ORIGINAL PROCEEDING ON CERTIORARI Louis E. DePauli Jr.,
Bennett J. Baur, Chief Public Defender Mary Barket, Assistant
Appellate Defender Santa Fe, NM for Petitioner.
H. Balderas, Attorney General Charles J. Gutierrez, Assistant
Attorney General Santa Fe, NM for Respondent.
CHARLES W. DANIELS, Justice.
The New Mexico tampering with evidence criminal statute, NMSA
1978, § 30-22-5 (2003), makes it a crime to hide or
alter evidence of a crime. See § 30-22-5(A).
The statutory penalty classifications vary from a petty
misdemeanor to a third-degree felony, depending on "the
highest crime for which tampering with evidence is
committed." Section 30-22-5(B)(1)-(4). The penalty
classification is a fourth-degree felony under Section
30-22-5(B)(2) "if the highest crime for which tampering
with evidence is committed is a third degree felony or a
fourth degree felony" and is a petty misdemeanor under
Section 30-22-5(B)(3) "if the highest crime for which
tampering with evidence is committed is a misdemeanor or a
petty misdemeanor" but is a fourth-degree felony under
Section 30-22-5(B)(4) "if the highest crime for which
tampering with evidence is committed is indeterminate."
In this case, we hold that to impose a greater penalty for
commission of tampering pursuant to Subsection (B)(4), where
the evidence does not establish the underlying offense, than
for commission of tampering pursuant to Subsection (B)(3),
where the evidence establishes an underlying misdemeanor
offense, is both a denial of due process of law and a
violation of an accused's right to have a jury determine
guilt beyond a reasonable doubt on every element that may
establish the range of permissible penalties. We therefore
hold that the offense of tampering where the level of the
underlying crime cannot be determined beyond a reasonable
doubt is punishable at the lowest penalty classification for
tampering. We also hold that the highest crime for which
tampering with evidence of a probation violation is committed
is the highest crime for which the defendant is on probation,
rather than an indeterminate crime. We overrule State v.
Jackson, 2010-NMSC-032, 148 N.M. 452, 237 P.3d 754, and
State v. Alvarado, 2012-NMCA-089, ___ P.3d ___
(A-1-CA-31465, July 18, 2012), and all other cases to the
extent they may have relied on Jackson.
Just after midnight on September 8, 2012, Defendant's
neighbor called 911 to report that Defendant was yelling
obscenities and throwing objects into his yard. After calling
the police, the neighbor walked outside his house to
investigate. Defendant met the neighbor in the alleyway
between their homes and, following a verbal exchange,
Defendant threatened to stab the neighbor with "a little
steak knife." Moments later an officer arrived at the
scene, and Defendant threw the knife away and returned to his
house. An officer subsequently recovered the knife.
The State charged Defendant with assault with intent to
commit murder, NMSA 1978, Section 30-3-3 (1977), a
third-degree felony, and tampering with evidence pursuant to
Section 30-22-5(B)(2), a fourth-degree felony. The district
court judge directed a verdict in Defendant's favor on
the assault with intent to murder charge and then, over
Defendant's objection, instructed the jury on an
uncharged crime, assault with a deadly weapon. Defendant was
convicted of both assault with a deadly weapon under NMSA
1978, Section 30-3-2(A) (1963), a fourth-degree felony, and
tampering with evidence as charged under Section
30-22-5(B)(2), also identified as a fourth-degree felony,
although the tampering jury instruction did not identify an
underlying offense. Defendant appealed both convictions to
the Court of Appeals.
For reasons that are not pertinent to the issues before us,
the Court of Appeals reversed Defendant's conviction of
assault with a deadly weapon and held that the charge could
not be retried, a decision that the State has not asked us to
review. See State v. Radosevich, 2016-NMCA-060,
¶¶ 5, 12, 38, 376 P.3d 871, cert. granted,
2016-NMCERT-___ (S-1-SC-35864, July 1, 2016).
The Court of Appeals also addressed Defendant's argument
that because his tampering conviction was "tied to his
conviction for aggravated assault with a deadly weapon, he
should be retried for tampering or permitted to challenge the
degree of his conviction, " based on his contention that
the offense for which tampering could have been committed was
a misdemeanor, making the tampering offense a petty
misdemeanor under Section 30-22-5(B)(3). Radosevich,
2016-NMCA-060, ¶ 26. But rather than remanding for a new
trial on the tampering charge, the Court of Appeals held
that, because the tampering jury instruction at trial
"did not tie tampering to any identified crime, "
id. ¶ 29, "Defendant's conviction for
tampering with evidence is relative to an indeterminate crime
and should be amended accordingly, not retried, as the State
conceded." Id. ¶ 5. The court remanded to
the district court to simply amend Defendant's judgment
and sentence to impose a felony tampering conviction under
the tampering statute's indeterminate crime provision,
Section 30-22-5(B)(4). Radosevich, 2016-NMCA-060,
¶¶ 32, 38.
We granted certiorari to consider Defendant's challenges
to the Court of Appeals ruling with respect to his tampering
conviction. Defendant argues that interpreting the
indeterminate crime provision of the tampering statute to
permit conviction of a fourth-degree felony where a jury was
not required to find whether the underlying offense was a
misdemeanor or a felony violates the constitutional
requirement that a jury must find the State has proved all
the elements of a crime beyond a reasonable doubt in order to
support a conviction and sentence.
Standard of Review
"We review questions of statutory and constitutional
interpretation de novo." Tri-State Generation &
Transmission Ass'n v. D'Antonio, 2012-NMSC-039,
¶ 11, 289 P.3d 1232. When interpreting statutory
language, "[o]ur primary goal is to ascertain and give
effect to the intent of the Legislature." State v.
Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218
P.3d 868. But "[w]e have repeatedly cautioned that
despite the 'beguiling simplicity' of parsing the
words on the face of a statute, we must take care to avoid
adoption of a construction that would render the
statute's application absurd or unreasonable or lead to
injustice or contradiction." State v. Strauch,
2015-NMSC-009, ¶ 13, 345 P.3d 317 (citation omitted).
And we must be guided by the "well-established principle
of statutory construction that statutes should be construed,
if possible, to avoid constitutional questions."
Schuster v. N.M. Dep't of Taxation & Revenue,
Motor Vehicle Div., 2012-NMSC-025, ¶ 18, 283 P.3d
288 (internal quotation marks and citation omitted).
The New Mexico Tampering Statute
In 2003 the New Mexico Legislature amended the tampering with
evidence statute, which historically had defined a single
tampering offense with a single fourth- degree felony
punishment, to incorporate a tiered offense and sentencing
scheme correlating the punishment for the tampering conduct
with the level of the underlying crime to which the evidence