State v. Radosevich, 419 P.3d 176

After a midnight disturbance, Radosevich threatened a neighbor with a small steak knife, threw the knife away when police arrived, and officers recovered it. He was charged with assault with intent to commit murder (third-degree felony) and tampering with evidence under NMSA 1978 § 30-22-5(B)(2) (fourth-degree felony).
The district court directed a verdict for Radosevich on the assault-with-intent charge, then instructed the jury on an uncharged lesser offense (assault with a deadly weapon); the jury convicted on that lesser assault and on tampering. The tampering instruction did not identify an underlying offense.
On appeal the Court of Appeals reversed the assault conviction and, because the tampering instruction did not tie tampering to any identified crime, treated the tampering conviction as tied to an “indeterminate” underlying crime and amended the judgment to a felony tampering conviction under § 30-22-5(B)(4).
Radosevich petitioned for certiorari contesting the imposition of a felony tampering sentence where the jury made no finding as to the level of the underlying crime; he argued this violated due process and the right to have a jury find all elements beyond a reasonable doubt.
The Supreme Court of New Mexico granted certiorari to decide whether the tampering statute may constitutionally impose a greater penalty under the indeterminate provision than would apply if the underlying crime were known to be a misdemeanor.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Radosevich)	Held
Whether § 30-22-5(B)(4) may be applied to impose a greater felony penalty when the jury did not (and could not) determine the level of the underlying crime	The indeterminate provision validly authorizes felony punishment when the underlying crime cannot be identified	Imposing a higher felony penalty without a jury finding of the underlying crime level violates due process and the jury-trial right (Apprendi/Winship)	Court: § 30-22-5(B)(4) cannot constitutionally authorize greater punishment than § 30-22-5(B)(3); where the jury does not find the underlying crime level, tampering is punishable only at the lowest statutory level (petty misdemeanor)
Whether tampering to avoid detection of a probation violation is necessarily an “indeterminate” underlying crime under § 30-22-5(B)(4)	The State (per Jackson) previously treated probation-related tampering as subject to the indeterminate provision	Radosevich argued the highest crime for which tampering is committed in probation contexts is the offense for which the defendant is on probation (a known level)	Court: Highest crime is the offense of conviction for which the defendant is on probation (not automatically indeterminate); Jackson is overruled

State v. Jackson, 148 N.M. 452, 237 P.3d 754 (2010) (previously construed § 30-22-5(B)(4) to permit felony punishment when no underlying crime identified; overruled)
State v. DeGraff, 139 N.M. 211, 131 P.3d 61 (2006) (discussed legislative amendment creating tiered tampering penalties)
State v. Frawley, 143 N.M. 7, 172 P.3d 144 (2007) (interpreting Sixth Amendment/Jury findings in sentencing context; invalidated judge-found sentencing enhancements)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing prescribed punishment must be found by a jury)
Jones v. United States, 526 U.S. 227 (1999) (statute with graded penalties construed as separate offenses requiring jury findings)
Alleyne v. United States, 570 U.S. 99 (2013) (any fact increasing penalty is an element for jury to find)
Cunningham v. California, 549 U.S. 270 (2007) (struck down judge-only factfinding that increased sentence)
Mullaney v. Wilbur, 421 U.S. 684 (1975) (due process forbids shifting burden on elements that reduce culpability)
In re Winship, 397 U.S. 358 (1970) (due process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime)