FROM THE DISTRICT COURT OF SAN JUAN COUNTY John A. Dean, Jr.,
H. Balderas, Attorney General Maris Veidemanis, Assistant
Attorney General Santa Fe, NM for Appellee
McGarry Law Office Kathleen McGarry Glorieta, NM for
K. NAKAMURA, Chief Justice
A jury found that Defendant Alejandro Ramirez shot and killed
Johnny Vialpando. Ramirez was convicted of several offenses,
including first-degree murder, and the district court
sentenced Ramirez to life imprisonment plus an additional
sixty-five and one-half years. Ramirez appeals directly to
this Court. He asserts that (1) there was insufficient
evidence presented to support his convictions; (2) his right
to due process was violated when the district court permitted
several eyewitnesses to identify him in court as the shooter;
and (3) his convictions violated the double-jeopardy
guarantee against multiple punishments.
We hold that the evidence is sufficient to support the
convictions, the district court did not violate Ramirez's
right to due process by allowing the in-court
identifications, and double jeopardy precluded the district
court from convicting Ramirez of first-degree murder and
shooting at a motor vehicle. We examine the unit of
prosecution for child abuse by endangerment as a matter of
first impression and hold that Ramirez's multiple child
abuse convictions are statutorily authorized. Consequently,
we vacate only the shooting-at-a-motor-vehicle conviction and
remand to the district court for resentencing.
Vialpando was shot nine times while sitting in a vehicle with
his spouse and three children and died from the injuries he
sustained. The State charged Ramirez with one count of
first-degree murder, NMSA 1978, § 30-2-1(A)(1) (1994);
one count of conspiracy to commit first-degree murder, NMSA
1978, § 30-28-2 (1979), § 30-2-1(A)(1); one count
of shooting at or from a motor vehicle, NMSA 1978, §
30-3-8(B) (1993); three counts of child abuse, NMSA 1978,
§ 30-6-1(D) (2009); one count of tampering with
evidence, NMSA 1978, § 30-22-5 (2003); one count of
aggravated assault with a deadly weapon, NMSA 1978, §
30-3-2(A) (1963); and one count of possession of a firearm by
a felon, NMSA 1978, § 30-7-16 (2001). Ramirez pleaded
not guilty to all of these charges.
At Ramirez's trial, five eyewitnesses testified that
Ramirez was the gunman who shot and killed Vialpando, and he
was found guilty on all counts. The State abandoned the
felon-in-possession-of-a-firearm count. The district court
entered convictions on the remaining counts and sentenced
Ramirez. Article VI, Section 2 of the New Mexico Constitution
grants us exclusive jurisdiction over his appeal.
Sufficiency of the Evidence
Ramirez contends that the State failed "to present
sufficient evidence from which the jury could have found
beyond a reasonable doubt that [he] committed the crimes . .
. ." Ramirez makes several specific claims as to how the
evidence was insufficient. We address these arguments in turn
but begin by stating the standards that govern our review.
When reviewing a jury's verdict for sufficient evidence,
this Court determines whether substantial evidence, either
direct or circumstantial, exists to support every element
essential to a conviction beyond a reasonable doubt.
State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M.
185, 246 P.3d 1057. "Evidence is viewed 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." Id.
(internal quotation marks and citation omitted). This Court
will not second-guess the jury's decision concerning the
credibility of witnesses, reweigh the evidence, or substitute
its judgment for that of the jury. Id. "So long
as a rational jury could have found beyond a
reasonable doubt the essential facts required for a
conviction, [this Court] will not upset a jury's
conclusions." Id. (internal quotation marks and
1. Identity evidence
Ramirez contends that "the evidence of identity is
insufficient in this case." He claims that the jury
could not have found beyond a reasonable doubt that he was
the shooter as the eyewitness testimony was
"unreliable." Because there was no reliable
evidence to prove that he was the shooter, Ramirez asserts,
the first-degree murder conviction-and any other conviction
necessarily predicated on the fact that he was the individual
who shot Vialpando-"cannot stand." We reject this
line of argument.
Vialpando's wife, Rhiannon, offered the following
testimony at trial. The day of the shooting was sunny. In the
moments immediately before the shooting, she was seated in
the driver's seat of her Dodge Durango. Vialpando was in
the front passenger's seat. Two of the children, Carmen
and Nikki, sat in the back seat. Carmen sat directly behind
Vialpando. The third child, Michael, sat in the third row of
seats. As Rhiannon was preparing to back out of their parking
spot at the Animas Mall in Farmington, New Mexico, a man she
had not seen before approached the front passenger-side
window of the Durango and began speaking to Vialpando. As he
talked to Vialpando, the man looked around, avoided eye
contact with Vialpando, and texted on his cell phone. The
conversation lasted approximately five minutes. The man was
very small, Hispanic, and had shoulder-length, curly hair.
She asked Vialpando, "Who is this?" Vialpando
replied, "Little Alex." Little Alex asked for a
ride, but she said no. A white Chevy Blazer abruptly pulled
in behind the Durango and blocked it from moving. Little Alex
indicated that his brother was the driver of the Blazer and
then walked to the driver's side of the Blazer, spoke
with the driver, and received an object from the driver.
Little Alex then walked quickly back to the passenger side of
the Durango, said "This is for Gary, " and began
firing a gun at Vialpando. While the shooting took place, she
was only four feet from Little Alex. She identified Ramirez
as "Little Alex." This was the second time Rhiannon
had identified Ramirez as the shooter. She first identified
him as the shooter at a preliminary hearing "a week or
two" after the shooting.
Officer Heather Chavez testified at trial that Gary Martinez
was murdered in a drive-by shooting in Farmington in 2008.
Vialpando was a person of interest in the murder because he
had a vehicle similar to the one used to commit the crime;
however, he was never charged and the homicide remains
Carmen, Nikki, and Michael also testified at trial. Carmen
was sixteen at the time of Vialpando's murder. She
described the man who spoke with and shot Vialpando as small
with long hair. She was so near to this man that if she had
rolled down her window she could have touched him. She had a
"very clear" look at this man when the shooting
began. She identified Ramirez as the man who spoke with and
shot Vialpando. Like Rhiannon, Carmen also heard Ramirez say
"This is for Gary" immediately before Ramirez shot
Vialpando. During cross-examination, Carmen admitted that she
had seen photographs of Ramirez in the newspaper but
explained that she had also "seen him with [her]
eyes." Nikki, who was fourteen at the time of the
shooting, and Michael, who was eleven at the time of the
incident, both also identified Ramirez as the person who
conversed with and then shot Vialpando.
Shanley Lujan, a bystander, offered the following account of
the murder. She was sitting in her car at the time of the
shooting, and Vialpando was shot right in front of her. She
described the man who spoke with and then shot Vialpando as
Hispanic with wavy, shoulder-length hair. She identified
Ramirez as the shooter. After the shooting, she saw Ramirez
enter a white SUV that had blocked the Durango in and watched
the SUV speed away "crazy fast."
The following additional evidence was presented to the jury.
Ramirez is relatively small-he is five feet two inches tall
and weighs 110 pounds-and was this height and weight at the
time of the shooting. For a man, his hair is longer than
average. State investigators recovered a latent print of
Ramirez's palm near the window's edge of the front
passenger-side door of the Durango. Ramirez owned a white
Chevy Blazer at the time of the shooting, and shortly after
the shooting, he was arrested in a white Chevy Blazer. After
Ramirez was apprehended, the police observed that he had an
injury on his left hand, near the webbing of the fingers.
Ramirez is left-handed. When a person fires a semiautomatic
gun, it will recoil. If the shooter lacks a strong grip, the
gun will rotate and, upon recoil, the hammer or the slide
might injure the shooter's hand. On the day of the
shooting, Shane Fletcher, a flooring installer, recovered a
gun not far from where police officers first encountered the
Chevy Blazer. That gun was retrieved by law enforcement and
was identified as a Czechoslovakian semiautomatic pistol with
an external hammer that could strike the skin when
discharged. A firearms expert testified that the bullets and
casings recovered at the crime scene were fired from this
This evidence more than adequately establishes Ramirez's
identity as the person who shot Vialpando. See State v.
Hunter, 1933-NMSC-069, ¶ 6, 37 N.M. 382, 24 P.2d
251 ("[T]he testimony of a single witness may legally
suffice as evidence upon which the jury may found a verdict
of guilt."). Ramirez's contention that the
first-degree murder charge is not supported by sufficient
evidence because the eyewitness testimony is
"unreliable" is unavailing. The jury was free to
accept or reject the eyewitness accounts. See State v.
McAfee, 1967-NMSC-139, ¶ 8, 78 N.M. 108, 428 P.2d
647 ("It was for the jury to determine the weight to be
given the testimony and determine the credibility of the
witnesses[.]" (citations omitted)). Similarly, Ramirez
achieves very little by emphasizing the evidence presented at
trial in support of his theory that he was not the shooter.
"Contrary evidence supporting acquittal does not provide
a basis for reversal because the jury is free to reject
Defendant's version of the facts." State v.
Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d
Tampering with evidence
Ramirez contends that there was insufficient evidence offered
to support his conviction for tampering with evidence because
"[t]he State never tied the weapon to Alejandro
Ramirez." This argument fails. As we have already
explained, there was sufficient evidence offered to support
the jury's determination that Ramirez was the shooter.
The following additional evidence connects Ramirez to the gun
used to kill Vialpando.
A gun was recovered not far from where police officers first
encountered Ramirez in the Chevy Blazer. This gun fired the
bullets that killed Vialpando and discharged the casings
found at the crime scene. From this evidence, the jury was
free to infer that Ramirez discarded this gun after killing
Vialpando and fleeing the scene. See State v.
Carrillo, 2017-NMSC-023, ¶ 46, 399 P.3d 367
(rejecting the defendant's sufficiency challenge to
tampering with evidence and observing that the jury could