1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 30,541

10 JOSHUA GONZALES,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY

13 Steven L. Bell, District Judge

14 Gary K. King, Attorney General

15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender

18 Kimberly Chavez Cook, Assistant Appellate Defender

19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION
2

1 CASTILLO, Judge.

2 Defendant appeals his conviction for involuntary manslaughter. In this Court’s

3 notice of proposed summary disposition, we proposed to affirm. Defendant has

4 responded with a memorandum in opposition and a motion to amend the docketing

5 statement to add additional claims of error. We deny Defendant’s motion to amend

6 because it seeks to raise issues that are not viable on direct appeal. Because we are

7 not persuaded by the arguments in Defendant’s memorandum regarding the two issues

8 originally raised in the docketing statement, we affirm.

9 Motion to Amend the Docketing Statement

10 This Court will grant a motion to amend only if certain requirements are met,

11 including that the issues sought to be raised must be viable. See State v. Sommer, 118

12 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (denying the defendant’s motion

13 to amend the docketing statement when the argument offered in support of amendment

14 was not viable). Defendant’s motion to amend seeks to add three claims of error for

15 consideration on appeal. The first raises a claim of fundamental error with respect to

16 a jury instruction that the Defendant himself requested over the State’s objection.

17 [MIO 2, 6-20; DS 7] However, fundamental error has no application where a

18 defendant invites an error. See State v. Handa, 120 N.M. 38, 46, 897 P.2d 225, 233

19 (Ct. App. 1995). Defendant’s second issue relates to a jury instruction on proximate
3

1 cause, which Defendant acknowledges he never requested. [MIO 2, 28-31] But our

2 Supreme Court has held that there is no fundamental error when the district court fails

3 to give an instruction that merely provides a further definition of or elaboration on an

4 element of an offense. See State v. Munoz, 1998-NMSC-048, ¶ 47, 126 N.M. 535, 972

5 P.2d 847 (finding no fundamental error when the district court failed to give that

6 portion of the proximate cause instruction that permits a determination of culpability

7 even when there is evidence that more than one person may have contributed to a

8 victim’s death). Finally, Defendant seeks to add a claim that the district court erred

9 in omitting a statement in the judgment that Defendant’s parole is to be served

10 concurrently with parole in another case. [MIO 2, 31-32] Defendant’s argument is

11 based on what he believes the district court actually intended to put in the judgment,

12 a matter that we will not consider on appeal. Defendant is free to seek amendment of

13 the judgment in the district court to the degree that he believes the error was simply

14 a clerical error arising from an oversight or omission. See Rule 5-113(B) NMRA.

15 Because we conclude that none of these issues is viable on direct appeal, we deny

16 Defendant’s motion to amend the docketing statement.

17 Officer Presence During Voir Dire

18 Defendant contends that the district court erred in permitting police officers

19 who were witnesses in the case to remain in the courtroom during voir dire. [DS 7-8]
4

1 In Defendant’s docketing statement he asserted that the district court’s ruling was in

2 violation of Rule 11-615 NMRA, as well as his right to due process. [RP 7-8]

3 Defendant now concedes that this did not constitute a violation of Rule 11-615. [MIO

4 27] In this Court’s notice of proposed summary disposition, we stated that Defendant

5 had provided no explanation of how the presence of the officers deprived him of a fair

6 trial and that he had provided no authority that would support this as a basis for

7 reversal of his convictions. We stated that when a party cites no authority to support

8 a claim of error, we assume no such authority exists. In re Adoption of Doe, 100 N.M.

9 764, 765, 676 P.2d 1329, 1330 (1984). In Defendant’s memorandum in opposition,

10 he states that the jurors “exhibited notable discomfort in answering” questions about

11 their attitude toward drug use—including their own drug use—and that the jurors “did

12 not appear to be responding candidly.” [MIO 27] Defendant asserts that we should

13 therefore conclude that he was deprived of a right to an impartial jury because his

14 convictions must have been based on jurors’ assumptions about known drug users.

15 As we are unable to determine how we could know from the record that jurors were

16 in fact made uncomfortable by the police presence, rather than by the nature of the

17 questions themselves, in light of the fact that they were being asked in a court of law,

18 in front of a judge, attorneys, and other members of the public, we cannot conclude

19 that the officers’ presence had any impact at all on voir dire. Furthermore, we find no
5

1 reason to conclude that jurors’ general conclusions about the violent propensities of

2 drug users must have played a role in their determination that Defendant should have

3 known that he was putting the victim in danger. It would seem just as likely that the

4 determination was based on the particular evidence in this case: that Defendant knew

5 that Chavella’s brother was angry with the victim, that the victim was taking great

6 care to hide from Chavella’s brother and Little Frankie, and that the heated emotional

7 state of Chavella’s brother provided Chavella’s brother with an interest in finding the

8 victim that was serious enough that he was willing to pay Defendant to have

9 Defendant lure the victim out of hiding.

10 Sufficiency of the Evidence

11 Defendant contends that there was insufficient evidence to support his

12 conviction for involuntary manslaughter. [DS 8] “In reviewing the sufficiency of the

13 evidence, we must view the evidence in the light most favorable to the guilty verdict,

14 indulging all reasonable inferences and resolving all conflicts in the evidence in favor

15 of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998

16 P.2d 176. “The relevant question is whether, after viewing the evidence in the light

17 most favorable to the prosecution, any rational trier of fact could have found the

18 essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation

19 marks and punctuation omitted).
6

1 Although Defendant contends that the instruction on involuntary manslaughter

2 that he himself proffered was erroneous, it is against this instruction that we evaluate

3 the sufficiency of the evidence. See State v. Vasquez, 2010 -NMCA- 041, ¶ 15, 148

4 N.M. 202, 232 P.3d 438; see also State v. Rosaire, 1996-NMCA-115, ¶¶ 20, 21, 123

5 N.M. 250, 939 P.2d 597. In order to find Defendant guilty of involuntary

6 manslaughter, the State was required to prove beyond a reasonable doubt that

7 Defendant asked the victim to come out of the house, that Defendant should have

8 known of the danger involved in his actions, that he acted with a willful disregard for

9 the safety of others, and that his act caused the death of the victim. [RP 82]

10 In our notice of proposed summary disposition, we stated that Defendant’s

11 docketing statement indicated that the following evidence was introduced at trial:

12 Defendant owed the victim money for drugs. Little Frankie, a friend of Defendant’s,

13 told Defendant that the victim had a romantic interest in a woman named Chavella and

14 that Chavella’s brother was angry at the victim. Little Frankie and Chavella’s brother

15 said they were having a hard time finding the victim, whom they believed was hiding

16 from them. They said they thought Defendant would be able to get the victim to let

17 his guard down, and that they would pay Defendant’s debt to the victim if Defendant

18 could get the victim to come out of his hiding place. Defendant then made a number

19 of phone calls, trying to reach the victim. In the phone calls, Defendant stated that he
7

1 had the money he owed the victim and wanted to pay him. Defendant determined

2 where the victim was hiding, and the three men went to that location. Defendant went

3 to the door, and asked for the victim. The victim came out of the house and began

4 following Defendant. He was then shot by either Little Frankie, Chavella’s brother,

5 or both. At trial, recordings of phone calls were played for the jury in which

6 Defendant made statements suggesting that he knew on the day of the shooting that

7 something bad would happen to the victim if he followed Defendant out of the house.

8 We proposed to hold that, viewing the evidence in the light most favorable to the

9 verdict, a reasonable juror could have found beyond a reasonable doubt all of the

10 elements of involuntary manslaughter as set forth in the jury instruction.

11 In Defendant’s memorandum in opposition, he asserts that there is a factual

12 dispute about some of the information he provided to this Court in the docketing

13 statement. [MIO 24] In Defendant’s docketing statement, he informed this Court that

14 certain taped statements that were played for the jury did “suggest [Defendant] knew

15 that nothing good was going to happen to [the victim] when and if he came out of the

16 house at Defendant’s request.” [DS 5-6] In his memorandum in opposition,

17 Defendant attempts to create an issue of fact by now telling the Court that this was a

18 mischaracterization. [MIO 24] Even if we were inclined to accept Defendant’s later

19 description as opposed to his initial one, we nevertheless would need not reverse on
8

1 this basis. Assuming that Defendant’s statement to the police was primarily about his

2 fear and disbelief about what had just occurred, the remaining evidence described

3 above provided a sufficient basis for a reasonable juror to conclude that Defendant

4 should have known of the danger to the victim.

5 Accordingly, for the reasons stated in this opinion and in our notice of proposed

6 summary disposition, we affirm.

7 IT IS SO ORDERED.

8 ________________________________

9 CELIA FOY CASTILLO, Judge

10 WE CONCUR:

11 __________________________________

12 RODERICK T. KENNEDY, Judge

13 __________________________________

14 TIMOTHY L. GARCIA, Judge