author: CLINGMAN, Justice.

text:
    STATE of New Mexico, Plaintiff-Appellee, v. Andrew ROMERO, Defendant-Appellant.
    NO. S-1-SC-36229
    Supreme Court of New Mexico.
    Filing Date: December 27, 2018
    Bennett J. Baur, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant
    Hector H. Balderas, Attorney General, Martha Anne Kelly, Assistant Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee
   CLINGMAN, Justice.

{1} Defendant Andrew Romero appeals his convictions arising from the shooting death of Rio Rancho Police Officer Gregg Nigel Benner during a traffic stop. Defendant was convicted of first-degree murder under NMSA 1978, Section 30-2-1(A)(1) (1994) ; two counts of tampering with evidence under NMSA 1978, Section 30-22-5 (2003) ; shooting at or from a motor vehicle under NMSA 1978, Section 30-3-8(B) (1993) ; conspiracy to commit armed robbery under NMSA 1978, Section 30-28-2 (1979) and NMSA 1978 Section 30-16-2 (1973) ; aggravated fleeing a law enforcement officer under NMSA 1978, Section 30-22-1.1 (2003) ; and concealing identity under NMSA 1978, Section 30-22-3 (1963). The sentencing jury found aggravating circumstances in Defendant's first-degree murder conviction because Defendant murdered Officer Benner when Officer Benner was acting in the lawful discharge of an official duty and Defendant knew Officer Benner to be a peace officer at the time of the crime. NMSA 1978, § 31-20A-5(B) (1981). For his crimes, the trial court sentenced Defendant to life in prison without the possibility of parole plus sixty years. Defendant appeals directly to this Court. See N.M. Const. art. VI, § 2 ; Rule 12-102(A)(1) NMRA (requiring that appeals from sentences of life imprisonment be taken to the Supreme Court).

{2} Defendant raises eleven issues on appeal: (1) the trial court erred by not transferring venue outside of the Albuquerque metropolitan area; (2) the trial court erred by not excusing for cause those jurors who were exposed to publicity about the case; (3) the presence of excessive security during the trial prejudiced Defendant; (4) the trial court erred in admitting evidence of uncharged robberies; (5) the trial court should have ordered severance of count five, conspiracy to commit armed robbery; (6) the trial court erred in admitting a video recording of Defendant's nonverbal gestures; (7) the trial court erred in admitting a recording of Defendant's jail telephone call; (8) cumulative error deprived Defendant of a fair trial; (9) Defendant's conviction of shooting at or from a motor vehicle constitutes double jeopardy; (10) the State failed to prove the essential elements of aggravated fleeing; and (11) the State failed to prove deliberate intent, an element necessary to maintain Defendant's first-degree murder conviction. We affirm all of Defendant's convictions except for his conviction of shooting at or from a motor vehicle, which we vacate on double jeopardy grounds.

I. BACKGROUND

{3} Officer Benner was shot and killed during a routine traffic stop at approximately 8 p.m. on May 25, 2015. Officer Benner had initiated the traffic stop of a Dodge Durango because it had a suspicious license plate. Officer Benner initially pulled the Durango over in a parking lot next to Arby's on Southern and Pinetree in Rio Rancho. Tabitha Littles drove the Durango, and a passenger in the vehicle identified himself to Officer Benner as Albert Fresquez. Witnesses later identified Defendant as this passenger. Unbeknownst to Officer Benner, approximately seven hours before the traffic stop, Defendant and Ms. Littles had robbed a Taco Bell in Albuquerque. Officer Benner's traffic stop was unrelated to the Taco Bell robbery.

{4} During this initial traffic stop Officer Benner moved to the rear of the Durango, and, as he began approaching the passenger side, the Durango suddenly accelerated out of the parking lot. While Officer Benner was moving around the Durango, Defendant removed his pistol from under his seat and was holding it between his seat and the center console of the vehicle. Officer Benner pursued the fleeing Durango and caught up to it a short distance away. During the short pursuit, Defendant shoved Ms. Littles out of the Durango, took control of the vehicle, and then brought the vehicle to a stop. As Officer Benner again approached the Durango, this time on the driver side, Defendant fired his pistol four times. All four bullets struck Officer Benner, and he was mortally wounded. Defendant then fled from the scene in the Durango. A multiagency, city-wide manhunt ensued.

{5} At 2:40 a.m. on May 26, 2015, approximately six and a half hours after Defendant shot Officer Benner, Defendant robbed a Shell/Giant gas station. While investigating that robbery, police officers attempted to stop a Chevrolet Impala fleeing from police. During the pursuit, officers observed an object being thrown from the front passenger window. When the chase ended, police found Defendant sitting in the front passenger seat of the Impala and arrested him. Officers recovered the object that was thrown from the front passenger window of the Impala during the chase. It was a nine millimeter Beretta pistol which was later determined to be the pistol used to kill Officer Benner. Defendant's DNA was found on the pistol. When officers searched Defendant, they found the keys to the Dodge Durango that Officer Benner had pulled over and which had fled the scene of his murder.

{6} On June 11, 2015, a grand jury indicted Defendant on ten counts related to Officer Benner's murder. On October 3, 2016, a jury found Defendant guilty of seven of those counts. The trial court sentenced Defendant to life in prison without parole plus sixty years. This direct appeal followed Defendant's sentencing. Additional facts will be provided as necessary in the discussion below.

II. DISCUSSION

A. The Trial Court's Decision to Change Venue to Valencia County

{7} Media coverage of this case was robust and almost entirely negative toward Defendant. Politicians and the public used Defendant and the murder of Officer Benner as a rallying cry for anticrime legislation. Because of the extensive media coverage, Defendant filed a motion to change venue to Rio Arriba County, McKinley County, or Taos County. The trial court granted Defendant's motion to change venue but moved the trial to Valencia County. The trial court concluded that Valencia County was an appropriate venue, and cited public excitement in Sandoval County as reason for the move. See NMSA 1978, § 38-3-3(B)(3) (2003) (requiring a change of venue upon motion if, 'because ... of public excitement ... involved in the case, an impartial jury cannot be obtained in the county to try the case'). Although the trial court's final ruling on venue did not move the trial to one of the three counties Defendant requested in his written motion, defense counsel suggested during a pretrial hearing on the motion that Valencia County was an acceptable alternative.

{8} The trial court summoned 800 prospective jurors, and 300 of those prospective jurors filled out a special questionnaire. The trial court ultimately assembled 150 people for the venire. At the conclusion of voir dire, Defendant renewed his motion to change venue. The trial court denied Defendant's renewed motion.

{9} For the reasons that follow, Defendant's argument that the trial court erred when it initially moved the venue to Valencia County is rendered moot because an impartial jury was actually seated. This Court needs only to address the trial court's decision to keep the trial in Valencia County following jury selection.

1. Standard of Review

{10} We review the trial court's venue determination for abuse of discretion. State v. House , 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967. If the trial court denies a motion to change venue based on presumed prejudice and proceeds with voir dire, "we will limit our review to the evidence of actual prejudice." State v. Barrera , 2001-NMSC-014, ¶ 16, 130 N.M. 227, 22 P.3d 1177. The determination of "[a]ctual prejudice requires a direct investigation into the attitudes of potential jurors." House , 1999-NMSC-014, ¶ 46, 127 N.M. 151, 978 P.2d 967. "A finding of no actual prejudice following voir dire, if supported by substantial evidence, necessarily precludes a finding of presumed prejudice." Barrera , 2001-NMSC-014, ¶ 16, 130 N.M. 227, 22 P.3d 1177. To prove that reversible error occurred during voir dire, Defendant must show that the trial court abused its discretion by not excusing a juror who demonstrated actual prejudice. See Fuson v. State , 1987-NMSC-034, ¶¶ 8, 11, 105 N.M. 632, 735 P.2d 1138. The trial court's decision to wait until after voir dire to rule on a motion to change venue is squarely within the trial court's discretion and will only be reviewed for an abuse of discretion. Barrera, 2001-NMSC-014, ¶ 16, 130 N.M. 227, 22 P.3d 1177. The party that opposes the trial court's venue decision bears the burden of proving an abuse of discretion. House , 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967.

2. The Trial Court Did Not Abuse Its Discretion By Holding the Trial in Valencia County Because the Selected Jurors Demonstrated No Actual Prejudice

{11} After voir dire was complete and a jury was selected, the trial court reconsidered venue in Valencia County on Defendant's renewed motion to change venue. At that time the trial court not only had the evidence Defendant provided concerning media saturation but also the attestations of the jurors who would actually hear the case. Voir dire revealed no actual prejudice in the jury selected.

{12} During voir dire, the attorneys and the judge questioned potential jurors about the publicity surrounding the trial and whether they could be fair and neutral arbiters. Each empaneled juror affirmed the ability to be a neutral finder of fact. Defendant specifically identifies seven jurors who, he argues, should have been excused for cause because of media exposure. Jurors 4, 20, 22, and 38 were empaneled on the jury, and Defendant used peremptory challenges to excuse Jurors 33, 45, and 65.

{13} Jurors 20, 22, and 38 acknowledged that they had seen news coverage about the case but testified that it would not affect their ability to be impartial. Jurors 4 and 33 expressed a degree of sadness or sympathy for the victim but attested that they could still be fair and impartial finders of fact. Juror 45 indicated in a pre-voir-dire questionnaire that Defendant might be guilty, and Juror 65 wanted to "see justice," but both freely affirmed that Defendant was innocent until proven guilty and that they could be fair and impartial.

{14} A careful examination of the record reveals that the trial court took great care to empanel a jury that could fairly decide the case. Our case law is clear. "Exposure of venire members to publicity about a case by itself does not establish prejudice or create a presumption of prejudice." Barrera , 2001-NMSC-014, ¶ 18, 130 N.M. 227, 22 P.3d 1177 (internal quotation marks and citation omitted). "[T]he pertinent inquiry is whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant." Id. (omission in original) (internal quotation marks and citation omitted). We find no evidence of such fixed opinions. As noted previously, every juror Defendant asserts should have been removed for cause affirmatively stated that he or she could be impartial and would strive to decide the case fairly. The trial court seated a jury and in so doing determined that actual prejudice did not exist among the jurors selected.

{15} Defendant asks us to look past the affirmative statements of the jurors during voir dire and argues that these jurors should have been dismissed for cause merely because some had heard details of the case and that "a juror's affirmance of impartiality is not conclusive" (internal quotation marks and citation omitted). On matters of credibility we will not replace the trial court's judgment with our own. See State v. Hernandez , 1993-NMSC-007, ¶ 52, 115 N.M. 6, 846 P.2d 312. The trial court is in a better position than this Court "to assess the demeanor and credibility of prospective jurors." Id. ; see State v. Johnson , 2010-NMSC-016, ¶ 34, 148 N.M. 50, 229 P.3d 523 ("The trial court ... is in the best position to determine whether voir dire has sufficiently exposed any biases that may preclude jurors from acting fairly and impartially." (internal quotation marks and citation omitted) ). The record provides no evidence that the trial court manipulated the jurors, or in any way persuaded them to declare impartiality. Furthermore, the transcript of voir dire makes clear that the trial court gave the attorneys ample time and granted them great latitude to question prospective jurors regarding their potential biases. Each juror that Defendant argues should have been excused freely affirmed the ability to be impartial.

{16} This Court cannot engage in judgment of the jurors' character from the cold record before it. The trial court determined through voir dire that the jurors, although they may have heard of the case, were capable of impartiality. "More is not required." Barrera , 2001-NMSC-014, ¶ 18, 130 N.M. 227, 22 P.3d 1177. We decline to adopt Defendant's argument that any exposure by the jurors to news about the case necessarily requires that those jurors be dismissed. If we were to adopt Defendant's argument, our trial courts would be hard pressed to hold a trial given today's media saturated society. The trial court did not abuse its discretion by declining to excuse those jurors for cause.

{17} This Court need not decide the merit of the trial court's initial decision to move the venue to Valencia County. As we have discussed, an unbiased jury was actually selected and seated, rendering this issue moot. Actual prejudice, not presumed prejudice, is the standard by which we review the trial court's decision in this case. Id. ¶ 16. The parties and the trial court made sufficient inquiry during voir dire into the actual prejudice of the jurors. The jurors selected did not exhibit actual prejudice. The trial court acted within its discretion to deny the renewed motion to change venue. Defendant's argument therefore fails.

B. Prejudicial Effect of Security Presence in the Courtroom

{18} Defendant argues that the level of courthouse security during voir dire rose to such an extreme that the jurors could not help but be prejudiced against Defendant. Because of this, Defendant moved for a mistrial during the second day of voir dire.

1. Standard of Review

{19} A trial court's denial of a motion for mistrial is reviewed for an abuse of discretion. State v. Ernest Joe Gallegos , 2009-NMSC-017, ¶ 21, 146 N.M. 88, 206 P.3d 993. "We review the security arrangements only to determine if the security arrangements were an abuse of discretion by the trial court." State v. Martinez , 1982-NMCA-020, ¶ 10, 97 N.M. 540, 641 P.2d 1087.

2. The Trial Court Did Not Abuse Its Discretion by Denying Defendant's Motion for a Mistrial Due to the Security Presence During Voir Dire

{20} The mere presence of security personnel at a trial "need not be interpreted as a sign that the defendant is particularly dangerous or culpable." Holbrook v. Flynn , 475 U.S. 560, 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). "Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence." Id. at 569, 106 S.Ct. 1340. In fact, "it is entirely possible that jurors will not infer anything at all from the presence of the guards." Id. Depending on where the guards sit, how they are armed, and the number of officers present, the jury may perceive the security "more as elements of an impressive drama than as reminders of the defendant's special status." Id. The presence of armed guards in our society has, in many cases, desensitized the public in that "they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm." Id.

{21} The record contains little evidence of what the security team actually looked like during voir dire and later during trial. Although not evidence, defense counsel's statements are illustrative. State v. Jacobs , 1985-NMCA-054, ¶ 24, 102 N.M. 801, 701 P.2d 400 (stating that defense counsel's claim that the jury observed the defendant wearing handcuffs "is not evidence" of "the facts of the [claim]"). Here, defense counsel stated, "I would ask the court to consider having these corrections guys not patrol the hallway with AR-15s. I know rifles. One guy was carrying six 30-round clips. I don't know who he expects to shoot with six 30- or 25-round clips, but it's overkill and it's dangerous ...." The trial judge said twice that he would ask the sheriff to "tone down" the security presence, specifically "with regard to ... long rifles." But Defendant provided this Court with no photographs of the security at the courthouse and no witness testimony regarding security and never asked the judge to take judicial notice of any fact. Defense counsel made certain claims about the security, but without evidence this Court simply cannot take those claims as undisputed fact. Id. ¶ 24 ("As to the facts of the incident, there is nothing. All we have is counsel's claim, which is not evidence."). Defendant does not raise any claims of overbearing security other than during voir dire. The record does not indicate whether the trial court cured the issue.

{22} Defendant had the opportunity to ask about every prospective juror's thoughts, impressions, and feelings regarding the courthouse security. Defendant did not elicit a single response that indicated the security was so pervasive as to prohibit impartiality. Jurors admitted that they noticed the security presence but most jurors indicated they felt safe; some thought the security was to protect Defendant; others thought it was a precaution in the event of protestors; and still others thought the security was standard. All jurors affirmed that the security did not affect their ability to be fair and impartial.

{23} This Court has nothing to consider except the jurors' testimony about their thoughts regarding the security, which consistently indicates the security was not prejudicial. Defendant does not bring to our attention any other concerns regarding security beyond what was urged during voir dire. This Court cannot speculate as to how intrusive or prejudicial the security might have been. It is trial counsel's duty to preserve error and present sufficient evidence of the preserved error for appellate review. Defendant did not meet his burden to prove prejudice, actual or otherwise. We conclude that the trial court did not abuse its discretion by denying Defendant's motion for mistrial.

C. The Trial Court's Decision to Permit Evidence of Uncharged Robberies

{24} In the months leading up to Officer Benner's murder, Defendant and his accomplice, Ms. Littles, committed at least seven armed robberies to support their drug habit. During trial, Ms. Littles described how she and Defendant typically robbed businesses and how she and Defendant had robbed a Taco Bell only a few hours prior to Officer Benner's murder. Ms. Littles identified the Taco Bell that she and Defendant robbed, she identified Defendant robbing the Taco Bell on surveillance video, she identified the Durango that she drove as the getaway vehicle, and she identified the type and caliber of pistol Defendant used in the robbery. Additional testimony detailed how, following Officer Benner's murder, Defendant robbed a Shell/Giant station in Albuquerque on May 26, 2015, at approximately 2 a.m. The detective investigating both the Taco Bell robbery and the Shell/Giant robbery identified Defendant as the perpetrator of both robberies.

{25} The trial court ruled that evidence of the Taco Bell and Shell/Giant robberies was admissible to show "Defendant's identity, intent, motive, and plan" and that its "probative value ... outweighed any undue prejudice." The trial court ultimately allowed the State to briefly inquire about the earlier robberies that Defendant had perpetrated with Ms. Littles between March 22, 2015, and May 24, 2015 (earlier robberies), to provide context for her plea agreement or as a preemptive disclosure should Defendant elect to use them to discredit Ms. Littles' testimony.

1. Standard of Review

{26} Admission of evidence of other crimes under Rule 11-404(B) NMRA is within the sound discretion of the trial court, and its determination will not be disturbed on appeal in the absence of an abuse of discretion. State v. Otto , 2007-NMSC-012, ¶ 9, 141 N.M. 443, 157 P.3d 8. Likewise, the exclusion of relevant evidence under Rule 11-403 NMRA"explicitly recogniz[es] the large discretionary role of the [trial court] in controlling the introduction of evidence." State v. Day , 1978-NMCA-018, ¶ 26, 91 N.M. 570, 577 P.2d 878 (internal quotations marks and citation omitted). In testing the balance between the relevant probative value and prejudicial effect of evidence under Rule 11-403, an abuse of discretion results "when the trial court's decision is contrary to logic and reason." Davila v. Bodelson , 1985-NMCA-072, ¶ 12, 103 N.M. 243, 704 P.2d 1119.

2. The Trial Court Did Not Abuse Its Discretion by Allowing Testimony About the Earlier Robberies

{27} "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Rule 11-404(B)(1). Defendant properly preserved his objection to Ms. Littles' testimony about the earlier robberies. Nonetheless, the trial court was within its discretion to admit the testimony. Evidence of a defendant's crimes, wrongs or other acts "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Rule 11-404(B)(2). Under Rule 11-404(B)(2) the list of permissible uses of prior bad act evidence is not exhaustive. Otto , 2007-NMSC-012, ¶ 10, 141 N.M. 443, 157 P.3d 8. Proffers of other wrongs excluding those to prove character may be admissible, but the trial court must always "determine that the probative value of the evidence outweighs the risk of unfair prejudice, pursuant to Rule 11-403." Id.

{28} The trial court allowed testimony about the earlier robberies to give context to Ms. Littles' plea deal and to rebut impeachment by Defendant. The trial court refused to allow the State to delve into the details of every single robbery Ms. Littles admitted committing with Defendant. Instead, the trial court limited the State's inquiry to the general method the pair used to rob businesses, that the earlier robberies occurred, and that Ms. Littles was with Defendant at each occurrence. Additionally, the State's inquiry gave context to Ms. Littles' relationship with Defendant and Ms. Littles' role during earlier robberies, which were relevant to her role and physical position during the murder of Officer Benner. It is not the job of this Court to speculate on every conceivable purpose a portion of testimony may have, and "[i]f there are reasons both for and against a court's decision, there is no abuse of discretion." State v. Smith , 2016-NMSC-007, ¶ 27, 367 P.3d 420. The trial court was within its discretion to allow Ms. Littles to testify about the earlier robberies.

3. The Trial Court Did Not Abuse Its Discretion by Allowing Evidence of the Robberies on May 25 and May 26

{29} Under Rule 11-404(B)(2), evidence of the robberies committed on May 25, 2015, and May 26, 2015, is "admissible for ... proving motive ... [or] identity" of the person who murdered Officer Benner. Defendant contends that the Taco Bell robbery on May 25, 2015, and the Shell/Giant robbery on May 26, 2015, are not probative of identity or motive in the murder of Officer Benner. Defendant is incorrect. The State presented evidence proving identity by showing that Defendant committed the Taco Bell and Shell/Giant robberies wearing the same clothes that Defendant was wearing at the time Officer Benner pulled him over and that Defendant used the same pistol in the Taco Bell and Shell/Giant robberies that he used to murder Officer Benner. Upon Defendant's arrest following the Shell/Giant robbery, officers found on Defendant the key to the Dodge Durango that fled the scene of Officer Benner's murder and which Defendant had used in the Taco Bell robbery, again bearing on identity. Consciousness of his guilt of the Taco Bell robbery gave Defendant a motive to kill Officer Benner and thereby avoid apprehension and a return to prison. Ms. Littles testified that "Andrew always said he was never going to go back to prison. It was either going to be him or the cops."

{30} The probative value of evidence about the Taco Bell and Shell/Giant robberies outweighs any unfair prejudice to Defendant. The evidence was admissible as probative of both identity and motive in the murder of Officer Benner. The trial court did not abuse its discretion by admitting evidence of the Taco Bell and Shell/Giant robberies.

4. The Trial Court Did Not Abuse Its Discretion by Declining to Sever the Charge of Conspiracy to Commit Armed Robbery

{31} Defendant argues that if the evidence of the May 25 and May 26 armed robberies was probative of conspiracy to commit armed robbery, then the trial court's denial of the motion to sever the highly prejudicial conspiracy charge was an abuse of discretion. "The decision to grant a severance motion lies within the trial judge's discretion and will not be overturned on appeal unless the joinder of offenses results in actual prejudice against the moving party." State v. Garcia , 2011-NMSC-003, ¶ 16, 149 N.M. 185, 246 P.3d 1057 (emphasis in original). "Even when the trial court abuses its discretion in failing to sever charges, appellate courts will not reverse unless the error actually prejudiced the defendant." State v. Leonardo Gallegos , 2007-NMSC-007, ¶ 18, 141 N.M. 185, 152 P.3d 828. "If the evidence would have been cross-admissible, then any inference of prejudice is dispelled and our inquiry is over." Id. ¶ 20.

{32} In addition to providing evidence of identity and establishing motive for the murder, the Taco Bell and Shell/Giant robberies are admissible as "background evidence to show the context of other admissible evidence," State v. Allen , 2000-NMSC-002, ¶ 43, 128 N.M. 482, 994 P.2d 728, in this case, conspiracy to commit armed robbery. The evidence of the Taco Bell and Shell/Giant robberies was admissible as probative of both murder and conspiracy to commit armed robbery. The evidence was cross-admissible, Defendant was not prejudiced, and the trial court did not abuse its discretion by refusing to order severance of conspiracy to commit armed robbery.

D. Admission of Nonverbal Portion of Interrogation Video

{33} Agent Steve Montano of the New Mexico State Police interrogated Defendant following his arrest on May 26, 2015. During a portion of Defendant's interrogation Agent Montano left the room. While Agent Montano was absent, video surveillance recorded a shift in Defendant's demeanor. Defendant made hand gestures in the shape of a gun. From Defendant's position in the holding cell during interrogation, Defendant could see across the hall into another holding cell occupied by his cousin Crystal Romero, who had been arrested with Defendant after the Shell/Giant robbery. His hand gestures were made in Crystal's direction. At trial Defendant moved to suppress the video. The trial court admitted the muted video showing Defendant's demeanor.

1. Standard of Review

{34} In reviewing an order denying the suppression of evidence, "we defer to the district court's findings of fact that are supported by substantial evidence, and we review the district court's application of the law to the facts de novo." State v. Randy J. , 2011-NMCA-105, ¶ 10, 150 N.M. 683, 265 P.3d 734. Here, the relevant facts are undisputed. We determine whether, as a matter of law, the district court erred in admitting the video showing Defendant's nonverbal conduct. We conclude that it did not.

2. The Trial Court Did Not Err When It Admitted Evidence of Nonverbal Conduct by Defendant

{35} "Under the Fifth Amendment, the privilege against self-incrimination only protects the accused from being compelled to provide the state with evidence of a testimonial or communicative nature." Randy J ., 2011-NMCA-105, ¶ 16, 150 N.M. 683, 265 P.3d 734 (internal quotation marks and citation omitted); see also State v. Harris , 2017 WI 31, ¶ 46, 374 Wis.2d 271, 892 N.W.2d 663 (stating that the Fifth Amendment to the United States Constitution protects an individual from interrogation compelled by law enforcement but not from the individual's own incriminating actions).

{36} The two-fold issue before this Court is whether Defendant was (1) compelled (2) to communicate. We conclude that Defendant's non-verbal conduct was not compelled. Therefore, we need not reach the issue of whether his conduct amounted to a communication.

{37} The muted video depicting Defendant's gestures and demeanor showed Defendant after he had already been Mirandized and had invoked the right to remain silent. If the demeanor evidence communicated a response to a question or if Agent Montano had otherwise compelled Defendant to answer, then any response Defendant gave would likely be protected. But this was not the case after Agent Montano left the room and Defendant was alone. Defendant did not gesture in response to a question asked by Agent Montano or any law enforcement officer. Defendant "was not subjected to compelling influences [or] psychological ploys ..." and his voluntary conduct cannot be said to have been compelled. See Arizona v. Mauro , 481 U.S. 520, 529, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987). Defendant's demeanor and hand gestures were not protected under the Fifth Amendment to the United States Constitution.

{38} The trial court based its decision to show the muted video of Defendant to the jury on a correct application of the law, and that decision is supported by sufficient evidence.

E. The Trial Court's Admission of Defendant's Jail Telephone Call

{39} The trial court admitted the recording of a jail telephone call that the State presented as evidence implicating Defendant in Officer Benner's murder. Defendant objected, arguing that the identity of the inmate making the call could not be sufficiently authenticated to warrant admission under Rule 11-801(D)(2)(a) NMRA (allowing admission of an opposing party's own statement as an exclusion from hearsay).

1. Standard of Review

{40} We review a trial court's admission or exclusion of evidence for an abuse of discretion. State v. Bailey , 2017-NMSC-001, ¶ 12, 386 P.3d 1007. "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case." Id. (quoting State v. Apodaca , 1994-NMSC-121, ¶ 23, 118 N.M. 762, 887 P.2d 756 (internal quotation marks omitted) ).

2. The Trial Court Did Not Abuse Its Discretion by Allowing the Jail Telephone Call Recording to Be Played for the Jury

{41} "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Rule 11-901(A) NMRA. A witness's identification of a voice requires only a "minimal showing" that the voice belongs to the person the witness purports that it to belongs to and sets a "low threshold for admissibility." State v. Loza , 2016-NMCA-088, ¶ 22, 382 P.3d 963 (internal quotation marks and citation omitted); State v. Padilla , 1982-NMCA-100, ¶ 5, 98 N.M. 349, 648 P.2d 807. "The identity of a party making a telephone call may be established by either direct or circumstantial evidence." State v. Roybal , 1988-NMCA-040, ¶ 13, 107 N.M. 309, 756 P.2d 1204, overruled on other grounds by State v. Tollardo , 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. The jury is left to decide the weight given to the evidence. Loza , 2016-NMCA-088, ¶ 22, 382 P.3d 963.

{42} Defendant argues that the State provided no date for the phone call, that there were thirteen other inmates named "Andrew" at the Albuquerque Metropolitan Detention Center (MDC) when the call was placed, and that inmates often switch their personal identification numbers (PIN) to either avoid having their phone calls recorded or simply because they are out of money on their phone cards. Considering the totality of the circumstances, these arguments are without merit. Sufficient evidence justifies the trial court's decision to admit the recording into evidence. The inmate in the recording self-identifies as "Andrew," uses Andrew Romero's PIN, and asks about a person named "Crystal," which is the name of Defendant's cousin who was arrested with him. The inmate references his move from detention in Sandoval County to MDC. This move is consistent with the State's claim that Defendant was moved to MDC so that he could appear at a probation violation hearing in Albuquerque. The State points out that Defendant's move to MDC placed him there two weeks after the murder of Officer Benner, coinciding with the inmate's inquiry about the media coverage of his case and his statement, "Still? Why, it's already been two weeks. A la verga." At the time the call was made, media attention surrounding the case was high, which coincides with the inmate's statement about the high profile nature of the case. Additionally, the inmate's question, "What about what's her name; did I really shoot her or no?" and the response, "Yeah, you shot her in the foot," is consistent with the injury Ms. Littles sustained when a bullet fired by Defendant at the scene of Officer Benner's murder ricocheted and struck her in the foot.

{43} Detective Richard Romero of the Rio Rancho Police Department identified the inmate on the call as Defendant after having listened to three other phone calls, all of which were placed with Andrew Romero's PIN. In United States v. Thomas , the identifying witness conversed with the accused three times. 586 F.2d 123, 133 (9th Cir. 1978). In United States v. Smith , the identifying witness heard the defendant's voice only twice. 635 F.2d 716, 719 (8th Cir. 1980). In both cases, the witnesses' identifications were sufficient to admit the voice evidence. See Padilla , 1982-NMCA-100, ¶ 5, 98 N.M. 349, 648 P.2d 807. Here, not only does Detective Romero identify Defendant's voice as the same voice he identified in three other calls, but substantial corroborating evidence indicates that Defendant placed the telephone call that was recorded and played for the jury.

{44} The circumstances described here are sufficient to make the "minimal showing" of familiarity with Defendant's voice to justify Detective Romero's identification. The trial court's decision to admit the recording was not against logic and was not an abuse of discretion.

F. Cumulative Error

{45} Defendant contends that cumulative error by the trial court requires a new trial. Defendant argues that the cumulative effect of the errors previously discussed, statements made by the prosecutor during closing argument and error in allowing two in-court identifications by witnesses, deprived Defendant of a fair trial. "The doctrine of cumulative error applies when multiple errors, which by themselves do not constitute reversible error, are so serious in the aggregate that they cumulatively deprive the defendant of a fair trial." State v. Carrillo , 2017-NMSC-023, ¶ 53, 399 P.3d 367 (internal quotation marks and citation omitted); see also State v. Alfred Baca , 1995-NMSC-045, ¶ 39, 120 N.M. 383, 902 P.2d 65 (reversing multiple convictions based on cumulative error). In this case, because we conclude that no trial error occurred, cumulative error did not deprive Defendant of a fair trial.

1. The Contents of Prosecutor's Slide During Closing Were Not Prejudicial

{46} Defendant asserts that the trial court erred by not issuing a limiting instruction to the jury after the word "stitches" appeared on the prosecutor's Power Point slide used during closing argument. Defendant contends that by showing the jury the word "stitches" the State was attempting to imply that Defendant's aunt, who was in prison at the same time as Ms. Littles, engaged in witness intimidation.

{47} The State and Defendant are "allowed wide latitude in closing argument and the trial court has wide discretion in ... controlling closing argument." State v. Venegas , 1981-NMSC-047, ¶ 12, 96 N.M. 61, 628 P.2d 306. The trial court determined that the Power Point slide did not warrant a limiting instruction. From our perspective, the word "stitches" does not carry the inherent prejudicial connotation that Defendant urges. Importantly, the Power Point slide Defendant objected to is not part of the record before this Court; therefore, we have no way of putting the word "stitches" into context. Without a record of the objection, this Court will not consider this issue.

2. Two In-Court Identifications of Defendant Made by Witnesses Were Not Error

{48} During trial and for the first time, two eyewitnesses, one from the scene of Officer Benner's murder and one from a gas station visited by Defendant and Ms. Littles, identified Defendant as the man they saw around the time of Officer Benner's murder. Defendant argues that the in-court identifications were "tainted by pretrial publicity." This Court recently addressed this very issue in State v. Ramirez, 2018-NMSC-003, ¶ 33, 409 P.3d 902, in which we held that "[i]t is only when law enforcement are the source of the taint that due process concerns arise."

{49} Defendant had ample procedural safeguards at his disposal to address the fallibility of eyewitness testimony, among which was "the right to the effective assistance of an attorney who can expose the flaws of eyewitness testimony on cross-examination and focus the jury's attention on such flaws during opening and closing arguments." Id. ¶ 35 (citing Perry v. New Hampshire , 565 U.S. 228, 245-47, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012) ). Defense counsel did just that. They brought the witnesses' inconsistencies to the jury's attention on cross-examination and in closing argument. It is the responsibility of the jury to weigh a witness's credibility and determine the accuracy of an in-court identification. State v. Cheadle , 1983-NMSC-093, ¶ 15, 101 N.M. 282, 681 P.2d 708, overruled on other grounds by State v. Belanger , 2009-NMSC-025, ¶ 36, 146 N.M. 357, 210 P.3d 783. The trial court did not err by allowing the in-court identifications.

G. Defendant's Conviction for Shooting at or from a Motor Vehicle Constitutes Double Jeopardy

{50} Defendant's conviction for shooting at or from a motor vehicle violates the Double Jeopardy Clause of the New Mexico Constitution and must be vacated. N.M. Const. art. II, § 15 ("No person shall ... be twice put in jeopardy for the same offense."). The Double Jeopardy Clause protects Defendant from being punished both for the murder of Officer Benner and for causing great bodily harm to Officer Benner by shooting from a motor vehicle, where both convictions were predicated on Defendant's unitary act of shooting Officer Benner. State v. Montoya , 2013-NMSC-020, ¶ 54, 306 P.3d 426. One of the convictions must be vacated. Because first-degree murder carries a greater sentence than shooting at or from a vehicle, compare NMSA 1978, § 31-18-14 (2009) (stating that a capital felony carries a sentence of "life imprisonment or life imprisonment without the possibility of ... parole") with NMSA 1978, § 31-18-15(A)(4) (2007, amended 2016) (stating that a second-degree felony resulting in death carries a fifteen-year sentence), this Court must vacate Defendant's conviction for shooting at or from a motor vehicle. State v. Torres , 2018-NMSC-013, ¶ 28, 413 P.3d 467.

H. Sufficiency of the State's Evidence to Convict Defendant on the Charges of Aggravated Fleeing and Murder in the First Degree

1. Standard of Review

{51} In challenging the sufficiency of evidence used to convict a defendant of a crime, "we must determine whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Reed , 2005-NMSC-031, ¶ 14, 138 N.M. 365, 120 P.3d 447 (internal quotation marks and citation omitted). We review "the evidence in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of the verdict." Id. We will "determine whether any rational jury could have found the essential facts to establish each element of the crime beyond a reasonable doubt." Id.

2. The State Presented Sufficient Evidence for a Rational Jury to Convict Defendant of Aggravated Fleeing

{52} Defendant was charged with and convicted of aggravated fleeing a law enforcement officer (aggravated fleeing) contrary to Section 30-22-1.1(A). Defendant argues that insufficient evidence existed to prove all of the elements of aggravated fleeing. The relevant provision of the statute reads,

Aggravated fleeing a law enforcement officer consists of a person willfully and carelessly driving his vehicle in a manner that endangers the life of another person after being given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed law enforcement officer in an appropriately marked law enforcement vehicle in pursuit in accordance with the provisions of the Law Enforcement Safe Pursuit Act.

Section 30-22-1.1(A) (emphasis added). Defendant contends that the State did not carry its burden with regard to "in pursuit" because Defendant was not pursued when he fled the scene of Officer Benner's murder. Defendant does not dispute that, upon fleeing from Officer Benner's murder, Defendant drove the Durango in a manner that endangered the lives of others or that Officer Benner was a uniformed law enforcement officer in an appropriately marked law enforcement vehicle.

{53} The State is correct when it points out that although Section 30-22-1.1(A) includes "in pursuit" in its language, "pursuit" is not an element of the Uniform Jury Instruction or of the instruction the jury actually received. Tracking UJI 14-2217 NMRA, the instruction to the jury stated,

For you to find the defendant guilty of aggravated fleeing a law enforcement officer ... , the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant operated a motor vehicle,
2. The defendant drove willfully and carelessly in a manner that endangered the life of another person,
3. The defendant had been given a visual or audible signal to stop by Officer Gregg Benner in an appropriately marked law enforcement vehicle,
4. The defendant knew that Officer Gregg Benner had given him an audible or visual signal to stop,
5. This happened in New Mexico, on or about the 25th day of May, 2015.

The absence of "pursuit" in the jury instruction is not dispositive of whether pursuit is an element essential to aggravated fleeing. In this case we conclude that sufficient evidence existed to properly convict Defendant under Section 30-22-1.1(A).

{54} During the initial traffic stop, Officer Benner attempted to approach the passenger side of the Durango when it suddenly accelerated out of the Arby's parking lot. Inside the Durango, Defendant with his Beretta pistol in hand told Ms. Littles, "Drive bitch," and Defendant put the vehicle in gear. As Ms. Littles and Defendant fled from Officer Benner, the Durango nearly collided with a bush, at which point Defendant grabbed the steering wheel and straightened out the vehicle. Defendant then jumped from the passenger seat to the driver seat and shoved Ms. Littles out of the moving vehicle. Shortly thereafter, Defendant brought the Durango to a stop and waited for a pursuing Officer Benner to catch up. Defendant waited until Officer Benner approached the Durango then fired his Beretta four times. Defendant then fled driving the Durango.

{55} Defendant's flight from Officer Benner was part of a continuing course of aggravated fleeing. It began when Officer Benner lawfully stopped the Durango and continued when Defendant put the Durango in gear with gun in hand and ordered Ms. Littles to drive. Defendant's flight and Officer Benner's pursuit ended when Defendant subsequently stopped a second time and killed Officer Benner. The facts of this case demonstrate that Defendant's flight resulted in Officer Benner's pursuit, which ended with the second traffic stop.

{56} The jury found sufficient evidence to convict Defendant of aggravated fleeing.

3. The State Presented Sufficient Evidence for a Rational Jury to Convict Defendant of Murder in the First Degree

{57} The Defendant argues that there is insufficient evidence of "deliberate intent" to support his conviction for first-degree murder. The jury found that Defendant's conduct rose above a "mere unconsidered and rash impulse" and that Defendant possessed "the deliberate intention to take away the life of Gregg Benner." See UJI 14-201 NMRA (providing essential elements of willful and deliberate murder).

{58} This Court has held that rational juries could draw "inferences of deliberation from ... evidence of the defendant's attitude toward the victim, and the defendant's own statements." State v. Flores , 2010-NMSC-002, ¶ 21, 147 N.M. 542, 226 P.3d 641 (citing State v. Duran , 2006-NMSC-035, ¶ 11, 140 N.M. 94, 140 P.3d 515 ). Ms. Littles testified that Defendant shoved her out of the vehicle after the two initially fled in the Durango because "he didn't want [her] to be involved in anything that was going to happen." Ms. Littles also testified that Defendant had told her on "quite a few" occasions that "he was never going back to prison. It was either going to be him or the cops." Finally, Ms. Littles testified that during the initial traffic stop Defendant repositioned his pistol from under his seat to alongside the center console of the Durango, held in his hand. Ms. Littles provided substantial evidence about Defendant's state of mind which was probative of Defendant's deliberate intent to murder Officer Benner.

{59} In addition to Ms. Littles' testimony, witnesses and forensic experts testified about the number and timing of the shots fired by Defendant. State v. Astorga , 2015-NMSC-007, ¶ 65, 343 P.3d 1245 (concluding that the manner in which a killing occurs can support an inference of deliberation). The jury heard how Ms. Littles and Defendant initially sped away from Officer Benner and that Defendant shoved Ms. Littles from the vehicle, stopped the vehicle, and allowed Officer Benner to catch up and approach the vehicle where Defendant then shot him. The jury heard that Defendant fired two shots into Officer Benner, and then he paused and fired two more.

{60} Ms. Littles' statements about Defendant's state of mind immediately prior to the murder "were probative of deliberation in the context of all of the evidence introduced on that element of first-degree murder." Id. ¶ 65. Defendant's act of moving his pistol from a hidden position into a firing position supports an inference of Defendant's resolve to kill. See State v. Isiah , 1989-NMSC-063, ¶ 34, 109 N.M. 21, 781 P.2d 293 (moving a knife into the defendant's lap from a concealed position showed deliberateness rather than a random act), overruled on other grounds by State v. Lucero , 1993-NMSC-064, 116 N.M. 450, 863 P.2d 1071. A jury could also reason that, after shoving Ms. Littles out of the vehicle and saying he didn't want her to be involved in anything that was going to happen, then waiting for Officer Benner to approach, Defendant had determined exactly what was going to happen and that he would kill Officer Benner rather than surrender or flee. State v. Sosa , 2000-NMSC-036, ¶ 14, 129 N.M. 767, 14 P.3d 32 (concluding that waiting for the victim is reasonable evidence of deliberate intent).

{61} From Defendant's pause between two-round bursts, a rational jury could infer that Defendant was aiming or adjusting his fire, which could reasonably indicate thought and intent to kill. Cf. State v. Tafoya , 2012-NMSC-030, ¶¶ 47, 54, 285 P.3d 604 (acknowledging that multiple shots fired in very quick succession where victims were shot only once each does not indicate deliberation). Similarly, Defendant firing four controlled shots that all struck Officer Benner, as opposed to emptying the entire magazine of the pistol, could be inferred as deliberate and controlled. See State v. Largo , 2012-NMSC-015, ¶ 33, 278 P.3d 532 (identifying as deliberation delaying discharge of the rifle while the victim pleaded for mercy).

{62} "[J]ust because each component may be insufficient to support the conviction when viewed alone does not mean the evidence cannot combine to form substantial, or even overwhelming, support for the conviction when viewed as a whole." State v. Rojo , 1999-NMSC-001, ¶ 23, 126 N.M. 438, 971 P.2d 829. When Officer Benner initially pulled over Defendant and Ms. Littles, Defendant had robbed a Taco Bell a few hours earlier and knew that there was an arrest warrant out for his violation of probation. Defendant had several options, including whether to (1) cooperate with Officer Benner during the stop and likely be arrested, (2) attempt to flee from Officer Benner, or (3) exercise the option that he chose-wait until Officer Benner's approach to the Durango was so close that Defendant could not miss and then shoot Officer Benner in the chest four times at point-blank range. See Astorga , 2015-NMSC-007, ¶¶ 4-5, 63, 343 P.3d 1245. The jury could reasonably determine that "Defendant contemplated all of these choices and, even if he did not make his final decision until the last second, the decision to kill [Officer Benner] was nonetheless a deliberate one." See id. ¶ 63 (describing circumstances of a deputy's murder during a traffic stop and concluding that "the manner of the killing alone supported an inference of deliberation"); Sosa , 2000-NMSC-036, ¶ 14, 129 N.M. 767, 14 P.3d 32 (concluding that a murder where the victim was attempting to escape from the attacker is a circumstance sufficient to support deliberate intent).

{63} The State presented sufficient evidence for a rational jury to conclude that Defendant manifested a deliberate intention to kill Officer Benner from the time the traffic stop was initiated until Defendant fired the fourth shot from his pistol into Officer Benner's chest.

III. CONCLUSION

{64} For these reasons we affirm Defendant's convictions for first-degree murder, tampering with evidence, conspiracy to commit armed robbery, aggravated fleeing a law enforcement officer, and concealing identity. We vacate Defendant's conviction for shooting at or from a motor vehicle on double jeopardy grounds.

{65} IT IS SO ORDERED.

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

PETRA JIMENEZ MAES, Justice

CHARLES W. DANIELS, Justice

BARBARA J. VIGIL, Justice


source: Caselaw Access Project

author: VIGIL, Judge.

license: Public Domain

text:
    STATE of New Mexico, Plaintiff-Appellee, v. Melvin WINN, Defendant-Appellant.
    NO. A-1-CA-34929
    Court of Appeals of New Mexico.
    Filing Date: October 17, 2018
    Hector H. Balderas, Attorney General, Santa Fe, NM, Charles J. Gutierrez, Assistant Attorney General, Albuquerque, NM, for Appellee.
    Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
   VIGIL, Judge.

{1} The opinion filed on October 15, 2018, is hereby withdrawn, and this opinion is filed in its stead. Melvin Winn (Defendant) appeals from the judgment and sentence entered upon his conditional guilty plea to one count of failure to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended through 2015). Defendant argues that (1) his misdemeanor Colorado conviction for third degree sexual assault is not "equivalent" to any SORNA offense; and (2) even assuming his Colorado conviction corresponds to a SORNA offense if he had been an adult, because he was fifteen years old at the time he committed the sexual assault, his conduct constituted a delinquent act or youthful offender offense under New Mexico law that is not equivalent to a "conviction" for a SORNA offense. We agree with Defendant's first argument and reverse.

BACKGROUND

{2} On June 8, 1999, when Defendant was fifteen years old, he was accused of committing sexual assault in Colorado. On April 3, 2001, a jury found Defendant guilty of one count of misdemeanor third degree sexual assault, a class 1 misdemeanor, in violation of Colo. Rev. Stat. Section 18-3-404 (1996, amended 2013), and first degree assault (non-sexual offense), a class 3 felony, in violation of Colo. Rev. Stat. Section 18-3-202(1)(a) (1998, amended 2016). Defendant was sentenced to two years confinement for the misdemeanor sexual assault conviction with two years credit for time served.

{3} After Defendant moved to New Mexico, an indictment filed in February 2014 charged Defendant with one count of failure to register as a sex offender in violation of SORNA. Defendant filed a motion to dismiss the indictment, under State v. Foulenfont , 1995-NMCA-028, ¶ 3, 119 N.M. 788, 895 P.2d 1329, arguing that, as a matter of law, he did not meet the definition of a "sex offender" who has been convicted of a "sex offense" under SORNA. Citing State v. Hall , 2013-NMSC-001, 294 P.3d 1235, Defendant argued that the sexual offense for which he was convicted in Colorado "does not have the same elements as any of the sex offenses listed" in SORNA, requiring registration as a sex offender in New Mexico and that "[t]he only documentation that the State has provided that [Defendant] meets the definition of a 'sex offender' who has been convicted of a 'sex offense'.... is a [j]udgment of [c]onviction from Colorado dated July 12, 2001."

{4} The State contended that "Defendant was convicted at [a] jury trial of engaging in sexual contact, intrusion, or penetration with a child for the purpose of his own sexual gratification." The conduct forming the basis of this conviction, the State argued, is equivalent to the registrable New Mexico offense of criminal sexual contact of a minor (CSCM) or criminal sexual penetration (CSP). To provide a factual basis for this assertion, the State tendered an unfiled, unsigned presentence report purporting to describe, based on information provided by the Littleton Police Department, the victim's and Defendant's accounts of the conduct giving rise to his convictions in Colorado.

{5} At the hearing on Defendant's motion to dismiss, Defendant continued to assert that the elements of misdemeanor third degree sexual assault, for which he was convicted in Colorado, did not match any registrable SORNA offense. He further asserted that the State could not rely on the presentence report to establish the requisite factual basis of force, coercion, or penetration in order for Defendant's conduct to come within the scope of one of the potentially applicable SORNA offenses. The presentence report, Defendant asserted, was created based on the police report in the case and not, as is required under Hall , based on facts that the jury necessarily found at trial. The State replied that the presentence report clearly established that Defendant's conduct satisfies the definition of a SORNA offense-to wit, CSCM.

{6} In a written order, the district court denied Defendant's motion to dismiss. The order states that "Defendant's conviction if obtained in New Mexico would consist of criminal sexual contact of a minor and would be a registerable offense. For all the above reasons and for the reasons cited in the State's brief in opposition to the [m]otion, ... Defendant's [m]otion is DENIED."

{7} Thereafter, Defendant entered a conditional guilty plea to the charge of failure to register as a sex offender conditioned upon Defendant's reservation of the right to appeal the district court's denial of his motion to dismiss the indictment. This appeal followed.

DISCUSSION

{8} Contending that his conviction for third degree sexual assault is not equivalent to a registrable SORNA offense, Defendant argues (1) "[t]he elements of the Colorado misdemeanor offense of [s]exual [a]ssault in the [t]hird [d]egree do not correspond to a registrable offense in New Mexico"; and (2) "[t]he State failed to present evidence establishing that [his] actual conduct as found by the Colorado jury met the elements of any registrable offense in New Mexico."

I. Standard of Review

{9} "In Foulenfont , we stated that it was proper for a district court to decide purely legal matters and dismiss a case when appropriate before trial[,]" where dispositive facts are undisputed. State v. Platero , 2017-NMCA-083, ¶ 7, 406 P.3d 557 (internal quotation marks and citation omitted); see Rule 5-601 NMRA. Whether a district court properly grants or denies a defendant's motion to dismiss an indictment on purely legal grounds presents a question of law that we review de novo. See State v. Muraida , 2014-NMCA-060, ¶ 12, 326 P.3d 1113 ("[W]e review de novo whether the district court erred in granting [a d]efendant's Foulenfont motion."); see State v. LaPietra , 2010-NMCA-009, ¶ 5, 147 N.M. 569, 226 P.3d 668 ("The contours of the district court's power to conduct a pretrial hearing on a motion to dismiss charges ... is a legal question reviewed under a de novo standard.").

{10} Additionally, whether Defendant's Colorado conviction for misdemeanor third degree sexual assault is "equivalent" to a registrable SORNA offense presents a question of statutory interpretation that is subject to de novo review. Hall , 2013-NMSC-001, ¶ 9, 294 P.3d 1235 ("What constitutes an equivalent offense [under SORNA] involves a question of statutory interpretation. Interpretation of a statute is an issue of law that we review de novo.").

II. Analysis

A. SORNA and the Hall Standard for Determining Equivalency

{11} Under SORNA, as it provided at the time pertinent to our analysis, "[a] sex offender residing in this state shall register with the county sheriff for the county in which the sex offender resides." Section 29-11A-4(A). A "sex offender" includes an individual that "changes residence to New Mexico, when that person has been convicted of a sex offense" in another jurisdiction. Section 29-11A-3(H)(2). A "sex offense" is defined as any of the twelve enumerated sex offenses "or their equivalents in any other jurisdiction[.]" Section 29-11A-3(I). Our Supreme Court held in Hall that

an offense is 'equivalent' to a New Mexico offense, for purposes of SORNA, if the defendant's actual conduct that gave rise to the out-of-state conviction would have constituted one of the twelve enumerated offenses requiring registration pursuant to SORNA.

2013-NMSC-001, ¶ 1, 294 P.3d 1235 (emphasis added).

{12} In Hall , the defendant moved to New Mexico from California, where he had a prior conviction, which resulted from a plea agreement, for violating the California misdemeanor statute prohibiting "annoying or molesting a child under the age of eighteen." Id. ¶¶ 1-2 (internal quotation marks and citation omitted). Upon moving to New Mexico, the defendant did not register as a sex offender, and he was charged with failure to register as a sex offender in violation of SORNA. Id. ¶ 3. The defendant filed a motion to dismiss the charge, "arguing that there was no statute in New Mexico equivalent to California's 'annoying or molesting' a minor statute, and therefore his failure to register did not violate SORNA." Id. ¶ 4. The record contained no stipulations by the defendant concerning his conduct or documents reflecting the proceedings in California. Id. ¶ 28. The district court denied the defendant's motion, and the defendant entered a conditional guilty plea, reserving the right to appeal the denial of his motion to dismiss. Id. ¶ 4. Based on the record before it, the Court determined that the State presented insufficient facts to establish that the defendant's actual conduct underlying his California conviction, had it occurred in New Mexico, was equivalent to a SORNA offense, because the State's allegations on the issue completely lacked substantiation. Id. ¶¶ 25-28. The case was remanded to the district court for further proceedings with leave for the defendant to withdraw his guilty plea. Id. ¶ 30.

{13} In so concluding, the Court described the analytic framework that New Mexico courts should apply in determining whether an out-of-state conviction is equivalent to a SORNA offense. See id. ¶¶ 18-24. "When the elements of the out-of-state sex offense are precisely the same elements of a New Mexico sex offense, the inquiry is at an end[,]" and offenses are considered equivalent. Id. ¶ 18. But "when the elements are dissimilar, courts should consider the defendant's underlying conduct to determine whether the defendant's conduct would have required registration in New Mexico as a sex offender." Id. The Court interpreted "SORNA to mean that the defendant's offense in the foreign state, rather than the statute under which the defendant was convicted, must be the equivalent of an enumerated registrable offense in New Mexico." Id. This means that in order "[t]o determine equivalence, courts must look beyond the elements of the conviction to the defendant's actual conduct." Id.

{14} The Court also discussed how "a New Mexico court [should] determine the actual conduct that supported the defendant's conviction of a sex offense in another jurisdiction when deciding equivalency under SORNA." Id. ¶ 22. "In essence," the Court stated, "the question is whether the out-of-state fact-finder necessarily must have found facts that would have proven the elements of [a] New Mexico registrable offense. If so, the alleged sex offender has committed the equivalent of an enumerated New Mexico sex offense." Id. ¶ 22. To determine the factual basis of a conviction resulting from a plea agreement or nolo contendere, courts may consider "the charging document, plea agreement, or transcript of the plea hearing" and that in a bench trial, the courts should consider the "bench-trial judge's formal rulings of law and findings of fact[.]" Id. ¶¶ 22-23 (internal quotation marks and citation omitted). The Court also observed that it

realize[d] that in some cases, such as a guilty plea in which there was no allocution, there will be no factual findings for a New Mexico court to review. In that instance, the court will be limited to comparing the elements of the foreign sex offense to those of the enumerated offenses under SORNA. In some cases, this will mean that out-of-state sex offenders will not have to register in New Mexico, even for serious offenses.

Id. ¶ 24.

{15} Applying the standard in Hall , we conclude that the district court erred in concluding as a matter of law that Defendant's actual conduct underlying his Colorado third degree misdemeanor sexual assault conviction, if it had occurred in New Mexico, constituted a SORNA offense.

B. Elements of the Offenses

{16} Defendant argues that "[a]n examination of the statutes at issue verifies that the elements of the [Colorado] misdemeanor offense of [s]exual [a]ssault in the [t]hird [d]egree do not correspond to any registrable sex offense in New Mexico." The State concedes that the elements of the applicable offenses are not identical, and we agree.

{17} The Colorado unlawful sexual contact statute at issue provides in pertinent part:

(1) Any actor who knowingly subjects a victim to any sexual contact commits sexual assault in the third degree if:
(a) The actor knows that the victim does not consent; or
(b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or
(c) The victim is physically helpless and the actor knows that the victim is physically helpless and the victim has not consented; or
(d) The actor substantially impaired the victim's power to appraise or control the victim's conduct by employing, without the victim's consent, any drug, intoxicant, or other means for the purpose of causing submission[.]
....
(1.5) Any person who knowingly, with or without sexual contact, induces or coerces a child ... to expose intimate parts or to engage in any sexual contact, intrusion, or penetration with another person, for the purpose of the actor's own sexual gratification, commits sexual assault in the third degree. For the purposes of this subsection (1.5), the term "child" means any person under the age of eighteen years.
....
(2) Sexual assault in the third degree is a class 1 misdemeanor, but it is a class 4 felony if the actor compels the victim to submit by use of such force, intimidation, or threat ... or if the actor engages in the conduct described in ... subsection (1.5) of this section.

Colo. Rev. Stat. § 18-3-404(1) - (2). Based on the State's allegations, the potentially applicable SORNA offenses to this case are CSC, CSCM, and CSP. See NMSA 1978, § 30-9-12(A), (C) (1993) (defining "criminal sexual contact" as "the unlawful and intentional touching of or application of force, without consent, to the unclothed intimate parts of another who has reached his eighteenth birthday, or intentionally causing another who has reached his eighteenth birthday to touch one's intimate parts" perpetrated "by the use of force or coercion" or if "the perpetrator is armed with a deadly weapon"); NMSA 1978, § 30-9-13(A), (B)(2) (2003) (defining "criminal sexual contact of a minor" as "the unlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one's intimate parts" of a child age thirteen to eighteen when "the perpetrator uses force or coercion" if "the perpetrator is in a position of authority over the child" or "armed with a deadly weapon"); NMSA 1978, § 30-9-11(A) (2009) (defining "criminal sexual penetration" as "the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, or the genital or anal openings of another, whether or not there is any emission").

{18} As we have already stated, the judgment and sentence tendered to the district court, the authenticity of which is not disputed, states that Defendant was convicted of third degree sexual assault in violation of Colo. Rev. Stat. Section 18-3-404. The judgment and sentence further reflects that Defendant's sexual assault conviction was sentenced as a class 1 misdemeanor. Defendant, therefore, must have been convicted under Colo. Rev. Stat. Section 18-3-404(1). Section 18-3-404(1) contains no element requiring the sexual contact prohibited under the statute to include sexual penetration, the use of force or coercion, the use of a deadly weapon, or position of authority in perpetration of the offense. Because the potentially equivalent SORNA offenses in this case contain one or more of these additional elements, it follows that the statute under which Defendant was convicted in Colorado is not, on its face, equivalent to a SORNA offense. See Kvech v. N.M. Dep't of Pub. Safety , 987 F.Supp.2d 1162, 1210-11 (D.N.M. 2013) ("Unlike Colorado's Unlawful Sexual Contact statute[, Colo. Rev. Stat. Section 18-3-404(1)(a) ], New Mexico's criminal sexual contact in the fourth degree requires the additional elements of force or coercion, or that the perpetrator be armed with a deadly weapon. The Court agrees ... the elements of the statute under which [the plaintiff] was convicted in Colorado[, Colo. Rev. Stat. Section 18-3-404(1)(a),] is not an equivalent offense to one of New Mexico's enumerated sex offenses under SORNA[.]"). We therefore turn to the question of whether Defendant's actual conduct, had it occurred in New Mexico, would require registration pursuant to SORNA.

C. Defendant's Actual Conduct

1. Use of the Presentence Report to Determine Defendant's Actual Conduct

{19} We now address the primary issue raised by this appeal: whether the district court erred in considering the presentence report tendered by the State to determine the factual basis for its finding of Defendant's actual conduct. Defendant argues that the district court erred in considering the allegations concerning the conduct underlying his Colorado conviction contained in the "unsigned, unfiled presentence report" for a factual basis to establish Defendant's actual conduct. Specifically, Defendant contends that the unsigned, unfiled presentence report "is neither sufficiently reliable nor reflective of facts the jury had to have found to support the district court's equivalency finding."

{20} The State in turn argues that Hall "does not mandate that the [presentence report] is legally insufficient for a court to consider as a component of evidence establishing equivalency[,]" and that this Court, in State v. Orr , 2013-NMCA-069, ¶ 13, 304 P.3d 449, "expressed approval for using an 'investigative report' to determine actual conduct." We are unconvinced by the State's reliance on Orr in this case. In Orr , we concluded that the elements of the North Carolina crime of "taking indecent liberties with children" are not equivalent to any SORNA offense, and therefore analysis of the defendant's actual conduct was required. Id. ¶¶ 5, 10, 13. Because the evidentiary basis for the state's charge that the defendant's actual conduct underlying his North Carolina conviction was supported by no evidence or documentation from the North Carolina case, we concluded that the record was insufficient to determine whether the defendant's conduct, had it occurred in New Mexico, would have required registration pursuant to SORNA. Id. ¶¶ 12-13. However, the state indicated during the pendency of the appeal that it had obtained several documents, including an investigatory report, which shed light on the underlying facts of the defendant's North Carolina conviction. Id. ¶ 13. Following Hall , we remanded to the district court for further proceedings to determine the defendant's actual conduct. See Orr , 2013-NMCA-069, ¶ 13, 304 P.3d 449.

{21} Orr does not hold that a mere investigative report, in and of itself, is sufficient under Hall to determine actual conduct for purposes of an equivalency analysis under SORNA. Neither did Orr disturb the gravamen of the Hall Court's standard for determining equivalency-that New Mexico courts are limited to considering facts that the out-of-state jury necessarily found in convicting the defendant. Nevertheless, we do agree that, under Hall and Orr , when a properly authenticated, admissible investigatory or presentence report contains facts necessarily found by the out-of-state jury, those facts may be considered in a court's equivalency analysis. Such a showing with regard to the unsigned, unfiled presentence report was not made in this case.

{22} Here, as Defendant points out in his brief, the facts contained in the presentence report

do[ ] not reflect (or even purport to do so) what information was presented to the jury or what the jury necessarily found. Further the document does not contain any signature, attestation that anything [in] it is true, or even some indication that it is the final version of it and that [D]efendant agreed with everything in it or failed to contest anything in it. In fact, although the State asserts the Colorado sentencing court found the [presentence report] sufficiently reliable for sentencing purposes, the State submitted no evidence showing the Colorado sentencing court did so or what information the sentencing court credited or discredited in the [presentence report].

In other words, Defendant argues, and we agree, that the presentence report lacks proof of authenticity and reliability, and therefore constitutes inadmissible evidence that the district court erred in considering and determining Defendant's actual conduct underlying his Colorado sexual assault conviction. See Rule 11-901(A) NMRA ("To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."); Rule 11-801(C) NMRA ("Hearsay [m]eans a statement that ... the declarant does not make while testifying at the current trial or hearing, and ... a party offers in evidence to prove the truth of the matter asserted in the statement."); Rule 11-802 NMRA ("Hearsay is not admissible except as provided by these rules[.]"); Rule 11-803(6), (8) NMRA (stating the requirements for establishing that a public or business record are excepted from the general rule against admissibility of hearsay); State v. Soto , 2007-NMCA-077, ¶ 27, 142 N.M. 32, 162 P.3d 187 ("A foundation is ordinarily unnecessary when introducing a public record into evidence because a public official is presumed to properly perform his duty and because it is thus more likely that the public record will be accurate. However, when questions are raised about the manner in which the record was made or kept or when other sufficient negative factors are present, a determination of trustworthiness must be made by the trial court before admitting the record." (internal quotation marks and citations omitted) ), overruled on other grounds by State v. Tollardo , 2012-NMSC-008, 275 P.3d 110 ; State v. Ramirez , 1976-NMCA-101, ¶ 47, 89 N.M. 635, 556 P.2d 43 ("Traditional rules of evidence require a party seeking the introduction of documents to establish that the documents are in fact what they purport to be. Because the reports in [the Ramirez ] case were stamped with the letterhead of the State of New Mexico does not, without more, indicate that they are records of a regularly conducted activity or factual findings resulting from an investigation made pursuant to authority granted by law. This is particularly true when the defendant seeks to introduce an altered version of the original report."), overruled on other grounds by Sells v. State , 1982-NMSC-125, ¶¶ 7-10, 98 N.M. 786, 653 P.2d 162. The federal district court's decision in Kvech lends this conclusion additional support. In Kvech , the district court ruled that in determining whether the plaintiff's Colorado conviction under Colo. Rev. Stat. Section 18-3-404(1)(a) (the same statute under which Defendant was convicted) was equivalent to a SORNA offense, an affidavit of probable cause for an arrest warrant for the plaintiff was inadmissible to prove the plaintiff's actual conduct. Kvech , 987 F.Supp.2d at 1210-11. The district court reasoned that "[t]he Colorado fact[-]finder would not have necessarily found all of the facts alleged in" the affidavit when the Colorado court accepted the plaintiff's plea. Id. at 1210.

{23} In so concluding, we also reject the State's reliance upon State v. Lloyd , 132 Ohio St. 3d 135, 2012-Ohio-2015, ¶ 31, 970 N.E.2d 870, and In re Millan , 189 Misc.2d 419, 730 N.Y.S.2d 392, 428-29 (2001), overruled on other grounds sub nom. People v. Millan , 295 A.D.2d 267, 743 N.Y.S.2d 872 (2002). While observing that a presentence report may be considered by the state courts in Ohio and New York in determining a defendant's actual conduct for purposes of equivalency analysis under the sex offender registration statutes in those states, neither case addresses the issue before this Court-whether a district court should be permitted to consider an unsigned, unfiled presentence report in determining a defendant's actual conduct for purposes of SORNA. As such these cases are distinguishable and therefore do not apply.

2. Use of the Judgment and Sentence to Determine Defendant's Actual Conduct

{24} Defendant argues that the Colorado judgment and sentence does not provide a factual basis to support a finding that Defendant's actual conduct underlying his Colorado conviction, had it occurred in New Mexico, would have required registration under SORNA. Defendant contends that "insofar as he was convicted of the misdemeanor version [of third degree sexual assault] not involving force or coercion, the only conclusion supported by the verdict is that the jury did not find that he used force or coercion in the course of the sexual assault, even if it found that he did, at some point, batter the victim." We agree.

{25} We repeat that the Colorado judgment and sentence reflects that Defendant was convicted, after a jury trial in Colorado, of one count of third degree sexual assault, a class 1 misdemeanor, pursuant to Colo. Rev. Stat. Section 18-3-404. Additionally, as we concluded above, the misdemeanor form of third degree sexual assault, described under Colo. Rev. Stat. Section 18-3-404(1), (2), contains no element requiring that the prohibited sexual contact must include sexual penetration, the use of force or coercion, the presence of a deadly weapon, or a position of authority in commission of the offense, as is required under the potentially applicable SORNA offenses-CSC, CSCM, and CSP. It follows logically from the Colorado judgment and sentence that the Colorado jury did not necessarily find, in convicting Defendant of third degree misdemeanor sexual assault, all of the facts required to convict Defendant of one of the potentially applicable SORNA offenses. The fact that Defendant was also convicted by the Colorado jury of felony first degree assault does not prove, as the State asserts, that Defendant used force or coercion in the commission of the sexual assault, where no admissible evidence was tendered to the district court drawing a causal connection between the sexual assault and the assault of the victim. Cf. State v. Stevens , 2014-NMSC-011, ¶ 40, 323 P.3d 901 (recognizing that there must be evidence of a causal connection between a sex act and the commission of a felony in order to sustain a conviction for second degree CSP, which requires the jury to find a person was forced or coerced to engage in a sex act during the commission of a felony). Accordingly, based on the record before it, we conclude that Defendant's actual conduct, as demonstrated by the judgment and sentence, had it occurred in New Mexico, did not constitute an offense requiring registration pursuant to SORNA.

{26} Because we conclude that the district court erred in ruling that Defendant's Colorado conviction, had it occurred in New Mexico, required registration pursuant to SORNA, we do not address Defendant's second argument.

CONCLUSION

{27} The judgment and sentence is reversed, and this case is remanded to the district court for further proceedings consistent with this opinion.

{28} IT IS SO ORDERED.

WE CONCUR:

JULIE J. VARGAS, Judge

STEPHEN G. FRENCH, Judge