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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-35266 4 TAMMY LYNN SANCHEZ TAFOYA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 7 James L. Sanchez, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Jane A. Bernstein, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 J.K. Theodosia Johnson, Assi stant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Chief Judge. 192 {1} Defendant Tammy Lynn Sanc hez Tafoya fatally stabbed her former boyfriend, 1 Keith Miller, during an altercation in which they both wielded knives. Following a 2 three-day jury trial, Defe ndant was convicted of dueling and second degree murder. 3 Defendant appeals both convictions, arguing that the jury instruction on dueling 4 created fundamental error by (1) misstati ng the law on dueling, and (2) tainting the 5 other instructions and therefore confusing th e jury regarding murder, self defense, and 6 sufficient provocation. We reverse the dueli ng conviction but affirm the second degree 7 murder conviction. 8 {2} Because this is a memorandum opinion and the parties are familiar with the 9 facts and procedural history of the case, it is unnecessary for us to repeat them here, 10 except as required for our analysis. 11 DISCUSSION 12 Standard of Review 13 {3} The district court’s instructions to th e jury on dueling and sufficient provocation 14 form the basis of Defendant’s issues on appeal. Defendant first argues that the dueling 15 instruction misstated the law and that there was insufficient evidence of dueling. She 16 also contends that the incorrect instru ction on dueling coupled with the deficient 17 instruction on sufficient provocation created jury confusion. “The standard of review 18 we apply to jury instructions depends on whether the issue has been preserved.” State 19 v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. “If the error has been 203 preserved we review the instructions for re versible error[, and i] f not, we review for 1 fundamental error. Id. (citation omitted). “Under both standards we seek to determine 2 whether a reasonable juror would have b een confused or misdirected by the jury 3 instruction.” Id. (internal quotation marks and citation omitted). “[J]uror confusion or 4 misdirection may stem not only from instructions that are facially contradictory or 5 ambiguous, but from instructions which, through omission or misstatement, fail to 6 provide the juror with an accuraterendition of the relevant law.” Id. 7 {4} Defendant agrees that her counsel did not object to the dueling instruction at 8 trial. Because any objection to the instruc tion was not preserved below and is being 9 raised for the first time on appeal, we revi ew for fundamental error. “Error that is 10 fundamental must be such error as goes to the foundation or basis of a defendant’s 11 rights or must go to the foundation of th e case or take from the defendant a right 12 which was essential to his defense and which no court c ould or ought to permit him 13 to waive.” State v. Cunningham , 2000-NMSC-009, ¶ 13, 128 N.M. 711, 998 P.2d 176 14 (internal quotation marks and citation omitted). “Fundamental error only applies in 15 exceptional circumstances when guilt is so doubtful that it would shock the judicial 16 conscience to allow the conviction to stand.” Id. (internal quotation marks and citation 17 omitted). 18 The Jury Instruction on Dueling Misstated the Law 194 {5} The State concedes that the jury instruction on dueling was erroneous, there was 1 insufficient evidence of dueling, and theref ore, this Court should vacate Defendant’s 2 conviction on that charge. Although the State concedes this issue, we are not bound 3 to accept the State’s concession. See State v. Gross , 1982-NMCA-099, ¶¶ 4-5, 98 4 N.M. 309, 648 P.2d 348. We therefore briefly analyze Defendant’s dueling conviction. 5 NMSA 1978, Section 30-20-11 (1963) de fines “[d]ueling” as any person: 6 A. conveying by written or verbal me ssage a challenge to any other 7 person to fight a duel with any dead ly weapon, and whether or not such 8 duel ensues; 9 B. accepting a challenge from another person to fight a duel with any 10 deadly weapon, and whether or not such duel ensues; 11 C. engaging in or fighting a duel with any deadly weapon; or 12 D. aiding, encouraging or seconding either party to a duel and being 13 present at such duel when deadly weapons are used. 14 The statute does not define the term “due l.” However, this Court has previously 15 defined a “duel” as “a combat with deadly weapons between two persons, fought 16 according to the terms of a precedent ag reement and under certain agreed and 17 prescribed rules.” State v. Romero , 1990-NMCA-114, ¶ 9, 111 N.M. 99, 801 P.2d 681 18 (internal quotation marks and citation omitted) . A duel is “always a result of design,” 19 rather than a “sudden quarrel,” and “has none of the elements of sudden heat and 20 passion.” Id. Duels are also generally governed by formal rules. Id. 21 {6} At trial, the jury was instructed as follows: 225 For you to find [D]efendant guilty of [d]ueling as charged in 1 Count 2, the [S]tate must prove to your satisfaction beyond a reasonable 2 doubt each of the following elements of the crime: 3 1. [D]efendant accepted a challenge from another person to 4 fight a duel with a deadly weapon; 5 and 6 2. This happened in New Mexico on or about the 8th day of 7 August 2013. 8 While the above instruction tracks somelanguage from Section 30-20-11, it fails to 9 include the requirement that a duel aris e from a precedent agreement and be governed 10 by formal rules. See Romero , 1990-NMCA-114, ¶ 9. Consequently, the instruction 11 misstated the law on dueling and necessarily constitutes fundamental error. In 12 addition, and as the State concedes, there was no evidence at trial of either a 13 preexisting agreement to fight nor were th ere any agreed-upon formal rules governing 14 the battle between Defendant and Miller. As a result, there was insufficient evidence 15 of dueling. We reverse and vacate Defendant’s conviction for dueling. 16 The Dueling Instruction Did Not Taint the Murder Instructions or Confuse the 17 Jury 18 A. The Murder Instructions Accura tely Reflected New Mexico Law 19 {7} Defendant argues that the insufficient instructions on dueling confused the jury 20 and “infected [their] deliberations on murder.” Specifically, she contends that the 21 dueling instruction confused the jury about the meaning of sufficient provocation and 22 its role in distinguishing second degree murder from manslaughter. As an initial 236 matter we note—and Defendant agrees—that the jury instructions for self defense and 1 murder were correct. Indeed, the jury was given form instructions for first degree 2 murder, second degree murder, and voluntary manslaughter. See UJI 14-201 NMRA 3 (first degree murder); UJI 14-210 NMRA (second degree murder); UJI 14-220 NMRA 4 (voluntary manslaughter). The jury was also given form definitions of great bodily 5 harm, sufficient provocati on, and self defense. See UJI 14-131 NMRA (great bodily 6 harm); UJI 14-222 NMRA (sufficient provocation); UJI 14-5190 NMRA (self 7 defense). Notwithstanding these form instru ctions, Defendant argues that, “when read 8 in conjunction with the incorrect dueling instruction, these instructions simply sowed 9 more confusion about the meaning of su fficient provocation for manslaughter.” We 10 disagree. 11 {8} “A jury instruction is pr oper, and nothing more is re quired, if it fairly and 12 accurately presents the law.” State v. Laney , 2003-NMCA-144, ¶ 38, 134 N.M. 648, 13 81 P.3d 591. “To determine whether the instruction is accurate on the law, we review 14 all of the jury instructions th at were given as a whole. Wealso review the instructions 15 as a whole to determine whether a reasonable juror would have been confused or 16 misdirected by the jury instructions.” Id. (alterations, internal quotation marks, and 17 citations omitted). 18 {9} The form instruction provided to the jury defined “sufficient provocation” as 19 “any action, conduct or circumstances which arouse anger, rage, fear, sudden 207 resentment, terror or other extreme emotions . The provocation must be such as would 1 affect the ability to reason and to cause a te mporary loss of self control in an ordinary 2 person of average disposition. The ‘provocation’ is not sufficient if an ordinary person 3 would have cooled off before acting.” This definitional language exactly tracks UJI 4 14-222. The jury was also given the form instruction for voluntary manslaughter 5 which provided, in part, that “[t]he di fference between sec ond degree murder and 6 voluntary manslaughter is sufficient provocation. . . . Sufficient provocation reduces 7 second degree murder to voluntary mans laughter.” NMSA 1978, Section 30-2-1(B) 8 (1994) defines “second degree murder” as follows: “Unless he is acting upon 9 sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who 10 kills another human being without lawful ju stification or excuse commits murder in 11 the second degree.” “Voluntary manslaughter consists of manslaughter committed 12 upon a sudden quarrel or in the heat of passion.” NMSA 1978, § 30-2-3(A) (1994). 13 {10} Defendant argues that because the suffi cient provocation instruction “omitted 14 the idea of a sudden quarrel orheat of passion[,]” the jury was never given “an 15 accurate rendition of the applicable law.” Defendant fails to explain why this is so and 16 provides no analysis to support her statemen t. This Court has no duty to review an 17 argument that is not adequately developed. Headley v. Morgan Mgmt. Corp. , 2005- 18 NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076. 198 {11} In any event, we conclude that the omission of “sudden quarre l” or action taken 1 in the “heat of passion” in the sufficient provocation instruction does not require 2 reversal in this case. The instruction that wa s given to the jury is not inconsistent with 3 its broader definition that sufficient provocation constitutes “any action, conduct or 4 circumstances which arouse anger, rage, fear, sudden resentment, terror or other 5 extreme emotions.” UJI 14-222. We also re ject Defendant’s implication that the 6 instruction given is deficient, as it mirrors the New Mexico uniform instruction, no 7 New Mexico law supports Defendant’s request for the instruction to include additional 8 language, and the New Mexico instructi on is broader than Defendant’s desired 9 language. Defendant’s asserti on that the jury was never given an accurate statement 10 of the applicable law thus fails. 11 B. The Jury’s Note Does Not Demonstr ate It Was Confused on an Important 12 Legal Standard 13 {12} Defendant argues there is evidence thatthe dueling instruction confused the 14 jury’s deliberations on murder. Her asserted evidence is a single note that the jury sent 15 to the district court during its deliberati on. The note asked, “Could we get further 16 elaboration on ‘sufficient provocation[?]’ ” The district court, after consulting with 171 We note that while Defendant claims the district court’s response “brushed the 16 jury’s question aside,” she has not directly argued that the district court’s response to 17 the jury’s question was improper. “The deci sion to issue additional jury instructions 18 generally lies within the sound di scretion of the trial court.” State v. Juan , 2010- 19 NMSC-041, ¶ 16, 148 N.M. 747, 242 P.3d 314. As Defendant does not challenge the 20 district court’s response to the jury, we do not further analyze the response. 21 9 counsel for both sides, responded, “Pl ease follow instruction number 14,” the 1 sufficient provocation instruction quoted above. 1 2 {13} On appeal, we conclude that there is no support for Defendant’s argument that 3 the jury was confused. The district court n eed only be concerned when a jury indicates 4 it is confused as to important legal standard s in the case and the general instruction did 5 not provide the legal information needed. In other words, “[w]hen a jury indicates 6 through its queries that it is confused as to important legal standards in a case, 7 particularly where there is an apparent basi s for the confusion, it is plain error for the 8 district court not to clarify that confus ion. Where a jury shows confusion about a 9 central aspect of applicablelaw, and the general instruc tion did not provide the legal 10 information needed, reversible error occurs when the court does not respond to the 11 jury’s note.” Juan , 2010-NMSC-041, ¶ 16 (alteration, internal quotation marks, and 12 citations omitted) . 13 {14} The mere fact that the jury in this case sent a note regarding the sufficient 14 provocation instruction is not evidence that they were fundamentally confused by the 15 dueling instruction. The question from the jury did not demonstrate it was 1610 misapplying the legal definition of sufficien t provocation in its murder deliberations, 1 but rather, that it was seeking additional in formation regarding the concept than was 2 provided in the standard legal definition. Most importan tly, the note does not refer to 3 the erroneous dueling instruction or indicate it was applying that instruction to its 4 murder deliberations. Defendant cites no case law, from New Mexico or elsewhere, 5 indicating that a jury request for elaborati on on an otherwise correct instruction of the 6 law indicates evidence of confusion that w ould taint the verdict, and we decline to 7 view it as such. Defendant has failed todemonstrate any error in the murder 8 instructions that would go to the foundation of her rights or of the murder case. See 9 Cunningham , 2000-NMSC-009, ¶ 13. We affirm Defendant’s murder conviction. 10 CONCLUSION 11 {15} Defendant’s conviction for dueling is reversed and vacated. We affirm 12 Defendant’s conviction for second degree murder. 13 {16} IT IS SO ORDERED. 14

__________________________________ 15 LINDA M. VANZI, Chief Judge 16

WE CONCUR: 1711 _________________________________ 1 J. MILES HANISEE, Judge 2

_________________________________ 3 JULIE J. VARGAS, Judge 4