N.M. Stat. § 30-22-5 (2026)

A. Tampering with evidence consists of destroying, changing, hiding, placing or
fabricating any physical evidence with intent to prevent the apprehension, prosecution
or conviction of any person or to throw suspicion of the commission of a crime upon
another.

   B. Whoever commits tampering with evidence shall be punished as follows:

       (1)      if the highest crime for which tampering with evidence is committed is a
capital or first degree felony or a second degree felony, the person committing
tampering with evidence is guilty of a third degree felony;
       (2)    if the highest crime for which tampering with evidence is committed is a
third degree felony or a fourth degree felony, the person committing tampering with
evidence is guilty of a fourth degree felony;

        (3)     if the highest crime for which tampering with evidence is committed is a
misdemeanor or a petty misdemeanor, the person committing tampering with evidence
is guilty of a petty misdemeanor; and

       (4)   if the highest crime for which tampering with evidence is committed is
indeterminate, the person committing tampering with evidence is guilty of a fourth
degree felony.

History: 1953 Comp., § 40A-22-5, enacted by Laws 1963, ch. 303, § 22-5; 2003, ch.
296, § 1.

                                    ANNOTATIONS

The 2003 amendment, effective July 1, 2003, redesignated the text of the former
section as Subsection A and the preliminary language of Subsection B and added
Paragraphs B(1) to (4).

Standard for sufficiency of evidence to support a tampering conviction. — Absent
either direct evidence of a defendant’s specific intent to tamper or evidence from which
the factfinder may infer such intent, the evidence cannot support a tampering conviction.
State v. Guerra, 2012-NMSC-027, 284 P.3d 1076.

Where the state alleged that defendant tampered with evidence based on the fact that
defendant had a weapon at the scene of the crime, defendant used the weapon to kill
someone, the weapon was removed from the scene of the crime, and the weapon was
never recovered, the evidence was insufficient as a matter of law to support defendant’s
conviction of tampering with evidence because the state cannot convict a defendant of
tampering with evidence simply because evidence that must have once existed cannot
be found. State v. Guerra, 2012-NMSC-027, 284 P.3d 1076.

Sentencing under the "indeterminate crime" provision. — When the state seeks a
conviction under Section 30-22-5 NMSA 1978, tampering with evidence of a capital, first
or second degree felony, a determination that defendant tampered with evidence
related to a capital, first or second degree felony must be made by the jury. Absent this
determination, the court is limited to sentencing defendant under the "indeterminate
crime" provision. State v. Alvarado, 2012-NMCA-089, overruled by State v. Radosevich,
2018-NMSC-028.

Where defendant was charged with first degree murder and tampering with evidence;
and the jury acquitted defendant of murder and convicted defendant of tampering with
evidence, defendant was properly sentenced under the indeterminate crime provision of
Section 30-22-5 NMSA 1978. State v. Alvarado, 2012-NMCA-089, overruled by State v.
Radosevich, 2018-NMSC-028.

Factors that determine punishment are elements of tampering with evidence. —
The factors listed in Subsection B of Section 30-22-5 NMSA 1978 are elements of the
offense of tampering with evidence, rather than mere sentencing factors. State v.
Herrera, 2014-NMCA-007, cert. denied, 2013-NMCERT-012.

Where after defendant shot and killed the victim, defendant put the gun in a crawl space
under the house; defendant was charged with second-degree murder and tampering
with evidence of a capital crime or a first or second degree felony; and the jury
instruction on tampering with evidence required the jury to find that defendant hid the
gun in an effort to avoid being apprehended, prosecuted or convicted, but did not
require the jury to find that the evidence that was tampered with related to a first or
second degree felony, the jury instruction omitted an essential element of the crime that
the gun was evidence of a capital crime or a first or second degree felony and violated
defendant's right under the sixth and fourteenth amendments to have a jury find all
elements of the offense beyond a reasonable doubt. State v. Herrera, 2014-NMCA-007,
cert. denied, 2013-NMCERT-012.

Unconstitutional application of tampering with evidence statute. — Section 30-22-
5(B)(4) NMSA 1978 cannot be constitutionally applied to impose greater punishment for
commission of tampering where the underlying crime is indeterminate than the
punishment prescribed under 30-22-5(B)(3) NMSA 1978 where the underlying crime is
a misdemeanor or petty misdemeanor. State v. Radosevich, 2018-NMSC-028, rev'g
2016-NMCA-060, 376 P.3d 871, and overruling State v. Jackson, 2010-NMSC-032, 237
P.3d 754 and State v. Alvarado, 2012-NMCA-089.

Where defendant was convicted of fourth-degree tampering with evidence pursuant to
30-22-5(B)(4) NMSA 1978, although the tampering jury instruction did not identify an
underlying offense, defendant's conviction for fourth-degree felony tampering with
evidence was a denial due process of law, because to impose a greater penalty for
commission of tampering pursuant to Subsection (B)(4), where the evidence does not
establish the underlying offense, than for commission of tampering pursuant to 30-22-
5(B)(3) NMSA 1978, where the evidence establishes an underlying misdemeanor
offense, is both a denial of due process of law and a violation of the accused's right to
have a jury determine guilt beyond a reasonable doubt on every element that may
establish the range of permissible penalties. State v. Radosevich, 2018-NMSC-028,
rev'g 2016-NMCA-060, 376 P.3d 871, and overruling State v. Jackson, 2010-NMSC-
032, 237 P.3d 754 and State v. Alvarado, 2012-NMCA-089.

Elements of tampering with evidence. — The degree and identification of the
underlying crime to which the tampering offense relates, if any, are elements of
tampering that should be decided by the jury. As such, the underlying crime to which
tampering relates, if any, should be identified in the tampering instruction and found by
the jury. Tampering with evidence can also be a stand-alone crime that is not tied to a
separate offense. Where there is no separate identified crime, the tampering offense is
linked to an indeterminate crime. State v. Radosevich, 2016-NMCA-060, 376 P.3d 871,
rev’d, 2018-NMSC-028.

Where defendant was initially charged with assault with intent to commit murder and
tampering with evidence, and where the district court directed a verdict on the charged
offense of assault with intent to commit murder and then sua sponte instructed the jury
on a new and different charge of aggravated assault with a deadly weapon after the
close of evidence, the offense to which defendant’s tampering was related failed for
insufficient evidence, and defendant’s conviction for aggravated assault with a deadly
weapon was reversed, rendering the underlying offense for which defendant might have
tampered to be an unidentified, indeterminate crime. The district court, therefore,
wrongfully convicted defendant of having tampered with evidence of a third- or fourth-
degree felony in the absence of such a finding by the jury. State v. Radosevich, 2016-
NMCA-060, 376 P.3d 871, rev’d, 2018-NMSC-028.

Elements of tampering with evidence. — The crime of tampering with evidence is
complete when the accused commits an act of tampering with the requisite specific
intent to prevent the apprehension, prosecution, or conviction of any person, regardless
of whether the accused’s objective is a separate crime or whether a separate criminal
investigation ever exists or could exist. State v. Jackson, 2010-NMSC-032, 148 N.M.
452, 237 P.3d 754, rev'g 2009-NMCA-068, 146 N.M. 563, 212 P.3d 1117, overruled by
State v. Radosevich, 2018-NMSC-028.

Where defendant, who was required as a condition of probation to submit to random
urinalyses, reported to the probation office to provide a urine sample with a bottle of
clean urine hidden in defendant’s pants; the probation officer discovered the bottle of
urine when it fell from defendant’s pants; and defendant admitted to the probation officer
that defendant attempted to provide a false urine sample, defendant was guilty of
tampering with evidence. State v. Jackson, 2010-NMSC-032, 148 N.M. 452, 237 P.3d
754, rev'g 2009-NMCA-068, 146 N.M. 563, 212 P.3d 1117, overruled by State v.
Radosevich, 2018-NMSC-028.

This section applies only to conduct which interferes with the investigation or
prosecution of a crime. State v. Jackson, 2009-NMCA-068, 146 N.M. 563, 212 P.3d
1117; rev'd, 2010-NMSC-032, 148 N.M. 452, 237 P.3d 754, overruled by State v.
Radosevich, 2018-NMSC-028.

Partial destruction of evidence. — Where the defendant swiped a portion of white
powder on a laminated card that was found in the defendant’s wallet with his thumb and
ate the powder, the defendant was guilty of tampering with evidence and an instruction
on the lesser included offense of attempted tampering with evidence was not warranted,
even though the defendant had not destroyed all of the white powder on the card. State
v. McClennen, 2008-NMCA-130, 144 N.M. 878, 192 P.3d 1255.
The fact that the defendant once held a weapon at a murder scene that was not
recovered is no basis from which to infer that the defendant acted to destroy or hide
physical evidence of a crime. State v. Silva, 2007-NMCA-117, 142 N.M. 686, 168 P.3d
1110, aff'd in part, rev'd in part, 2008-NMSC-051, 144 N.M. 815, 192 P.3d 1192.

Double jeopardy. — Convictions for both possession of a controlled substance
(cocaine) and tampering with evidence (cocaine) did not violate defendant's double
jeopardy rights. State v. Franco, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104.

Separate convictions of tampering with evidence did not violate double jeopardy.
— Where defendant shot the victim in the chest in defendant’s vehicle, drove the
unconscious victim in the vehicle to an isolated area, shot the victim twice in the head
while the victim was still alive, poured gasoline on the victim, and lit the victim on fire;
defendant gave the vehicle to a friend; and when the friend returned the vehicle,
defendant set fire to the vehicle, defendant’s three convictions of tampering with
evidence were not based on unitary conduct and did not violate defendant’s right to be
free from double jeopardy. State v. Urioste, 2011-NMCA-121, 267 P.3d 820, cert.
granted, 2011-NMCERT-012.

Possession and tampering distinguished. — Possession of a controlled substance
can be committed without tampering with evidence. Conversely, tampering with
evidence, even if the evidence is illegal drugs, can be committed without possessing the
drugs. State v. Franco, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104.

Possession of a controlled substance requires proof defendant knew or believed it was
cocaine or some other substance that is regulated, which is not required to prove
tampering, while tampering with evidence requires proof defendant intended to prevent
the apprehension, prosecution, or conviction of herself or others, which is not required
to prove possession. State v. Franco, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104.

Removing documents from their proper files amounts to "hiding" evidence prohibited
by this section. State v. Casteneda, 1982-NMCA-046, 97 N.M. 670, 642 P.2d 1129.

Hiding evidence. — There was ample evidence of intent to tamper with evidence
where directories crucial to the proof of the prosecution's case were removed from the
defendant's offices to the office of someone not affiliated with defendant's association.
In short, evidence relevant to a criminal prosecution for securities fraud was hidden for
the purpose of avoiding the prosecution. State v. Shade, 1986-NMCA-072, 104 N.M.
710, 726 P.2d 864, cert. quashed, 104 N.M. 702, 726 P.2d 856, overruled on other
grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part,
1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

Accomplice liability. — One may be found guilty of tampering on a theory of
accomplice liability in aiding the destruction of evidence. State v. Casteneda, 1982-
NMCA-046, 97 N.M. 670, 642 P.2d 1129.
Intent requirements can be met regardless of whether a crime has in fact been
committed and regardless of any belief or knowledge by the police concerning crimes or
suspected crimes, or cause by the police to apprehend an individual. State v. Arellano,
1977-NMCA-126, 91 N.M. 195, 572 P.2d 223.

Defendant was not entitled to his requested mistake of fact instruction
concerning his tampering with evidence charge. — Where defendant was charged
with two counts of criminal sexual penetration (CSP) and one count of tampering with
evidence, based on evidence that defendant cleaned the truck where the alleged CSP
occurred, and where defendant requested a mistake of fact instruction, arguing that if he
did not believe he was committing a crime when he sexually penetrated the victim, he
could not have formed the specific intent required to commit tampering with evidence,
the district court did not err in denying defendant's requested mistake of fact instruction,
because the proper focus should be on the accused's subjective, specific intent to blind
or mislead law enforcement regardless of whether a crime has in fact been committed.
A tampering instruction does not require the defendant to have believed he was guilty of
a crime at the time he cleaned the truck; it only requires a finding that the defendant
could have formed the essential intent to mislead law enforcement and thereby thwart
being apprehended or prosecuted for a crime, even though he may have believed that
he did not commit that crime. In this case, the jury could have inferred that defendant
specifically intended to disrupt a police investigation when he cleaned the back seat of
the truck out of concern that there would be an investigation and that he could be
questioned, arrested, and charged regardless of whether he believed he committed
CSP. State v. Apodaca, 2025-NMSC-015, rev'g 2021-NMCA-001, 482 P.3d 1224.

Series of acts. — The state presented sufficient evidence to support defendant's three
separate convictions of tampering with evidence, given that defendant sent a note to
three co-defendants in an attempt to cover up the crimes. State v. Reyes, 2002-NMSC-
024, 132 N.M. 576, 52 P.3d 948.

Where defendant disposed of evidence at three distinct times in different locations,
defendant's acts supported three convictions for tampering with evidence. State v.
DeGraff, 2006-NMSC-011, 139 N.M. 211, 131 P.3d 61.

Sufficient evidence of tampering with evidence. — At defendant's trial for murder,
kidnapping and tampering with evidence, where the state provided evidence
establishing that defendant beat the victim with a baseball bat, mopped up the victim's
blood and hid the bat behind a washing machine, there was sufficient evidence to
prove, beyond a reasonable doubt, that defendant intended to hide evidence from the
police in order to avoid apprehension or prosecution. State v. Telles, 2019-NMCA-039,
cert. denied.

There was sufficient evidence to convict defendant of tampering with evidence where
the evidence established that defendant, while under the influence of methamphetamine
and heroin, drove across a parking lot at a high rate of speed, struck two individuals in
her path causing severe injuries, and fled the scene, and where defendant's interview
with the police contained numerous admissions that she was driving the white vehicle in
question, that she knew she struck at least one person with it, that she then left the
parking lot without stopping to render assistance, and that she abandoned the vehicle at
the end of a residential street about a half-mile away. The jury could have reasonably
found defendant's movement to, and abandonment of her vehicle in, a residential area
near the parking lot an overt act indicating her intent to evade prosecution. State v.
Holtsoi, 2024-NMCA-042, cert. denied.

Sufficient evidence of attempted tampering with evidence. — At defendant's trial for
murder, kidnapping and tampering with evidence, where the state provided evidence
establishing that defendant beat the victim with a baseball bat, moved the victim's body
to a back room and then rolled the body in a carpet, there was sufficient evidence to
prove, beyond a reasonable doubt, that defendant hid the body in an unsuccessful
attempt to prevent the police from discovering the victim. State v. Telles, 2019-NMCA-
039, cert. denied.

Sufficient evidence. — Where defendant lived with the victim for approximately one
and a half months before the victim disappeared; a few weeks later, the victim’s
decomposed body was discovered wrapped in a blue air mattress and sheets, and
covered with a mattress in an alley approximately 500 feet from defendant’s apartment;
defendant’s parent testified that the parent sent a blue air mattress and a set of sheets
to defendant; grid marks on the air mattress resembled the grid marks of a shopping
cart; there was a shopping cart at the scene; shopping carts were found in defendant’s
apartment; DNA found on a pair of jeans near the body provided a possible link
between the body and defendant; and the victims’ blood was found on the carpet in
defendant’s apartment, the evidence was sufficient to permit the jury to find defendant
guilty of tampering with evidence. State v. Schwartz, 2014-NMCA-066, cert. denied,
2014-NMCERT-006.

Where defendant drove a pickup toward a group of children who were trick-or-treating
on Halloween; the chaperone pushed the children out of the way but was struck and
killed; and after the accident, defendant removed decals on the truck and cleaned the
front of the truck, the evidence was sufficient to support defendant’s conviction of
tampering with evidence. State v. Melendrez, 2014-NMCA-062, cert. denied, 2014-
NMCERT-006.

Where defendant testified that after defendant shot and killed the victim and then put
the gun in a crawl space under the house; an officer testified that the gun was found in a
crawl space under the house that was concealed behind a dog house where the dog
was chained; and after defendant was arrested, defendant telephoned a person and
asked the person to go under the house where the dog was because there was a water
leak, the evidence was sufficient to support defendant’s conviction for tampering with
evidence of a capital crime or a first or second degree felony. State v. Herrera, 2014-
NMCA-007, cert. denied, 2013-NMCERT-012.
Where defendant directed an accomplice to remove stolen property from defendant’s
car; defendant saw the accomplice take the property from the car to another location;
and defendant drove the car to defendant’s parents’ home for the purpose of disposing
of the property, the evidence was sufficient to support defendant’s conviction for
tampering with evidence under a theory of accomplice liability. State v. Johnson, 2004-
NMSC-029, 136 N.M. 348, 98 P.3d 998, cert. denied, 543 U.S. 1177, 125 S. Ct. 1334,
161 L. Ed. 2d 162 (2005).

Where, in a vehicular homicide case, the victim was carrying a twelve pack of a
common brand of beer; defendant’s vehicle hit the victim; defendant’s friend discovered
part of a twelve pack of the same brand of beer lodged in the damaged grille of
defendant’s car; and the police found beer cans near the victim’s body, a partial twelve
pack of the same brand of beer and damaged vehicle parts in a bag in defendant’s
home, and the friend’s fingerprints on one of the cans of beer and on the grille of
defendant’s car, the evidence was sufficient to support defendant’s conviction for
tampering with evidence. State v. Guzman, 2004-NMCA-097, 136 N.M. 253, 96 P.3d
1173, cert. denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197.

Where, as defendant was approaching defendant’s truck, police officers were
converging on defendant to arrest defendant on a warrant; when defendant saw the
police, defendant dropped bags of drugs behind the seat of the truck; and the officers
discovered the drugs behind the seat of the truck, the evidence was sufficient to support
defendant’s conviction for tampering with evidence. State v. Graham, 2003-NMCA-127,
134 N.M. 613, 81 P.3d 556, rev’d on other grounds, 2005-NMSC-004, 137 N.M. 197,
109 P.3d 285.

Where the non-conflicting testimony of witnesses established that while defendant was
attending a party, defendant went to the victim's apartment to purchase marijuana and
shot and killed the victim; defendant returned to the party with the gun in defendant's
hand; defendant was showing off the gun at the party and stated that defendant had
taken the gun from the victim and "blasted" the victim; defendant twice asked a person
at the party to hide the gun; defendant tried unsuccessfully to sell the gun to two
persons at the party; and the police were unable to find the gun, there was sufficient
evidence to support defendant's conviction of tampering with evidence. State v. Garcia,
2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057.

Where the defendant fled the scene of a shooting with the weapons used in the crime;
attempted to flee New Mexico; falsely identified himself to police officers; and concealed
the weapons in his car, the evidence was sufficient to support the defendant’s
conviction of tampering with evidence. State v. Rudolfo, 2008-NMSC-036, 144 N.M.
305, 187 P.3d 170.

Where defendant’s primary co-conspirator beat, drugged, and tied the victim to a bed in
defendant’s residence; defendant did not object to the treatment of the victim; while the
primary co-conspirator was absent from the residence for a lengthy period of time,
defendant watched the victim and did not assist the victim or call the police; defendant
did not object when the primary co-conspirator expressed an intention to kill the victim
and burn the victim’s car; defendant purchased charcoal lighter fluid at the direction of
the primary co-conspirator; defendant did not object when defendant’s co-conspirators
put the victim in the trunk of the victim’s car; while defendant remained at the residence,
defendant’s co-conspirators used the lighter fluid to burn the car and kill the victim; and
the following day, defendant washed the victim’s blood splatter from the living room
blinds, there was sufficient evidence to convict defendant of tampering with evidence.
State v. Bahney, 2012-NMCA-039, 274 P.3d 134, cert. denied, 2012-NMCERT-003.

Sufficient evidence of tampering with evidence. — Where defendant was charged
with first-degree murder in the shooting death of two victims, tampering with evidence
and breaking and entering, there was sufficient evidence to support his conviction for
tampering with evidence where the state presented testimony from a witness who saw
defendant in the possession of a firearm just hours after the time when the murders
were believed to have occurred, but did not have a gun when police stopped him soon
thereafter. The jury could logically infer that defendant had a gun, which he disposed of
between the time of the murders and when he was arrested, and then lied about it to
police, and that defendant hid the gun to prevent apprehension, prosecution, or
conviction of that crime. State v. Carrillo, 2017-NMSC-023.

Sufficient evidence to support tampering with evidence conviction. — Where
defendant was charged with first-degree murder and tampering with evidence, and
where several witnesses observed defendant shoot the victim while he was sitting in his
vehicle, and where the police found the gun that fired the bullets that killed the victim
and discharged the bullet casings found at the crime scene, the jury was free to infer
that defendant discarded the gun after killing the victim and fleeing the scene. There
was sufficient evidence presented to prove beyond a reasonable doubt that defendant
disposed of the gun to prevent apprehension, prosecution, or conviction. State v.
Ramirez, 2018-NMSC-003.

Sufficient evidence to support a tampering conviction. — Where defendant’s
accomplices testified that the knife used to kill the victim belonged to defendant, and
that after defendant learned that the victim had been killed, defendant let her
accomplices into her house and allowed them to shower and change out of their bloody
clothes, and that one of the accomplices cleaned the blood off of defendant’s knife in
defendant’s restroom and in defendant’s presence, and where there was evidence that
the accomplice used bleach from defendant’s home to clean the knife, the evidence was
sufficient for a rational jury to conclude beyond a reasonable doubt that defendant
intended the destruction of evidence, including the removal of the victim’s blood from
her knife, in order to avoid being prosecuted for murder, and that defendant helped the
accomplice clean the knife by providing the accomplice with space and chemicals to do
so. State v. Montoya, 2016-NMCA-098, cert. denied.

Substantial evidence of tampering with evidence. — Where the defendant was bent
down behind a fence; when police officers approached, the defendant stood up and
walked toward a shed; the defendant did not stop when the officers called out to the
defendant; the defendant’s body movements appeared as if the defendant had disposed
of something; the defendant then walked back to the officers; the officers found a bag of
cocaine in front of the shed; and when the cocaine was found, the defendant placed the
defendant’s hands behind the defendant’s back and turned around without any request
by the officers, there was sufficient evidence to support a tampering with evidence
conviction. State v. Delgado, 2009-NMCA-061, 146 N.M. 402, 210 P.3d 828, cert.
denied, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611.

Evidence sufficient. — Where defendant shot multiple times into a house with two
different weapons, killing one victim and wounding one victim; and defendant testified
that immediately after the shooting, defendant took the guns and put them behind
defendant’s refrigerator, there was sufficient evidence to support defendant’s conviction
of tampering with evidence. State v. Torrez, 2013-NMSC-034.

Evidence sufficient to convict. — Testimony by a witness whom the factfinder has
believed may be rejected by an appellate court only if there is a physical impossibility
that the statements are true or the falsity of the statement is apparent without resort to
inferences or deductions. Where testimony is not inherently improbable under this
standard, it must be given weight, and have attached to it the credibility, apparently
assigned it by the jury. State v. Sanders, 1994-NMSC-043, 117 N.M. 452, 872 P.2d
870.

Evidence that defendant stated that he had killed someone and thrown the body in the
trash along with evidence that the victim's nude body was found without identification,
covered with plastic bags and duct tape, inside a dumpster was sufficient for conviction.
State v. Rojo, 1999-NMSC-001, 126 N.M. 438, 971 P.2d 829.

Where defendant admitted that he assisted accomplice in throwing victim into a well and
that he threw the stolen firearms into the woods, the jury could infer that he committed
these acts to avoid apprehension, and this is sufficient evidence for the conviction of
tampering with evidence. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d
754, overruled on other grounds by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172
P.3d 144.

Sufficient evidence of intent. — Where defendant, charged with second-degree
murder and tampering with evidence, testified that after he stabbed the victim, he threw
the knife out the car window as he drove away from the crime scene, defendant’s
specific intent to prevent his apprehension or prosecution can be inferred from his overt
act of disposing of the murder weapon; the evidence was sufficient to support
defendant’s conviction for tampering with evidence. State v. Sanchez, 2015-NMCA-077,
cert. denied, 2015-NMCERT-006.

No fundamental error where state failed to prove an essential element of
tampering with evidence when the evidence at trial clearly established the
missing element. — Where defendant was charged with third-degree tampering with
evidence of a second-degree felony, but where the jury instruction did not require the
jury to find that defendant’s act of tampering related to a second-degree felony, the
failure to instruct the jury on one of the elements of the offense of third-degree
tampering was error, offending defendant’s sixth amendment right to a jury
determination of guilt beyond a reasonable doubt as to every element of the crime
charged; the error, however, did not amount to fundamental error as it was clear from
the record that the evidence presented at trial established the missing element. State v.
Sanchez, 2015-NMCA-077, cert. denied, 2015-NMCERT-006.

Sufficient evidence of tampering with evidence. — Where defendant was convicted
of second-degree murder and tampering with evidence, there was sufficient evidence to
support defendant's conviction for tampering with evidence where the State sought to
prove that defendant hid a vehicle connected to the shooting and that he intended to
prevent the apprehension, prosecution or conviction of himself, and where the evidence
at trial established that defendant drove the vehicle away from the shooting, left it
parked in an alley and contacted an unidentified person who helped defendant obtain
and pour gasoline on the vehicle and then start it on fire. Based on this evidence, the
jury rationally could have inferred that defendant parked the car in the alley and
returned to set it aflame and that his intent in doing so was to prevent his apprehension,
prosecution, or conviction for the killing of the victim. State v. Chavez, 2022-NMCA-007,
cert. granted.

Tampering with evidence conviction reversed where crime for which tampering
with evidence was based was reversed. — Where defendant was convicted of
second-degree murder and tampering with evidence in the third degree based on a
finding that the highest degree for which tampering with evidence was committed was a
second degree felony, and where the district court erred in denying defendant's
proposed voluntary manslaughter instruction, thus requiring the reversal of defendant's
second-degree murder conviction, defendant's tampering with evidence conviction also
required reversal, because if the district court had correctly instructed the jury on
voluntary manslaughter, the jury could have returned a guilty verdict on that charge,
which is a third degree felony, and the jury's verdict would have amounted to a
determination that defendant tampered with evidence of a third degree felony, and any
conviction for tampering would have been a fourth degree felony. State v. Chavez,
2022-NMCA-007, cert. granted.

Evidence insufficient to convict. — Where the state alleged that the defendant had a
gun at the scene of the crime, a gun was used to murder the victim, the murder weapon
was removed from the scene of the murder, and the murder weapon was never
recovered, the state failed to meet its burden of proof because the state failed to offer
direct evidence of the defendant’s specific intent to tamper with evidence or evidence of
an overt act from which the jury may infer such intent. State v. Silva, 2008-NMSC-051,
144 N.M. 815, 192 P.3d 1192.

Where defendant was convicted of tampering with a gun that defendant had used to
shoot into an occupied house; the state provided evidence that defendant took the gun
when defendant left the crime scene; the State offered no evidence that defendant
actively hid or disposed of the gun; the police recovered the gun from another person
during a traffic stop a few weeks after the shooting; the state did not offer any evidence
regarding how the other person acquired possession of the gun; and the only evidence
that defendant tampered with the gun was that the police could not find the gun when
they searched defendant’s house, the evidence was insufficient to support defendant’s
conviction. State v. Arrendondo, 2012-NMSC-013, 278 P.3d 517.

Since defendant merely dropped some items from his hand to the ground upon the
officers' announcement of police presence, there was insufficient evidence to support a
finding of either element of intent or action under this section. State v. Roybal, 1992-
NMCA-114, 115 N.M. 27, 846 P.2d 333, cert. denied, 114 N.M. 550, 844 P.2d 130.

Where there is no evidence suggesting that defendant encouraged his accomplice to
dispose of the gun or was present when the accomplice threw it away, there was
insufficient evidence to support defendant's convictions for tampering with evidence and
conspiracy to tamper with evidence. State v. Armijo, 2005-NMCA-010, 136 N.M. 723,
104 P.3d 1114.

Insufficient evidence to support tampering with evidence conviction. — Where
defendant was charged with trafficking a controlled substance, tampering with evidence,
resisting, evading, or obstructing an officer, and possession of drug paraphernalia, and
where defendant claimed there was insufficient evidence to support his conviction for
tampering with evidence based on the state's evidence that defendant threw baggies of
crack cocaine into a vehicle in plain view of multiple officers following a traffic stop,
defendant's conviction for tampering with evidence was not supported by sufficient
evidence because the evidence was never concealed from officers, and New Mexico
courts have drawn a distinction between acts occurring in the presence of an officer and
those that attempted to conceal evidence outside the view of an officer. State v.
Jackson, 2021-NMCA-059, cert. denied.

Insufficient evidence. — Where the defendant, who was on probation, was required to
submit to random urinalysis; the defendant provided a false urine sample; and there
was no evidence that a violation of the criminal laws was being investigated or
prosecuted by the probation officer, there was no evidence to support the defendant’s
conviction for tampering with evidence. State v. Jackson, 2009-NMCA-068, 146 N.M.
563, 212 P.3d 1117, rev'd, 2010-NMSC-032, 148 N.M. 452, 237 P.3d 754, overruled by
State v. Radosevich, 2018-NMSC-028.

Where, in a case in which the victim died from multiple stab wounds, the only evidence
presented by the state was that a knife or sharp object existed, that defendant's clothing
might have been blood stained and that ten days passed between the murder and
defendant's arrest, but there was no evidence of an overt act to destroy or hide any
knife or blood stained clothing, the evidence was insufficient to support a finding beyond
a reasonable doubt of intent by defendant to disrupt the police investigation or that
defendant actively destroyed or hid evidence. State v. Duran, 2006-NMSC-035, 140
N.M. 94, 140 P.3d 515.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Intentional spoliation of evidence,
interfering with prospective civil action, as actionable, 70 A.L.R.4th 984.

Criminal liability of attorney for tampering with evidence, 49 A.L.R. 5th 619.

Negligent spoliation of evidence, interfering with prospective civil action, as actionable,
101 A.L.R.5th 61.