STATE OF NEW MEXICO V. LEONARD TELLES

Defendant beat Jerome Saiz (Victim) to death with a baseball bat. At trial,

12 Defendant testified that he was at Victim's house, assisting Rebecca Gomez,

13 Victim's ex-girlfriend, with packing so she could move out. At some point after

14 Defendant and Ms. Gomez finished packing, Ms. Gomez's two young daughters

15 alerted them that Victim had arrived. Defendant went into the living room where

16 Victim and Ms. Gomez were arguing. Defendant testified that Victim was holding a

17 baseball bat, seemed "high," and threatened Defendant. Defendant said that Victim

18 "rushed" him, but that he fought Victim off and was able to take the bat away from

19 Victim while Victim was making a phone call. Defendant testified that he warned

1 Victim to stay away, but Victim came at him again, so he used the bat to defend

2 himself.

3 {3} After the altercation, and seeing Victim lying on the ground unresponsive,

4 Defendant believed Victim to be dead. Defendant told Ms. Gomez that they needed

5 to leave Victim's house. Defendant covered Victim with a blanket and stashed the

6 bat behind the washing machine. He then dragged Victim to a back bedroom, rolled

7 him up in a carpet, and shut the door. Defendant next mopped the blood from the

8 living room floor. He testified that he took these actions, not to prevent the police

9 from finding Victim's body or to conceal evidence, but to prevent Ms. Gomez's two

10 daughters from seeing the body or the blood and getting upset.

11 {4} Defendant testified that he believed Victim was dead when he dragged him to

12 the back bedroom, but that when he heard police knocking at the door, he "panicked"

13 and began pacing throughout the house. He went to check on Victim, heard Victim

14 making loud snoring noises, and decided to inform the officers that Victim was

15 "knock[ ed] ... out." Defendant also told the officers two things that he admitted at

16 trial were false: first, that Victim had broken into the home-which Defendant

17 misrepresented to the officers as belonging to Ms. Gomez-in the middle of the

18 night; and second, that upon entry, Victim had attacked Ms. Gomez.

19 {5} At trial, the State took the position that Defendant had not acted in self

20 defense, but instead had killed Victim willfully and deliberately by repeatedly

2

1 striking him with the baseball bat. It was also the State's theory that Defendant

2 kidnapped Victim by rolling him up in the carpet so that if Victim regained

3 consciousness, he would not be able to move or call for help. The State argued that

4 Defendant's efforts to mop up the blood in the living room and stash the bat behind

5 the washing machine supported two counts of tampering with evidence. The State

6 additionally argued that, by moving Victim to the back bedroom and rolling him up

7 in a carpet, Defendant was trying to hide evidence of his crimes from the police,

8 thereby attempting to tamper with evidence.

9 {6} The jury convicted Defendant on all counts, 1 and Defendant was sentenced to

10 fifteen years' incarceration for second degree murder with two years of parole;

11 eighteen years' incarceration for kidnapping followed by two years of parole;

12 eighteen months' incarceration for attempted tampering with evidence followed by

13 one year of parole; and three years' incarceration followed by two years of parole

14 for each of the tampering with evidence convictions. The district court ordered

15 Defendant to serve the sentences for murder, kidnapping, attempted tampering, and

16 one of the tampering charges consecutively, but ordered the second tampering with

17 evidence charge to be served concurrent with the sentence for second degree murder.

18 We provide additional facts as needed to address Defendant's claims on appeal.

1Defendant was charged with first degree murder, but the jury was instructed on second degree murder, voluntary manslaughter, and involuntary manslaughter as well. The jury found Defendant guilty of second degree murder.

3

1 DISCUSSION

2 I. Defendant's Right to a Public Trial Was Not Violated

3 {7} Upon completion of a three-day jury trial, defense counsel learned that the

4 courtroom had been closed to several members of the public, including, it appears,

5 three members of Defendant's family, for a ten to fifteen minute period during

6 closing arguments. The closure occurred, unbeknownst to the district court and the

7 parties, when a court security officer barred entry to the would-be spectators in

8 response to a "Do Not Enter" sign that, for reasons unknown had been affixed to the

9 courtroom door. Defendant filed a post-verdict motion for a new trial, arguing that

10 the closure was of constitutional dimension, and the district court held a hearing to

11 determine the causes and circumstances of the temporary courtroom closure. The

12 upshot of the hearing was two-fold: the district court neither ordered nor was aware

13 of the closure, and no one could say with certainty who posted the closure sign or

14 why. The hearing testimony showed that the bailiff, upon learning of the situation as

15 it unfolded, immediately directed that all members of the public be permitted entry.

16 Despite the exclusion of a few, the courtroom was otherwise full of spectators,

17 including members of the media, who had entered before the brief and inadvertent

18 closure. The district court denied Defendant's motion, emphasizing the limited

19 nature-both in time and scope-of the courtroom closure.

4

1 {8} Defendant argues that the period of minutes during which the courtroom was

2 closed violated his right to a public trial under the Federal and New Mexico

3 Constitutions. We review de novo whether a defendant's constitutional rights have

4 been violated. State v. Turrietta, 2013-NMSC-036, 114, 308 P.3d 964.

5 {9} The Federal Constitution provides that "[i]n all criminal prosecutions, the

6 accused shall enjoy the right to a speedy and public trial[.]" U.S. Const. amend. VI.

7 The New Mexico Constitution similarly provides that an accused shall have "a

8 speedy public trial by an impartial jury of the county or district in which the offense

9 is alleged to have been committed." N.M. Const. art. II, § 14. The values protected

10 by the Sixth Amendment right to a public trial are to ensure a fair trial, remind the

11 prosecutor and judge of their responsibility to the accused and the importance of

12 their functions, encourage witnesses to come forward, and discourage perjury. See

13 Waller v. Georgia, 467 U.S. 39, 46 (1984). "The right to a public trial is not absolute

14 and may give way in certain cases to other rights or interests, such as the defendant's

15 right to a fair trial or the government's interest in inhibiting disclosure of sensitive

16 information." Turrietta, 2013-NMSC-036, 1 15 (internal quotation marks and

17 citation omitted). "A total courtroom closure is allowed when there is 'an overriding

18 interest based on findings that closure is essential to preserve higher values and is

19 narrowly tailored to serve that interest.' "Id. 1 17 ( quoting Waller, 467 U.S. at 45).

20 To determine whether there is an "overriding interest" sufficient to justify a

5

1 courtroom closure, the district court must adhere to the following standard: "[ 1] the

2 party seeking to close the hearing must advance an overriding interest that is likely

3 to be prejudiced, [2] the closure must be no broader than necessary to protect that

4 interest, [3] the district court must consider reasonable alternatives to closing the

5 proceeding, and [ 4] it must make findings adequate to support the closure." Id.

6 (alterations in original) ( quoting Waller, 467 U.S. at 48).

7 {to} Defendant contends that because the courtroom closure at issue did not meet

8 the "overriding interest" standard, it was unconstitutional. See id. But Defendant's

9 application of Turrietta to the facts at hand is misplaced. In that case our Supreme

10 Court applied the "overriding interest" standard in the specific context of a

11 courtroom closure sought by the State and ordered over a defense objection. See id.

12 ,r,r 5-6. In this case, the district court had no knowledge of, much less any role in, the

13 closure, and there was no defense objection to the closure, which came and went

14 without notice by the district court or the parties.

15 {I 1} New Mexico jurisprudence has yet to address this precise situation. The State

16 urges us to follow federal case law, which has consistently declined to find a

17 violation of a defendant's constitutional right to a public trial where, as is the case

18 here, the closure is fairly characterized as "trivial." We agree, persuaded as we are

19 by the reasoning of the federal cases cited by the State.

6

1 {12} In Peterson v. Williams, 85 F.3d 39, 41-42 (2d Cir. 1996), the district court

2 properly closed a courtroom during the testimony of an undercover officer, but

3 inadvertently left it closed for an additional fifteen to twenty minutes during the

4 defendant's ensuing testimony. The defendant argued that this inadvertent closure

5 violated his right to a public trial. Id. at 41. The Second Circuit disagreed, holding

6 that the closure did not violate the values protected by the right to a public trial

7 because the closure was short and inadvertent and because the relevant portions of

8 the defendant's testimony, which some members of the public may have been

9 prevented from hearing, were repeated by defense counsel in summation. Id. at 43

10 44. In other words, the closure was too trivial to violate the Sixth Amendment. Id. at

11 44; see also Carson v. Fischer, 421 F.3d 83, 92-95 (2d Cir. 2005) (holding that the

12 intentional exclusion of the defendant's ex-mother-in-law from the courtroom

13 during testimony of a confidential informant was too trivial to implicate the Sixth

14 Amendment); United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir. 1994)

15 (holding that the defendant was not denied a public trial where the courthouse closed

16 at its usual time, 4:30 p.m., the trial continued for no more than twenty minutes, and

17 only defense counsel's wife and child were prevented from entering); Snyder v.

18 Coiner, 365 F. Supp. 321, 323-24 (N.D.W. Va. 1973) (mem. order) (holding that the

19 accidental closure of the courtroom during summation did not amount to denial of a

20 public trial where the closure was relatively short and it was unclear whether any

7

1 spectators were in the courtroom during the closure), aff'd on other grounds, 510

2 F.2d 224 (4th Cir. 1975).

3 {13} Defendant cites no authority to support the position he advances: that any

4 wrongful courtroom closure, no matter how trivial or de minimus, violates a

5 defendant's right to a public trial. Nor are we aware of any such authority. Indeed,

6 as the Washington Supreme Court recently observed in analogous circumstances,

7 "[T]here is no jurisdiction we are aware of that has adopted a rule completely

8 rejecting the doctrine of de minimis closures." State v. Schierman, 415 P.3d 106,

9 126 (Wash. 2018).

10 {14} We agree with the uniform line of authority holding that a courtroom closure

11 that is determined to be trivial does not meaningfully infringe upon the values

12 protected by the right to a public trial. See Peterson, 85 F .3d at 43 ( considering the

13 impact of the closure vis-a-vis the "the values furthered by the public trial

14 guarantee"); see also Weaver v. Massachusetts,_ U.S._,_, 137 S. Ct. 1899,

15 1909 (201 7) ( recognizing that "not every public-trial violation results in fundamental

16 unfairness"). Such is the circumstance in this case. First, we can only characterize

17 what occurred in this case as a "closure" in the most technical sense of the term,

18 considering that, as Defendant now readily acknowledges, "the courtroom was full

19 of spectators and the media" during the isolated portion of the proceedings-a period

20 of no more than fifteen minutes during closing arguments-around which

8

1 Defendant's constitutional argument centers. It was, at most, a brief, inadvertent,

2 partial closure, one promptly remedied by the bailiff as soon as the problem was

3 reported. Defendant offers no explanation, and none readily comes to mind, as to

4 how such a limited closure deprived him of a fair trial. See United States v. Scott,

5 564 F.3d 34, 38 (1st Cir. 2009) (concluding that, despite the trial court's directive

6 barring spectators from entering or leaving the courtroom during the jury charge, no

7 closure occurred because "the public was indeed present at the jury charge and with

8 its presence cast the sharp light of public scrutiny on the trial proceedings, thus

9 providing the defendant with the protections anticipated by the public trial provision

10 of the Constitution"). Second, as was true of all the trial's participants, the judge and

11 prosecutor were not aware of the occurrence of the courtroom closure, a

12 circumstance which alleviates any concern that the closure somehow diminished

13 their "sense of . .. responsibility [to the accused] and ... the importance of their

14 functions[.]" Waller, 467 U.S. at 46 (internal quotation marks and citation omitted).

15 Lastly, the closure occurred following the evidentiary stage of the trial during

16 closing statements, at a time when respective counsel were summarizing and

17 commenting on the evidence presented during proceedings that undisputedly had

18 been open to the public. As such, the Waller goals of encouraging witnesses to come

19 forward and discouraging perjury are not remotely implicated by the closure here

20 involved. We therefore hold that the brief, inadvertent closure of the courtroom

9

1 during closing argument was trivial and did not violate Defendant's right to a public

2 trial.

3 II. Defendant's Challenges to the Sufficiency of the Evidence Supporting His 4 Convictions for Kidnapping, Tampering With Evidence and Attempted 5 Tampering With Evidence Fail

6 {15} Defendant argues, in perfunctory fashion, that there was insufficient evidence

7 to support his convictions for kidnapping, the two tampering with evidence counts,

8 and attempted tampering with evidence. We begin by cautioning Defendant's

9 appellate counsel that the presentation of these issues is woefully inadequate and

10 undeveloped, spanning less than a single page for each contention and offering scant

11 legal or factual analysis. See Rule 12-318(A)(4) NMRA (requiring citations to

12 applicable New Mexico decisions); State v. Guerra, 2012-NMSC-014, ~ 21, 278

13 P.3d 1031 (observing that the appellate courts are under no obligation to consider

14 undeveloped or unclear arguments); State v. Clifford, 1994-NMSC-048, ~ 19, 117

15 N.M. 508, 873 P.2d 254 (reminding counsel that the appellate courts are not required

16 to do their research); State v. Vigil-Giron, 2014-NMCA-069, ~ 60, 327 P.3d 1129

17 ("[ A ]ppellate courts will not consider an issue if no authority is cited in support of

18 the issue and that, given no cited authority, we assume no such authority exists[.]");

19 Muse v. Muse, 2009-NMCA-003, ~ 72, 145 N.M. 451,200 P.3d 104 ("We will not

20 search the record for facts, arguments, and rulings in order to support generalized

21 arguments."). Consequently, and to the extent feasible given the cryptic nature of

10

1 Defendant's arguments, we briefly address the evidence supporting Defendant's four

2 convictions. Further, where possible, we rely on the counterarguments advanced by

3 the State in its answer brief to better understand the vague sufficiency challenges

4 raised by Defendant.

5 {16} "The test for sufficiency of the evidence is whether substantial evidence of

6 either a direct or circumstantial nature exists to support a verdict of guilty beyond a

7 reasonable doubt with respect to every element essential to a conviction." State v.

8 Montoya, 2015-NMSC-010, ,r 52, 345 P.3d 1056 (internal quotation marks and

9 citation omitted). The reviewing court "view[ s] the evidence in the light most

10 favorable to the guilty verdict, indulging all reasonable inferences and resolving all

11 conflicts in the evidence in favor of the verdict." State v. Cunningham, 2000-NMSC

12 009, ,r 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences

13 that support a different result. See State v. Rojo, 1999-NMSC-001, ,r 19, 126 N.M.

14 438, 971 P.2d 829.

15 A. Kidnapping

16 {17} As explained by the State in its response to Defendant's cursory challenge to

17 the sufficiency of the evidence supporting his conviction for kidnapping, the State's

18 case at trial rested on alternative theories regarding how Defendant's act of moving

19 Victim's moribund body to the back bedroom and rolling him up in the carpet

20 constituted kidnapping under NMSA 1978, Section 30-4-1 (2003). First, the State

11

1 argued that Victim was "kidnapped" based on being "held to service," i.e., prevented

2 from trying to assist himself or reporting the crime to police, in violation of Section

3 30-4-1 (A)(3). See id. (providing that "[k]idnapping is the unlawful taking,

4 restraining, transporting or confining of a person, by force, intimidation or

5 deception, with intent ... that the victim be held to service against the victim's

6 will"); State v. Vernon, 1993-NMSC-070, , 13, 116 N.M. 737, 867 P.2d 407

7 ( explaining that to "hold to service" means that the victim must "be held against his

8 or her will to perform some act, or to forego performance of some act, for the benefit

9 of someone or something" (internal quotation marks omitted)), superseded by statute

IO as stated in State v. Baca, 1995-NMSC-045, , 41, 120 N.M. 383, 902 P.2d 65.

11 Alternatively, the State argued that Defendant's conduct in moving and wrapping

12 Victim's body was actuated by an intent to inflict death or physical injury on Victim,

13 thus constituting kidnapping under Section 30-4-1 (A)( 4 ). See id. (providing that

14 "[k]idnapping is the unlawful taking, restraining, transporting or confining of a

15 person, by force, intimidation or deception, with intent ... to inflict death, physical

16 injury or a sexual offense on the victim"). Consistent with the State's alternative

17 theories, the jury was instructed that, to convict Defendant of kidnapping it had to

18 find that:

19 20

21

1. [D]efendant took or restrained or confined or transported [Victim] by force or intimidation;

2. [D]efendant intended to hold [Victim] against [Victim's] will:

12

1 [(a)] to inflict death or physical injury on [Victim]

2 OR

3 3. [ (b)] for the purpose of making [V] ictim do something[,] or for 4 the purpose of keeping [V]ictim from doing something;

5 This happened in New Mexico on or about the 20th day of November, 6 2013.

7 {18} Thus, Defendant's vague challenge to the sufficiency of the evidence

8 supporting his kidnapping conviction appears to boil down to a claim that "[ n ]o

9 service was performed" and that Defendant "committed the murder and then moved

10 [Victim]" in order "to hide the body from Ms. Gomez's children." Citing only to

11 Vernon, 1993-NMSC-070, ,r 13, Defendant argues that his conviction for kidnapping

12 was unsupported by substantial evidence because his act of moving Victim to the

13 back bedroom and rolling him up in the carpet was merely an incidental restraint to

14 the homicide, and thus could not have satisfied the "held to service" element of

15 kidnapping. The State responds that Vernon is factually distinguishable from the

16 instant case because the act of asportation that formed the basis for the insufficiently

17 proven kidnapping charge in Vernon preceded and was incidental to the ensuing

18 homicide, see id. ,I 6, whereas here, the acts giving rise to the kidnapping charge

19 followed and were "separate and distinct" from Defendant's infliction of the injuries

20 that led to Victim's death. Given the parties' substantive disagreement as to the

13

1 applicability of Vernon to the kidnapping statute, we address the current state of the

2 law regarding both.

3 {19} Assuming, arguendo, that the State failed to prove that Victim was "held to

4 service" within the meaning of that term as interpreted in Vernon, Defendant's

5 argument fails to appreciate that Vernon was superseded by the Legislature's

6 amendment to the kidnapping statute in 1995, which added the taking of a person

7 "with intent to inflict death, physical injury, or a sexual offense" as an alternative

8 means of committing kidnapping. Compare NMSA 1978, § 30-4-l(A)(l)-(3)

9 (1994), with NMSA 1978, § 30-4-l(A)(l)-(4) (1995); see Baca, 1995-NMSC-045,

10 , 41 (noting that the Legislature amended the statute to include taking a person to

11 facilitate the killing of that person after our Supreme Court decided Vernon). Thus,

12 under the post-1995 and current version of the kidnapping statute, a defendant can

13 be found guilty for taking someone against his or her will to hold that person, inter

14 alia, "to service" or "to inflict death, physical injury or a sexual offense on [that

15 person]." Section 30-4-l(A)(3), (4). Defendant's argument under Vernon that his

16 "incidental movement" of Victim was not sufficient to satisfy the "held to service"

17 element of the kidnapping statute misapprehends the separate and distinct avenues

18 of criminal liability available to and pursued herein by the State.

19 {20} Having misunderstood the scope of the current, post-Vernon iteration of the

20 kidnapping statute and its separate avenues of liability, Defendant fails to address

14

1 whether sufficient evidence supported the State's alternative theory of kidnapping

2 based on evidence that Defendant intended to inflict death or physical injury on

3 Victim by moving him to the back room and rolling him up in the carpet. This

4 omission is also fatal to Defendant's challenge to the sufficiency of his kidnapping

5 conviction. See State v. Duttle, 2017-NMCA-001,, 33, 387 P.3d 885 (explaining

6 that a "general verdict will not be disturbed if there is substantial evidence in the

7 record to support at least one of the theories of the crime presented to the jury"); see

8 also Rule 12-318(A)(4) (providing that a finding that is not attacked "shall be

9 deemed conclusive" and that "[a] contention that a verdict ... or finding of fact is

10 not supported by substantial evidence shall be deemed waived unless the argument

11 identifies with particularity the fact or facts that are not supported by substantial

12 evidence"). Because Defendant has failed to demonstrate any error relating to his

13 kidnapping conviction, we affirm that conviction. See State v. Aragon, 1999

14 NMCA-060,, 10, 127 N.M. 393,981 P.2d 1211 (noting that "it is [the appellant's]

15 burden on appeal to demonstrate any claimed error below").

16 B. Tampering With Evidence

17 {21} Defendant challenges his convictions for tampering with evidence as being

18 unsupported by substantial evidence. "Tampering with evidence consists of

19 destroying, changing, hiding, placing or fabricating any physical evidence with

20 intent to prevent the apprehension, prosecution or conviction of any person or to

15

1 throw suspicion of the commission of a crime upon another." NMSA 1978, § 30-22

2 5(A) (2003). Intent to tamper with evidence can be inferred from circumstantial

3 evidence. See State v. Schwartz, 2014-NMCA-066, 136, 327 P.3d 1108 (stating that

4 the jury could infer the defendant's intent to tamper with evidence from evidence,

5 inter alia, that the defendant owned a blue air mattress and sheets and that the

6 victim's body was found in a nearby alley wrapped in a blue air mattress and sheets);

7 see also State v. Brenn, 2005-NMCA-121, 1 24, 138 N.M. 451 , 121 P.3d 1050

8 (recognizing that "[i]ntent is usually established by circumstantial evidence[,]"

9 which can take the form of evidence of a defendant's own actions and prior

10 inconsistent statements). The jury is free to disregard a defendant's testimony if it

11 finds that the defendant is not credible. See State v. Cabezuela, 2011-NMSC-041,

12 1 45, 150 N.M. 654, 265 P.3d 705 (stating that jurors may "reject [the d]efendant's

13 version of the facts" (internal quotation marks and citation omitted)).

14 {22} The two counts for which Defendant was convicted were premised on his

15 actions of (1) mopping up Victim's blood, and (2) hiding the baseball bat behind the

16 washing machine. 1 At trial, Defendant did not dispute that he mopped up the blood

1Defendant's brief states that the State "failed to present sufficient evidence of three counts of tampering with evidence." We believe this was a clerical error because Defendant was only charged with and convicted of two counts of tampering with evidence.

16

1 or hid the bat but testified that he did so only to prevent Ms. Gomez's children from

2 seeing and becoming upset by the blood.

3 {23} On appeal, Defendant does nothing more than refer to this testimony to

4 support his argument that the tampering convictions are unsupported by substantial

5 evidence. However, not only was the jury free to reject Defendant's self-serving

6 account of his motives, see id., but it could also have inferred the requisite intent to

7 support Defendant's tampering convictions from the evidence presented.

8 Specifically, the jury could have found that Defendant was not credible based on the

9 inconsistencies in his testimony regarding the frequency, sequence, and location of

10 the blows he inflicted upon Victim during the attack, as well as the conflicts between

11 his trial testimony and his statements to police at the scene. Further, there was

12 sufficient evidence for the jury to infer that Defendant intended to hide evidence

13 from the police, including the State's showing that he failed to call 911 when he

14 initially thought he had killed Victim, that he did not attempt to remove the children

15 from the house in lieu of disturbing the scene, and that he did not promptly allow

16 officers into the house upon their arrival. Finally, Defendant admitted on cross

I 7 examination that his acts of hiding the bat and mopping the floor would make it

18 harder for the police to find the incriminating evidence. We, therefore, affirm

19 Defendant's convictions for tampering with evidence.

17

1 C. Attempted Tampering With Evidence

2 {24} Defendant asserts that his conviction for attempted tampering with

3 evidence-premised upon Defendant's act of "wrapping [Victim] in a blanket and

4 carpet and moving [Victim] from the living room to a back bedroom"- was not

5 supported by sufficient evidence because, by moving Victim's body, he actually

6 completed the crime of tampering with evidence. Other than the definitional

7 language ofNMSA 1978, Section 30-28-1 (1963), defining an "[a]ttempt to commit

8 a felony" as "tending but failing to effect its commission[,]" Defendant cites no

9 authority, identifies no particularized facts, and develops no argument as to why his

10 conduct in moving Victim's body from one room to another should serve to

11 immunize him from attempt liability. Notable for its absence is any attempt by

12 Defendant to refute the State's trial position that Defendant's conduct was directed

13 not solely at moving Victim, but rather toward an unsuccessful effort to prevent

14 police from discovering Victim. Under these circumstances, we deem Defendant's

15 contention on this issue waived. See Rule 12-318(A)(4) (providing that "[a]

16 contention that a verdict . .. is not supported by substantial evidence shall be deemed

17 waived unless the argument identifies with particularity the fact or facts that are not

18 supported by substantial evidence"). We reiterate that because we are under no

19 obligation to review unclear or undeveloped arguments, and because we will not

20 consider an issue if no authority is cited in support of the issue, we conclude that

18

1 Defendant has failed to show that his conviction for attempted tampering with

2 evidence is unsupported by substantial evidence. See Guerra, 2012-NMSC-O 14,

3 ,I 21 ( observing that we need not consider undeveloped or unclear arguments); Vigil

4 Giron, 2014-NMCA-069, ,I 60 (stating that when a party cites no authority in support

5 of an argument, we may assume no such authority exists).

6 III. 7

8 {25}

Defendant's Convictions for Attempted Tampering With Evidence and Kidnapping Do Not Violate Double Jeopardy

Defendant next argues that his right to be free from double jeopardy was

9 violated by his convictions for attempted tampering with evidence and kidnapping.

10 We review Defendant's double jeopardy claim de novo. See State v. Andazola, 2003

11 NMCA-146, ,114, 134 N.M. 710, 82 P.3d 77.

12 {26} Defendant raises a double description claim, "in which a single act results in

13 multiple charges under different criminal statutes[.]" State v. Bernal, 2006-NMSC

14 050, ,I 7, 140 N.M. 644, 146 P.3d 289. In conducting a double description analysis,

15 we consider the elements of the statutes using the test set forth by the United States

16 Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932), to determine

17 whether each statute at issue "requires proof of a fact which the other does not."

18 State v. Montoya, 2013-NMSC-020, ,I 31, 306 P.3d 426 (internal quotation marks

19 and citation omitted). If one statute is subsumed within the other, the statutes are the

20 same for double jeopardy purposes and a defendant cannot be punished under both

21 statutes. Id. Our Courts have modified the Blockburger test, noting that "a complete

19

1 double jeopardy analysis may require looking beyond facial statutory language to

2 the actual legal theory in the particular case by considering such resources as the

3 evidence, the charging documents, and the jury instructions." Id. 149.

4 {27} Where neither statute subsumes the other, we presume that the Legislature

5 intended separate punishments, but this presumption "may be overcome by other

6 indicia of legislative intent." State v. Silvas, 2015-NMSC-006, 11 12-13, 343 P.3d

7 616 (internal quotation marks and citation omitted). In analyzing the legislative

8 intent underlying the statutes, we must consider "the language, history, and subject

9 of the statutes" in order to "identify the particular evil sought to be addressed by

10 each offense." Id. 1 13 (internal quotation marks and citation omitted). "If several

11 statutes are not only usually violated together, but also seem designed to protect the

12 same social interest, the inference becomes strong that the function of the multiple

13 statutes is only to allow alternative means of prosecution." Montoya, 2013-NMSC

14 020, 1 32 (internal quotation marks and citation omitted). Where a statute is vague

15 and unspecific, we must look to the State's theory of the case in evaluating the

16 legislative intent by reviewing the charging documents and the jury instructions

17 given. See Silvas, 2015-NMSC-006, ,r 14.

18 {28} Here, neither statute subsumes the other. Attempted tampering with evidence

19 requires the accused to take a substantial step toward "destroying, changing, hiding,

20 placing or fabricating any physical evidence with intent to prevent the apprehension,

20

1 prosecution or conviction of any person or to throw suspicion of the commission of

2 a crime upon another." Section 30-22-5(A). By contrast, kidnapping, as here

3 relevant, requires that one take, restrain, transport or confine a person "by force,

4 intimidation or deception," intending to hold the person to service or with the intent

5 to injure or kill him. Section 30-4-l(A)(3), (4); State v. Montoya, 2011-NMCA-074,

6 ,r 37, 150 N.M. 415, 259 P.3d 820 (noting that the pertinent inquiry for double

7 description purposes is the state's theory of kidnapping). Plainly, each statute

8 requires proof of a fact ( or facts) that the other does not-with tampering with

9 evidence focusing on a defendant's intent to hide evidence to avoid prosecution, and

10 kidnapping focusing instead on a defendant's intent in "unlawful[ly] taking,

11 restraining, transporting or confining of a person[.]" Compare§ 30-22-5, with § 30

12 4-l(A)(3), (4). Tampering with evidence, or an attempt to do the same, does not

13 require that a person be held and made to do something, nor does it require the

14 infliction of death or physical harm upon another. See§ 30-22-5. Kidnapping does

15 not require that evidence be hidden or altered to prevent a criminal investigation. See

16 § 30-4-l(A)(3), (4). Because neither statute subsumes the other, we proceed to

17 consider whether other indicia of legislative intent prohibit Defendant from being

18 punished separately under each statute. See Silvas, 2015-NMSC-006, ,r,r 12-13.

19 {29} The Legislature clearly intended the statutes here at issue to address distinct

20 social harms. Tampering with evidence is designed to punish individuals who

21

1 attempt to interfere with the administration of justice by hiding or changing evidence

2 that could be used in a criminal prosecution. See § 30-22-5. The pertinent sections

3 of the kidnapping statute, on the other hand, are intended to prevent individuals from

4 harming others or depriving others of their freedom with the intent to force them to

5 do something against their will. See § 30-4-l(A)(3), (4). Nor is there any basis to

6 conclude that these two crimes are typically committed together. Cf State v.

7 Almeida, 2008-NMCA-068, ,r 21, 144 N.M. 235, 185 P.3d 1085 (stating that "a

8 charge for possessing a personal supply of a controlled substance will almost always

9 carry the additional charge of possession of drug paraphernalia").

10 {30} We hold that Defendant's convictions for attempted tampering with evidence

11 and kidnapping do not violate the prohibition against double jeopardy because

12 neither statute is subsumed within the other, the statutes address distinct social

13 harms, and because there is no indication that the Legislature intended only

14 alternative punishment for conduct that violates both statutes. See Montoya, 2013

15 NMSC-020, ,r,r 31-33 (setting forth the inquiry for double description cases).

16 D. There Was No Cumulative Error

17 {31} Defendant argues that the violation of his right to a public trial and the

18 violation of his right to be free from double jeopardy, taken together, amount to

19 cumulative error requiring a new trial. Having concluded there was no error, we need

20 not consider this argument.

For the reasons set forth above, we affirm Defendant's convictions.