosecution\u2019s] concession^] and we conduct our own analysis[.]\u201d).\n{32} The jury instructions pertaining to the conspiracy charges required the State to prove that (1) Defendant and another person agreed to commit tampering with evidence; (2) Defendant and another person intended to commit tampering with evidence; and (3) this occurred on or about January 28, 2007 through February 19, 2007. Three identical instructions were given and each pertained to an identical charge against Defendant which read:\n... on or about or between the dates of January 28, 2007[,] through February 19, 2007, in Bernalillo County, New Mexico, [Defendant] and another person by words or acts agreed together to commit [tampering with evidence], and they intended to commit [tampering with evidence], contrary to [NMSA 1978, Section] 30-28-2 [(1979)] and [NMSA 1978, Section] 30-22-5 [(2003).]\n{33} Here, as inDominguez, \u201c[n]othing in the indictment [or in the jury instructions] provided any information that would distinguish one count from any other count.\u201d 2008-NMCA-029, \u00b6 2. Because the counts were not tied to particular actions or offenses, the conspiracy for tampering with evidence charges provided Defendant \u201cwith little ability to defend himself\u2019 and rendered impossible the jury\u2019s task of concluding that Defendant was guilty of some of the offenses but not others. Id. \u00b6 8 (internal quotation marks and citation omitted). Therefore, because the State failed \u201ceither [to] charge ongoing conduct as a single offense or [to] charge [Defendant] with and provide evidence of distinct offenses that [would] support multiple counts[,]\u201d we reverse Defendant\u2019s conspiracy to tamper with evidence convictions as they constituted a violation of procedural due process. Id. \u00b6 11.\n{34} Defendant\u2019s three convictions for tampering with evidence, on the other hand, were supported by sufficient indicia of distinctness and were supported by sufficient evidence. Defendant relies on State v. Saiz, 2008-NMSC-048, \u00b6 38, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State v Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783; and he relies on State v. DeGraff, 2006-NMSC-011, \u00b6 34, 139 N.M. 211, 131 P.3d 61, for the proposition that \u201cimposing multiple punishments for tampering charges directed at the same item of evidence,\u201d which in this case he asserts was the Lincoln, violates the unit of prosecution principles articulated in those cases. We are not persuaded.\n{35} In Saiz, the defendant was convicted of nine counts of tampering with evidence based on his attempts to clean the scene of his crime, dispose of the body of his victim, and clean his clothing the day after the crime. 2008-NMSC-048, \u00b6\u00b6 36, 41. Our Supreme Court determined that \u201c[w]hile [the defendant performed dozens of individual physical acts in disposing of and altering a great number of evidentiary items, there were really only three conceptually separate crimes of tampering[.]\u201d Id. \u00b6 41. The first occurred at the scene of the crime when the defendant cleaned and painted various items immediately after the crime; the second when the defendant disposed of the victim\u2019s body in another town; and the third when he attempted to clean his clothes the next day at his home. Id. \u00b6\u00b6 36, 41. Similarly, in DeGraff, the defendant was convicted of five counts of tampering with evidence. 2006-NMSC-011, \u00b6 1. Three of the defendant\u2019s convictions were based on the act of disposing of a single box containing three pieces of evidence. Id. \u00b6\u00b6 32, 36-37. Our Supreme Court concluded that disposing of the box constituted a single act of tampering and dismissed two of the defendant\u2019s five tampering convictions. Id. \u00b6\u00b6 37-39.\n{36} Here, unlike Saiz or DeGraff, Defendant\u2019s separate tampering charges and convictions with regard to the Lincoln were based on distinct acts, separated by time and space. See Quick, 2009-NMSC-015, \u00b6 25 (stating that \u201c[distinctness may be established by determining whether the acts constituting the two offenses [were] . . . separated by time or space\u201d (internal quotation marks and citation omitted)). Whereas Count 11 was related to Defendant\u2019s act of giving away the Lincoln in which Victim had been shot, Count 13 charged Defendant with having regained possession, and then taking it away and setting fire to it. And unlike the defendants in Saiz &ndDeGraff, whose convictions were reversed based on the fact that their acts of tampering were committed in a single location and within the same time frame, here, Defendant committed two distinct acts of tampering when he first gave away the vehicle, and subsequently, at a different time and place, when he regained possession of and set fire to the vehicle. Thus, the two latter tampering convictions related to the vehicle did not constitute a violation of Defendant\u2019s constitutional rights.\n{37} Nor are we persuaded by D efendant\u2019s argument that the tampering charges were not supported by sufficient evidence. In support of his insufficient evidence argument Defendant cites State v. Silva, 2008-NMSC-051, \u00b6\u00b6 19-20, 144 N.M. 815, 192 P.3d 1192, and State v. Duran, 2006-NMSC-035, \u00b6\u00b6 15-16, 140 N.M. 94, 140 P.3d 515. Neither case supports Defendant\u2019s position. In Silva, the prosecution failed to present \u201cany evidence, circumstantial or otherwise, of an overt act\u201d by the defendant from which the jury could infer an intent to disrupt the police investigation. 2008-NMSC-051, \u00b6 19. Similarly, in Duran, there was no evidence of any act by the defendant to destroy or hide evidence, with the only support for the tampering charge stemming from the fact that the evidence was not found. 2006-NMSC-035, \u00b6 15. Here, on the other hand, the State presented evidence of Defendant\u2019s intent to disrupt the police investigation by first giving away the vehicle and then by retrieving it and intentionally setting fire to its interior.\n{38} Neal\u2019s testimony supported an inference that Defendant gave away the vehicle and that he later regained possession of the vehicle and intentionally set fire to it in order to interfere with the police investigation. In addition to Neal\u2019s testimony, the State presented evidence that the car had intentionally been burned in a fire that likely started in the back seat and that the back seat revealed a bullet hole. The State also presented a witness who saw a \u201cyoung man\u201d with a sprite bottle near the vehicle moments before it was on fire. Therefore, here, unlike Silva and Duran, the State presented evidence to support a verdict of guilty on the tampering with evidence charges. Viewing the evidence in the light most favorable to the jury\u2019s verdict, we hold that the evidence presented was sufficient to support the convictions. See State v. Gallegos, 2011-NMSC-027, \u00b6 15, 149 N.M. 704, 254 P.3d 655 (stating that in addition to viewing the evidence in the light most favorable to the prevailing party, the appellate courts also resolve all conflicts and indulge all permissible inferences in favor of the verdict).\n{39} Finally, with regard to the tampering with evidence convictions, Defendant argues that reversible error occurred when the district court allowed the indictment to be amended after the State rested its case. We review de novo whether the district court properly allowed amendment of the indictment. State v. Roman, 1998-NMCA-132, \u00b6\u00b6 8-9, 125 N.M. 688, 964 P.2d 852.\n{40} The original indictment charged Defendant with four counts of tampering with evidence. While the specific acts oftampering varied as to each charge, all four charges alleged that Defendant had committed tampering \u201cwith intent to prevent the apprehension, prosecution},] or conviction of [Jose Sullivan].\u201d Sullivan, who allegedly was present when Victim was killed and was involved in the related crimes, was not involved with Defendant\u2019s trial. At the close of the State\u2019s case, among the various motions made by Defendant\u2019s counsel was a motion to dismiss all counts oftampering with evidence based on the lack of evidence presented that the acts were done \u201cin order to prevent Jose Sullivan from being caught.\u201d The State argued that there had been a clerical error and requested, under Rule 5-204 NMRA, that the indictment be amended to reflect Defendant\u2019s name in place of Jose Sullivan. The district court found that the amendment was appropriate under Rule 5-204(A) and (C) and would not be prejudicial to Defendant. The jury was instructed accordingly.\n{41} While Defendant argues on appeal that all of the tampering charges should be dismissed because, among other reasons, Defendant was \u201cdeprived ... of sufficient notice and opportunity to present an adequate and effective defense},]\u201d he did not make this argument below. Nor on appeal does he present a persuasive argument to indicate in what way he was prejudiced by the amendment. \u201cThe mere assertion ofprejudice, without more, is insufficient to establish prejudicial error warranting reversal of a conviction.\u201d State v. Marquez, 1998-NMCA-010, \u00b6 20, 124 N.M. 409, 951 P.2d 1070 (internal quotation marks and citation omitted).\n{42} Moreover, as the district court noted at trial, everyone had \u201cbeen working under the assumption that. . . [the charge] was directed to [Defendant.]\u201d And as this Court has previously held, \u201c[a] variance is not fatal unless the accused cannot reasonably anticipate from the indictment what the nature of the proof against him will be.\u201d Id. We see no basis for reversal of the tampering with evidence convictions. As to Defendant\u2019s claim of cumulative error with regard to the tampering convictions, having rejected Defendant\u2019s assertions of error, we conclude that the doctrine of cumulative error does not apply. See State v. Quinones, 2011-NMCA-018, \u00b6 41, 149 N.M. 294, 248 P.3d 336 (explaining that where there is no error, there is no cumulative error).\nGang Affiliation and Threats Against Witnesses\n{43} Defendant\u2019s final claim on appeal is that he was prejudiced by the district court\u2019s admission at trial of \u201cevidence of gang affiliation and threats against witnesses.\u201d We review the district court\u2019s admission of evidence under an abuse of discretion standard. Id. \u00b6 19. Unless the district court\u2019s ruling on a matter was \u201cclearly untenable or not justified by reason},]\u201d we cannot say it was an abuse of discretion. Id. (internal quotation marks and citation omitted).\n{44} Prior to trial, the parties agreed and the district court ruled that, for the limited purpose of identity (i.e., nicknames), evidence of gang membership would be permitted. At trial, neither Rubio nor Neal testified as to Defendant\u2019s gang membership. It was only through Defendant\u2019s own testimony on cross-examination that the jury learned that Defendant, like Neal and Rubio, was from the \u201cSouth Side\u201d gang. Insofar as Defendant agreed prior to trial that gang nicknames were admissible for purposes of identity and insofar as he provided the only affirmative evidence of his own gang membership, we see no basis for his claim. See State v. Handa, 120 N.M. 38, 45-46, 897 P.2d 225, 232-33 (Ct. App. 1995) (stating that a defendant may not invite error and later complain about it); State v. Padilla, 104 N.M. 446, 450, 722 P.2d 697, 701 (Ct. App. 1986) (stating that a defendant may not \u201curge his own action as a ground for reversing his conviction\u201d (internal quotation marks and citation omitted)). As invited error provides no grounds for appeal, we reject Defendant\u2019s argument regarding the prejudicial nature of gang affiliation evidence.\n{45} Defendant also contends that he was prejudiced by evidence of threats made toward witnesses. The record reflects that the only evidence presented regarding threats toward any witness was Rubio\u2019s trial testimony. While Rubio related incidents of threats against him and his family pending his testimony in this matter, it was clear, as acknowledged by Defendant\u2019s counsel, that none of the threats were made by Defendant. Furthermore, although Defendant\u2019s counsel objected at trial to any discussion of threats that had been made, the objection was a broad one, in which counsel, without any specificity claimed that the testimony was \u201cjust prejudicial}.]\u201d Notably, notwithstanding the State\u2019s argument as to why Rubio\u2019s testimony about the threats was relevant, Defendant\u2019s counsel did not make an argument regarding why the prejudicial nature of the testimony outweighed its prejudice. See Rule 11-403 NMRA (reading, in part, that \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice\u201d).\n{46} It is well established that in order to preserve an argument for appeal, an objection \u201cmust be made with sufficient specificity to alert the mind of the trial court to the claimed error}.]\u201d State v. Riley, 2010-NMSC-005, \u00b6 24, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation omitted). While Defendant argues in this Court that testimony regarding the threats \u201cencouraged the jury to draw the inference that [Defendant] was a gang member with a propensity to engage in violent criminal behavior and, more particularly, that he and the gang with whom he allegedly affiliated were somehow responsible for threatening the State\u2019s two informants},]\u201d this argument was not raised below with \u201csufficient specificity [so as] to alert the mind of the trial court to the claimed error.\u201d Id. We will not consider arguments not properly preserved in the district court, and we therefore decline further examination of this issue. See Quinones, 2011-NMCA-018, \u00b6\u00b6 25-26. We hold that the district court did not abuse its discretion in admitting testimony related to gang affiliation or threats to witnesses.\nCONCLUSION\n{47} We affirm the district court as to Defendant\u2019s convictions for voluntary manslaughter, aggravated battery, kidnapping, and tampering with evidence. We reverse Defendant\u2019s convictions of conspiracy to tamper with evidence. We remand to the district court for proper adjustment to Defendant\u2019s sentence in accordance with this Opinion.\n{48} IT IS SO ORDERED.\nJONATHAN B. SUTIN, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nTIMOTHY L. GARCIA, Judge", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Nicole Beder, Assistant Attorney General Santa Fe, NM for Appellee", "Kennedy & Han, P.C. Paul J. Kennedy Mary Y.C. Han Darin M. Foster Arne R. Leonard Albuquerque, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, December 7, 2011,\nNo. 33,287\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2011-NMCA-121\nFiling Date: October 25, 2011\nDocket No. 30,110\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. ELIAS URIOSTE, Defendant-Appellant.\nGary K. King, Attorney General Nicole Beder, Assistant Attorney General Santa Fe, NM for Appellee\nKennedy & Han, P.C. Paul J. Kennedy Mary Y.C. Han Darin M. Foster Arne R. Leonard Albuquerque, NM for Appellant" }, "file_name": "0074-01", "first_page_order": 90, "last_page_order": 101 }