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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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. A-1-CA-35716 4 ISMAEL HERNANDEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Lisa B. Riley, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 John Kloss, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Kathleen T. Baldridge, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Chief Judge. 192 {1} Defendant Ismael Hernandez was convictedof aggravated assault with a deadly 1 weapon against a household member, pursuant to NMSA 1978, Section 30-3-13(A)(1) 2 (1995), and aggravated battery with a d eadly weapon against a household member, 3 pursuant to NMSA 1978, Section 30-3- 16(C)(2) (2008, amended 2018). Defendant 4 challenges his convictions on two grounds. First, he argues that the jury was 5 improperly instructed on the deadly weapon element of both aggravated assault and 6 aggravated battery. Second, he contends that there was not sufficient evidence for 7 either of his convictions. We affirm. 8 BACKGROUND 9 {2} Because this is a memorandum opinion and the parties are familiar with the 10 facts, we set forth only the factual and procedural events that are required to place our 11 analysis in context. 12 {3} At Defendant’s trial, Lolita Chavez tes tified that she and Defendant had been 13 separated for three years but had been in a seventeen-year relationship and shared two 14 children together. On the evening of Oc tober 25, 2014, Defendant picked Chavez up 15 so they could spend the night together in Carlsbad, New Mexico with the hope of 16 reconciling. As they drove, Defendantbecame angry and upset with Chavez. 17 Defendant was drinking beer from a bottle and began to hit Chavez with the bottle, 18 striking her in the arm, back, and head. De fendant also produced a knife of some type 19 and threatened to stab Chavez if she answered her cell phone, which was ringing. 203 Eventually, Defendant stopped th e truck in an isolated area and, while brandishing the 1 knife, told Chavez he could kill and bury her, and no one would find her. Ultimately, 2 Defendant calmed down, and he and Chavez continued to the Cavern Inn where they 3 spent the night together. Chavez reported the in cident to the police five days later, on 4 October 30, 2014. 5 DISCUSSION 6 I. Jury Instructions 7 A. Standard of Review 8 {4} Defendant argues that his convictions mu st be reversed because the district 9 court did not use the New Mexico Uniform Jury Instructions (UJIs) for either 10 aggravated assault with a deadly weapon against a household member or aggravated 11 battery with a deadly weapon against a household member. Defendant concedes that 12 he did not object to the jury instructions attrial, and therefore, our review is for 13 fundamental error. “The standard of review we apply to jury instructions depends on 14 whether the issue has been preserved. If the error has b een preserved we review the 15 instructions for reversible error. If not, wereview for fundament al error. Under both 16 standards we seek to determine whether a reasonable juror would have been confused 17 or misdirected by the jury instruction.” State v. Benally , 2001-NMSC-033, ¶ 12, 131 18 N.M. 258, 34 P.3d 1134 (internal quotati on marks and citations omitted); see State v. 19 Sutphin , 2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72 (stating that 204 “fundamental error does not occur if the jurywas not instructed on an element not at 1 issue in the case” or if “there can be no dispute that the omitted element was 2 established”); see also State v. Samora , 2016-NMSC-031, ¶ 29, 387 P.3d 230 (“[W]e 3 need not conclude that there was fundame ntal error despite the court’s failure to 4 instruct on an essential element where the jury’s findings, in light of the undisputed 5 evidence in the case, necessarily establish that the omitted element was met beyond 6 a reasonable doubt.” (alteration, internal quotation marks, and citation omitted)). 7 B. Contents of the Jury Instructions 8 {5} Before turning to our analysis, we first set forth the instructions at issue that 9 were given at trial, as well as the standard UJIs, which were not. The essential 10 difference between the UJIs for aggravatedassault with a deadly weapon against a 11 household member and aggravated battery with a deadly weapon against a household 12 member and the jury instructions used here is that the UJIs integrate the definition of 13 a “deadly weapon” into the instruction on el ements of the offense, whereas in this 14 case, the district court provided that definition in a separate instruction. 15 {6} UJI 14-375 NMRA, aggravated assault with a deadly weapon against a 16 household member, provides in pertinent part: 17 For you to find the defendant guilty of aggravated assault by use 18 of a deadly weapon [as charged in Count __________ ] 1 , the state must 19 prove to your satisfaction beyond a reasonable doubt each of the 20 following elements of the crime: 215 . . . . 1 4. The defendant used a [ __________ ] 4[deadly weapon. The 2 defendant used a __________ ( name of object). A __________ ( name of 3 object) is a deadly weapon only if you find that a __________ ( name of 4 object), when used as a weapon, could cause death or great bodily 5 harm5 ] 6 ; 6

. . . . 7 USE NOTE 8

. . . . 9 4. Insert the name of the weapon. Use this alternative only if 10 the deadly weapon is specifically listed in NMSA 1978, Section 30-1- 11 12[(B) (1963)]. 12

. . . . 13 6. This alternative is given only if the object used is not 14 specifically listed in Section 30-1-12[(B)]. 15 In this case, however, instruction number three instructed the jury as follows: 16 For you to find . . . Defendant guilty of [a]ggravated [a]ssault by 17 use of a deadly weapon, as charged in Count 1, the State must prove to 18 your satisfaction beyond a reasonable doubt each of the following 19 elements of the crime: 20 1. . . . Defendant held a knife against Lolita Chavez[;] 21 2. The knife used against Lolita Chavez is a deadly weapon ; 22 3. [D]efendant used a knife in a manner that caused Lolita Chavez to 23 believe she was about to be cut or stabbed; 24 4. A reasonable person in the samecircumstances as Lolita Chavez 25 would have had the same belief; 266 5. Lolita Chavez was a household member of [D]efendant; 1 6. This happened in Eddy County Ne w Mexico on or about the 25th 2 day of October 2014. 3 (Emphasis added.) 4 {7} Likewise, UJI 14-392 NMRA, aggravated battery with a deadly weapon against 5 a household member, states in pertinent part as follows: 6 For you to find the defendant guilty of aggravated battery with a 7 deadly weapon against a household member [as charged in Count 8 ______], 1 the state must prove to yoursatisfaction beyond a reasonable 9 doubt each of the following elements of the crime: 10 1. The defendant touched or applied force to __________ 11 ( name of victim ) by __________ 2with a [ __________ ] 3 [deadly 12 weapon. The defendant used a __________ ( name of instrument or 13 object). A __________ ( name of instrument or object) is a deadly 14 weapon only if you find that a __________ ( name of object), when used 15 as a weapon, could cause death or great bodily harm4 ] 5 ; 16

. . . . 17 USE NOTE 18

. . . . 19 3. Insert the name of the weapon. Use this alternative only if 20 the deadly weapon is specifically listed in . . . Section 30-1-12[(B)]. 21

. . . . 22 5. This alternative is given only if the object used is not 23 specifically listed in Section 30-1-12[(B)]. 24 Instead of the above uniform instruction, the jury here was instructed as follows: 251 Compare this definitional jury instruc tion to Section 30-1-12(B), which defines 23 “deadly weapon” for criminal offenses: 24 “deadly weapon” means any firearm, wh ether loaded or unloaded; or any 25 weapon which is capable of produc ing death or great bodily harm, 26 including but not restricted to any types of daggers, brass knuckles, 27 7 For you to find . . . Defendant guilty of [a]ggravated [b]attery against a 1 household member by use of a deadly weapon, as charged in Count 2, 2 the State must prove to your satisfaction beyond a reasonable doubt each 3 of the following elements of the crime: 4 1. [D]efendant touched or applie d force to Lolita Chavez by hitting 5 her with a beer bottle; 6 2. The beer bottle was a deadly weapon ; 7 3. [D]efendant intended to injure Lolita Chavez; 8 4. Lolita Chavez was a household member of [D]efendant; 9 5. This happened in Eddy County Ne w Mexico on or about October 10 25th 2014. 11 (Emphasis added.) 12 {8} The district court provided a separatejury instruction titled, “Definition of 13 deadly weapon,” which states as follows: 14 “Deadly weapon” means any firearm, whether loaded or unloaded; or 15 any weapon which is capable of producing death or great bodily harm, 16 including but not restricted to any types of daggers, brass knuckles, 17 switchblade knives, bowie knives, poni ards, butcher knives, dirk knives 18 and all such weapons with which dangerous cuts can be given, or with 19 which dangerous thrusts can be inf licted, including swordcanes, and any 20 kind of sharp pointed canes, also slingshots, slung shots, bludgeons; or 21 any other weapons with which dangerous wounds can be inflicted[.] 1 22switchblade knives, bowie knives, poniards, butcher knives, dirk knives 16 and all such weapons withwhich dangerous cuts can be given, or with 17 which dangerous thrusts can be inf licted, including swordcanes, and any 18 kind of sharp pointed canes, also slingshots, slung shots, bludgeons; or 19 any other weapons with which dangerous wounds can be inflicted[.] 20
2We also note that, per the use notes, the instructions in this case also should 21 have included the definition for “great bodily harm.” They did not. 22 8 {9} In short, the jury instructions as give n did not track the language of our standard 1 UJIs. As noted, the UJIs antic ipate that findings regardi ng the use of deadly weapons 2 must be included as a part of the elements instructions. Further, the use notes for the 3 applicable UJIs state that, unless the objectused is specifically listed as a deadly 4 weapon in Section 30-1-12(B), the jury should be instructed that the object used is a 5 deadly weapon if it could cause death or great bodily harm when used as a weapon. 6 See UJI 14-375, use note 6; UJI 14-392, use note 5. 2 7 C. Analysis 8 {10} Having set forth the standard UJIs as we ll as the jury instructions given here, 9 we now turn to our analysis using a fundame ntal error review. “[I]t is the fundamental 10 right of a criminal defendant to have the jury determine whether each element of the 11 charged offense has been proved by the state beyond a reasonable doubt.” State v. 12 Nick R. , 2009-NMSC-050, ¶ 37, 147 N.M. 182, 218 P.3d 868 (internal quotation 13 marks and citation omitted). “[I]n an actual use [of a weapon] case involving an 14 unlisted weapon, the jury must find, among other elements, that an object was actually 159 used as a weapon and that it was capableof causing the wounds described in the 1 statute.” Id. ; see State v. Traeger , 2001-NMSC-022, ¶ 10, 130 N.M. 618, 29 P.3d 518 2 (“When an individual uses an item that is a deadly weapon as a matter of law, the jury 3 does not consider whether the weapon is a deadly weapon—it is presumed. However, 4 when the item is not specifically listed, it ha s been the longstanding rule of this [s]tate 5 to require a jury finding that the instrument used was a deadly weapon.”). 6 {11} Defendant argues that in his case, the ju ry was not required to find each element 7 of the charges against him beyond a reasonabl e doubt, due to the de fect in the “deadly 8 weapon” parts of the jury instructions. As he points out, the jury was instructed that 9 it must find beyond a reasonable doubt that “[ t]he knife used against Lolita Chavez 10 is a deadly weapon” and “[t]he beer bottle was a deadly weapon[.]” Defendant thus 11 contends that since the type of knife us ed and the beer bottle are not identified 12 specifically in the statute as deadly weapons, the jury instructions should have 13 included language requiring findings beyond a reasonable doubt about how the 14 weapons were used and whatdamage could be caused. 15 {12} “We review jury instructions to determine whether a reasonable juror would 16 have been confused or misdirected by th e jury instructions. We consider jury 17 instructions as a whole, not singly.” State v. Montoya , 2003-NMSC-004, ¶ 23, 133 18 N.M. 84, 61 P.3d 793 (citation omitted). The district court instructed the jurors that 1910 they must consider the instru ctions as a whole, and “must not pick out one instruction 1 or parts of an instruction and disregard others.” 2 {13} As we have noted, the district court gave instruction number six, “[d]efinition 3 of deadly weapon,” which tracked almost exactly the language of Section 30-1-12(B). 4 In addition to a list of per se weapons, it also include d the language “any weapon 5 which is capable of producing death or great bodily harm,” which is nearly identical 6 to the language anticipated by the use notes of the UJIs. “[I]n a fundamental error 7 analysis jury instructions should be consid ered as a whole and a failure to include an 8 essential element in the elements section may be corrected by subsequent proper 9 instructions that adequately address[] the omitted element.” State v. Cunningham , 10 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176. 11 {14} Defendant argues that the jurors were “i nstructed that the knife and beer bottle 12 were deadly weapons without asking the jury to determine whether they were, in fact, 13 deadly weapons and used as deadly weapons.” We disagree with Defendant’s 14 characterization. The instructions do not use the per se language, which would ask the 15 jury to determine only that “[D]efendant used a [beer bottle/knife].” See UJI 14-375, 16 use note 4; see also UJI 14-392, use note 3. Instead, the instructions in this case 17 required the jury to find that a beer bottle/knife is a “deadly weapon.” In other words, 18 the State still had to prove beyond a reasonable doubt that the knife and the beer bottle 19 were deadly weapons. The defect here was the separate definiti on of a deadly weapon, 2011 not the State’s obligation to prove the elem ents or the jury’s obligation to find that 1 those elements were proven. 2 {15} In our view, the district court’s jury in structions sufficiently alerted the jurors 3 that they must decide beyond a reasonable doubt whether the objects were deadly 4 weapons. We note as well that the prosecution asked the jury multiple times to 5 consider the issue. In closing argument, th e prosecutor said that the jury needed to 6 make findings about whether the beer bo ttle or knife were deadly weapons. For 7 example, the prosecutor argued, “One of the findings that you have to make is whether 8 or not that beer bottle is a deadly weapon. You’ve been given the definition of what 9 a deadly weapon is. Could being hit with a beer bottle cause injuries to somebody? 10 That’s a determination that you have to make.” The prosecutor made similar 11 arguments regarding the knife at issue in th e assault. There is no indication that the 12 jurors were at all confused about the instru ctions they were given in this case. Unlike 13 Samora , 2016-NMSC-031, ¶ 32, in which the Court noted there was obvious juror 14 confusion based on the questions asked during the trial, there is no such evidence here. 15 The same definition of “deadlyweapon” applied to both o ffenses, and that definition 16 is within the common understanding of what a deadly weapon is. Cf. State v. Barber , 17 2004-NMSC-019, ¶ 22, 135 N.M. 621, 92 P.3d 633 (noting, where the definition of 18 “possession” was at issue, that “possession” has a technical legal definition that might 19 not be in keeping with a layman’s understanding). 2012 {16} We do not disagree with Defendant that the district court should have provided 1 the jury in Defendant’s case with the prope r UJIs. Indeed, we have previously said: 2 When a uniform jury instruction exists, that instruction must be 3 used without substantive modification. Failure to use a uniform jury 4 instruction, however, does not n ecessarily rise to the level of 5 fundamental error. Instead, a jury in struction is proper, and nothing more 6 is required, if it fairly and accurate ly presents the law. For fundamental 7 error to exist, the instruction give n must differ materially from the 8 uniform jury instruction, omit essential elements, or be so confusing and 9 incomprehensible that a court cannot be certain that the jury found the 10 essential elements under the facts of the case. 11 State v. Caldwell , 2008-NMCA-049, ¶ 24, 143 N.M . 792, 182 P.3d 775 (alteration, 12 internal quotation marks, and citations omitted). Nonetheless, and though not ideal, 13 the definitional instruction did track both the UJI language regarding use and purpose 14 of the weapon and the statutory definition of a deadly weapon. We conclude that the 15 jury instructions given in this case wereadequate and did not constitute fundamental 16

error. 17 II. Sufficiency of the Evidence 18 {17} “The test for sufficiency of the evid ence is whether substantial evidence of 19 either a direct or circumstantial nature exists to support a verdict of guilty beyond a 20 reasonable doubt with respect to every element essential to a conviction.” State v. 21 Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and 22 citation omitted). The reviewing court “v iew[s] the evidence in the light most 23 favorable to the guilty verdict, indulging all reasonable inferences and resolving all 2413 conflicts in the evidence in favor of the verdict.” Cunningham , 2000-NMSC-009, 1 ¶ 26. We disregard all evidence and inferences that support a different result. See State 2 v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 3 {18} “Jury instructions become the law of the case against whic h the sufficiency of 4 the evidence is to be measured.” State v. Smith , 1986-NMCA-089, ¶ 7, 104 N.M. 729, 5 726 P.2d 883. Therefore, with respect to the aggravated assault with a deadly weapon 6 against a household member charge, the State was required to prove beyond a 7 reasonable doubt that Defendant held a kn ife against Chavez, that the knife used 8 against Chavez is a deadly weapon, that Defendant useda knife in a manner that 9 caused Chavez to believe she was about to becut or stabbed, that a reasonable person 10 in the same circumstances as Chavez w ould have had the same belief, and that 11 Chavez was a household member of Defendant. See § 30-3-13; UJI 14-375. 12 {19} With respect to the aggravated battery with a deadly weapon against a 13 household member charge, the State was required to prove beyond a reasonable doubt 14 that Defendant touched or applied force to Chavez by hitting her with a beer bottle, 15 the beer bottle was a deadly weapon, De fendant intended to injure Chavez, and 16 Chavez was a household member of Defendant. See § 30-3-16; UJI 14-392. 17 {20} In order to prove the above elements, the State presented eyewitness testimony 18 from Chavez that supported each of the elements. Cf. State v. Salas , 1999-NMCA19 099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder to 2014 resolve any conflict in the testimony of the witnesses and to determine where the 1 weight and credibility lie). We acknowledge that the evidence the State presented 2 regarding the knife used in the aggravated assault is sparse. The State never admitted 3 the knife as an exhibit or presented it to the jury, and the only evidence describing the 4 knife came from Chavez’s testimony that it wa s “not a little pocket knife; it was a big 5 knife.” The district court asked further questions of Chavez, and it appears Chavez 6 indicated the approximate length of the knife with her hands although the estimated 7 length is not part of the record. Notwithst anding this relatively vague description of 8 the knife, we conclude that the evidence pr esented was sufficient to support the jury’s 9 finding that it was a deadly weapon. In other words, it was reasonable for the jury to 10 determine that the knife fell within the statutory definition provided in jury instruction 11 number six, that it was a “weapon[] with whic h dangerous cuts can be given, or with 12 which dangerous thrusts can be inflicted . . . or any other weapons with which 13 dangerous wounds can be inflicted[.]” See § 30-1-12(B). 14 {21} As further support that there was insuffi cient evidence to convict him of either 15 charge, Defendant contends that the State’ s primary witness, Chavez, was untruthful. 16 Defendant also directs our attention to poten tial flaws in the police investigation of the 17 case, such as the lack of weapon, crime scene documentation, or evidence that 18 Defendant was in Carlsbad on the relevant date. Defendant also argues that Chavez’s 19 nephew should have been a suspect. As not ed above, however, we view the evidence 2015 in the light most favorable to the verd ict and disregard c ontrary evidence and 1 inferences. 2 {22} Reviewing the sufficiency of the evidence challenges, and viewing the evidence 3 in the light must favorable to the verdic t, we conclude that the State presented 4 sufficient evidence to support Defendant’s convictions. 5 CONCLUSION 6 {23} For the foregoing reasons, we affirm Defendant’s convictions. 7 {24} IT IS SO ORDERED. 8

__________________________________ 9 LINDA M. VANZI, Chief Judge 10

WE CONCUR: 11

_________________________________ 12 M. MONICA ZAMORA, Judge 13

_________________________________ 14 EMIL J. KIEHNE, Judge 15