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State v. Radosevich

Supreme Court of New Mexico

April 12, 2018

STATE OF NEW MEXICO, Plaintiff-Respondent,
v.
JOHN RADOSEVICH, Defendant-Petitioner.

          ORIGINAL PROCEEDING ON CERTIORARI Louis E. DePauli Jr., District Judge

          Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Petitioner.

          Hector H. Balderas, Attorney General Charles J. Gutierrez, Assistant Attorney General Santa Fe, NM for Respondent.

          OPINION

          CHARLES W. DANIELS, Justice.

         {¶1} 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."

         {¶2} 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.

         I. BACKGROUND

         {¶3} 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.

         {¶4} 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.

         {¶5} 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).

         {¶6} 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.

         {¶7} 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.

         II. DISCUSSION

         A. Standard of Review

         {¶8} "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).

         B. The New Mexico Tampering Statute

         {¶9} 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 ...


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