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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 35,283

5 STEVEN DYE,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

8 Cristina T. Jaramillo, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender

13 Santa Fe, NM

14 Josephine H. Ford, Assistant Public Defender

15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION

18 GARCIA, Judge.

19 {1} Defendant Steven Dye (Defendant) appeals from his jury trial conviction of two
2

1 counts of aggravated assault with a deadly weapon. [RP 84-85, 113, 119] Defendant

2 argued in his docketing statement this Court should reverse his convictions because

3 the district court improperly denied Defendant’s proposed defense of property jury

4 instruction. [DS 4] This Court issued a notice proposing to summarily affirm on the

5 ground that Defendant was not justified in using force against City Workers (the

6 Victims) who were acting lawfully, and any perceived threat of being locked inside

7 the house ended once Defendant was able to squeeze outside from under the garage

8 door. [CN 4–5] Defendant filed a memorandum in opposition in which he does not

9 respond to the issue of his proposed defense of property instruction. We therefore

10 deem Defendant’s issue regarding a defense of property jury instruction abandoned.

11 See State v. Salenas, 1991-NMCA-056, ¶ 2, 112 N.M. 268, 814 P.2d 136 (holding

12 where a party has not responded to this Court’s proposed disposition of an issue, that

13 issue is deemed abandoned).

14 {2} Defendant instead moves this Court to amend his docketing statement pursuant

15 to Rule 12-208(F) NMRA to add three new issues: (1) this Court should overrule case

16 law holding specific intent is not an element of aggravated assault [MIO 2]; (2) the

17 evidence is insufficient to show Defendant acted in a way that could have caused a

18 bystander to reasonably fear an immediate battery [MIO 6-7]; and (3) Defendant was

19 entitled to a necessity defense. [MIO 8] The essential requirements to show good
3

1 cause for our allowance of an amendment to an appellant’s docketing statement are:

2 (1) the motion be timely, (2) the new issue sought to be raised was either (a) properly

3 preserved below or (b) allowed to be raised for the first time on appeal, and (3) the

4 issues raised are viable. See State v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119,

5 782 P.2d 91, superseded by statute as stated in State v. Salgado, 1991-NMCA-044,

6 112 N.M. 537, 817 P.2d 730. While none of the issues raised in the motion to amend

7 were preserved below, Defendant argues the issues can be raised for the first time on

8 appeal, because they amount to fundamental error. See Rule 12-321(B)(2)(c) NMRA.

9 [MIO 1,2] For the reasons that follow, we deny Defendant’s motion to amend the

10 docketing statement because the issues raised are not viable.

11 {3} Defendant first argues that this Court should overrule case law holding a

12 conviction for aggravated assault does not require proof of specific intent and should

13 reverse on the ground that the jury instruction allowing a conviction based on general

14 intent was fundamentally flawed. [MIO 2–5] Defendant relies on State v. Branch, in

15 which this Court addressed a similar argument. 2016-NMCA-071, 387 P.3d 250, cert.

16 granted, 2016-NMCERT-007, ___ P.3d ___ (No. 35,951, July 28, 2016). This Court

17 acknowledged, while the defendant’s argument that proof beyond general criminal

18 intent was required in other jurisdictions and had some support, it is not the law in

19 New Mexico. Id. ¶¶ 12-13. In Branch this Court noted, “[i]n State v. Manus, our
4

1 Supreme Court . . . confirmed that general criminal intent is all that is required to

2 support a conviction of aggravated assault[.]”. Branch, 2016-NMCA-071, ¶ 14; see

3 State v. Manus, 1979-NMSC-035, ¶ 12, 93 N.M. 95, 597 P.2d 280, overruled on other

4 grounds by Sells v. State, 1982-NMSC-125, ¶¶ 9-10, 98 N.M. 786, 653 P.2d 162. We

5 point out, while Branch and Manus involved bystanders to the battery of another

6 person, the victims in this case were the direct subjects of the aggravated assault and

7 were not bystanders. Branch, 2016-NMCA-071, ¶ 14; Manus, 1979-NMSC-035, ¶ 3.

8 Nonetheless, the same logic and burden applies.

9 {4} Beyond arguing this Court should overrule Branch and Manus because our

10 Supreme Court has granted review of Branch, Defendant does not demonstrate this

11 Court’s ability to overrule established precedent requiring proof of only general

12 criminal intent to commit aggravated assault. See State ex rel. Martinez v. City of Las

13 Vegas, 2004-NMSC-009, ¶ 20, 135 N.M. 375, 89 P.3d 47 (stating that this Court must

14 follow applicable precedents of the Supreme Court). We therefore decline to

15 reconsider Branch and Manus. Because our law does not require proof beyond general

16 criminal intent to support a conviction for aggravated assault, we conclude the jury

17 instruction was not flawed, and there was no error. Accordingly, we hold this issue is

18 not viable.

19 {5} Defendant next argues the evidence was insufficient to prove the victims could
5

1 have reasonably feared an immediate battery. [MIO 6–8] “The test for sufficiency of

2 the evidence is whether substantial evidence of either a direct or circumstantial nature

3 exists to support a verdict of guilty beyond a reasonable doubt with respect to every

4 element essential to a conviction.” State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d

5 1056 (internal quotation marks and citation omitted). The reviewing court “view[s]

6 the evidence in the light most favorable to the guilty verdict, indulging all reasonable

7 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.

8 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We disregard all

9 evidence and inferences that support a different result. See State v. Rojo, 1999-NMSC10 001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 

11 {6} In order to prove Defendant committed aggravated assault against each of the

12 victims, the State was required to prove, in pertinent part,

13 1. [D]efendant chased [the Victims];

14 2. [D]efendant’s conduct caused [the Victims] to believe [D]efendant

15 was about to intrude on [the Victims’] bodily integrity or personal safety

16 by touching or applying force to [the Victims] in a rude, insolent or

17 angry manner;

18 3. A reasonable person in the same circumstances as [the Victims] would

19 have had the same belief;

20 4. [D]efendant used a sword[.]

21

22 See UJI 14-305 NMRA. [RP 96–97] Defendant recited the following facts in his
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1 docketing statement: while Defendant was cleaning inside the home on the day of the

2 incident, two city workers returned to finish boarding the remaining windows and

3 doors with plywood because the home had been declared sub-standard; while

4 Defendant was inside, the workers boarded the back door of the house, apparently the

5 only exterior door that was not boarded when Defendant arrived; when Defendant

6 heard the plywood being screwed over the back door, he ran to the door and began

7 kicking it and using a samurai sword to try and remove the plywood but was

8 unsuccessful; with the sword still in his hand, Defendant ran to the garage and was

9 able to squeeze outside through an opening below the garage door; Defendant

10 confronted the city workers in front of the house; Defendant asserts he was near the

11 garage and was holding the sword by the blade and was pointing it down during the

12 confrontation; the city workers testified they were in fear for their lives. [DS 2–3]

13 {7} Defendant argues the evidence is insufficient because the State did not present

14 any evidence of threats or menacing conduct by Defendant. [MIO 7] In support of his

15 argument the evidence was insufficient, Defendant points out the Victims did not

16 testify Defendant chased them, swung the sword at them, or tried to strike them, and

17 Defendant was holding the sword pointing downward and by its blade when he

18 encountered the Victims. [MIO 7] However, as we noted above, Defendant emerged

19 from the garage with a sword in his hand and confronted the Victims, and the Victims
7

1 testified they feared for their lives. [DS 3] “Contrary evidence supporting acquittal

2 does not provide a basis for reversal because the jury is free to reject [the d]efendant’s

3 version of the facts.” Rojo, 1999-NMSC-001, ¶ 19; State v. Salas, 1999-NMCA-099,

4 ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve

5 any conflict in the testimony of the witnesses and to determine where the weight and

6 credibility lie). Thus, we defer to the jury’s determination regarding the credibility of

7 the Victims’ testimony and the reasonableness of their fear and decline to re-weigh

8 the facts regarding whether Defendant did not chase them, swing the sword, or attempt

9 to strike them. Therefore, we hold the facts were sufficient to show the Victims could

10 have reasonably feared an immediate battery. Accordingly, we deny Defendant’s

11 motion to amend his docketing statement because his challenge to the sufficiency of

12 the evidence is not a viable issue.

13 {8} Defendant lastly argues the district court erred in failing to sua sponte provide

14 a jury instruction justifying Defendant’s actions based on necessity or duress, pursuant

15 to UJI 14-5130 NMRA. [MIO 8-10] . Because it does not appear Defendant preserved

16 the issue of a necessity instruction, we review for fundamental error. See State v.

17 Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating, where

18 instructional error is not preserved, we review for fundamental error). A defendant is

19 entitled to jury instructions on his theory of the case if there is evidence to support the
8

1 instruction. See State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69.

2 {9} The duress instruction, as applicable to this case, provides: “Evidence has been

3 presented that the defendant was forced to [escape the house and encounter the city

4 workers with a samurai sword] under threats. If the defendant feared immediate great

5 bodily harm to himself or another person if he did not commit the crime and if a

6 reasonable person would have acted in the same way under the circumstances, you

7 must find the defendant not guilty.” UJI 14-5130. While we can speculate as to the

8 harm Defendant may have suffered had he been trapped inside the house, Defendant

9 was not under threat by the Victims when he found a way to escape through the

10 garage. Instead, the evidence tends to show the Victims inadvertently closed

11 Defendant into the house. Moreover, Defendant resolved the threat when he squeezed

12 out from under the garage door [DS 3]; the samurai sword did not aid him in escaping

13 the house. No evidence was presented showing Defendant was threatened by the

14 Victims after he escaped the house or that he feared immediate great bodily harm if

15 he did not escape the house still armed with the sword. Defendant argues his

16 continued possession of the sword after he had gotten out of the house “indicate[s] .

17 . . he may have intended to use the sword to try to take off the plywood from the

18 outside so that he could finish some work inside the house[.]” [MIO 8] Defendant’s

19 argument his continued possession of the sword was justified during his encounter
9

1 with the city workers because he intended to use the sword to get back into the house

2 is unavailing. Because Defendant has not demonstrated any facts supporting a duress

3 instruction, we hold that the lack of such an instruction does not amount to

4 fundamental error. Therefore, we conclude Defendant’s issue regarding a duress

5 instruction is not viable.

6 {10} For the reasons explained above, we deny Defendant’s motion to amend his

7 docketing statement and affirm his convictions.

8 {11} IT IS SO ORDERED.

9 ________________________________

10 TIMOTHY L. GARCIA, Judge

11 WE CONCUR:

12 _______________________________

13 JONATHAN B. SUTIN, Judge

14 _______________________________

15 JULIE J. VARGAS, Judge