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State v. Ramirez

Supreme Court of New Mexico

December 21, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
ALEJANDRO RAMIREZ, Defendant-Appellant.


          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

          McGarry Law Office Kathleen McGarry Glorieta, NM for Appellant


          JUDITH K. NAKAMURA, Chief Justice

         {1} 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.

         {2} 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.

          I. BACKGROUND

         {3} 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.

         {4} 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.

          II. DISCUSSION

         A. Sufficiency of the Evidence

         {5} 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.

         {6} 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 citations omitted).

          1. Identity evidence

         {7} 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.

         {8} 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.

         {9} 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 unsolved.

         {10} 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.

         {11} 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."

         {12} 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 gun.

         {13} 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 829.

         2. Tampering with evidence

         {14} 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.

         {15} 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 logically ...

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