{ "id": 3670050, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Nathaniel DURAN, Defendant-Appellant", "name_abbreviation": "State v. Duran", "decision_date": "2006-07-20", "docket_number": "No. 28,685", "first_page": "94", "last_page": "104", "citations": [ { "type": "official", "cite": "140 N.M. 94" }, { "type": "parallel", "cite": "140 P.3d 515" }, { "type": "parallel", "cite": "2006-NMSC-035" } ], "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": "143 P. 1012", "category": "reporters:state_regional", "reporter": "P.", "year": 1914, "pin_cites": [ { "page": "1013-1015", "parenthetical": "describing the defendant as unconscious when the charged murder was committed and holding that the evidence conclusively established his innocence" } ], "opinion_index": 0 }, { "cite": "19 N.M. 414", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4705474 ], "year": 1914, "pin_cites": [ { "page": "418-422", "parenthetical": "describing the defendant as unconscious when the charged murder was committed and holding that the evidence conclusively established his innocence" } ], "opinion_index": 0, "case_paths": [ "/nm/19/0414-01" ] }, { "cite": "46 N.M. 302", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563084 ], "weight": 2, "year": 1942, "pin_cites": [ { "page": "309" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nm/46/0302-01" ] }, { "cite": "2004-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428026 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 17" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0621-01" ] }, { "cite": "2000-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106574 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 95" }, { "page": "\u00b6 98" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0482-01" ] }, { "cite": "236 A.D.2d 133", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 82614 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ad2d/236/0133-01" ] }, { "cite": "595 N.W.2d 511", "category": "reporters:state_regional", "reporter": "N.W.2d", "pin_cites": [ { "page": "518" } ], "opinion_index": 0 }, { "cite": "367 Md. 218", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 242360 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/md/367/0218-01" ] }, { "cite": "128 Md.App. 79", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 64791 ], "weight": 2, "pin_cites": [ { "page": "1163" } ], "opinion_index": 0, "case_paths": [ "/md-app/128/0079-01" ] }, { "cite": "387 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 1221505, 1221243 ], "year": 1990, "pin_cites": [ { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/ga/259/0807-01", "/ga/259/0809-01" ] }, { "cite": "259 Ga. 809", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1221243 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ga/259/0809-01" ] }, { "cite": "668 N.W.2d 860", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 9100981 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "873" }, { "page": "872" }, { "page": "872-73" }, { "page": "873" } ], "opinion_index": 0, "case_paths": [ "/nw2d/668/0860-01" ] }, { "cite": "810 P.2d 74", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1991, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0 }, { "cite": "61 Wash.App. 354", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1729387 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/wash-app/61/0354-01" ] }, { "cite": "793 A.2d 226", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "236", "parenthetical": "referring to \"the well established evidentiary rule that it is improper to ask a witness to comment on another witness' veracity\" and citing Flanagan" }, { "page": "236" }, { "page": "236-37" }, { "page": "238" } ], "opinion_index": 0 }, { "cite": "259 Conn. 693", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 360131 ], "year": 2002, "pin_cites": [ { "parenthetical": "referring to \"the well established evidentiary rule that it is improper to ask a witness to comment on another witness' veracity\" and citing Flanagan" } ], "opinion_index": 0, "case_paths": [ "/conn/259/0693-01" ] }, { "cite": "303 Mont. 71", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 1275714 ], "weight": 4, "year": 2001, "pin_cites": [ { "parenthetical": "citing Flanagan as one of the cases holding that it is categorically improper for the prosecution to ask a defendant whether a witness has lied" }, { "page": "923", "parenthetical": "citing Flanagan as one of the cases holding that it is categorically improper for the prosecution to ask a defendant whether a witness has lied" }, { "page": "924" } ], "opinion_index": 0, "case_paths": [ "/mont/303/0071-01" ] }, { "cite": "198 Ariz. 372", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 274457 ], "weight": 3, "pin_cites": [ { "page": "633" }, { "page": "633-34" } ], "opinion_index": 0, "case_paths": [ "/ariz/198/0372-01" ] }, { "cite": "111 N.M. 93", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715113 ], "weight": 9, "pin_cites": [ { "page": "97" }, { "page": "679" }, { "page": "97" }, { "page": "679" }, { "page": "96" }, { "page": "678" }, { "page": "97" }, { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0093-01" ] }, { "cite": "115 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725481 ], "weight": 7, "year": 1992, "pin_cites": [ { "page": "34" }, { "page": "340" }, { "page": "34" }, { "page": "340" }, { "page": "34" }, { "page": "340", "parenthetical": "holding evidence was insufficient for conviction without \"evidence either of intent to thwart an investigation or of an act listed in the statute\"" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0027-01" ] }, { "cite": "2004-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224656 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 54" }, { "page": "\u00b6 54" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0348-01" ] }, { "cite": "76 N.M. 477", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503013 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "482", "parenthetical": "a jury may consider the animus of the accused toward the deceased in determining deliberate intent" }, { "page": "150", "parenthetical": "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": "1999-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106481 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 76" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0192-01" ] }, { "cite": "110 N.M. 254", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 717011 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "255" }, { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0254-01" ] }, { "cite": "2000-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217140 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0767-01" ] }, { "cite": "114 N.M. 269", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731614 ], "weight": 10, "year": 1992, "pin_cites": [ { "page": "274" }, { "page": "867" }, { "page": "271" }, { "page": "864" }, { "page": "274-75" }, { "page": "867-68" }, { "page": "274-75" }, { "page": "867-68" }, { "page": "275-76" }, { "page": "868-69" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0269-01" ] }, { "cite": "945 P.2d 996", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1992, "opinion_index": 0 }, { "cite": "123 N.M. 778", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 142224 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nm/123/0778-01" ] }, { "cite": "1997-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "year": 1992, "pin_cites": [ { "page": "\u00b6\u00b6 44, 46" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827383 ], "weight": 17, "pin_cites": [ { "page": "\u00b6 19" }, { "page": "\u00b6 19" }, { "page": "\u00b6 24" }, { "page": "\u00b6 26" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0438-01" ] }, { "cite": "2000-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106493 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 26" }, { "page": "\u00b6 28" }, { "page": "\u00b6 26" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0711-01" ] }, { "cite": "107 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597058 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "131" }, { "page": "1319" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0126-01" ] } ], "analysis": { "cardinality": 1168, "char_count": 31017, "ocr_confidence": 0.684, "pagerank": { "raw": 3.619482924743637e-07, "percentile": 0.8886027718218321 }, "sha256": "7082f90955ba0230ce7d2ce6c87c41d397eaa9c0fed20f156d4d8a9e5dfeffd7", "simhash": "1:88aa9d84323a9e20", "word_count": 5084 }, "last_updated": "2023-07-14T22:21:44.975087+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: RICHARD C. BOSSON, Chief Justice, PAMELA B. MINZNER, PATRICIO M. SERNA, and PETRA JIMENEZ MAES, Justices." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Nathaniel DURAN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCH\u00c1VEZ, Justice.\n{1} Defendant Nathaniel Duran (\u201cDefendant\u201d) was convicted of first-degree murder, criminal sexual penetration while armed with a deadly weapon, and tampering with evidence. The trial court sentenced Defendant to life in prison for murder in the first-degree, nine years for criminal sexual penetration, and 18 months for tampering with evidence, with each sentence to run consecutively. Defendant appeals his convictions for first-degree murder, see Rule 12-102(A)(1) NMRA 2006 (appeals from sentence of life imprisonment taken to the Supreme Court), and tampering with evidence, asserting on appeal that insufficient evidence exists to support the verdicts. Defendant also asserts that the State committed fundamental error when the prosecutor forced Defendant to comment on the credibility of other witnesses. We affirm Defendant\u2019s conviction for first-degree murder, reverse the conviction for tampering with evidence, and hold that, while the questioning by the prosecutor was clearly improper, there was no fundamental error.\nI. FACTS AND BACKGROUND\n{2} Police were called to investigate the presence of a body on the floor of an apartment at St. Francis Plaza in Ranchos de Taos. The victim was a thirty-six year old woman who had recently moved into the apartment, which was owned by the grandfather of the seventeen year-old Defendant. Although they found no evidence of forced entry, there was blood all over the floor and walls. Defendant became a suspect in the case based on an anonymous call received at the Taos County Sheriffs office.\n{3} At trial, the State presented evidence from the medical examination of the victim\u2019s body that revealed multiple stab wounds to the head and neck, the chest and abdomen, and additional sharp force injuries to the chest, abdomen, and back. The victim also had wounds on her fingers that were consistent with defensive wounds. The medical testimony characterized the victim\u2019s death as resulting from multiple stab wounds rather than from one specific injury, and indicated the wounds were caused by a sharp object, \u201clike a knife.\u201d The analysis of vaginal and thigh swabs taken from the victim\u2019s body revealed semen. Based on DNA tests, Defendant could not be eliminated as a possible donor of the sperm-cell DNA. Defendant testified that he had engaged in consensual sex with the victim, but denied killing her.\n{4} The State also presented testimony from three friends of Defendant who testified about statements made by Defendant. Carlos Mondragon testified Defendant told him that he had hurt a lady and stabbed her eight or nine times. Mondragon\u2019s girlfriend, Shonna Romero, testified she heard Defendant say he had hurt some lady and stabbed her with a knife. Michael Romero testified Defendant told him that he \u201cstraight-up murdered some bitch.\u201d In addition, a Taos County Sheriffs Deputy testified that when Defendant was given a copy of the criminal complaint, Defendant commented \u201cthey charged me for killing two people and I only killed one.\u201d\nII. SUFFICIENCY OF THE EVIDENCE\n{5} The test for sufficiency of the evidence \u201cis 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. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). In addition, \u201cwe must view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.\u201d State v. Cunningham, 2000-NMSC-009, \u00b6 26, 128 N.M. 711, 998 P.2d 176. \u201cContrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject Defendant\u2019s version of the facts.\u201d State v. Rojo, 1999-NMSC-001, \u00b6 19, 126 N.M. 438, 971 P.2d 829 (citing State v. Salazar, 1997-NMSC-044, \u00b6\u00b6 44, 46, 123 N.M. 778, 945 P.2d 996). In our determination of the sufficiency of the evidence, we are required to ensure that \u201ca rational jury could have found beyond a reasonable doubt the essential facts required for a conviction.\u201d State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992). \u201cWe apply these principles to our review of the evidence used to support Defendant\u2019s convictions for murder [and] tampering with evidence ....\u201d Rojo, 1999-NMSC-001, \u00b6 19, 126 N.M. 438, 971 P.2d 829.\nA. First-Degree Murder\n{6} Defendant asserts on appeal that there was insufficient evidence of deliberate murder to support the first-degree murder conviction and that the State failed to prove deliberate intent beyond a reasonable doubt. In New Mexico, first-degree murder includes \u201cany kind of willful, deliberate and premeditated killing.\u201d NMSA 1978, \u00a7 30-2-1(A)(1) (1994). Deliberate intention is defined as \u201carrived 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 NMRA. In addition, we have stated that a \u201ccalculated judgment and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate intention to kill.\u201d Garcia, 114 N.M. at 271, 837 P.2d at 864.\n{7} We believe the State presented evidence from which a reasonable jury could have found beyond a reasonable doubt that Defendant had the deliberate intent necessary to sustain his conviction. \u201c\u2018Intent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence.\u2019 \u201d State v. Sosa, 2000-NMSC-036, \u00b6 9, 129 N.M. 767, 14 P.3d 32 (quoting State v. Vigil, 110 N.M. 254, 255, 794 P.2d 728, 729 (1990)). The jury was instructed that the State had to prove beyond a reasonable doubt that Defendant killed the victim with \u201cthe deliberate intention to take away the life\u201d of the victim. The jury was also instructed as to the definition of \u201cdeliberate intention\u201d:\nA deliberate intention refers to the state of mind of the defendant. A deliberate intention may be inferred from all of the facts and circumstances of the killing. The word deliberate means arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. A calculated judgment and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate intent to kill. To constitute a deliberate killing, the slayer must weigh and consider the question of killing and his reasons for and against such a choice.\n{8} Deliberate intent may be inferred from the particular circumstances of the killing as proved by the State through the presentation of physical evidence. See Rojo, 1999-NMSC-001, \u00b6 24, 126 N.M. 438, 971 P.2d 829 (deliberate intent to kill established when strangulation took several minutes and defendant had motive to kill victim); Sosa, 2000-NMSC-036, \u00b6 14, 129 N.M. 767, 14 P.3d 32 (evidence that defendant went armed to victim\u2019s home, waited for victim to arrive, shot at unarmed victim, and continued attack after victim tried to flee supported inference of deliberate intent); State v. Coffin, 1999-NMSC-038, \u00b6 76, 128 N.M. 192, 991 P.2d 477 (jury could infer defendant formed deliberate intent to kill victim when defendant told victim to get back in his car then shot victim several times from behind); Cunningham, 2000-NMSC-009, \u00b6 28, 128 N.M. 711, 998 P.2d 176 (deliberate intent inferred from defendant firing fatal shot at victim after victim was incapacitated and defenseless). Here, a reasonable jury could have believed Defendant had the deliberate intent to kill the victim by inferring from the physical evidence of a prolonged struggle and multiple stab wounds. The State presented physical evidence based on blood spatter that the victim tried to stop the attacker from entering her bedroom, and that she tried to escape or call for help from a window. The victim was also stabbed in the back and in the jugular veins of the throat, and had several wounds consistent with her attempt to defend herself from the attacker.\n{9} In addition to the physical evidence, the statements made by Defendant would also support a jury\u2019s finding that the killing was deliberate. The State presented evidence that Defendant claimed to have hurt a lady and stabbed her eight or nine times. There was also testimony that Defendant told his friend he had \u201cstraight up murdered some bitch.\u201d Cf. State v. Smith, 76 N.M. 477, 482, 416 P.2d 146, 150 (1966) (a jury may consider the animus of the accused toward the deceased in determining deliberate intent). Thus, based on the nature and extent of the victim\u2019s injuries, the jury could infer a prolonged struggle where the attacker pursued the victim despite her attempts to withdraw or escape. When combined with evidence of Defendant\u2019s attitude toward the victim, this evidence is sufficient to support the jury\u2019s finding that the murder of the victim was done with deliberate intent.\n{10} Defendant asserts that the evidence could be construed as showing that the murder was rash and uncontrolled, and thus is similar to Garcia, 114 N.M. at 274-75, 837 P.2d at 867-68, where we reversed a conviction for first-degree murder because the evidence did not support a jury finding of deliberate intent. Although we found evidence in Garcia that the act of murder was itself intentional, we could not find any evidence from which the jury could infer that the murder was deliberate. Instead, the only evidence before the jury in Garcia, either direct or circumstantial, was that the defendant and the victim had quarreled, made up, then quarreled again and traded punches immediately before defendant stabbed the victim. Id. at 274-75, 837 P.2d at 867-68. Finding nothing in the evidence presented that could reasonably lead the jury to infer that the defendant had acted with deliberation rather than rashly and impulsively, we reversed the defendant\u2019s conviction for first-degree murder. Id. at 275-76, 837 P.2d at 868-69.\n{11} We conclude that Garcia is distinguishable. Here, there was evidence from which the jury could reasonably infer that Defendant acted with deliberate intent because the attack was part of a prolonged struggle, Defendant stabbed the victim multiple times as she tried to escape, and Defendant further revealed his intent in his later description of his actions. Thus, reviewing the physical evidence and Defendant\u2019s statements in the light most favorable to the verdict, we hold that there was sufficient evidence to support the jury\u2019s conclusion that Defendant had deliberate intent when he killed the victim to justify the verdict of first-degree murder.\nB. Tampering with Evidence\n{12} Defendant appeals his conviction for tampering with evidence under NMSA 1978, \u00a7 30-22-5 (2003), arguing there was insufficient evidence to support his conviction on this charge. We apply the same principles to our review of the evidence as described above. In order to find Defendant guilty of tampering with evidence, the State must prove beyond a reasonable doubt that:\n1. The defendant destroyed or hid physical evidence to wit: a knife or sharp object and his blood stained clothing;\n2. The defendant intended to prevent the apprehension, prosecution, or conviction of himself;\n3. This happened in Taos County, New Mexico on or about the 7th day of July 2002.\nUJI 14-2241 NMRA. We conclude that there is insufficient evidence for a rational jury to have found each of the elements necessary for a conviction of this crime beyond a reasonable doubt.\n{13} The charge of tampering with evidence in this case is based upon the State\u2019s assertions that a knife or sharp object must have been used in the crime, and that clothing worn by the attacker would have become blood-stained during the attack. The police did not find a knife or sharp object or any blood-stained clothing. While New Mexico has no case law indicating that a tampering with evidence charge cannot be based solely on circumstantial evidence, our cases upholding convictions for this charge involve some kind of direct evidence of tampering. In State v. Johnson, 2004-NMSC-029, \u00b6 54, 136 N.M. 348, 98 P.3d 998, the defendant indicated the necessary specific intent to \u201cplace\u201d the evidence through his testimony that he directed someone to remove the stolen property from his car. In Rojo, 1999-NMSC-001, \u00b6 26, 126 N.M. 438, 971 P.2d 829, evidence was presented by a witness who testified the defendant stated he killed someone and threw the body in the trash. The victim\u2019s body was found in a dumpster, and the Court concluded that \u201c[c]ombined with the other evidence linking Defendant to the murder, it was reasonable for the jury to infer from this statement that Defendant not only killed the victim, but also placed her body in the dumpster.\u201d Id. Also, because the body was found with no identification and covered in plastic bags and duct tape, the Court determined \u201cit was reasonable for the jury to infer that Defendant intended to prevent his own apprehension, prosecution, or conviction as the victim\u2019s murderer.\u201d Id. In State v. Roybal, 115 N.M. 27, 34, 846 P.2d 333, 340 (Ct.App. 1992), the court examined the tampering with evidence statute and determined that the statute required active disruption by the defendant of the investigatory process. In each case examined in its analysis, the Court of Appeals found evidence that the defendant committed one of the acts listed in the tampering with evidence statute: destroying, changing, hiding, placing or fabricating any physical evidence. Id. at 34, 846 P.2d at 340. In spite of the evidence presented in Roybal that the defendant had dropped narcotics from his hand to the ground when officers approached him, the court found that there was not proof beyond a reasonable doubt that Defendant \u201cformed a specific intent to thwart the officers.\u201d Id.\n{14} Based on these precedents, in order for Defendant\u2019s conviction on tampering with evidence to be upheld, there must be sufficient evidence from which the jury can infer: (1) the specific intent of the Defendant to disrupt the police investigation; and (2) that Defendant actively \u201cdestroyed or hid physical evidence.\u201d When 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. See Johnson, 2004-NMSC-029, \u00b6 54, 136 N.M. 348, 98 P.3d 998 (where the intent of the defendant was inferred from his instruction to others to remove the stolen property from his car); Rojo, 1999-NMSC-001, \u00b6 26, 126 N.M. 438, 971 P.2d 829 (where intent to disrupt the investigation was inferred from the act of placing the body in the dumpster with no identification and covered with plastic bags); Roybal, 115 N.M. at 34, 846 P.2d at 340 (holding evidence was insufficient for conviction without \u201cevidence either of intent to thwart an investigation or of an act listed in the statute\u201d).\n{15} Here, we have no evidence of an overt act to destroy or hide any knife or blood stained clothing, if such clothing did in fact exist. Thus, the jury had to infer Defendant\u2019s intent to disrupt the investigation without any overt act or any other evidence of intent, and further had to speculate that an overt act of destroying or hiding the knife and possibly blood stained clothing had taken place, based solely on the fact that such evidence was never found. Even while reviewing the evidence \u201cin 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 Cunningham, 2000-NMSC-009, \u00b6 26, 128 N.M. 711, 998 P.2d 176, we find it insufficient to support a finding beyond a reasonable doubt of intent by Defendant to disrupt the police investigation, or that he actively destroyed or hid evidence. The evidence presented by the State that a knife or sharp object existed, that Defendant\u2019s clothing might have been blood stained, and that ten days passed between the murder and Defendant\u2019s arrest, do not provide the necessary direct or circumstantial evidence to support the charge of tampering with evidence.\n{16} Although the State argues that this holding will mean that \u201ca defendant who successfully destroys or hides evidence could never be convicted of his crime,\u201d we disagree. Our holding here does 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. If we were to hold otherwise, we would render the required elements of the tampering with evidence statute meaningless. Therefore, we reverse Defendant\u2019s conviction on the tampering with evidence charge.\nIII. IMPROPER QUESTIONING AND FUNDAMENTAL ERROR\n{17} Defendant asserts that the State improperly forced Defendant to comment on the credibility of the State\u2019s witnesses when the State asked the Defendant on cross-examination whether the State\u2019s witnesses were lying. The defense did not object to the State\u2019s improper line of questioning. We begin the analysis of this issue by examining the propriety of the prosecutor\u2019s questions to Defendant, and then consider whether there was fundamental error.\nA. Improper Questioning by the Prosecutor\n{18} In State v. Flanagan, 111 N.M. 93, 97, 801 P.2d 675, 679 (Ct.App.1990), the Court of Appeals indicated that a strict prohibition would be imposed upon asking the defendant if another witness is mistaken or lying, particularly \u201cin a criminal case where defendant is forced to characterize numerous witnesses, including police officers, as \u2018incorrect\u2019 or \u2018mistaken\u2019 in order for his or her testimony to be credible.\u201d Id. In the sixteen years since the Court of Appeals decided Flanagan, we have not had occasion to comment on its holding. Flanagan has, however, been cited by other state courts as standing for the proposition that \u201casking a witness whether another witness has lied is categorically improper.\u201d State v. Morales, 198 Ariz. 372, 10 P.3d 630, 633 (Ct.App.2000); see State v. Hart, 303 Mont. 71, 15 P.3d 917, 923 (2001) (citing Flanagan as one of the cases holding that it is categorically improper for the prosecution to ask a defendant whether a witness has lied); and see State v. Singh, 259 Conn. 693, 793 A.2d 226, 236 (2002) (referring to \u201cthe well established evidentiary rule that it is improper to ask a witness to comment on another witness\u2019 veracity\u201d and citing Flanagan).\n{19} The rationale for this strict prohibition upon asking the defendant if another witness is mistaken or lying includes the risk for improper prejudice from these kinds of questions, the fact that \u201c[w]hether the defendant believes the other witnesses were truthful or lying is simply irrelevant,\u201d and the concern that these questions \u201ccan constitute in effect a misleading argument to the jury that the only alternatives are that the defendant or the witnesses are liars.\u201d Flanagan, 111 N.M. at 97, 801 P.2d at 679. Some courts have perceived these questions as distorting the burden of proof by unfairly giving the jury the impression that in order to acquit, they must determine that witnesses whose testimony is at odds with the testimony of the defendant are lying. See State v. Casteneda-Perez, 61 Wash.App. 354, 810 P.2d 74, 78-79 (1991). Other courts have also based the prohibition on the concept that the jury must determine credibility, not the witnesses. See Singh, 793 A.2d at 236. In State v. Graves, the Iowa Supreme Court also reasoned that the use of this kind of questioning was incompatible with the duties of a prosecutor:\nUnfairly questioning the defendant simply to make the defendant look bad in front of the jury regardless of the answer given is not consistent with the prosecutor\u2019s primary obligation to seek justice, not simply a conviction. Nor is such questioning consistent with the prosecutor\u2019s duty to the defendant to ensure a fair trial, including a verdict that rests on the evidence and not on passion or prejudice.\n668 N.W.2d 860, 873 (Iowa 2003).\n{20} We note that as the law on the subject of \u201cwere they lying\u201d questions has developed in other states, two state courts have held that asking the defendant whether a witness is lying is not objectionable. See Dorsey v. State, 259 Ga. 809, 387 S.E.2d 889, 890 (1990); Fisher v. State, 128 Md.App. 79, 736 A.2d 1125, 1163 (Ct.Spec.App.1999), rev\u2019d in part on other grounds, Fisher v. State, 367 Md. 218, 786 A.2d 706 (2001). Some courts have agreed with Flanagan that such questioning is generally improper, but recognize an exception when the contradiction between the defendant\u2019s testimony and that of another witness can only be explained by the conclusion that someone is lying. Morales, 10 P.3d at 633-34; State v. Pilot, 595 N.W.2d 511, 518 (Minn.1999); State v. Hart, 303 Mont. 71, 15 P.3d 917, 924 (2001); People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 (NY.App.Div.1997). The majority of jurisdictions, however, have followed the prohibition of \u201cwere they lying\u201d questions. Graves, 668 N.W.2d at 871 (citing cases including Flanagan).\n{21} We agree with the developed reasoning of other courts that have adopted Flanagan, that credibility of witnesses is to be determined by the jury, not by the witnesses. Singh, 793 A.2d at 236-37. It is not only the credibility of the defendant at issue at trial, but \u201cthe credibility of all witnesses is at issue.\u201d Graves, 668 N.W.2d at 872. It is unreasonable and unnecessary to expect a defendant to offer an explanation for contradictory testimony. Id. at 872-73. In addition, this kind of questioning is inconsistent with the prosecutor\u2019s primary duty to seek justice and provide a fair trial to the defendant. Id. at 873. \u201cThe state\u2019s objective of \u2018highlighting\u2019 inconsistencies in testimony may be accomplished by other, proper means.\u201d Singh, 793 A.2d at 238. We are particularly concerned that \u201cwere they lying questions\u201d may confuse the jury as to the required burden of proof if the jury is led to believe that a defendant is guilty unless a law enforcement officer is lying. Thus, we affirm the holding in Flanagan and adopt a strict prohibition against asking the defendant whether another witness is mistaken or lying.\n{22} With respect to the questioning at issue here, four witnesses for the State, Carlos Mondragon, Shonna Romero, Michael Romero, and Deputy Rick Romero, each testified regarding statements made by Defendant. During cross-examination of Defendant, the prosecutor engaged in the following exchange:\nQ. [by prosecutor] So, Michael Romero is lying?\nA. [by defendant] In my eyes, yes.\nQ. In your eyes?\nA. Yes.\nQ. And Carlos Mondragon was lying?\nA. Yes, sir.\nQ. And Shonna Romero was lying?\nA. Yes, sir.\nQ. And interestingly enough, even Deputy Rick Romero was lying?\nA. Yeah, well, basically\u2014\nQ. Sir?\nA. Yes, Sir.\nQ. So you have been sitting here in trial for a few days now; is that correct?\nA. Yes, sir.\nQ. And everybody\u2019s lying except you; is that right?\nA. Yes, sir.\nQ. Now it hasn\u2019t \u2014 maybe you could help us here. Why would all these people lie against you?\nA. In my words, again, sir, either people don\u2019t like me; people want to see somebody go down for something; or in other words, that they hate on you, because of something that you did, used to have, or something that you have accomplished in your life, and that\u2019s the reason why I think so.\nQ. And I think that\u2019s a fair assessment, but I think the ladies and gentlemen of the jury need to know why Shonna, Carlos and Michael and Deputy Romero would get together to do this to you?\nA. From that point, I can\u2019t really help you out there. I don\u2019t think so.\nQ. All right.\nSince we decline to overrule the strict language of Flanagan prohibiting questions to the defendant as to whether another witness is mistaken or lying, we must conclude that these questions by the prosecutor were improper. We note that in Flanagan, however, the improper questioning was correctly objected to by the defendant, and the review was for reversible error, with the burden on the State to show the error was harmless. 111 N.M. at 96, 801 P.2d at 678. Since no objection was made in the present case, Defendant failed to preserve any error regarding the prosecutor\u2019s improper questioning. \u201cWhen the trial court had no opportunity to rule on [a claimed error] because the defendant did not object in a timely manner, we review the claim on appeal for fundamental error.\u201d State v. Allen, 2000-NMSC-002, \u00b6 95, 128 N.M. 482, 994 P.2d 728.\nB. Fundamental Error\n{23} Whether this improper questioning rises to the level of fundamental error is the controlling inquiry. Although many of our eases regarding fundamental eiTor \u201cturn on the obvious innocence of the defendant,\u201d State v. Barber, 2004-NMSC-019, \u00b6 16, 135 N.M. 621, 92 P.3d 633, \u201cwe also recognize that another strand runs through the fundamental error doctrine that focuses less on guilt and innocence and more on process and the underlying integrity of our judicial system.\u201d Id. at \u00b6 17. Fundamental error occurs when a case \u201cwould so shock the conscience of the court as to call for a reversal.\u201d State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462 (1942). \u201cThis \u2018shock the conscience\u2019 language has been used both to describe cases with defendants who are indisputably innocent, and cases in which a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused.\u201d Barber, 2004-NMSC-019, \u00b6 17, 135 N.M. 621, 92 P.3d 633. We do not believe this is a case where the defendant is indisputably innocent. See State v. Garcia, 19 N.M. 414, 418-422, 143 P. 1012, 1013-1015 (1914) (describing the defendant as unconscious when the charged murder was committed and holding that the evidence conclusively established his innocence). Our precedent indicates, therefore, that to find fundamental error we must determine whether the improper questioning by the prosecutor \u201ccaused such a \u2018fundamental unfairness\u2019 in Defendant\u2019s trial.\u201d Barber, 2004-NMSC-019, \u00b6 18, 135 N.M. 621, 92 P.3d 633 (quoting Cunningham, 2000-NMSC-009, \u00b6 21, 128 N.M. 711, 998 P.2d 176).\n{24} Looking at the improper questioning in this case, we note that the prosecutor asked four direct \u201cwere they lying\u201d questions, as well as a general \u201cso everybody is lying but you\u201d question, and a question asking Defendant to explain why those witnesses would lie. We are especially concerned about the prosecutor\u2019s question to the defendant asking if \u201ceven\u201d Deputy Rick Romero was lying. As was stated in Flanagan, it is particularly improper to ask the defendant to comment on the veracity or credibility of law enforcement officers, as it may lead the jury to believe that they cannot acquit the defendant unless they believe the officer is lying. 111 N.M. at 97, 801 P.2d at 679.\n{25} We believe whether a defendant \u201copens the door\u201d by commenting on the veracity of other witnesses is an important consideration in determining whether there was fundamental unfairness in a trial. When a defendant does not initiate any comment on the truthfulness of the testimony of other witnesses, we will consider the actions of a prosecutor who improperly pursues \u201cwere they lying\u201d questions to be prosecutorial misconduct. In this case, however, we believe Defendant initiated the comments on the other witnesses\u2019 veracity when he stated during direct examination that the witnesses had falsely accused him. While apologizing for his outburst during the testimony of one of the witnesses, Defendant testified:\nYeah, I apologize, you know what I mean? At some point in time, I mean it\u2019s like if somebody just keeps on kicking and kicking and kicking at you, you know, what I mean, especially making false accusations toward you, and you know, basically slandering your name. I got upset. Who doesn\u2019t get angry?\nThe fact that Defendant accused the witnesses of making \u201cfalse accusations\u201d about him leads us to conclude that, although the \u201cwere they lying\u201d questions were improper, they were not unprovoked.\n{26} When reviewing for fundamental error in other situations of improper comments by prosecutors, we have considered the improper comments in the context of the prosecutor\u2019s argument as a whole. See Allen, 2000-NMSC-002, \u00b6 98, 128 N.M. 482, 994 P.2d 728. Here, we note that the prosecutor\u2019s improper questions were only a small portion of the total trial. We do not find that the improper questions went so far as to distort the burden of proof, which we believe is one of the considerable dangers of \u201cwere they lying\u201d questions. The jury would not have been led to believe by these questions that the burden was on the Defendant to prove that the witnesses were lying.\n{27} We do not believe the improper questioning resulted in fundamental unfairness in Defendant\u2019s trial. Defendant provoked the questions by commenting on the \u201cfalse accusations\u201d of the other witnesses, and the improper questions were a minimal part of the total trial. While we do not in any way approve of the prosecutor\u2019s use of \u201cwere they lying\u201d questions, we find that, overall, Defendant received a fair trial. Since the prosecutor\u2019s improper questioning did not make Defendant\u2019s trial fundamentally unfair, we conclude that the improper questioning did not rise to the level of fundamental error.\nIY. CONCLUSION\n{28} We conclude that sufficient evidence supported the jury\u2019s finding that Defendant acted with deliberate intent, and affirm the conviction of first-degree murder. We conclude that there was insufficient evidence to support the charge of tampering with evidence, and we reverse the conviction for tampering with evidence. Despite the inappropriate cross-examination by the prosecution, we do not believe that fundamental error occurred in this ease.\n{29} IT IS SO ORDERED.\nWE CONCUR: RICHARD C. BOSSON, Chief Justice, PAMELA B. MINZNER, PATRICIO M. SERNA, and PETRA JIMENEZ MAES, Justices.\n. During the testimony of Michael Romero, Defendant shouted out to him: \"I\u2019ll kick your balls off, you puto.\u201d", "type": "majority", "author": "CH\u00c1VEZ, Justice." } ], "attorneys": [ "John Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.", "Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2006-NMSC-035 140 P.3d 515\nSTATE of New Mexico, Plaintiff-Appellee, v. Nathaniel DURAN, Defendant-Appellant.\nNo. 28,685.\nSupreme Court of New Mexico.\nJuly 20, 2006.\nJohn Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.\nPatricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee." }, "file_name": "0094-01", "first_page_order": 130, "last_page_order": 140 }