IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2021-NMSC-003

Filing Date: November 30, 2020

No. S-1-SC-37039

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

ELEXUS JOLAINE GROVES

and PAUL ANTHONY GARCIA,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Brett R. Loveless, District Judge

Released for Publication January 26, 2021.

Hector H. Balderas, Attorney General

M. Victoria Wilson, Assistant Attorney General

Santa Fe, NM

for Appellant

Jeffrey J. Buckels

Albuquerque, NM

for Appellee Elexus Jolaine Groves

Harrison & Hart, LLC

Nicholas Thomas Hart

Albuquerque, NM

for Appellee Paul Garcia

OPINION

THOMSON, Justice.
{1} This opinion addresses New Mexico’s application of the felony murder statute, 

NMSA 1978, § 30-2-1(A)(2) (1994).1 More specifically, the present issue concerns a 

subrule of felony murder—the collateral felony rule that the predicate felony to a felony 

murder “must be independent of or collateral to the homicide.” State v. Harrison, 1977-

NMSC-038, ¶ 9, 90 N.M. 439, 564 P.2d 1321, superseded by court rule on other 

grounds as recognized in Tafoya v. Baca, 1985-NMSC-067, ¶ 17, 103 N.M. 56, 702 

P.2d 1001. The last time this Court addressed the collateral felony rule, we replaced an 

elements test with the felonious purpose test to determine whether a particular felony 

was “a collateral felony for purposes of felony murder.” State v. Marquez, 2016-NMSC025, ¶¶ 22-24, 376 P.3d 815. The test requires the felony that forms the basis of a 

charge of felony murder (the predicate felony) to have a felonious purpose different from 

that of “endangering the physical health of the victim.” Id. ¶¶ 24-25. Put another way, a 

felony cannot serve as a predicate felony if the defendant’s purpose in committing the 

felony is to injure or kill another. Id. ¶¶ 19, 23-25. 

{2} The sole issue before the Court in this interlocutory appeal is whether aggravated 

fleeing a law enforcement officer, NMSA 1978, § 30-22-1.1 (2003), may serve as a 

predicate felony to support a charge of felony murder. We conclude that aggravated 

fleeing a law enforcement officer does have an independent felonious purpose and, as 

we explain, may serve as a predicate felony so long as the requisite mens rea is also 

present. 

I. BACKGROUND 

{3} For purposes of this interlocutory appeal, the following facts are not disputed. 

Codefendants Elexus Groves and Paul Garcia (Defendants) stole a van from an 

Albuquerque business. Groves drove, and Garcia rode in the passenger seat. Rather 

than stopping when they realized that police were in pursuit, they fled. During the 

pursuit through residential neighborhoods, Groves drove in excess of the speed limit, at 

one point reaching a speed of 78 miles per hour (mph) in a 35 mph zone. Their flight 

from law enforcement ended when Defendants ran a stop sign and hit another car while 

driving at 68 mph. Two passengers in the car that Defendants hit died from injuries 

sustained in the collision, and the third passenger sustained injuries. Defendants fled 

from the scene on foot, stole a second vehicle, abandoned that vehicle soon afterwards, 

and were later apprehended. 

{4} The State charged each Defendant with (1) two counts of first-degree murder 

(felony murder), § 30-2-1(A)(2), or, in the alternative, two counts of homicide by vehicle 

(reckless driving), NMSA 1978, § 66-8-101(D)(2016) and (2) aggravated fleeing a law 

enforcement officer, § 30-22-1.1. Relevant to this appeal, the State proffered the crime 

of aggravated fleeing a law enforcement officer, a fourth-degree felony, as the predicate 

felony for felony murder. The Defendants moved the district court to dismiss the two 

counts of felony murder against each of them. They argued that aggravated fleeing a 

1The New Mexico felony murder statute “was enacted in 1907.” State v. Hines, 1967-NMSC-237, ¶¶ 9, 21, 

78 N.M. 471, 432 P.2d 827; see 1907 N.M. Laws, ch. 36, § 1 (“All murder . . . which is committed in the 

perpetration of or attempt to perpetrate any felony . . . shall be deemed murder in the first degree[.]”).
law enforcement officer cannot serve as a predicate felony for felony murder. The 

district court agreed and dismissed the first-degree murder charges. 

{5} The district court reasoned that “the felonious purpose [of aggravated fleeing a 

law enforcement officer] is flight which endangers the public” and therefore that the 

purpose of committing the felony is the same as the purpose of committing a homicide. 

(Emphasis added.) The district court concluded that aggravated fleeing a law 

enforcement officer may not serve as the predicate felony for a felony murder charge 

under Marquez. 

{6} The State sought interlocutory appeal of the district court’s order pursuant to 

NMSA 1978, Section 39-3-3(B)(1) (1972) and Rule 12-201(A)(1)(b) NMRA. We take this 

opportunity to correct the reasoning of the district court, and we conclude that the 

district court erred by dismissing the first-degree murder (felony murder) charges. As we 

explain, aggravated fleeing has a felonious purpose independent from that of seconddegree murder, and therefore the State may attempt to prove the charges of felony 

murder using aggravated fleeing a law enforcement officer as the predicate felony. In 

focusing on the felonious purpose test, we specifically note that the felonious purpose of 

a criminal act is distinct and separate from a defendant’s mens rea, and we caution 

practitioners and courts against merging the two.

II. DISCUSSION

{7} New Mexico’s murder statute broadly states that “[m]urder in the first degree is 

the killing of one human being by another without lawful justification or excuse, by any 

of the means with which death may be caused . . . in the commission of or attempt to 

commit any felony.” Section 30-2-1(A)(2) (emphasis added).2 This type of first-degree 

murder is often discussed using the term felony murder because it is based on, or 

predicated on, the commission of another felony.3 It is the Legislature’s prerogative to 

enumerate which felonies may serve as predicate felonies for felony murder, but so far 

the Legislature has chosen not to do so. See § 30-2-1(A)(2). Without further legislative 

guidance, this Court, through a number of cases, has attempted to discern what the 

Legislature meant by “any felony” because, despite the broad language of the statute,

this Court has “repeatedly emphasized that the Legislature intended to limit the 

application of [felony murder].” Marquez, 2016-NMSC-025, ¶ 14. 

{8} The purpose of the felony murder statute is to deter killings that occur in the 

course of grossly negligent or reckless conduct. See, e.g., State v. Campos, 1996-

NMSC-043, ¶ 16, 122 N.M. 148, 921 P.2d 1266. However, we must balance this 

statutory purpose with the need to preserve the mens rea requirements for each 

legislatively defined category, or degree, of murder. 

2Accord 1907 N.M. Laws, ch. 36, § 1 (“All murder which shall be perpetrated . . . by any kind of wilfull, 

deliberate and premeditated killing, or which is committed in the perpetration of or attempt to perpetrate 

any felony . . . shall be deemed murder in the first degree.” (emphasis added)).

3Throughout this opinion, we use the term predicate felony in reference to the “any felony” language in the 

felony murder statute. See § 30-2-1(A)(2).
{9} In this case, we consider which felonies are appropriate predicate felonies for 

felony murder, which are not, and how to know the difference. Our analysis centers on 

the three requirements that a felony must meet before it can be the predicate to felony 

murder: “(1) there must be a causal relationship between the felony and the homicide, 

(2) the felony must be independent of or collateral to the homicide, and (3) the felony 

must be inherently or foreseeably dangerous to human life.” Harrison, 1977-NMSC-038, 

¶ 9. We discuss each requirement.

A. Causal Relationship 

{10} The felony murder statute states that the death must occur “in the commission of

or attempt to commit any felony.” Section 30-2-1(A)(2) (emphasis added). However, just 

because a death occurred when and where a defendant committed a felony does not 

mean that commission of the felony caused the death. See Harrison, 1977-NMSC-038, 

¶ 10. There must be more linking the death to the felony than mere coincidence of time 

and place; “a more exact definition of causation is required.” Id. ¶¶ 10-11. Harrison

requires that “causation must be physical; causation consists of those acts of defendant 

or his accomplice initiating and leading to the homicide without an independent force 

intervening, even though defendant’s or his accomplice’s acts are unintentional or 

accidental. Causation . . . primarily deals with the actus reus of the crime.” Id. ¶ 11 

(footnote omitted). The law requires a fundamental nexus between the act of the felony 

and the death. That is, the actus reus of the felony must have an actual connection to 

the cause of the death.

{11} In this case, neither party disputes that there was a causal relationship between 

the felony and the deaths because Defendants’ felonious act of aggravated fleeing, 

without an intervening force, caused a car crash that resulted in both deaths. Therefore, 

the predicate felony in this case satisfies the first Harrison requirement.

B. Collateral Felony Rule: A Predicate Felony Must Be Independent of or 

Collateral to the Homicide 

{12} We now turn to the second, and perhaps most vexing, requirement, which is 

embodied by the collateral felony rule: the felony must be independent of or collateral to 

the homicide to be a predicate felony. As we will explain, we hold that the felonious 

purpose of aggravated fleeing is to escape apprehension by law enforcement. Because 

this felonious purpose is independent of the felonious purpose to injure or kill, 

aggravated fleeing a law enforcement officer may serve as a predicate felony for felony 

murder in certain circumstances, which we will further explain in the following section. 

{13} The discussion of the collateral felony rule compels us to look back at the original 

purpose of the felony murder statute itself. “The commonly stated purpose of the felonymurder rule was not to deter the underlying felony, but instead to deter negligent or 

accidental killings that may occur in the course of committing a felony.” Campos, 1996-

NMSC-043, ¶ 9. The policy underlying the felony murder rule is that it should be easier 

for the state to prove that a defendant intended to harm a victim when the defendant 

decided to engage in reckless conduct that put others (the victim) in harm’s way, 
resulting in a death from that conduct. See id. ¶¶ 9-10. Charging felony murder lowers 

the traditionally high threshold for proving a criminal defendant’s culpable state of mind 

when the crime was committed. This relieves the state of the burden to prove 

premeditation or malice. Id. ¶ 16.

{14} The primary concern with the application of the felony murder doctrine is that “the 

prosecution may be able to elevate improperly the vast majority of second-degree 

murders to first-degree murders by charging the underlying assaultive act as a predicate 

felony for the felony-murder doctrine.” Id. ¶ 19. Allowing the state to improperly elevate 

the vast majority of second-degree murders to first-degree murders “would eliminate the 

mens-rea requirement for murder in most homicide cases and circumvent the legislative 

gradation system for classes of homicides.” Id. ¶ 10. “Our responsibility is to make 

certain that, consistent with legislative intent, first-degree murder is reserved only for the 

most reprehensible murders that are deserving of the most serious punishment under 

New Mexico law.” Marquez, 2016-NMSC-025, ¶ 24. The proper application of the 

collateral felony rule attempts to assure the proper use and avoid the misuse of the 

felony murder doctrine. 

[T]he purpose of the collateral-felony limitation to the felony-murder 

doctrine is to further the legislative intent of holding certain second-degree 

murders to be more culpable when effected during the commission of a 

felony—thereby elevating them to first-degree murders—while maintaining 

the important distinction between the classes of second- and first-degree 

murders. 

Id. ¶ 15 (quoting Campos, 1996-NMSC-043, ¶ 22 (internal quotation marks omitted)).

{15} The collateral felony rule guards against misuse by requiring that a “predicate 

felony cannot be a lesser-included offense of second-degree murder.” Campos, 1996-

NMSC-043, ¶ 19. In other words, a predicate felony cannot be “the underlying 

assaultive act” that caused the death of the victim; the predicate felony must be a 

separate and independent crime from the homicide. See Campos v. Bravo, 2007-

NMSC-021, ¶ 10, 141 N.M. 801, 161 P.3d 846. The felony cannot be so similar in type 

to second-degree murder that if performed more aggressively, second-degree murder 

may have resulted. See id. For instance, the felony of aggravated battery cannot be a 

predicate felony because it is a lesser-included offense of second-degree murder. 

Marquez, 2016-NMSC-025, ¶ 18; Campos, 1996-NMSC-043, ¶ 23. In Marquez we put it 

this way: “The difference between aggravated battery and second-degree murder is . . . 

a difference of degree, not of kind[.]” 2016-NMSC-025, ¶ 18 (emphasis added). If the 

difference between the felony proffered as a predicate felony and second-degree 

murder is one of degree, it will fail the collateral felony rule. See id. If the difference 

between the felony proffered as a predicate felony and second-degree murder is one of 

kind, it is more likely to be an appropriate predicate felony under the collateral felony 

rule. See id.

{16} The collateral felony rule makes sense when we consider that “the vast majority 

of homicides are predicated on an initial felonious assault or battery of some kind.” 
Campos, 1996-NMSC-043, ¶ 10. But we know that even though assault or battery 

underlies almost every homicide, not every homicide is first-degree murder. Some 

homicides are committed with a less culpable mental state, and thus the Legislature has 

determined that such acts are more appropriately charged as second-degree murder or 

manslaughter. See § 30-2-1(B) (requiring for a conviction of second-degree murder that 

the defendant’s culpable mental state was “know[ing] that such acts create[d] a strong 

probability of death or great bodily harm”); see also NMSA 1978, § 30-2-3 (1994) 

(lacking a mens rea requirement for a conviction of manslaughter, which is “killing [] a 

human being without malice”). Indeed, variation in the defendant’s culpable mental state 

at the time of the killing explains why the Legislature has delineated the various degrees 

of homicide. The collateral felony rule prevents the felony murder doctrine from eroding 

the central distinction between first-degree and second-degree murder. See Bravo, 

2007-NMSC-021, ¶ 10. Without the collateral felony rule, the state would be permitted 

to elevate most second-degree murders to first-degree murders, as nearly all seconddegree murders involve some type of felonious, assaultive conduct. See id.; Marquez, 

2016-NMSC-025, ¶ 16 (“[A]ll or virtually all murders include the commission of some 

underlying felony in the nature of an assault or battery.”).

{17} In determining whether a particular felony is independent of and collateral to the 

homicide and whether a particular felony is a lesser-included offense of second-degree 

murder, this Court “look[s], not to the nature of the act, but rather to whether the 

legislature intended that a particular felony should be able to serve as a predicate to 

felony murder.” State v. Duffy, 1998-NMSC-014, ¶ 23, 126 N.M. 132, 967 P.2d 807, 

overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 & n. 6, 275 P.3d 

110; see also Campos, 1996-NMSC-043, ¶¶ 20, 22. Prior to Marquez, this Court 

employed a strict elements test to determine whether a particular felony was a lesserincluded offense of second-degree murder, which would disqualify its service as a 

predicate felony for felony murder. See Duffy, 1998-NMSC-014, ¶¶ 23-24 (concluding 

that “whether the legislature intended that a particular felony should be able to serve as 

a predicate to felony murder[,] . . . should be answered, in most circumstances, by 

application of the strict-elements test” to determine whether it would be possible to 

commit the homicide without also committing the felony). In Marquez, we announced 

and applied a new test—the felonious purpose test—to determine whether an 

underlying felony was actually a lesser-included offense of second-degree murder or 

whether it was an appropriate collateral felony that could support a charge of felony 

murder. Marquez, 2016-NMSC-025, ¶ 19. We discuss each test in turn before applying 

the felonious purpose test in this case.

1. The abandoned strict elements test

{18} Under the strict elements test, a proffered predicate felony would only fail the 

collateral felony rule “if all of the statutory elements of the lesser offense [were] 

completely embodied within the statutory elements of the greater offense 

[(second-degree murder)] such that it would be impossible ever to commit the greater 

offense without also committing the lesser offense.” Duffy, 1998-NMSC-014, ¶¶ 24-25 

(emphasis added) (internal quotation marks and citation omitted). If the felony statute in 

question provided for multiple means of committing the crime, the proper inquiry was 
“whether it [was] possible to commit second degree murder without committing some 

form of the dangerous felony.” Campos, 1996-NMSC-043, ¶ 23.

{19} The strict elements test allows nearly all felonies besides assault and battery to 

serve as predicate felonies for felony murder, contrary to the purpose of the collateral 

felony rule which was adopted to serve as a limitation on the use of felony murder. 

Marquez, 2016-NMSC-025, ¶¶ 15-16, 19. Consequently, the Marquez Court replaced 

the strict elements test with the felonious purpose test, stating, “For purposes of the 

collateral-felony rule, legislative intent is better reflected in an assessment of felonious 

purpose.” Id. Accordingly, we apply the felonious purpose test to determine whether 

aggravated fleeing is a proper predicate felony.

2. The felonious purpose test

{20} A crime’s objective is its felonious purpose, and if that purpose is something 

other than “to injure or kill,” the felony may serve as a predicate felony to felony murder. 

See id.¶ 19.

When a crime’s objective is to injure or kill, the crime cannot be said to be 

independent of a murder committed during the course of that crime. It is 

this aspect of a predicate felony, together with its inherent dangerousness 

and the presence of a second-degree murder mens rea, that elevates the 

homicide to first-degree murder.

Id. 

{21} Determining a crime’s felonious purpose does not ask what ultimate harm the 

Legislature was trying to prevent by enacting the criminal statute. This is where the 

confusion lies and where the district court erred. Ultimately, most criminal statutes are 

enacted to protect people from danger and preserve public safety. See e.g., State v. 

Vest, 2018-NMCA-060, ¶ 8, 428 P.3d 287 (observing that the felony of aggravated 

fleeing, § 30-22-1.1(A), and the misdemeanor of resisting, evading, or obstructing an 

officer, NMSA 1978, § 30-22-1 (1981), “evinc[e] legislative intent to more severely 

punish people who jeopardize the safety of others while fleeing from law enforcement 

officers”) cert. granted (S-1-SC-37210, Sept. 24, 2018). Instead, determining the 

felonious purpose of a crime requires a court to ascertain the general purpose or goal of 

a hypothetical offender in engaging in the felonious conduct. The answer to this 

question illuminates the underlying felonious purpose which the Legislature 

criminalized.

{22} The felonious purpose inquiry is “principally abstract in nature and is based 

largely on the Legislature’s definition of the crime.” Marquez, 2016-NMSC-025, ¶ 19. At 

this stage of the analysis, we look only at the language of the statute itself. We do not 

look at the facts of the case at hand or into the mind of a particular defendant. “[A] 

dangerous felony may only serve as a predicate to felony murder when the elements of 

any form of the predicate felony—looked at in the abstract—require a felonious purpose 

independent from the purpose of endangering the physical health of the victim.” Id. ¶ 24. 
We are determining whether the felony itself violates the collateral felony rule, not 

whether the felony violates the rule under the specific circumstances of a certain case.

{23} We demonstrated how the felonious purpose test works in Marquez by applying 

the test to the felonies of robbery, NMSA 1978, § 30-16-2 (1973), and criminal sexual 

penetration (CSP), NMSA 1978, § 30-9-11 (2009). Marquez, 2016-NMSC-026, ¶¶ 20-

22. The felonious purpose of a hypothetical defendant in committing the felony of 

robbery is the “theft of anything of value from the person of another.” Id. ¶ 22 (internal 

quotation marks and citation omitted). The felonious purpose of a hypothetical 

defendant in committing the felony of CSP is “imposition of sexual activity on those who 

are not willing participants.” Id. ¶ 20 (internal quotation marks and citation omitted). 

Though harm may be a consequence of both robbery and CSP, it is not the felonious 

purpose of either crime. Because their felonious purposes differ from that of the 

homicide, robbery and CSP are deemed independent of or collateral to the crime of 

homicide, and either may properly serve as a predicate felony. Marquez, 2016-NMSC025, ¶¶ 20, 22.

{24} The Marquez Court applied the felonious purpose test to determine whether 

shooting at or from a motor vehicle, NMSA 1978, § 30-3-8(B) (1993), is a proper 

predicate felony, or whether it violates the collateral felony rule. Marquez, 2016-NMSC025, ¶ 23. The Court reasoned that because the language of that statute requires a 

defendant to have acted with “reckless disregard” for another person’s safety, the 

felonious purpose of that felony is always “to injure the victim.” Id. ¶¶ 18, 23. The Court 

concluded that the felonious purpose of shooting at or from a motor vehicle is never 

independent of the purpose of second-degree murder because the Legislature 

embedded in the statute the felonious purpose of the hypothetical defendant acting with 

purposes of “great bodily harm to another person” or “injury to another person.” Id. ¶¶ 

24-25; see § 30-3-8(B).

{25} Central to the Marquez Court’s holding was the fact that the statute criminalizing 

shooting at or from a motor vehicle required the defendant to have acted with a culpable

mental state, which is to have been aware of and to have recklessly disregarded the 

welfare and safety of another person; that is, the statute required a form of injurious 

intent. See Marquez, 2016-NMSC-025, ¶ 23; see also § 30-3-8(B) (defining shooting at 

or from a motor vehicle as “willfully discharging a firearm at or from a motor vehicle with 

reckless disregard for the person of another” (emphasis added)). In contrast, the felony 

of aggravated fleeing a law enforcement officer does not define the crime in a way that 

allows courts to infer an injurious intent. See State v. Padilla, 2008-NMSC-006, ¶ 14, 

143 N.M. 310, 176 P.3d 299 (observing that “the Legislature created a more severe 

punishment, a felony, when a person ‘willfully and carelessly driv[es] [a] vehicle’” (first 

alteration in original)(quoting § 30-22-1.1(A)). 

{26} The aggravated fleeing statute does not require a defendant to possess a 

culpable mental state of intending to threaten the welfare of another person’s physical 

safety. The statute criminalizes willful and careless driving in a manner that endangers 

another person. It does not require that a defendant intend to endanger someone. See 

§ 30-22-1.1(A) (defining aggravated fleeing a law enforcement officer as “willfully and 
carelessly driving [a] vehicle in a manner that endangers the life of another person” 

(emphasis added)). The crime is elevated to a felony based on the severity of a 

defendant’s conduct when he or she intentionally flees the police. The intent element is 

pointed toward a defendant avoiding apprehension not endangering or harming 

someone. Thus, courts cannot properly infer that prosecuting a defendant charged with 

aggravated fleeing a law enforcement officer requires proof of a culpable mental state 

directed at threatening the physical safety of another, an injurious intent. 

{27} In an attempt to apply Marquez, the district court in this case stated that the 

felonious purpose of aggravated fleeing was to injure or kill the victim because the 

statute requires that the felony must be committed “in a manner that endangers the life 

of another person.” Section 30-22-1.1(A). In so doing, the district court effectively 

substituted the Legislature’s ultimate concern in enacting the statute (protecting public 

safety) for the felonious purpose in committing the offense. The district court improperly 

inferred an injurious purpose and culpable mental state from the culpable conduct 

described in the statute (fleeing law enforcement by driving “in a manner that 

endangers”). Id. Although that question was not before the Padilla Court, the opinion is 

nonetheless instructive. See 2008-NMSC-006, ¶¶ 15-16. The Court observed that the 

knowledge of wrongdoing required to establish 

aggravated fleeing is satisfied when the defendant flees a law 

enforcement officer with both: (a) the knowledge that the individual is a 

law enforcement officer, as designated by his [or her] uniform and marked 

vehicle, and (b) the knowledge that the law enforcement officer has 

signaled [the defendant] to stop, either by use of a visual or audible signal.

Id. ¶ 15. A defendant’s intent or culpable mental state is that of fleeing the officer to 

avoid apprehension, not causing harm to another.

{28} It is clear to us that aggravated fleeing a law enforcement officer has a felonious 

purpose independent of the felonious purpose of second-degree murder. The felonious 

purpose of the aggravated fleeing statute is to flee from law enforcement to avoid 

apprehension. See § 30-22-1.1(A) (“Aggravated fleeing a law enforcement officer 

consists of a person willfully and carelessly driving [a] vehicle in a manner that 

endangers the life of another person after being given a visual or audible signal to stop, 

whether by hand, voice, emergency light, flashing light, siren or other signal, by a 

uniformed law enforcement officer in an appropriately marked law enforcement vehicle 

in pursuit.” (emphasis added)). Because aggravated fleeing a law enforcement officer 

does not have the felonious purpose to injure or kill, this felony does not violate the 

collateral felony rule and therefore may serve as a predicate felony for felony murder if 

the defendant acted with the requisite mens rea, as we now explain.

C. Inherently or Foreseeably Dangerous to Human Life (Mens Rea 

Requirement)

{29} Although this issue is not directly before the Court in this appeal we observe that 

for a felony to be a proper predicate for felony murder, the defendant must have 
committed the felony under “inherently dangerous” circumstances, Harrison, 1977-

NMSC-038, ¶¶ 12, 14, 25, and the defendant must have known that his or her “acts 

create[d] a strong probability of death or great bodily harm.” Section 30-2-1(B) 

(providing the culpable mental state for second-degree murder); Duffy, 1998-NMSC014, ¶ 20 (explaining that the defendant must act with at least the requisite mens rea of 

second-degree murder). Unlike the collateral felony rule, this last requirement is not 

abstract in nature. Rather, it concerns a defendant’s actual mens rea when that 

particular defendant committed the crime. This is a relatively recent but paramount 

requirement of a predicate to felony murder. While the felonious purpose test is more 

comprehensive than the strict elements test, and certainly more demanding of 

consistency with the legislative objective, the felonious purpose requirement is still very 

permissive. In other words, many felonies subjected to the felonious purpose test, 

including aggravated fleeing a law enforcement officer, will qualify as predicates under 

the collateral felony rule, which makes the mens rea limitation on predicate felonies 

crucial to preventing overuse of the felony murder doctrine.

{30} When the felony murder doctrine originated at English common law, most 

felonies, including all murders, were punishable by death. Harrison, 1977-NMSC-038, ¶ 

9. England’s common law version of felony murder dictated that “any homicide 

committed during the perpetration or the attempted perpetration of a felony constituted 

felony murder” and was punishable by death. Id. “Since death also was the punishment 

for most felonies, it did not matter whether the defendant was put to death for 

committing the felony or for the homicide.” Id.

{31} In Harrison, we explained that although our felony murder statute persists today, 

we do not retain a presumption of mens rea to commit first-degree, willful and deliberate 

murder. Id. ¶ 12. Such a presumption is an entirely unsupportable “legal fiction” with one 

exception: If the underlying felony in a felony murder case is a first-degree felony, we 

presume that the defendant possesses the requisite mens rea for first-degree murder. 

Id. “This presumption is inappropriate today for lesser-degree felonies where moral, 

social, and penal considerations dictate that criminal liability should be imposed 

according to moral culpability.” Id. We concluded that if, in the commission or attempted 

commission of a second-, third-, or fourth-degree felony, a defendant also caused a 

death, we will not assume that the defendant had the requisite mens rea for first-degree 

murder. See id. (“[O]nly those [felonies] known to have a high probability of death may 

be utilized for a conviction of first-degree murder.”)

{32} In Harrison, we called this assessment the “inherently or foreseeably dangerous 

to human life test” and explained, “Assuming the actus reus condition is met, the mens 

rea of one who is committing a felony which is inherently or foreseeably dangerous to 

human life is sufficient to justify convicting a defendant of felony murder.” Id. “[I]n a 

felony murder charge, involving a collateral lesser-degree felony, that felony must be 

inherently dangerous or committed under circumstances that are inherently dangerous.” 

Id. ¶ 14. Whether a felony actually was inherently or foreseeably dangerous to human 

life is a question for the jury, and “both the nature of the felony and the circumstances 

surrounding its commission may be considered.” Id. ¶ 13.
{33} In Ortega we clarified the Harrison mens rea requirement, acknowledging that it 

should be harder than simply establishing causation for the state to convict defendants 

who do not truly have a culpable mental state. See. State v. Ortega, 1991-NMSC-084, ¶ 

25, 112 N.M. 554, 817 P.2d 1196, abrogated on other grounds by Kersey v. Hatch, 

2010-NMSC-020, ¶¶ 17-18, 148 N.M. 381, 237 P.3d 683 “[E]ven where the felony is a 

first degree felony or an inherently dangerous one of a lesser degree,” the Ortega Court 

questioned whether imputing mens rea based on “any presumption—either a conclusive 

presumption or a burden-shifting presumption—is constitutional, where the effect of the 

presumption is to establish, or place on the defendant the burden of disproving, that he 

or she had the requisite mens rea to commit first degree murder.” Id. ¶ 20.

{34} In Ortega we construed New Mexico’s felony murder statute to require “proof that 

the defendant intended to kill (or had the state of mind otherwise generally associated 

with mens rea).” Id. ¶ 23. We held that “there must be proof that the defendant intended

to kill (or was knowingly heedless that death might result from his conduct).” Id. ¶ 25. 

“An unintentional or accidental killing will not suffice.” Id. Therefore, the proper inquiry 

focuses on where a certain defendant lies on a spectrum of intent with “unintentional or 

accidental” sitting on one end and “intentional” on the other. The closer the 

circumstances of a particular case are to intentional, the more appropriate it is to infer 

the requisite culpable mental state. 

{35} In enacting the felony murder statute, the Legislature determined that 

intent to kill in the form of knowledge that the defendant’s acts create a 

strong probability of death or great bodily harm to the victim or another, 

[consistent with] second degree murder under Section 30-2-1(B) if no 

felony were involved, is sufficient to constitute murder in the first degree 

when a felony is involved. 

Id. (internal quotation marks and citation omitted). The Duffy Court interpreted this to 

mean that “the killing must be second-degree murder, apart from consideration of the 

underlying felony.” 1998-NMSC-014, ¶ 20. That is, the defendant must have a culpable 

mental state that rises at least to the level of mens rea required for second-degree 

murder.

{36} Whether the defendant’s culpable mental state rises to that level will depend on 

the facts of the case. The fact finder must determine whether a defendant “committed 

[the felony] under circumstances that are inherently dangerous” and possessed a 

culpable mental state at least equivalent to that required for second-degree murder. See

Harrison, 1977-NMSC-038, ¶¶ 12, 14, 25. 

{37} Thus in this case, the State must establish that while committing aggravated 

fleeing a law enforcement officer, a fourth-degree felony (the lowest degree of felony in 

New Mexico), Defendants acted with a culpable mental state equivalent to that of a 

second-degree murder in that they knew their “acts create[d] a strong probability of 

death or great bodily harm.” See § 30-2-1(B) (providing the culpable mental state for 

second-degree murder).
{38} The district court here could find that Defendants fled the police with such 

disregard for human life that a reasonable jury could find that Defendants knew their 

acts created a strong probability of death or great bodily harm. Cf. State v. Varela, 

1999-NMSC-045, ¶ 21, 128 N.M. 454, 993 P.2d 1280 (distinguishing circumstances

where there is evidence that a defendant knew a dwelling was occupied when he or she 

shot into the dwelling from circumstances where a defendant “believe[d] it to be 

abandoned”). The Varela Court opined that the felony of shooting at a dwelling may (or 

may not) be a proper predicate felony, depending on the evidence presented to 

establish the defendant’s culpable mental state. Id.

{39} On the other hand, the district court could determine as a matter of law, based on 

the evidence presented, that the death that resulted from the felony was more 

accidental than intentional. See State v. Baca, 2015-NMSC-021, ¶ 31, 352 P.3d 1151 

(“A directed verdict, technically appropriate only in cases tried by a jury, requires a court 

to decide at the conclusion of the state’s case whether the direct or circumstantial 

evidence admitted at trial, together with all reasonable inferences to be drawn 

therefrom, will sustain a finding of guilt beyond a reasonable doubt.” (internal quotation 

marks and citation omitted)); Mayer v. Smith, 2015-NMCA-060, ¶ 7, 350 P.3d 1191 

(observing that “in a non-jury trial, motion for a directed verdict [is], in effect, a motion to 

dismiss” for insufficient evidence (internal quotation marks and citation omitted)). In 

such a case, it would be proper to dismiss the felony murder charge. 

III. CONCLUSION 

{40} In this case aggravated fleeing a law enforcement officer may serve as a 

predicate felony for felony murder because it satisfies the causal requirement and the 

collateral felony rule. However, whether it is a proper predicate felony here requires the 

district court to determine whether a reasonable jury could conclude, based on the facts 

of the case, that Defendants acted with the requisite culpable mental state. We reverse 

and remand for further proceedings consistent with this opinion.

{41} IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

JUDITH K. NAKAMURA, Justice

C. SHANNON BACON, Justice