State v. Radosevich, 376 P.3d 871

Defendant John Radosevich was convicted of aggravated assault with a deadly weapon and tampering with evidence.
The district court directed a verdict on the charged offense of assault with the intent to commit murder and later sua sponte instructed the jury on aggravated assault with a deadly weapon after evidence closed.
The knife at issue was a small kitchen knife not falling within per se deadly weapons, and there was no evidence it was inherently deadly.
The State conceded fundamental error regarding the deadly weapon instruction and that tampering with evidence should be remanded, but argued retrial was permissible.
The State’s prosecution strategy was all-or-nothing, and there were concerns of improper notice and compulsory joinder violations.
On appeal, the court addressed whether the deadly weapon instruction and the sua sponte added offense violated notice and joinder, and whether tampering should be retried or amended.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did erroneous deadly weapon instruction constitute fundamental error?	State conceded error in not instructing on deadly weapon status.	Radosevich was prejudiced by misinstruction and by a new uncharged offense.	Fundamental error; reverse aggravated assault with a deadly weapon.
Does compulsory joinder bar retrial on the uncharged aggravated assault with a deadly weapon?	State argues retrial is permissible after reversal of the charged offense.	Joinder prohibits pursuing a different offense not joined in initial trial.	Barred; State may not retry on aggravated assault with a deadly weapon.
Should tampering with evidence be retried or amended after related conviction reversal?	State seeks retrial or recharacterization of tampering tied to the underlying crime.	Tampering was improperly tied to an identified crime; retrial not warranted.	Tampering conviction stands with amendment to reflect an indeterminate crime; no retrial required.
Was the Victim's bad-act evidence properly admitted and did it affect the tampering verdict?	Evidence offered to show fear/intent relevant to charged offense.	Bad Acts evidence was unfairly prejudicial.	Admission not reversible; no reasonable probability the error affected tampering verdict.

State v. Sutphin, 142 N.M. 191 (NMSC 2007) (fundamental error depends on essential elements and miscarriage of justice)
State v. Nick R., 164 P.3d 72 (NMSC 2007) (fundamental error requires missing element only where established)
State v. Gonzales (Gonzales II), 301 P.3d 380 (NMSC 2013) (joinder precludes sequential, unjoined offenses from same conduct)
State v. Meadors, 121 N.M. 38 (NMSC 1995) ( cognate approach to lesser-included offense and notice)
State v. Hernandez, 127 N.M. 769 (NMCA 1999) ( cognate approach applied to notice; independent analysis required)
State v. Roman, 125 N.M. 688 (NMCA 1998) (amendment of information; entirely new charge improper after close of evidence)
State v. Sanchez, 355 P.3d 51 (NMCA 2015) (tampering elements tied to underlying crime require jury finding)
State v. Alvarado, 315 P.3d 343 (NMCA 2014) (untied tampering verdict aligns with indeterminate crime provision)
State v. Jackson, 148 N.M. 452 (NMSC 2010) (indeterminate crime approach to tampering under §30-22-5(B)(4))