OPINION
{1} Bruce Schwartz (Defendant) asserts that his rights under the confrontation clauses of the United States and New Mexico Constitutions were violated when the district court permitted four witnesses to testify by two-way video over the Internet without the necessary findings that use of video was necessary. We agree and, because there is no reasonable possibility that the video testimony did not affect the verdict, conclude that the testimony was not harmless. Consequently, we reverse Defendant’s convictions. Concluding there is sufficient evidence to support Defendant’s convictions, we also remand for retrial.
BACKGROUND
{2} In March 2008 Martha McEachin left her home in Los Angeles on a train bound for Albuquerque, intending to begin writing a long-planned novel in Mexico. After arriving in Albuquerque, McEachin lived with Defendant for approximately one and a half months before she disappeared. In May, a badly decomposed body was discovered wrapped in a blue air mattress and sheets and covered with a mattress in an alley approximately 500 feet from Defendant’s apartment.
{3} After a two-year investigation, Defendant was charged with McEachin’s murder and tampering with evidence. He was convicted by a jury of second degree murder and tampering with evidence and sentenced to fifteen years in the Department of Corrections. Additional facts are included in our discussion of Defendant’s points on appeal.
DISCUSSION
{4} Defendant makes a number of arguments based on allegations of error in the admission or exclusion of evidence. Because we conclude that Defendant’s confrontation rights were violated and that the violation was not harmless, we reverse Defendant’s convictions. We also conclude that there is sufficient evidence of Defendant’s guilt to permit retrial on remand. Given the disposition of these issues, we do not address Defendant’s other arguments.
A. Confrontation Clause
{5} At trial, four of the State’s witnesses testified using Skype, an “Internet software application^ that... allow[s] users to engage in real time video and audio communications between two or more locations.” 131 Am. Jur. Trials 475 § 1 (2014). Defendant argues that admission of their testimony via Skype violated his rights under the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution. Both the Federal and New Mexico constitutions provide that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.j” See U.S. Const. amend. VI; N.M. Const, art. II, § 14. We will refer to the clause in both constitutions as “the confrontation clause.”
{6} “[T]he [cjonffontation [cjlause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa,
{7} “[Mjere inconvenience to the witness is not sufficient to dispense with face-to-face confrontation.” State v. Chung,
The District Court Erred in Permitting Video Testimony
{8} An FBI agent, two forensic scientists, and Defendant’s mother testified via video. The State concedes that it “did not list any reason for the video testimony” of FBI Agent Bas or forensic scientist Gross “other than their residing outside of New Mexico.” Additionally, it acknowledges that “the district court failed to make individualized factual findings [as] required to excuse [forensic scientist Pearn’s] in-person appearance.” Thus, it concedes that “[t]hese witnesses’ testimony violated Defendant’s confrontation rights.” Although we are not bound by this concession, we agree with this conclusion because the district court failed to make specific findings supporting its conclusion that video testimony by these witnesses was necessary. See id. ¶ 5 (“The necessity must be supported by specific findings by the [district] court.”).
{9} Whether it was error to permit Defendant’s mother, Patricia Labance, to testify via video presents a more complex question. As justification for permitting Labance to appear by video, the State argued that “Labance was born in 1938 and resides in Florida. . . . Labance currently suffers from severe stress, anxietyf,] and depression.” It attached a letter from Labance’s doctor, which stated that “this patient is suffering from severe stress, anxietyf,] and depression and is physically and psychologically unable to travel out of the state for the foreseeable future.” At the hearing on the motion, the district court inquired into the substance of Labance’s testimony and discussed with the parties how Skype works. Although the State said that Labance was available to speak to the district court, no evidence was taken at the hearing. The State also said that “[Labance was] not happy to be coming out here. She hasn’t seen her son in a number of years. But she will come if necessary, but because of her failing health, . . .we’d like to do her [testimony via] live video.” The State also distinguished Chung, in which this Court held that a defendant’s confrontation rights were violated when the district court permitted video testimony based on a witness’s seven-hour travel time, by arguing that “in our case, the travel is so much further and costly.” See Chung,
{10} The State arranged for Labance to testify via Skype from a courthouse in Naples, Florida. During cross-examination, Defendant questioned Labance about her health. Labance testified that she was nervous and that the trial was “upsetting.” In addition, counsel for Defendant and Labance had the following exchange.
Q: ... What type of health issues are you dealing with right now, ma’am?
A: Well, physically I have arthritis really bad. Mentally, I’ve been very stressed, anxious. I’ve been very depressed over this whole situation.
Q: And arthritis would be the main medical diagnosis you’re suffering from?
A: Yes.
Q: Do you have troitble breathing?
A: Not necessarily, no.
{11} After cross-examination was completed, Defendant moved for Labance’s testimony to be stricken from the record. A bench conference was held. Defendant argued that, based on Labance’s testimony, there was “no decent reason” that Labance could not have traveled to New Mexico to testify and that, therefore, his confrontation rights had been violated. The district court expressed some confusion about the contents of the doctor’s letter, asking, “Is the doctor specific as to diagnoses, or is it general issues regarding health}?]” It is not clear from the record whether the letter was produced for the district court’s review during the bench conference. Ultimately, the district court denied Defendant’s motion stating, “None of us are doctors, and we don’t have the medical records. I’m going to accept, again on the basis of good faith, that there’s a legitimate basis for [Labance to appear] by the Skype.”
{12} We interpret the district court’s statements to be a finding that it was medically necessary for Labance to testify via video. See Smith,
{13} “[A]ny exceptions to the general rule providing for face-to-face confrontation [must be] narrowly tailored.” Chung,
{14} Based on the foregoing, we conclude that it was error to permit video testimony by Bas, Gross, Pearn, and Labance because the necessity for video testimony was not supported by sufficient findings.
With One Exception, Admission of Video Testimony Was Not Harmless
{15} A violation alone, however, does not require a new trial. Rather, only when a violation of the confrontation clause is harmful to the defendant does the violation require a new trial. See State v. Tollardo,
{16} To determine whether an error in admission of evidence is harmless, this Court reviews “the error itself, including the source of the error and the emphasis placed on the error at trial. To put the error in context, we often look at the other, non-objectionable evidence of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what role the error played at trial.” State v. Leyba,
{17} We begin by addressing the testimony presented by video related to DNA analyses, then turn to Labance’s testimony. The State presented four forensic scientists, of which two — Pearn and Gross — testified by video. Pearn- developed a DNA profile of McEachin based on DNA found on McEachin’s shoes. She also tested DNA found on the waistband of a pair of jeans found near the body. She concluded that “neither [the victim] or [Defendant] could be excluded as contributors to [the DNA on the waistband].” Thus, Peam’s work (1) resulted in a DNA profile of the victim, and (2) provided a possible link between the body and Defendant.
{18} Gross tested a femur taken from the body, created a DNA profile for the femur, and then compared that profile to the DNA profile of McEachin’s daughter. The daughter’s DNA profile had been completed by an analyst at the Federal Bureau of Investigation (FBI) and provided to Gross. Gross identified the DNA types in common between the two samples and testified that it was “42,000 times more likely to observe th[e common] genetic information if [the daughter] was the true biological daughter [of the victim] as compared to an untested random woman from the population.” The bulk of Ms. Gross’s testimony thus went to identification of the body as McEachin’s.
{19} Bas testified that he obtained a blood sample from McEachin’s daughter that was then forwarded to the FBI for analysis. Bas’s testimony went to a portion of the chain of events that led to the daughter’s sample being analyzed by the FBI and then compared to the profile of the body by Gross, thus leading to identification of the body as McEachin’s.
{20} There is no reasonable possibility that Bas’s testimony had the evidentiary importance to impact Defendant’s conviction. Bas testified only about how he collected blood from McEachin’s daughter and sent it to the Albuquerque field office of the FBI. At the hearing on the State’s motion to permit video testimony, Defendant stipulated that Bas’s testimony only established a chain of custody of the daughter’s sample and, on appeal, Defendant does not address how he was prejudiced by Bas’s testimony at all. In the context of this case and in light of the totality of the circumstances surrounding the testimony, we conclude that Bas’s testimony by video was harmless.
{21} The same is not true of the testimony by forensic scientists Pearn and Gross. The State argues that their testimony was harmless for two reasons. It first argues that because Defendant had an opportunity to cross-examine the witnesses, the use of video had “only a marginal impact on his right of confrontation.” It contends secondly that the video testimony was “relatively] insignifican[t]... in comparison to the overall evidence of guilt.” Despite these efforts to minimize the role of the video testimony in the State’s case, we conclude that the video testimony was critical to identification of the body and association of Defendant with the body, both of which were essential to the State’s case. Hence, there is no reasonable possibility that this evidence did not contribute to Defendant’s conviction. See id. ¶ 45.
{22} In its first contention, the State argues that “Defendant had the ability to cross-examine all of the witnesses appearing by video conference in full view of the jury such that there was only a marginal impact on his right of confrontation.” Cf. State v. Lopez,
{23} The State’s second argument is that Gross’s and Pearn’s testimony was insignificant in comparison to the overall evidence of guilt. Specifically, it argues that (1) the video testimony as to identity was duplicative of other evidence and therefore insignificant, and (2) the video testimony tying Defendant to the body was of “minor significance” compared to evidence of “the victim’s blood on the carpet in Defendant’s bedroom,” which was established through in-person testimony. We address these arguments in turn.
{24} We disagree that the video testimony as to identity was duplicative and therefore harmless for two reasons. First, the video testimony was not merely cumulative of other evidence. Although in-person testimony by McEachin’s friends described her physical features, and the jury could infer from other in-person testimony that those features matched the body, the State nevertheless devoted a substantial amount of time presenting DNA evidence to establish identity. Three different analyses were conducted to do so: Pearn developed a profile using DNA from shoes belonging to McEachin, Gross developed a profile from a femur of the body and compared it to McEachin’s daughter’s profile, and a third witness, testifying in person, compared the Pearn and Gross profiles and found that they matched. The State’s attempt to minimize the importance of the DNA evidence is belied by the amount of time and effort the State took to present the DNA evidence and the emphasis placed on it. Indeed, the State itself described the body’s characteristics as less probative than the DNA evidence in its opening argument. We cannot conclude that the video testimony did not have an impact on the verdict simply because there was also in-person testimony on the identity of the body. Second, even if the video testimony was cumulative, “improperly admitted evidence that is cumulative is not ipso facto harmless beyond a reasonable doubt.” Tollardo,
{25} To the extent the State also argues that Defendant did not contest that the body was McEachin’s and therefore any improperly admitted testimony on that issue was harmless, we disagree. We note first that at trial, the State acknowledged that Defendant “disputed] that it’s even . . . McEachin’s body}.]” In any case, whether Defendant disputed this fact is not conclusive of whether the testimony is harmless. In State v. Sisneros, our Supreme Court addressed a similar argument and held that erroneous admission of a forensic pathologist’s testimony as to the cause of death was harmless because “the cause and manner of death were never in dispute, only the identity of the shooter.”
{26} In its final argument, the State maintains that Pearn’s testimony about the DNA found on the jeans “held only minor significance in tying Defendant to the scene where the body had been hidden” and that because the material — presumed to be blood — found in Defendant’s apartment was “the most damning physical evidence^]” the testimony about the jeans paled in comparison. As discussed, however, Defendant never denied that McEachin had lived with him and argued at trial that McEachin’s DNA could have gotten on the carpet any number of ways during that time. In this context, the DNA on the carpet merely showed that McEachin had been in the apartment. Because Defendant did not dispute this fact, evidence tying Defendant to the body in the alley was critical to the State’s case. We are unpersuaded by the State’s characterization of the video testimony about the jeans in comparison to the DNA found on the carpet.
{27} Finally, the centrality of DNA evidence, including the video testimony, to the State’s case is also evident in the State’s opening and closing arguments. In its opening, the State referred to the jeans as “[Defendant’s] jeans” and stated they were “[o]ne of the most important pieces of the evidence ... at th[e] scene[.]” It described the DNA testing as determinative that the jeans were Defendant’s. It stated that Defendant “put his jeans, evidence of the murder” near the body. The State discussed the DNA testing of the femur from the body and McEachin’s daughter, stating that the physical characteristics of the body did not allow the police to be “absolutely certain” ofthe identity of the body. In closing argument, the State referred to DNA evidence at least four times and devoted a substantial portion of its rebuttal argument to the jeans and DNA evidence related to them, referring to the jeans as “the one piece of evidence that could tie [Defendant] to th[e] body[.]” Based on the role Gross’s and Pearn’s testimony played in the State’s case, we conclude that there is no reasonable possibility that the DNA evidence they presented did not contribute, to Defendant’s conviction. See Leyba,
{28} We turn next to the question, of whether Labance’s testimony was harmless. Labance testified as to the nature of Defendant’s relationship with McEachin, as well as how and when they met. She testified that she had sent Defendant a blue air mattress in early 2008, as well as a set of sheets, a blanket, and other household goods. She authenticated a receipt for those items that she had sent to a detective, which was admitted into evidence. The detective used the authenticated receipt to purchase an air mattress of the same model, a photo of which was also admitted into evidence. During trial, a photo of the air mattress found with the body was compared to the photo of the purchased air mattress. Labance also authenticated letters Defendant had sent her, which were then admitted into evidence. A detective later read the letters during his testimony. In one letter, Defendant acknowledged receipt of the air mattress and stated that he loved McEachin. In another, dated a little more than a week before the body was found, Defendant wrote that McEachin was “headed to El Paso a few weeks ago” and that she was going on to Juarez. Finally, Labance testified that Defendant told her he had given the air mattress away.
{29} The State concedes on appeal that it was “significant that Defendant’s ... air mattress and sheets [] were not only at the scene but wrapped around the victim.” In its motion for video testimony, the State acknowledged that Labance’s testimony was important not only to authenticate the receipt for the air mattress, sheets, and letters from him acknowledging receipt of those items, but also to establishDefendant’s relationship with McEachin. Labance’s testimony provided evidence that Defendant had owned a blue air mattress, as well as details about the air mattress that matched the one found with the body. In addition, her authentication of Defendant’s letters allowed the State to use Defendant’s own statements against him. Labance’s testimony thus established a link between Defendant, the air mattress, and the body. Although the State argues that the documents could have been authenticated another way, the State chose to rely on Labance to get the documents admitted. Having made that choice, the State cannot now argue, simply because there was another method for admission of the documents, that the jury did not rely on Labance’s testimony to convict Defendant. We conclude that Labance’s testimony played a key role in the State’s case and that the State has failed to demonstrate that Labance’s testimony was harmless.
II. SUFFICIENCY OF THE EVIDENCE
{30} We next examine whether the evidence was sufficient to convict Defendant for second degree murder and tampering with evidence both because Defendant asserts the evidence was insufficient and because this Court must address sufficiency in order to determine whether retrial would offend principles of double jeopardy. See State v. Cabezuela,
{31} In a review of the sufficiency of the evidence, “we [first] view the evidence in the light most favorable to the verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Armendariz-Nunez,
{32} In an apparent attempt to reframe the standard of review, Defendant’s only argument on appeal relies on State v. Malouff, a 1970 case in which this Court held that “when circumstances alone are relied upon, they must point unerringly to [the] defendants and be incompatible with and exclude every reasonable hypothesis other than guilt.”
{33} Here, the State was required to prove that
1. [Defendant killed McEachin;
2. [Defendant knew that his acts created a strong probability of death or great bodily harm to . . . McEachin or any other human being;
3. [Defendant did not act as a result of sufficient provocation;
4. This happened in New Mexico on or between the 23rd day of April and the 14th day of May, 2008.
See UJI 14-210 NMRA. Other than asserting that circumstantial evidence is insufficient to support the verdict, Defendant makes no argument identifying which facts lack sufficient evidence. Although we generally do not address undeveloped arguments, we do so here in order to ascertain whether Defendant may be retried on remand. See Cabezuela,
{34} Here, the jury heard testimony that McEachin and Defendant lived together until a few weeks before the body was discovered and that they shared an intimate relationship. Testimony by detectives established that the body was found in an alley 500 feet from Defendant’s apartment, wrapped in a blue air mattress and sheets, covered with another mattress. Defendant’s mother testified that she had sent him a blue air mattress and sheet set as a gift. The jury saw photographs and heard testimony that grid marks on the air mattress looked like the grid of a shopping cart and that there was a shopping cart at the scene. They also heard testimony that Defendant had shopping carts in his apartment. They heard testimony that a pair of jeans with DNA on it — for which Defendant could not be ruled out as the source — was found near the body. A forensic scientist testified that McEachin’s blood was found on the carpet in Defendant’s apartment. There was also testimony that the cause of death was “multiple blunt force injuries ... [to t]he head and chest area” and that Defendant gave two different explanations for why he no longer had the air mattress his mother sent him. Viewed in the light most favorable to the verdict and indulging all reasonable inferences in favor of conviction, this evidence was sufficient to permit the jury to find Defendant guilty of second degree murder.
{35} We turn to the charge of tampering with evidence. “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 apprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another.” State v. Silva,
1. [Defendant destroyed and/or changed and/or hid and/or fabricated and/or placed clothing belonging to himself and[/]or . . . Mc[E]achin and/or the body of . . . Mc[E]achin and/or her suitcases, her laptop, her printer, her pursef;]
2. [By doing so, Defendant intended to prevent the apprehension, prosecution[,] or conviction of himself;
3. This happened in New Mexico on or between the 23rd day of April and the 14th day of May, 2008.
See UJI 14-2241 NMR.A. The State concedes that it did not present direct evidence or evidence of “an overt act with respect to” McEachin’s suitcase, purse, laptop, or printer. Nevertheless, any lack of evidence regarding McEachin’s belongings does not require reversal here because there was sufficient evidence to support one or more of the other alternative bases for conviction. See State v. Olguin,
{36} In addition to tampering with McEachin’s laptop, printer, purse, or suitcase, the jury instruction permitted conviction on the basis of tampering with Defendant’s own clothing, the victim’s clothing, or the victim’s body. The jury could infer that Defendant placed the victim’s body in the alley from the testimony that Defendant owned a blue air mattress and sheets, that the body was found wrapped in a blue air mattress and sheets, that clothes bearing his DNA were found with the body, and that the alley was approximately 500 feet from his apartment. In addition, there was testimony that a mattress was placed over the body in the alley. Although Defendant argues that this evidence is “only” circumstantial, New Mexico does not recognize a distinction between direct or circumstantial evidence, as previously discussed. We conclude that the evidence presented, viewed in the light most favorable to the verdict, was sufficient to permit the jury to infer that Defendant intended to “prevent [his] apprehension, prosecution, or conviction” by covering and placing the body in the alley. UJI 14-2241.
{37} In conclusion, there was sufficient evidence to support Defendant’s convictions for second degree murder and tampering with evidence.
III. CONCLUSION
{38} Having concluded that video testimony by Peam, Gross, and Labance was admitted in error and that this error was not harmless, we reverse Defendant’s convictions. In addition, since the evidence was sufficient for conviction of both second degree murder and tampering, we remand for a new trial. We need not address Defendant’s other allegations of error in the admission of evidence.
{39} IT IS SO ORDERED.
Notes
The State requests that this Court reconsider its holding in Smith that two-way “video testimony does not itself ‘satisfy’ the requirements of the [confrontation clause].” Id. ¶ 7. We decline to do so.