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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40151

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

KEYVIN ALEJANDRO SILVA-MUÑOZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Britt Baca-Miller, District Court Judge

Raúl Torrez, Attorney General

Santa Fe, NM

Meryl E. Francolini, Assistant Attorney General

Albuquerque, NM 

for Appellee

Bennett J. Baur, Chief Public Defender

Santa Fe, NM

Luz C. Valverde, Assistant Appellate Defender

Albuquerque, NM 

for Appellant

MEMORANDUM OPINION

MEDINA, Judge.

{1} A jury convicted Defendant Keyvin Alejandro Silva-Muñoz of one count of 

aggravated burglary (with a deadly weapon), contrary to NMSA 1978, Section 30-16-

4(A) (1963), and one count of bribery or intimidation of a witness, contrary to NMSA 

1978, Section 30-24-3(A) (1997). Defendant appeals his conviction for aggravated 

burglary, arguing (1) that the jury instructions resulted in fundamental error because the 
jury was not instructed on all elements necessary to convict him of that offense, and (2) 

there was insufficient evidence to support his conviction. We reverse and remand.

BACKGROUND

{2} Because this is a memorandum opinion, we limit our discussion of the facts to 

those relevant to Defendant’s appeal of his aggravated burglary charge. 

{3} On March 7, 2020, Defendant attended a house party of about fifty people on 

Rayo Del Sol Drive in Albuquerque at the home of Edgar Rivera, Fabian OrtegaRodriguez, and Gustavo Moreno. At some point during the party, Isaiah Perez—an 

acquaintance of Defendant—and Isaac—a friend of Rivera and Rodriguez—were 

involved in a physical altercation outside of the home during which Perez knocked Isaac 

unconscious. Although Defendant was not involved in the fight, he went outside after 

Isaac was on the ground and heard Perez saying, “I did it. I did it.” Rodriguez picked 

Isaac up and took him back into the home, placing him on the living room couch to help 

him recover. 

{4} A few minutes later, Perez entered the home with a group of people, including 

Defendant, bragging about knocking Isaac out. Rodriguez told Perez and the rest of the 

group “to get out of [his] house.” An additional fight broke out inside the home. Rivera 

testified that he saw a member of the group pull what looked like a short rifle from his 

pant leg. Rivera heard a shot fired inside the home, and in response pulled out his own 

weapon and fired a shot towards the front door frame. The group then ran out the front 

door shooting inside the house as they ran out. 

{5} Rivera saw bullet holes begin to appear on the door and heard bullets strike the 

door, walls, and the sliding glass doors at the back of the home as he shut the front 

door. Moreno and Ailyn Flores Cervantes were injured during the shooting. Rivera 

heard approximately thirty to forty gun shots before the shooting stopped. 

{6} During this pause, Rivera fired a warning shot towards the front door. The 

warning shot resulted in a second round of gun shots fired at the home. After the 

second round of gun shots ended, Defendant either kicked open or forcefully opened 

the door. Rivera saw a gun in Defendant’s hands and shot Defendant. Defendant yelled 

out, “He shot me,” and stepped out of the house. Although Rivera could not identify 

Defendant at trial, Defendant told Detective Robert Sanchez that he was shot when he 

entered the home and yelled out, “You shot me,” during a video recorded interview that 

was played for the jury. Defendant also claimed to have entered the home unarmed to 

get help for his brother who was shot and to ensure no one inside the house was shot.

{7} Police and emergency services then arrived on scene. Moreno, Cervantes, 

Defendant, and Defendant’s brother—also injured during the shooting—were taken to 

nearby hospitals for medical care. Officers and crime scene specialists found eighty-six 

total bullet casings outside the home and on the street. Only two guns were found at the 
scene—the one used by Rivera and one owned by an individual who had fled the home 

during the shooting. 

{8} The State indicted Defendant with numerous crimes including aggravated 

burglary with a deadly weapon (firearm) and bribery or intimidation of a witness. The 

district court granted Defendant’s directed verdict motion on all but the aggravated 

burglary and intimidation of a witness charges, and the jury signed guilty verdicts for 

those offenses. This appeal followed. 

DISCUSSION

I. The Jury Instructions Resulted in Fundamental Error

{9} Defendant argues that fundamental error occurred because the district court 

failed to instruct the jury on all elements of aggravated burglary. Specifically, Defendant 

contends the district court’s failure to instruct the jury with a separate specific intent 

instruction for aggravated burglary and the district court’s failure to instruct the jury on 

the elements of the predicate felony offense the State claimed Defendant intended to 

commit inside the house allowed the jury to convict him without finding all the elements 

of the offense—in particular that Defendant “entered the dwelling with the intent to 

commit an aggravated battery once inside.” Defendant concedes that he did not object 

to the jury instructions at trial, and therefore, we review Defendant’s argument for 

fundamental error. See State v. Ocon, 2021-NMCA-032, ¶ 7, 493 P.3d 448. 

{10} “Fundamental error exists if it would shock the conscience to affirm the conviction 

either because of the obvious innocence of the defendant or because a mistake in the 

process makes a conviction fundamentally unfair notwithstanding the apparent guilt of 

the accused.” State v. Sivils, 2023-NMCA-080, ¶ 9, __ P.3d __ (A-1-CA-39045, Aug. 30, 

2023) (alteration, internal quotation marks, and citations omitted). With regard to jury 

instructions, our review for fundamental error is a two-step process. Id. ¶ 10. First, we 

determine whether error occurred, and do so by asking “whether a reasonable juror 

would have been confused or misdirected by the jury instruction.” Id. (internal quotation 

marks and citation omitted). “Jury instructions cause confusion or misdirection when, 

through omission or misstatement, they do not provide an accurate rendition of the 

essential elements of a crime.” Ocon, 2021-NMCA-032, ¶ 7 (internal quotation marks 

and citation omitted). 

{11} The district court instructed the jury on the elements of aggravated burglary, in 

relevant part, as follows:

For you to find [D]efendant guilty of aggravated burglary as charged in 

count 1, the [S]tate must prove to your satisfaction beyond a reasonable 

doubt each of the following elements of the crime:

1. [D]efendant entered a dwelling without authorization;
2. [D]efendant entered the dwelling with the intent to commit an 

aggravated battery once inside;

3. [D]efendant was armed with a firearm. 

(Emphasis added.) This instruction tracks the approved uniform jury instruction 

containing the statutory elements for aggravated burglary with a deadly weapon. See 

UJI 14-1632 NMRA; see also § 30-16-4(A) (defining aggravated burglary in part as “the 

unauthorized entry of any . . . dwelling . . . with intent to commit any felony or theft 

therein and . . . [while] armed with a deadly weapon”). Our Supreme Court has stated 

that uniform jury instructions are presumptively valid and they should be used without 

substantive alteration when they describe the elements of the crime. See State v. 

Lucero, 2017-NMSC-008, ¶ 30, 389 P.3d 1039. 

{12} The aggravated burglary instruction identified the uncharged, predicate felony as 

aggravated battery. “Aggravated battery consists of the unlawful touching or application 

of force to the person of another with intent to injure that person or another.” NMSA 

1978, § 30-3-5(A) (1969). The offense is a felony when the defendant inflicts “great 

bodily harm or does so with a deadly weapon or does so in any manner whereby great 

bodily harm or death can be inflicted.” Section 30-3-5(C). As Defendant points out, “[i]f 

intent to commit a felony other than theft is alleged [in the aggravated burglary 

instruction], the essential elements of the felony must be given if not separately 

instructed” using UJI 14-140 NMRA. UJI 14-1632 use note 2. 

{13} Therefore, in addition to the elements of aggravated burglary, the jury should 

have been instructed on aggravated battery as follows: 

In addition to the other elements of [aggravated burglary], you must 

consider whether the defendant’s acts related to the commission of 

[aggravated battery]. The defendant is not charged with [aggravated

battery]. However, the law declares that to be a crime when: 

[1. A person touches or applied force to another person with a firearm; 

and

2. The person intended to injure another person.]

UJI 14-140; see also UJI 14-322 NMRA (elements instruction for aggravated battery 

with a deadly weapon).

{14} The State concedes this point and the record confirms that the district court did 

not instruct the jury on the elements of aggravated battery and instructed the jury only 

as to general intent. However, the State argues that these errors did not amount to 

fundamental error and therefore reversal is not required. We agree that instructing the 

jury on general intent alone does not require reversal. Failure to instruct on specific 

intent did not amount to error here because the jury instructions otherwise conformed to 
the statutory elements for aggravated burglary. Nevertheless, we hold that the omission 

of the elements of aggravated battery amounted to fundamental error and explain. 

{15} In State v. Gunzelman, 1973-NMSC-055, ¶ 29, 85 N.M. 295, 512 P.2d 55, our 

Supreme Court held that a jury instruction that follows the language of the burglary 

statute to proscribe the “unauthorized entry of any dwelling with the intent to commit any 

felony or theft therein,” sufficiently instructs the jury on the specific criminal intent 

required for that crime and no further description of the requisite criminal intent is 

necessary. See id. ¶¶ 23-31 (omissions omitted). 

{16} Defendant nonetheless argues that “a reasonable juror likely believed that the 

only intent required by the aggravated burglary instruction” was general intent because 

the district court provided the jury with a general intent instruction. We disagree and 

decline to speculate on the jury’s belief, particularly in light of the guidance provided by 

Gunzelman. The jury was instructed to consider the instructions as a whole, and the 

instruction for aggravated burglary included the specific intent element of the offense. 

See State v. Stefani, 2006-NMCA-073, ¶ 27, 139 N.M. 719, 137 P.3d 659 (rejecting the 

defendant’s contention that the giving of a general intent instruction only served to 

mislead the jury as to what was required to prove “intent” in the elements instruction). 

“To find guilt based on only a purposeful act,” as Defendant argues here, “a juror would 

have had to ignore the elements instruction as well as the instruction that the 

instructions are to be read as a whole. We cannot say that a reasonable juror would act 

in such a manner.” State v. Gee, 2004-NMCA-042, ¶ 15, 135 N.M. 408, 89 P.3d 80. 

Therefore, we hold that the jury instructions correctly set forth the required intent to 

convict Defendant of aggravated burglary.

{17} We agree, as does the State, with Defendant’s argument regarding the absence 

of an elements instruction related to aggravated battery and conclude such constituted 

error. As discussed above, UJI 14-1632 use note 2 states “[i]f intent to commit a felony 

other than theft is alleged [in the aggravated burglary instruction], the essential 

elements of the felony must be given if not separately instructed” using UJI 14-140. The 

UJI 14-140 use note similarly states, “This instruction must be used with every crime 

that incorporates another crime by reference . . . by requiring the ‘intent to commit’ . . . 

unless the referenced crime is separately charged and instructed.” We recognize that “a 

failure to follow a use note does not require automatic reversal,” Gee, 2004-NMCA-042, 

¶ 19, and that the crime of aggravated burglary does not require the State prove the 

underlying predicate felony itself. See State v. Romero, 1998-NMCA-057, ¶ 20, 125 

N.M. 161, 958 P.2d 119 (“[W]e note that the crucial factor in the crime of aggravated 

burglary is whether the defendant had the intent to commit a felony on entering the 

dwelling, not whether the felony was actually committed.” (alteration, emphasis, internal 

quotation marks, and citation omitted)). However, the charge of aggravated burglary 

here still requires the jury’s consideration of the elements of aggravated battery 

because the jury must determine the essential element that Defendant “entered . . . with 

the intent to commit [an aggravated battery] once inside.” UJI 14-1632 (emphasis 

added). Without instruction on the elements of aggravated battery, we cannot be certain 

that the jury understood it was required to find that Defendant entered the house 
intending to injure someone in the house, an element of aggravated battery. The jury 

was separately instructed on Defendant’s possession of a firearm as an element of 

aggravated burglary, so that is not a concern, but we do not agree with the State that a 

juror would necessarily understand the specific intent element of aggravated battery 

without an instruction. Therefore, failure to instruct the jury on the elements of 

aggravated battery was error. 

{18} Accordingly, “we proceed to the second step, asking whether the error is 

fundamental.” Ocon, 2021-NMCA-032, ¶ 8. “The general rule is that fundamental error 

occurs when the trial court fails to instruct the jury on an essential element.” State v. 

Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72. “Although the omission of 

an essential element ordinarily is fundamental error, our precedents describe two 

exceptions under which the omission of an essential element does not amount to 

fundamental error.” Sivils, 2023-NMCA-080, ¶ 18 (internal quotation marks and citations 

omitted). “The first exception applies when the jury implicitly finds that the state has 

proven the omitted element.” Id. ¶ 19. “This occurs when the jury makes a specific 

finding that—in the context of the facts and circumstances of the case—necessarily 

includes a finding of the omitted element.” Id. “The second exception only applies when 

the jury’s verdict, considered together with the given instructions and the parties’ legal 

and factual presentations, leaves no doubt that the jury would have found the omitted 

element if properly instructed.” Id. ¶ 21 (internal quotation marks and citation omitted). 

The State argues that both of these exceptions apply in this case. 

{19} The State first argues that we may affirm under the first exception because the 

jury’s guilty verdict necessarily means that they disbelieved Defendant’s explanation of 

events and implicitly found Defendant acted with intent to commit aggravated battery. 

The State contends that, had the jury believed Defendant’s claim that he entered the 

house to get help for his brother and had no intention of hurting anyone, the jury could 

not have concluded he entered the home with intent to commit aggravated battery, 

despite the absence of an instruction defining the elements of aggravated battery. 

Although, as noted above, the jury found that Defendant was carrying a gun, the verdict 

does not necessarily show that the jury believed Defendant had the specific intent to 

injure someone in the house when he entered. This Court has rejected “the proposition 

that a fact[-]finder’s disbelief of a criminal defendant’s testimony can substitute for 

affirmative proof of the state’s case.” State v. Wynn, 2001-NMCA-020, ¶ 6, 130 N.M. 

381, 24 P.3d 816. Without more than the rejection of Defendant’s theory, we cannot 

hold that the jury necessarily found Defendant intended to injure someone when he 

entered the house with a weapon. Therefore, we conclude that the first exception does 

not apply. 

{20} The State next argues that we may affirm under the second exception because 

the evidence supporting specific intent to commit aggravated battery was “undeniably 

strong” and Defendant’s theory of the case was “wildly inconsistent” with the evidence 

presented at trial. We narrowly apply this second exception and affirm “only when proof 

of the omitted element is so strong that no rational jury could have failed to find that 

element” and “the missing element was not ‘disputed’ or ‘in issue’ at trial.” Sivils, 2023-
NMCA-080, ¶ 21 (internal quotation marks and citation omitted). “Reversal is mandatory 

regardless of a defendant’s trial strategy if any evidence or suggestion in the facts, 

however slight would have permitted a rational jury to conclude that the state failed to 

meet its burden to prove the omitted element beyond a reasonable doubt.” State v. 

Ancira, 2022-NMCA-053, ¶ 26, 517 P.3d 292 (text only) (citation omitted). 

{21} Defendant disputed at trial that his intent was to shoot or injure someone in the 

house. Therefore, the second exception does not apply. See Sivils, 2023-NMCA-080, ¶ 

21. Detective Sanchez testified that, during his interview with Defendant, Defendant 

repeatedly stated that he was not holding a gun when entering the house, he did not 

kick down the door, and he was not entering the home to hurt anyone. The State also 

played a video recording of Detective Sanchez’s interview with Defendant. During the 

interview, Defendant stated that he went into the home to get help for his brother who 

was shot, and that he wanted to ensure that no one inside the house was shot. 

Although the jury found as an element of aggravated battery that Defendant was in 

possession of a gun when he entered the house, there was conflicting evidence about 

whether Defendant was pointing the gun at whoever might be present or instead 

whether the gun was pointed at the ground. Without weighing this conflicting evidence, 

we hold a rational jury could have found “that the State failed to meet its burden” of 

showing by proof beyond a reasonable doubt that Defendant entered the home with the 

intent to injure someone inside. See Ancira, 2022-NMCA-053, ¶ 26. We, therefore, 

conclude that “[r]eversal is mandatory” on the failure to instruct the jury on the elements 

of aggravated battery, the felony offense the State alleged Defendant intended to 

commit at the time of the burglary. See id. (internal quotation marks and citation 

omitted); see Sutphin, 2007-NMSC-045, ¶ 16 (holding that reversal is mandatory where 

neither of the fundamental error exceptions apply).

{22} Whether the proper remedy is dismissal of the charge or retrial upon remand, 

however, is dependent on the sufficiency of the State’s evidence. 

II. Sufficiency of the Evidence

{23} Defendant argues that there was insufficient evidence to establish his conviction 

for aggravated burglary because the evidence did not establish Defendant acted with 

specific intent to commit aggravated battery once inside the home. Although we are 

reversing on other grounds, we review Defendant’s claim because principles of double 

jeopardy bar retrial if Defendant’s conviction is not supported by sufficient evidence. 

See Sivils, 2023-NMCA-080, ¶ 27. Applying our well-established framework for 

sufficiency of the evidence, see State v. Hixon, 2023-NMCA-048, ¶¶ 44-45, 543 P.3d 

235, we hold that the State presented sufficient evidence to convict Defendant. 

{24} The jury was instructed, in relevant part, that the State must prove beyond a 

reasonable doubt that “[D]efendant entered the dwelling with the intent to commit an 

aggravated battery once inside.” See id. ¶ 48 (“Jury instructions become the law of the 

case against which the sufficiency of the evidence is to be measured.” (internal 

quotation marks and citation omitted)). 
{25} Here, the State presented evidence of repeated gun shots at the people inside 

the home during and after Mr. Rodriguez kicked Isaiah Perez and Defendant out of the 

home resulting in injuries. The evidence also established that, after learning his brother 

had been shot, Defendant believed that someone inside the house shot his brother. 

Defendant either kicked in or forcefully opened the front door of the home and entered 

while holding a gun out in front of him. “Intent is usually established by circumstantial 

evidence.” Id. ¶ 47 (text only) (citation omitted); see also State v. Valles, 1972-NMCA076, ¶ 4, 84 N.M. 1, 498 P.2d 693 (“Intent to injure need not be established by direct 

evidence but may be inferred from conduct and the surrounding circumstances.”). We 

hold that this evidence is sufficient to support the jury’s finding that Defendant entered 

into the home with the intent to commit aggravated battery.

{26} To the extent that Defendant asks that we reweigh evidence and credibility 

during our review, we decline to do so. “Considering evidence and assessing the 

credibility of witnesses is the unique purview of the jury.” Hixon, 2023-NMCA-048, ¶ 53. 

Therefore, we hold that there was sufficient evidence to convict Defendant of 

aggravated burglary. See id. ¶ 44. 

CONCLUSION

{27} For the foregoing reasons, we reverse and remand for further proceedings 

consistent with this opinion. 

{28} IT IS SO ORDERED.

JACQUELINE R. MEDINA, Judge

WE CONCUR:

J. MILES HANISEE, Judge

JANE B. YOHALEM, Judge