## Facts

- On Halloween night 2003 near Taos, New Mexico, Orlando Torrez attended a house party with his girlfriend and friends.
- Two unidentified men confronted Torrez, threatened to kill him and his family, and later fired at Torrez’s vehicle as he drove away, striking it at least twice.
- Torrez returned home, armed himself, loaded multiple additional firearms into a car, and returned to the party, asserting he feared the assailants would come to his house.
- Near the party house, Torrez was attacked from behind; shots were fired from the direction of the house; Torrez fired toward the house.
- Danica Concha, an occupant of the house, was struck by a bullet and died; it was unclear whose bullet caused the fatal injury.
- Torrez was charged and convicted of felony murder, shooting at a dwelling or occupied building resulting in injury, and tampering with evidence; self-defense was a central trial issue.
- Over objection, the State introduced a detective as an expert on gang culture, who opined that Torrez’s tattoo suggested possible prior gang affiliation and that “disrespect” in gang culture calls for retaliation, despite no evidence the incident was gang-related or that Torrez was in a gang at the time.

## Issues

1. Whether the trial court erred under Rule 11-403 by admitting gang-culture expert testimony without an evidentiary foundation linking the charged conduct to gang activity.
2. If admission was error, whether the error was harmless given the contested self-defense and intent questions.

## Decision

- The Supreme Court of New Mexico held the trial court erred by admitting the gang-expert testimony.
- The Court concluded the testimony’s limited probative value was substantially outweighed by the risk of unfair prejudice.
- The Court held the error was not harmless because the testimony likely affected the jury’s assessment of Torrez’s motive and intent, directly bearing on self-defense.
- The Court vacated Torrez’s convictions and remanded for a new trial.

## Legal Principles

- Gang evidence may be admissible to prove motive or intent only when supported by a concrete evidentiary foundation connecting gang affiliation or gang dynamics to the charged offense.
- Under Rule 11-403, evidence with marginal probative value may be excluded when it carries a substantial risk that jurors will decide guilt based on fear or negative stereotypes rather than the elements of the crimes charged.
- Expert qualifications do not, by themselves, justify admitting generalized cultural opinions; the testimony must fit the facts of the case and not function as propensity evidence.
- When intent and self-defense are central, improperly admitted gang-related evidence is unlikely to be harmless because it can supply an unsupported retaliatory motive that counters self-defense.

## Conclusion

The court ordered a new trial because generalized gang-culture expert testimony, introduced without a factual nexus to the crime, created an unacceptable risk of unfair prejudice and likely influenced the jury’s evaluation of Torrez’s motive and self-defense claim.


State v. Torrez, 210 P.3d 228 (N.M. 2009)