{ "id": 4190278, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. LUCIANO P. GUERRA, Defendant-Appellant", "name_abbreviation": "State v. Guerra", "decision_date": "2012-08-09", "docket_number": "Docket No. 33,052", "first_page": "408", "last_page": "417", "citations": [ { "type": "official", "cite": "2012-NMSC-027" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "111 N.M. 363", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715256 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "366" }, { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0363-01" ] }, { "cite": "91 N.M. 756", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571018 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "759" }, { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0756-01" ] }, { "cite": "100 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588533 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "765", "parenthetical": "\"We assume where arguments in briefs are unsupported by cited authority [that] counsel... was unable to find any supporting authority.\"" }, { "page": "1330", "parenthetical": "\"We assume where arguments in briefs are unsupported by cited authority [that] counsel... was unable to find any supporting authority.\"" }, { "page": "765" }, { "page": "1330", "parenthetical": "\"We assume where arguments in briefs are unsupported by cited authority [that] counsel... was unable to find any supporting authority.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0764-01" ] }, { "cite": "2004-NMCA-022", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1427969 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0084-01" ] }, { "cite": "94 N.M. 500", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573073 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "503", "parenthetical": "explaining that the inquiry on appeal is whether the prosecutor's comments in closing prejudiced the jury" }, { "page": "1314", "parenthetical": "explaining that the inquiry on appeal is whether the prosecutor's comments in closing prejudiced the jury" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0500-01" ] }, { "cite": "111 N.M. 309", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715084 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "314", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "83", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0309-01" ] }, { "cite": "76 N.M. 477", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503013 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "482", "parenthetical": "explaining that a jury may consider \"the animus of the accused toward the deceased\" in determining deliberate intent" }, { "page": "150", "parenthetical": "explaining that a jury may consider \"the animus of the accused toward the deceased\" in determining deliberate intent" } ], "opinion_index": 0, "case_paths": [ "/nm/76/0477-01" ] }, { "cite": "2010-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245249 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 21-22" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0542-01" ] }, { "cite": "2000-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217148 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 61" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0328-01" ] }, { "cite": "2006-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671204 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0644-01" ] }, { "cite": "267 P.3d 806", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4187263 ], "pin_cites": [ { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0085-01" ] }, { "cite": "2002-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260726 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 48" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0576-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "687" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "2007-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670016 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0232-01" ] }, { "cite": "2011-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248753 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0185-01" ] }, { "cite": "115 N.M. 344", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725497 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "347-48" }, { "page": "469-70" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0344-01" ] }, { "cite": "275 P.3d 110", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "2012-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188256 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 37" }, { "page": "\u00b6 42" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0535-01" ] }, { "cite": "2009-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244082 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 53" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0301-01" ] }, { "cite": "1999-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827383 ], "weight": 8, "year": 1999, "pin_cites": [ { "page": "\u00b6 41", "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 41" }, { "page": "\u00b6 41" }, { "page": "\u00b6 61" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0438-01" ] }, { "cite": "98 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582464 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "684" }, { "page": "234" }, { "page": "684" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0682-01" ] }, { "cite": "2006-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670050 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 7" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0094-01" ] }, { "cite": "2008-NMSC-051", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002551 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0815-01" ] }, { "cite": "2008-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002169 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0305-01" ] }, { "cite": "2000-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106493 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 26" }, { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0711-01" ] }, { "cite": "2010-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246234 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0557-01" ] }, { "cite": "2007-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3691675 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 31, 35" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0120-01" ] }, { "cite": "1999-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827421 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0646-01" ] } ], "analysis": { "cardinality": 1157, "char_count": 30335, "ocr_confidence": 0.833, "pagerank": { "raw": 8.434317203935852e-08, "percentile": 0.48442418843724094 }, "sha256": "d7e7aeb28a5172da2922b3b03d19c513598c2358a60734b6b67c524b6439a360", "simhash": "1:7f62f0aaee88075a", "word_count": 4934 }, "last_updated": "2023-07-14T17:22:38.419741+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHARLES W. DANIELS, Justice", "PETRA JIMENEZ MAES, Chief Justice", "PATRICIO M. SERNA, Justice", "RICHARD C. BOSSON, Justice", "EDWARD L. CH\u00c1VEZ, Justice" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. LUCIANO P. GUERRA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nDANIELS, Justice.\n{1} Defendant was convicted of first-degree murder and tampering with evidence in the fatal stabbing of Andrew Gama during a fight ata Clovis apartment complex in March 2010. In his direct appeal to this Court, he argues that (1) there was insufficient evidence to support his conviction for tampering with evidence, (2) the district court abused its discretion by denying his motion for a new trial when two defense exhibits left on counsel table after closing arguments were not included with other exhibits provided to the jury during deliberation, (3) he received ineffective assistance of counsel because his attorney failed to ensure the return of the two exhibits for delivery to the jury room, (4) there was insufficient evidence to support the first-degree murder conviction, and (5) through various other claimed errors the district court denied him due process of law.\n{2} In this Opinion, we clarify the standard for sufficiency of evidence to support tampering-with-evidence convictions and reverse Defendant\u2019s tampering conviction. W e reject the remainder of Defendant\u2019s claims and uphold his first-degree murder conviction.\nI. BACKGROUND\n{3} Defendant was at a party at the Clovis apartment of Erica Na\u00f1ez on the night of the killing. While at the party, Erica and four other witnesses saw Defendant playing with a folding white pocketknife that Defendant claimed he carried for protection. At one point, Erica asked Defendant to put the knife away, which he apparently did.\n{4} Around midnight, a group of uninvited people unexpectedly showed up at the party, and a fight broke out between one of them and one of Erica\u2019s guests. A separate fight took place between Defendant and the uninvited victim, Andrew Gama, who apparently had been in a fight with Defendant\u2019s cousin a few days before. According to most of the witnesses at trial, the fight between Defendant and the victim was \u201cone on one,\u201d and the victim did not have a weapon.\n{5} When someone yelled that the police were coming, the fighting stopped and the uninvited group began running away. The victim, bleeding heavily, fell to the ground while running and was helped to a car by a friend, who drove the victim to the hospital where the victim later died.\n{6} Defendant returned to Erica\u2019s apartment, where several witnesses testified that Defendant said \u201cI think I stabbed that fool seven or eight times. I stabbed that fool.\u201d When asked to describe how Defendant was acting after the fight, Erica told the jury that Defendant and his companions were acting \u201cfine, like nothing, like high-fiving each other.\u201d\n{7} The autopsy of the victim revealed that he suffered thirteen stab wounds in the left side of his chest and that the wounds were consistent with a single-edged knife. Stab wounds to the victim\u2019s heart, left lung, and spleen were the cause of death. The victim had no injuries to his hands or arms, and marijuana and alcohol were found in his blood. The police searched Defendant\u2019s house but could not find the clothes Defendant wore to the party or the knife used to inflict the fatal wounds.\n{8} The jury convicted Defendant of first-degree murder and tampering with evidence, and the district court sentenced Defendant to life in prison for the murder and three years in prison, concurrently, for tampering. Because Defendant received a life sentence, he appealed directly to this Court. See N.M. Const. Art. VI, \u00a7 2 (\u201cAppeals from ajudgment of the district court imposing a sentence of death or life imprisonment shall be taken directly to the supreme court.\u201d); accord Rule 12-102(A)(1) NMRA.\nII. DISCUSSION\nA. The Evidence Was Insufficient to Convict Defendant of Tampering with Evidence.\n{9} Defendant argues that his conviction for tampering with evidence should be overturned because the facts that Defendant had a knife and that no knife was later recovered after the killing are, by themselves, insufficient as a matter of law to support the conviction. The State concedes that the evidence was insufficient as a matter of law to uphold Defendant\u2019s tampering conviction; and while we are not bound by this concession, see State v. Foster, 1999-NMSC-007, \u00b6 25, 126 N.M. 646, 974 P.2d 140, abrogated on other grounds by State v. Frazier, 2007-NMSC-032, \u00b6\u00b6 31, 35, 142 N.M. 120, 164 P.3d 1, we agree.\n1. Standard of Review\n{10} \u201cThe test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction.\u201d State v. Riley, 2010-NMSC-005, \u00b6 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation omitted). The reviewing court \u201cview[s] 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.\u201d State v. Cunningham, 2000-NMSC-009, \u00b6 26, 128 N.M. 711, 998 P.2d 176. \u201cThe question before us as a reviewing [c]ourt is not whether we would have had a reasonable doubt [about guilt] but whether it would have been impermissibly unreasonable for a jury to have concluded otherwise. See State v. Rudolfo, 2008-NMSC-036, \u00b6 29, 144 N.M. 305, 187 P.3d 170.\n2. Tampering with Evidence Requires Proof in Some Form of a Defendant\u2019s Specific Intent to Tamper.\n{11} In order to prove that Defendant tampered with evidence, the State had to' prove that (1) Defendant hid physical evidence; (2) he did so with the intent to prevent his apprehension, prosecution, or conviction; and (3) this happened in New Mexico on or about the date specified in the criminal information. UJI 14-2241 NMRA; see NMSA 1978, \u00a7 30-22-5(A) (2003).\n{12} This Court has previously recognized that the crime of tampering with evidence requires evidence that the defendant specifically intended to tamper with evidence. In State v. Silva, the state successfully argued at trial that the defendant tampered with evidence solely because (1) the defendant had a gun at the scene of the crime, (2) a gun was used to murder the victim, (3) the murder weapon was removed from the scene, and (4) the murder weapon was never recovered. 2008-NMSC-051, \u00b6 17, 144 N.M. 815, 192 P.3d 1192. We explained that \u201c[tjampering with evidence is a specific intent crime, requiring sufficient evidence from which the jury can infer that the defendant acted with an intent to prevent apprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another.\u201d Id. \u00b6 18 (internal quotation marks and citation omitted). We held that the evidence was insufficient as a matter of law to sustain the conviction because the state \u201coffered no direct evidence to show that [the defendant intended to disrupt the police investigation, nor did it provide any evidence, circumstantial or otherwise, of an overt act on [the defendant's part from which the jury could infer such intent.\u201d Id. \u00b6 19. Instead, the state \u201ceffectively asked the jury to speculate that an overt act of . . . hiding [the murder weapon] had taken place, based solely on the fact that such evidence was never found.\u201d Id. (alterations in original) (internal quotation marks and citation omitted).\n{13} In explaining our conclusion, we noted that \u201c[i]ntent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence.\u201d Id. \u00b6 18 (alteration in original) (internal quotation marks and citation omitted). But after that clear discussion of the proper role of circumstantial evidence, we concluded by saying: \u201cHowever, absent both direct evidence of a defendant\u2019s specific intent to tamper and evidence of an overt act from which the jury may infer such intent, the evidence cannot support a tampering conviction.\u201d Id.\n{14} Taken out of context, that single sentence could be misconstrued as requiring both direct and circumstantial evidence of intent to tamper, instead of either. Such an unprecedented dual requirement would make prosecution of tampering with evidence possible only when the defendant has explicitly admitted that the act of tampering was committed with the intent to elude capture or prosecution, which has never been the standard. We did not intend such a reading of the law. Silva should have said that \u201cabsent either direct evidence of a defendant\u2019s specific intent to tamper or evidence from which the factfinder may infer such intent, the evidence cannot support a tampering conviction.\u201d See State v. Nathaniel Duran, 2006-NMSC-035, \u00b6 16, 140 N.M. 94, 140 P.3d 515, noting that this Court\u2019s reversal of a tampering conviction for insufficiency of supporting evidence\ndoes not mean that direct evidence is necessary to prove tampering with evidence. Statements by defendants and witnesses regarding the disposition of evidence may allow a jury to reasonably infer an overt act and intent, as may many other kinds of circumstantial evidence that would tend to prove a defendant acted to tamper with evidence and in so acting intended to thwart a police investigation. Rather, we hold that it is the State\u2019s burden to prove each element of the crime beyond a reasonable doubt, and the proof offered here, with no direct or circumstantial evidence regarding an overt act and no reasonable way for a jury to infer intent, falls short of that burden.\n{15} Accordingly, we clarify Silva insofar as it may have inadvertently suggested that the state must always present both direct and circumstantial evidence of a defendant\u2019s specific intent to tamper in order to convict the defendant of tampering with evidence.\n{16} Having clarified Silva, we conclude that its bedrock principle applies in this case: The State cannot convict Defendant of tampering with evidence simply because evidence that must have once existed cannot now be found. As in Silva, the State in this case alleged that Defendant tampered with evidence based on the fact that (1) Defendant had a weapon at the scene of the crime, (2) Defendant used that weapon to kill someone, (3) the weapon was removed from the scene of the crime, and (4) the weapon was never recovered. And as in Silva, the State in this case essentially asked the jury to infer that an overt, intentional act of hiding the weapon had taken place based solely on the fact that the police never found the weapon. We rejected such facts as insufficient evidence as a matter of law to support a tampering with evidence conviction in Silva, and we do so here as well. Accordingly, we reverse Defendant\u2019s conviction for tampering with evidence.\nB. Any Error in Not Sending Two Exhibits to the Jury Room Was Harmless.\n{17} Rule 5-609(C) NMRA provides that \u201c[ujpon its request to review any exhibit during its deliberations, the jury shall be furnished all exhibits received in evidence.\u201d The committee commentary explains that the rule is intended to avoid \u201cundue emphasis being placed on one of the exhibits.\u201d While Defendant has provided no record reference that would indicate the jury ever made such a request in this case, the parties and the court below seemed to agree that two exhibits related to the victim\u2019s autopsy \u2014 a blood toxicology report and a drug analysis report \u2014 were inadvertently left on defense counsel\u2019s table when all the other exhibits were given to the deliberating jury. The district court denied Defendant\u2019s motion for new trial based on the claimed violation of Rule 5-609, finding that while the apparent omission of the exhibits was \u201cregrettable,\u201d the error was \u201ctechnical\u201d and justice would not be served in reversing the jury verdict on the basis of such a \u201cminor infraction of the rules.\u201d Defendant now argues that he was denied a fair trial and that the district court abused its discretion when it denied his motion for a new trial.\n1. Standard of Review\n{18} \u201cThe trial court has broad discretion in granting or denying a motion for new trial, and such an order will not be reversed absent clear and manifest abuse of that discretion.\u201d State v. Chavez, 98 N.M. 682, 684, 652 P.2d 232, 234 (1982). \u201cAn abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize [the ruling] as clearly untenable or not justified by reason.\u201d State v. Rojo, 1999-NMSC-001, \u00b6 41, 126 N.M. 438, 971 P.2d 829 (1999) (internal quotation marks and citation omitted).\n2. Harmless Error\n{19} \u201c[W]here a defendant has established a violation of statutory law or court rules, non-constitutional error review is appropriate.\u201d State v. Barr, 2009-NMSC-024, \u00b6 53, 146 N.M. 301, 210 P.3d 198, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, \u00b6 37, 275 P.3d 110. \u201cA reviewing court should only conclude that a non-constitutional error is harmless when there is no reasonable probability the error affected the verdict.\u201d Id. (emphasis in original). \u201c[N]on-constitutional error is reversible only if the reviewing court is able to say, in the context of the specific evidence presented at trial, that it is reasonably probable that the jury\u2019s verdict would have been different but for the error.\u201d Id. \u00b6 54.\n{20} By explaining that the complained of error was a \u201ctechnical\u201d violation, the district court made it clear that its decision to deny Defendant\u2019s motion for a new trial was based on the conclusion that the error was harmless. This conclusion is not \u201cclearly against the logic and effect of the facts and circumstances of the case.\u201d Rojo, 1999-NMSC-001, \u00b6 41 (internal quotation marks and citation omitted).\n{21} There is no reasonable probability that the jury\u2019s verdict would have been different if the jury had access to the two exhibits during deliberation. The jury was well aware of their contents. An expert medical witness testified at trial about the reports and testified that the information in the report was not sufficient for her to conclude whether the victim was impaired or whether the alcohol and marijuana had any impact on the victim\u2019s ability to toleratepain. Therefore, the reports were useful only to prove that the victim had alcohol and marijuana in his system, facts the State never challenged. And because defense counsel used the admitted exhibits in closing argument, the jury had very recently been reminded of the facts contained in them. After hearing testimony and argument about the two admitted exhibits, the jury never displayed sufficient interest in them to ask for them. Viewing all the circumstances, we conclude that the error was harmless and that the district court did not abuse its discretion in denying Defendant\u2019s motion for a new trial on that ground.\nC. Defendant Received Effective Assistance of Counsel.\n{22} Defendant also argues that if the district court did not abuse its discretion by denying his motion for a new trial, then his trial attorney\u2019s failure to send the exhibits back to the jury amounted to ineffective assistance of counsel.\n{23} \u201cQuestions of law or questions of mixed fact and law, . . . including the assessment of effective assistance of counsel, are reviewed de novo.\u201d Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993). \u201cUnder the Sixth Amendment, criminal defendants are entitled to reasonably effective assistance of counsel.\u201d State v. Garcia, 2011-NMSC-003, \u00b6 33, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation omitted). \u201cOrdinarily, a claim of ineffective assistance of counsel has two parts.\u201d Rael v. Blair, 2007-NMSC-006, \u00b6 10, 141 N.M. 232, 153 P.3d 657 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). First, \u201c[a] defendant must show counsel\u2019s performance was deficient.\u201d Id. (internal quotation marks and citation omitted). Second, a defendant must show \u201cthat the deficient performance prejudiced the defense.\u201d Id. (internal quotation marks and citation omitted). \u201cFailure to prove either prong of the test defeats a claim of ineffective assistance of counsel.\u201d State v. Reyes, 2002-NMSC-024, \u00b6 48, 132 N.M. 576, 52 P.3d 948, abrogated on other grounds by Allen v. LeMaster, 2012-NMSC-001, \u00b6 36, 267 P.3d 806. \u201cWith regard to the prejudice prong, generalized prejudice is insufficient. ... A defendant must show a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d State v. Bernal, 2006-NMSC-050, \u00b6 32, 140 N.M. 644, 146 P.3d 289 (internal quotation marks and citations omitted). \u201cIf a defendant does not make such a showing, the defendant has not carried his or her burden, and the presumption of effective assistance controls.\u201d State v. Harrison, 2000-NMSC-022, \u00b6 61, 129 N.M. 328, 7 P.3d 478 (internal quotation marks and citation omitted).\n{24} Just as we previously determined that any error in not sending the two exhibits to the jury in the context of this case was harmless, we conclude that Defendant cannot demonstrate the requisite prejudice to prevail on his ineffective assistance of counsel claim.\nD. The Jury Received Sufficient Evidence to Convict Defendant of First-Degree Murder.\n{25} Defendant argues that the evidence was insufficient to support his first-degree murder conviction because the jury ignored evidence that tended to show Defendant did not deliberate before he killed.\n{26} Inorderto convictDefendantoffirstdegree murder, the jury had to find beyond a reasonable doubt that (1) Defendant killed Andrew Gama, (2) he did so with the deliberate intention of taking the victim\u2019s life, and (3) this happened in New Mexico on or about the date specified in the criminal information. UJI 14-201 NMRA; see NMSA 1978, \u00a7 30-2-1 (A)(1) (1994).\n{27} Defendant\u2019s argument centers around his claim at trial that he was \u201cjumped,\u201d which he maintains is proof that he acted on a rash impulse and did not deliberate. But because the jury is free to reject Defendant\u2019s version of the facts, \u201c[cjontrary evidence supporting acquittal does not provide a basis for reversal.\u201d See Riley, 2010-NMSC-005, \u00b6 12 (internal quotation marks and citation omitted). Instead, we consider the evidence that supports the verdict in this case. Id.\n{28} The requisite state of mind for first degree murder is a \u201cdeliberate\u201d intention to kill. See \u00a7 30-2-l(A)(l); see also UJI 14-201. \u201cThe 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.\u201d UJI 14-201. Though deliberate intent requires a \u201ccalculated judgment\u201d to kill, the weighing required for deliberate intent \u201cmay be arrived at in a short period of time.\u201d Id. In determining whether a defendant made a calculated judgment to kill, the jury may infer intent from circumstantial evidence; direct evidence of a defendant\u2019s state of mind is not required. See Nathaniel Duran, 2006-NMSC-035, \u00b6 7.\n{29} The jury received sufficient evidence to find that Defendant deliberated before he killed. The medical evidence suggested and the State argued that Defendant pinned the victim\u2019s left arm above his head, leaving that side of his chest exposed and rendering the victim unable to defend himself from Defendant\u2019s attack. Such an attack on a victim who cannot defend himself may be sufficient for the jury to infer deliberate intent. See Cunningham, 2000-NMSC-009, \u00b6 28 (inferring deliberate intent when the defendant killed an incapacitated and defenseless victim). The jury also heard evidence that Defendant stabbed the victim thirteen times and that many of the wounds were to vital organs, evidence that supports a finding of \u201coverkill.\u201d See State v. Flores, 2010-NMSC-002, \u00b6\u00b6 21-22, 147 N.M. 542, 226 P.3d 641 (including an attempt at \u201coverkill\u201d in the evidence sufficient to uphold a finding of intent). Finally, the jury learned that Defendant expressed no remorse after killing the victim, saying \u201cI think I stabbed that fool seven or eight times,\u201d celebrating, and acting as if nothing had happened after he returned from the attack. See Nathaniel Duran, 2006-NMSC-035, \u00b6 9 (inferring deliberate intent in part from the defendant\u2019s statements after the killing that he \u201churt a lady and stabbed her eight or nine times\u201d and that he \u201cstraight up murdered some bitch\u201d (internal quotation marks and citation omitted)); see also State v. Smith, 76 N.M. 477, 482, 416 P.2d 146, 150 (1966) (explaining that a jury may consider \u201cthe animus of the accused toward the deceased\u201d in determining deliberate intent). Accordingly, we conclude that the evidence was sufficient to support Defendant\u2019s conviction for willful and deliberate murder.\nE. Defendant\u2019s Other Due Process of Law Claims Lack Merit.\n{30} Defendantalso argues that the district court abused its discretion when it denied his motion for a new trial based on claims he was denied due process when (1) the district court improperly released a medical expert from subpoena, (2) the State\u2019s reenactment of the murder before the jury was improper, (3) the prosecutor made derogatory comments about defense counsel to a prosecution witness, and (4) the State misrepresented a witness\u2019s testimony in its closing argument. Because Defendant does not demonstrate any harm from these alleged errors, we conclude that he was not denied due process of law.\n{31} \u201cThe trial court has broad discretion in granting or denying a motion for new trial, and such an order will not be reversed absent clear and manifest abuse of that discretion.\u201d Chavez, 98 N.M. at 684, 652 P.2d at 234. \u201cAn abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.\u201d Rojo, 1999-NMSC-001, \u00b6 41 (internal quotation marks and citation omitted).\n1. Release of the State\u2019s Medical Expert Before the Defense Case\n{32} The State called a forensic pathologist who testified as an expert medical witness at trial. Defense counsel cross-examined her after her direct testimony. The district court released the expert witness after her testimony, and Defendant never attempted to call her in his case in chief. Defendant later argued in his motion for a new trial that releasing the expert was error, even though Defendant admitted both that he had no reason to call the witness and that he knew he could have had the witness subpoenaed or recalled if he determined that he needed further testimony from her. Defendant now claims that \u201cbecause the doctor was released, he was unable to call her and present her in his case to address whatever issues might have arisen and she therefore, seemed solely to be a State\u2019s witness.\u201d Nothing in the record suggests that Defendant was prejudiced by the district court\u2019s decision to release the witness. See Tollardo, 2012-NMSC-008, \u00b6 42 (explaining that the proper focus of a harmless error review is whether the error affected the verdict). Accordingly, even assuming without deciding that releasing the witness was error, we conclude that any error was harmless.\n2. The State\u2019s Reenactment of the Murder During Closing\n{33} The State initially intended to call an investigator as an expert witness who would present an expert opinion in the form of a reenactment of the attack. The proposed reenactment apparently would have been based on the expert\u2019s file, which contained pictures, calculations, facts, and demonstrations that he had performed. Defendant objected and asked the district court to exclude the testimony. The district court determined that the State failed to give notice to the defense that the witness would be called as an expert and that the State failed to give Defendant a copy of the expert\u2019s file, in violation of Rules 5-501 (A)(3)-(5) NMRA. The district court offered three possible remedies: Defendant could be allowed time to find his own expert, the witness could be excluded altogether, or the witness could be allowed to testify strictly as a fact witness. Defendant agreed to allow the witness to testify as a fact witness only.\n{34} The witness told the jury that he investigated the murder and explained what he found at the scene. He told the jury that he examined the victim\u2019s clothing and thathe saw pictures of the victim. The victim\u2019s sweatshirt had blood and \u201cnumerous\u201d cuts on the left side, in the rib cage area under the left arm, and the right side had no blood or cuts. When the witness examined the T-shirt the victim wore beneath the sweatshirt, he found cuts or holes that were \u201cin direct correlation\u201d with those in the sweatshirt. And when the witness examined the victim\u2019s undershirt, he found cuts consistent with those in the T-shirt the victim wore and consistent with the injuries the victim suffered.\n{35} The State argued in closing, through a reenactment based in part on this factual testimony, that the victim\u2019s thirteen stab wounds in the rib cage area on his left side suggested that Defendant intentionally prevented the victim from defending himself by trapping the victim\u2019s left arm in a raised position, exposing the left side of the victim\u2019s chest.\n{36} Defendant now claims that he was denied due process of law because the prosecutor was allowed in closing to reenact in a theory of the case that was the same as the expert\u2019s unadmitted opinion and based on admitted evidence which had not been made available in timely pretrial discovery.\n{37} The \u201ctrial court has wide discretion in . . . controlling counsel\u2019s argument to the jury and, if no abuse of this discretion or prejudice to the defendant is evident, error does not result.\u201d State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991) (internal quotation marks and citation omitted). Defendant does not explain why he was prejudiced by either the delay in disclosing the expert\u2019s report or by the State\u2019s arguments in closing. See Rojo, 1999-NMSC-001, \u00b6 61, 126 N.M. 438, 971 P.2d 829 (refusing to hold that the prosecution\u2019s delay in disclosing evidence required reversal in the absence of a showing of prejudice from the nondisclosure); State v. Ruffino, 94 N.M. 500, 503, 612 P.2d 1311, 1314 (1980) (explaining that the inquiry on appeal is whether the prosecutor\u2019s comments in closing prejudiced the jury); see also State v. McDaniel, 2004-NMCA-022, \u00b6 6, 135 N.M. 84, 84 P.3d 701 (\u201cThe prejudice must be more than speculative.\u201d). The record indicates that the State\u2019s argument was based on the evidence admitted at trial, and Defendant cites no authority that stands for the proposition that precludes counsel from thinking about an unadmitted expert opinion in preparing and presenting closing argument. See Lee v. Lee (In re Adoption of Doe), 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (\u201cWe assume where arguments in briefs are unsupported by cited authority [that] counsel... was unable to find any supporting authority.\u201d).\n{38} Because Defendant has not argued why the late disclosure or the State\u2019s closing arguments prejudiced him, we reject Defendant\u2019s arguments on this issue.\n3. The Prosecutor\u2019s Pretrial Comments to a Witness About Defense Counsel\n{39} Defendant claims that just before trial defense counsel reviewed an audio recording of an interview with a witness for the State in which the prosecutor allegedly made improper comments about defense counsel. Defendant now argues without explanation that as a result of those statements, the witness \u201cbecame more hostile and \u2018State oriented.\u2019\u201d\n{40} But Defendant does not indicate the content of the alleged improper statements or their location in the record. \u201cThe burden is on appellant to provide the necessary record in this Court.\u201d State v. Alonzo L. Duran, 91 N.M. 756, 759, 581 P.2d 19, 22 (1978), overruled on other grounds by State v. Gonzales, 111 N.M. 363, 366, 805 P.2d 630, 633 (1991). Where a defendant fails to provide sufficient record for review of an issue, the reviewing court may deem the issue abandoned. See id.\n{41} Because Defendanthas notprovided the allegedly derogatory statements, this Court cannot review whether the statements would have prejudiced Defendant\u2019s case or whether the district court abused its discretion when it denied Defendant\u2019s motion on this issue. See id. Accordingly, we reject Defendant\u2019s claims on this issue.\n4. The State\u2019s Characterization of the \u201cHigh-Fiving Each Other\u201d Testimony\n{42} Defendant appears to argue that the State mischaracterized the testimony of Erica Nafiez when the State argued in closing that Defendant and his friends were acting \u201cfine, like nothing, like high-fiving each other.\u201d Defendant does not point out how the State may have incorrectly mischaracterized the testimony. Defendant also does not explain how any mischaracterization may have prejudiced his defense. Instead, Defendant argues vaguely that \u201cin re-characterizing the testimony, the State actually mis-represented the testimony, which prejudiced his defense.\u201d Nor does Defendant cite any authority from any jurisdiction supporting his argument, leading us to conclude that no such authority exists. See In re Adoption of Doe, 100 N.M. at 765, 676 P.2d at 1330 (\u201cWe assume where arguments in briefs are unsupported by cited authority [that] counsel... was unable to find any supporting authority.\u201d). Accordingly, we reject Defendant\u2019s claims that the State\u2019s summation unlawfully prejudiced his defense.\n{43} In sum, we hold that the district court did not abuse its discretion when it denied Defendant\u2019s motion for a new trial based on the various alleged errors.\nIII. CONCLUSION\n{44} We affirm Defendant\u2019s conviction for first-degree murder and remand to the district court with instructions to vacate Defendant\u2019s conviction for tampering with evidence.\n{45} IT IS SO ORDERED.\nCHARLES W. DANIELS, Justice\nWE CONCUR:\nPETRA JIMENEZ MAES, Chief Justice\nPATRICIO M. SERNA, Justice\nRICHARD C. BOSSON, Justice\nEDWARD L. CH\u00c1VEZ, Justice", "type": "majority", "author": "DANIELS, Justice." } ], "attorneys": [ "Liane E. Kerr, L.L.C. Liane E. Kerr Albuquerque, NM for Appellant", "Gary K. King, Attorney General Olga Serafimova, Assistant Attorney General Santa Fe, NM for Appellee" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2012-NMSC-027\nFiling Date: August 9, 2012\nDocket No. 33,052\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. LUCIANO P. GUERRA, Defendant-Appellant.\nLiane E. Kerr, L.L.C. Liane E. Kerr Albuquerque, NM for Appellant\nGary K. King, Attorney General Olga Serafimova, Assistant Attorney General Santa Fe, NM for Appellee" }, "file_name": "0408-01", "first_page_order": 424, "last_page_order": 433 }