## Facts

- Sheriff M.R. Carmichael of McKinley County, New Mexico, was escorting prisoner Esiquel Navarro from a courthouse to the county jail in Gallup after a contentious eviction-related incident had stirred community unrest.   
- A crowd, including defendants Juan Ochoa, Manuel Avitia, and Leandro Velarde, gathered outside the courthouse believing Navarro should be released and had earlier organized a committee to demand his release from the sheriff.   
- As Carmichael and a deputy, Hoy Boggess, led Navarro through the crowd, a struggle erupted; members of the crowd tried to pull Navarro away, and Avitia drew a gun from his pocket.   
- Deputy Boggess threw a tear-gas bomb into the crowd and was immediately struck on the head and rendered unconscious; his service revolver fell to the ground, and crowd members rushed toward it.   
- Avitia and Ochoa were near Boggess when he was struck and continued to beat and kick him after he fell; multiple shots (approximately 12–15) were then fired from within the crowd.   
- When the shooting stopped, Carmichael was dead; later examination showed the fatal bullets were fired from Boggess’s gun, which Boggess himself had never fired and which was never recovered.   
- Avitia was seen fleeing with a gun in his hand after the shooting; the actual person who pulled the trigger and fired the fatal shots was never identified.   
- Ochoa, Avitia, and Velarde were all charged and convicted of second-degree murder in the district court; they appealed their convictions to the New Mexico Supreme Court.   

## Issues

1. Whether a participant in a group altercation who becomes aware that deadly force (gunfire) is being used and continues to assist the assault can be held liable as an accessory to murder even though the actual shooter is unidentified.   
2. Whether the evidence established a sufficient “common purpose” or concert of action between each defendant and the group that used deadly force to support second-degree-murder convictions for all three defendants.   

## Decision

- The court held that a person involved in a group affray who knows that deadly force is being used and nonetheless continues to aid the affray may be held liable as an accessory to that use of deadly force and, thus, to the resulting homicide.   
- The court concluded that the evidence showed Ochoa and Avitia remained in the fray after shots were being fired and continued beating a deputy, thereby aiding and abetting the group’s deadly assault; their second-degree-murder convictions were affirmed.   
- As to Velarde, the court found insufficient evidence of his participation in, or shared purpose with, the group using deadly force; his conviction was reversed.   

## Legal Principles

- A person who participates in a group assault and, upon learning that deadly force is being employed by the group, continues to assist the assault can be treated as an accessory to the homicide, even if the principal shooter is not identified, so long as a common unlawful purpose is proven.   
- Liability as an accessory may attach where the state proves a shared design or common purpose between the defendant and others using deadly force, and where the defendant’s conduct constitutes aiding and abetting that use of deadly force.   
- In New Mexico, the traditional common-law distinctions between principals and accessories in felony cases have been largely abolished; accessories may be charged, tried, and punished as principals.   

## Conclusion

State v. Ochoa clarifies that participants in a group confrontation can incur murder liability as accessories when they knowingly continue to assist an assault after deadly force has entered the encounter, even if the state cannot prove which individual fired the fatal shot. Ochoa and Avitia’s convictions were affirmed based on proof of their continued violent participation with knowledge of gunfire, while Velarde’s conviction was reversed for lack of evidence linking him to the group’s deadly common purpose.


State v. Ochoa, 41 N.M. 589, 72 P.2d 609 (N.M. 1937)