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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 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. 33,592 4 ANTOINE BRIGHAM, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Stephen K. Quinn, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Jacqueline R. Medina, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Santa Fe, NM 15 Steven J. Forsberg, Assistant Public Defender 16 Albuquerque, NM 17 for Appellant 18 MEMORANDUM OPINION 19 GARCIA, Judge. 202 {1} Defendant was convicted of aggravated battery with a deadly weapon, pursuant 1 to NMSA 1978, Section 30-3-5(C) (1969), and resisting, evading or obstructing an 2 officer, contrary to NMSA 1978, S ection 30-22-1 (1981), following a domestic 3 dispute that became violent and left the victim with multiple stab wounds. We 4 conclude that the district court committe d reversible error in denying Defendant’s 5 request for the stand your ground instruction, UJI 14-5190 NMRA. We therefore 6 reverse and remand on the charge of aggrav ated battery with a deadly weapon and 7 affirm Defendant’s conviction for resisting, evading or obstructing an officer as there 8 was sufficient evidence to support the jury’s verdict in that regard. 9 BACKGROUND 10 {2} This case arises from a violent altercation between Defendant and the victim 11 (Victim), after which both men claimed tobe defending themselves from an initial 12 attack by the other. Victim and Defendant shared a rented residence but Victim was 13 the sole party on the lease, and the romantic relationship between the two had recently 14 ended. Defendant had been arre sted prior to the altercati on giving rise to the charges 15 in this case and was subject toa “no contact order” with regard to Victim. The specific 16 provisions of this no contact order do not appear in the record before us. 17 {3} At trial, Victim and De fendant gave conflicting acc ounts of the altercation. 18 Victim testified to the following: On the evening of October 25, 2011, he opened the 193 front door on his way to work to find Defendant who “had just been released.” Victim 1 allowed Defendant in to gather his belongi ngs and told him thathe could stay the 2 night but he had to depart the next morni ng. When Victim returned from work on the 3 morning of October 26, Defendant was still present in the home. Victim offered to 4 drive Defendant to a shelter. Defendant became “upset” on the drive and then refused 5 to stay at the shelter. While returning to the residence, Victim threatened to call the 6 police and Defendant fled the vehicle. Thatevening, Victim went to work. When he 7 returned on the morning of October 27, hesaw evidence that Defendant had been in 8 the house. Victim discovered Defendant in the basement and then returned upstairs 9 to call 911 to have him removed from the home. After finishing his call with 911, 10 Victim testified that Defendant stabbed him twice in the back suddenly. There was a 11 struggle for the knife in which both men fell into an end table, smashing it. Both men 12 stood up and Defendant stabbed Victim again in his right shoulder. Victim tossed 13 Defendant into the dining room area and th en attempted to di sarm him. Defendant 14 stabbed Victim again in the left side. Whilereceiving several lacerations to his left 15 hand in the process, Victim grabbed the knife away from Defendant. Defendant 16 punched Victim twice in the face and then “took off running.” Victim went to the 17 front yard and laid down so that police could see him. 184 {4} On cross-examination, Victim, a memb er of the United States Air Force, 1 testified that he had told pe ople that Defendant was his cous in. Victim further testified 2 that Defendant wanted to tell their friends about their personal relationship, which 3 made Victim upset. 4 {5} Defendant testified to the following events as part of his defense: On October 5 27, he was in the kitchen getting someth ing to eat when heheard the door open. 6 Defendant went down to the basement wh ere he had put an air mattress and was 7 planning to stay until he left for Texas the next day. Vi ctim came down the steps and 8 eventually saw Defendant in the basement. They both returned upstairs to the living 9 room where an argument ensued over whether Defendant was serious about leaving, 10 what Victim had done with some money De fendant had left in a can, and whether 11 Victim could “put out” Defe ndant. Victim became “fairly upset” and started swearing 12 at Defendant and told him to get out but Defendant refused. Victim then went into the 13 kitchen and returned with a knife. Vic tim paced with the knife and threatened 14 Defendant. Defendant and Vic tim struggled over the knife, falling onto the side table. 15 Defendant fell on top of Victim and retrieved the knife thathad fallen out of Victim’s 16 hand. Defendant then testifie d to stabbing Victim in the back on his left side. 17 Defendant got off of Victim and backed up into the dining room. Victim hit Defendant 18 several times in the face and body and Defe ndant swung to protect himself. Victim 195 grabbed hold of the blade of the knife th at Defendant was s till holding and Defendant 1 released it. Defendant then ran out the sidedoor of the house. De fendant testified that 2 he later returned to the house and took a shower. After getting out of the shower, 3 Defendant testified that he heard noi ses outside the house and he saw someone 4 standing outside the house in a suit and tie. He thought it was a police officer. 5 Defendant then hid in the attic “because of the altercation” between Defendant and 6 Victim. 7 {6} The State called several police officer s as witnesses. Sergeant Roger Dial 8 testified that he responded to Victim’s 911 call. He explained that the police left the 9 house secured after processing the scene butlater a neighbor called police to say an 10 individual matching Defendant ’s description was seen going through a window into 11 the house. Sergeant Max Stansell testified to knocking on the door to Victim’s house 12 for at least ten minutes and announcing “Po lice Department, come to the door” several 13 times. The officers finally entered the house and it appeared to them that someone had 14 gone into the attic, so they yelled up through the door that the Police Department was 15 there and anyone up there should come down. Defendant did not respond. The officers 16 then used a tactical mirror to look into the attic, and not seeing anyone close by, they 17 used a chainsaw to widen the entry hole. Sergeant Dial and another officer gained 18 entrance to the attic and eventually saw a person hiding under the insulation. The 196 officers called out to Defendant and he complied with their request to come forward. 1 Defendant was then handcuffe d and led out of the attic. Defendant was charged with 2 attempted first degree murder, aggravated a ssault with a deadly weapon, resisting or 3 evading arrest, tampering with evidence, and first degree kidnapping. 4 {7} Prior to trial, the State filed a mo tion to exclude the introduction of any 5 evidence regarding the Uniform Code of M ilitary Justice, Air Force Punitive Policies, 6 any testimony regarding an X-Tube account, possibly containing sexual or 7 pornographic video(s), internet postings by Vi ctim, or any sexual text messages. The 8 district court ruled that the evidence was not relevant to the events of October 27, 9 2011. The district court did allow questions about Victim’s relationship, including 10 fights or threats made by Defendant with a knife and threats by Defendant to disclose 11 Victim’s alleged homosexuality. 12 {8} After the close of evidence, Defendant re quested two jury instructions that were 13 denied by the district court. First, Defe ndant requested an instruction on attempted 14 second degree murder, UJI 14-210 NMRA, as a lesser included offense to attempted 15 first degree murder. The district court deni ed the requested instruction but gave the 16 State’s proposed attempted second degree murder instruction that did not include 17 language regarding sufficient provocation. Second, defense counsel requested the 18 standard self-defense instruction, UJ I 14-5183 NMRA, and also requested UJI 14- 197 5190, the stand your ground instruction. In re sponse, the State raised the legal issue 1 of whether Defendant had a “right to be wh ere he was” because he was in violation 2 of the no contact order. The State explaine d that the evidence regarding the no contact 3 order was never put before the jury becauseit was the result of a prior misdemeanor. 4 The court agreed to give UJI 14-5183, but ru led that Defendant was not entitled to UJI 5 14-5190 “given the fact that [Defendant] was barred from even coming in the house 6 and being in the presence of [Victim].” 7 {9} Defendant was ultimately convicted of onecount of aggravated battery with a 8 deadly weapon pursuant to Section 30-3-5(C) , and one count of resisting, evading or 9 obstructing an officer contrary to S ection 30-22-1. Defendant was acquitted of 10 attempted first degree murder, tampering w ith evidence, and the district court also 11 directed a verdict of acquittal for the charge of first degree kidnapping. 12 DISCUSSION 13 {10} Defendant raises four issues on appeal. First, Defendant argues that the district 14 court erred in denying his request to give UJI 14-5190, the stand your ground 15 instruction. Second, he contends that the court erred inrefusing to give UJI 14-210, 16 for attempted second degree murder, together with step-down instructions, attempted 17 voluntary manslaughter and misdemeanor aggravated battery. Third, Defendant 18 asserts that the court improperly excluded evidence of “other acts,” arguably showing 198 that Victim was the first aggressor. Fourth, Defendant argues that there was 1 insufficient evidence to support his conviction for resisting or evading an officer. 2 {11} We conclude that the district court erred in denying Defendant ’s request to give 3 UJI 14-5190, the stand your ground instruction. In light of this determination, it is 4 unnecessary to address Defendant’s second and third claims of error. Finally, we 5 conclude that there was sufficient evid ence to uphold Defendant’s conviction for 6 resisting or evading an officer. 7 I. Denial of Defendant’s Requested Stand Your Ground Jury Instruction 8 Was Error 9 {12} The district court’s rejection of Defe ndant’s requested jury instruction is 10 reviewed by this Court de novo “because it is closer to a determination of law than a 11 determination of fact.” State v. Lucero , 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 12 1143. “When considering a defe ndant’s requested instructi ons, [the appellate courts] 13 view the evidence in the light most favorable to the giving of the requested 14 instructions.” State v. Skippings , 2011-NMSC-021, ¶ 10, 150 N.M. 216, 258 P.3d 15 1008 (alteration, internal quot ation marks, and citation omitted). Furthermore, because 16 Defendant has a fundamental right to present his theory of defense to the jury when 17 it is supported by the evidence, an “adequate instruction on self[-]defense is the duty 18 of the courts where it finds support in the evidence.” State v. Baxendale , 19 2016-NMCA-048, ¶ 20, 370 P.3d 813 (alterati on, internal quotation marks, and 209 citation omitted). “The test is not how the judge would weigh the self-defense 1 evidence as a fact[-]finder; the true test is whether any juror could be justified in 2 having a reasonable doubt about whether the accused acted in self-defense.” State v. 3 Guerra , 2012-NMSC-014, ¶ 14, 278 P.3d 1031. 4 {13} Here, Defendant requestedthat UJI 14-5190 be given to the jury. The jury 5 instruction states: “A person who is threatenedwith an attack need not retreat. In the 6 exercise of his right of self[-]defense, he may stand his ground and defend himself.” 7 UJI 14-5190. The district court determined that Defendant was not entitled to a stand 8 your ground instruction because, at the time of the altercation, he was subject to a no 9 contact order. However, this order was not entered into evidence or presented to the 10 jury. This Court is unable to review the re strictions or prohibitions contained in the 11 order. We assume that the district court took judicial notice of the no contact order as 12 initially the two cases against Defendant had been joined and the district judge was 13 presiding over both cases. See Lopez v. LeMaster , 2003-NMSC-003, ¶ 32, 133 N.M. 14 59, 61 P.3d 185 (“We see no reason not to permit the court to take judicial notice of 15 its own records.”). Defendant, who was represented by the same attorney in both 16 cases, offered no objection to the existence or recognition of the no contact order by 17 the district court. As a result, we accept the undisputed factual proposition that, 1810 pursuant to the no contact order, Defendant was not in a place that he was lawfully 1 permitted to be when he was inside Vic tim’s house at the time of the altercation. 2 {14} Based upon viewing the evidence in the light most favorable to giving 3 Defendant’s requested stand your ground instruction, the State must provide us with 4 sufficient legal support for the district court’s denial of UJI 14-5190. “When a 5 defendant presents evidence of self-defense, the jury instructions must inform, ‘in no 6 uncertain terms,’ that the [s]tate bears the burden of disproving self-defense.” State 7 v. Southworth , 2002-NMCA-091, ¶ 10, 132 N.M . 615, 52 P.3d 987 (alteration, 8 internal quotation marks, and citations omitte d). When acting in self-defense, a person 9 may use no more force than is reasonably necessary to avoid the threatened harm. See 10 NMSA 1978, § 30-2-7 (1963) (justifiable homicide by citizen); see also UJI 14-5181 11 NMRA (self-defense; nondeadly force by the defendant). Furthermore, a person need 12 not retreat even though hecould do so safely. See State v. Horton , 1953-NMSC-044, 13 ¶ 9, 57 N.M. 257, 258 P.2d 371. Instead, “an individual normally has an unqualified 14 right to stand his ground against attack.” Southworth , 2002-NMCA-091, ¶ 11. One 15 potential exception to this “unqualified right” occurs when the rights of a trespasser 16 to stand his ground compete with the rights of the occupants to defend their home. Id. 17 In such instances, the competition between these two distinct interests requires 181 In Southworth, this Court adopted the reasoning of the Colorado Supreme 16 Court in People v. Toler , 9 P.3d 341, 352 (Colo. 2000), stating that, “trespassers have 17 the right to self-defense without having to retreat to the wall if an owner or occupant 18 of [the] property confronts the trespasser with unlawful force.” Southworth , 19 2002-NMCA-091, ¶ 14 (internal quotation marks and citation omitted). Southworth 20 directs that two jury instructions would be required in such cases. Id. ¶ 15. 21 11 “coordinat[ion] and balance.” 1 Id. As a result, whether the level of force that a 1 trespasser is met with by the legal occupant s is reasonable, and therefore, whether a 2 trespasser is entitled to stand his ground and use reasonable force in self-defense, is 3 a question that must be decided by the jury. See id. ¶ 15. Where the evidence properly 4 presents this factual question, the stand your ground instruction is required unless the 5 victim was justified in using potentially deadly force in the encounter. See id. Here, 6 neither version of the conflicting factual scen arios presented at trial appears to justify 7 the use of potentially deadly force by the fi rst aggressor, irrespective of whom the 8 fact-finder determined to be the first aggre ssor. Thus, we conclude that the State’s 9 argument—Defendant was not entitled to UJ I 14-5190 due to the no contact order and 10 his status as a trespasser—was error and wemust address the proper application of our 11 Southworthdecision to Defendant’s claim of self-defense. See 2002-NMCA-091, ¶¶ 12 14-19. 13 {15} We hold that there was sufficient ev idence to support giving the stand your 14 ground instruction pursuant to UJI 14-1590. A dditionally, we hold that the failure to 1512 do so was error because it did not allow the jury to properly address whether 1 Defendant acted in self-defense. Specifically, Defendant’s testimony that Victim was 2 the first aggressor with a knife, together with the testimony indicating that Defendant 3 had the opportunity to retreat from the hous e, provided sufficient evidence to support 4 the giving of a stand your ground instruction. See Southworth , 2002-NMCA-091, 5 ¶¶ 16-19. Under Defendant’s version of the attack, Victim initiated deadly force in a 6 circumstance that a jury could determine to be unjustified and unlawful. If the jury 7 agreed that Victim unlawfully acted as the first aggressor with the knife, then 8 Defendant, irrespective of the no contact order and his potential status as a trespasser, 9 would have been entitled to stand his ground and lawfully defend himself from the 10 attack. See id. ¶ 15. 11 {16} The State argues that the jury verdic t does not support Defendant’s contention 12 that Victim was the first aggressor and thathe was justified instanding his ground. If 13 the jury had accepted the testimony that Vic tim was the first aggressor with a knife, 14 the State argues that Defendant would have been acquitted “because [Defendant 15 would have been justified in his failure] to retreat.” This argument involves total 16 speculation by the State and fails to address the need for proper self-defense 17 instructions that are supported by the evidence. See State v. Samora , 2016-NMSC18 031, ¶ 29, 387 P.3d 230 (“[E]rror occurs when jury instructions fail to inform the 1913 jurors that the [s]tate has the burden of pr oving an essential element of a crime and we 1 are left with no way of knowing whether the jury found that element beyond a 2 reasonable doubt.” (internal quotation mark s and citations omitted)). “Where an 3 evidentiary basis for the instruction has b een laid, UJI 14-5190 informs jurors of what 4 is reasonable . . . and it is therefore criti cal to understanding the third element of a 5 general self-defense instruction.” State v. Anderson , 2016-NMCA-007, ¶ 14, 363 P.3d 6 306. As such, once the propriety of gi ving UJI 14-5190 has been determined, “the 7 failure to provide the no-retreat instructi on that informed a determination critical to 8 the case [is] akin to a missing elements in struction” and constitu tes reversible error. 9 Anderson, 2016-NMCA-007, ¶15; see id. ¶ 19 (addressing the stand your ground 10 instruction only in the context of a fundamental error analysis when sufficient 11 evidence was presented to support giving this instruction and it was mistakenly 12 omitted). We therefore must presume that th e jury failed to unanimously consider and 13 hold the State to its burden of proving that Defendant did not act in self-defense when 14 he stood his ground and failed to retreat from Victim’s house. As a result, the district 15 court erred in denying the re quested UJI 14-5190 on the basis of the no contact order. 16 We reverse Defendant’s conviction for a ggravated battery with a deadly weapon. 17 However, because the Victim’s testimony and version of the attack presented 18 sufficient evidence to support Defendant’s c onviction for this charge, we remand this 1914 matter to the district court for a new trial onthe charge of aggravated battery with a 1 deadly weapon. See State v. Cabezuela , 2011-NMSC-041, ¶ 1, 150 N.M. 654, 265 2 P.3d 705 (stating that double jeopardy does not bar a remand for a new trial where 3 sufficient evidence was presented to support the jury’s verdict). 4 II. Sufficient Evidence Exists to Support Defendant’s Conviction for Resisting 5 or Evading an Officer 6 {17} “[T]he test to determine the sufficien cy of evidence in New Mexico . . . is 7 whether substantial evidence of either a di rect or circumstantial nature exists to 8 support a verdict of guilt beyond a reasonable doubt with respect to every element 9 essential to a conviction.” State v. Sutphin , 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 10 P.2d 1314. “A reviewing court must view the evidence in the light most favorable to 11 the state, resolving all conflicts therei n and indulging all permissible inferences 12 therefrom in favor of the verdict.” Id. Because the jury is free to reject Defendant’s 13 version of the facts, contrary evidencesupporting acquittal does not provide a basis 14 for reversal. See State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 15 However, to determine the sufficiency of evidence, we are requi red to scrutinize the 16 evidence and supervise “the jury’s fact-fi nding function to ensure that, indeed, a 17 rational jury could have found beyond a reasonable doubt the essential facts required 18 for a conviction.” Id . (internal quotation marks and citation omitted). So long as there 19 is sufficient evidence to support the verdict, this Court does not re-weigh the evidence 2015 and may not substitute its judgment for that of the fact finder. State v. McGhee , 1 1985-NMSC-047, ¶ 21, 103 N.M. 100, 703 P.2d 877. 2 {18} Defendant was convicted of resisting, evading, or obstructing an officer 3 pursuant to Section 30-22-1. The jury wa s instructed that in order to convict 4 Defendant, it had to find beyond a reasonable doubt each of the following elements 5 of the crime: 6 1. Officer Max Stansell was a peace officer in the lawful discharge 7 of his duty; 8 2. [D]efendant knew Officer Stansell was a peace officer; 9 3. [D]efendant, with the knowledge that Officer Stansell was 10 attempting to apprehend or arre st [D]efendant, fled, attempted 11 to evade, or evaded Officer Stansell[, and]; 12 4. This happened in New Mexico on or about the 27th day of 13 October, 2011. 14 The jury was also instructed that the State must prove beyond a reasonable doubt that 15 Defendant acted intentionally when he committed the crime. 16 {19} As previously set forth in more de tail, the State presented evidence that 17 Defendant re-entered the residence after the altercation with Vic tim, and while inside, 18 he saw someone who he thought to be a police officer. Defendant then hid in the attic. 19 Sergeant Stansell testified to knocking on the door for at least ten minutes and 20 announcing “Police Department, come to the door” over and over with no response 2116 by Defendant. After the officers entered, they continued yelling their presence and 1 commanding that anyone in the attic should come down. Defendant admitted to 2 hearing at least one officer identify hims elf as the police when they knocked on the 3 attic door but he remained hidden under th e insulation until discovered and ordered 4 to come forward. This evid ence is sufficient to establis h each element of the offense, 5 including the requisite knowledge and intent. See State v. Caldwell , 2008-NMCA-049, 6 ¶ 34, 143 N.M. 792, 182 P.3d 775 (“Like knowle dge, a defendant’s intent is rarely 7 subject to direct proof and may be proved by circumstantial evidence.”). 8 CONCLUSION 9 {20} We reverse Defendant’s conviction for aggravated battery with a deadly 10 weapon and remand this chargeto the district court fo r a new trial. We affirm 11 Defendant’s conviction for resisting, evading or obstructing an officer. 12 {21} IT IS SO ORDERED. 13

__________________________________ 14 TIMOTHY L. GARCIA, Judge 15 WE CONCUR: 16

_______________________________ 17 JONATHAN B. SUTIN, Judge 18

_______________________________ 19 J. MILES HANISEE, Judge 20