{ "id": 4002551, "name": "STATE of New Mexico, Plaintiff-Petitioner, v. Juan Antonio SILVA, Defendant-Respondent", "name_abbreviation": "State v. Silva", "decision_date": "2008-08-20", "docket_number": "No. 30,555", "first_page": "815", "last_page": "821", "citations": [ { "type": "official", "cite": "144 N.M. 815" }, { "type": "parallel", "cite": "192 P.3d 1192" }, { "type": "parallel", "cite": "2008-NMSC-051" } ], "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": "2004-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224656 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 52, 54" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0348-01" ] }, { "cite": "91 N.M. 195", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571188 ], "weight": 2, "pin_cites": [ { "page": "197" }, { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0195-01" ] }, { "cite": "115 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725481 ], "weight": 2, "pin_cites": [ { "page": "33-34" }, { "page": "339-40" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0027-01" ] }, { "cite": "118 N.M. 727", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563501 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "729", "parenthetical": "quoted authority omitted" }, { "page": "650", "parenthetical": "quoted authority omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0727-01" ] }, { "cite": "2006-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670050 ], "weight": 13, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 14", "parenthetical": "quoted authority omitted" }, { "parenthetical": "quoted authority omitted" }, { "parenthetical": "quoted authority omitted" }, { "page": "\u00b6 14" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0094-01" ] }, { "cite": "2008-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002710 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0360-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "294, 302", "parenthetical": "holding that the defendant was denied a fair trial because, among other things, a procedural rule prevented him from cross-examining a witness who had earlier confessed to the underlying crime" }, { "parenthetical": "holding that the defendant was denied a fair trial because, among other things, a procedural rule prevented him from cross-examining a witness who had earlier confessed to the underlying crime" }, { "parenthetical": "holding that the defendant was denied a fair trial because, among other things, a procedural rule prevented him from cross-examining a witness who had earlier confessed to the underlying crime" } ], "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "80 N.M. 230", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356856 ], "weight": 2, "pin_cites": [ { "page": "232" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0230-01" ] }, { "cite": "2007-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3691801 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0191-01" ] }, { "cite": "2004-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428026 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0621-01" ] }, { "cite": "2007-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671666 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0836-01" ] }, { "cite": "143 P. 1012", "category": "reporters:state_regional", "reporter": "P.", "weight": 2, "year": 1914, "pin_cites": [ { "page": "1015" }, { "page": "1013, 1015", "parenthetical": "stating that the evidence conclusively established the defendant's innocence because he was unconscious at the time of the murder for which he was charged" } ], "opinion_index": 0 }, { "cite": "19 N.M. 414", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4705474 ], "weight": 2, "year": 1914, "pin_cites": [ { "page": "421" }, { "page": "418, 422" } ], "opinion_index": 0, "case_paths": [ "/nm/19/0414-01" ] }, { "cite": "1999-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106492 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0044-01" ] }, { "cite": "122 N.M. 476", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322262 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/nm/122/0476-01" ] }, { "cite": "1996-NMCA-109", "category": "reporters:neutral", "reporter": "NMCA", 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"case_paths": [ "/nm/85/0615-01" ] }, { "cite": "1999-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106506 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0454-01" ] }, { "cite": "2007-NMCA-117", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3693071 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 2-5" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0686-01" ] } ], "analysis": { "cardinality": 954, "char_count": 20771, "ocr_confidence": 0.667, "pagerank": { "raw": 1.6010738227897054e-07, "percentile": 0.683888327080073 }, "sha256": "720bf2a33fb7a27ec89e99bc5c0a4630f67383450a2dcaf7f50e34ab9ee835fb", "simhash": "1:8d6af60ac34f2de4", "word_count": 3325 }, "last_updated": "2023-07-14T22:37:29.378104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and CHARLES W. DANIELS, Justices." ], "parties": [ "STATE of New Mexico, Plaintiff-Petitioner, v. Juan Antonio SILVA, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nSERNA, Justice.\n{1} Defendant Juan Silva was convicted of second degree murder, conspiracy to commit second degree murder, and tampering with evidence. He appealed, and the Court of Appeals remanded for a new trial on the grounds that the district court had violated his Sixth Amendment rights by not allowing defense counsel to inquire into whether a State witness had been promised immunity in exchange for his testimony. The Court also found insufficient evidence to support the tampering conviction and ordered the charge dismissed on remand. The State petitioned this Court to review both issues. We reverse the Sixth Amendment holding and affirm dismissal of the tampering charge.\nI. INTRODUCTION\n{2} Defendant\u2019s convictions stem from the August 30, 2001, murder of Mario Hernandez. Defendant was tried along with two codefendants, each of whom had separate counsel. The facts surrounding Hernandez\u2019s murder and the development of the State\u2019s case against Defendant are given in the Court of Appeals\u2019 opinion. See State v. Silva, 2007-NMCA-117, \u00b6\u00b6 2-5, 142 N.M. 686, 168 P.3d 1110. Rather than restating those details, we discuss, as necessary, only those portions of the record relevant to our review.\nII. THE SIXTH AMENDMENT ISSUE\n{3} We begin with the facts related to Defendant\u2019s Sixth Amendment claim. The State\u2019s star witness, Bobby Salas (Salas), was the closest thing it had to an eyewitness. His testimony occurred over three days, filled approximately three volumes of transcript, and was rife with inconsistencies. One of those inconsistencies provides the fount for Defendant\u2019s claim that he was unable to fully confront Salas on cross-examination.\n{4} Prior to trial, Salas testified under oath at a deposition about his acquisition of the photographs that he later used to identify the defendants. At trial, he told a different story about those photos. In response, the State asked Salas a series of questions during direct examination aimed at establishing which of those renditions was true. Anticipating that Salas was about to testify that he had previously lied under oath concerning the photos, defense counsel objected. The objection focused on Salas\u2019s Fifth Amendment right against self-incrimination and asserted that, before Salas answered the State\u2019s questions, he should be provided with a lawyer who could advise him whether he should testify to the truth or falsity of his prior sworn statements. The State responded, in open court and in front of Salas, that it did not plan to prosecute him for perjury and would not do so even if he testified to having previously lied under oath. The State then suggested, again in front of Salas, that the trial court could give him use immunity to insulate him from any future perjury prosecution. The trial court took a recess to consider the issue.\n{5} Upon its return, the trial court heard further argument on the issue. Each of the three defense lawyers joined in this discussion, variously asserting their reasons as to why Salas\u2019s Fifth Amendment rights demanded that he consult with a lawyer before answering the State\u2019s questions. The State, on the other hand, argued that Salas had not perjured himself, that the trial court could grant him use immunity, and that the State would not later prosecute him for perjury. Ultimately, the trial court decided against immunity and against requiring Salas to consult with an attorney. Instead, it admonished Salas that he was to testify truthfully and that he could be prosecuted for perjury if he failed to do so.\n{6} Salas\u2019s testimony resumed. At the conclusion of his direct examination, the State asked him whether he had been promised anything in exchange for his testimony, to which Salas responded, \u201cNo.\u201d Before beginning cross-examination, defense counsel asked to approach and argued at the bench that the State had opened the door to cross-examining Salas on the State\u2019s non-prosecution promise made earlier during the discussion of his Fifth Amendment rights. The State responded that such questions should not be allowed because the trial court had not given Salas immunity. At one point, defense counsel stated, \u201c[W]e have to be able to vigorously cross-examine about untrue statements under oath,\u201d to which the trial court responded, \u201cI ruled that.\u201d Asked to clarify its ruling, the trial court explained:\nWell, I think that the key here is whether \u2014 I mean, he obviously came in without the promise to testify. I think that the key here is whether \u2014 if the State promised him something to come in, I think that\u2019s a little different. I see a difference. I wouldn\u2019t allow going into that particular area that the State offered him immunity to testify, and it wouldn\u2019t be true. They may have offered it, but the Court didn\u2019t grant it, so I think that area is still out of bounds. Any inconsistent statements are in bounds.\nNowhere during this exchange did defense counsel claim a Confrontation Clause problem or protest the trial court\u2019s ruling on either general constitutional or Sixth Amendment grounds.\n{7} Defendant seemingly amalgamates those two exchanges between the court and the lawyers into a single colloquy and argues that, somewhere within that rather nebulous construction, defense counsel raised the Sixth Amendment issue. When questioned at oral argument as to where, precisely, that issue was raised, Defendant admitted that the initial issue was Salas\u2019s Fifth Amendment rights but that it later \u201cmorph[ed] indirectly\u201d into an issue of Silva\u2019s Sixth Amendment rights. Defendant pointed to the trial court\u2019s ruling that defense counsel could not ask about the promise of immunity. According to Defendant, the record shows that the trial court was aware of the Sixth Amendment issue and knew that it was ruling on the issue when it purposefully excluded defense counsel\u2019s inquiry into the State\u2019s promise not to prosecute Salas for perjury.\n{8} The State, however, construes the events quite differently, parsing what Defendant interprets as a single conversation into two distinct colloquies and arguing that nowhere did defense counsel alert the mind of the trial court to an alleged Sixth Amendment violation. According to the State, the first colloquy was about Salas\u2019s Fifth Amendment rights, while the second sought an evidentiary ruling on the scope of cross examination. Therefore, the State argues, Defendant did not preserve the Sixth Amendment argument for review.\nA. Defendant Did Not Preserve the Sixth Amendment Issue\n{9} We agree with the State that defense counsel did not alert the trial court to the Sixth Amendment issue that Defendant now claims. \u201cTo preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked. ...\u201d Rule 12-216(A) NMRA. We require that a party assert the basis for its objection \u201cwith sufficient specificity to alert the mind of the trial court to the claimed error or errors.\u201d State v. Varela, 1999-NMSC-045, \u00b6 25, 128 N.M. 454, 993 P.2d 1280 (quoted authority omitted). Where an objection is made without the specificity necessary to call the trial court\u2019s attention to the matter complained of, the matter will be deemed unpreserved and ineligible for review. See Hill v. Burnworth, 85 N.M. 615, 616, 514 P.2d 1312, 1313 (Ct.App.1973).\n{10} Defense counsel\u2019s objection during Salas\u2019s direct examination addressed solely Salas\u2019s Fifth Amendment rights; it did not raise, and thus did not preserve, the Sixth Amendment claim that Defendant now argues. Likewise, defense counsel\u2019s inquiry into the scope of cross-examination did not preserve the issue. Defense counsel asked the trial court to rule whether the State had opened the door to questions about promises that may have been made to Salas in exchange for his testimony. Counsel did not argue that refusing the opportunity to ask questions about the non-prosecution promise would violate Defendant\u2019s constitutional rights generally, nor did counsel take the more desirable approach and argue specifically that Defendant\u2019s Sixth Amendment or Confrontation Clause rights would be infringed. The record shows that the trial court treated defense counsel\u2019s inquiry as a request for clarification on the scope of cross-examination. See State v. Lucero, 104 N.M. 587, 591, 725 P.2d 266, 270 (Ct.App.1986) (concluding that confrontation issue was not preserved because defendant\u2019s objection asked merely for an evidentiary ruling and did not alert the trial court to a constitutional error). Thus, if defense counsel meant to characterize his objections as a Sixth Amendment issue at trial, it was not done with sufficient specificity to call the trial court\u2019s attention to the matter complained of, and therefore was not preserved as such. See State v. Mora, 1997-NMSC-060, \u00b6 47 n. 1, 124 N.M. 346, 950 P.2d 789 (holding that defendant\u2019s failure to object on confrontation grounds or general constitutional grounds resulted in abandonment of Confrontation Clause argument on appeal).\nB. The Trial Court did not Commit Fundamental Error\n{11} Defendant also argues that, even if his Sixth Amendment claim was not preserved, we should consider it under the fundamental error exception to the preservation rule because it involves his fundamental rights. See Rule 12-216(B)(2) (\u201cThis rule shall not preclude the appellate court from considering ... questions involving ... fundamental error or fundamental rights of a party.\u201d). The first step in reviewing for fundamental error is to determine whether an error occurred. Campos v. Bravo, 2007-NMSC-021, \u00b6 8, 141 N.M. 801, 161 P.3d 846. If that question is answered affirmatively, we then consider whether the error was fundamental. Id.\n{12} As to the existence of error, the Court of Appeals correctly held that the trial court erred in preventing defense counsel from inquiring into the possibility of an agreement between Salas and the State. Silva, 2007-NMCA-117, \u00b6 20, 142 N.M. 686, 168 P.3d 1110. \u201cA defendant\u2019s right to cross-examine witnesses concerning bias or motivation to fabricate favorable testimony does not hinge on whether in fact any such deals or understandings were effected.\u201d State v. Martinez, 1996-NMCA-109, \u00b6 17, 122 N.M. 476, 927 P.2d 31 (quoted authority omitted). Instead, as we have explained before, rather than the existence of an actual understanding, the \u201cdeterminative factor in the Court\u2019s analysis\u201d is that \u201c[a] jury ... should be able to take into consideration whether a witness hoped to curry favor by cooperating with the prosecution.\u201d State v. Gonzales, 1999-NMSC-033, \u00b6 24, 128 N.M. 44, 989 P.2d 419 (alteration in original) (quoting Martinez, 1996-NMCA-109, \u00b6 17, 122 N.M. 476, 927 P.2d 31). Therefore, even in the absence of evidence that a deal had been made or could have been made exchanging Salas\u2019s testimony for leniency, defense counsel was entitled to explore the potential that Salas had been offered immunity for his testimony so that the jury, when judging his credibility, could consider whether Salas was testifying with the hope of gaming the State\u2019s favor. Martinez, 1996-NMCA-109, \u00b6 17, 122 N.M. 476, 927 P.2d 31.\n{13} Having identified an error in the trial court\u2019s ruling, we must now determine whether it was fundamental. Campos, 2007-NMSC-021, \u00b6 8, 141 N.M. 801, 161 P.3d 846. We exercise our discretion to employ the fundamental error exception \u201cvery guardedly,\u201d State v. Garcia, 19 N.M. 414, 421, 143 P. 1012, 1015 (1914), and apply it \u201conly under extraordinary circumstances to prevent the miscarriage of justice,\u201d State v. Maestas, 2007-NMSC-001, \u00b6 8, 140 N.M. 836, 149 P.3d 933. Accordingly, we will use the doctrine to reverse a conviction only \u201cif the defendant\u2019s guilt is so questionable that upholding a conviction would shock the conscience, or where, notwithstanding the apparent culpability of the defendant, substantial justice has not been served. Substantial justice has not been served when a fundamental unfairness within the system has undermined judicial integrity.\u201d Campos, 2007-NMSC-021, \u00b6 18, 141 N.M. 801, 161 P.3d 846.\n{14} Upon reviewing the record in the instant case, we cannot say that Defendant is indisputably innocent. See, e.g., Garcia, 19 N.M. at 418, 422, 143 P. at 1013, 1015 (stating that the evidence conclusively established the defendant\u2019s innocence because he was unconscious at the time of the murder for which he was charged). Thus, our inquiry turns to an analysis of whether the trial court\u2019s limitation of cross-examination resulted in a fundamental unfairness that undermined the integrity of our judicial system. See State v. Barber, 2004-NMSC-019, \u00b6 16, 135 N.M. 621, 92 P.3d 633. To resolve that question, we view the trial court\u2019s ruling \u201cin the context of the individual facts and circumstances of the case,\u201d as determined from our review of the entire record. State v. Sutphin, 2007-NMSC-045, \u00b6 19, 142 N.M. 191, 164 P.3d 72 (quoted authority omitted).\n{15} We start by recognizing that the loss of the fundamental right to cross-examine is not necessarily fundamental error. State v. Rogers, 80 N.M. 230, 232, 453 P.2d 593, 595 (Ct.App.1969). Although the trial court in the instant case prevented defense counsel from asking Salas whether he had received immunity in exchange for his testimony, it allowed defense counsel wide latitude in cross-examining Salas on his inconsistent statements and any prior untrue statements he made under oath. This is not a case in which the defendant\u2019s right to cross-examine was entirely vitiated. See Chambers v. Mississippi, 410 U.S. 284, 294, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (holding that the defendant was denied a fair trial because, among other things, a procedural rule prevented him from cross-examining a witness who had earlier confessed to the underlying crime). On the contrary, defense counsel had ample opportunity to cross-examine Salas and did so effectively \u2014 practically decimating his credibility as a witness. Had the trial court\u2019s ruling been a more complete restriction and denied defense counsel the breadth that it enjoyed on cross-examination, we would be more inclined to conclude that the ruling resulted in a fundamental unfairness. ' However, \u201c[a] defendant\u2019s right to confront and to cross-examine is not absolute.\u201d State v. Stephen F., 2008-NMSC-037, \u00b6 6, 144 N.M. 360, 188 P.3d 84 (quoted authority omitted). Viewing the trial court\u2019s ruling among the facts and circumstances of this case, we cannot say that merely disallowing counsel the opportunity to inquire into the possibility of an agreement between Salas and the State worked such a fundamental unfairness in Defendant\u2019s trial that it impugned the integrity of our judicial system. Thus, the trial court\u2019s limitation of cross-examination did not rise to the level of fundamental error.\n{16} For those reasons, we reverse the Court of Appeals\u2019 conclusion that the Sixth Amendment issue was eligible for review and the holding that it reached after considering the merits. Defendant is not entitled to a new trial.\nIII. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TAMPERING CONVICTION\n{17} The State also challenges the Court of Appeals\u2019 holding that there was insufficient evidence to support Defendant\u2019s conviction for tampering with evidence, contrary to NMSA 1978, Section 30-22-5(A) (1963, prior to amendments through 2003). \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 (quoted authority omitted). The State alleges that Defendant tampered with evidence because (1) Defendant had a gun at the scene of the crime; (2) a gun was used to murder Hernandez; (3) the murder weapon was removed from the scene; and (4) the murder weapon was never recovered. The jury was instructed that, to prove Defendant guilty of tampering with evidence, the State had to show that he \u201chid a handgun\u201d and that he did so \u201cintend[ing] to prevent the apprehension, prosecution or conviction of himself.\u201d See UJI 14-2241 NMRA; accord \u00a7 30-22-5(A).\n{18} Tampering 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 \u201capprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another.\u201d Section 30-22-5(A); accord Duran, 2006-NMSC-035, \u00b6 14, 140 N.M. 94, 140 P.3d 515. As we have previously explained, \u201c[ijntent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence.\u201d State v. Motes, 118 N.M. 727, 729, 885 P.2d 648, 650 (1994) (quoted authority omitted). Thus, when direct evidence of an intent to disrupt the investigation is lacking, it is often inferred from an overt act of the defendant. Duran, 2006-NMSC-035, \u00b6 14, 140 N.M. 94, 140 P.3d 515; see also State v. Roybal, 115 N.M. 27, 33-34, 846 P.2d 333, 339-40 (Ct.App.1992). For example, in a case involving death by gunshot to the head, evidence that the defendant gave a gun to his brother shortly after the killing, instructed his brother to hold it, and then lied to the police about his knowledge of the gun\u2019s whereabouts was sufficient evidence of an overt act from which the jury could infer his intent to tamper with evidence. State v. Arellano, 91 N.M. 195, 197, 572 P.2d 223, 225 (Ct.App.1977). However, absent both direct evidence of a defendant\u2019s specific intent to tamper and evidence of an overt act from which the jury may infer such intent, the evidence cannot support a tampering conviction. Duran, 2006-NMSC-035, \u00b6 15, 140 N.M. 94, 140 P.3d 515.\n{19} Such is the case here. The State alleges that Defendant\u2019s possession of a gun and the police\u2019s inability to find the gun used in the murder constitutes sufficient evidence of Defendant\u2019s tampering. However, the State offered no direct evidence to show that Defendant intended to disrupt the police investigation, nor did it provide any evidence, circumstantial or otherwise, of an overt act on Defendant\u2019s part from which the jury could infer such intent. Instead, the State effectively asked the jury to \u201cspeculate that an overt act of ... hiding [the murder weapon] had taken place, based solely on the fact that such evidence was never found.\u201d Id. Therefore, the State failed to meet its burden and the evidence is insufficient to support Defendant\u2019s conviction for tampering with evidence.\n{20} The State alternatively argues that Defendant\u2019s conviction should stand based on a theory of accessory liability. The jury was instructed that it could find Defendant \u201cguilty of [tampering with evidence] even though he himself did not do the acts constituting the crime, if ... [t]he defendant intended that the crime be committed; ... [t]he crime was committed; [and] ... [t]he defendant helped, encouraged or caused the crime to be committed.\u201d See UJI 14-2822 NMRA; accord NMSA 1978, \u00a7 30-1-13 (1972). To convict Defendant as an accessory, the State still had to prove that someone hid the gun intending to disrupt the investigation and that Defendant helped, encouraged, or caused that to occur. See State v. Johnson, 2004-NMSC-029, \u00b6\u00b6 52, 54, 136 N.M. 348, 98 P.3d 998. However, as with Defendant, the record lacks sufficient evidence to establish that someone else acted with such intent, let alone evidence to show that Defendant helped, encouraged, or caused them to so act. Because the State did not provide such evidence, Defendant could not have been found guilty as an accessory to tampering as a matter of law.\n{21} Thus, we agree with the Court of Appeals that there was insufficient evidence to support the tampering conviction.\nIV. CONCLUSION\n{22} Based on the forgoing analysis, we reverse the Court of Appeals\u2019 holding that Defendant\u2019s Sixth Amendment rights were violated and uphold his convictions for second degree murder and conspiracy to commit second degree murder. However, we affirm the Court of Appeals\u2019 conclusion that there was insufficient evidence to support the tampering conviction and remand to the trial court to vacate accordingly.\n{23} IT IS SO ORDERED.\nWE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and CHARLES W. DANIELS, Justices.", "type": "majority", "author": "SERNA, Justice." } ], "attorneys": [ "Gary K. King, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Petitioner.", "Caren llene Friedman, Santa Fe, NM, Kennedy & Han, P.C., Paul J. Kennedy, Albuquerque, NM, for Respondent." ], "corrections": "", "head_matter": "2008-NMSC-051\n192 P.3d 1192\nSTATE of New Mexico, Plaintiff-Petitioner, v. Juan Antonio SILVA, Defendant-Respondent.\nNo. 30,555.\nSupreme Court of New Mexico.\nAug. 20, 2008.\nGary K. King, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Petitioner.\nCaren llene Friedman, Santa Fe, NM, Kennedy & Han, P.C., Paul J. Kennedy, Albuquerque, NM, for Respondent." }, "file_name": "0815-01", "first_page_order": 847, "last_page_order": 853 }