This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO , 7 Plaintiff-Appellee, 8

v. NO. 28,324 9 CLINTON SKIPPINGS , 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 12 Don Maddox, District Judge 13
Gary K. King, Attorney General 14 Santa Fe, NM 15 Joel Jacobsen, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Susan Roth, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22

MEMORANDUM OPINION 232 ROBLES, Judge. 1 Clinton Skippings (Defendant) appeals his conviction of voluntary 2 manslaughter contrary to NMSA 1978, Section 30-2-3(A) (1994). On appeal, he 3 claims that (1) he was entitled to a jury instruction on involuntary manslaughter, and 4 (2) it was error for the district court to a llow certain statements of a witness. We 5 conclude that Defendant was entitled to a jury instruction on involuntary manslaughter 6 and, accordingly, we remand for a new tr ial and do not discuss Defendant’s second 7 issue. 8 I. BACKGROUND 9 Defendant met his girlfriend, Christy R ogers (Victim), a little more than a year 10 before her death. Defendant and Victim were living together when he violated the 11 terms of his probation and serv ed two months in custody. While he was in custody, 12 Victim and another man were living in De fendant’s home, and the two ultimately sold 13 many of Defendant’s possessi ons in order to buy drugs. At the time of Defendant’s 14 release, Victim was incarcerated for a little more than a month for drug offenses. On 15 March 5, 2007, Victim was released and made contact with Defendant. Defendant 16 testified that he did not blam e Victim for her actions because of her addiction, and the 17 two reconciled. That night, they stayed in a room that Defendant paid for at the 18 Family Inn, and the next day on March 6, 2007, Defenda nt took Victim shopping for 193 new clothes and make-up at K- Mart. Defendant testified that the two of them spoke 1 about Victim abstaining from drugs and changing her life. At the end of the day, 2 Defendant dropped Victim off at her father’s house where she spent the night. 3 The next day on March 7, 2007, at approximately 2:00 p.m., Defendant 4 discovered that Victim was on Dunn Street , an area known for the use and sale of 5 narcotics. After picking he r up, Defendant drove Victim back to her father’s house. 6 Later that night, Defendant went back to Dunn Street where he again saw Victim. 7 Defendant testified that Victim s eemed “high” to him at the time. A post mortem 8 toxicological examination revealed that Vic tim had narcotics in he r system at the time 9 of her death. The two of them argued about whether Victim would go back to her 10 father’s house. At some point, Defendant pushed Victim, which resulted in Victim 11 falling, hitting her head on the street, and dying. 12 II. DISCUSSION 13 The jury was instructed on second-degree murder and voluntary manslaughter. 14 Defendant argues that his theory of the cas e, along with the evidence presented below, 15 supports an involuntary manslaughter instruction. We agree and remand for a new 16 trial. 17 The suitability of instructions to the jury , given or denied by the district court, 18 presents a mixed question of law a nd fact, which we review de novo. State v. Gaitan , 194 2002-NMSC-007, ¶ 10, 131 N.M. 758, 42 P.3d 1207. “To permit an instruction on 1 a lesser[-]included offense, there must be evidence tending to establish the lesser 2 offense.” State v. Fish , 102 N.M. 775, 779, 701 P.2d 374, 378 (Ct. App. 1985). 3 Additionally, there must be some view of the evidence which could sustain a finding 4 that the lesser offense was the highe st degree of the crime committed. Id. The failure 5 to provide a defendant with an instructi on of a lesser-included offense that he is 6 entitled to is a reversible error. See State v. Reynolds , 98 N.M. 527, 529, 650 P.2d 7 811, 813 (1982). 8 New Mexico has generally noted three types of cases where an involuntary 9 manslaughter instruction is appropriate. State v. Yarborough , 1996-NMSC-068, ¶ 8, 10 122 N.M. 596, 930 P.2d 131. The first involves the commission of an unlawful act 11 not amounting to a felony. The second is a lawful course of conduct that might 12 produce a death in an unlawful manner. Th e third is the commission of a lawful act 13 that might produce death without due caution and circumspection. Id .; § 30-2-3(B). 14 In the instant case, Defendant argues that a jury could conclude that he was involved 15 in an unlawful act, such as the misdem eanor of battery, contrary to NMSA 1978, 16 Section 30-3-4 (1963), or the misdemeanor of battery against a household member, 17 contrary to NMSA 1978, Section 30-3-15 (2008). We agree with Defendant and need 18 not discuss if other possible views of the case would support an involuntary 195 manslaughter instruction; it is suffi cient if one applies to the facts. State v. Romero , 1 2005-NMCA-060, ¶ 17, 137 N.M. 456, 112 P.3d 1113. 2 At trial, defense couns el began his opening statements by conceding that 3 Defendant had caused the death of Victim. Defense counsel stated , however, that the 4 evidence would show that Defendant’s actions were not consistentwith someone who 5 had any intent to kill and, at the end of trial, if the ju ry was going to “find him guilty 6 of anything[,] that it [should] be involuntary manslaughter.” During the State’s case, 7 a witness to the events testified that Defendant and Victim were arguing as they 8 approached him on the street and, as they walked closer to the witness, he saw that 9 they were hitting each other. At some point, Victim jumped up on Defendant’s front 10 and, in trying to get Victim off, Defendant caused her to hit the ground. Defendant 11 also testified that he was not conscious of hurting Victim, that her death was an 12 accident, and that when he pushed her and she fe ll, he was not planning on killing her. 13 14 We acknowledge that evidence was presented to the jury that conflicts with the 15 Defendant’s theory of the case. However, when considering a defendant’s requested 16 instructions, we view the evidence in the light most favorable to the giving of the 17 requested instruction. State v. Hill , 2001-NMCA-094, ¶ 5, 131 N.M. 195, 34 P.3d 18 139. A defendant is entitled to have his theory of the case submitted to the jury under 196 proper instructions where the evidence supports it. State v. Benavidez , 94 N.M. 706, 1 708, 616 P.2d 419, 421 (1980), overruled on other grounds by Sells v. State , 98 N.M. 2 786, 788, 653 P.2d 162, 164 (1982). Although th is case presents conflicting evidence 3 that supports multiple theories, the eviden ce in the record is sufficient to warrant 4 submission of an instruction on involuntary manslaughter, and th e questions of fact 5 should have been given to the jury to appl y in the context of the multiple theories. 6 The State argues that Defendant’s proffered instruction on involuntary 7 manslaughter incorrectly char acterized the law, and it was therefore not error for the 8 district court to refuse the in struction because it was inaccurate. The first element of 9 UJI 14-231 NMRA (involuntary manslaughter instruction) states: “__________ 10 ( name of defendant ) __________ ( describe defendant’s act )[.]” The instruction 11 proffered by Defendant read as follows: “[Defendant] and [Vic tim] were engaged in 12 an argument that escalated into a physical fight and [Victim] fell to the ground, struck 13 her head[,] and died as a result of her injuries.” The State argues that the “act” as 14 requested by the instruction was never identif ied and, therefore, the district court 15 properly refused the instruction. 16 At the jury instruction conference, the district court refused the instruction 17 without elaborating, stating only that “I think the trouble is that the involuntary is 18 present, essentially, to the exclusion of others.” While this statement is not 197 particularly illuminating, the record reveal s that the district court heard defense 1 counsel’s opening statement, was asked to a llow an involuntary instruction at the jury 2 instruction conference, and received a pr oposed instruction with the correct UJI 3 number typed on it. Our cases have previously heldthat the purpose behind the rule 4 (Rule 5-608(D) NMRA) requiring that a correct instruction be tendered to the court 5 is to alert the court’s mind to the ar gument being made a nd invoke a ruling. See Hill , 6 2001-NMCA-094, ¶ 7; State v. Diaz , 121 N.M. 28, 33-34, 908 P.2d 258, 263-64 (Ct. 7 App. 1995); Gallegos v. State , 113 N.M. 339, 341, 825 P.2d 1249, 1251 (1992). Here, 8 the district court neglected its duty to provide Defendant with an instruction to which 9 he was entitled. See Gallegos , 113 N.M. at 341, 825 P.2d at 1251 (holding that a 10 defendant may offer a modified uniform ju ry instruction on a lesser-included offense 11 and, “[i]f the court believes no modificati on is appropriate, the court should instruct 12 in the exact language of the uniform jury instruction”); Diaz , 121 N.M. at 33, 908 P.2d 13 at 263 (holding that “an instruction issue had been properly preserved by tender of a 14 uniform jury instruction although the specifi cally tendered instruction was incorrect”; 15 Hill , 2001-NMCA-094, ¶ 16 (stating that it is re versible error to not instruct on a 16 requested lesser-included offense if the le sser is included in the greater, there is 17 evidence supporting the view that the lesser was the highest crime committed, and the 18 issue was preserved). 1989 III. CONCLUSION 1 For the above reasons, we remand this case to the district court with instructions 2 for further proceedings not inconsistent with this opinion. 3 IT IS SO ORDERED. 4

___________________________ 5 ROBERT E. ROBLES, Judge 6

WE CONCUR: 7

_________________________________ 8 MICHAEL D. BUSTAMANTE, Judge 9

_________________________________ 10 MICHAEL E. VIGIL, Judge 11