OPINION
{1} Defendant Cameron Slade was convicted of attempted first degree murder after attending a party that ended with one person dead and the victim, Brian Alexander, seriously injured from multiple gunshot wounds. On appeal, Defendant maintains that there was insufficient evidence to support the jury’s verdict. We agree that the State failed to meet its burden to demonstrate that Defendant acted willfully, deliberately, and with premeditated intent to kill the victim. We further conclude that because the State elected to charge attempted first degree murder and not to instruct the jury on attempted second degree murder, double jeopardy principles bar retrial of Defendant for the lesser included charge of attempted second degree murder. Defendant’s conviction is reversed and his sentence vacated.
BACKGROUND
{2} Defendant was charged with and convicted of attempted first degree murder for the shooting of Brian Alexander at a party in Hobbs, New Mexico. Alexander suffered multiple gunshot wounds. The other essential facts are as follows.
{3} After arriving at the party, Defendant waited outside the rented hall while his friend, J.J. Royal, and his cousin, Dedrick Thomas, went inside. Defendant was carrying a .38 revolver that he had borrowed from Royal, and Royal was carrying a semiautomatic .40 caliber pistol belonging to Defendant. Shortly after Royal and Thomas entered the hall, a fight erupted and Royal and Alexander stepped in to break it up. In an attempt to stop the fighting, the party’s organizers turned on the lights and approximately thirty guests began leaving the hall. Once outside, the fight resumed a few yards away from the entrance. Royal and Alexander also left the hall and began fighting each other on a ramp just outside the hall’s entrance. A friend and roommate of Alexander’s, Alton Granville, also joined in the fight. Thomas returned to his car, which was parked a few yards away from the entrance, where he encountered Defendant. After Thomas told Defendant about the fight, Defendant wordlessly walked toward the hall entrance. Thomas then got in his car, drove toward the hall entrance, and parked in the street near the ramp.
{4} Moments later, Royal heard gunshots from an unknown location. Believing he had been shot, Royal drew the semiautomatic .40 caliber pistol and shot Granville four times, killing him. Royal also shot at Alexander several times as Alexander was running down the ramp and away from the hall entrance. Royal fired a total of six times.
{5} Eyewitness testimony about Defendant’s whereabouts during the fighting was mixed. At trial, Alexander testified that he did not see Defendant at all during the shooting, but he had testified at a preliminary hearing that he had seen Defendant in the street. Thomas testified that he did not see Defendant near the fight and never saw him fire a weapon. Royal testified that he did not see Defendant shoot at any time.
{6} After the shooting began, Defendant was seen running with Royal away from the area of the fight, while people fired at them. Defendant and Royal then ran into an alley, pursued by people in a car who were also shooting at them. Royal exchanged weapons with Defendant and fired the .38 revolver at the vehicle one or two times.
{7} Meanwhile, Thomas, whose car had been hit with one bullet, returned to his apartment. Defendant arrived approximately thirty-five minutes later and hid the semiautomatic .40 caliber pistol in a bedroom closet. This weapon was later recovered from a house in Midland, Texas, belonging to a family member of Royal’s. The barrel of the weapon had been removed.
{8} Defendant and Thomas went to the Hobbs Police Department the next day to be interviewed. Defendant instructed Thomas to say that he did not know what had happened, and Defendant told the police during the interview that he went to the party only with Thomas, that he never saw Royal that night, that he stayed in his car most of the time he was there, and that he rode home with Thomas. Thomas testified that Defendant told him that Defendant had “shot . . . Alexander once.” Royal also told police during the investigation that Defendant had admitted shooting Alexander one time, but at trial denied that Defendant had admitted to the shooting.
{9} Several different kinds of bullets and/or casings were recovered from the scene. Six Remington brand .40 caliber casings, later determined to have been fired by the semiautomatic .40 caliber pistol carried by Royal, were found near where Granville was shot. The single bullet recovered from Alexander’s clothing was shown to have been fired by the same gun as two bullets found in Granville’s body, although the forensic examiner could not assess whether the three bullets had been fired by the semiautomatic .40 caliber pistol because the barrel was missing. Five Federal brand .40 caliber casings were also recovered from the street near where Thomas and Defendant had parked. Analysis demonstrated that the Federal casings were all fired from the same weapon, but that weapon was never recovered. One 9 mm unfired bullet was also found at the scene. A bullet fragment found in Thomas’s car was determined to be a different type than the bullets taken from Granville and Alexander. No .38 caliber bullets or casings were recovered from the scene or Alexander, although the .3 8 revolver itself was recovered from Royal’s family member.
{10} After a jury trial, Defendant was convicted of attempted first degree murder and acquitted of tampering with evidence. He was sentenced to nine years of incarceration for attempted first degree murder and one year for the use of a firearm. Additional facts are included as necessary to our discussion.
DISCUSSION
{11} Defendant argues that (1) the State’s evidence fails to demonstrate that he shot Alexander at all; and (2) there was also insufficient evidence that he acted with the requisite intent for first degree murder, i.e., deliberate intent to kill. Defendant also argues that the “corpus delicti rule” was violated because the testimony as to his admission was not trustworthy and there was no independent evidence that Defendant shot Alexander. Because the disposition of Defendant’s sufficiency arguments makes it unnecessary, we do not reach the latter point.
A. The Evidence of Deliberate Intent Was Insufficient
{12} Defendant argues that the evidence presented at trial was “totally insufficient” to support a conclusion that Defendant “committed any criminal act” and that the jury’s verdict rested on “mere guess or speculation.” B ecause the jury was instructed on and returned a verdict as to attempted first degree murder, we focus our analysis on the sufficiency of the evidence pertinent to that charge. We agree with Defendant’s assertion that the evidence did not support a conclusion that he acted with deliberate intent. We begin by discussing the standard of review of such an assertion, first generally and then in the context of attempted first degree murder. We then apply the standard of review to the State’s arguments.
1. Standard of Review
{13} On appeal, the appellate courts “review sufficiency of the evidence . . . from a highly deferential standpoint.” State v. Dowling,
{14} Although appellate courts are highly deferential to a jury’s decisions, it is “the independent responsibility of the courts to ensure that the jury’s decisions are supportable by evidence in the record, rather than mere guess or conjecture.” State v. Vigil,
2. Application of the Standard of Review to This Case
{15} A review of the sufficiency of the evidence proceeds in a two-step fashion. “First we review the evidence . . . with deference to the trial court’s resolution of factual conflicts and inferences[.]” State v. Apodaca,
{16} Here, because Defendant was charged with attempted first degree murder, the jury was instructed in the elements of both attempt and first degree murder. See UJI 14-2801 NMRA (attempt); UJI 14-201 NMRA (first degree murder). The murder statute defines first degree murder as a “willful, deliberate},] and premeditated” killing. NMSA 1978, § 30-2-1(A)(1) (1994). The jury instructions associated with this statute require the jury to find that the defendant acted with “deliberate intention.” UJI 14-201(2). Under these instructions, the State was required to prove that Defendant “deliberately] inten[ded]” to kill Alexander. See State v. Hernandez,
{17} The element of “willful, deliberate},] and premeditated” intent, called “deliberate intention” in the jury instruction, distinguishes first degree murder from second degree murder. See State v. Tafoya,
{18} Uniform Jury Instruction 14-201(2) provides insight into how to distinguish between “deliberate intention” and an impulsive act.
A deliberate intention refers to the state of mind of the defendant. A deliberate intention may be inferred from all of the facts and circumstances of the killing. The word deliberate means arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. A calculated judgment and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate intention to kill. To constitute a deliberate killing, the slayer must weigh and consider the question of killing and his reasons for and against such a choice.
Id.
{19} As noted in Tafoya, this instruction embodies two seemingly opposite ideas: (1) that “deliberate intent” requires a “high level of requisite contemplation,” and (2) that such contemplation may occur in a short period of time. See
{20} The Tafoya Court resolved this conflict by “recogniz[ing] that it is possible in certain cases for a jury to reasonably infer from evidence presented that the deliberative process occurred within a short period of time — the crucial element being the presentation of other evidence.”
{21} Such other evidence of deliberate intent may include “the large number of wounds, the evidence of a prolonged struggle, the evidence of the defendant’s attitude toward the victim, and the defendant’s own statements[,]” State v. Flores,
3. The State Failed to Present Evidence That Defendant Acted Willfully, Deliberately, and With Premeditation
{22} W e now assess the sufficiency of the evidence of deliberate intent in light of the foregoing discussion. The State contends that evidence of Defendant’s premeditated and deliberate intent to kill Alexander may be inferred from (1) Defendant’s alleged motive to kill Alexander; (2) Defendant’s “arrival at the scene with a weapon”; (3) Defendant’s “demeanor and conduct after the killing”; and (4) the number of shots fired. After careful examination of the evidence in the light most favorable to the State, we conclude that an inference of deliberate intent does not follow from the evidence and that the jury would have had to speculate in order to reach that conclusion. “This it may not do.” Vigil,
Motive to Kill
{23} The State argues that the jury could have reasonably inferred that Defendant had a motive to kill Alexander based on (1) Defendant’s knowledge of Royal’s previous conflict with Alexander, or (2) Defendant’s “personal animus” toward Alexanderbased on their membership in rival gangs. See Rojo,
{24} Although the State cites to several cases in which the New Mexico Supreme Court held that an inference of motive may be drawn from past conflict, each of these cases is inapposite because, in those cases, there was evidence that the defendant himself had a history of conflict with the victim. See State v. Coffin,
Arrival at the Hall With a Weapon
{25} The State maintains that Defendant’s “arrival at the scene [of a shooting] with a weapon” is evidence of planning that supports a conclusión that he formed a deliberate intent to kill Alexander. It analogizes the facts here to three cases in support of this argument. In State v. Manus, the defendant became angry when his wife was stopped by police on the street near their house, went inside to get his gun, and returned to shoot two officers, killing one.
{26} Furthermore, the specific circumstances here, without evidence of motive, do not permit an inference that Defendant planned to kill Alexander when he carried the .38 revolver to the hall. State v. Leyba, the third case on which the state relies, provides an example.
{27} Here, the probative value of the fact that Defendant was carrying a .38 revolver is similarly diminished by the circumstances of this case. Defendant does not dispute that he was carrying the revolver when he went to the hall. Thomas testified that he and Defendant had recently completed a concealed weapon permit class. Defendant therefore had a legal right to carry the weapon. See U.S. Const, amend II. Royal testified that he “always had a gun.” The testimony indicated that other guests were carrying weapons and police found five Federal brand casings at the scene that were not fired by either the semiautomatic .40 pistol or the .38 revolver, indicating at least one other weapon was fired there. Indeed, the party organizers had arranged for guests to be searched for weapons before entering the hall, indicating that they anticipated people would be carrying weapons to the party. In this context, the fact that Defendant was also carrying a weapon is not enough evidence from which to infer that he planned to kill Alexander that night.
Conduct After the Shooting
{28} The State also argues that “[l]ooking further to [the] totality of the evidence, the jury could infer Defendant intended to kill. . . Alexander from Defendant’s demeanor and conduct after the [attempted] killing.” See Flores,
{29} First, Defendant was shot at as he ran away from the hall. Under these circumstances, assigning some further reason or significance to Defendant’s flight amounts to pure speculation. Second, even if Defendant hid the gun, lied to police, or told Thomas not to talk, these factors, while potentially indicative of a consciousness of guilt as to some involvement in the shooting, are not indicative of Defendant’s state of mind before the shooting. See Garcia,
{30} Similarly, Defendant’s statements that he shot Alexander one time do not indicate his state of mind before the shooting. They simply indicate that he shot at Alexander at least one time. Statements like this that indicate only that a shooting occurred cannot serve as the basis for an inference about whether Defendant premeditated the shooting. See Adonis,
{31} The State relies on State v. Duran for the proposition that intent may be inferred from post-killing statements by a defendant. See
Number of Shots Fired
{32} The State next argues that the fact that Alexander was shot five or six times supports an inference that Defendant acted willfully and deliberately and points to cases in which evidence that a shooter continued to attack the victim after the victim was incapacitated or began leaving the scene supported an inference of intent to kill. See, e.g., State v. Riley,
{33} We reject the State’s argument. Careful review of these cases reveals that the number of shots fired takes on significance only in the context of other evidence of intent. For instance, in Garcia, the- “[defendant admitted that he had accomplished his purpose of warning or scaring the deceased before he aimed and fired” and before he fired, the defendant “looked at the bottom of the gun, held his arms up with the gun straight out in both hands, crouched a bit, hesitated a momentf,] and then fired toward the deceased.”
{34} The importance of analysis of the number of shots in conjunction with the totality of the circumstances was highlighted in Tafoya and Adonis. In Tafoya, the defendant had been drinking and taking drugs with the victims before he, “without any evidence ofmotive, shot [one victim] and then in very quick succession shot [the other victim].”
Similarly, in Adonis, the defendant fired multiple shots at the victim, who was getting out of a car.
{35} The State devotes a substantial portion of its brief to discussion of the number of possible shots that could have been fired by the semiautomatic .40 pistol carried by Royal and the .38 revolver carried by Defendant. The State argues that “[t]he evidence demonstrates . . . Royal could have fired no more than twice at... Alexander, and that one of those bullets may have struck the pavement rather than . . . Alexander. From this, it is apparent that . . . possibly five of the bullets that struck . . . Alexander were fired by Defendant.” The State’s analysis depends on a number of presumptions and inferences. Even if we accept the State’s assertions, however, when considered in context, the number of shots in this case is not indicative of deliberate, premeditated intent to kill. There is no dispute that Royal was engaged in a fistfight near the hall entrance, that others were also fighting nearby, that Defendant went toward the entrance after learning that Royal was fighting, that someone not engaged in the fight fired a gun into the air, and that thereafter multiple shots were fired. Royal testified that, upon hearing the first shot, he believed he had been shot and immediately began shooting Granville. He agreed with defense counsel that all of the shooting occurred very quickly. Alexander also agreed that he heard ten to fifteen shots fired very quickly. One witness stated there were six or seven shots, and another testified that the shots sounded “like fireworks.” Thomas testified that there were “at least a dozen” shots from multiple guns which “rang out” right after the first shot was fired into the air. In the context of this melee, and without other evidence of Defendant’s state of mind, the number of shots fired is insufficient to support an inference that Defendant deliberated before shooting Alexander.
{36} In summary, when considered individually and collectively and in the context of the “heightened burden” on the prosecution to prove a willful, deliberate, and premeditated killing, the state’s evidence in this case is insufficient to sustain an inference of deliberate intent beyond a reasonable doubt. See Adonis,
Double Jeopardy Bars Retrial
{37} Since we conclude that the evidence was too speculative to support the jury’s verdict, we next examine whether to remand for entry of judgment on attempted second degree murder, as the State requests, or for a new trial. We conclude that remand for resentencing for attempted second degree murder is inappropriate here. We further conclude that retrial of Defendant for attempted second degree murder would violate his right to be free from double jeopardy. We explain.
{38} Generally, “appellate courts have the authority to remand a case for entry of judgment on the lesser included offense and resentencing rather than retrial when the evidence does not support the offense for which the defendant was convicted but does support a lesser included offense.” State v. Haynie,
{39} Here, the State did not request an instruction on attempted second degree murder. In charging and instructing only on attempted first degree murder, the State apparently “pursued an ‘all-or-nothing’ trial strategy,” a tactical decision we do not second-guess on appeal. Id. ¶ 14. Hence, direct remand for resentencing is not appropriate.
{40} Neither is a new trial. “Where a defendant successfully challenges his or her conviction on some basis other than insufficiency of the evidence, double jeopardy does not apply.” State v. Gonzales (Gonzales I),
{41} The State argues that dismissal of the charges against Defendant is improper because “the physical evidence presented at trial clearly established ‘Defendant knowingly created a strong probability of death or great bodily injury[,]’ the standard for establishing the offense of attempted second[]degree murder.” See § 30-2-1(B). It is possible that the evidence supports a conviction for attempted second degree murder. Nevertheless, the State pursued a trial strategy that did not include this charge. “As our courts have stated many times, the parties should be liable for the risks of their respective trial strategies. To do otherwise would be to violate the very essence of fairness at the core of the Double Jeopardy Clause.” Gonzales I,
CONCLUSION
{42} For the foregoing reasons, we reverse Defendant’s conviction and remand to the district court to vacate his sentence.
{43} IT IS SO ORDERED.