{ "id": 4362946, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. MATTHEW SANCHEZ, Defendant-Appellant", "name_abbreviation": "State v. Sanchez", "decision_date": "2015-06-11", "docket_number": "No. 35,283; Docket No. 32,664", "first_page": "307", "last_page": "315", "citations": [ { "type": "official", "cite": "2015-NMCA-077" } ], "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": "113 N.M. 780", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723308 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/113/0780-01" ] }, { "cite": "1992-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "315 P.3d 343", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-007", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4077792 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 4" }, { "page": "\u00b6\u00b6 4, 7" }, { "page": "\u00b6\u00b6 8, 13" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0248-01" ] }, { "cite": "2012-NMCA-089", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4189115 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0417-01" ] }, { "cite": "107 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597058 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/107/0126-01" ] }, { "cite": "1988-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0 }, { "cite": "321 P.3d 127", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCERT-012", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "315 P.3d 319", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-004", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4077522 ], "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0217-01" ] }, { "cite": "86 N.M. 627", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2825152 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0627-01" ] }, { "cite": "1974-NMCA-092", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0 }, { "cite": "2010-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246955 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 20" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0452-01" ] }, { "cite": "2001-NMCA-034", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352659 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 41" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0358-01" ] }, { "cite": "2011-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248753 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0185-01" ] }, { "cite": "2006-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670050 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0094-01" ] }, { "cite": "103 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711335 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0655-01" ] }, { "cite": "1985-NMCA-029", "category": "reporters:neutral", "reporter": "NMCA", "opinion_index": 0 }, { "cite": "78 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324373 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0127-01" ] }, { "cite": "1967-NMSC-151", "category": "reporters:neutral", "reporter": "NMSC", "opinion_index": 0 }, { "cite": "284 P.3d 410", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-084", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4189818 ], "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0350-01" ] }, { "cite": "2008-NMSC-060", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243435 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0220-01" ] }, { "cite": "335 U.S. 469", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159942 ], "year": 1948, "pin_cites": [ { "parenthetical": "upholding cross-examination inquiry of character witnesses regarding awareness of the defendant's prior conviction and the defendant's separate prior arrest" } ], "opinion_index": 0, "case_paths": [ "/us/335/0469-01" ] }, { "cite": "615 P.2d 263", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2127217, 1573215 ], "opinion_index": 0, "case_paths": [ "/or-app/47/0871-01", "/nm/94/0648-01" ] }, { "cite": "94 N.M. 648", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573215 ], "opinion_index": 0, "case_paths": [ "/nm/94/0648-01" ] }, { "cite": "1980-NMSC-085", "category": "reporters:neutral", "reporter": "NMSC", "weight": 3, "pin_cites": [ { "page": "\u00b6 16-17" }, { "page": "\u00b6 11" } ], "opinion_index": 0 }, { "cite": "2001-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183108 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0368-01" ] } ], "analysis": { "cardinality": 1023, "char_count": 26038, "ocr_confidence": 0.74, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.3028910179705458 }, "sha256": "1b11b954b861eb1508c4616d3a8aca470ac04d3eff73238db142d1ed9fbdd4df", "simhash": "1:8b721e32de4f04a9", "word_count": 4082 }, "last_updated": "2023-07-14T20:13:54.428467+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "J. MILES HANISEE, Judge", "WE CONCUR:", "MICHAEL E. VIGIL, Chief Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. MATTHEW SANCHEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHANISEE, Judge.\n{1} Convicted ofmurder in the second degree and third-degree tampering with evidence, Defendant Matthew Sanchez asserts three points of appeal: (1) the district court committed reversible error by allowing the State to question a witness regarding a prior act of Defendant that led to an unrelated assault charge, (2) insufficient evidence existed to support his conviction for tampering with evidence, and (3) the district court\u2019s entry of conviction for third-degree tampering with evidence constituted fundamental error. We determine that Defendant\u2019s own areas of trial inquiry permitted the State, as allowed and limited by the district court, to inquire regarding the witness\u2019s awareness of the prior act. We also hold that Defendant\u2019s conviction for third-degree tampering with evidence was supported by sufficient trial evidence and was properly adjudicated. Accordingly, we affirm.\nBACKGROUND\n{2} On September 10, 2011, Defendant fatally stabbed his friend Tupac Amaru Leyba (Victim) in the chest and later threw the weapon from his car window as he departed the scene of the stabbing. The knife was never recovered. At trial, Defendant testified and admitted that he stabbed Victim and lied to the police when interviewed following the fatal event. However, he maintained that he acted exclusively in self-defense.\n{3} During cross-examination of a State\u2019s witness (Witness), defense counsel asked if Witness remembered stating at a preliminary examination that Defendant \u201cwas a very nice guy, that he\u2019s very quiet and that he never really talked, that he was just a nice guy.\u201d When Witness indicated that she did recall making that statement, defense counsel went on to inquire of Witness whether Victim had enemies, what if any alcohol or other mood-altering substances had been consumed that night, and whether Victim habitually carried a weapon. After this exchange, the State notified the court that it intended to offer rebuttal evidence regarding Witness\u2019s opinion of Defendant\u2019s demeanor and character. Despite the State\u2019s warning, defense counsel further questioned Witness if she had ever seen Defendant \u201cbecome aggressive in any way toward [Victim.]\u201d Witness stated that she had not.\n{4} Following this testimony, the State sought to rebut what it perceived to be the presentation of character evidence by Defendant. It argued that by eliciting opinion testimony from Witness regarding her impressions of Defendant\u2019s peaceable demeanor, defense counsel had opened the door to inquiry concerning three separate incidents that bore the potential capacity to change Witness\u2019s positive opinion of Defendant. The events consisted ofDefendant: (1) discharging a gun over the heads of his family members, (2) threatening to kill a man over a debt, and (3) ramming a law enforcement vehicle and fleeing from police. Defense counsel objected, arguing that his queries had not opened the door to the State\u2019s desired topics of rebuttal and that admission of such prior act evidence would unfairly prejudice Defendant.\n{5} After pointing out that it was defense counsel\u2019s questioning that elicited the pertinent character trait ofDefendant being a \u201ccalm and very nice guy\u201d and recognizing the State\u2019s opportunity to \u201cpresent evidence of something other than that[,]\u201d the district court conducted an inquiry designed to determine whether the specific events of which the State proposed to question Witness were properly admissible. Although it initially ruled that admitting questions regarding the three prior incidents would cause undue delay and confusion of issues for the jury, after conducting its own research, the district court determined that Rule 11-404(A) NMRA, governing the admissibility of character evidence offered by a defendant and rebutted by the State, controlled the inquiry. Pursuant to the rule, the court permitted the State to question Witness regarding her awareness of one prior event in order to rebut the character trait placed at issue by Defendant.\n{6} Although the court found each of the State\u2019s three desired topics of rebuttal inquiry to be supported by good faith, it nonetheless disallowed inquiry regarding the second and third events on the basis that both had been initially charged but were later dismissed by the State. Noting that Defendant was then separately indicted for the crime of aggravated assault with a deadly weapon, the district court announced its intention to allow the State to question Witness regarding any awareness she possessed of Defendant having discharged a firearm over the heads of his family members. It further ruled that upon any such inquiry, Defendant would be entitled to a limiting instruction regarding the jury\u2019s use of that evidence. The parties submitted proposed versions of the question to be asked of Witness regarding the shooting incident, and based again on its research the court chose to allow a \u201cmodified ... proposal of the State[.]\u201d The question presented to Witness, in relevant part, was as follows: \u201cWere you aware that . . . Defendant had been accused of aggravated assault with a deadly weapon for going to the property of an individual not associated with this case and shooting a gun five to six times?\u201d When Witness declared herself to be unaware of the incident, the State asked: \u201cIf you were aware of that. . ., would your opinion have changed?\u201d Witness responded affirmatively.\n{7} Immediately thereafter, the district court verbally provided the jury with a previously agreed to limiting instruction, stating that it had \u201callowed questions by the prosecution to test the opinion previously expressed by this witness to the effect that. . . Defendant... is a calm and very nice person\u201d and that the questions asked were \u201cnot in and of themselves evidence that the matters which form the basis of the questions did, in fact, occur and [the jury] must not consider these questions for any purpose other than the right of the prosecution to test an opinion of a witness as to an asserted characteristic of . . . Defendant.\u201d The instruction was repeated and twice reiterated by the court prior to closing arguments and included within the printed instructions given to the jury prior to deliberation. The jury convicted Defendant of third-degree tampering with evidence and second-degree murder, and Defendant appeals.\nA. The District Court Properly Admitted Rebuttal Character Evidence\n{8} Defendant contends that the district court committed reversible error in allowing the State \u201cto ask a question which recited unproven facts of an unrelated aggravated assault case against [Defendant].\u201d Defendant specifically argues that the State\u2019s \u201cnaked assertion\u201d of the occurrence of a separate shooting incident was highly prejudicial. He additionally appears to challenge allowance of the question on grounds that it violated the general prohibition on prior acts evidence.\n{9} Rule 11-404(A) governs both the allowance and limitation of character evidence. See id. It states that \u201c[e]vidence of a person\u2019s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.\u201d Rule 11-404(A)(1). However, an exception to this prohibition exists in criminal cases, permitting \u201ca defendant to \u201coffer evidence of the defendant\u2019s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it[.]\u201d Rule 1 l-404(A)(2)(a). Moreover, \u201c[o]n cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person\u2019s conduct.\u201d Rule 11-405(A) NMRA. We review the admission of evidence during trial for an abuse of discretion and will not disturb a district court\u2019s ruling \u201cabsent a clear abuse of that discretion.\u201d State v. Stanley, 2001-NMSC-037, \u00b6 5, 131 N.M. 368, 37 P.3d 85.\n{10} We first emphasize that Defendant fails to provide any analysis or discussion of Rule 11-404, or Rule 11-405, whatsoever in his briefing. Moreover, Defendant does not appear to challenge whether his questioning of Witness during cross-examination was directed toward the establishment of his peaceable nature. Instead, Defendant relies exclusively on a single case, State v. Christopher, 1980-NMSC-085, 94 N.M. 648, 615 P.2d 263, in which our Supreme Court considered the propriety of the state\u2019s cross-examination of character witnesses regarding their knowledge of the defendant\u2019s criminal convictions twenty-three years earlier, as well as a separate and more recent allegation of spousal assault. Id. \u00b6 2.\n{11} First addressing the prior convictions, our Supreme Court adopted the reasoning of Michelson v. United States, 335 U.S. 469 (1948) (upholding cross-examination inquiry of character witnesses regarding awareness of the defendant\u2019s prior conviction and the defendant\u2019s separate prior arrest), and determined that the district court erred in allowing testimony regarding the prior convictions because: (1) the district court failed to conduct an inquiry into whether the past events had occurred; (2) \u201cnone of the witnesses had known the [defendant] for more than six years\u201d; (3) the district court did not provide the jury with a limiting instruction; (4) \u201cthe defendant offered no evidence of specific prior acts\u201d[;] and (5) defense counsel objected to the state\u2019s inquiry. Christopher, 1980-NMSC-085, \u00b6 16-17. Separately, the Court considered the propriety of the state\u2019s inquiry into the alleged spousal assault and once more determined that the district court erred, in part, because the abuse claim was supported by nothing more than the wife\u2019s allegation; further, the district court neglected to separately assess the veracity of the state\u2019s desired questions. Id. \u00b6\u00b6 21-23. Again, the Court emphasized the district court\u2019s failure to instruct the jury as to the limited purpose of the state\u2019s questioning. Id. \u00b6 25.\n{12} Defendant applies the Michelson factors, adopted in Christopher, and asks us to reverse on these grounds. However, Christopher and its analysis of the Michelson factors are distinguishable. First, we note that in spite of Defendant\u2019s reliance on the Michelson factors, our Supreme Court adopted that reasoning specifically with regard to the prior convictions at issue in Christopher. 1980-NMSC-085, \u00b6 11. Here, whether or not Defendant had prior convictions was not at issue, nor was the admissibility of any such evidence. Furthermore, unlike the circumstances surrounding the alleged spousal assault in Christopher, the district court here carefully assessed the veracity of the events upon which the State sought to question Witness and ultimately found only the shooting incident, for which Defendant\u2019s indictment by a grand jury was then pending, to be an appropriate avenue of rebuttive inquiry. In so ruling, the district court rejected two of the prior acts that the State maintained to be appropriate instances to rebut the implication of peaceableness provided to the jury during Witness\u2019s cross-examination by Defendant. Thus, the district court only allowed that which fit within the plain language of the rule and bore independent indicia of reliability pursuant to the independent charging process. Most critically, the court was repetitiously diligent in ensuring that the jury was aware of the limited purpose of the State\u2019s questioning. Not only did it provide an immediate verbal limiting instruction following Witness\u2019s responsive testimony, but it again verbally admonished the jury as to its limited ability to consider the testimony twice before closing arguments and again within the jury instruction packet. For these reasons, we conclude that Christopher, and its application of the Michelson factors, is distinguishable. -\n{13} Apart from Christopher, we reiterate that while Rule 11-404(A) prohibits the admission of evidence of a person\u2019s character trait \u201cto prove that on a particular occasion the person acted in accordance with the character or trait[,]\u201d it does allow a defendant to offer evidence of his or her own pertinent trait. Rule 11 -404(A)(1), (A)(2)(a). Defendant, through his questioning of Witness, elicited evidence of his nice, quiet, and non-aggressive nature, going so far as to refresh Witness\u2019s recollection of her own prior testimony. Under Rule 11-404(A)(2)(a), such evidence is subject to rebuttal by the State. See State v. Martinez, 2008-NMSC-060, \u00b6 24, 145 N.M. 220, 195 P.3d 1232 (stating that when a defendant offers evidence of his or her own good character, the defendant opens the door to the state\u2019s ability to question witnesses about \u201ctheir awareness of information inconsistent with good character\u201d). And while evidence of a person\u2019s character or character trait is typically only permitted to be proven by reputation or opinion testimony, pursuant to Rule 11-405(A) \u201cspecific instances of the person\u2019s conduct\u201d are permitted on cross-examination of a character witness. Evidence allowed by both rules was precisely the nature of that which was made available to the jury during Defendant\u2019s trial.\n{14} Although we recognize that Witness was the State\u2019s witness, and the State was not cross-examining Witness, but redirecting, Defendant has not asserted the inapplicability of Rule 11-404(A) or Rule 11-405 on appeal, and like the district court before us, we note that this is a \u201cparallel\u201d situation where the State was essentially \u201ccross-examining [Witness] on redirect and [seeking] to bring up\u201d matters already raised by Defendant. As Defendant has cited no authority on this factual nuance, we may assume none exists. State v. Godoy, 2012-NMCA-084, \u00b6 5, 284 P.3d 410 (\u201cWhere a party cites no authority to support an argument, we may assume no such authority exists.\u201d). Thus, based on the distinguishable characteristics of Christopher and our interpretation of the directly applicable provisions of Rule 11-404(A)(2)(a) and Rule 11-405(A), we conclude that the limited inquiry allowed by the district court coupled with its repeated cautionary instructions did not amount to an abuse of discretion, and we affirm Defendant\u2019s conviction for second-degree murder.\nB. The Evidence was Sufficient to Support Defendant\u2019s Conviction for Tampering with Evidence\n{15} Defendant challenges the sufficiency of the evidence against him for tampering with evidence pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1. Defendant argues that \u201ca reasonable jury should have found him not guilty\u201d due to the conflicting evidence presented at trial. Defendant maintains that \u201cthe clear weight of the evidence}] shows that he did not intend to mislead investigators when he disposed of the knife.\u201d The State responds that the evidence is for the jury to weigh, and the \u201cjury may draw its own conclusions about Defendant\u2019s intent based upon [the] overt action of throwing the knife out the [car] window as he drove away\u201d from the crime scene. We conclude that there was sufficient evidence presented to the jury to support Defendant\u2019s conviction for tampering with evidence.\n{16} \u201cThe test for sufficiency of the 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 State v. Duran, 2006-NMSC-035, \u00b6 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). We review the evidence in the \u201clight 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. Garcia, 2011-NMSC-003, \u00b6 5, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation omitted). In our capacity as a reviewing court, we do not share the original ability of the jury to view the evidence and witnesses firsthand; therefore, we defer to the jury\u2019s findings. Id. We will not \u201creweigh the evidence or attempt to draw alternative inferences from the evidence.\u201d State v. Estrada, 2001-NMCA-034, \u00b6 41, 130 N.M. 358, 24 P.3d 793.\n{17} Our Legislature has defined the elements of tampering with evidence to be: (1) \u201cdestroying, changing, hiding, placing or fabricating any physical evidence},]\u201d (2) \u201cwith intent to prevent the apprehension, prosecution or conviction of any person},] or to throw suspicion of the commission of a crime upon another.\u201d NMSA 1978, \u00a7 30-22-5(A) (2003). Because tampering with evidence is a specific intent crime, conviction requires that the State present sufficient evidence to allow a jury to infer both an overt act and the defendant\u2019s subjective, specific intent. State v. Jackson, 2010-NMSC-032, \u00b6 11, 148 N.M. 452, 237 P.3d 754. However, \u201c[wjhen there is no other evidence of the specific intent of the defendant to disrupt the police investigation, intent is often inferred from an overt act of the defendant.\u201d Duran, 2006-NMSC-035, \u00b6 14.\n{18} In this case, Defendant testified that after he stabbed Victim with a knife, he \u201cjumped ... in the car and . . . took off real fast\u201d because he was scared and \u201cjust freaked out.\u201d He stated that he then \u201cthrew the knife out and . . . noticed [his phone] charger was hanging out.\u201d At this point, Defendantrealized he had dropped his phone, further deduced its possible presence at the scene of the stabbing, and reversed direction to retrieve it. Upon arriving and observing that Victim remained where he had been stabbed, Defendant left. He explained to the jury that he did not want Victim to \u201cstart another conflict.\u201d When asked why he discarded the knife, Defendant stated that it \u201cwas [his] first reaction. [He] wanted to get it away\u201d as he \u201cjust freaked out.\u201d He contended that his purpose in discarding the knife was not to avoid being implicated in the crime.\n{19} Defendant\u2019s testimony describing having thrown the knife from his vehicle satisfies the first element of tampering insofar as his act removed or concealed an item of evidence. See \u00a7 30-22-5(A). Although Defendant contends that \u201cthe evidence suggests [] a reasonable doubt . . . that [he] was guilty of tampering with evidence and that a reasonable jury should have found him not guilty,\u201d it is the role of the jury to weigh the credibility of a witness. State v. Santillanes, 1974-NMCA-092, \u00b6 2, 86 N.M. 627, 526 P.2d 424. \u201cThe fact finder can choose to believe the [s]tate\u2019s testimony and disbelieve [the defendant's version of events.\u201d State v. Fierro, 2014-NMCA-004, 40, 315 P.3d 319, cert. denied, 2013-NMCERT-012, 321 P.3d 127. There is sufficient evidence in the record to support Defendant\u2019s conviction for tampering with evidence; therefore we affirm the conviction. State v. Sutphin, 1988-NMSC-031, \u00b6 21, 107 N.M. 126, 753 P.2d 1314 (\u201cWhere ... a jury verdict in a criminal case is supported by substantial evidence, the verdict will not be disturbed on appeal.\u201d).\nC, Entry of Conviction for Third-Degree Tampering Did Not Constitute Fundamental Error\n{20} Based on Defendant\u2019s act discarding the knife used to kill Victim, he was charged with third-degree tampering with evidence, which forbids tampering with evidence relating to a capital crime or of a first-or second-degree felony. Section 30-22-5(A), (B)(1). At trial, the jury was instructed that in order to find Defendant guilty of tampering with evidence, Defendant must have \u201chid or placed the knife\u201d used to stab Victim in order to prevent his apprehension or prosecution. The jury was not, however, instructed that the evidence must have related to a second-degree felony. Therefore, Defendant argues that he was improperly convicted of third-degree tampering because the State\u2019s tampering instruction failed to ensure the jury\u2019s determination that Defendant intended to prevent his conviction related to a particular crime. Absent such a finding, Defendant argues that his sentence for third-degree tampering with evidence violated his Sixth Amendment constitutional rights.\n{21} We typically review this constitutional issue de novo. State v. Alvarado, 2012-NMCA-089, \u00b6 5, __ P.3d __. However, as Defendant concedes that this issue was not properly preserved, we review solely for fundamental error. State v. Herrera, 2014-NMCA-007, \u00b6 4, 315 P.3d 343. \u201cThe rule of fundamental error applies only if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or if substantial justice has not been done.\u201d State v. Orosco, 1992-NMSC-006, \u00b6 12, 113 N.M. 780, 833 P.2d 1146.\n{22} As we have stated, tampering with evidence is, in relevant part, \u201cdestroying, changing, hiding, placing or fabricating any physical evidence with intent to prevent the apprehension, prosecution or conviction of any person[.]\u201d Section 30-22-5(A). \u201cSection (B) [of the statute] establishes levels of punishment depending on the degree of crime for which tampering with evidence is committed.\u201d Jackson, 2010-NMSC-032, \u00b6 20 (internal quotation marks omitted). A person is guilty of third-degree tampering \u201cif the highest crime for which tampering with evidence is committed is a capital or first[]degree felony or a second[-]degree felony[.]\u201d Section 30-22-5(B)(1). \u201c[I]f the highest crime for which tampering with evidence is committed is indeterminate,\u201d such that no crime underlying the tampering could be identified, a person is guilty of a fourth-degree felony. Section 30-22-5 (B)(4); Jackson, 2010-NMSC-032, \u00b6 21.\n{23} Defendant was charged with tampering with evidence of a second-degree felony as prohibited by Section 30-22-5(B)(1). At trial, the district court generally instructed the jury on tampering with evidence; the instruction did not require the jury to find that Defendant\u2019s act of tampering related specifically to a second-degree felony. It merely stated that in order to find Defendant guilty of tampering with evidence, the State must prove beyond a reasonable doubt that Defendant \u201chid or placed the knife used to stab [Victim]\u201d and by doing so, \u201c[Defendant intended to prevent his apprehension, prosecution, or conviction.\n{24} Defendant relies upon Alvarado, where we held that \u201cwhen a defendant is charged with third[-]degree tampering with evidence of a capital, first, or second[]degree felony,\u201d the State must prove, beyond a reasonable doubt, that the evidence with which the defendant tampered related to the underlying felony. 2012-NMCA-089, \u00b6 16. Because the State did not provide such proof, we determined that the proper resolution was for the defendant to be sentenced under the indeterminate crime provision of the statute. Id. While we acknowledge the analogous nature of Alvarado and the case before us, we view Defendant\u2019s case to be more appropriately on point with Herrera, 2014-NMCA-007, where, in an identical fundamental error analysis, this Court considered the issue of whether, in the case of a conviction and sentence for third-degree tampering with evidence, the omission of a finding that the weapon was evidence of a second-degree felony violated a defendant\u2019s right to have a jury find all elements of the offense beyond a reasonable doubt. Herrera, 2014-NMCA-007, \u00b6\u00b6 4, 7. We determined that for the purpose of a Sixth Amendment challenge that argues for entitlement to a jury determination of guilt beyond a reasonable doubt as to every element of the charged crime, the factors contained within Subsection (B) of the tampering statute were such that they \u201cmust be interpreted as elements of the offence, rather than mere sentencing factors.\u201d Herrera, 2014-NMCA-007, \u00b6\u00b6 8, 13. Although we recognized that \u201cthe failure to instruct the jury on one of the elements of the offense of third-degree tampering with evidence was error[,]\u201d offending the defendant\u2019s rights under the Sixth Amendment, the error did not amount to fundamental error as it was clear that on review of the entire record, the evidence presented at trial established the missing element. Id. \u00b6 17.\n{25} Here, Defendant testified at trial that he stabbed Victim and \u201cthrew the knife out\u201d of the window of his moving vehicle. In finding Defendant guilty of tampering with evidence, the jury determined that Defendant \u201ctossed the knife\u201d with the intent to prevent his apprehension, prosecution, or conviction. Additionally, the jury found that the act of stabbing Victim with a knife was second-degree murder. Our review of the record herein reveals that the only evidence presented at trial that related to Defendant\u2019s discard of the knife was the act of stabbing Victim. Because the jury concluded that the stabbing constituted a second-degree felony, \u201cthe facts at trial established that the tampering related to a second-degree felony.\u201d Id. \u00b6 18. While the factors contained in Subsection (B) of Section 30-22-5 are essential elements of the crime of tampering with evidence, and \u201cthe omission of an essential element of an offense will often be found to be fundamental error,\u201d the evidence at trial clearly established the missing element, and therefore, we hold that the district court did not fundamentally err. Herrera, 2014-NMCA-007, \u00b6 17 (\u201cIf it is clear that the missing element was established by the evidence at trial, the fact that the jury was not instructed on the element is not considered fundamental error.\u201d).\nCONCLUSION\n{26} For the forgoing reasons, we affirm Defendant\u2019s convictions for second-degree murder and third-degree tampering with evidence.\n{27} IT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nWE CONCUR:\nMICHAEL E. VIGIL, Chief Judge\nM. MONICA ZAMORA, Judge", "type": "majority", "author": "HANISEE, Judge." } ], "attorneys": [ "Hector H. Balderas, Attorney General", "Paula E. Ganz, Assistant Attorney General", "Santa Fe, NM", "for Appellee", "Jorge A. Alvarado, Chief Public Defender", "Will 0 \u2019Connell, Assistant Appellate Defender", "Santa Fe, NM", "for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, June 11, 2015,\nNo. 35,283\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-077\nFiling Date: April 13, 2015\nDocket No. 32,664\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. MATTHEW SANCHEZ, Defendant-Appellant.\nHector H. Balderas, Attorney General\nPaula E. Ganz, Assistant Attorney General\nSanta Fe, NM\nfor Appellee\nJorge A. Alvarado, Chief Public Defender\nWill 0 \u2019Connell, Assistant Appellate Defender\nSanta Fe, NM\nfor Appellant" }, "file_name": "0307-01", "first_page_order": 323, "last_page_order": 331 }