FROM THE DISTRICT COURT OF LEA COUNTY Gary L. Clingman,
H. Balderas, Attorney General Santa Fe, NM Elizabeth Ashton,
Assistant Attorney General Albuquerque, NM for Appellee
Helen Bennett, P.C. L. Helen Bennett Albuquerque, NM for
STEPHEN G. FRENCH, Judge.
This appeal stems from a jury verdict convicting Defendant
Juan Uribe-Vidal of eleven counts of aggravated assault upon
a peace officer (deadly weapon), contrary to NMSA 1978,
Section 30-22-22(A)(1) (1971), and one count of aggravated
battery upon apeace officer (deadly weapon), contrary to NMSA
1978, Section 30-22-25(C) (1971). Defendant raises four
issues on appeal: (1) the State presented insufficient
evidence to sustain the convictions, (2) the convictions
violate Defendant's right to be free from double
jeopardy, (3) defense counsel's failure to present
evidence proving Defendant's innocence violated
Defendant's right to effective assistance of counsel, and
(4) Defendant's sentence constitutes cruel and unusual
punishment. We affirm.
November 23, 2012, officers from the Lea County Sheriff s
Office and the Hobbs Police Department attempted to execute a
search of Defendant's residence pursuant to a warrant.
The officers were organized into two SWAT teams, one for a
camper on the property and one for a mobile home on the
property. The officers arrived at Defendant's property in
an armored patrol carrier and, upon exiting the vehicle, one
SWAT team began walking toward the camper and the other began
walking toward the mobile home. Officer Tovar was part of the
SWAT team tasked with entering the camper. When that team was
close to the front door of the camper, another officer gave
the command for Officer Tovar to deploy a distractionary
device, which would emit smoke and conceal their movement.
Immediately after Officer Tovar deployed the distractionary
device, the officers-including Officer Tovar-heard and saw
gunfire coming from the camper. As soon as the officers heard
the shots, they tried to take cover behind a nearby tree and
another vehicle parked on Defendant's property. When
Officer Tovar took cover behind the vehicle, he discovered
that he had been shot in his right arm. He remained behind
the vehicle until the firefight was over, which lasted about
twenty-one seconds and included the exchange of rounds fired
from the camper and several rounds fired by one of the
officers in front of the camper. Once the gunfire ceased, two
officers helped get Officer Tovar back to the armed patrol
carrier, and the individuals inside the camper were ordered
to come out. Defendant and six others were arrested outside
enforcement seized from the camper various firearms, a
grenade, a gas mask, a bulletproof vest, and an explosive
device. They also discovered a video surveillance system
inside the camper, which displayed the area in front of the
camper where the SWAT teams had assembled. All of the
officers said they could not see who was firing at them from
inside the camper, but the gunfire appeared to come from the
window and the doorway of the camper.
Defendant was charged with thirteen counts of aggravated
assault on a peace officer (deadly weapon), one charge for
each of the officers present that day, and one count of
aggravated battery on a peace officer (deadly weapon), for
Officer Tovar, the officer who was shot in the arm. Two
counts of aggravated assault were dismissed by directed
verdict by the district court before being submitted to the
jury. In addition to its substantive instructions, the jury
was also instructed on accessory liability. The jury found
Defendant guilty of eleven counts of aggravated assault on a
peace officer and one count of aggravated battery on a peace
officer. Defendant was sentenced to a total of twenty years
imprisonment, minus 492 days credit for time served.
Defendant appeals his convictions based on the sufficiency of
the evidence, double jeopardy, ineffective assistance of
counsel, and cruel and unusual punishment.
of the Evidence
Defendant asserts that there was insufficient evidence to
support all of his convictions because the testimony at trial
only established that while Defendant owned the property and
was present in the camper during the firefight, he was on the
floor, not near the window or door from which the shots were
fired. Defendant emphasizes the absence of evidence proving
that he possessed a gun during the firefight and notes that
the DNA evidence from one of the guns only established that
Defendant handled the gun at some point in time. Defendant
argues it is therefore not reasonable to infer that he shot
at the officers outside. Defendant also notes the absence of
ballistics tests that could have proven which rounds were
fired by the gun that Defendant allegedly handled during the
firefight, and argues the State made no effort to determine
which of the guns caused Officer Tovar's injury.
Therefore, Defendant argues the jury could only have
speculated that Defendant participated in the firefight based
upon his presence in the camper.
"The sufficiency of the evidence is reviewed pursuant to
a substantial evidence standard." State v.
Treadway, 2006-NMSC-008, ¶ 7, 139 N.M. 167, 130
P.3d 746. When reviewing a challenge to the sufficiency of
the evidence, we 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.
Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753
P.2d 1314. "[W]e must view the evidence in the light
most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the
evidence in favor of the verdict." State v.
Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998
P.2d 176. "In our determination of the sufficiency of
the evidence, we are required to ensure that a rational jury
could have found beyond a reasonable doubt the
essential facts required for a conviction." State v.
Duran, 2006-NMSC-035, ¶ 5, 140N.M. 94, l4OP.3d5l5
(internal quotation marks and citation omitted).
"Contrary evidence supporting acquittal does not provide
a basis for reversal because the jury is free to reject [the
defendant's version of the facts." State v.
Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d
State argues it presented evidence sufficient to support
Defendant's convictions because it proceeded on a theory
of accessory liability and the evidence determined that
Defendant "watched, waited, encouraged, and caused"
the criminal conduct. We agree. See State v. King,2015-NMSC-030, ¶ 21, 357 P.3d 949 (noting that "New
Mexico long ago abolished the distinction between accessory
and principal liability" and "[t]he charge against
[the d]efendant as a principal include [s] a corresponding
accessory charge, assuming the evidence at trial supported
the charge" (internal quotation marks omitted)). Where
the State's theory of the case includes accomplice
liability, the jury is accordingly instructed and "[t]he
sufficiency of the evidence ...