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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,664 4 ABRAN NELSON, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF GUADALUPE COUNTY 7 Matthew J. Sandoval, District Judge 8 Gary K. King, Attorney General 9 Olga Serafimova, Assist ant Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Kimberly Chavez Cook, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 172 MEMORANDUM OPINION 1 KENNEDY, Chief Judge. 2 {1} Abran Nelson (Defendant) appeals his c onviction for one count of assault with 3 intent to commit a violent felony (murder). See NMSA 1978, § 30-3-3 (1977). He 4 contends, among other issues, that there was insufficient evidence to support his 5 conviction and that the jury instructions wereso deficient as to constitute reversible, 6 fundamental error. We agree with Defendant that the evidence was insufficient to 7 establish that he intended to kill Rachel Hern. Therefore, wereverse Defendant’s 8 conviction without considering his contentions regarding the erroneous jury 9 instructions, or any other issues he raises in the alternative. 10 {2} The State’s only response is a short statement indicating that, after reviewing 11 the record and researching the issues rais ed by Defendant, it “is unable to present an 12 argument in support of affirming Defendant’s convictions on appeal.” In light of the 13 State’s response, we consider Defendant’s issues solely on the basis of his brief-in14 chief. See Rule 12-312(B) NMRA (stating that “[i]f an appellee fails to file an answer 15 brief as provided by these rules, the cause may be submitted upon the brief of 16 appellant, and appellee may not thereafter be heard, except by permission of the 17 appellate court”). However, we are not bound by the State’s concessions, and “we 183 conduct our own analysis.” State v. Caldwell , 2008-NMCA-049, ¶ 8, 143 N.M. 792, 1 182 P.3d 775. 2 I. BACKGROUND 3 {3} Given the State’s failure to rebut or c ontest any of the facts as set forth in 4 Defendant’s brief-in-chief, werely primarily on his factual recitation in providing the 5 background necessary to our disposition of this case. State v. Hernandez , 116 N.M. 6 562, 563, 865 P.2d 1206, 1207 (Ct. App. 1993) (recognizi ng that unchallenged facts 7 appearing in the docketing statement will be accepted as the facts of the case). 8 {4} Defendant was charged with assault w ith intent to commit a violent felony 9 based upon his alleged threats to the victim , Rachel Hern. Defendant’s ex-girlfriend, 10 Jessica, was romantically involved with Rachel ’s son, Adrian Hern. Jessica lived with 11 Rachel and Adrian. Defendant was upset that Jessica was in a relationship with 12 Adrian and living with Adrian and Rachel. 13 {5} On February 15, 2010, Defendant and Adrian had a fist-fight, and the next 14 morning, February 16, 2010, Defendant came to Rachel’s house looking for Jessica. 15 Rachel told Defendant that neither Jessi ca nor Adrian were at home and invited 16 Defendant into the house. Defendant was upset and told Rachel that he was going to 17 kill Adrian and himself. Defendant menti oned that he had a gun in his car, which was 18 at the far end of the driveway on the other side of a fence. 194 {6} Rachel testified that none of Defendant’s threats were directed at her. She 1 testified that she was afraid of Defendant because he seemed angry, but she also 2 testified that she invited him to return later that day. 3 {7} Later, the same day after returning from errands, Rach el checked her post office 4 box where she received mail. She then checked the mailbox located on the highway 5 outside the home she shared with Adrian. In that mailbox, Rachel found a letter. The 6 letter had no postage. It wa s addressed to “HERN.” It contained cut-out phrases, 7 including: “Don’t be afraid to [d]ie[,] you ’re next[,] and I [h]ate you.” There was 8 evidence that Defendant had previously written letters to Jessica and Adrian that were 9 addressed to this same mailbox on th e highway, but with proper postage. 10 {8} At trial, Rachel testified that she was stunned and afraid when she received the 11 letter and believed it wa s directed at her. She contacted the police and brought the 12 letter to the station with her. Defendant was subsequently charged in this case. 13 II. DISCUSSION 14 Sufficiency of the Evidence 15 {9} Defendant claims that there was insuffi cient evidence to support his conviction 16 for assault with intent to commit a violent felony (murder). In analyzing a sufficiency 17 challenge on appeal, we view the evidence inthe light most favorable to the verdict, 18 resolving all conflicts and indulging all in ferences in favor of the verdict. State v. 195 Apodaca , 118 N.M. 762, 765-66, 887 P.2d 756, 759- 60 (1994). We do not weigh the 1 evidence or substitute our judgment for that of the fact finder. State v. Mora , 1997- 2 NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds by 3 Kersey v. Hatch , 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. Moreover, this 4 Court cannot consider the merit of evidence that may have supporte d a different result. 5 State v. Kersey , 120 N.M. 517, 520, 903 P.2d 828, 831 (1995). 6 {10} The crime of assault with intent tocommit a violent felony is defined as 7 “[a]ssault . . . with intent to kill or commit any murder, mayhem, criminal sexual 8 penetration in the first, sec ond[,] or third degree, robberyor burglary.” Section 30-3- 9 3. In this case, the State’s theory was that Defendant intended to kill Rachel. “[T]he 10 controlling question is whether [the defendant] intended to commit murder . . . against 11 [the alleged victim].” State v. Arrendondo , 2012-NMSC-013, ¶ 18, 278 P.3d 517; see 12 State v. Highfield, 113 N.M. 606, 609, 830 P.2d 158, 161 (Ct. App. 1992) (stating that 13 an essential element of the crime of assault with intent to commit a violent felony 14 (murder) is the intent to murder the person assaulted). Moreover, it is essential that 15 Defendant intended to kill the person assaulted—Rachel—not someone else, such as 16 Adrian. See Arrendondo , 2012-NMSC-013 , ¶ 21. 17 {11} Defendant claims that the evidence show s that (1) all of Defendant’s threats 18 were targeted at Adrian, not Rachel; (2 ) none of Defendant’s actions could be 196 considered sufficiently threatening to constitu te assault with intent to commit a violent 1 felony (murder) with Rachel as the victim ; and (3) there was not enough evidence to 2 establish beyond a reasonable doubt that De fendant intended to murder Rachel. See 3 § 30-3-3. We agree. 4 {12} Initially, we note that, even though Defendant makes a persuasive argument that 5 the jury instructions were so defective as to constitute fundamental reversible error, 6 we consider the instructions given to the jury to determine if there is sufficient 7 evidence to support his conviction. Arrendondo , 2012-NMSC-013, ¶¶ 18-22 8 (recognizing that the jury received erroneous instructions on the elements of assault 9 with intent to commit a violent felony, but for purposes of considering the defendant’s 10 sufficiency challenge, only considering wh ether the evidence was sufficient based 11 upon the instructions given to the jury). 12 {13} As to the essential elements of the crime of assault with intent to commit a 13 violent felony, the jury was instructed that the State must prove: 14 1) [D]efendant assaulted Rachel[.] 15 2) When [D]efendant assaulted Rachel . . .[,] it was with the intent to 16 kill Rachel[.] 17 3) A reasonable person in the samecircumstances as Rachel Hern 18 would have had the same belief[.] 197 {14} In instructing the jury on the crime of assault with intent to commit a violent 1 felony, the jury must also be instructedon the essential elements of the underlying 2 violent felony. See UJI 14-313 NMRA, Use Note 3 (stating that “[t]he essential 3 elements of the felony or felonies must also be given immediately following this 4 instruction”). In this case, the underlying felony was willful and deliberate murder, 5 and the jury was instructed that the State had to prove beyond a reasonable doubt that: 6 1) [D]efendant threatened to kill Rachel[.] 7 2) The killing[,] if it took place[,] would have been with the 8 deliberate intention to takeaway the life of Rachel[.] 9 Cf. UJI 14-201 NMRA (setting forth the essential elements for willful and deliberate 10 murder). The instruction varied from th e uniform jury instruction for this crime 11 because it failed to include language defining what is meant by intent to kill. See id. 12 (defining what is meant by “deliberate intention” for willful and deliberate murder). 13 {15} Finally, the uniform jury instructions require the jury to be instructed that 14 Defendant committed the requisite underlying assault by finding that he attempted to 15 commit a battery, or that Rachel was in fearthat Defendant was about “to intrude on 16 [her] bodily integrity or personal safety” by committing a battery. See UJI 14-313. 17 However, in this case, the jury was instru cted as to the meaning of assault in an 18 instruction that merely quotes the language of NMSA 1978, Section 30-3-1 (1963), 19 defining assault as: 208 A. [A]n attempt to commit a battery upon the person of another[.] 1 B. [A]ny unlawful act, threat[,] or menacing conduct which causes 2 another person to reasonably belie ve that he is in danger of 3 receiving an immediate battery[.] 4 C. [T]he use of insulting languagetoward another impugning his 5 honor, delicacy[,] or reputation. 6 {16} There is no evidence that Defendant ever tried to touch or apply force to Rachel. 7 There is no evidence that Rachel believed she was going to receive an immediate 8 battery from Defendant. Moreover, at the time of Defendant’s face-to-face interaction 9 with Rachel, there was no evidence that he even threatened her. Defendant did not 10 brandish a weapon, he made no moves toward her, and Rachel acknowledged that his 11 threats concerned Adrian. Rach el admitted that she did not even call the police after 12 Defendant left her home. Instead, Rachel invited Defendant to come back to her 13 house later in the day. As to the threats inthe letter, Defendant was not even present 14 when Rachel took the letter from the mailbox. It was directed to “HERN,” and it was 15 placed in a mailbox shared by Rachel and Adrian. 16 {17} Based upon the foregoing, we are not c onvinced that Defendant’s face-to-face 17 encounter with Rachel, coupled with the threatening language in the letter, is 18 sufficient for the jury to conclude, beyond a reasonable doubt, that Defendant 19 sufficiently assaulted, much less intended to kill, Rachel. Cf. Highfield, 113 N.M. at 20 608, 830 P.2d at 160 (recognizing that “Secti on 30-3-3 is directed toward conduct 219 which is motivated by an intention to eff ect another’s death”). Instead, Defendant’s 1 threats directed toward Adrian during hi s face-to-face interacti on with Rachel earlier 2 in the day support an interpretation of the letter as containing threats again directed 3 toward Adrian, not Rachel, despite Rachel’s testimony as to her belief that the letter 4 was directed at her. 5 {18} Given the lack of evidence that Defendant ever touched or attempted to touch 6 Rachel, and the lack of evidence that he ever directly threatened her with bodily harm, 7 the jury was required to speculate as to whether Defendant intended to kill Rachel 8 when he made these statements. “This it may not do.” State v. Malouff , 81 N.M. 619, 9 621, 471 P.2d 189, 191 (Ct. App. 1970) (reversing the defendant’s conviction for lack 10 of sufficient evidence because the jury w ould have had to engage in speculation in 11 order to convict and observi ng that, although this Court re views the evidence in the 12 light most favorable to conviction, that standard of review “does not replace the 13 requirements of proof”). 14 {19} Based upon the foregoing and noting the ab sence of argument to the contrary 15 by the State, we reverse Defendant’s convic tion for assault with intent to commit a 16 violent felony (murder) because there was insu fficient evidence that he intended to kill 17 Rachel. Based on our reversal, we do not address the remaining issues raised by 18 Defendant in his brief-in-chief. 1910 III. CONCLUSION 1 {20} Based upon the foregoing, we reverse De fendant’s convicti on for assault with 2 intent to commit a violent felony (murder) for lack of sufficient evidence and remand 3 to the district court for dismissal of th e charge and the discharge of Defendant. 4 {21} IT IS SO ORDERED. 5

____________________________________ 6 RODERICK T. KENNEDY, Chief Judge 7

WE CONCUR: 8

_________________________ 9 MICHAEL E. VIGIL, Judge 10

_________________________ 11 J. MILES HANISEE, Judge 12