AI Generated Opinion Summaries

This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.

Facts

• The Defendant was convicted of solicitation to commit tampering with evidence. The jury instructions did not require a finding beyond a reasonable doubt of the level of the underlying crime for this conviction (para 3).

Procedural History

• State v. Fox, 2017-NMCA-029, cert. granted, 2017-NMCERT____ (No. 33,798, Dec. 20, 2017): The Court of Appeals initially heard the case and issued a decision.
• The Supreme Court granted certiorari, quashed certiorari, and remanded the case to the Court of Appeals for consideration in light of its disposition in State v. Radosevich, 2018-NMSC-028, 419 P.3d 176 (para 1).

Parties' Submissions

• Appellee (State of New Mexico): Argued for the conviction of the Defendant based on the evidence presented.
• Appellant (Chip Fox): Argued against the conviction on the grounds that the jury instructions did not require a finding beyond a reasonable doubt of the level of the underlying crime in finding the Defendant guilty of solicitation to commit tampering with evidence (para 3).

Legal Issues

• Whether the Defendant's conviction for solicitation to commit tampering with evidence should be vacated in light of the Supreme Court's decision in State v. Radosevich, which mandates that tampering with evidence, in this case, is a petty misdemeanor, and there is no criminal solicitation if the highest crime solicited is a misdemeanor or a petty misdemeanor (paras 2-4).

Disposition

• The Defendant’s conviction for solicitation to commit tampering with evidence is vacated (para 5).

Reasons

• Per Michael E. Vigil, Judge (Linda M. Vanzi, Chief Judge, and J. Miles Hanisee, Judge, concurring):
  The Court of Appeals vacated the Defendant's conviction for solicitation to commit tampering with evidence, following the Supreme Court's decision in State v. Radosevich. The Supreme Court's ruling clarified that when the evidence supports a conviction for tampering with evidence but does not establish the level of the underlying crime beyond a reasonable doubt, a conviction for a petty misdemeanor must be filed. Since solicitation to commit a petty misdemeanor is not recognized as a crime under New Mexico law, the Defendant's conviction for solicitation to commit tampering with evidence, which is deemed a petty misdemeanor following Radosevich, must be vacated. The case was remanded to the district court with instructions to vacate the Defendant's conviction for solicitation to commit tampering with evidence, while affirming the judgment, sentence, and order determining habitual offender status in all other respects (paras 1-5).