New Mexico v. Radosevich

Just after midnight on September 8, 2012, Defendant John Radosevich’s neighbor called 911 to report that Defendant was yelling obscenities and throwing objects into his yard. After calling the police, the neighbor walked outside his house to investigate. Defendant met the neighbor in the alleyway between their homes and, following a verbal exchange, Defendant threatened to stab the neighbor with “a little steak knife.” Moments later an officer arrived at the scene, and Defendant threw the knife away and returned to his house. An officer subsequently recovered the knife. The State charged Defendant with assault with intent to commit murder (a third-degree felony) and tampering with evidence (a fourth-degree felony). The district court directed a verdict in Defendant’s favor on the assault with intent to murder charge and then, over Defendant’s objection, instructed the jury on an uncharged crime, assault with a deadly weapon. Defendant was convicted of both assault with a deadly weapon (a fourth-degree felony), and tampering with evidence. Defendant appealed to the Court of Appeals, and the appellate court reversed the assault charge. The Court of Appeals also addressed Defendant’s argument that because his tampering conviction was “tied to his conviction for aggravated assault with a deadly weapon, he should be retried for tampering or permitted to challenge the degree of his conviction,” based on his contention that the offense for which tampering could have been committed was a misdemeanor, making the tampering offense a petty misdemeanor. Rather than remanding for a new trial, the Court of Appeals held that because the tampering jury instruction did not tie to an identified crime, defendant's conviction was relative to an indeterminate crime and should be amended, not retried. The case was then remanded for the district court to simple amend Defendant's judgement and sentence to impose felony tampering under the applicable statute's indeterminate crime provision. The New Mexico Supreme Court reversed. The offense of tampering where the level of the underlying crime cannot be determined beyond a reasonable doubt is punishable at the lowest penalty classification for tampering; the highest crime for which tampering with evidence of a probation violation is committed is the highest crime for which the defendant is on probation, rather than an indeterminate crime. View "New Mexico v. Radosevich" on Justia Law