This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 35,283 4 STEVEN DYE, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Cristina T. Jaramillo, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Santa Fe, NM 13 Josephine H. Ford, Assistant Public Defender 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 GARCIA, Judge. 18
{1} Defendant Steven Dye (Defendant) appeal s from his jury trial conviction of two 192 counts of aggravated assault with a d eadly weapon. [RP 84- 85, 113, 119] Defendant 1 argued in his docketing statement this C ourt should reverse his convictions because 2 the district court improperly denied Defe ndant’s proposed defense of property jury 3 instruction. [DS 4] This Court issued a notice proposing to summarily affirm on the 4 ground that Defendant was not justified in using force against City Workers (the 5 Victims) who were acting lawfully, and any perceived threat of being locked inside 6 the house ended once Defendant was able to squeeze outside from under the garage 7 door. [CN 4–5] Defendant filed a memo randum in opposition in which he does not 8 respond to the issue of his proposed defens e of property instruction. We therefore 9 deem Defendant’s issue regarding a defens e of property jury instruction abandoned. 10 See State v. Salenas , 1991-NMCA-056, ¶ 2, 112 N.M. 268, 814 P.2d 136 (holding 11 where a party has not responded to this Court’s proposed disposition of an issue, that 12 issue is deemed abandoned). 13
{2} Defendant instead moves this Court toamend his docketing statement pursuant 14 to Rule 12-208(F) NMRA to add three new i ssues: (1) this Court should overrule case 15 law holding specific intent is not an elemen t of aggravated assault [MIO 2]; (2) the 16 evidence is insufficient to show Defendant acted in a way that could have caused a 17 bystander to reasonably fear an immediate battery [MIO 6-7]; and (3) Defendant was 18 entitled to a necessity defense. [MIO 8] The essential requirements to show good 193 cause for our allowance of an amendment to an appellant’s docketing statement are: 1 (1) the motion be timely, (2) the new issue s ought to be raised was either (a) properly 2 preserved below or (b) allowed to be rais ed for the first time on appeal, and (3) the 3 issues raised are viable. See State v. Moore , 1989-NMCA-073, ¶ 42, 109 N.M. 119, 4 782 P.2d 91, superseded by statute as stated in State v. Salgado , 1991-NMCA-044, 5 112 N.M. 537, 817 P.2d 730. While none of the i ssues raised in the motion to amend 6 were preserved below, Defendant argues the issues can be raised for the first time on 7 appeal, because they amount to fundamental error. SeeRule 12-321(B)(2)(c) NMRA. 8 [MIO 1,2] For the reasons that follow, we deny Defendant’s motion to amend the 9 docketing statement because the i ssues raised are not viable. 10
{3} Defendant first argues that this C ourt should overrule case law holding a 11 conviction for aggravated assault does not require proof of specific intent and should 12 reverse on the ground that the jury instruc tion allowing a convic tion based on general 13 intent was fundamentally flawed . [MIO 2–5] Defendant relies on State v. Branch , in 14 which this Court addressed a similar argument. 2016-NMCA-071, 387 P.3d 250, cert. 15 granted , 2016-NMCERT-007, ___ P.3d ___ (No. 35,951, July 28, 2016). This Court 16 acknowledged, while the defendant’s argument that proof beyond general criminal 17 intent was required in other jurisdictions and had some support, it is not the law in 18 New Mexico. Id . ¶¶ 12-13. In Branchthis Court noted, “[i]n State v. Manus , our 194 Supreme Court . . . confirmed that general criminal intent is all that is required to 1 support a conviction of aggravated assault[.]”. Branch , 2016-NMCA-071, ¶ 14; see 2 State v. Manus , 1979-NMSC-035, ¶ 12, 93 N.M. 95, 597 P.2d 280, overruled on other 3 grounds by Sells v. State , 1982-NMSC-125, ¶¶ 9-10, 98 N.M. 786, 653 P.2d 162. We 4 point out, while Branchand Manusinvolved bystanders to the battery of another 5 person, the victims in this case were the di rect subjects of the aggravated assault and 6 were not bystanders. Branch , 2016-NMCA-071, ¶ 14; Manus , 1979-NMSC-035, ¶ 3. 7 Nonetheless, the same logic and burden applies. 8
{4} Beyond arguing this Court should overrule Branchand Manusbecause our 9 Supreme Court has granted review of Branch , Defendant does not demonstrate this 10 Court’s ability to overrule established precedent requiring proof of only general 11 criminal intent to commit aggravated assault. See State ex rel. Martinez v. City of Las 12 Vegas , 2004-NMSC-009, ¶ 20, 135 N.M . 375, 89 P.3d 47 (stating that this Court must 13 follow applicable precedents of the S upreme Court). We therefore decline to 14 reconsider Branchand Manus . Because our law does not re quire proof beyond general 15 criminal intent to support a conviction for aggravated assault, we conclude the jury 16 instruction was not flawed, and there was no error. Accordingly, we hold this issue is 17 not viable. 18
{5} Defendant next argues the evidence was in sufficient to prove the victims could 195 have reasonably feared an immediate battery . [MIO 6–8] “The test for sufficiency of 1 the evidence is whether substantial evidence of either a di rect or circumstantial nature 2 exists to support a verdict of guilty beyond a reasonable doubt with respect to every 3 element essential to a conviction.” State v. Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 4 1056 (internal quotation marks and citation omitted). The reviewing court “view[s] 5 the evidence in the light most favorable to the guilty verdict, indulging all reasonable 6 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. 7 Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We disregard all 8 evidence and inferences that support a different result. See State v. Rojo , 1999-NMSC9 001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 10
{6} In order to prove Defendant committed aggravated assault against each of the 11 victims, the State was required to prove, in pertinent part, 12 1. [D]efendant chased [the Victims]; 13 2. [D]efendant’s conduct caused [theVictims] to believe [D]efendant 14 was about to intrude on [the Victims’ ] bodily integrity or personal safety 15 by touching or applying fo rce to [the Victims] in a rude, insolent or 16 angry manner; 17 3. A reasonable person in the same ci rcumstances as [theVictims] would 18 have had the same belief; 19 4. [D]efendant used a sword[.] 20 21 See UJI 14-305 NMRA. [RP 96–97] Defendant recited the following facts in his 226 docketing statement: while Defendant was cl eaning inside the home on the day of the 1 incident, two city workers returned to finish boarding the remaining windows and 2 doors with plywood because the home had been declared sub-standard; while 3 Defendant was inside, the workers boarded th e back door of the house, apparently the 4 only exterior door that was not boarded when Defendant arrived; when Defendant 5 heard the plywood being screwed over the b ack door, he ran to the door and began 6 kicking it and using a samurai sword to try and remove the plywood but was 7 unsuccessful; with the sword still in his hand, Defendant ran to the garage and was 8 able to squeeze outside through an ope ning below the garage door; Defendant 9 confronted the city workers in front of th e house; Defendant asserts he was near the 10 garage and was holding the sword by the blade and was pointing it down during the 11 confrontation; the city workers testified they were in fear for their lives. [DS 2–3] 12
{7} Defendant argues the evidence is insuffi cient because the State did not present 13 any evidence of threats or menacing conduct by Defendant. [MIO 7] In support of his 14 argument the evidence was insufficient, Defendant points out the Victims did not 15 testify Defendant chased them, swung the sword at them, or tried to strike them, and 16 Defendant was holding the sword pointi ng downward and by its blade when he 17 encountered the Victims. [MIO 7] However, as we noted above, Defendant emerged 18 from the garage with a sword in his hand and confronted th e Victims, and the Victims 197 testified they feared for their lives. [D S 3] “Contrary evidence supporting acquittal 1 does not provide a basis for reversal because the jury is free to reject [the d]efendant’s 2 version of the facts.” Rojo , 1999-NMSC-001, ¶ 19; State v. Salas , 1999-NMCA-099, 3 ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve 4 any conflict in the testimony of the witnesse s and to determine where the weight and 5 credibility lie). Thus, we defer to the jury ’s determination regarding the credibility of 6 the Victims’ testimony and the reasonablene ss of their fear and decline to re-weigh 7 the facts regarding whether Defendant did not chase them, swing the sword, or attempt 8 to strike them. Therefore, wehold the facts were sufficien t to show the Victims could 9 have reasonably feared an immediate battery. Accordingly, we deny Defendant’s 10 motion to amend his docketing statement becau se his challenge to the sufficiency of 11 the evidence is not a viable issue. 12
{8} Defendant lastly argues the district court erred in failing to sua sponte provide 13 a jury instruction justifying Defendant’s ac tions based on necessity or duress, pursuant 14 to UJI 14-5130 NMRA. [MIO 8-10] . Because it does not appear Defendant preserved 15 the issue of a necessity instruction, we review for fundamental error. See State v. 16 Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating, where 17 instructional error is not preserved, we re view for fundamental error). A defendant is 18 entitled to jury instructions on his theory of the case if there is evidence to support the 198 instruction. See State v. Brown , 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69. 1
{9} The duress instruction, as applicable to this case, provides: “Evidence has been 2 presented that the defendant was forced to [escape the house and encounter the city 3 workers with a samurai sword] under threat s. If the defendant feared immediate great 4 bodily harm to himself or another person if he did not commit the crime and if a 5 reasonable person would have acted in the same way under the circumstances, you 6 must find the defendantnot guilty.” UJI 14-5130. While we can speculate as to the 7 harm Defendant may have su ffered had he been trapped inside the house, Defendant 8 was not under threat by the Victims when he found a way to escape through the 9 garage. Instead, the evidence tends to show the Victims inadvertently closed 10 Defendant into the house. Moreover, Defendant resolved the threat when he squeezed 11 out from under the garage door [DS 3]; the samurai sword did not aid him in escaping 12 the house. No evidence was presented showing Defendant was threatened by the 13 Victims after he escaped the house or that he feared immediate great bodily harm if 14 he did not escape the house still armed with the sword. Defendant argues his 15 continued possession of the sw ord after he had gotten out of the house “indicate[s] . 16 . . he may have intended to use the swor d to try to take off the plywood from the 17 outside so that he could finish some wo rk inside the house[.]” [MIO 8] Defendant’s 18 argument his continued possession of the sword was justified during his encounter 199 with the city workers because he intended touse the sword to get back into the house 1 is unavailing. Because Defendant has not demonstrated any facts supporting a duress 2 instruction, we hold that the lack of such an instruction does not amount to 3 fundamental error. Therefore, we conclude Defendant’s issue regarding a duress 4 instruction is not viable. 5
{10} For the reasons explained above, we deny Defendant’s motion to amend his 6 docketing statement and affirm his convictions. 7
{11} IT IS SO ORDERED. 8

__________________ ______________ 9 TIMOTHY L. GARCIA, Judge 10 WE CONCUR: 11

_______________________________ 12 JONATHAN B. SUTIN, Judge 13

_______________________________ 14 JULIE J. VARGAS, Judge 15