{ΒΆ3} When considering sufficiency of the evidence, reviewing courts consider all evidence, even improperly admitted evidence. See State v. O'Kelley, 1994-NMCA-033, ΒΆ 16, 118 N.M. 52, 878 P.2d 1001 ("The correct rule is that when determining whether retrial is barred because there was insufficient evidence of guilt at the trial from which the appeal is taken, the appellate court considers all of the evidence admitted, even that evidence which it holds was admitted improperly.").
In making this determination, we consider all evidence, even improperly-admitted evidence. See State v. O'Kelley, 1994-NMCA-033, ΒΆ 16, 118 N.M. 52, 878 P.2d 1001.
However, Child's argument is flawed because when considering sufficiency of the evidence, reviewing courts consider all evidence, even improperly admitted evidence. See State v. O'Kelley, 1994-NMCA-033, ΒΆ 16, 118 N.M. 52, 878 P.2d 1001 ("The correct rule is that when determining whether retrial is barred because there was insufficient evidence of guilt at the trial from which the appeal is taken, the appellate court considers all of the evidence admitted, even that evidence which it holds was admitted improperly.").
In making this determination, we consider all evidence, even improperly-admitted evidence. See State v. O'Kelley, 1994-NMCA-033, ΒΆ 16, 118 N.M. 52, 878 P.2d 1001.
To the extent that Defendant's argument may suggest a sufficiency challenge based on foundational concerns, [MIO 4-5] we perceive no merit. See generally Rule 11-104(A) NMRA (providing that hearsay may be considered for purposes of authentication); cf. State v. O'Kelley, 1994-NMCA-033, ΒΆ 16, 118 N.M. 52, 878 P.2d 1001 (explaining that when considering a challenge to the sufficiency of the evidence to support a verdict, the appellate court considers all the evidence admitted, including evidence that may have been admitted improperly). {5} Accordingly, for the reasons stated in our notice of proposed summary disposition and above, we affirm.
We also note that ordinarily even a judgment entered after a full trial is not admissible as evidence of what was decided at trial. See State v. O'Kelley, 118 N.M. 52, 55, 878 P.2d 1001, 1004 (Ct.App. 1994);State v. Hoeffel, 112 N.M. 358, 359-61, 815 P.2d 654, 655-57 (Ct. App. 1991); Rule 11-803(V),(W) NMRA 1998 (hearsay exceptions for certain judgments used for specific purposes). Thus, we conclude that neither the offer of judgment nor the final judgment entered against The Gap would be admissible in other litigation as evidence of The Gap's liability.
Because we remand for a new trial, we do not reach James' issue of ineffective assistance of counsel since it is not likely to arise on retrial. We do, however, address his issue as to the sufficiency of the evidence, because, if the evidence was insufficient to sustain the conviction, we would be compelled to dismiss with prejudice. As we reiterated recently in State v. O'Kelley, 118 N.M. 52, 57, 878 P.2d 1001, 1006 (Ct.App. 1994), "[t]he correct rule is that when determining whether retrial is barred because there was insufficient evidence of guilt at the trial from which the appeal is taken, the appellate court considers all the evidence admitted, even that evidence which it holds was admitted improperly." See also State v. Post, 109 N.M. 177, 181, 783 P.2d 487, 491 (Ct.App. 1989).