Commonwealth v. Camacho

FOR PUBLICATION IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS ___________________________________ COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff-Appellee v. JESSE JAMES BABAUTA CAMACHO, Defendant-Appellant ___________________________________ OPINION Cite as: Commonwealth v. Camacho, 2002 MP 6 Appeal No. 99-018 Criminal Case No. 98-0175 Argued and submitted December 14, 2000 Decided April 8, 2002 For Appellant: For Appellee: G. Anthony Long, Esq. PMB 1797, P.O. Box 10001 Barry Hirshbein, Esq. Saipan, MP 96950 Assistant Attorney General Office of the Attorney General Criminal Division, Civic Center Complex Saipan, MP 96950  BEFORE: MIGUEL S. DEMAPAN, Chief Justice; ALEXANDRO C. CASTRO, Associate Justice; and JOHN A. MANGLONA, Associate Justice CASTRO, Associate Justice: INTRODUCTION ¶1 Jesse James Babauta Camacho appeals the trial court’s judgment of conviction of first degree murder and the sentence of 45 years of imprisonment. The notice of appeal being timely, we have jurisdiction in accordance with Article IV, Section 3 of the Constitution of the Commonwealth of the Northern Mariana Islands and 1 CMC § 3102(a). We affirm both the conviction and the sentence. FACTUAL AND PROCEDURAL BACKGROUND ¶2 On the morning of April 30, 1998, a group of boys was playing together at the Dan Dan homestead on Saipan. Ian Dela Cruz (“Ian”), Jesse James Camacho (“Jesse” or “Camacho”), his brother Kevin Camacho (“Kevin”), and Carlos Sanchez (“Carlos”), walked to the home of Antonio Sablan (“Antonio”) to play with his electronic games. ¶3 While there, the boys noticed a sword. Ian stole it after Camacho allegedly told him to do so. Antonio eventually realized that the sword was missing. Suspecting the other boys of taking it, he confronted them. ¶4 After Antonio confronted them, Camacho told Ian that “the gang’s boss” had issued an order to kill Antonio and had assigned Ian the task. He warned that the order had to be carried out or Ian and his  family would be killed. Camacho purportedly gave Ian the murder weapon, a knife, and directed his brother Kevin to accompany Ian. Kevin later stated that he had seen Ian stab Antonio multiple times in Antonio’s bedroom. ¶5 At his juvenile proceeding, Ian admitted stabbing Antonio to death. He was consequently committed to the juvenile detention center. Ian also testified that Camacho had instructed him to carry out the stabbing. ¶6 At the time of the killing, Ian had run away from home and was living in an abandoned shack near Antonio’s house. He was befriended by Camacho and spent time with him and other boys who were members of a gang called “Rerum.” Ian testified that, although he was never officially a member, he was asked to join the gang and was beaten up for failing to respond at all to the invitation. ¶7 On May 27, 1998, an information was filed charging Camacho with first degree murder. The information also alleged that he “did aid, abet, counsel, command, and induce another person . . . to commit, and did procure the commission of, the crime of First Degree Murder. . . .” The information was signed by Ross Buchholz on behalf of Sally Pfund, the Acting Attorney General at the time. The Commonwealth (also referred to as “Government”) also instituted a juvenile proceeding against Camacho, who was just shy of his 18th birthday, charging him with conspiracy to commit murder and solicitation of murder.1 ¶8 Initially, the Commonwealth sought to consolidate the juvenile case with the instant action by amending the criminal information, but the trial court denied its motion. The Commonwealth then moved to stay this case, pending the resolution of the appeal in the related juvenile proceeding. Again, the trial 1 In re J.J.C., App. No. 98-043 (N.M.I. Sup. Ct. May 9, 2000), aff’d, 255 F.3d 1069 (9th Cir. 2001).  court denied the motion for stay, as well as the Commonwealth’s final pre-trial motion to dismiss the information without prejudice. ¶9 Camacho also filed two unsuccessful pre-trial motions: (1) to dismiss the information on the grounds of double jeopardy and lack of jurisdiction; and (2) in limine, to exclude the introduction of “gang-related” evidence. ¶10 Opening arguments in the jury trial were scheduled for March 9, 1999, but were postponed to the following day because of a riot situation at the pre-trial detention center. Camacho moved for a mistrial, arguing that his case was prejudiced by a newspaper article implying that his trial was delayed because he was being held in the detention center. The trial court denied the motion and opening arguments were heard on March 10. The Commonwealth completed its case-in-chief the same day, introducing one exhibit and calling five witnesses to testify. ¶11 After the Commonwealth rested, Camacho moved for a judgment of acquittal, claiming the evidence was insufficient. The trial court denied the motion. At the close of the defense’s case-in-chief, Camacho renewed his motion for judgment of acquittal, due to insufficient evidence, but the trial court again denied his motion. The jury returned a guilty verdict of first degree murder. After the verdict was announced, Camacho moved for acquittal and for a new trial. The lower court denied both motions. ¶12 At a hearing on June 23, 1999, the court sentenced Camacho to 45 years imprisonment with credit for time served. QUESTIONS PRESENTED AND STANDARDS OF REVIEW ¶13 Camacho presents the following questions for our consideration: ¶14 I. Whether the trial court properly assumed jurisdiction over a criminal information signed by an Acting Attorney General and without juvenile court certification. The issue of jurisdiction is a question of law subject to de novo review. See In re N.T.M., App. No. 98-022  (N.M.I. Sup. Ct. December 14, 1999) (Opinion at 1); Office of the Attorney General v. Rivera, 3 N.M.I. 436, 441 (1993). ¶15 II. Whether a defendant’s due process rights, guaranteed by the Fourteenth Amendment to the Unites States Constitution and Article I, Section 5 of the Constitution of the Northern Mariana Islands, are violated when: (1) charged as an aider and abettor, despite the provisions of 6 CMC § 251(d), the defendant is not allowed to present the common law defense of not being a principal; (2) the Commonwealth fails to obtain juvenile court authorization to treat the defendant as an adult; or (3) the defendant is prosecuted by an alleged usurper of the C.N.M.I. Attorney General’s prosecutorial power. We review all constitutional questions de novo. See Triple J. Saipan, Inc. v. Rasiang, 1999 MP 7 ¶ 2, 5 N.M.I. 232, 233 (1999); Commonwealth v. Bergonia, 3 N.M.I. 22, 35 (1992). ¶16 III. Whether, under the Fifth Amendment to the United States Constitution and Article I, Section 4(e) of the Constitution of the Northern Mariana Islands, double jeopardy bars the defendant’s prosecution in the trial court when the Commonwealth has also instituted juvenile proceedings against the defendant. Implicating a constitutional right, this issue is again subject to de novo review. See Triple J. Saipan, Inc., 1999 MP 7 ¶ 2, 5 N.M.I. at 233; Bergonia, 3 N.M.I. at 35. ¶17 IV. Whether the trial court erred in admitting gang-related evidence and the victim’s photograph. The admission of evidence is within the sound discretion of the trial court, and is subject to review for abuse of discretion. See Commonwealth v. O’Connor, App. No. 99-021 (N.M.I. Sup. Ct. June 28, 2000) (Opinion at 2). Only relevant evidence is admissible, but reversal is not warranted unless erroneously admitted evidence caused prejudice affecting a party’s substantial right. See Com. R. Evid. 103(a) and 402; Pellegrino v. Commonwealth, 1999 MP 10 ¶ 4, 5 N.M.I. 242, 243 (1999); see also United States v. Gonzalez-Torres, 273 F.3d 1181, 1188-89 (9th Cir. 2001) (admission of evidence requires balancing of probative value against prejudicial effect for abuse of discretion). ¶18 V. Whether, in issuing jury instructions, the trial court erred by failing to: (1) give requested defense instructions; or (2) instruct the jury sua sponte on actual perpetrator’s mens rea and lesser included offenses. A trial court’s ruling to preclude a defendant’s proffered defense is reviewed de novo. See United States v. Moreno, 102 F.3d 994, 997 (9th Cir. 1996); Commonwealth v. Bergonia, 3 N.M.I. 22, 35 (1992). A defendant is entitled to reversal, based on the adequacy or completeness of jury instructions on the essential elements of the offense, only for plain error. Plain error is a highly prejudicial error, which affects the defendant’s substantial rights. See United States v. Payne, 944 F.2d 1458, 1463 (9th Cir. 1991), cert. denied, 503 U.S. 975, 112 S. Ct. 1598, 118 L. Ed. 2d. 313 (1992). We decline to reach the standard for reversal regarding sua sponte instructions on lesser included offenses. ¶19 VI. Whether, during closing arguments, the Commonwealth: (1) violated the defendant’s Fifth Amendment rights by commenting on his post-arrest silence; or (2) made other improper statements which violated his due process rights. As with other constitutional questions, we review these potential infractions de novo. See Bergonia, 3 N.M.I. at 35; United States v. Ross, 123 F.3d 1181, 1187 (9th Cir. 1997), cert. denied, 522 U.S. 1066, 118 S. Ct. 733, 139 L. Ed. 2d 670 (1998). There is, however, no automatic reversal of conviction for constitutional errors which, in the setting of a particular case, are of such unimportance that they may be deemed harmless. See Commonwealth v. Saimon, 3 N.M.I. 365, 379- 80 (1992); Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 1833, 144 L. Ed 2d 35 (1999); Chapman v. State of California, 386 U.S. 18, 22, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967). Under the harmless error standard, the aim is to “determine ‘whether allegedly improper behavior, considered in the context of the entire trial . . . affected the jury’s ability to judge the evidence fairly.’” United States v. De Cruz, 82 F.3d 856, 862 (9th Cir. 1996) (quoting United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986)). ¶20 VII. Whether the evidence was sufficient to support the defendant’s conviction of first degree murder. To determine the sufficiency of the evidence, we review the record in the light most favorable to the prosecution to determine whether any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. O’Connor, App. No. 99-021 (N.M.I. Sup. Ct. June 28, 2000) (Opinion at 2); Commonwealth v. Oden, 3 N.M.I. 186, 191 (1992). ¶21 VIII. Whether the trial court erred in denying the defendant’s motion for a mistrial. The trial court’s denial of a motion for mistrial is reviewed for abuse of discretion. See United States v. Sarkisian, 197 F.3d 966, 981 (9th Cir. 1999), cert. denied, 530 U.S. 1220, 120 S. Ct. 2230, 147 L. Ed. 2d 260 (2000); United States v. Homick, 964 F.2d 899, 906 (9th Cir. 1992). ¶22 IX. Whether the trial court erred in denying the defendant’s motion for a new trial. The trial court’s denial of a motion for new trial is reviewed for abuse of discretion. See Saimon, 3 N.M.I. at 397; B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1104 (9th Cir. 2002). ¶23 X. Whether cumulative errors require reversal of the defendant’s conviction. We review to determine whether the overall effect of multiple errors amounts to prejudice. See United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996); United States v. Santos, 201 F.3d 953, 965 (7th Cir. 2000). ¶24 XI. Whether the trial court’s imposition of a 45-year sentence should be set aside in light of evidence of the defendant’s youth and absence of a prior criminal record. In reviewing what evidence the trial court should have considered, we look for abuse of discretion. See United States v. Ayers, 924 F.2d 1468, 1481 (9th Cir. 1991).  ANALYSIS I. The Trial Court’s Assumption of Jurisdiction ¶25 The issue of jurisdiction is a question of law subject to de novo review. See In re N.T.M., App. No. 98-022 (N.M.I. Sup. Ct. December 14, 1999) (Opinion at 1). A. Prosecution by lawful Attorney General ¶26 Camacho argues that the trial court lacked subject jurisdiction over the information because the Government did not have a constitutionally appointed Attorney General at any time from the institution of the information to the return of the jury verdict. ¶27 We thoroughly considered and rejected Camacho’s argument in a contemporaneous case. See Commonwealth v. Zhen, 2002 MP 4 ¶¶ 36-41. Pursuant to Rule 12 of the Commonwealth Rules of Criminal Procedure, defenses based on “defects in the institution of prosecution” are mandatory pretrial matters. See Com. R. Crim. P. 12(b)(1). Camacho’s failure to raise the present objection before trial therefore resulted in a waiver. See Com. R. Crim. P. 12(f).2 B. Juvenile court certification hearing ¶28 Camacho states that the trial court had no jurisdiction because he was charged with aiding and abetting in a murder and thus, he cannot be automatically tried as an adult under 6 CMC § 5103(a). Because the Government did not seek and receive certification from the juvenile court by way of a hearing under 6 CMC § 5102, Camacho maintains that the trial court lacked jurisdiction over the case. ¶29 Although our statutory scheme empowers the juvenile court with exclusive original jurisdiction over all delinquency proceedings, 6 CMC § 5103(a) provides an exception for certain juveniles charged with 2 While jurisdictional matters may be raised on appeal, they are limited to allegations that “the applicable statute is unconstitutional or that the indictment fails to state an offense.” U.S. v. Kahlon, 38 F.3d 467, 469 (9th Cir. 1994).  murder.3 See In re J.J.C., App. No. 98-043 (N.M.I. Sup. Ct. May 9, 2000) (Opinion at 3) (citing In re N.T.M., App. No. 98-022 (N.M.I. Sup. Ct. December 28, 1999) (Opinion at 4)), aff’d, 255 F.3d 1069 (9th Cir. 2001). This Court has interpreted 6 CMC § 5103(a) as dispensing with the need for a certification hearing under 6 CMC § 5102, where an offender 16 years of age or older, is accused of a traffic offense, murder, or rape. See In re N.T.M. (Opinion at 5). In other words, under such circumstances, the juvenile court is automatically divested of jurisdiction and the accused juvenile is thereby subject to the original jurisdiction of the adult criminal court. See id. ¶30 That the basis of the first degree murder charge in this case stems from Camacho’s alleged participation as an aider and abettor is of minimal significance in light of 6 CMC § 201, which eliminates the common-law distinction between principals and those who aid or abet the commission of a crime. A full discussion of this issue follows immediately below. II. Defendant’s Due Process Rights ¶31 We review de novo questions involving the application of the United States or Northern Mariana Islands Constitution. See Triple J. Saipan, Inc., 1999 MP 7 ¶ 2, 5 N.M.I. at 233. A. Common law distinction between a principal and an aider and abettor. ¶32 Camacho contends that his procedural due process rights were violated because, despite the provisions 6 CMC § 251(d), he was not permitted to raise the common law defense of being an aider and abettor. That section provides: “[n]othing contained in this title is to be construed to deny a defendant the right to raise any defense available at common law.” Because the common law draws a distinction between 3 In relevant part, 6 CMC § 5103(a) defines “delinquent child” as any juvenile “[w]ho violates any Commonwealth law, ordinance, or regulation while under the age of 18; provided, that a juvenile 16 years of age or older accused of a traffic offense, murder, or rape shall be treated in the same manner as an adult . . . .”  a principal in the first degree and an aider and abettor, Camacho insists that, under section 251(d), an aider and abettor may not be convicted as a principal. ¶33 We are required to read the criminal code reasonably and “with a view to effect the plain meaning of its object”. 6 CMC § 104(d). At the same time, we are not to interpret a statutory provision in a way that would render another provision either inconsistent or meaningless. See Estate of Faisao v. Tenorio, 4 N.M.I. 260, 265 (1995). ¶34 Camacho’s suggested interpretation of 6 CMC § 251(d) is at odds with 6 CMC § 201, which reads: Every person is punishable as a principal who commits an offense against the Commonwealth or aids, abets, counsels, commands, induces, or procures its commission or who causes an act to be done, which, if directly performed by that person, would be an offense against the Commonwealth. No distinction is made between principals in the first and second degrees, and no distinction is made between a principal and what has heretofore been called an accessory before the fact. If we were to adopt Camacho’s approach, we would derogate section 201's objective of eliminating the common law distinction between principals and aiders and abettors. ¶35 While we have not considered this very issue, the trial division of the Trust Territory High Court observed that, under section 430 of the Trust Territory Code, from which section 201 of the Commonwealth Code is derived, “[t]he distinction between a principal and an accessory before the fact is a very technical one and of so little practical significance that it has been abolished in many states and in the case of crimes under the United States Code.” Ropon v. Trust Territory, 2 T.T.R. 313, 315 (1962).4 As such, we find 4 For a historical account of the abolishment of the common law distinction between principals and aiders and abettors see Standefer v. United States, 447 U.S. 10, 15-20, 100 S. Ct. 1999, 2003-06, 64 L. Ed. 2d 689 (1980).  it difficult to accept Camacho’s argument that the common law distinction survives the enactment of this statutory provision. ¶36 Moreover, although section 251(d) was enacted after section 201, we do not believe, as Camacho maintains, that its subsequent enactment evinces a legislative intent to supersede or repeal section 201 to the extent it conflicts with section 251(d).5 Indeed, Public Law 3-71, containing section 251(d), enumerates various specific repealer provisions, none of which directs the repeal of section 201. ¶37 Camacho relies on the implied repealer rule, a heavily disfavored tool of statutory construction invoked only where nullification is “established by ‘plain, unavoidable, and irreconcilable repugnancy.’” State v. Langdon, 999 P.2d 1127, 1132 (Or. 2000) (quoting State v. Shumway, 630 P.2d 796, 801 (Or. 1981)); see also Tinoqui-Chalola Council v. U.S. Dep't of Energy, 232 F.3d 1300, 1306 (9th Cir. 2000). The general rule disfavoring implied repeal is especially strong where, as here, certain provisions are expressly abrogated, demonstrating clearly that if the legislature “had meant to repeal any part of any other previous statute, it could easily have done so.” Hagen v. Utah, 510 U.S. 399, 416, 114 S. Ct. 958, 968, 127 L. Ed. 2d 252 (1994). ¶38 As the trial court suggests, we can easily reconcile the apparent inconsistency between sections 201 and 251(d) by reading section 251(d) to mean that the legislature sought to preserve only those common law defenses not previously addressed by codified Commonwealth law. Because we conclude that section 201 was not repealed by the enactment of section 251(d), we hold that the Commonwealth Criminal Code 5 Section 201 of Title 6 of the Commonwealth Code originates from the Trust Territory Code, see 11 TTC § 2, and remains in force pursuant to section 2 of the Schedule on Transitional Matters of the Constitution of the Northern Mariana Islands. Section 251(d) of Title 6 of the Commonwealth Code was enacted in 1983. See Public Law 3-71.  does not afford Camacho the due process right to assert that, as an aider and abettor, he is entitled to be punished differently from a principal, according to the distinction established by the common law. B. Juvenile court authorization ¶39 In addition to his jurisdictional claim, Camacho asserts that the Government’s failure to obtain certification from the juvenile court constitutes a denial of due process. ¶40 As indicated, we have previously held juvenile court certification is not required in a criminal case involving an offender, who is between sixteen and eighteen years of age and is charged with the crime of murder. See supra at ¶ 29. A juvenile court is automatically divested of jurisdiction under such circumstances, thereby subjecting the offender to the trial court’s original jurisdiction. See id. Accordingly, Camacho has no due process right to a juvenile court certification hearing. C. Prosecution by alleged usurper of the Commonwealth’s prosecutorial power ¶41 Camacho further claims that he has a due process right to be tried by a constitutionally-appointed Attorney General. To support his argument, he cites Hines v. Enomoto, 658 F.2d 667 (9th Cir. 1981). This creates two problems. First, Hines has been abrogated by Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988). Second, Camacho fails to articulate how Hines helps his case, as the question there dealt with peremptory challenges and their affect on a trial proceeding and a defendant’s right to due process. ¶42 While we readily see the connection between peremptory challenges and a defendant’s right to a fair trial, we have difficulty with the contention, which we assume Camacho is making, that a constitutionally- defective appointment of an Acting Attorney General deprived him of his right to a fair trial. Because he did not explore this argument or provide a cogent analysis backed by case law, we cannot decipher Camacho’s  claim. We therefore decline to rule on this issue. See Roberto v. De Leon Guerrero, 4 N.M.I. 295, 297- 98 (1995) (reviewing court need not address argument unaccompanied by cited authority). III. Double Jeopardy Clause ¶43 We now consider the issue of whether Camacho’s juvenile transfer proceedings in the companion case, In re J.J.C., App. No. 98-043 (N.M.I. Sup. Ct. May 9, 2000), aff’d 255 F.3d 1069 (9th Cir. 2001), invoked the double jeopardy clause of the Fifth Amendment to the United States Constitution, thereby barring his prosecution for first degree murder. This issue again implicates a constitutional right and is subject to de novo review. See Triple J. Saipan, Inc., 1999 MP 7 ¶ 2, 5 N.M.I. at 233. ¶44 The Commonwealth filed a juvenile delinquency complaint in juvenile court against Camacho, charging him with conspiracy to commit murder and solicitation to commit murder. We held that “[a]s long as the transfer hearing does not involve the risk of an adjudication of guilt, the juvenile court is not prohibited from conducting such a hearing even if substantial evidence that the juvenile committed the alleged offense is a prerequisite to the transfer.” In re J.J.C., (Opinion at 12-13). We found nothing introduced at the juvenile hearing which amounted to substantial evidence that Camacho committed the alleged offense. See id. at 13. ¶45 To preserve the issue for Ninth Circuit review, Camacho reasserts his argument that jeopardy attached to the transfer hearing on the conspiracy complaint. He further extends this argument by insisting that, because jeopardy attached to the juvenile transfer hearing, the Commonwealth is precluded from prosecuting him as an adult “on any charge related to the same underlying conduct.” Camacho neglects to mention that the case upon which he relies pertains to multiple prosecutions for the same offense based on the same underlying conduct. See People v. Holloway, 662 N.Y.S.2d 677 (N.Y. Sup. Ct. 1997) (both juvenile and family court charges were for offense of sodomy in the first degree). ¶46 In this case Camacho was tried for first degree murder. The subject of the juvenile transfer proceeding, on the other hand, was conspiracy. A settled principle of double jeopardy provides that the commission of a substantive offense and a conspiracy to commit the offense are separate and distinct crimes to which double jeopardy is not a defense. See United States v. Felix, 503 U.S. 378, 388-93, 112 S. Ct. 1377, 1383-85, 118 L. Ed. 2d 25 (1992); Pereira v. United States, 347 U.S. 1, 11, 74 S. Ct. 358, 364, 98 L. Ed. 435 (1954); United States v. James, 109 F.3d 597, 600 (9th Cir. 1997). Specifically, the Ninth Circuit has held charges of conspiracy and aiding and abetting in the commission of a substantive offense are separate offenses for purposes of double jeopardy. See United States v. Nelson, 137 F.3d 1094, 1107-1108 (9th Cir. 1998) (citing United States v. Arbelaez, 812 F.2d 530, 534 (9th Cir. 1987)). Accordingly, because the juvenile proceedings dealt with a separate and distinct offense, we find no double jeopardy violation in the Commonwealth’s separate prosecution of Camacho for first degree murder. ¶47 Without any analysis, Camacho alternatively argues that the double jeopardy clause of Article I, Section 4(e) of the Constitution of the Northern Mariana Islands bars the Commonwealth’s prosecution for first degree murder. We have acknowledged that because the double jeopardy clause in the N.M.I. Constitution is patterned after the double jeopardy clause in the United States Constitution, it is appropriate to resort to federal case law to ensure that our interpretation of Article I, Section 4(e) provides at least the same protection granted under the federal Constitution. See Commonwealth v. Oden, 3 N.M.I. 186, 206 (1992). We see no reason to depart from relying on federal case law for guidance to determine the parameters of the N.M.I. Constitution’s double jeopardy clause. As articulated in the discussion on the federal double jeopardy clause, we will not construe Article I, Section 4(e) in the expansive way Camacho would have us read the provision, that is, to prohibit the subsequent prosecution of any offense related to the same underlying conduct.  IV. Admission of Evidence at Trial ¶48 The admission of evidence at trial is subject to review for abuse of discretion. See Pellegrino v. Commonwealth, 1999 MP 10 ¶ 4, 5 N.M.I. 242, 243 (1999). A. Gang-affiliation evidence ¶49 Camacho maintains that any probative value of evidence on the Redrum gang was outweighed by its unfair prejudice, in that the admission of such evidence impermissibly influenced the jury to convict him on the basis of his association with the gang.6 The Commonwealth responds by pointing to recent Ninth Circuit decisions holding that such evidence is admissible where gang affiliation is intertwined with the commission of the crime, shows motive for “an otherwise inexplicable act,” or is necessary to explain why a person would kill a stranger.7 ¶50 Indeed, gang-affiliation evidence may only be admitted when it is relevant to a material issue in the case. See United States v. Abel, 469 U.S. 45, 49, 105 S. Ct. 465, 467, 83 L. Ed. 2d 450 (1984). Such material issues include bias, motive, and preparation. See Com. R. Evid. 404(b); 8 United States v. Takahashi, 205 F.3d 1161, 1164 (9th Cir. 2000) (evidence of Yakuza membership admitted to show bias); United States v. Santiago, 46 F.3d 885, 889 (9th Cir. 1995) (admitting evidence regarding prison gang membership to prove motive). 6 See Com. R. Evid. 403 (allowing exclusion of relevant evidence if probative value substantially outweighed by, among other things, danger of unfair prejudice, confusion of issues, or misleading the jury). 7 See United States v. Santiago, 46 F.3d 885 (9th Cir. 1995), United States v. Winslow, 962 F.2d 845 (9th Cir. 1992), and United States v. Skillman, 922 F.2d 1370 (9th Cir. 1991). 8 Com. R. Evid. 404(b) reads in pertinent part: “[e]vidence of other crimes, wrongs, or acts . . . may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” ¶51 However, gang membership alone may not be used as proof of “intent, or of the facilitation, advice, aid, promotion, encouragement or instigation needed to establish aiding and abetting.” United States v. Garcia, 151 F.3d 1243, 1246 (9th Cir. 1998) (citing Mitchell v. Prunty, 107 F.3d 1337, 1342 (9th Cir. 1997), cert. denied, 522 U.S. 913, 118 S. Ct. 295, 139 L. Ed. 2d 227 (1997), overruled in part, on other grounds, en banc, by Santamaria v. Horsley, 133 F.3d 1242 (9th Cir. 1998)). Thus gang membership evidence has been found inadmissible to establish an individual gang member aided and abetted in a killing “by fanning the fires of gang warfare that culminated in . . . [the victim’s] death.” Mitchell, 107 F.3d at 1342. The Ninth Circuit reasoned that admitting evidence on such a basis “smacks of guilt by association” and “would invite absurd results” by holding any gang member liable for any other member’s act “so long as the act was predicated on the ‘common purpose of “fighting the enemy.”’” Id. (citing Curtin v. Lataille, 527 A.2d 1130, 1133 (R.I. 1987)). ¶52 Here the gang-affiliation evidence was admitted for the particular purpose of explaining a material issue in this case -- Camacho’s role in aiding and abetting in Antonio’s murder. Ian testified that Camacho delivered the order to kill, which apparently came from a person who was referred to as the “gang’s boss.” Ian also stated that Camacho furnished the knife used to stab Antonio to death and directed Kevin to accompany Ian to ensure the order was carried out. The Commonwealth sought to establish a missing link in this chain of events by offering gang membership evidence to explain why Camacho had such control and influence over Ian. In fact, the trial court predicated its evidentiary ruling on this link. Accordingly, we find no abuse of discretion and that the admission of the gang membership evidence was proper. B. Victim’s photograph ¶53 It is well established that photographs may be used to portray relevant matters, including the identification of the victim. See State v. Finch, 975 P.2d 967, 981 (Wash. 1999); People v. Anderson,  954 P.2d 627, 630 (Colo. Ct. App. 1997). As with other evidence, the trial court has wide latitude in deciding whether to admit or exclude photographs of a victim; its ruling will not be overturned absent an abuse of discretion. See People v. Seaton, 28 P.3d 175, 208 (Cal. 2001). ¶54 Camacho contends that a photograph of Antonio in his football uniform served only to inflame the emotions of the jury, yet he fails to offer any indication of unfair prejudice. The trial court reviewed the photograph and determined that it was relevant and probative because it identified the victim. As such, we cannot say that the trial court abused its discretion in admitting the photograph. V. Jury Instructions A. Common law aiding and abetting ¶55 Camacho reiterates his earlier argument that he was improperly charged as a principal in the crime in light of 6 CMC § 251(d), which affords him the right to assert common law defenses. He requested, but was denied, a jury instruction on the common law defense of not being a principal to the commission of a crime. Having disposed of a similar issue in our discussion about whether Camacho was deprived of a due process right to present a defense of not being a principal, see supra at ¶ 38, we uphold the trial court’s rejection of the proffered jury instruction. The trial court’s ruling comports with 6 CMC § 201, which draws no distinction between a principal and an accessory before the fact. B. Actual perpetrator’s mens rea ¶56 The adequacy or completeness of jury instructions on the essential elements of the offense is reviewed for plain error. See Commonwealth v. Esteves, 3 N.M.I. 447, 452 (1993). In conducting such a review, “we must consider whether the instructions as a whole were misleading or inadequate to guide the jury’s determination.” Id. at 454. ¶57 Camacho argues that he was entitled to an instruction on Ian’s mens rea because, to be convicted of aiding and abetting, the direct perpetrator must possess the requisite mens rea to commit the underlying offense. Contrary to this assertion, the portion of the transcript where proposed jury instructions were reviewed discloses that the trial court did not deny an instruction specifically related to Ian’s mens rea. The court instead rejected Camacho’s proposed instruction that Ian, as the direct perpetrator, acted out of duress and/or necessity. 9 ¶58 Section 201 of Title 6 of the Commonwealth Code requires the punishment, as a principal, of any person who aids, abets, counsels, commands, induces, or procures the commission of a crime, or who otherwise “causes an act to be done, which, if directly performed by that person, would be an offense against the Commonwealth.”10 Dividing section 201 into two provisions, the first provision necessitates proof that each element of the underlying criminal offense was committed by someone, other than the aider, who had the requisite mens rea. In the alternative, the second provision prevents a culpable party from escaping prosecution by using a so-called “innocent instrument” to do his dirty work. ¶59 In other words, to earn a conviction under section 201, the prosecution must prove that the defendant: (1) intentionally committed an act, which contributed to the commission of a second act; (2) which second act (a) either: (i) is a crime or (ii) would be a crime if done by defendant; and (b) was later committed. 9 Defense counsel seemed to be unclear on the effect of such an instruction, as he alternately argued that duress and/or necessity was a mitigating factor, a defense and a justification. He also mentioned at one point that it would be the defense’s position that there was no first degree murder because “they” were juveniles, and that the defense was being precluded from contesting Ian’s mens rea. However, he did not request instructions specifically relating to incapacity or mens rea. 10 See supra at ¶ 34 for the complete text of 6 CMC § 201.  Under (2)(a)(i), above, it is necessary to prove that the direct perpetrator had the specific intent to commit the crime because, without the mens rea element, the second act would not be a crime. See United States v. Fulbright, 105 F.3d 443, 451-52 (9th Cir. 1997) (quoting United States v. Powell, 806 F.2d 1421, 1423-24 (9th Cir. 1986)).11 Under (2)(a)(ii), above, it is unnecessary for the perpetrator to have formed, or been capable of forming, the specific intent. Here, the relevant inquiry is whether the second act would have been a crime, if performed by defendant, in which case “[i]t is the aider and abettor’s state of mind, rather than the state of mind of the principal, that determines the former’s liability.” United States v. Short, 493 F.2d 1170, 1172 (9th Cir. 1974), modified, 500 F.2d 676 (9th Cir. 1974), cert. denied, 419 U.S. 1000, 95 S. Ct. 317, 42 L. Ed. 2d 275 (1974); see also United States v. Johnson, 132 F.3d 1279, 1285 (9th Cir. 1997); United State