STATE OF NEW MEXICO, Plaintiff-Appellee, v. NOE JIMENEZ, Defendant-Appellant.
NO. 34,375
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
February 14, 2017
Fernando R. Macias, District Judge
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Santa Fe, NM
Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
HANISEE, Judge.
{1} Defendant, a self-represented litigant who was assisted by standby counsel at trial, was charged with and convicted of being a felon in possession of a firearm in violation of
BACKGROUND
{2} On February 25, 2012, Defendant went to the Arid Club in Las Cruces, New Mexico. The Arid Club is a place where Alcoholics Anonymous and Narcotics Anonymous meetings are held. Defendant was a member of the Arid Club and went
{3} Only three people were at the Arid Club when Defendant arrived. One was Brandon Chandler, a volunteer at the club who was running the snack bar that day. Another was someone who identified himself to police as Chandler‘s case manager. The third person was never identified in the record. At some point after Defendant had entered the Arid Club, the Las Cruces Police Department responded to a call at the club. It is unclear exactly who called the police, what was reported, and to what kind of incident police believed they were responding.
{4} Wallace Downs, a detective with the Las Cruces Police Department at the time of the incident, testified at trial that he went to the Arid Club in response to a call from another officer, Sergeant Ronnie Navarrete, who had been “flagged down” at the club. After briefly speaking with Sergeant Navarrete, who did not testify at trial, Detective Downs began interviewing people at the scene to try to determine if there were any witnesses who could describe what was going on inside the club. Detective Downs spoke with the person who identified himself as Chandler‘s case manager.
{5} According to Detective Downs, Chandler “was talking very low as if he were scared or concerned.” There was conflicting testimony regarding whether Chandler was being held against his will inside the Arid Club, but Detective Downs testified that Chandler told him that there was a person inside with a gun and that he did not think he could leave. Defendant testified that Chandler was free to leave at any time. Everyone agreed that once Chandler gave Defendant the phone and Detective Downs asked Defendant to let Chandler leave the club, Chandler walked out within minutes.1
{6} Detective Downs spent approximately one hour on the phone with Defendant, first building a rapport with him and then asking that Defendant surrender to police. Defendant stated that he was armed with a gun, did not want to “go on . . . living,” and wanted to have the police shoot him. Detective Downs requested at least three to five times that Defendant put down his weapon and come out with his hands up to surrender to police. Detective Downs recalled that Defendant agreed to surrender a couple of times but never did. Eventually, the call ended because the battery in the phone Defendant was using died.
{7} Soon after, a tactical team that had assembled on scene, consisting of SWAT officers and a K-9 unit, entered the Arid Club and apprehended Defendant. According to Joshua Savage, an officer assigned to the Las Cruces Police Department‘s K-9 unit, Defendant did not immediately surrender, and application of force was necessary to bring him into custody.
{8} Following Defendant‘s arrest, police searched the Arid Club and obtained a search warrant for the car that Defendant drove there. Inside the club, police recovered a gun that contained six bullets, two of which were live rounds, and a bullet on the floor. Another forty-five rounds of ammunition were located in a bag found inside the vehicle driven by Defendant.
{9} Defendant appeals both counts of conviction. Additional facts are provided as necessary to our discussion.
DISCUSSION
{10} First we take up the ammunition‘s admissibility, which hinges on Defendant‘s Confrontation Clause argument, then discuss whether there was sufficient evidence to support Defendant‘s convictions. Next, we address whether the district court erred in instructing the jury and allowing evidence of Defendant‘s pending lawsuit against the City of Las Cruces before turning to Defendant‘s claim of prosecutorial misconduct.
I. The Trial Court Did Not Violate Defendant‘s Right of Confrontation When it Admitted Evidence Seized From Defendant‘s Car Without Defendant Having an Opportunity to Confront the Officers Who Prepared and Executed the Search Warrant
{11} Defendant argues that his Sixth Amendment right to be confronted with the witnesses against him was violated when the State presented physical evidence seized from his car without calling certain witnesses. The central thrust of Defendant‘s argument on appeal is that he had the right to confront officers that searched his car and the officer that arrested him. Absent such opportunity, Defendant contends, the district court erred by denying his motion to suppress evidence, including the ammunition recovered from his car. Defendant also makes a perfunctory argument that his right of confrontation was violated because the officer who prepared the search warrant for his car was not present at trial. Defendant misunderstands the scope of the Confrontation Clause, and we take this opportunity to address evidence and testimony to which it does not apply.
{12} The Sixth Amendment‘s Confrontation Clause entitles a criminal defendant to “be confronted with the witnesses against him[.]”
{13} We apply these principles to Defendant‘s argument that the district court erred by admitting evidence seized from Defendant‘s car when Defendant did not have the opportunity to confront particular officers involved in the seizure and his arrest.2 Atypically given our consideration of the merits of the issue on appeal, Defendant did not contemporaneously object to the admission of either State‘s Exhibit 34, the forty-five rounds of bullets, or State‘s Exhibit 35, the black bag in which the ammunition was found. Rather, after the evidence had been admitted and after the State rested, standby counsel moved to suppress Exhibits 34 and 35, arguing that the State had failed to lay the proper foundation for their discovery and seizure. Standby counsel also argued that the State had failed to present evidence regarding the evidence‘s chain of custody. The district court denied Defendant‘s motion to suppress, which it
{14} On appeal, Defendant asserts, without providing support from the record, that the testifying officers “would have had to rely on the out-of-court testimonial hearsay statements of the officer who signed the affidavit and conducted the search and the officer who arrested [Defendant].” Defendant thus appears to argue that the testifying officers offered improper, testimonial “basis evidence” regarding the origin of the ammunition. We disagree.
{15} In Carmona, this Court held that an expert‘s testimony stating that the defendant‘s DNA was found on swabs taken from the victim was inadmissible because it violated the Confrontation Clause. 2016-NMCA-050, ¶ 37. In that case, the state argued that its expert relied on the swabs themselves, not on the unavailable Sexual Assault Nurse Examiner‘s hearsay statement that the swabs were taken from the victim, to reach her conclusion. We rejected the state‘s argument, reasoning that the swabs, and particularly the information accompanying them, were utilized to establish or prove facts that “reflect[ed] directly on [the d]efendant‘s guilt or innocence[,]” id. ¶ 38 (internal quotation marks, and citation omitted), thus making statements regarding the circumstances of their use testimonial. Because the expert had based her opinion on an unavailable witness‘s testimonial hearsay (i.e., that the swabs were taken from the victim and from specific locations on her body), we concluded that the defendant‘s right of confrontation was violated when he was deprived of an opportunity to cross-examine the person who collected the evidence. Id. ¶ 42.
{16} The pertinent testimony in this case is distinguishable from Carmona. Stella Carbajal, the evidence custodian and crime scene technician with the Las Cruces Police Department who was called to the incident at the Arid Club, was the only witness who testified regarding acquisition of the complained-of evidence. Although
{17} Unlike in Carmona, where the defendant was denied the opportunity to cross-examine the person who collected and documented the DNA swabs from the victim, here, Defendant had, and indeed exercised, the opportunity to confront Ms. Carbajal regarding her collection and handling of the evidence in question. Defendant asked about how and where Ms. Carbajal photographed the black AARP bag that contained the forty-five bullets. He asked whether she moved that evidence. Ms. Carbajal verified for Defendant that the bag containing the ammunition was in the car when the search began and that the 45 bullets were found there. Our review of Ms. Carbajal‘s testimony reveals that she offered no testimonial hearsay regarding the origin or seizure of the ammunition or any other item of evidence from Defendant‘s car.
{18} What Defendant really seems to challenge on appeal is the fact that he did not have an opportunity to confront the additional officers who “conducted the search” of his car in order to explore a speculative theory that the bullets were planted in his
{19} With respect to the State‘s other witnesses, Defendant argues that “[t]he two officers who testified at trial did not witness the search and could not have possibly known that the bullets were seized from [Defendant‘s] car.” But Defendant fails to demonstrate that either officer made any statement regarding the ammunition specifically found in Defendant‘s car. Our review of the record leads us to conclude that Defendant points to no specific examples of testimonial hearsay statements about the complained-of evidence because none exist.
{20} Officer Savage, the K-9 officer who was involved in the actual apprehension of Defendant, did not testify at all regarding the ammunition found in Defendant‘s car. And while Detective Downs testified that he assisted with the post-arrest search and in securing evidence, and saw the ammunition that was found in the case,4 he did not testify that the ammunition was seized from Defendant‘s car, suggest that he had personal knowledge of that fact, or rely on testimonial hearsay regarding that fact. See Crawford, 541 U.S. at 51-52 (holding that the Confrontation Clause is intended to bar the admission of testimonial hearsay); Ibarra-Diaz, 805 F.3d at 919-20 (explaining
{22} We conclude that Defendant‘s Sixth Amendment right to confront the witnesses against him was not violated because no witness‘s testimony included testimonial hearsay. The district court did not err by denying Defendant‘s motion to suppress State‘s Exhibits 34 and 35.
II. Sufficiency of the Evidence to Sustain Defendant‘s Two Convictions
{23} Defendant argues that the State failed to present sufficient evidence to sustain his convictions for resisting, evading, or obstructing an officer and for being a felon in possession of a firearm. We agree that there was insufficient evidence to convict Defendant of fleeing, evading, or attempting to evade a peace officer, but we disagree with respect to the felon-in-possession of a firearm charge.
A. Standard of Review
{24} “To determine whether the evidence presented was sufficient to sustain the verdict, we must decide whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Brietag, 1989-NMCA-019, ¶ 9, 108 N.M. 368, 772 P.2d 898. We “view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving
B. There Was Insufficient Evidence For the Jury to Convict Defendant of Resisting, Evading, or Obstructing an Officer in Violation of Section 30-22-1(B)
{25} For reasons that are not clear, the State elected to charge, and the grand jury indicted, Defendant under Subsection (B) of
{26} Our Legislature chose to differentiate the manner by which a defendant can violate
{27} In previously interpreting this statute, we explained that “[t]he crime of resisting, evading[,] or obstructing an officer as set forth in
{28} There is nothing to prevent the State from charging a defendant under multiple subsections if it is not clear which charge the evidence will ultimately support. See Benavidez v. Shutiva, 2015-NMCA-065, ¶ 24, 350 P.3d 1234 (illustrating that it is possible to charge both fleeing and resisting in violation of
{29} Our uniform jury instructions reinforce the structure of
{30} Also under
{31} In this case, the district court instructed the jury on the essential elements of “resisting, evading, or obstructing an officer” in the following manner:
For you to find [D]efendant guilty of resisting, evading[,] or obstructing an officer as charged in Count 2, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. [Detective] Downs or [Officer] Savage was a peace officer in the lawful discharge of duty;
2. [D]efendant knew Wallace Downs or Joshua Savage was a peace officer[;]
3. [D]efendant, with the knowledge that Wallace Downs or Joshua Savage was attempting to apprehend or arrest [D]efendant, fled, attempted to evade[,] or evaded Wallace Downs or Joshua Savage; and
4. This happened in New Mexico on or about the 25th day of February, 2012.
(Emphasis added.) This instruction was consistent with the way Defendant was charged in the grand jury indictment, and the third element was the appropriate alternative to give in light of Defendant being specifically charged under Subsection (B) of the statute. See Leal, 1986-NMCA-075, ¶ 15 (“A defendant may not be convicted of a crime for which he was not charged or tried.“). The question is whether the State presented evidence to prove the third essential element: that Defendant “fled, attempted to evade[,] or evaded” Detective Downs or Officer Savage before they were able to arrest him.
{32} Defendant argues that the ordinary meaning of “evade” is “to stay away from someone or something or to slip away.” The State urges us to define “evade” as “to avoid doing (something required).” Because the term “evade” is susceptible of multiple meanings, as evidenced by the parties’ competing definitions that they urge us to adopt, we turn to rules of statutory construction to determine how the Legislature intended to define “evade” in
{33} A “plain meaning” analysis is not appropriate here because of the facial ambiguity of the term “evade.” See Padilla, 2008-NMSC-006, ¶ 7 (“If the language
{34} “The maxim noscitur a sociis applies and confines the word to a meaning kindred to that of the words with which it is associated.” City of Albuquerque v. Middle Rio Grande Conservancy Dist., 1941-NMSC-021, ¶ 33, 45 N.M. 313, 115 P.2d 66 (Salder, J., dissenting). This canon of statutory construction instructs that, when interpreting an unclear or ambiguous term within a statute, we “look[] to the neighboring words in a statute to construe the contextual meaning of a particular word in the statute.” In re Gabriel M., 2002-NMCA-047, ¶ 19, 132 N.M. 124, 45 P.3d 64; see United States v. Williams, 553 U.S. 285, 294 (2008) (explaining that words that are “susceptible of multiple and wide-ranging meanings” can be “narrowed by the commonsense canon of noscitur a sociis—which counsels that a word is given more precise content by the neighboring words with which it is associated”).
{35} In this case, Subsection (B) of
{36} In order, however, to not render “evade” mere surplusage, we note that these terms, while associated, are not identical or synonymous. What distinguishes them is the nature of the conduct and how evasion is achieved: “flee” being conduct that is open and obvious, and “evade” including conduct that is surreptitious. See State v. Gutierrez, 2005-NMCA-093, ¶ 20, 138 N.M. 147, 117 P.3d 953 (evaluating circumstances where an officer asked the defendant to stop, the defendant ignored the officer, went inside a house claiming that he needed to use the bathroom, walked out
{37} We cannot say the same about equating “evade” with “avoid.” While we acknowledge that the State correctly points to one definition of “evade” as being “to avoid doing (something required)”, see Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/evade (last visited on Dec. 9, 2016), we conclude that this is not the definition that the Legislature intended to be used in the context of
{38} This interpretation is consistent with our cases that construe Subsection (B). What all of our Subsection (B) cases have in common is that the defendant’s conduct
{39} By contrast, our cases that deal with Subsection (D)—“resisting or abusing”—make it clear that violations of Subsection (D) differ from Subsection (B) violations in that a defendant’s violation is predicated on a direct engagement with, rather than evasion of an officer. See State v. Cotton, 2011-NMCA-096, ¶ 23, 150 N.M. 583, 263 P.3d 925 (describing the defendant’s conduct that resulted in his being charged under Subsection (D) as kicking at officers who were trying to place him in police car and positioning his legs and head to prevent the door from being closed); Diaz, 1995-NMCA-137, ¶ 14 (explaining that “[a]nyone who commits aggravated assault [on a police officer] . . . also commits resisting in violation of [Section]
{40} Our cases illustrate that another way a person can violate Subsection (D) is by avoiding doing something required, including refusing to comply with an officer’s orders. See, e.g., Diaz, 1995-NMCA-137, ¶¶ 4, 16-23 (providing that “resisting” refers not only to a defendant’s overt physical act, but also to the failure to act when refusing to obey lawful police commands, such as dropping a weapon); see also City of Roswell v. Smith, 2006-NMCA-040, ¶ 5, 139 N.M. 381, 133 P.3d 271 (affirming
{41} In sum, understood temporally and geospatially, violations of Subsection (B) and Subsection (D) are distinguishable based on at what point in an encounter a defendant first begins to exhibit resistant conduct. A defendant who is not yet physically capable of being apprehended and who attempts to avoid apprehension by trying to evacuate himself from the presence of an officer is more likely to be in violation of Subsection (B). By contrast, a defendant who is effectively “cornered,” i.e., whose apprehension is imminent, but who, nonetheless, chooses to challenge or
{42} We turn, now, to the evidence in this case regarding Defendant’s conviction under Count 2. The State relies exclusively on evidence related to the telephonic interaction between Defendant and Detective Downs to establish a violation of
{43} Defendant’s entire interaction with Detective Downs occurred via telephone and lasted somewhere between five and ten minutes, according to Defendant, and one hour, according to Detective Downs. Detective Downs testified that the reason his call with Defendant ended was that the battery in Defendant’s phone died. Detective Downs further testified that, during the course of the call, Defendant agreed on perhaps two or three occasions to surrender to police. Although Defendant ultimately did not willingly surrender to police, we believe the fact that Defendant repeatedly agreed to surrender, coupled with his continued presence in the club, is evidence that he lacked the requisite intent to “flee, attempt to evade, or evade” Detective Downs under Subsection (B). While refusing to comply with Detective Downs’ orders to surrender may have constituted “resisting” under our case law, see Diaz, 1995-NMCA-137, ¶¶ 4, 16-23, in this case we do not believe that this conduct alone was sufficient to convict Defendant as charged. And we reiterate that there was no evidence presented to suggest that Defendant surreptitiously tried to escape from the Arid Club, such as out the back or side door, in order to evade arrest. We conclude that there was insufficient evidence to convict Defendant of fleeing, evading, or attempting to evade Detective Downs.
{44} While the State acknowledges that the jury instructions allowed the jury to convict Defendant of Count 2 based on either his interaction with Detective Downs or Officer Savage, the State, in its briefing, points to no evidence related to Defendant’s interactions with Officer Savage that would support conviction under
{45} The record reflects that Officer Savage, a member of the Las Cruces Police Department’s K-9 unit, entered the Arid Club after the SWAT team made contact with Defendant. Along with other officers, Officer Savage commanded Defendant to
{46} Based on these facts, there is insufficient evidence to support a finding that Defendant “fled, attempted to evade, or evaded” Officer Savage. Defendant’s actions more closely resemble conduct that we have previously stated constitutes “resisting” an officer in violation of Subsection (D). The act of throwing a chair, kicking, and striking at Officer Savage’s K-9—an act of direct physical confrontation and engagement—is more similar to kicking at an officer while resisting being put in a
{47} It matters not whether Defendant was “resisting” because he “feared for [his] life” and was defending himself as he claims, or because he was confused by the conflicting commands, or because he simply did not want to surrender. The burden was on the State to prove that Defendant “fled, attempted to evade, or evaded” Officer Savage. The State failed to carry its burden, and for that reason we reverse Defendant’s conviction under Count 2 and remand for resentencing.
C. There Was Sufficient Evidence For the Jury to Convict Defendant of Being a Felon in Possession of a Firearm in Violation of Section 30-7-16
{48} Because Defendant stipulated to being a convicted felon, the critical element that the State was required to prove in order for the jury to convict Defendant of
{49} “Possession” may be actual or constructive. See UJI 14-130 NMRA. A person is in actual possession of a firearm when, “on the occasion in question, he knows what [the firearm] is, he knows it is on his person or in his presence[,] and he exercises control over it.” UJI 14-130. Alternatively, the State may proceed on a theory of constructive possession, whereby it must prove that, “[e]ven if the [firearm] is not in [Defendant’s] physical presence, . . . he knows what it is and where it is and he exercises control over it.” Id. In the case of constructive possession, we “must be able to articulate a reasonable analysis that the fact-finder might have used to determine knowledge and control.” State v. Garcia, 2005-NMSC-017, ¶ 13, 138 N.M. 1, 116 P.3d 72 (alteration, internal quotation marks, and citation omitted). Under either an actual possession or constructive possession theory, the two key elements the State must establish are knowledge and control. See UJI 14-130. The State must prove that the defendant knows of the “presence and character of the item possessed.” Garcia, 2005-NMSC-017, ¶ 14 (internal quotation marks and citation omitted). Knowledge may be proved by circumstantial evidence, and the jury is permitted to draw a reasonable inference of knowledge. Id. ¶ 15. Control may also be established by drawing reasonable inferences from circumstantial evidence. Id. ¶¶ 20-22. A
{50} In this case, the State had sufficient evidence to proceed and secure a conviction under the theory of either actual or constructive possession. A reasonable jury could have found that Defendant’s possession of the firearm was established through the testimony of Detective Downs. Detective Downs testified on direct examination that Defendant told him that he was armed with a gun. Detective Downs further testified that Brandon Chandler, the volunteer who was working at the snack bar at the Arid Club on the date in question, told him over the phone that Defendant had a gun. If the jury chose to believe Detective Downs, his testimony was sufficient to prove beyond a reasonable doubt that Defendant had knowledge and control, and thereby possession of a gun on February 25, 2012.
{51} There was additional evidence from which a reasonable jury could infer Defendant’s possession of a firearm. Police recovered a handgun inside the club, sitting on a countertop within arm’s reach of where Defendant admitted he had been sitting and just feet from where police apprehended Defendant. This was sufficient evidence to circumstantially establish Defendant’s ability to exercise control over the gun. Police also recovered forty-five rounds of ammunition from inside the car that Defendant drove to the Arid Club on February 25, 2012. While the car belonged to
{52} Finally, Defendant seems to argue that there was insufficient evidence to link him, as opposed to someone else, to the gun found at the club because it was found on a counter in an area that was open to the public. As this Court recognized in State v. Maes, 2007-NMCA-089, ¶ 17, 142 N.M. 276, 164 P.3d 975, “[i]n non-exclusive access cases, the problem the [s]tate faces is the alternative inference that some other individual with access to the premises is responsible for the presence of the contraband.” The problem lies in the fact that “[e]vidence equally consistent with two hypotheses tends to prove neither.” Herron v. State, 1991-NMSC-012, ¶ 18, 111 N.M. 357, 805 P.2d 624. Yet here, no evidence exists to suggest that the gun belonged to or was possessed by anyone other than Defendant. Instead, Defendant testified that Brandon Chandler, the only other person in the club with him when police arrived on February 25, left the club before Defendant and did not place the gun police found on the counter. Furthermore, like in Garcia, 2005-NMSC-017, ¶ 22, where the court held that control over an ammunition clip gave rise to a fair inference of control over the gun in a non-exclusive access situation, here, police found ammunition in Defendant’s car that both matched the ammunition found inside the
{53} Because “a reviewing court will not second-guess the jury’s decision concerning the credibility of witnesses, reweigh the evidence, or substitute its judgment for that of the jury[,]” State v. Lucero, 1994-NMCA-129, ¶ 10, 118 N.M. 696, 884 P.2d 1175, we conclude that the State presented sufficient evidence from which the jury could reasonably infer that Defendant either actually or constructively possessed the .22-caliber handgun recovered from inside the club.
III. The Trial Court Did Not Fundamentally Err by Failing to Give a Portion of the Constructive Possession Jury Instruction
{54} Defendant argues that the district court committed fundamental error when it failed to include optional language from UJI 14-130, the definitional instruction for “possession.” We disagree.
{55} “The standard of review we apply to jury instructions depends on whether the issue has been preserved.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. “If the error has been preserved we review the instructions for reversible error.” Id. If a party fails to “object to the jury instructions as given, . . . we only review for fundamental error.” Cunningham, 2000-NMSC-009, ¶ 8. “Under both standards we seek to determine whether a reasonable juror would have been confused
{56} UJI 14-130 provides that “[a] person is in possession of (name of object) when, on the occasion in question, he knows what it is, he knows it is on his person or in his presence[,] and he exercises control over it.” When the theory of possession is based on constructive possession, the instruction provides supplemental language that “may be used depending on the evidence.” UJI 14-130, Use Note 2 (emphasis added). There are three statements that can be used to supplement the main possession instruction. The first deals with a situation where the object the defendant is accused of possessing is not in his physical presence, but where he nevertheless exercises control over it. UJI 14-130. The second deals with a situation where two or more people may be able to simultaneously constructively possess an object. Id. The third explains that “[a] person’s presence in the vicinity of the object or his knowledge of the existence or the location of the object is not, by itself, possession.” Id. In this case,
For you to find . . . [D]efendant guilty of possession of a firearm by a felon as charged in [C]ount 1, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
- [D]efendant possessed a firearm;
- [D]efendant, in the preceding ten years, was convicted and sentenced to one or more years imprisonment by a court of the United States or by a court of any state; and
- This happened in New Mexico on or about the 25th day of February, 2012.
See UJI 14-701.
{57} In addition to this elemental instruction, the district court instructed the jury as follows with respect to the definition of “possession”:
A person is in possession of a firearm when, on the occasion in question, he knows what it is, he knows it is on his person or in his presence[,] and he exercises control over it.
Even if the object is not in his physical presence, he is in possession if he knows what it is and where it is and he exercises control over it.
{58} The district court included the latter statement even though the evidence showed that Defendant was, in fact, in the physical presence of the gun. The district court, however, did not include the third supplemental statement regarding proximity
{59} We begin our review by noting that in State v. Barber, 2004-NMSC-019, ¶ 1, 135 N.M. 621, 92 P.3d 633, our Supreme Court held that it was not fundamental error to fail to give any part of the definitional instruction for possession. In Barber, like in this case, the defendant’s trial counsel failed to request a jury instruction defining possession. Barber was a case dealing with possession of a controlled substance, in which case UJI 14-3130 NMRA rather than UJI 14-130 applies. See UJI 14-3130 comm. cmt. (“This instruction must be given if possession is in issue and its use replaces UJI 14-130 which should not be used in controlled substance cases.”). However, for our purposes, this distinction does not matter because the instructions are, for all intents and purposes, identical, and the court’s reasoning in Barber is what matters here.
{60} The Barber court explained that definitional instructions are not always essential, see 2004-NMSC-019, ¶ 25, and held that failing to give a definitional
{61} In a case such as this, “we must place all the facts and circumstances under close scrutiny to see whether the missing instruction caused such confusion that the jury could have convicted [the d]efendant based upon a deficient understanding of the legal meaning of possession as an essential element of the crime.” Barber, 2004-NMSC-019, ¶ 25. Here, if the State had relied solely on Defendant’s proximity to the gun found inside the club—i.e., the fact that the chair he was sitting in was directly in front of the gun that police found on the countertop inside the club—it may have been error to fail to give the “proximity” instruction because the jury may have been confused and erroneously equated “proximity” with “possession.” However, the State presented other evidence unrelated to Defendant’s physical proximity to the gun from which the jury could have reasonably concluded that Defendant possessed the gun.
{62} We also note that the district court’s instruction properly informed the jury that, in order to convict Defendant of possession, it had to find both that he knew what the gun was and that he exercised control over it. The omitted instruction of which Defendant now complains does not add anything that was not already addressed by the main definitional instruction. To instruct the jury that “[a] person’s presence in the vicinity of the object or his knowledge of the existence or the location of the object is not, by itself, possession[,]” UJI 14-130, simply restates what the main instruction provides: that one can only be found to be in possession of something if he both “knows” what the object is and “exercises control over it.” Id. We are satisfied that, even under a constructive possession theory, it was not fundamental error for the district court to fail to provide the jury with the optional “proximity” language of UJI 14-130.
{63} Defendant argues that the district court erred when it allowed the State to introduce the fact that Defendant has a pending lawsuit against the City of Las Cruces. While we find the State’s responsive argument somewhat unpersuasive and the record scant as to the district court’s justification for allowing the evidence, we hold that it was not an abuse of discretion and that, even assuming it was, any error in allowing evidence of Defendant’s pending lawsuit was harmless.
{64} We review decisions to admit or exclude evidence under an abuse of discretion standard. See State v. Stampley, 1999-NMSC-027, ¶ 37, 127 N.M. 426, 982 P.2d 477; Garcia, 2005 NMCA-042, ¶ 38. A trial court abuses its discretion “when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the [district] court abused its discretion by its ruling unless we can characterize [the ruling] as clearly untenable or not justified by reason.” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation marks and citations omitted).
{65} At trial, the prosecutor’s first question of Defendant on cross-examination was whether he had “filed some sort of lawsuit against the City of Las Cruces.” After Defendant responded affirmatively and answered the prosecutor’s next question about where the lawsuit was filed, standby counsel requested a bench conference where he
{67} The State clarifies its argument on appeal as being that, because of the conflicting evidence with which the jury was presented, evidence of Defendant‘s lawsuit was “relevant for the purpose of assisting the jury in determining what actually happened at the Arid Club on February 25, 2012.” The State reasons that the evidence would assist the jury with “reconciling . . . competing narratives” and “would have been helpful to the jury‘s assessment of witness credibility[.]” Echoing the prosecutor‘s closing argument, the State also argues that “[h]ad [Defendant] successfully persuaded the jury that his version of the events in question was the more
{68} In order to be admissible, evidence must be relevant.
{69} “[W]hen a defendant testifies, he is subject, within the limits of certain rules, to cross-examination the same as any other witness.” State v. Gutierrez, 2003-NMCA-077, ¶ 13, 133 N.M. 797, 70 P.3d 797. The general rule is that the “[s]tate has a right to inquire into and comment upon the credibility of the defendant as a witness.” State v. Hoxsie, 1984-NMSC-027, ¶ 6, 101 N.M. 7, 677 P.2d 620, overruled on other grounds by Gallegos v. Citizens Ins. Agency, 1989-NMSC-055, ¶ 28, 108 N.M. 722, 779 P.2d 99. Credibility is “[t]he quality that makes something (as a
{70} Bias is widely recognized as being one way to attack the credibility of a witness. See 1 Kenneth S. Broun, McCormick on Evidence § 33 (7th ed. 2013). “Bias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.” United States v. Abel, 469 U.S. 45, 52 (1984). A criminal defendant who testifies at trial is presumed to be biased and to have an interest in the outcome of the case. See United States v. Dickens, 775 F.2d 1056, 1059 (9th Cir. 1985) (explaining that, when a criminal defendant testifies at trial, “the defendant‘s bias in his own behalf [is] self-evident“).7 Bias may also be inferred from “a witness‘[s] like, dislike, or fear of a party, or by the witness‘[s] self-interest.” Abel, 469 U.S. at 52 (emphasis added). “Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness‘[s] testimony.” Id.; see also State v. Chambers, 1986-NMCA-006, ¶ 15, 103 N.M. 784, 714 P.2d 588 (“Testimony concerning bias and credibility is always relevant.“).
{71} Defendant, having chosen to testify, put his credibility in issue, making evidence related to his credibility relevant. The State used the evidence of Defendant‘s pending lawsuit to undermine his credibility by inferring that he had reason to be untruthful in his testimony based on what the State argued was his interest in getting “a big paycheck.” Because Defendant testified to the events at the Arid Club on February 25, 2012, and because Defendant‘s testimony was relevant to establishing whether it was more or less probable that he committed the crimes with which he was charged, it was within the district court‘s discretion to allow the State to introduce evidence for the purpose of impeaching Defendant‘s testimony. We cannot say, as a matter of law, that the district court‘s decision to admit the evidence was “clearly untenable or not justified by reason.” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation marks and citation omitted). We, therefore, hold that the district court did not abuse its discretion in allowing limited testimony regarding Defendant‘s pending lawsuit as a way of attacking Defendant‘s credibility.
{72} As a final matter, we note that Defendant also argues, for the first time on appeal, that the evidence of his pending lawsuit should have been excluded under
{73} Defendant argues that the evidence of his pending lawsuit was “highly prejudicial” because it tended to paint him as a “litigious person and tried to demonstrate to the jury that the only reason [Defendant] was fighting this case was because of a vendetta held against other governmental agencies and so that he could win a significant amount of money.” Given the other evidence in this case that the jury could have relied on to convict Defendant—namely, the testimony of Detective Downs and the physical evidence the State presented—we are not persuaded that the admission of evidence of Defendant‘s pending lawsuit, even if unfair, confusing, and
{74} We hold that it was neither an abuse of discretion nor plain error for the trial court to admit evidence of Defendant‘s pending lawsuit.
V. The State Did Not Commit Prosecutorial Misconduct
{75} Defendant argues that it was prosecutorial misconduct, rising to the level of fundamental error for the prosecutor to (1) repeatedly mention Defendant‘s civil lawsuit, and (2) fail to call as witnesses the police officers who obtained the search warrant for Defendant‘s car and arrested Defendant. We disagree. Defendant failed to object at trial to conduct he now characterizes as prosecutorial misconduct; therefore, we will review Defendant‘s prosecutorial misconduct claims for fundamental error only. See State v. Trujillo, 2002-NMSC-005, ¶ 52, 131 N.M. 709, 42 P.3d 814.
{76} “Prosecutorial misconduct rises to the level of fundamental error when it is so egregious and had such a persuasive and prejudicial effect on the jury‘s verdict that the defendant was deprived of a fair trial.” State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (internal quotation marks and citation omitted). “To find fundamental error, we must be convinced that the prosecutor‘s conduct created a reasonable probability that the error was a significant factor in the jury‘s deliberation
A. The Prosecutor‘s References to Defendant‘s Pending Lawsuit Against the City of Las Cruces Did Not Constitute Prosecutorial Misconduct
{77} In assessing whether prosecutorial misconduct has occurred based on statements made by a prosecutor at trial, reviewing courts are to evaluate a prosecutor‘s challenged statements “objectively in the context of the prosecutor‘s broader argument and the trial as a whole.” Sosa, 2009-NMSC-056, ¶ 26. We start from the long-accepted proposition that “[d]uring closing argument, both the prosecution and defense are permitted wide latitude, and the trial court has wide discretion in dealing with and controlling closing argument[.]” State v. Smith, 2001-NMSC-004, ¶ 38, 130 N.M. 117, 19 P.3d 254 (internal quotation marks and citations omitted). “[R]emarks by the prosecutor must be based upon the evidence or be in response to the defendant‘s argument.” Id. “It is misconduct for a prosecutor to make
{78} Defendant argues that the prosecutor‘s repeated references to Defendant‘s pending civil litigation constituted misconduct because the litigation “had no bearing on the issues in this case[ and were] irrelevant and prejudicial.” Defendant ignores the fact that the trial court overruled his relevancy-based objection to the introduction of evidence of Defendant‘s pending lawsuit. The prosecutor‘s statements during closing and rebuttal were based on facts she had elicited from Defendant on cross-examination after standby counsel‘s objection was overruled. In closing, the prosecutor argued to the jury that Defendant “filed a lawsuit, thinks he‘s going to collect [eighty] million dollars.” The prosecutor also argued that the jury should infer that Defendant “has a bias because now he thinks he‘s going to get a big paycheck.” During rebuttal, she commented, “[D]efendant is the one with bias. [D]efendant is the one who thinks he‘s going to collect an [eighty] million dollar[] paycheck from the
{79} Because the evidence referred to by the prosecutor had been admitted—whether erroneously or not—the prosecutor was free to comment on it. Compare State v. Santillanes, 1970-NMCA-003, ¶¶ 13-14, 81 N.M. 185, 464 P.2d 915 (explaining that the remarks of prosecutor during closing were not improper because they were based on facts in evidence), with State v. Cummings, 1953-NMSC-008, ¶ 8, 57 N.M. 36, 253 P.2d 321 (explaining that “a statement of facts entirely outside of the evidence, and highly prejudicial to the accused, cannot be justified as argument” (emphasis added)). We reject Defendant‘s claim that his conviction was tainted by prosecutorial misconduct.
B. The State Did Not Commit Prosecutorial Misconduct by Not Calling the Officers Involved in Securing the Search Warrant and Arresting Defendant
{80} Defendant argues that the prosecutor committed misconduct by failing to call necessary witnesses, specifically the officer who signed the affidavit for the search warrant for Defendant‘s car and the officer who arrested Defendant, whom Defendant argues he was entitled to cross examine. As this Court has explained, “[t]he decision to call or not call a witness is a matter of trial tactics and strategy within the control of counsel.” Maimona v. State, 1971-NMCA-002, ¶ 11, 82 N.M. 281, 480 P.2d 171.
CONCLUSION
{81} We hold that there was insufficient evidence to support Defendant‘s conviction for resisting, evading, or obstructing an officer under Count 2 of the indictment. We affirm Defendant‘s conviction for felon in possession of a firearm, reverse his conviction under Count 2, and remand for resentencing in accordance with this opinion.
{82} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
TIMOTHY L. GARCIA, Judge
M. MONICA ZAMORA, Judge