State v. Vargas
| Decision Date | 02 March 2020 |
| Docket Number | No. S-1-SC-36773,S-1-SC-36773 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. ROBERTO VARGAS, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
This decision of the Supreme Court of New Mexico was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Supreme Court.
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
Hector H. Balderas, Attorney General
Eran Shemuel Sharon, Assistant Attorney General
Santa Fe, NM
for Appellee
{1} For his role in a drive-by shooting resulting in the death of one victim and injury to another, Defendant Roberto Vargas was convicted of first-degree depraved mind murder, contrary to NMSA 1978, Section 30-2-1(A)(3) (1994); conspiracy to commit first-degree depraved mind murder, contrary to Section 30-2-1(A)(3) and NMSA 1978, Section 30-28-2 (1979); aggravated battery, contrary to NMSA 1978, Section 30-3-5 (1969); shooting at a dwelling, contrary to NMSA 1978, Section 30-3-8(A) (1993); tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003); and contributing to the delinquency of a minor, contrary to NMSA 1978, Section 30-6-3 (1990).
{2} Considering Defendant's various arguments on appeal, we conclude that: (A) the evidence was insufficient to support Defendant's convictions for tampering with evidence and shooting at a dwelling; (B) we need not address whether Defendant's convictions for shooting at a dwelling and first-degree depraved mind murder violate the prohibition against double jeopardy; (C) Defendant's conviction for conspiracy to commit depraved mind murder must be vacated because it is a nonexistent crime; (D) the lack of an intoxication instruction did not result in fundamental error; (E) the district court's limitations on Defendant's cross-examination of two witnesses was not an abuse of discretion nor a violation of Defendant's constitutional right to confront the witnesses against him; and (F) Defendant's judgment and sentence must be corrected to reflect the jury's verdict. Because the questions of law raised by this case are sufficiently addressed by New Mexico precedent, we exercise our discretion under Rule 12-405(B)(1) NMRA to dispose of this case by non-precedential decision.
{3} This incident began with Defendant driving his friend, Abraham Venegas, and Abraham's cousin, Carlos Venegas, to Abraham's house in Carlsbad, New Mexico at around midnight following a party on July 4, 2016. Abraham then went to sleep.
{4} In the early morning hours of July 5, 2016, Eric Flores, Janell Villareal, Jesus "Jesse" Navarro, and Tamika Stearns were gathered outside of the home of Janell and Jesse's grandmother at 306 Peachtree Street in Carlsbad. As they were talking, Defendant and Carlos pulled up in a white truck, and Defendant got out. Defendant told the group he had been drinking and offered them some beer. Defendant then become loud and told Jesse that he wanted to speak to Tamika about something she had allegedly said. Jesse would not let Defendant talk to Tamika and asked Defendant to keep his voice down because people were sleeping.
{5} Defendant refused, and Jesse either put his arm around Defendant to usher him to leave or punched Defendant in the face. Defendant then took a swing at Jesse but missed and fell over. Defendant mistook Jesse's attempt to help him up as an attack and a fight broke out between Defendant and Jesse.
{6} During the fight, Defendant ended up by the driver's side door on the truck. From inside the truck, Carlos hit Jesse with an aluminum bat before Eric reached in and took it away. Eric then yelled for Janell to get his gun. Jesse, Janell, and Tamika all testified at trial that none of them, including Eric, had a gun. At that point, Defendant got back into the truck and fled, saying "I'm going to kill you . . . I'm going to kill all you motherfuckers."
{7} Abraham testified that he was woken up by Defendant and Carlos an hour or two after he fell asleep. Defendant and Carlos told Abraham that they had been jumped and that Carlos had been hit with a bat. Abraham testified that Defendant, who was angry and "really drunk," wanted to go back and fight. Abraham agreed to go because he was upset that Carlos had been hit. The three men then got into Abraham's truck, where Abraham kept his AK-47, and Abraham drove back towards Peachtree Street.
{8} Abraham testified that they stopped along the way so that he could relieve himself. At that point, Carlos got into the bed of the truck with the AK-47 and Defendant told him to "get ready." Abraham testified that, because he believed they were just going to fight, he thought Carlos had the gun only as a precaution. Abraham explained that, as they drove off, he turned off the lights of the truck but did not offer an explanation as to why. After driving for another two or three minutes, they arrived at Peachtree Street. Abraham testified that as he was bringing the truck to a stop at the house, he heard gunfire from the bed of the truck and saw Defendant shooting a shotgun from the passenger seat. Abraham claimed that he had not seen the shotgun in Defendant's hands until he started shooting. When the shooting started, Abraham sped away.
{9} Tamika testified that the white truck came back roughly five minutes after Defendant had initially driven away. As the truck pulled up to 306 Peachtree, Eric and Janell were backing out of the driveway in Eric's van. Jesse and Tamika were outside of Jesse's car on the driveway. Jesse and Janell testified that they heard someone yell, "What's up now?" before the gunfire started. When the firing started, Jesse ducked down behind his vehicle and testified that he could see a driver, a passenger, and someone in the bed of the truck but could not identify who they were. Tamika got inside Jesse's car and testified that she could tell the gunshots were coming from the white truck but did not see who was shooting. Janell testified that she saw Abraham driving the truck, Carlos in the bed, and Defendant in the front passenger seat.
{10} Eric was fatally shot in the lungs and heart with bullets from the AK-47. Janell was hit in the arm with pellets from the shotgun. The neighbor's house at 304 Peachtree was also damaged by gunfire.
{11} When Abraham, Carlos, and Defendant got back to Abraham's home, Abraham told Carlos and Defendant to get their things and leave. Abraham testified that he did not get his AK-47 out of the truck and did not see what happened to it. In a later search of Abraham's home and truck, a rifle was found in his truck but the shotgun used in the shooting was not found.
{12} Abraham took a plea deal and agreed to testify against Defendant. After a jury trial, Defendant was convicted of first-degree depraved mind murder, conspiracy to commit first-degree depraved mind murder, aggravated battery, shooting at a dwelling, tampering with evidence, and contributing to the delinquency of a minor. The jury additionally found that a firearm was used in the commission of the depraved mind murder and aggravated battery. Defendant was sentenced to life imprisonment plusthirty-nine years, and appeals his convictions directly to this Court pursuant to Rule 12-102(A)(1) NMRA.
{13} Defendant challenges the sufficiency of the evidence supporting two of his convictions: tampering with evidence and shooting at a dwelling. "The test for sufficiency of the evidence is 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. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). When reviewing for sufficiency of the evidence, "we employ a deferential standard in favor of the jury's verdict" and "view the evidence in the light most favorable to the State, resolving all conflicts and making all permissible inferences in favor of the jury's verdict." State v. Consaul, 2014-NMSC-030, ¶ 42, 332 P.3d 850 (internal quotation marks and citation omitted). "It is our duty to determine whether any rational jury could have found the essential facts to establish each element of the crime beyond a reasonable doubt." Id. (internal quotation marks and citation omitted).
{14} Although Defendant raised the issue of the sufficiency of the evidence for all of his convictions in his statement of issues, in his brief in chief he makes no arguments regarding the sufficiency of the evidence for his convictions of first-degree depraved mind murder, conspiracy to commit depraved mind murder, aggravated battery, or contributing to the delinquency of a minor and has therefore abandoned those issues. See State v. McDowell, 2018-NMSC-008, ¶ 34, 411 P.3d 337 (). Accordingly, we turn now to an analysis only of the sufficiency of the evidence supporting his convictions of tampering with evidence and shooting at a dwelling. We conclude the evidence was insufficient to support either conviction.
{15} Defendant first challenges the sufficiency of the evidence for his conviction of tampering with evidence, contrary to Section 30-22-5. A conviction for tampering with evidence required that the jury find that (1) Defendant hid physical evidence; (2) he did so intending to prevent his "apprehension, prosecution, or conviction;" and (3) he did so in New Mexico on...
To continue reading
Request your trial