OPINION
{1} Israel Herrera (Defendant) raises a number of challenges to his convictions for second-degree murder and third-degree tampering with evidence. Defendant’s most substantive argument is his contention that his conviction for third-degree tampering with evidence violated his constitutional rights to due process and trial by jury because the jury was not instructed that it must find that the evidence Defendant tampered with related to a capital, first- or second-degree crime, which is an essential element of the crime of third-degree tampering. However, Defendant failed to preserve this claim of error, and we conclude the error was not fundamental where it was undisputed that the evidence he tampered with related to the second-degree murder that the jury found him guilty of committing. Thus, finding no other error, we affirm Defendant’s convictions.
I. BACKGROUND
{2} Defendant was at home one evening with his girlfriend and her child when someone began pounding on their front door. It was a friend of Defendant, who demanded that he be let in. Defendant and his girlfriend testified that the friend was shouting and swearing. They testified that they told the friend to go away, but he continued to pound on the door and shout for several minutes. Defendant claimed that his friend was angry and agitated and was behaving in a way that Defendant had never seen him behave before. Defendant stated he heard the friend say that he was going to spray Defendant’s house with bullets. When Defendant heard this, he picked up a gun. Defendant watched his friend leave and go back to a van parked out on the street. Defendant stated he saw that his friend did not have a gun, but, as his friend got into the van and started backing out, he leaned over in a way that made Defendant believe that he was reaching under the seat. Defendant assumed that his friend was reaching for a gun, and Defendant fired one shot at him. Defendant went back inside and told his girlfriend to leave. Then, he went outside to the backyard and put the gun in a crawlspace underneath the house. He was walking around outside when the police arrested him and informed him that his friend was dead.
{3} Defendant was charged with first-degree murder and third-degree tampering with evidence, which involves tampering with evidence of a capital crime or of a first- or second-degree felony. At trial, Defendant did not dispute that he shot his friend, but argued that the killing was justified by self-defense. In the alternative, he argued that the killing was mitigated by sufficient provocation, such that he could only be found guilty of manslaughter. The jury found him guilty of second-degree murder and guilty of third-degree tampering with evidence. Defendant appeals.
II. DISCUSSION
A. Defendant’s Right to Have the Jury Find All Elements of the Offense of Third-Degree Tampering With Evidence
{4} Based on Defendant’s act of attempting to hide the gun involved in the shooting, he was charged with third-degree tampering with evidence, which applies when a defendant has tampered with evidence relating to a capital crime or of a first- or second-degree felony. NMSA 1978, § 30-22-5(A), (B)(1) (2003). At trial, the jury was provided with an instruction on tampering that required it to find that Defendant hid the gun in an effort to avoid being prosecuted, but did not require it to find that the evidence that was tampered with related to a first- or second-degree felony. Defendant contends that because the jury did not find that his act of hiding evidence related to a first- or second-degree felony, his conviction for third-degree tampering with evidence violated his Sixth Amendment right to have a jury find all facts necessary to the conviction. “We review this constitutional issue de novo.” State v. Alvarado,
{5} New Mexico’s statute criminalizing tampering with evidence imposes different sentences depending on the type of crime that the tampering was done to conceal. Subsection (A) sets out the elements common to all degrees of tampering. Subsection (A) describes the conduct that constitutes the basic act of tampering with evidence and states:
Tampering with evidence consists of destroying, changing, hiding, placing[,] or fabricating any physical evidence with intent- to prevent the apprehension, prosecution[,] or conviction of any person or to throw suspicion of the commission of a crime upon another.
Section 30-22-5(A).
{6} Subsection (B) provides that tampering with evidence may be a petty misdemeanor, a misdemeanor, or a third- or fourth-degree felony, depending on the crime that the tampered-with evidence relates to. Subsection (B) states:
Whoever commits tampering with evidence shall be punished as follows:
(1) if the highest crime for which tampering with evidence is committed is a capital or first[]degree felony or a second[-]degree felony, the person committing tampering with evidence is guilty of a third[-]degree felony;
(2) if the highest crime for which tampering with evidence is committed is a third[-] degree felony or a fourth[-]degree felony, the person committing tampering with evidence is guilty of a fourth[- ] degree felony;
(3) if the highest crime for which tampering with evidence is committed is a misdemeanor or a petty misdemeanor, the person committing tampering with evidence is guilty of a petty misdemeanor; and
(4)if the highest crime for which tampering with evidence is committed is indeterminate, the person committing tampering with evidence is guilty of a fourth[jdegree felony.
Section 30-22-5(B). . The determination pursuant to Subsection (B) that the act of tampering is a petty misdemeanor, a misdemeanor, or a third- or fourth-degree felony determines the sentence that is authorized by law. SeeNMSA 1978, § 31-18-15 (2007) (establishing the basic sentences and fines for felonies); NMSA 1978, § 31-19-1 (1984) (establishing the sentences and fines for petty misdemeanors and misdemeanors).
{7} Defendant was charged with tampering with evidence of a capital crime or first- or second-degree felony as prohibited by Section 30-22-5(B)(l). At trial, the district court instructed the jury that, in order to convict Defendant of tampering with evidence, it had to find the basic facts that constitute tampering under Subsection (A). The instruction did not require the jury to find that Defendant’s act of tampering with evidence related to a capital crime or a first- or second-degree felony. The instruction, which tracked Uniform Jury Instruction 14-2241 NMRA, simply stated:
For you to find . . . [Djefendant guilty of tampering with evidence as charged . . . , the [Sjtate must prove to your satisfaction beyond a reasonable doubt each of . the following elements of the crime:
1.' [Defendant hid a firearm;
2. [D]efendant intended to prevent the apprehension, prosecution},] or conviction of himself;
3. This happened in Chaves County,NewMexico, on or about the 22nd day of November}] 2010.
The issue on appeal is whether the omission of the element that the gun was evidence of a capital crime or a first- or second-degree felony violated Defendant’s right to have a jury find all elements of the offense beyond a reasonable doubt where the conviction and sentence entered by the district court was for the offense of third-degree tampering with evidence.
{8} The right to a trial by jury is guaranteed by the Sixth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment. State v. Grace,
{9} The United States Supreme Court has held that, when a statute provides a general definition of prohibited conduct and then lists a set of stepped sentences that increase based on additional factors, any factor listed in the sentencing section of the statute that increases the prescribed sentence is an element of the offense that must be found by a jury beyond a reasonable doubt. In Jones v. United States,
{10} At the trial in Jones, the jury instruction tracked the definitional section of the statute. Id. at 231. The jury found the defendant guilty of the the elements of the offense, which would have supported a sentence of not more than fifteen years imprisonment, pursuant to Subsection (1). However, at sentencing, the district court found that the evidence at trial demonstrated that the defendant had caused the victim to bleed profusely and to suffer numbness in his ear and permanent hearing loss, such that the defendant could be sentenced under Subsection (2) for carjacking causing serious bodily injury. Id. The district court believed that the bodily injury requirement of Subsection (2) merely involved a sentencing factor and not an element of an offense, such that this finding need not have been made by the jury. Id.
{11} The Supreme Court reversed. Id. at 232. Because the factual situations described in Subsections (2) and (3) increased the possible penalty from the basic maximum of fifteen years, the Supreme Court, as a matter of statutory construction, concluded that Congress intended these factors to be elements of the offense and not mere sentencing factors. Id. at 232-39. Although the Court noted that a contrary interpretation would be reasonable if one were to look solely at the language of the statute, it held that such an interpretation was constitutionally prohibited because to read Subsection (2) and Subsection (3) as merely containing sentencing factors would run afoul of the constitutional guarantees of due process and trial by jury. Id. at 239-52. Jones stated that these constitutional guarantees require that “any fact (other than [a] prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n.6. Therefore, the sentence imposed by the district court was invalid.
{12} Following Jones, the Supreme Court, looking at a different criminal statute, again identified any factor that increases the sentence for an offense as an element that must be found by a jury beyond a reasonable doubt. In Alleyne, the statute at issue was the federal law prohibiting a person from using or carrying a firearm in relation to a crime of violence.__U.S. at__,__,
(i) be sentenced to a term of imprisonment of not less than [five] years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than [seven] years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than [ten] years.
Id. at_,
{13} Pursuant to Jones and Alleyne, it is clear that the factors listed in Subsection (B) of New Mexico’s tampering with evidence statute are elements of the offense for purposes of the Sixth and Fourteenth Amendments. These factors involve factual determinations about what type of crime the tampering was intended to conceal and are linked to increasing levels of punishment- — from that imposed for a petty misdemeanor all the way up to that imposed for a third-degree felony. Therefore, they must be interpreted as elements of the offense, rather than mere sentencing factors, in order to avoid violations of the constitutional right to due process and the right to a jury trial.
{14} Our conclusion that the type of crime that the tampering is intended to conceal under Subsection (B) is an element that must be found beyond a reasonable doubt by the jury is consistent with the conclusion we reached in a slightly different context in Alvarado. There, the defendant was charged with first-degree murder and tampering with evidence.
{15} The State argues that Alvarado is limited to circumstances in which a defendant has been acquitted of the offense that the tampering was intended to conceal, but it provides no persuasive rationale- for this assertion. Alvarado was based on the same constitutional principles at issue in this case, and its reasoning applies here. In Alvarado, we held that, although the state presented evidence that would support a finding that the guns the defendant tampered with were the guns used in the killing, the Court would not draw such an inference from the jury’s verdict since the jury was not asked to determine whether the guns were the same guns used in the killing and, theoretically, the jury could have believed that the defendant tampered with evidence of a different specific crime or of an indeterminate crime. Id. ¶ 15. The same rule applies in this case. Although Defendant was found guilty ofthe second-degree murder, the district court could not simply assume that the jury determined that the tampering related to that offense where the jury could have theoretically found that he tampered with evidence of an indeterminate offense or of some other specific offense. Defendant’s right to have the jury find, beyond a reasonable doubt, all of the elements of the offense was violated by the entry of a conviction for which the jury had not been instructed on all of the essential elements.
{16} We recognize that there is language in a number of New Mexico Supreme Court cases that suggests that the factors in Subsection (B) ofthe tampering statute are not essential elements of the offense, but those cases do not address the issue that we resolve today and are, therefore, not controlling. See State v. Gamlen,
{17} Although we hold that the failure to instruct the jury on one of the elements of the offense of third-degree tampering with evidence was error because it offended Defendant’s rights under the Sixth and Fourteenth Amendments of the United States Constitution, we cannot conclude that the unpreserved error was fundamental. “The 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.” State v. Orosco,
{18} Here, we conclude that it was not. At trial, Defendant testified that, on the evening in question, he took his gun, shot once at the victim, and then took the same gun outside to the backyard and placed it under the house. The jury found, beyond a reasonable doubt, in doing so, Defendant hid the gun with the intent to prevent his apprehension, prosecution, or conviction. Separately, it also found, beyond a reasonable doubt, the act of shooting and killing the victim was second-degree murder, not manslaughter, and not justified by self-defense. As the only evidence at trial was that Defendant’s act of hiding the gun was related to his act of shooting the victim and, as the jury concluded beyond a reasonable doubt that the shooting constituted a second-degree felony, the facts at trial established that the tampering related to a second-degree felony. Accordingly, the omission of this element from the jury instruction was not fundamental error. See United States v. Cotton,
B. A Witness’s Comment on Defendant’s Exercise of His Right to Remain Silent
{19} During cross-examination of the detective who was testifying for the State, Defendant’s attorney asked the detective whether a knife had been found in the alley behind Defendant’s house. The detective said that a knife may have been found and then stated: “[T]he only reason I remember there might have been a knife is because . . . [Defendant] had a cut [o]n his foot and he told me that he jumped over the fence and he told me he cut his foot with that knife.” Defendant’s counsel asked: “[Defendant] told you that?” The detective answered: “This is after he was read his rights.” At this point, Defendant’s counsel objected and moved for a mistrial. Although it is not clear from the record that the witness actually testified that Defendant invoked his right to remain silent, the parties and the district court treated the testimony as if this was the case. The district court denied the motion.
{20} Defendant argues that, pursuant to State v. Franklin,
{21} The Fourteenth Amendment’s Due Process Clause protects against prosecutorial comment on a defendant’s post -Miranda exercise of his Fifth Amendment right to remain silent. See State v. DeGraff,
{22} Here, however, the prosecutor did not elicit the comment. Defendant’s attorney did. Recognizing this flaw in his argument, Defendant asserts that, under State v. Wisniewski, the detective was part of the prosecution team and his comment can therefore be attributed to the prosecutor.
C. Admission of Evidence That Defendant Had Ammunition for Multiple Weapons
{23} At trial, a crime scene technician testified that she observed a variety of different types of ammunition at Defendant’s home. Some of this ammunition fit the kind of gun that was used in this case. Defendant did not obje'ct to this testimony at the time it was offered. Later, outside of the presence of the jury, the parties made arguments about the admissibility of certain exhibits, including a photograph of some of the ammunition, as well as the ammunition itself. At that point, Defendant belatedly moved to strike the technician’s testimony on grounds of relevance. He also argued that the photograph and the ammunition should not be admitted. The district court admitted the ammunition itself and stated that the photograph of the ammunition could be used at trial, but not admitted as an exhibit. The technician then testified again about the three different kinds of ammunition, stating that only one of them could be fired from the gun used in this case.
{24} Defendant asserts that, pursuant to Franklin and Boyer, the district court abused its discretion in admitting the evidence relating to the bullets that could not be fired from the gun that was used in this case. However, Defendant provides no rationale in support of this assertion and provides no authority that would demonstrate that the district court’s admission of this evidence constituted reversible error. Accordingly, we decline to address this argument. See State v. Fuentes,
D. Claims of Error in the Jury Instructions
1. Imperfect Self-Defense
{25} Before the case was submitted to the jury, Defendant asked the district court to instruct the jurors on his claim of imperfect self-defense. The district court refused because, under New Mexico case law, no such instruction is warranted. Defendant asserts that the district court erred in refusing to provide the requested instruction. “The propriety of jury instructions given or denied is a mixed question of law and fact.” State v. Lucero,
{26} “Imperfect self-defense occurs when [a person] uses excessive force while otherwise lawfully engaging in self-defense.” State v. Henley,
2. Voluntary Manslaughter
{27} Defendant also asserts that the district court created a fundamental error at trial when it failed to instruct the jury that' the State was required to disprove that he acted in self-defense as one of the elements of voluntary manslaughter. However, Defendant was not convicted of voluntary manslaughter, and this Court will not review an error in an instruction on a crime of which he was not convicted. See State v. Serially,
3. Sufficiency of the Evidence
{28} Defendant contends that there was insufficient evidence to support his convictions for second-degree murder and for third-degree tampering with evidence. “In reviewing the sufficiency of evidence used to support a conviction, we resolve all disputed facts in favor of the [sjtate, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary.” Rojo,
{29} With respect to Defendant’s conviction for second-degree murder, the State was required to prove, beyond a reasonable doubt, Defendant killed the victim by acts that (1) he knew created a strong probability of death or great bodily harm, (2) he did so without sufficient provocation, and (3) he did not act in self-defense. The jury was instructed that the killing in this case was in self-defense if (1) there was an appearance of immediate danger of death or great bodily harm to Defendant or his family as a result of the victim’s actions, (2) Defendant was in fact put in fear and killed the victim because of this fear, and (3) a reasonable person in the same circumstances would have acted as Defendant did. It was instructed that sufficient provocation “can be any action, conduct[,] or circumstances which arouse anger, rage, fear, sudden resentment, terror[,] or other extreme emotions” so long as the provocation was such that it would cause an ordinary person of average disposition to temporarily lose self-control and would affect that person’s ability to reason. It was also instructed -that provocation is not legally sufficient if an ordinary person would have “cooled off’ before acting.
{30} Defendant contends thatthe evidence was insufficient to support his convictions because there was testimony that the victim came to Defendant’s house and threatened to shoot at the house, then went back to his car and, as he was driving away, leaned down in such a manner that Defendant believed the victim was reaching for a gun. As a consequence, Defendant suggests that either self-defense or sufficient provocation was established as a matter of law. However, Defendant’s view of the evidence is in the light most favorable to himself, rather than the light most favorable to the verdict, which is contrary to the manner in which it must be viewed on appeal. At trial, Defendant testified that he did not actually see the victim with a gun, and evidence was presented from which the jury could reasonably conclude that the victim was shot in the back as he was driving away from Defendant’s house. Furthermore, the only evidence that the victim threatened to shoot at the house came from the testimony of Defendant and his girlfriend, and the jury was not required to credit this evidence. See Rojo,
{31} With respect to his conviction for third-degree tampering with evidence, although we have concluded that the instruction on this charge was improper because it did not instruct the jury that it must find that Defendant’s tampering related to evidence of one of the types of offenses listed in Section 30-22-5(B), we nevertheless assess the sufficiency of the evidence with reference to the jury instructions that were provided at trial. See Dowling,
III. CONCLUSION
{32} Because the only error that Defendant has established on appeal was not preserved at trial and it did not constitute fundamental error, we affirm Defendant’s convictions.
{33} IT IS SO ORDERED.
WE CONCUR:
Notes
We recognize the fact that the tampering relates to an indeterminate crime may itself be an element of the offense that must bo found by the jury beyond a reasonable doubt, since this fact increases the punishment to that set for a fourth-degree felony, whereas, the crime is only a petty misdemeanor if the tampering relates to a misdemeanor or petty misdemeanor. See § 30-22-5 (B)(3), (4). However, the defendant in Alvarado did not file a cross-appeal in order to make that argument, and Defendant does not make ¡there. Accordingly, we need not resolve this question. See In re Doe,