This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om 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. 32,332 4 BRITNEE BLAIR, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Jane Shuler Gray, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Acting Chief Public Defender 12 B. Douglas Wood III, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 SUTIN, Judge. 172 Defendant appeals from the district c ourt’s judgment and sentence, convicting 1 her after a bench trial for voluntary manslaughter and embezzlement of a motor 2 vehicle. Unpersuaded that Defendant de monstrated error, we issued a notice of 3 proposed summary disposition proposing to affirm. Defendant has filed a 4 memorandum in opposition to our notice. Wehave considered Defendant’s response 5 and remain unpersuaded. Therefore, we affirm. 6 Defendant raises two issues on appeal. First, she argues that the district court 7 erred by denying her a continuance of the trial after a defense w itness, Arnold Cline, 8 failed to appear. [DS 6; MIO 6-8] Second, pursuant to the demands of State v. 9 Franklin , 78 N.M. 127, 129, 428 P. 2d 982, 984 (1967), and State v. Boyer , 103 N.M. 10 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant challenges the sufficiency 11 of the State’s evidence to support her c onviction for voluntary manslaughter and the 12 sufficiency of the State’s evid ence to rebut her theory of self-defense. [DS 7; MIO 8- 13 12] 14 Denial of a Continuance 15 In response to our notice, Defendant states that, given the inconsistent 16 statements Mr. Cline made during police interviews, she needed Mr. Cline’s live 17 testimony to verify that Mr. Tiller had antagonized Defendant and attempted to 18 sexually batter and harm her in Mr. Cline’s presence. [MIO 5] Defendant also states 193 that defense counsel stipulated with the State to substitute the recordings of Mr. 1 Cline’s police interviews for his in-person testimony. [MIO 4] 2 We believe that Defendant has waived any argument that the recordings were 3 insufficient by the defense’s stipulation to use those recordings. The New Mexico 4 Supreme Court has held that where a de fendant acquiesces in the admission of an 5 unavailable witness’s prior statements, it constitutes a voluntary abandonment of the 6 right to examine the witness and a waiver of the issue on appeal. See State v. Campos , 7 1996-NMSC-043, ¶ 47, 122 N.M. 148, 921 P.2d 1266. The Court went on to say that 8 “[t]he doctrine of fundament al error cannot be invoked toremedy the defendant’s own 9 invited mistakes.” Id. 10 We also note that although Defendant does not provide us with the exact 11 statements of Mr. Cline that she wanted to pr esent at trial or direct us to the statements 12 in the record, it appears to us that Defendant, neverthe less, received the benefit of 13 those exculpatory statements Mr. Cline madeto police. The district court found that 14 Mr. Tiller had sufficiently provoked Defe ndant to raise a reasonable doubt that 15 Defendant committed murder. [MIO 5] As indicated in our notice of proposed 16 summary disposition, self-defense requires the presence of an “immediate danger of 17 death or great bodily harm” th at causes the defendant actual fear and elicits a reaction 18 from the defendant that a reasonable pers on would have had under the circumstances. 194 See UJI 14-5171 NMRA. Mr. Cline did not witness the killing of Mr. Tiller, and 1 Defendant gives us no indication that his in-person tes timony would have clarified 2 whether Mr. Tiller placed Defendant in fear of an immediate danger of death or great 3 bodily harm or whether a reasonable person would have acted as she did. [RP 8-19] 4 At best, witness statements that appear in the record support the district court’s finding 5 that there was sufficient provocation to mitigate murder to a manslaughter conviction. 6 [Id.] Based on the foregoing, we hold that Defendant waived any continuance that 7 might have permitted Mr. Cline’s in-per son testimony and that she nevertheless 8 received any benefit that she would havegotten by his availability at trial. 9 Sufficiency of the Evidence 10 As indicated earlier, self-defense re quires proof of the following beyond a 11 reasonable doubt. 12 1. There was an appearance of immediate danger of death or 13 great bodily harm to the defendant as a result of __________________; 14 and 15 2. The defendant was in fact put in fear by the apparent danger 16 of immediate death or great bodily harm and killed 17 __________________ (name of victim) because of that fear; and 18 3. A reasonable person in the same circumstances as the 19 defendant would have acted as the defendant did. 20 Id. (use notes omitted). 215 In response to our notice, Defendant pr ovides a more thorough recitation of the 1 facts. Those facts, however , viewed in the light most favorable to the verdict do not 2 support Defendant’s theory that she acted in self-defense. See State v. Cunningham , 3 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (stating thaton appeal we “view 4 the evidence in the light most favorable to the guilty verdict, indulging all reasonable 5 inferences[,] and resolving all conflicts in the evidence in favor of the verdict”). 6 “Contrary evidence supporting acquittal does not provide a basis for reversal because 7 the [fact-finder] is free to reject [the d]efendant’s version of the facts.” State v. Rojo , 8 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We agree with the State’s 9 theory that it is reasonable to infer that Defendant would not have repeatedly exposed 10 herself to Mr. Tiller’s presence or allowed him to remain in her house while she was 11 alone if she truly were afraidthat he posed a threat of imminent death or great bodily 12 harm. In light of the standards articulated , we are persuaded thatthe State’s evidence 13 created a reasonable doubt as to whether Mr. Tiller placed Defendant in fear of 14 immediate danger of death or great bodily harm and whether a reasonable person 15 would have acted as Defendant did under the circumstances. We therefore affirm her 16 conviction for voluntary manslaughter. 17 Conclusion 186 For the reasons stated in this Opinion and in our notice, we affirm the district 1 court’s judgment and sentence. 2

IT IS SO ORDERED. 3

__________________________________ 4 JONATHAN B. SUTIN, Judge 5

WE CONCUR: 6

_______________________________ 7 CYNTHIA A. FRY, Judge 8

_______________________________ 9 RODERICK T. KENNEDY, Judge 10