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Jan. 29, 2026 Get Citation Alerts Download PDF Add Note

State v. Crawford

New Mexico Court of Appeals

• Citations: None known
• Docket Number: Unknown

• Precedential Status: Non-Precedential

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Combined Opinion

The slip opinion is the first version of an opinion released by the Clerk of the Court
of Appeals. Once an opinion is selected for publication by the Court, it is assigned a
vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-112
NMRA, authenticated and formally published. The slip opinion may contain
deviations from the formal authenticated opinion.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: __________

Filing Date: January 29, 2026

No. A-1-CA-41857

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

BOBBY CHARLES CRAWFORD,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Richard M. Jacquez, District Court Judge

Raúl Torrez, Attorney General
Benjamin L. Lammons, Assistant Solicitor General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Attorney
Santa Fe, NM

for Appellant

OPINION
HOUGHTON, Judge.

{1} Defendant Bobby Crawford appeals his convictions for attempting to evade,

shoot, and kill police officers. At trial, a jury found Defendant guilty of two counts

of attempted first-degree murder, in violation of NMSA 1978, Section 30-28-1

(1963, amended 2024) and NMSA 1978, Section 30-2-1(A)(1) (1994); two counts

of aggravated assault on a peace officer, in violation of NMSA 1978, Section 30-22-

22(A)(1), (B) (1971); one count of shooting from a motor vehicle, in violation of

NMSA 1978, Section 30-3-8(B) (1993); and one count of aggravated fleeing a law

enforcement officer, in violation of NMSA 1978, Section 30-22-1.1(A), (B) (2022).1

Defendant challenges all but the aggravated fleeing conviction, arguing that: (1)

insufficient evidence of deliberate intent supports his convictions for attempted first-

degree murder; (2) the State made improper arguments in its opening statement and

closing arguments; and (3) several convictions constitute double jeopardy.

{2} We affirm all convictions except Defendant’s conviction for shooting from a

motor vehicle. First, we hold that the evidence presented at trial allowed a reasonable

jury to infer the deliberate intent element of attempted first-degree murder. Second,

although some of the State’s remarks in its opening and closing arguments were

improper, we hold that they did not—singularly or cumulatively—deprive

1
Defendant was also charged for being a felon in possession of a firearm,
which was severed from this case and is not a basis of this appeal.
Defendant of his right to a fair trial. Third, we hold that convictions for both

attempted murder and assault on a peace officer do not violate double jeopardy.

Finally, we vacate Defendant’s conviction for shooting from a motor vehicle because

it violates the protection against double jeopardy.

BACKGROUND

{3} On June 21, 2023, the Las Cruces Police Department (LCPD) received a

dispatch call from the New Mexico State Police (NMSP) for assistance with a

vehicle pursuit. LCPD officers responded in marked police vehicles and joined

NMSP’s unmarked vehicles in pursuit of Defendant, who was driving a white SUV.

Evidence of the pursuit prior to LCPD’s involvement was not presented at trial, but

LCPD officers testified that the chase lasted between five and ten minutes after they

joined and reached speeds up to 70 miles per hour over a combination of paved and

dirt roads, as well as through the desert, in a development on the outskirts of Las

Cruces, New Mexico. One LCPD officer described the pursuit as “like a rodeo.”

Another described it as “almost comical the way it was going . . . over and over and

we . . . were trying to dodge one another as officers in our units.”

{4} After several unsuccessful attempts to disable Defendant’s vehicle, Defendant

drove through a gate into a residential property and passed between two bystanders

before “plow[ing] through the fence line of that yard back into the desert.” After

several more minutes, Defendant was finally brought to a halt by a pursuit
intervention technique (PIT) maneuver executed by one of the LCPD officers,

causing Defendant’s car to spin out. By this time, there were at least seven separate

law-enforcement vehicles involved: the three unmarked NMSP vehicles that had

begun the pursuit and the four LCPD vehicles that responded to the dispatch. When

Defendant was brought to a halt, he immediately fired a gun at the LCPD officers

that had performed the PIT maneuver and boxed him in. The LCPD officers returned

fire and took cover behind their patrol vehicles. One LCPD officer estimated that the

exchange of gunfire lasted between three and fifteen seconds. None of the LCPD

officers were struck by the rain of bullets that penetrated the cabins of their

respective vehicles. Defendant barricaded himself in his vehicle and was subdued

and arrested fifteen to twenty minutes after the shooting when a nearby SWAT team

deployed chemical munitions.

{5} Defendant was tried before a jury and found guilty on all but a third charged

count of aggravated assault on a peace officer. Defendant now appeals.

DISCUSSION

I. There Was Sufficient Evidence Presented at Trial to Sustain a Conviction
Based on Deliberate Intent
{6} Defendant alleges that the State presented insufficient evidence of deliberate

intent. As a result, Defendant asks us to either reverse his conviction for attempted

first-degree murder or to exercise our direct remand authority for entry of a

conviction for attempted second-degree murder. Defendant does not dispute,
however, that “the shooting happened immediately after a prolonged car chase that

ended when police made [him] spin out” and that the jury could have reasonably

inferred intent to kill. He argues, rather, that there was no evidence of the

deliberation requirement to support a conviction of attempted first-degree murder.

{7} “[O]ur review of the trial record must defer to ‘the jury’s fundamental role as

factfinder’ yet satisfy our autonomous responsibility ‘to ensure that . . . jury

decisions are supportable by evidence in the record, rather than mere guess or

conjecture.’” State v. Bahney, 2012-NMCA-039, ¶ 25, 274 P.3d 135 (quoting State

v. Flores, 2010-NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641). “We view the

evidence in the light most favorable to the jury’s guilty verdicts, which must be based

upon proof beyond a reasonable doubt.” Id. (internal quotation marks and citation

omitted). “We resolve all conflicts and make all permissible inferences in favor of

the jury’s verdict.” State v. Slade, 2014-NMCA-088, ¶ 13, 331 P.3d 930 (text only)

(citation omitted). “An inference is permissible if the evidence necessary to invoke

the inference (the evidence as a whole, including the basic fact or facts) is sufficient

for a rational juror to find the inferred fact beyond a reasonable doubt.” State v.

Barragan, 2001-NMCA-086, ¶ 29, 131 N.M. 281, 34 P.3d 1157 (internal quotation

marks and citation omitted), overruled on other grounds by State v. Tollardo, 2012-

NMSC-008, 257 P.3d 110.
{8} We measure the sufficiency of the evidence against the jury instructions. See

State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409. Under New Mexico law:

A deliberate intention refers to the state of mind of the defendant. A
deliberate intention may be inferred from all of the facts and
circumstances of the killing. The word deliberate means arrived at or
determined upon as a result of careful thought and the weighing of the
consideration for and against the proposed course of action. A
calculated judgment and decision may be arrived at in a short period of
time. A mere unconsidered and rash impulse, even though it includes
an intent to kill, is not a deliberate intention to kill. To constitute a
deliberate killing, the slayer must weigh and consider the question of
killing and the slayer’s reasons for and against such a choice.
UJI 14-201 NMRA.

{9} “A deliberate intention is rarely subject to proof by direct evidence and often

must be inferred from the circumstances.” State v. Astorga, 2015-NMSC-007, ¶ 60,

343 P.3d 1245 (citing State v. Duran, 2006-NMSC-035, ¶ 7, 140 N.M. 94, 140 P.3d

515). “Intent is subjective and is almost always inferred from other facts in the

case . . . .” Duran, 2006-NMSC-035, ¶ 7 (internal quotation marks and citation

omitted).

{10} Our inferred deliberate intent caselaw can be viewed on a spectrum. On one

end are cases like State v. Flores, in which the record “support[ed] rational findings

by a jury that [the d]efendant . . . acted deliberately rather than rashly and

impulsively, in killing [the victim]” because “[t]he jury would have been amply

justified in reasoning from the evidence . . . that [the d]efendant made and carried

out a plan over a two-week period to exact revenge on [the victim] for rejecting him
and to make sure that if he could not have [the victim], no one else ever would.”

2010-NMSC-002, ¶ 24 (internal quotation marks and citation omitted), overruled on

other grounds by State v. Martinez, 2021-NMSC-002, 478 P.3d 880. On the other

end are cases like State v. Tafoya, where “[t]he void of evidence to support deliberate

intent . . . is filled with evidence of rash and impulsive behavior[:] . . . [the defendant

and his victims] had been drinking and doing drugs earlier in the day, and they were

drinking and doing drugs at the time of the shootings. They were listening to loud

music and driving around town, and then [the d]efendant suddenly shot [the

victims].” 2012-NMSC-030, ¶ 53, 285 P.3d 604.

{11} Along that spectrum, our appellate courts have sorted a number of cases

involving deliberate intent. Among them, Astorga is the most factually similar to the

instant case. Astorga was a fugitive who killed a sheriff’s deputy during a routine

traffic stop. Astorga, 2015-NMSC-007, ¶¶ 1-6. Astorga was convicted of first-

degree murder for the killing. Id. ¶ 1. In the absence of eye witnesses, the State’s

evidence supporting deliberation was that the license plate number the deputy had

given to dispatch at the outset of the traffic stop belonged to Astorga, who had an

outstanding warrant and had been living under a different name; the deputy was shot

twice from a distance of “less than 12 inches,” indicating Astorga waited for the

deputy to approach the driver’s side window before shooting him; Astorga fled to

Mexico after the deputy was killed; and Astorga later explained to a friend that he
had “started to do good again” until the sheriff’s office “fucked it up,” and confessed

to an acquaintance that he “blasted that cop.” Id. ¶¶ 4-8, 59-65.

{12} Our Supreme Court upheld Astorga’s first-degree murder conviction, holding:

The jury could have reasonably inferred that, once [the d]efendant saw
that he was being pulled over, he faced several options, including
whether: (1) to cooperate with [the victim] during the stop and likely
be arrested on the outstanding warrant; (2) to attempt to flee from [the
victim]; or (3) the option that he chose—to wait for [the victim] to
approach the truck and shoot him in the face at point-blank range. The
jury could have found that [the d]efendant contemplated all of these
choices and, even if he did not make his final decision until the last
second, the decision to kill [the victim] was nonetheless a deliberate
one.
Id. ¶ 63.

{13} Defendant here faced the very same choice as Astorga: he could have

surrendered, fled, or killed the officers to escape. To be sure, the State did not present

evidence of Defendant’s statements after the shooting, as it did in Astorga. But as

our Supreme Court noted, Astorga’s “statements, standing alone, might have been

insufficient to prove [the d]efendant’s deliberate intention.” Id. ¶ 65. We have held

that “the central inquiry of a crime based on premeditation” is “[the d]efendant’s

state of mind before the shooting.” Slade, 2014-NMCA-088, ¶ 28. Compared to

Astorga, there was more evidence of Defendant’s actions in the moments prior to

his decision to shoot and kill the officers. There were no eyewitnesses in Astorga, so

the state relied on circumstantial evidence to show that he fatally shot the deputy at

point-blank range during the traffic stop, indicating that he laid in wait while the
deputy approached. 2015-NMSC-007, ¶ 60. The jury then needed to infer that

Astorga’s decision was motivated to avoid arrest based on his outstanding arrest

warrant and his efforts to conceal his identify in the months before the shooting. See

id. ¶ 65.

{14} Here, on the other hand, Defendant engaged in a lengthy and dangerous police

chase, punctuated by LCPD’s multiple attempts to disable Defendant’s vehicle

during the five-to-ten minutes that one officer testified was among the longest chases

in his sixteen-year career. The jury heard testimony that at times during the chase

Defendant reached speeds as high as 70 miles per hour, and that he crashed through

a residential gated fence, narrowly missing two bystanders. By the time police ended

the prolonged chase, it was plain that Defendant intended to avoid arrest at great risk

to himself, the police, and bystanders.

{15} The jury also heard evidence that Defendant “immediately” began firing at

the LCPD officers once his car came to rest as a result of the PIT maneuver. Viewed

in the light most favorable to the jury’s verdict, the immediacy of Defendant’s firing

supports the conclusion that Defendant armed himself at some point during the chase

prior to the PIT maneuver. Relatedly, the jury saw photographs of where the bullets

fired by Defendant impacted the first officer’s passenger window and the second

officer’s front windshield, and heard them both testify that the shots were aimed at

head level, indicating an intent to kill instead of to intimidate or disable their
vehicles. Coupling those facts—that Defendant armed himself prior to being stopped

and then immediately and repeatedly shot toward one officer with an intent to kill

and then toward another officer with the same intent—the jury could have

reasonably inferred that Defendant selected the final option on his decision matrix:

kill the LCPD officers chasing him. We conclude that Defendant’s arming himself

with a gun during the chase and then firing at the officers immediately upon being

brought to a halt is similar to Astorga’s decision to arm himself and then shoot the

deputy once he approached Astorga at his driver’s side window.

{16} We distinguish Defendant’s conduct here from that in State v. Hernandez,

another case that involved an attempted first-degree murder during a flight from

authorities. See 1998-NMCA-167, 126 N.M. 377, 970 P.2d 149. Hernandez

“attempted to escape from custody while he was in the Otero County courthouse for

a hearing.” Id. ¶ 2. As Hernandez attempted to make his escape, he was tackled by a

detention officer, and in the ensuing struggle Hernandez was able to take control of

the officer’s sidearm and fire a shot towards a court employee who ran to assist. Id.

¶ 4. Hernandez tried to continue firing, but both the cylinder and hammer of the

officer’s revolver were physically prevented from moving by the various authorities

involved in the struggle. Id. ¶¶ 5-6. Throughout the altercation, Hernandez was

shouting, “I’ll kill you,” “I’m going to shoot you,” and “I’m going to shoot you

again.” Id. ¶¶ 5, 7.
{17} This Court reversed Hernandez’s attempted first-degree murder conviction

based on insufficient evidence because “[t]o say that [the d]efendant was

deliberating during this sudden struggle would not leave any principled distinction

between an impulsive killing and one that is deliberate and premeditated.” Id. ¶ 14

(internal quotation marks and citation omitted). There was no evidence that showed

Hernandez formed a deliberate intent to kill—or even obtained a gun—prior to

attempting his escape, and this Court noted that “[the d]efendant did not reach for

[the officer’s] gun and fire it until immediately after [the officer] had tackled [the

d]efendant from behind and a physical struggle . . . ensued.” Id. By contrast,

Defendant here brought the firearm with him, as did Astorga, and had the duration

of the chase to consider whether to use it. And critically, Defendant immediately

fired upon the LCPD officers when brought to a stop, evincing that he did in fact

prepare himself with his gun during the prolonged chase.

{18} We acknowledge these facts presented a close call for the jury, but on appeal

“[w]e view the evidence in the light most favorable to the jury’s guilty verdicts”

rendered at trial and draw all reasonable inferences in support thereof. See Bahney,

2012-NMCA-039, ¶¶ 25, 35 (internal quotation marks and citations omitted). In that

light, we hold that a jury could have reasonably inferred that Defendant’s actions

were part of one continuous, escalating attempt to avoid being caught, and that

Defendant made the deliberate decision to escape—including killing the officers if
necessary—before readying himself with the firearm and pulling the trigger. This is

not a case where the evidence, viewed in the light most favorable to the verdict and

with all reasonable inferences drawn, remains “equally consistent” with a rash

impulse and with deliberate intent. See State v. Garcia, 1992-NMSC-048, ¶ 32, 114

N.M. 269, 837 P.2d 862 (internal quotation marks and citation omitted).

{19} We take care to note that an opportunity to deliberate alone is insufficient

proof of deliberation, see id. ¶ 30, and that flight from police prior to a shooting is

not irrefutable proof of deliberate intent. See, e.g., Hernandez, 1998-NMCA-167,

¶ 10. These facts are simply indicators that, coupled with all the other evidence

offered, a rational juror could have relied upon to find that Defendant deliberately

intended to kill the officers chasing him.

II. There Was No Fundamental Error

{20} Defendant claims three instances of prosecutorial misconduct that deprived

him of his right to a fair trial, both singularly and cumulatively. None were preserved

for appeal with a timely objection at trial, so we review these claims for fundamental

error. See State v. Sosa, 2009-NMSC-056, ¶ 35, 147 N.M. 351, 223 P.3d 348.

{21} “To find fundamental error, we must be convinced that there is ‘a reasonable

probability that the error was a significant factor in the jury’s deliberations in relation

to the rest of the evidence before them.’” State v. Medema, 2025-NMCA-011, ¶ 32,

___ P.3d ___ (quoting State v. DeGraff, 2006-NMSC-011, ¶ 21, 139 N.M. 211, 131
P.3d 61). “Only in the most exceptional circumstances should we . . . determine that

all the safeguards at the trial level have failed. Only [then] should we reverse the

verdict of a jury and the judgment of a trial court.” Sosa, 2009-NMSC-056, ¶ 25.

{22} “As with any fundamental error inquiry, we will upset a jury verdict only (1)

when guilt is so doubtful as to shock the conscience, or (2) when there has been an

error in the process implicating the fundamental integrity of the judicial process.”

Id. ¶ 35.

{23} Our Supreme Court has held that prosecutorial misconduct amounts to

fundamental error when it is “so egregious and had such a persuasive and prejudicial

effect on the jury’s verdict that the defendant was deprived of a fair trial.” State v.

Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (internal quotation marks

and citation omitted). We now turn to each of Defendant’s claims of error.

A. The State’s Comments About Hesitation

{24} Defendant contends that the State encouraged the jury to disregard the

reasonable doubt standard by “mocking” defense counsel’s focus on hesitation as it

pertains to reasonable doubt. During closing argument, defense counsel read the jury

instruction defining reasonable doubt as “the kind of doubt that would make a

reasonable person . . . hesitate to act in the graver and more important affairs of life.”

UJI 14-5060 NMRA. Defense counsel then emphasized hesitation throughout
closing, highlighting aspects of the case that caused him to personally hesitate and

urged the jury to do the same.

{25} The State picked up on this theme in rebuttal, arguing, “[T]here were all these

things that [defense counsel] was saying that caused him to hesitate to act. That’s all

good and well, but you know who couldn’t hesitate to act? Sergeant Boehne and

Sergeant Doyle. Because we heard if they did hesitate, they’d almost certainly be

dead.” Our courts have held that “closing argument, and rebuttal argument in

particular, is necessarily responsive and extemporaneous, not always capable of the

precision that goes into prepared remarks.” Sosa, 2009-NMSC-056, ¶ 24.

{26} Through that lens, we view the State’s remarks as responsive to the defense’s

theme in closing and intended as a rhetorical flourish to repurpose defense counsel’s

own words in service of the State’s case. At no point did the State urge the jury to

ignore the jury instructions as written, nor did the State claim that the jury

instructions were incorrect. In fact, moments after addressing the defense’s theme of

hesitation, the State returned the jury’s focus to the jury instruction that directs the

jury to “only focus on the evidence and the testimony presented.” As for the State’s

creative repurposing of the defense’s focus on hesitation, we detect no error and end

our review.

B. The State’s References to the Element of Intent
{27} Defendant argues that the State committed prosecutorial misconduct by

misstating the element of deliberate intent throughout closing. In support, Defendant

points to three places in the record. First, Defendant faults the State for “argu[ing]

that the jury should find that [Defendant] acted with deliberate intent because he

demonstrated ‘intent to kill’ rather than ‘aimlessly shooting around.’” But nowhere

in Defendant’s citation to the State’s closing does the State use the term, “deliberate

intent,” or ask the jury to draw a conclusion about deliberate intent. Upon review of

the record, the State merely argued that the evidence that Defendant “shot through

. . . Sergeant Doyle’s window” supported “intent to kill” as opposed to “aimlessly

shooting around.” The State was required to show “intent to kill” to sustain a

conviction for both first- or second-degree murder. Arguing how the evidence met

that requirement was not improper.

{28} Next, Defendant takes issue with the State’s argument in rebuttal “that

[Defendant’s] choices were not mistaken or accidental, but ‘something that you have

to try to do.’” Defendant claims “[t]his argument was misleading, because non-

accidental conduct is not necessarily deliberate.” But the State never equated non-

accidental conduct with a deliberate intent to kill. The State referenced “deliberate

intent” just once within the entire cited passage, stating, “I’m very glad defense

brought up the aggravated fleeing charge and the pursuit because that’s where the

intent, that deliberate intent, that’s where that begins.” The State’s use of evidence
to support its theory that deliberate intent began to form during the pursuit was not

in error. Moreover, the challenged portion of the State’s rebuttal that contrasted

mistaken conduct with intentional conduct was responsive to Defendant’s argument

that he was initially chased by “unmarked vehicles.” Defendant’s argument sought

to sow doubt about whether Defendant knew he was being chased by police, which

was relevant to several counts. Counts 3, 4, and 5, which charged aggravated assaults

on three separate police officers, required the State to prove Defendant knew each

victim “was a peace officer and was performing duties of a peace officer.” Count 6,

which charged aggravated fleeing a law enforcement officer, also required proof that

Defendant “knew that a law enforcement officer had given [him] an audible or visual

signal to stop.”

{29} Finally, Defendant claims the State incorrectly argued that “picking up and

shooting a gun proves deliberate intent” by making the following argument:

“[Defendant] reached over into that passenger seat, he grabbed the gun, he picked it

up, he pointed at Sergeant Doyle, and then he fired, and then he fired again. So just

that small sequence alone, that shows six thought-out and intentional choices that

. . . [D]efendant made.” Again, Defendant infers more than the State actually argued.

Nowhere in the passage did the State make the incorrect statement of law that simply

picking up and shooting a gun equates to deliberate intent to kill.
{30} Defendant argues that these three instances of prosecutorial misconduct

constitute fundamental error, citing to State v. Garvin, 2005-NMCA-107, ¶ 20, 138

N.M. 164, 117 P.3d 970, because the State “understated what [it] was required to

prove” to establish deliberate intent to kill. Defendant puts particular weight on the

statements made in rebuttal because those were “the last words the jury heard before

beginning deliberations.” Medema, 2025-NMCA-011, ¶ 35. We disagree.

{31} As demonstrated above, Defendant does not prove that the State made a single

misstatement of law in closing. Accordingly, Defendant’s reliance on Garvin is

misplaced. There, the defendant was charged and convicted for a single count of

forgery, which required actual knowledge that the check he was trying to pass was

forged. See Garvin, 2005-NMCA-107, ¶¶ 1, 6. During its closing, the state misstated

the law by repeatedly telling jurors that they should render a guilty verdict because

the defendant “had a duty to know” that the signature on the check was forged, which

reduced the requisite mens rea from knowingly to negligently or recklessly. Id. ¶ 15

(emphasis and internal quotation marks omitted). This Court held that “the

misstatements likely had such a persuasive effect as to cause the jury to convict the

defendant based on a less than criminal state of mind.” Id. ¶ 21.

{32} To the extent the State’s arguments were imprecise, we will not disturb the

jury’s judgment on that basis. Imprecise arguments, as opposed to actual

misstatements of law, do not amount to prosecutorial misconduct, let alone
fundamental error. See State v. Duffy, 1998-NMSC-014, ¶ 53, 126 N.M. 132, 967

P.2d 807 (“[T]he prosecutor’s statements may have been somewhat imprecise but

they were not a misleading misstatement of the law.”), overruled on other grounds

by Tollardo, 2012-NMSC-008, ¶ 37 n.6; State v. Paiz, 2006-NMCA-144, ¶ 54, 140

N.M. 815, 149 P.3d 579 (“Although somewhat imprecise, the statement could not

be said to have compromised the fundamental fairness of the proceedings.”).

{33} Finally, so long as the jury is properly instructed, the State “did not have a

particular responsibility to explain the distinction [between attempted first- and

second-degree murder] in closing.” State v. Carrasco, 2007-NMCA-152, ¶ 14, 143

N.M. 62, 172 P.3d 611. At trial, the correct jury instructions for first-degree murder

by deliberate killing were read by the district court prior to the State’s closing

statement, and were closely referenced in closing arguments by both defense and the

State. At one point during its closing, the State projected for the jury the first-degree

murder instructions related to Defendant’s charges and read from them directly,

along with the lesser included offense of second-degree murder. For its part, the

defense specifically focused on the deliberate intent instruction by reading it slowly

and emphatically to the jury. And in rebuttal, the State reiterated that the jury

instruction “is the law” and that the jury “can only focus on the evidence and the

testimony presented and what that evidence and testimony shows.”

{34} In sum, we detect no error in the State’s comments addressing intent.
C. The State’s “Visualization Exercise” During Opening and Closing
Remarks
{35} Last, Defendant challenges certain statements made by the State in its opening

statement and closing arguments as improperly “invit[ing] the jury to convict based

on an emotional appeal rather than the elements of the offenses.” We agree that these

statements were improper but, as we explain below, we do not hold that they

amounted to fundamental error.

{36} During its opening argument, the State led the jury in a visualization exercise,

directing the jury as follows:

I just want everybody to close their eyes for a moment and listen to the
next things I’m going to say. I want you to visualize yourself sitting in
your car in the driver’s seat. It’s a bright sunny day. You’re sitting there
looking right through your windshield. I want you to imagine if
someone wanted to kill you, where would a bullet have to go through
to hit you in a fatal area on your body—your head, your heart. I want
you to visualize that bullet hole in your windshield, in the glass of your
windshield. And I want you to take a second and feel how you’re
feeling about that. What did that make you feel like?
The State then recalled that exercise in its closing argument while showing a

photograph of a bullet hole in one of the officer’s windshields, telling the jurors:

[D]uring my opening . . . I asked all of you to close your eyes and
visualize this very thing, right? . . . This is not imagination, this is reality
right here. This is a real photo depicting a bullet hole from the incident
that day involving [D]efendant. So it’s manifested out here on this piece
of paper, what I asked you to visualize that day in my opening. Sitting
in your driver’s seat, looking out through the front windshield and
imagining a bullet hole, okay? And I want you to take into account what
the officers were feeling that day, what they saw was going to happen
to them.
{37} We agree with Defendant that these statements are improper, erroneous, and

prosecutorial misconduct. The State concedes the comments were “awkward at

best.” But the problem is not that the visualization exercise might have been

awkward. The problem is that the State’s comments improperly invited the jurors to

see themselves in the position of the victims, which could have caused them to render

a verdict based on emotion and not on the careful weighing of the evidence. So-

called “golden rule arguments,” in which jurors are asked to put themselves in the

place of the victims, are “universally condemned because [they] encourage[] the jury

to depart from neutrality and to decide the case on the basis of personal interest and

bias rather than on the evidence.” United States v. Palma, 473 F.3d 899, 902 (8th

Cir. 2007) (internal quotation marks and citation omitted). Unsurprisingly, these

arguments also contradict our Supreme Court’s uniform jury instruction, which

states that “[n]either sympathy nor prejudice should influence your verdict.” UJI 14-

6006 NMRA.

{38} We understand that the State might have hoped that this exercise would

illustrate the threat the officers faced and the intent behind the placement of the

bullets to argue how certain elements had been met. But asking the jurors to imagine

someone trying to kill them, place themselves in the physical position of the victims,

and consider their feelings about that prospect, crosses the line into argument that is

clearly prohibited. We reiterate that “[a] guilty verdict must be based upon the
evidence and the reasonable inferences therefrom, not on an irrational response

which may be triggered if the prosecution unfairly strikes an emotion in the jury.”

State v. Sena, 2020-NMSC-011, ¶ 21, 470 P.3d 227 (internal quotation marks and

citation omitted).

{39} It does not necessarily follow, however, that these improper remarks

constitute fundamental error warranting reversal. To determine whether an error

rises to the level of fundamental error, we must “presum[e] that the verdict was

justified,” Sosa, 2009-NMSC-056, ¶ 37, and the defendant bears the burden of

rebutting that presumption. See id. ¶ 36. An error is fundamental only if intervention

by an appellate court is necessary to prevent “a miscarriage of justice.” Id. ¶ 41. To

determine whether an improper and erroneous argument amounts to fundamental

error, we look to three factors:

(1) whether the statement invades some distinct constitutional
protection;
(2) whether the statement is isolated and brief, or repeated and
pervasive; and finally whether the statement is invited by the defense.

See id. ¶ 26. We evaluate these factors “objectively in the context of the prosecutor’s

broader argument and the trial as a whole.” Id.

{40} Under the first prong of the test, our courts have found fundamental error

where, for example, a prosecutor commented on a defendant’s post-Miranda silence,

and where repeated reference was made to a defendant’s lack of consent to a
warrantless search. See, e.g., Allen, 2000-NMSC-002, ¶ 27; Garcia v. State, 1986-

NMSC-007, ¶ 10, 103 N.M. 713, 712 P.2d 1375. No distinct constitutional

protection is implicated by the State’s improper comments here.

{41} Second, such error may be reversible where it is “pronounced and persistent,

with a probable cumulative effect upon the jury.” State v. Diaz, 1983-NMCA-091,

¶ 21, 100 N.M. 210, 668 P.2d 326 (internal quotation marks and citation omitted).

By calling back to the visualization exercise during closing we consider the error

“pronounced.” However, we see no indication that the jury was improperly swayed

by these comments for the reasons discussed below.

{42} We review the trial as a whole to determine whether “the prosecutor’s

comments materially altered the trial or likely confused the jury by distorting the

evidence.” Sosa, 2009-NMSC-056, ¶ 34. Defendant must persuade us “that the

prosecutor’s conduct created a reasonable probability that the error was a significant

factor in the jury’s deliberations in relation to the rest of the evidence before them.”

Id. ¶ 35 (text only) (citation omitted).

{43} The State’s improper argument went to Defendant’s general intent to kill the

officers, and Defendant concedes there was ample evidence presented at trial to

support that finding. As noted above, Defendant’s multiple shots towards the heads

of the officers, as supported by both the testimony of the officers and the physical

evidence, palpably demonstrate an intent to kill. The overwhelming evidence of
Defendant’s intent to kill makes it less likely that the prosecutor’s conduct was a

significant factor in the jury’s deliberations. See id.

{44} Finally, Defendant did not “open the door” or otherwise invite the State’s

arguments. We note however, Defendant responded to the arguments, immediately

criticizing then leveraging the improper visualization argument in his own opening

statement:

When they ask you to visualize and close your eyes and visualize what
happened, I would expect to have seen a video, a lapel cam, of what
happened. Ladies and gentlemen, that is something that causes me to
hesitate. Instead of imagining being shot at. I would expect to have
what’s called a toolmark expert, somebody who would have said this is
where the bullets were shot, this is where they came through, this is the
angle, this is the speed, a ballistics expert. This is how fast the cars were
going, an accident reconstructionist: here’s the PIT maneuver, here’s
what happened, here’s this, here’s that . . . . It’s not your job to think
about what is happening because you’re not supposed to speculate. That
causes me to hesitate.

We do not intend to disadvantage Defendant for effectively responding to improper

arguments by the State. We simply note that our review requires us to consider the

entirety of the trial record.

{45} Based on our review of the whole record and considering the specific

arguments made by Defendant in this case, we conclude that Defendant “has not

carried his burden to establish the existence of fundamental error.” State v. Astorga,

2016-NMCA-015, ¶ 13, 365 P.3d 53; see also State v. Baca, 1997-NMSC-059, ¶ 55,

124 N.M. 333, 960 P.2d 776 (prosecutorial misconduct in closing argument that
compared victim and his mother to “‘the Madonna holding Jesus off the cross’” did

not amount to fundamental error), abrogated by State v. Revels, 2025-NMSC-021,

572 P.3d 974.2

{46} Although we do not order a new trial today, we conclude with a cautionary

note for the State. “A prosecutor represents the public interest and must ensure above

all else that a criminal defendant receives a fair trial.” State v. Torres, 2012-NMSC-

016, ¶ 3, 279 P.3d 740 (emphasis added) (internal quotation marks and citation

omitted). Golden rule arguments, such as those made in this case, are incompatible

with that fundamental duty. Such arguments also create risks for the prosecution

itself: mistrial orders and reversals of convictions on appeal. While we have no

reason to believe that the prosecution did so here, we caution prosecutors against

seeking to exploit deferential standards of review—particularly review for

fundamental error—in the hope that convictions will survive despite the use of

2
Defendant cites multiple out-of-state cases in support of his argument, all of
which we find unpersuasive. Nearly all of those authorities confront prosecutors’
arguments that were objected to at trial and thus not subject to review for
fundamental error. See Commonwealth v. Cherry, 378 A.2d 800 (Pa. 1977); State v.
Reese, 633 S.E.2d 898 (S.C. 2006); Holliman v. State, 2010-KA-00397-SCT. (Miss.
2011). One of those cases, Palma, 473 F.3d at 902, assessed a preserved golden rule
argument. There the Eighth Circuit did not find an abuse of discretion by the district
court, which declined to grant a mistrial and did not provide a curative instruction.
Id. at 901-03. The only out-of-state case cited that featured an unpreserved challenge
to an improper argument, Commonwealth v. Bizanowicz, 945 N.E.2d 356 (Mass.
2011), did not result in reversal.
improper arguments. See State v. Cooper, 2000-NMCA-041, ¶ 16, 129 N.M. 172, 3

P.3d 149.

D. There Was No Cumulative Error

{47} As noted above, the State’s presentation was not without missteps. We hold,

however, that only one of the State’s alleged improprieties amounted to error, and

that error was not fundamental. Because the cumulative error doctrine can apply only

where there are multiple errors, see State v. Salas, 2010-NMSC-028, ¶ 39, 148 N.M.

313, 236 P.3d 32, there can be no cumulative error here. Cf. State v. Baca, 1995-

NMSC-045, ¶ 39, 120 N.M. 383, 902 P.2d 65 (finding reversible cumulative error

where “the trial court made several egregious errors, including improperly admitting

hearsay testimony without providing the defense with an opportunity to rebut the

evidence and improperly excluding evidence that was to be used to impeach the

[s]tate’s primary witness”).

III. Defendant’s Convictions for Attempted Murder and Assault on a Peace
Officer Do Not Violate Double Jeopardy
{48} Defendant argues that “the time has come to reconsider” State v. Demongey,

2008-NMCA-066, 144 N.M. 333, 187 P.3d 679 and State v. Urquizo, 2012-NMCA-

113, 288 P.3d 919. Demongey and Urquizo held that convictions for both attempted

murder and assault on a peace officer are not violative of double jeopardy under a

double-description argument. We disagree for the reasons that follow.
{49} We evaluate double-description claims according to the two-part test

articulated in Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223. First,

we look to see “whether the conduct underlying the offenses is unitary, i.e., whether

the same conduct violates both statutes.” Id. ¶ 25. The parties concede that

Defendant’s conduct was unitary, as to the shots fired toward each officer, for the

purposes of our double jeopardy analysis. Although we are not required to accept

the parties’ concession, “we accept it under the facts of this case as supported by our

precedent and offer a brief analysis.” State v. French, 2021-NMCA-052, ¶ 17, 495

P.3d 1198.

{50} Second, we look at “the statutes at issue to determine whether the legislature

intended to create separately punishable offenses.” Swafford, 1991-NMSC-043,

¶ 25. This Court has been repeatedly asked to determine whether the Legislature

intended to create separately punishable offenses for crimes similar to those for

which Defendant was convicted. See, e.g., Urquizo, 2012-NMCA-113, ¶ 12 (“The

social harm targeted by the crime of aggravated battery upon a peace officer is

distinct from that targeted by the crime of attempted murder. Aggravated battery

upon a peace officer falls within an entirely different article of the Criminal Code

. . . , entitled ‘Interference with Law Enforcement,’ than does general aggravated

battery or attempted murder.”). And we have repeatedly held that the general

prohibition against homicide is different than the specific prohibitions against
impeding peace officers in the discharge of their duties. Id. ¶¶ 12-14; Demongey,

2008-NMCA-066, ¶¶ 22-23. The reasons for this distinction are numerous, and our

analysis on this question has not changed. See Urquizo, 2012-NMCA-113, ¶¶ 12-14

(discussing the likelihood that these crimes will be committed together, the different

types of social harm targeted by the statutes, and the Legislature’s specificity in

placing crimes against peace officers in a separate and distinct section of the New

Mexico statutes).

{51} Defendant argues that Urquizo and Demongey should be overturned because

“[o]ur double jeopardy jurisprudence has continued to grow away from the historical

strict mechanical elements test and increasingly toward a substantive sameness

analysis.” State v. Montoya, 2013-NMSC-020, ¶ 46, 306 P.3d 426. It is true that this

Court has of late issued nonprecedential opinions holding that convictions for battery

on a household member alongside other assaultive crimes violate double jeopardy,

but none of those cases involve convictions for impeding peace officers in the

discharge of their duties. See State v. Perez, A-1-CA-37025, mem. op. (N.M. Ct.

App. Nov. 15, 2019) (nonprecedential); State v. Francis, A-1-CA-35792, mem. op.

(N.M. Ct. App. Nov. 22, 2019) (nonprecedential); State v. Trejo-Vigil, A-1-CA-

39183, mem. op. (N.M. Ct. App. Dec. 13, 2022) (nonprecedential). We are unwilling

to collapse that distinction where the Legislature has created additional protections

for peace officers.
{52} We continue to hold that convictions for attempted murder and aggravated

assault on a peace officer do not constitute double jeopardy, even when the

convictions arise out of unitary conduct. We therefore affirm Defendant’s

convictions for attempted first-degree murder, charged as Counts 1 and 2; and for

aggravated assault on a peace officer, charged as Counts 3 and 4.

IV. We Vacate Defendant’s Conviction for Shooting From a Motor Vehicle

{53} Finally, Defendant requests that we vacate his conviction for shooting from a

motor vehicle because it was based on the same conduct as his convictions for

attempted murder and for assault on a peace officer. The State concedes that the

conviction should be vacated. This concession is not binding, see State v. Comitz,

2019-NMSC-011, ¶ 25, 443 P.3d 1130, but having independently assessed

Defendant’s claims, we accept the State’s concession as correct.

{54} The State’s theory of the case shows that the charges for shooting from a

motor vehicle are based on the same acts of shooting as the convictions for attempted

murder and aggravated assault on a peace officer. See State v. Porter, 2020-NMSC-

020, ¶ 21, 476 P.3d 1201 (“Whether one offense subsumes the other depends entirely

on the State’s theory of the case.”). Our Supreme Court has previously held that

convictions for shooting at a motor vehicle and homicide when premised on the same

shooting constitute double jeopardy. Montoya, 2013-NMSC-020, ¶ 54. Similarly,

we agree that allowing Defendant’s convictions to stand for both attempted first-
degree murder and shooting from a motor vehicle would violate his double jeopardy

protections. Because shooting from a motor vehicle violates double jeopardy

alongside attempted first-degree murder, we need not determine whether it is

violative alongside Defendant’s convictions for assault on a peace officer.

{55} Moreover, our analysis would be identical. “[W]here one of two otherwise

valid convictions must be vacated to avoid violation of double jeopardy protections,

we must vacate the conviction carrying the shorter sentence.” Id. ¶ 55. Because we

uphold Defendant’s convictions for attempted murder, we vacate his conviction for

shooting from a motor vehicle, which was Count 7 below.

CONCLUSION

{56} We affirm all counts of conviction with the exception of Defendant’s

conviction for shooting from a motor vehicle, which we vacate as a double jeopardy

violation. We remand this case to the district court for amendment of the judgment

and sentence consistent with this opinion.

{57} IT IS SO ORDERED.

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KRISTOPHER N. HOUGHTON, Judge

WE CONCUR:

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ZACHARY A. IVES, Judge

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SHAMMARA H. HENDERSON, Judge