Opinion
No. A-1-CA-33798
12-26-2018
STATE OF NEW MEXICO, Plaintiff-Appellee, v. CHIP FOX, Defendant-Appellant.
Hector H. Balderas, Attorney General Santa Fe, NM Victoria M. Wilson, Assistant Attorney General Albuquerque, NM for Appellee Bennett J. Baur, Chief Public Defender Nina Lalevic, Assistant Public Defender Santa Fe, NM for Appellant
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM
Victoria M. Wilson, Assistant Attorney General
Albuquerque, NM for Appellee Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Public Defender
Santa Fe, NM for Appellant
MEMORANDUM OPINION
VIGIL, Judge. {1} This case returns to us after the Supreme Court granted certiorari, quashed certiorari, and remanded the case to us for consideration in light of its disposition in State v. Radosevich, 2018-NMSC-028, 419 P.3d 176. {2} In Radosevich, our Supreme Court held, in pertinent part, that when the evidence is sufficient to support a jury conviction for tampering with evidence under NMSA 1978, Section 30-22-5 (2003), but makes no finding beyond a reasonable doubt of the level of the underlying crime, the district court must file a conviction and sentence for a petty misdemeanor pursuant to Subsection (B)(3) of Section 30-22-5. Radosevich, 2018-NMSC-028, ¶¶ 2, 30. {3} In this case, the jury instructions did not require the jury to make a finding beyond a reasonable doubt of the level of the underlying crime in finding Defendant guilty of solicitation to commit tampering with evidence, in violation of Section 30-22-5(B). State v. Fox, 2017-NMCA-029, ¶¶1, 16, cert. granted, 2017-NMCERT-___ (No. 33,798, Dec. 20, 2017). At first blush, it appears that under Radosevich, an amended judgment and sentence for a misdemeanor pursuant to Section 30-22-5(B)(3) must be entered. However, this does not account for the fact that, unlike the defendant in Radosevich, Defendant was convicted of solicitation to commit tampering with evidence. Fox, 2017-NMCA-029, ¶ 6. {4} Solicitation is a stand alone crime under NMSA 1978, Section 30-28-3 (1979). Under Section 30-28-3 (E):
(1) if the highest crime solicited is a capital or first degree felony, the person soliciting such felony is guilty of a second degree felony;Thus, there is no criminal solicitation if the highest crime solicited is a misdemeanor or a petty misdemeanor. Because Radosevich mandates that the tampering with evidence committed in this case is a petty misdemeanor, it follows that Defendant's conviction for solicitation to commit tampering with evidence must be vacated. {5} The case is remanded to the district court to vacate Defendant's conviction for solicitation to commit tampering with evidence. In all other respects, the judgment, sentence, and order determining habitual offender status is affirmed.
(2) if the highest crime solicited is a second degree felony, the person soliciting such a felony is guilty of a third degree felony; and
(3) if the highest crime solicited is a third degree felony or a fourth degree felony, the person soliciting such felony is guilty of a fourth degree felony.
{6} IT IS SO ORDERED.
/s/ _________
MICHAEL E. VIGIL, Judge
WE CONCUR:
/s/ _________
LINDA M. VANZI, Chief Judge /s/ _________
J. MILES HANISEE, Judge