{ "id": 4239757, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRUCE SCHWARTZ, Defendant-Appellant", "name_abbreviation": "State v. Schwartz", "decision_date": "2014-06-17", "docket_number": "No. 34,690; Docket No. 32,451", "first_page": "212", "last_page": "223", "citations": [ { "type": "official", "cite": "2014-NMCA-066" } ], "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": "2007-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669946 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 8" }, { "parenthetical": "internal quotation marks and citations omitted" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0751-01" ] }, { "cite": "120 N.M. 740", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558835 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/120/0740-01" ] }, { "cite": "1995-NMSC-077", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0 }, { "cite": "2012-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4190278 ], "pin_cites": [ { "page": "\u00b6\u00b6 12-14" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0408-01" ] }, { 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BUSTAMANTE, Judge", "WE CONCUR:", "MICHAEL E. VIGIL, Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRUCE SCHWARTZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} Bruce Schwartz (Defendant) asserts that his rights under the confrontation clauses of the United States and New Mexico Constitutions were violated when the district court permitted four witnesses to testify by two-way video over the Internet without the necessary findings that use of video was necessary. We agree and, because there is no reasonable possibility that the video testimony did not affect the verdict, conclude that the testimony was not harmless. Consequently, we reverse Defendant\u2019s convictions. Concluding there is sufficient evidence to support Defendant\u2019s convictions, we also remand for retrial.\nBACKGROUND\n{2} In March 2008 Martha McEachin left her home in Los Angeles on a train bound for Albuquerque, intending to begin writing a long-planned novel in Mexico. After arriving in Albuquerque, McEachin lived with Defendant for approximately one and a half months before she disappeared. In May, a badly decomposed body was discovered wrapped in a blue air mattress and sheets and covered with a mattress in an alley approximately 500 feet from Defendant\u2019s apartment.\n{3} After a two-year investigation, Defendant was charged with McEachin\u2019s murder and tampering with evidence. He was convicted by a jury of second degree murder and tampering with evidence and sentenced to fifteen years in the Department of Corrections. Additional facts are included in our discussion of Defendant\u2019s points on appeal.\nDISCUSSION\n{4} Defendant makes a number of arguments based on allegations of error in the admission or exclusion of evidence. Because we conclude that Defendant\u2019s confrontation rights were violated and that the violation was not harmless, we reverse Defendant\u2019s convictions. We also conclude that there is sufficient evidence of Defendant\u2019s guilt to permit retrial on remand. Given the disposition of these issues, we do not address Defendant\u2019s other arguments.\nA. Confrontation Clause\n{5} At trial, four of the State\u2019s witnesses testified using Skype, an \u201cInternet software application^ that... allow[s] users to engage in real time video and audio communications between two or more locations.\u201d 131 Am. Jur. Trials 475 \u00a7 1 (2014). Defendant argues that admission of their testimony via Skype violated his rights under the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution. Both the Federal and New Mexico constitutions provide that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.j\u201d See U.S. Const. amend. VI; N.M. Const, art. II, \u00a7 14. We will refer to the clause in both constitutions as \u201cthe confrontation clause.\u201d\n{6} \u201c[T]he [cjonffontation [cjlause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.\u201d Coy v. Iowa, 487 U.S. 1012, 1016 (1988). But a defendant\u2019s rights under the confrontation clause are not absolute. See State v. Almanza, 2007-NMCA-073, \u00b6 8, 141 N.M. 751, 160 P.3d 932. Rather, they \u201cmay give way to other important interests\u201d when those interests are \u201cnarrowly tailored to include only those situations where the exception is necessary to further an important public policy.\u201d Id. (internal quotation marks and citations omitted). Thus, there must be \u201ca particularized showing of necessity in the service of an important public policy before a court may approve an exception to physical presence.\u201d State v. Smith, 2013-NMCA-081, \u00b6 8, 308 P.3d 135, cert. denied, 2013-NMCERT-006, 304 P.3d 425. \u201cThenecessity must be supported by specific findings by the trial court.\u201d Id. \u00b6 5.\n{7} \u201c[Mjere inconvenience to the witness is not sufficient to dispense with face-to-face confrontation.\u201d State v. Chung, 2012-NMCA-049, \u00b6 11, 290 P.3d 269 (internal quotation marks and citation omitted), cert. quashed, 2013-NMCERT-003, 300 P.3d 1182. Thus, this Court has reversed convictions where a witness testified via video or telephone conference when (1) the witness was located in Santa Fe and the hearing was held in Aztec, New Mexico, see id.% 3; (2) the witness would have had to travel seven hours and be absent from the State Laboratory Division when it was shorthanded, see Smith, 2013-NMCA-081, \u00b6\u00b6 2, 11; and (3) when a chemist with the state crime lab was called on short notice and had a \u201cbusy schedule,\u201d Almanza, 2007-NMCA-073, \u00b6 12. Our review of confrontation issues is de novo. See Smith, 2013-NMCA-081, \u00b6 3.\nThe District Court Erred in Permitting Video Testimony\n{8} An FBI agent, two forensic scientists, and Defendant\u2019s mother testified via video. The State concedes that it \u201cdid not list any reason for the video testimony\u201d of FBI Agent Bas or forensic scientist Gross \u201cother than their residing outside of New Mexico.\u201d Additionally, it acknowledges that \u201cthe district court failed to make individualized factual findings [as] required to excuse [forensic scientist Pearn\u2019s] in-person appearance.\u201d Thus, it concedes that \u201c[t]hese witnesses\u2019 testimony violated Defendant\u2019s confrontation rights.\u201d Although we are not bound by this concession, we agree with this conclusion because the district court failed to make specific findings supporting its conclusion that video testimony by these witnesses was necessary. See id. \u00b6 5 (\u201cThe necessity must be supported by specific findings by the [district] court.\u201d).\n{9} Whether it was error to permit Defendant\u2019s mother, Patricia Labance, to testify via video presents a more complex question. As justification for permitting Labance to appear by video, the State argued that \u201cLabance was born in 1938 and resides in Florida. . . . Labance currently suffers from severe stress, anxietyf,] and depression.\u201d It attached a letter from Labance\u2019s doctor, which stated that \u201cthis patient is suffering from severe stress, anxietyf,] and depression and is physically and psychologically unable to travel out of the state for the foreseeable future.\u201d At the hearing on the motion, the district court inquired into the substance of Labance\u2019s testimony and discussed with the parties how Skype works. Although the State said that Labance was available to speak to the district court, no evidence was taken at the hearing. The State also said that \u201c[Labance was] not happy to be coming out here. She hasn\u2019t seen her son in a number of years. But she will come if necessary, but because of her failing health, . . .we\u2019d like to do her [testimony via] live video.\u201d The State also distinguished Chung, in which this Court held that a defendant\u2019s confrontation rights were violated when the district court permitted video testimony based on a witness\u2019s seven-hour travel time, by arguing that \u201cin our case, the travel is so much further and costly.\u201d See Chung, 2012-NMCA-049, \u00b6 12. After argument, the district court stated that, \u201cgiven the letter from [Labance\u2019s doctor] describing [Labance], I\u2019m going to allow her to testify via . .. Skype[.]\u201d The district court did not make written findings.\n{10} The State arranged for Labance to testify via Skype from a courthouse in Naples, Florida. During cross-examination, Defendant questioned Labance about her health. Labance testified that she was nervous and that the trial was \u201cupsetting.\u201d In addition, counsel for Defendant and Labance had the following exchange.\nQ: ... What type of health issues are you dealing with right now, ma\u2019am?\nA: Well, physically I have arthritis really bad. Mentally, I\u2019ve been very stressed, anxious. I\u2019ve been very depressed over this whole situation.\nQ: And arthritis would be the main medical diagnosis you\u2019re suffering from?\nA: Yes.\nQ: Do you have troitble breathing?\nA: Not necessarily, no.\n{11} After cross-examination was completed, Defendant moved for Labance\u2019s testimony to be stricken from the record. A bench conference was held. Defendant argued that, based on Labance\u2019s testimony, there was \u201cno decent reason\u201d that Labance could not have traveled to New Mexico to testify and that, therefore, his confrontation rights had been violated. The district court expressed some confusion about the contents of the doctor\u2019s letter, asking, \u201cIs the doctor specific as to diagnoses, or is it general issues regarding health}?]\u201d It is not clear from the record whether the letter was produced for the district court\u2019s review during the bench conference. Ultimately, the district court denied Defendant\u2019s motion stating, \u201cNone of us are doctors, and we don\u2019t have the medical records. I\u2019m going to accept, again on the basis of good faith, that there\u2019s a legitimate basis for [Labance to appear] by the Skype.\u201d\n{12} We interpret the district court\u2019s statements to be a finding that it was medically necessary for Labance to testify via video. See Smith, 2013-NMCA-081, \u00b6 9 (citing Commonwealth v. Atkinson, 2009 PA Super 239, \u00b6 12, in which that court held that adult witnesses may testify by video only \u201cwhen a witness is too ill to travel and when a witness is located outside of the United States\u201d) (internal quotation marks and citation omitted)). In doing so, we note that the district court\u2019s oral comments are perilously close to being inadequate for appellate review and note again that \u201c[t]he necessity [for video testimony] must be supported by specific findings by the trial court.\u201d Id. \u00b6 5; see State v. Benny E., 1990-NMCA-052, \u00b6 11, 110 N.M. 237, 794 P.2d 380 (\u201cAbsent findings indicating the [district] court was persuaded and why, the decision to deny a defendant his or her right of confrontation cannot be adequately reviewed on appeal.\u201d). The State argues that, because the district court\u2019s finding was supported by the \u201cmedical judgment\u201d in the doctor\u2019s letter, we must affirm. We disagree that the letter alone is sufficient to demonstrate a compelling need to protect the witness as required to outweigh Defendant\u2019s rights under the confrontation clause.\n{13} \u201c[A]ny exceptions to the general rule providing for face-to-face confrontation [must be] narrowly tailored.\u201d Chung, 2012-NMCA-049, \u00b6 11 (internal quotation marks and citation omitted); see Smith, 2013-NMCA-081, \u00b6 9 (stating that \u201c[c]ourts define [policy concerns that outweigh the defendant\u2019s confrontation rights] narrowly\u201d). Given the importance of the confrontation right and the narrowness of the exceptions to it, we conclude that the doctor\u2019s letter was inadequate as a matter of law to support a conclusion that Labance could not testify in person. See id. \u00b6 15 (stati\u00f1g that \u201cthe reasons articulated by the district court for finding it necessary to allow the use of video testimony were insufficient as a matter of law to support its use\u201d); see, e.g., Bush v. State, 2008 WY 108, \u00b6 52, 193 P.3d 203 (Wyo. 2008) (medical necessity supported where the district court considered medical records); State v. Sewell, 595 N.W.2d 207, 211 (Minn. Ct. App. 1999) (medical necessity supported where the witness\u2019s doctor indicated by affidavit and through telephone contact with the court that the witness was too ill to travel); cf. State v. Tafoya, 1988-NMCA-082, \u00b6 16, 108 N.M. 1, 765 P.2d 1183 (finding of necessity for use of video depositions of child witnesses at trial supported by substantial evidence where there was a \u201cfull day of testimony\u201d by experts and the witnesses\u2019 parents); State v. Vigil, 1985-NMCA-103, \u00b6\u00b6 6-7, 103 N.M. 583, 711 P.2d 28 (finding of necessity for video deposition of a child witness supported by substantial evidence where the state presented expert testimony on the possible impact on the witness of in-person testimony). The fact that the State conceded that Labance could travel to New Mexico to testify if necessary simply highlights the inadequacy of the evidence behind the district court\u2019s conclusion.\n{14} Based on the foregoing, we conclude that it was error to permit video testimony by Bas, Gross, Pearn, and Labance because the necessity for video testimony was not supported by sufficient findings.\nWith One Exception, Admission of Video Testimony Was Not Harmless\n{15} A violation alone, however, does not require a new trial. Rather, only when a violation of the confrontation clause is harmful to the defendant does the violation require a new trial. See State v. Tollardo, 2012-NMSC-008, \u00b6 25, 275 P.3d 110 (\u201cImproperly admitted evidence is not grounds for a new trial unless the error is determined to be harmful.\u201d). The State bears the burden of demonstrating that the error was harmless. See State v. Gutierrez, 2007-NMSC-033, \u00b6 18, 142 N.M. 1, 162 P.3d 156.\n{16} To determine whether an error in admission of evidence is harmless, this Court reviews \u201cthe error itself, including the source of the error and the emphasis placed on the error at trial. To put the error in context, we often look at the other, non-objectionable evidence of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what role the error played at trial.\u201d State v. Leyba, 2012-NMSC-037, \u00b6 24, 289 P.3d 1215. In addition, \u201ccourts may, depending upon the circumstances of the cases before them, examine the importance of the erroneously admitted evidence in the prosecution\u2019s case, as well as whether the error was cumulative or instead introduced new facts.\u201d Tollardo, 2012-NMSC-008, \u00b6 43 (alterations, internal quotation marks, and citations omitted). Whether certain evidence is harmless depends on a variety of factors unique to each case. See id. \u00b6 44 (\u201cReviewing courts must keep in mind that harmless error review necessarily requires a case-by-case analysis.\u201d).\n{17} We begin by addressing the testimony presented by video related to DNA analyses, then turn to Labance\u2019s testimony. The State presented four forensic scientists, of which two \u2014 Pearn and Gross \u2014 testified by video. Pearn- developed a DNA profile of McEachin based on DNA found on McEachin\u2019s shoes. She also tested DNA found on the waistband of a pair of jeans found near the body. She concluded that \u201cneither [the victim] or [Defendant] could be excluded as contributors to [the DNA on the waistband].\u201d Thus, Peam\u2019s work (1) resulted in a DNA profile of the victim, and (2) provided a possible link between the body and Defendant.\n{18} Gross tested a femur taken from the body, created a DNA profile for the femur, and then compared that profile to the DNA profile of McEachin\u2019s daughter. The daughter\u2019s DNA profile had been completed by an analyst at the Federal Bureau of Investigation (FBI) and provided to Gross. Gross identified the DNA types in common between the two samples and testified that it was \u201c42,000 times more likely to observe th[e common] genetic information if [the daughter] was the true biological daughter [of the victim] as compared to an untested random woman from the population.\u201d The bulk of Ms. Gross\u2019s testimony thus went to identification of the body as McEachin\u2019s.\n{19} Bas testified that he obtained a blood sample from McEachin\u2019s daughter that was then forwarded to the FBI for analysis. Bas\u2019s testimony went to a portion of the chain of events that led to the daughter\u2019s sample being analyzed by the FBI and then compared to the profile of the body by Gross, thus leading to identification of the body as McEachin\u2019s.\n{20} There is no reasonable possibility that Bas\u2019s testimony had the evidentiary importance to impact Defendant\u2019s conviction. Bas testified only about how he collected blood from McEachin\u2019s daughter and sent it to the Albuquerque field office of the FBI. At the hearing on the State\u2019s motion to permit video testimony, Defendant stipulated that Bas\u2019s testimony only established a chain of custody of the daughter\u2019s sample and, on appeal, Defendant does not address how he was prejudiced by Bas\u2019s testimony at all. In the context of this case and in light of the totality of the circumstances surrounding the testimony, we conclude that Bas\u2019s testimony by video was harmless.\n{21} The same is not true of the testimony by forensic scientists Pearn and Gross. The State argues that their testimony was harmless for two reasons. It first argues that because Defendant had an opportunity to cross-examine the witnesses, the use of video had \u201conly a marginal impact on his right of confrontation.\u201d It contends secondly that the video testimony was \u201crelatively] insignifican[t]... in comparison to the overall evidence of guilt.\u201d Despite these efforts to minimize the role of the video testimony in the State\u2019s case, we conclude that the video testimony was critical to identification of the body and association of Defendant with the body, both of which were essential to the State\u2019s case. Hence, there is no reasonable possibility that this evidence did not contribute to Defendant\u2019s conviction. See id. \u00b6 45.\n{22} In its first contention, the State argues that \u201cDefendant had the ability to cross-examine all of the witnesses appearing by video conference in full view of the jury such that there was only a marginal impact on his right of confrontation.\u201d Cf. State v. Lopez, 1996-NMCA-101, \u00b6 14, 122 N.M. 459, 926 P.2d 784 (\u201cThe right to cross-examination is viewed as the most important element of the right of confrontation.\u201d). The State argues that Defendant\u2019s limited cross-examination of the witnesses \u201cshow[s] that the video testimony had no impact on the trial or the jury\u2019s verdict.\u201d Although a defendant\u2019s cross-examination of witnesses may be considered in assessing the role of evidence at trial, whether and how Defendant cross-examined the witnesses is not dispositive of the ultimate question of harmlessness because that analysis focuses on whether the evidence affected the verdict, not how Defendant responded to it. See State v. Serna, 2013-NMSC-033, \u00b6 25, 305 P.3d 936 (discussing the defendant\u2019s cross-examination as part of the assessment of the amount of emphasis placed on erroneously admitted evidence); Tollardo, 2012-NMSC-008, \u00b6 42 (\u201c[T]he central inquiry of [the harmless error analysis is] whether an error was likely to have affected the jury\u2019s verdict.\u201d). Because the State\u2019s argument shifts the focus away from this central inquiry, we are unpersuaded. Thus, we turn to the State\u2019s contentions as to the role of Pearn\u2019s and Gross\u2019s testimony at the trial and its impact on the jury.\n{23} The State\u2019s second argument is that Gross\u2019s and Pearn\u2019s testimony was insignificant in comparison to the overall evidence of guilt. Specifically, it argues that (1) the video testimony as to identity was duplicative of other evidence and therefore insignificant, and (2) the video testimony tying Defendant to the body was of \u201cminor significance\u201d compared to evidence of \u201cthe victim\u2019s blood on the carpet in Defendant\u2019s bedroom,\u201d which was established through in-person testimony. We address these arguments in turn.\n{24} We disagree that the video testimony as to identity was duplicative and therefore harmless for two reasons. First, the video testimony was not merely cumulative of other evidence. Although in-person testimony by McEachin\u2019s friends described her physical features, and the jury could infer from other in-person testimony that those features matched the body, the State nevertheless devoted a substantial amount of time presenting DNA evidence to establish identity. Three different analyses were conducted to do so: Pearn developed a profile using DNA from shoes belonging to McEachin, Gross developed a profile from a femur of the body and compared it to McEachin\u2019s daughter\u2019s profile, and a third witness, testifying in person, compared the Pearn and Gross profiles and found that they matched. The State\u2019s attempt to minimize the importance of the DNA evidence is belied by the amount of time and effort the State took to present the DNA evidence and the emphasis placed on it. Indeed, the State itself described the body\u2019s characteristics as less probative than the DNA evidence in its opening argument. We cannot conclude that the video testimony did not have an impact on the verdict simply because there was also in-person testimony on the identity of the body. Second, even if the video testimony was cumulative, \u201cimproperly admitted evidence that is cumulative is not ipso facto harmless beyond a reasonable doubt.\u201d Tollardo, 2012-NMSC-008, \u00b6 43 (footnote, internal quotation marks, and citation omitted). Rather, even cumulative evidence may be harmful if it had an impact on the jury\u2019s verdict.\n{25} To the extent the State also argues that Defendant did not contest that the body was McEachin\u2019s and therefore any improperly admitted testimony on that issue was harmless, we disagree. We note first that at trial, the State acknowledged that Defendant \u201cdisputed] that it\u2019s even . . . McEachin\u2019s body}.]\u201d In any case, whether Defendant disputed this fact is not conclusive of whether the testimony is harmless. In State v. Sisneros, our Supreme Court addressed a similar argument and held that erroneous admission of a forensic pathologist\u2019s testimony as to the cause of death was harmless because \u201cthe cause and manner of death were never in dispute, only the identity of the shooter.\u201d 2013-NMSC-049, \u00b6 33, 314 P.3d 665. The premise underlying that holding is that there was nothing about the cause and manner of death that pointed to the defendant as the shooter. That premise does not apply here. In this case, Defendant did not contest that he knew McEachin and that she had lived with him briefly. Rather, he maintained in his statement to officers that she left his apartment and never returned. Thus, the identification of the body as McEachin\u2019s, coupled with the fact that McEachin had lived with Defendant until shortly before the body was found, implicated Defendant. This argument is unavailing.\n{26} In its final argument, the State maintains that Pearn\u2019s testimony about the DNA found on the jeans \u201cheld only minor significance in tying Defendant to the scene where the body had been hidden\u201d and that because the material \u2014 presumed to be blood \u2014 found in Defendant\u2019s apartment was \u201cthe most damning physical evidence^]\u201d the testimony about the jeans paled in comparison. As discussed, however, Defendant never denied that McEachin had lived with him and argued at trial that McEachin\u2019s DNA could have gotten on the carpet any number of ways during that time. In this context, the DNA on the carpet merely showed that McEachin had been in the apartment. Because Defendant did not dispute this fact, evidence tying Defendant to the body in the alley was critical to the State\u2019s case. We are unpersuaded by the State\u2019s characterization of the video testimony about the jeans in comparison to the DNA found on the carpet.\n{27} Finally, the centrality of DNA evidence, including the video testimony, to the State\u2019s case is also evident in the State\u2019s opening and closing arguments. In its opening, the State referred to the jeans as \u201c[Defendant\u2019s] jeans\u201d and stated they were \u201c[o]ne of the most important pieces of the evidence ... at th[e] scene[.]\u201d It described the DNA testing as determinative that the jeans were Defendant\u2019s. It stated that Defendant \u201cput his jeans, evidence of the murder\u201d near the body. The State discussed the DNA testing of the femur from the body and McEachin\u2019s daughter, stating that the physical characteristics of the body did not allow the police to be \u201cabsolutely certain\u201d ofthe identity of the body. In closing argument, the State referred to DNA evidence at least four times and devoted a substantial portion of its rebuttal argument to the jeans and DNA evidence related to them, referring to the jeans as \u201cthe one piece of evidence that could tie [Defendant] to th[e] body[.]\u201d Based on the role Gross\u2019s and Pearn\u2019s testimony played in the State\u2019s case, we conclude that there is no reasonable possibility that the DNA evidence they presented did not contribute, to Defendant\u2019s conviction. See Leyba, 2012-NMSC-037, \u00b6 30 (stating that the use of the victim\u2019s diary at trial was not harmless where \u201c[b]oth its placement and the repetitive manner in which the [s]tate referred to the diary during closing argument^ strongly suggest how useful it was to the [s]tate. As any good trial lawyer knows, a jury is most likely to remember the first and last things heard before retiring\u201d).\n{28} We turn next to the question, of whether Labance\u2019s testimony was harmless. Labance testified as to the nature of Defendant\u2019s relationship with McEachin, as well as how and when they met. She testified that she had sent Defendant a blue air mattress in early 2008, as well as a set of sheets, a blanket, and other household goods. She authenticated a receipt for those items that she had sent to a detective, which was admitted into evidence. The detective used the authenticated receipt to purchase an air mattress of the same model, a photo of which was also admitted into evidence. During trial, a photo of the air mattress found with the body was compared to the photo of the purchased air mattress. Labance also authenticated letters Defendant had sent her, which were then admitted into evidence. A detective later read the letters during his testimony. In one letter, Defendant acknowledged receipt of the air mattress and stated that he loved McEachin. In another, dated a little more than a week before the body was found, Defendant wrote that McEachin was \u201cheaded to El Paso a few weeks ago\u201d and that she was going on to Juarez. Finally, Labance testified that Defendant told her he had given the air mattress away.\n{29} The State concedes on appeal that it was \u201csignificant that Defendant\u2019s ... air mattress and sheets [] were not only at the scene but wrapped around the victim.\u201d In its motion for video testimony, the State acknowledged that Labance\u2019s testimony was important not only to authenticate the receipt for the air mattress, sheets, and letters from him acknowledging receipt of those items, but also to establishDefendant\u2019s relationship with McEachin. Labance\u2019s testimony provided evidence that Defendant had owned a blue air mattress, as well as details about the air mattress that matched the one found with the body. In addition, her authentication of Defendant\u2019s letters allowed the State to use Defendant\u2019s own statements against him. Labance\u2019s testimony thus established a link between Defendant, the air mattress, and the body. Although the State argues that the documents could have been authenticated another way, the State chose to rely on Labance to get the documents admitted. Having made that choice, the State cannot now argue, simply because there was another method for admission of the documents, that the jury did not rely on Labance\u2019s testimony to convict Defendant. We conclude that Labance\u2019s testimony played a key role in the State\u2019s case and that the State has failed to demonstrate that Labance\u2019s testimony was harmless.\nII. SUFFICIENCY OF THE EVIDENCE\n{30} We next examine whether the evidence was sufficient to convict Defendant for second degree murder and tampering with evidence both because Defendant asserts the evidence was insufficient and because this Court must address sufficiency in order to determine whether retrial would offend principles of double jeopardy. See State v. Cabezuela, 2011-NMSC-041, \u00b6 47, 150 N.M. 654, 265 P.3d 705 (\u201cBecause we find that there was sufficient evidence to convict [the djefendant, . . . retrial is not barred by double jeopardy implications.\u201d).\n{31} In a review of the sufficiency of the evidence, \u201cwe [first] view the evidence in the light most favorable to the verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.\u201d State v. Armendariz-Nunez, 2012-NMCA-041, \u00b6 16, 276 P.3d 963, cert. denied, 2012-NMCERT-003, 293 P.3d 183. We \u201cthen . . . make a legal determination of whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.\u201d Id. (internal quotation marks and citation omitted). \u201cThe reviewing court does not weigh the evidence or substitute its judgment for that of the fact finder as long as there is sufficient evidence to support the verdict.\u201d State v. Mora, 1997-NMSC-060, \u00b6 27, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, \u00b6 17, 148 N.M. 381, 237 P.3d 683. Defendant bears the burden of \u201cidentifying] with particularity the fact or facts that are not supported by substantial evidence\u201d on appeal. Rule 12-213 (A)(4) NMRA.\n{32} In an apparent attempt to reframe the standard of review, Defendant\u2019s only argument on appeal relies on State v. Malouff, a 1970 case in which this Court held that \u201cwhen circumstances alone are relied upon, they must point unerringly to [the] defendants and be incompatible with and exclude every reasonable hypothesis other than guilt.\u201d 1970-NMCA-069, \u00b6 3, 81 N.M. 619, 471 P.2d 189. Defendant\u2019s argument rests entirely on the premise that the State\u2019s case, being based on circumstantial evidence, failed to \u201cexclude every reasonable hypothesis other than guilt.\u201d Id. But the standard stated in Malouff was expressly repudiated by our Supreme Court in State v. Brown. See 1984-NMSC-014, \u00b6 7, 100 N.M. 726, 676 P.2d 253 (stating that \u201cthe traditional distinctions between direct and circumstantial evidence have been abolished\u201d and that \u201c[t]he. only test recognized by [our Supreme] Court to test the sufficiency of evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction\u201d); see also State v. Garcia, 2005-NMSC-017, \u00b6\u00b6 18, 19, 138 N.M. 1, 116 P.3d 72 (stating that \u201cAfter Brown, . . . the proposition that substantial evidence in support of a conviction must be inconsistent with any reasonable hypothesis of innocence\u201d is no longer the standard in New Mexico). Defendant\u2019s reliance on Malouff is, therefore, unavailing.\n{33} Here, the State was required to prove that\n1. [Defendant killed McEachin;\n2. [Defendant knew that his acts created a strong probability of death or great bodily harm to . . . McEachin or any other human being;\n3. [Defendant did not act as a result of sufficient provocation;\n4. This happened in New Mexico on or between the 23rd day of April and the 14th day of May, 2008.\nSee UJI 14-210 NMRA. Other than asserting that circumstantial evidence is insufficient to support the verdict, Defendant makes no argument identifying which facts lack sufficient evidence. Although we generally do not address undeveloped arguments, we do so here in order to ascertain whether Defendant may be retried on remand. See Cabezuela, 2011-NMSC-041, \u00b6 40.\n{34} Here, the jury heard testimony that McEachin and Defendant lived together until a few weeks before the body was discovered and that they shared an intimate relationship. Testimony by detectives established that the body was found in an alley 500 feet from Defendant\u2019s apartment, wrapped in a blue air mattress and sheets, covered with another mattress. Defendant\u2019s mother testified that she had sent him a blue air mattress and sheet set as a gift. The jury saw photographs and heard testimony that grid marks on the air mattress looked like the grid of a shopping cart and that there was a shopping cart at the scene. They also heard testimony that Defendant had shopping carts in his apartment. They heard testimony that a pair of jeans with DNA on it \u2014 for which Defendant could not be ruled out as the source \u2014 was found near the body. A forensic scientist testified that McEachin\u2019s blood was found on the carpet in Defendant\u2019s apartment. There was also testimony that the cause of death was \u201cmultiple blunt force injuries ... [to t]he head and chest area\u201d and that Defendant gave two different explanations for why he no longer had the air mattress his mother sent him. Viewed in the light most favorable to the verdict and indulging all reasonable inferences in favor of conviction, this evidence was sufficient to permit the jury to find Defendant guilty of second degree murder.\n{35} We turn to the charge of tampering with evidence. \u201cTampering 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 State v. Silva, 2008-NMSC-051, \u00b6 18, 144 N.M. 815, 192 P.3d 1192, holding modified by State v. Guerra, 2012-NMSC-027, \u00b6\u00b6 12-14,284P.3d 1076 (internal quotation marks and citation omitted); see NMSA 1978, \u00a7 30-22-5(A) (2003). The State was required to prove that\n1. [Defendant destroyed and/or changed and/or hid and/or fabricated and/or placed clothing belonging to himself and[/]or . . . Mc[E]achin and/or the body of . . . Mc[E]achin and/or her suitcases, her laptop, her printer, her pursef;]\n2. [By doing so, Defendant intended to prevent the apprehension, prosecution[,] or conviction of himself;\n3. This happened in New Mexico on or between the 23rd day of April and the 14th day of May, 2008.\nSee UJI 14-2241 NMR.A. The State concedes that it did not present direct evidence or evidence of \u201can overt act with respect to\u201d McEachin\u2019s suitcase, purse, laptop, or printer. Nevertheless, any lack of evidence regarding McEachin\u2019s belongings does not require reversal here because there was sufficient evidence to support one or more of the other alternative bases for conviction. See State v. Olguin, 1995-NMSC-077, \u00b6 2, 120 N.M. 740, 906 P.2d 731 (\u201c[D]ue process does not require a guilty verdict to be set aside if an alternative basis of conviction is only factually inadequate to support a conviction.\u201d).\n{36} In addition to tampering with McEachin\u2019s laptop, printer, purse, or suitcase, the jury instruction permitted conviction on the basis of tampering with Defendant\u2019s own clothing, the victim\u2019s clothing, or the victim\u2019s body. The jury could infer that Defendant placed the victim\u2019s body in the alley from the testimony that Defendant owned a blue air mattress and sheets, that the body was found wrapped in a blue air mattress and sheets, that clothes bearing his DNA were found with the body, and that the alley was approximately 500 feet from his apartment. In addition, there was testimony that a mattress was placed over the body in the alley. Although Defendant argues that this evidence is \u201conly\u201d circumstantial, New Mexico does not recognize a distinction between direct or circumstantial evidence, as previously discussed. We conclude that the evidence presented, viewed in the light most favorable to the verdict, was sufficient to permit the jury to infer that Defendant intended to \u201cprevent [his] apprehension, prosecution, or conviction\u201d by covering and placing the body in the alley. UJI 14-2241.\n{37} In conclusion, there was sufficient evidence to support Defendant\u2019s convictions for second degree murder and tampering with evidence.\nIII. CONCLUSION\n{38} Having concluded that video testimony by Peam, Gross, and Labance was admitted in error and that this error was not harmless, we reverse Defendant\u2019s convictions. In addition, since the evidence was sufficient for conviction of both second degree murder and tampering, we remand for a new trial. We need not address Defendant\u2019s other allegations of error in the admission of evidence.\n{39} IT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nWE CONCUR:\nMICHAEL E. VIGIL, Judge\nTIMOTHY L. GARCIA, Judge\nThe State requests that this Court reconsider its holding in Smith that two-way \u201cvideo testimony does not itself \u2018satisfy\u2019 the requirements of the [confrontation clause].\u201d Id. \u00b6 7. We decline to do so.", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [], "corrections": "", "head_matter": "Certiorari Denied, June 17, 2014,\nNo. 34,690\nDocket No. 32,451\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-066\nFiling Date: March 17, 2014\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. BRUCE SCHWARTZ, Defendant-Appellant." }, "file_name": "0212-01", "first_page_order": 228, "last_page_order": 239 }