fundamental error in New Mexico

2026Thus, Defendant argues we should review for reversible error rather than fundamental error, though he argues for reversal under either standard. {16} Under the standards for both reversible error and fundamental error, our initial determination is whether error occurred: “We must determine whether a reasonable juror would have been confused or misdirected by the jury instruction.” State v. Barber, 2004-NMSC-019, ¶ 19 , 135 N.M. 621 , 92 P.3d 633 (“Fundamental-error analysis then requires a higher level of scrutiny . . . to determine whether the [d]efendant’s conviction was the result of a plai

2026Thus, Defendant argues we should review for reversible error rather than fundamental error, though he argues for reversal under either standard. {16} Under the standards for both reversible error and fundamental error, our initial determination is whether error occurred: “We must determine whether a reasonable juror would have been confused or misdirected by the jury instruction.” State v. Barber, 2004-NMSC-019, ¶ 19 , 135 N.M. 621 , 92 P.3d 633 (“Fundamental-error analysis then requires a higher level of scrutiny . . . to determine whether the [d]efendant’s conviction was the result of a plai

2026“Fundamental error only applies in exceptional circumstances when guilt is so doubtful that [allowing the conviction to stand] would shock the judicial conscience.” Cunningham, 2000-NMSC-009, ¶ 13 (internal quotation marks and citation omitted).

2026“Fundamental error only applies in exceptional circumstances when guilt is so doubtful that [allowing the conviction to stand] would shock the judicial conscience.” Cunningham, 2000-NMSC-009, ¶ 13 (internal quotation marks and citation omitted).

2026“The doctrine of fundamental error is to 1 be resorted to in criminal cases only for the protection of those whose innocence 2 appears indisputably, or open to such question that it would shock the conscience to 3 permit the conviction to stand.” State v. Rodriguez, 1970-NMSC-073 , ¶ 10, 81 N.M. 4 503, 469 P.2d 148 . “[W]e begin with the presumption that the verdict was justified, 5 and then ask whether the error was fundamental.” State v. Sosa, 2009-NMSC-056 , ¶ 6 37, 147 N.M. 351 , 223 P.3d 348 .

2026To 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.

2016We 2 discuss these arguments in turn. 3 THE FUNDAMENTAL ERROR DOCTRINE 4 {9} The fundamental error doctrine stands as “[a]n exception to the general rule 5 barring review of questions not properly preserved below[.]” State v. Osborne, 1991- 6 NMSC-032, ¶ 38, 111 N.M. 654 , 808 P.2d 624 (internal quotation marks and citation 7 omitted).

2016We 2 discuss these arguments in turn. 3 THE FUNDAMENTAL ERROR DOCTRINE 4 {9} The fundamental error doctrine stands as “[a]n exception to the general rule 5 barring review of questions not properly preserved below[.]” State v. Osborne, 1991- 6 NMSC-032, ¶ 38, 111 N.M. 654 , 808 P.2d 624 (internal quotation marks and citation 7 omitted).

2025State v. Allen, 2000-NMSC-002, ¶ 95 , 128 N.M. 482 , 994 P.2d 728 ; Rule 12- 6 321(B)(2)(c), (d) NMRA (permitting appellate review of unpreserved issues that 7 involve fundamental error or affect the fundamental rights of a party). 8 {28} “Prosecutorial misconduct rises to the level of fundamental error when it is so 9 egregious and had such a persuasive and prejudicial effect on the jury’s verdict that 10 the defendant was deprived of a fair trial.” Allen, 2000-NMSC, ¶ 95 (internal 11 quotation marks and citation omitted).

2025State v. Allen, 2000-NMSC-002, ¶ 95 , 128 N.M. 482 , 994 P.2d 728 ; Rule 12- 6 321(B)(2)(c), (d) NMRA (permitting appellate review of unpreserved issues that 7 involve fundamental error or affect the fundamental rights of a party). 8 {28} “Prosecutorial misconduct rises to the level of fundamental error when it is so 9 egregious and had such a persuasive and prejudicial effect on the jury’s verdict that 10 the defendant was deprived of a fair trial.” Allen, 2000-NMSC, ¶ 95 (internal 11 quotation marks and citation omitted).

2018This record supports 17 1 the conclusion that Defendant and his counsel consciously chose to take Defendant’s 2 chances on acquittal of the methamphetamine possession charge and forego the 3 potential downside (as well as upside) of permitting the jury the opportunity of 4 convicting him on a drug paraphernalia charge that encompassed the baggies. “[T]he 5 defendant . . . may take his chances with the jury by waiving instructions on lesser 6 included offenses and cannot be heard to complain on appeal if he has gambled and 7 lost.” Boeglin, 1987-NMSC-002 , ¶ 15. 8 {24} In any event, even assumi

2018This record supports 17 1 the conclusion that Defendant and his counsel consciously chose to take Defendant’s 2 chances on acquittal of the methamphetamine possession charge and forego the 3 potential downside (as well as upside) of permitting the jury the opportunity of 4 convicting him on a drug paraphernalia charge that encompassed the baggies. “[T]he 5 defendant . . . may take his chances with the jury by waiving instructions on lesser 6 included offenses and cannot be heard to complain on appeal if he has gambled and 7 lost.” Boeglin, 1987-NMSC-002 , ¶ 15. 8 {24} In any event, even assumi

2026“The doctrine of fundamental error is to 1 be resorted to in criminal cases only for the protection of those whose innocence 2 appears indisputably, or open to such question that it would shock the conscience to 3 permit the conviction to stand.” State v. Rodriguez, 1970-NMSC-073 , ¶ 10, 81 N.M. 4 503, 469 P.2d 148 . “[W]e begin with the presumption that the verdict was justified, 5 and then ask whether the error was fundamental.” State v. Sosa, 2009-NMSC-056 , ¶ 6 37, 147 N.M. 351 , 223 P.3d 348 .

2026“The doctrine of fundamental error is to 1 be resorted to in criminal cases only for the protection of those whose innocence 2 appears indisputably, or open to such question that it would shock the conscience to 3 permit the conviction to stand.” State v. Rodriguez, 1970-NMSC-073 , ¶ 10, 81 N.M. 4 503, 469 P.2d 148 . “[W]e begin with the presumption that the verdict was justified, 5 and then ask whether the error was fundamental.” State v. Sosa, 2009-NMSC-056 , ¶ 6 37, 147 N.M. 351 , 223 P.3d 348 .

2026Even if an instruction is “straightforward and perfectly comprehensible on its face,” the instructions may cause confusion or misdirection when, “through omission or misstatement,” they “fail to provide the juror with an accurate rendition of the relevant law.” Id. (text only) (citation omitted). {8} Under a fundamental error analysis, we then review the challenged instructions in context of all the instructions to determine whether the omission or misstatement was corrected by another instruction.

2024If not, we review for fundamental error.’” (quoting State v. Benally, 2001-NMSC-033, ¶ 12 , 131 N.M. 258 , 34 P.3d 1134 )). {4} “Fundamental error only exists if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or if substantial justice has not been done.” Caldwell, 2008-NMCA- 049, ¶ 22 (internal quotation marks and citation omitted).

2024However, we cannot conclusively say in this instance that, based upon the evidence presented at trial and the jury’s general verdict, the jury’s finding “necessarily include[d] or amount[ed] to a finding on an element omitted from the jury’s instructions.” See State v. Orosco, 1992-NMSC-006 , ¶ 12, 113 N.M. 780 , 833 P.2d 1146 . {34} In the second circumstance, the failure to instruct on an essential element does not rise to the level of fundamental error when “the jury’s findings and the unchallenged evidence on which those findings rest[] show that the jury, if properly instructed, undoubted

2024However, we cannot conclusively say in this instance that, based upon the evidence presented at trial and the jury’s general verdict, the jury’s finding “necessarily include[d] or amount[ed] to a finding on an element omitted from the jury’s instructions.” See State v. Orosco, 1992-NMSC-006 , ¶ 12, 113 N.M. 780 , 833 P.2d 1146 . {34} In the second circumstance, the failure to instruct on an essential element does not rise to the level of fundamental error when “the jury’s findings and the unchallenged evidence on which those findings rest[] show that the jury, if properly instructed, undoubted

2018Where Defendant, 15 by her own actions invites error, we will not consider a fundamental error argument. 16 State v. Clark, 1989-NMSC-010 , ¶ 30, 108 N.M. 288 , 772 P.2d 322 (“The 17 fundamental error rule guards against the corruption of justice.

2018Where Defendant, 15 by her own actions invites error, we will not consider a fundamental error argument. 16 State v. Clark, 1989-NMSC-010 , ¶ 30, 108 N.M. 288 , 772 P.2d 322 (“The 17 fundamental error rule guards against the corruption of justice.

2026See State v. Aragon, 1999-NMCA-060, ¶ 10 , 127 N.M. 393 , 981 P.2d 1211 (providing that there is a presumption of correctness in the rulings or decisions of the trial court, and the party claiming error bears the burden of showing such error); see also State v. Neal, 2007- NMCA-086, ¶ 42, 142 N.M. 487 , 167 P.3d 935 (“[I]n order to establish a violation of due process, a defendant must show prejudice.”); State v. Silva, 2008-NMSC-051, ¶ 13 , 144 N.M. 815 , 192 P.3d 1192 (clarifying that we employ the fundamental error exception to the preservation rule “only under extraordinary circumstances t

2026See State v. Aragon, 1999-NMCA-060, ¶ 10 , 127 N.M. 393 , 981 P.2d 1211 (providing that there is a presumption of correctness in the rulings or decisions of the trial court, and the party claiming error bears the burden of showing such error); see also State v. Neal, 2007- NMCA-086, ¶ 42, 142 N.M. 487 , 167 P.3d 935 (“[I]n order to establish a violation of due process, a defendant must show prejudice.”); State v. Silva, 2008-NMSC-051, ¶ 13 , 144 N.M. 815 , 192 P.3d 1192 (clarifying that we employ the fundamental error exception to the preservation rule “only under extraordinary circumstances t

2025An isolated, minor impropriety ordinarily is not sufficient to warrant reversal, because a fair trial is not necessarily a perfect one.” State v. Trujillo, 2002-NMSC-005, ¶ 52 , 131 N.M. 709 , 42 P.3d 814 (internal quotation marks and citations omitted). {20} To find prosecutorial misconduct under a fundamental error standard, “we must be convinced 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.” See State v. Sosa, 2009-NMSC-056, ¶ 35 , 147 N.M. 351 , 223 P.3d

2025An isolated, minor impropriety ordinarily is not sufficient to warrant reversal, because a fair trial is not necessarily a perfect one.” State v. Trujillo, 2002-NMSC-005, ¶ 52 , 131 N.M. 709 , 42 P.3d 814 (internal quotation marks and citations omitted). {20} To find prosecutorial misconduct under a fundamental error standard, “we must be convinced 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.” See State v. Sosa, 2009-NMSC-056, ¶ 35 , 147 N.M. 351 , 223 P.3d

2023We employ the fundamental error exception “very guardedly,” State v. Garcia, 1914-NMSC-065 , ¶ 19, 19 N.M. 414 , 143 P. 1012 (opinion upon rehearing), and apply it “only under extraordinary circumstances to prevent the miscarriage of justice.” State v. Maestas, 2007-NMSC-001, ¶ 8 , 140 N.M. 836 , 149 P.3d 933 .

2023We employ the fundamental error exception “very guardedly,” State v. Garcia, 1914-NMSC-065 , ¶ 19, 19 N.M. 414 , 143 P. 1012 (opinion upon rehearing), and apply it “only under extraordinary circumstances to prevent the miscarriage of justice.” State v. Maestas, 2007-NMSC-001, ¶ 8 , 140 N.M. 836 , 149 P.3d 933 .

2023See Rule 12-321(B)(2)(c), (d) NMRA (providing appellate court discretion as an exception to the preservation rule to review questions involving fundamental error or fundamental rights); State v. Johnson, 2010-NMSC-016, ¶ 25 , 148 N.M. 50 , 229 P.3d 523 . {4} Fundamental error occurs “only if there has been a miscarriage of justice . . . if substantial justice has not been done.” State v. Sutphin, 2007-NMSC-045, ¶ 16 , 142 N.M. 191 , 164 P.3d 72 (internal quotation marks and citation omitted).

2023See id. (internal quotation marks and citation omitted); see Sutphin, 2007-NMSC-045, ¶ 16 (holding that reversal is mandatory where neither of the fundamental error exceptions apply). {22} Whether the proper remedy is dismissal of the charge or retrial upon remand, however, is dependent on the sufficiency of the State’s evidence.

2023Rule 12-321(B)(2)(c) NMRA; see State v. Rojo, 1999-NMSC-001, ¶ 55 , 126 N.M. 438 , 971 P.2d 829 (“Failure to make a timely objection to alleged improper argument bars review on appeal, unless the impropriety constitutes fundamental error . . . [which] arises when [there is] misconduct that compromises the defendant’s right to a fair trial.” (internal quotation marks and citation omitted)). 2 Fundamental error analysis involves two basic steps.

2023Rule 12-321(B)(2)(c) NMRA; see State v. Rojo, 1999-NMSC-001, ¶ 55 , 126 N.M. 438 , 971 P.2d 829 (“Failure to make a timely objection to alleged improper argument bars review on appeal, unless the impropriety constitutes fundamental error . . . [which] arises when [there is] misconduct that compromises the defendant’s right to a fair trial.” (internal quotation marks and citation omitted)). 2 Fundamental error analysis involves two basic steps.

2010First, we will reverse for 5 fundamental error when the defendant’s “guilt is so doubtful that it would shock the 6 judicial conscience to allow the conviction to stand.” State v. Baca, 1997-NMSC-045 , 7 ¶ 41, 124 N.M. 55 , 946 P.2d 1066 , overruled by, State v. Bellanger, 2009-NMSC-005 , 8 146 N.M. 357 , 210 P.2d 783 .

2010First, we will reverse for 5 fundamental error when the defendant’s “guilt is so doubtful that it would shock the 6 judicial conscience to allow the conviction to stand.” State v. Baca, 1997-NMSC-045 , 7 ¶ 41, 124 N.M. 55 , 946 P.2d 1066 , overruled by, State v. Bellanger, 2009-NMSC-005 , 8 146 N.M. 357 , 210 P.2d 783 .

2019See Barber, 2004-NMSC-019, ¶ 9 (stating that, in a fundamental error analysis for failure to give a jury instruction, the first question is whether the defendant would have been entitled to the instruction had the defendant requested it). implicated only when a missing definitional instruction implicates “a critical determination akin to a missing elements instruction[.]” Id. ¶ 26 (quoting State v. Mascareñas, 2000-NMSC-017 , ¶ 20, 129 N.M. 230 , 4 P.3d 1221 ).

2019See Barber, 2004-NMSC-019, ¶ 9 (stating that, in a fundamental error analysis for failure to give a jury instruction, the first question is whether the defendant would have been entitled to the instruction had the defendant requested it). implicated only when a missing definitional instruction implicates “a critical determination akin to a missing elements instruction[.]” Id. ¶ 26 (quoting State v. Mascareñas, 2000-NMSC-017 , ¶ 20, 129 N.M. 230 , 4 P.3d 1221 ).

2023For that reason, under a fundamental-error analysis, the Campos Court concluded, “Error occurred at [the defendant]’s trial because one of the alternative bases for his conviction was legally inadequate.” Id. ¶ 17. {21} The Campos Court reaffirmed that “‘a conviction under a general verdict must be reversed if one of the alternative bases of conviction is legally inadequate.’” Campos, 2007-NMSC-021, ¶ 19 (quoting State v. Olguin, 1995-NMSC-077 , ¶ 2, 120 N.M. 740 , 906 P.2d 731 (relying on Yates v. United States, 354 U.S. 298, 326-27 (1957), overruled on other grounds by Burks v. United States

2023The Campos Court noted that the defendant’s “conviction 19 of felony murder would be legally void if the jury used aggravated battery with a 9 1 deadly weapon as the predicate felony” because “it is not possible to commit second- 2 degree murder without also committing some form of aggravated battery.” Id. ¶ 12. 3 For that reason, under a fundamental-error analysis, the Campos Court concluded, 4 “Error occurred at [the defendant]’s trial because one of the alternative bases for his 5 conviction was legally inadequate.” Id. ¶ 17. 6 {21} The Campos Court reaffirmed that “‘a conviction under a ge

2024“In applying the fundamental error analysis to deficient jury instructions, we are required to reverse when . . . misinstruction leaves us with ‘no way of knowing whether the conviction was or was not based on the lack of the essential element.’” State v. Montoya, 2013-NMSC-020, ¶ 14 , 306 P.3d 426 (quoting State v. Swick, 2012- NMSC-018, ¶ 46, 279 P.3d 747 ). {4} In this case, the jury was instructed on the offense of child abuse as follows: For you to find [Defendant] guilty of child abuse . . . the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following eleme

2019“In applying the fundamental error analysis to deficient jury instructions, we are required to reverse when the misinstruction leaves us with no way of knowing whether the conviction was or was not based on the lack of the essential element.” State v. Montoya, 2013-NMSC-020, ¶ 14 , 306 P.3d 426 (internal quotation marks and citations omitted). {9} In this case, we must determine whether a missing definitional instruction is fundamental error.

2025“The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice.” State v. Castillo, 2011-NMCA-046, ¶ 29 , 149 N.M. 536 , 252 P.3d 760 (internal quotation marks and citation omitted).

2025“The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice.” State v. Castillo, 2011-NMCA-046, ¶ 29 , 149 N.M. 536 , 252 P.3d 760 (internal quotation marks and citation omitted).

2013In the first, during his testimony, Defendant described a facial hair style he 9 had as a “devil’s peak,” and the prosecutor interjected that such a name was 10 “appropriate.” The district court immediately admonished the prosecutor and told him 11 “no comments.” “Prosecutorial misconduct rises to the level of fundamental error 12 when it is ‘so egregious’ and ‘had such a persuasive and prejudicial effect on the 13 jury’s verdict that the defendant was deprived of a fair trial.’” Id. (quoting State v. 14 Duffy, 1998-NMSC-014, ¶¶ 46-47 , 126 N.M. 132 , 967 P.2d 807 ).

2013In the first, during his testimony, Defendant described a facial hair style he 9 had as a “devil’s peak,” and the prosecutor interjected that such a name was 10 “appropriate.” The district court immediately admonished the prosecutor and told him 11 “no comments.” “Prosecutorial misconduct rises to the level of fundamental error 12 when it is ‘so egregious’ and ‘had such a persuasive and prejudicial effect on the 13 jury’s verdict that the defendant was deprived of a fair trial.’” Id. (quoting State v. 14 Duffy, 1998-NMSC-014, ¶¶ 46-47 , 126 N.M. 132 , 967 P.2d 807 ).

1994“The fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature.” State v. Chavez, 77 N.M. 79, 82 , 419 P.2d 456, 457 (1966).

1994“The fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature.” State v. Chavez, 77 N.M. 79, 82 , 419 P.2d 456, 457 (1966).

2023Our Supreme Court has “declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses.” State v. Foster, 1999- NMSC-007, ¶ 54, 126 N.M. 646 , 974 P.2d 140 , abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17 , 148 N.M. 381 , 237 P.3d 683 .

2023Our Supreme Court has “declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses.” State v. Foster, 1999- NMSC-007, ¶ 54, 126 N.M. 646 , 974 P.2d 140 , abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17 , 148 N.M. 381 , 237 P.3d 683 .

2024We employ the fundamental error exception to the preservation rule “only under extraordinary circumstances to prevent the miscarriage of justice.” Silva, 2008-NMSC-051, ¶ 13 (internal quotation marks and citation omitted); see also State v. Alingog, 1994-NMSC-063 , ¶ 11, 117 N.M. 756 , 877 P.2d 562 (“The failure by the state to preserve error obviously does not itself constitute a miscarriage of justice; a miscarriage must exist notwithstanding failure to preserve error. . . . [I]t is only when the merits of applying those rules clearly are outweighed by other principles of substantial justice

2024We employ the fundamental error exception to the preservation rule “only under extraordinary circumstances to prevent the miscarriage of justice.” Silva, 2008-NMSC-051, ¶ 13 (internal quotation marks and citation omitted); see also State v. Alingog, 1994-NMSC-063 , ¶ 11, 117 N.M. 756 , 877 P.2d 562 (“The failure by the state to preserve error obviously does not itself constitute a miscarriage of justice; a miscarriage must exist notwithstanding failure to preserve error. . . . [I]t is only when the merits of applying those rules clearly are outweighed by other principles of substantial justice