This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 33,846 4 CRYSTAL MARIE LEMANSKI, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 Jerry H. Ritter, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Steven H. Johnston, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Santa Fe, NM 15 Sergio J. Viscoli, Assi stant Appellate Defender 16 Albuquerque, NM 17 for Appellant 18 MEMORANDUM OPINION 19 SUTIN, Judge. 202 {1} Defendant Crystal Marie Lemanski was convicted of great bodily injury by 1 vehicle while driving under the influence of intoxicating liquor, contrary to NMSA 2 1978, Section 66-8-101(C) (2004), reckless driv ing, contrary to NMSA 1978, Section 3 66-8-113(A) (1987), and driving while licen se suspended or re voked, contrary to 4 NMSA 1978, Section 66-5-39(A) (1993, ame nded 2013). On appeal, Defendant seeks 5 reversal of her conviction for great bodilyinjury by vehicle on the grounds that: (1) 6 she was denied due process, (2) she receive d ineffective assistance of counsel, (3) the 7 court’s failure to sua sponte instruct the jury as to certain defenses constituted 8 fundamental error, (4) her constitutional right to be present during trial was violated 9 when the district court proceeded with a porti on of the trial in her absence, and (5) the 10 district court denied her ability to present a defense by refusing to allow a defense 11 witness to testify. 12 {2} We conclude that Defendant has failed to demonstrate that any of the five 13 alleged errors warrant reversal. We affirm. 14 BACKGROUND 15 {3} A jury found Defendant guilty of great bodily injury by vehicle while driving 16 under the influence of intoxicating liquor, reckless driving, and driving with a 17 suspended or revoked license. These crimes arose out of a melee in the parking lot of 18 a bar during which, among other things, Defendant drove her car over Kevin Reed, 193 a bouncer who worked at the bar, causing a number of injuries to Mr. Reed, requiring 1 two surgeries. 2 {4} On appeal, Defendant seeks reversal of her convictions, arguing that she was 3 denied due process when the district c ourt prohibited her counsel from arguing lack 4 of specific intent to the jury , that her counsel was ineffec tive for failing to request jury 5 instructions on certain defenses, that f undamental error resulted from the district 6 court’s failure to sua sponte instruct the juryas to self-defense, that her constitutional 7 right to be present at trial was violated when a nineteen-minute portion of the trial 8 proceeded in her absence, and that the di strict court deprived her of the opportunity 9 to present a defense when it excluded a w itness from testifying on the ground that the 10 witness had been present in the courtroomfor the State’s presentation of the case. 11 {5} We hold that the district court properly precluded Defendant from arguing lack 12 of specific intent during her closing argument. Great bodily harm by vehicle is a 13 general, not a specific intent crime. As to Defendant’s arguments regarding the 14 defenses that were not raised by her couns el at trial, we conclude that because 15 Defendant has failed to demonstrate prejudi ce, she has failed to make a prima facie 16 showing of ineffective assistance of counsel. We also conclude that the district court 17 was not obligated to sua sponte instruct the jury as to self-defense. We also hold that 18 Defendant waived her right to be present at trial for the nineteen minutes during which 194 the trial proceeded without her. And finally , we hold that the district court did not 1 abuse its discretion or improperly infringe on Defendant’s right to present a defense 2 when it precluded a witness, who had attended the trial, from testifying. 3 DISCUSSION 4 Defendant’s Due Process Argument 5 {6} Defendant argues that her due process ri ght to present a defense was violated 6 when the district court denied her the opportunity to argue in her closing argument to 7 the jury that she lacked the criminal intent necessary to commit the crime of great 8 bodily injury by vehicle. “Because trial j udges are in the best position to assess the 9 impact of any questionable comment, [theappellate courts] afford them broad 10 discretion in managing closing argument.” State v. Sosa , 2009-NMSC-056, ¶ 25, 147 11 N.M. 351, 223 P.3d 348. An appellate court w ill not find reversible error absent an 12 abuse of that discretion. Id. 13 {7} Section 66-8-101 criminalizes both homic ide by vehicle and great bodily harm 14 by vehicle. Homicide by vehicle is “the killing of a human being in the unlawful 15 operation of a motor vehicle.” Section 66- 8-101(A). Great bodily harm by vehicle is 16 injuring a human being, as defined in NM SA 1978, Section 30-1-12(A) (1963), in the 17 unlawful operation of a motor vehicle. Section 66-8-101(B); § 30-1-12(A) (defining 18 “great bodily harm” as “an injury to th e person which creates a high probability of 195 death[,] or which causes serious disfigurement[,] or which results in permanent or 1 protracted loss or impairment of the function of any member or organ of the body”). 2 Section 66-8-101(C), pursuant to which Defendant was charged and found guilty, 3 provides that “[a] person who commits homicide by vehicle or great bodily harm by 4 vehicle while under the influence of intoxicating liquor . . . is guilty of a third degree 5 felony[.]” 6 {8} Before examining Defendant’s closi ng argument and the court’s at-issue 7 rulings, we briefly discuss the intent requirement of great bodily injury by vehicle. 8 Great bodily injury by vehicle is a general intent crime. See State v. Jordan , 1972- 9 NMCA-033, ¶¶ 1, 9, 83 N.M. 571, 494 P.2d 984 (stating that general criminal intent 10 is a necessary element of homicide by vehicle). Thus, the State was required to prove 11 that Defendant purposefully engaged in anunlawful act, specifically, that Defendant 12 voluntarily drove a vehicle while under the influence of intoxicating liquor. State v. 13 Marquez , 2010-NMCA-064, ¶ 12, 148 N.M. 511, 238 P.3d 880 (discussing the 14 general intent requirement of great bodily injury by vehicle); State v. Dutchover , 15 1973-NMCA-052, ¶¶ 16, 18, 85 N.M. 72, 509 P.2d 264 (holding that evidence that 16 the defendant voluntarily drove a vehicl e while under the influence constituted 17 sufficient evidence of general criminal intent required to conv ict the defendant of 18 homicide by vehicle). Great bodily injury by vehicle is not a specifi c intent crime such 191 In the present case, the jury was gi ven a general intent instruction that 14 pertained to other crimes w ith which Defendant was charge d. Notably, this general 15 intent instruction omitted any mention of and did not apply to the charge of great 16 bodily injury by vehicle. Notably, as well, Defendant does not raise any contention of 17 error related to the fact that the jury was not instructed that general criminal intent is 18 an element of great bodily harm by vehicl e. Defendant has therefore waived any 19 argument in that regard. See State v. Garcia , 2013-NMCA-005, ¶ 9, 294 P.3d 1256 20 (stating that the defendant’s failure to raise an argument in the brief in chief 21 constitutes waiver and the issue will not be considered on appeal). 22 6 that the State was required to prove Defendant intended to run a person over with her 1 vehicle or that she intended to causegreat bodily injury to any person. 1 See State v. 2 Jim , 2014-NMCA-089, ¶ 6, 332 P.3d 870 (stating that a specific intent crime requires 3 proof that the defendant inte nded “to do some further act or achieve some additional 4 consequence” (internal quotation marks and citation omitted)), cert. denied, 2014- 5 NMCERT-006, 328 P.3d 1188. 6 {9} Having reviewed Defendant’s counsel’s closing argument, the State’s relevant 7 objections, and the district court’s rulings, weconclude that the district court did not 8 abuse its discretion when it limited Defendant’s closing argument. The State made 9 three objections during closing argument relati ng to the issue of intent, each of which 10 occurred after Defendant’s counsel argued that the State failed to present evidence that 11 Defendant intentionally ran anyone over with her vehicle; each objection was 12 sustained. After the third objection, the district court granted the State’s request for 13 a corrective instruction by advising the jurythat there was “no element of the case 147 involving intentionally runn ing people over. That’s a misstatement of the law as 1 applied to these facts.” 2 {10} Because great bodily harm by vehicle is not a specific intent crime, Defendant 3 was not entitled to defend herself against that charge by arguing that she did not 4 intentionally or purposefully run anyone over with her vehicle. Cf. State v. Nieto , 5 2000-NMSC-031, ¶ 17, 129 N.M. 688, 12 P.3d 442 (holding th at a defendant has no 6 right to have a legally incorrect jury instruc tion read to the jury or to mislead the jury 7 through a misstatement of the law); Dutchover , 1973-NMCA-052, ¶ 16 (recognizing 8 that, in terms of the crime of homicide by vehicle, it was irrelevant whether the 9 defendant had the specific intent to drive on the wrong side of the street or to kill 10 someone with a motor vehicle). By denying Defendant the opportunity to present her 11 specific intent theory to the jury, the district court acted in accordance with the law, 12 thereby properly exercising its discretion. See State v. Montoya , 1999-NMCA-001, 13 ¶ 5, 126 N.M. 562, 972 P.2d 1153 (stating that under an abuse of discretion standard 14 of review, this Court considers whether th e district court properly applied the law to 15 the facts). 16 Defendant’s Ineffective Assistance of Counsel Argument 17 {11} “We review claims of ineffective assistance of counsel de novo.” State v. 18 Quiñones , 2011-NMCA-018, ¶ 28, 149 N.M. 294, 248 P.3d 336. “To establish a prima 198 facie case of ineffective assistance of c ounsel, the defendant must show that (1) 1 counsel’s performance was deficient in th at it fell below an objective standard of 2 reasonableness; and (2) that the defendant suffered prejudice” as a result of the 3 deficient performance. Id. (alterations, internal quotation marks, and citation omitted). 4 “Failure to prove either prong of the test defeats a claim of ineffective assistance of 5 counsel.” State v. Guerra , 2012-NMSC-027, ¶ 23, 284 P. 3d 1076 (internal quotation 6 marks and citation omitted). 7 {12} Defendant argues that her counsel’s performance was deficient because 8 evidence at trial “raised legitimate issues of duress, self-defense, or defense of others” 9 but her counsel “failed to consider” or gi ve “any real thought” as to whether the jury 10 should be instructed as to those defe nses. Defendant cites no place in the record 11 establishing what defense counsel’s “considerations” or “thoughts” concerning the 12 jury instructions were or might have b een. Further, Defendant does not make any 13 argument with respect to the prejudice prong of the ineffective assistance of counsel 14 test. Thus, even were we to assume that counsel’s performance was deficient, 15 Defendant has failed to make a prima facie case of ineffective assistance of counsel. 16 See id. (recognizing that where the defendant fails to make a showing of prejudice the 17 appellate courts presume eff ective assistance). Accordingl y, we do not consider this 18 issue further. 199 Defendant’s Fundamental Error Argument 1 {13} Defendant argues that fundamental error o ccurred as a result of the district court 2 having failed to sua sponte instruct the ju ry on self-defense. “We will reverse for 3 fundamental error when the foundation or basi s of a defendant’s cas e or an essential 4 right in a defense is affected.” State v. Gee , 2004-NMCA-042, ¶ 8, 135 N.M. 408, 89 5 P.3d 80. Defendant relies on State v. Parish , 1994-NMSC-073, 118 N.M. 39, 878 P.2d 6 988, with no pinpoint reference, for th e proposition that because evidence was 7 presented at trial that would have supporte d a self-defense instruction, self-defense 8 became an essential element of the offense of great bodily injury by vehicle. And she 9 relies on State v. Barber , 2004-NMSC-019, ¶ 20, 135 N.M. 621, 92 P.3d 633, for the 10 proposition stated therein that “failure to instruct the jury on an essential element . . . 11 ordinarily is fundamental error even whenthe defendant fails to object or offer a 12 curative instruction.” 13 {14} In Parish , a voluntary manslaughter case, the jury was instructed that to prove 14 its case, the prosecution had to establish that the defendant killed the victim, that 15 “[t]he defendant knew that his acts created a strong probability of death or great 16 bodily harm to [the victim,]” and that this occurred in New Mexico on a particular 17 date. 1994-NMSC-073, ¶ 6. The jury was not instructed that “unlawfulness” was an 18 element of the crime. Id. ¶ 5. The jury was instructed on self-defense. Id. Our Supreme 1910 Court held that, where the issu e of self-defense is presen ted to the jury, unlawfulness 1 becomes an essential element of the crime of voluntary manslaughter because self2 defense would negate the element of unlawfulness. Id. ¶¶ 8, 10. The ParishCourt 3 concluded that it was reversible error to have omitted the essential element of 4 unlawfulness under the circum stances of that case. Id. ¶ 12. Despite Defendant’s 5 assertion to the contrary, Parish does not stand for the proposition that self-defense 6 is an “element” of the crime of great bodily injury by vehicle. Cf. id. ¶ 10 (“[S]elf7 defense is not a necessary element in all manslaughter cases[.]”). 8 {15} Defendant argues, further, that under Rule 5-608(A) NMRA, the district court 9 had a duty to instruct the jury on all issues necessary to its verdict and that the district 10 court failed in that duty by not instructing the jury on self-defense. Id. (“The court 11 must instruct the jury upon all questions of law essential for a c onviction of any crime 12 submitted to the jury.”). While Rule 5-608(A) imposes a duty to instruct the jury on 13 essential elements of a crime, it does not impose any such duty in regard to defenses 14 that may be raised by a defendant. See State v. Savage , 1992-NMCA-126, ¶ 11, 115 15 N.M. 250, 849 P.2d 1073 (stating that Rule 5-608(A) requires the district court to 16 instruct the jury on essential elements of a crime, it does not require the court to 17 instruct the jury on defenses that are not essential elements of the crime). Defendant 18 cites no authority for the proposition that th e district court’s failure to sua sponte 1911 instruct the jury as to a defense that Defendant did not raise at trial constitutes 1 fundamental error. Barber does not support that proposition. See Barber , 2004- 2 NMSC-019, ¶ 20 (discussing fundamental error as a result of failure to instruct the 3 jury on an essential element of a crime). 4 {16} In sum, self-defense was not an esse ntial element of great bodily injury by 5 vehicle, and the district court did not have a duty to sua sponte instruct the jury 6 regarding that defense. Defendant’s arguments to the contrary fail to demonstrate 7 error, fundamental or otherwise. 8 Defendant’s Argument Regarding Her Absence From Trial 9 {17} On the second day of trial, Defendant was absent from court at 8:50 a.m., the 10 time that the case was set to proceed; it was later revealed by Defendant’s counsel that 11 Defendant was late because she overslept. Defendant’s c ounsel reported to the court 12 that Defendant would be in court by 9:20; Defendant finally arri ved at 9:41 by which 13 time the trial had continued in her absence for approximately nineteen minutes. On 14 appeal, Defendant argues that by proceeding inher absence, the district court violated 15 her Sixth Amendment right to c onfront witnesses against her. See State v. Clements , 16 1988-NMCA-094, ¶ 12, 108 N.M. 13, 765 P.2d 1195 (“A defendant’s right to be 17 present during all stages of a criminal trial has its genesis in the [S]ixth 18 [A]mendment’s [C]onfrontation [C]lause and the [F]ourteenth [A]mendment’s [D]ue 1912 [P]rocess [C]lause.”). We revi ew constitutional issues de novo. State v. Marquart , 1 1997-NMCA-090, ¶ 7, 123 N.M. 809, 945 P.2d 1027. 2 {18} Constitutional rights, including the right to be present during trial, may be 3 waived. State v. Padilla , 2002-NMSC-016, ¶ 12, 132 N.M . 247, 46 P.3d 1247. In the 4 present case, Defendant expre ssly waived her right to be present during the at-issue 5 nineteen minutes of trial when her counsel stated, “I don’t object to proceeding in 6 [Defendant’s] absence given the fact that it was her responsibility to be [in court].” 7 Defendant did not argue below and she doe s not argue on appeal that her counsel 8 improperly waived her right to be present during the at-issue nineteen minutes of trial. 9 Nor does she demonstrate any prejudice, partic ularly since the first witness to testify 10 that day was a defense witn ess, who did not take the stand until 9:40 a.m., less than 11 one minute before Defendant arrived in the courtroom. Having waived her right to be 12 present, Defendant cannot now argue thather absence require s reversal of her 13 convictions. 14 Defendant’s Argument That She Was Deni ed the Ability to Present a Defense 15 {19} Defendant argues that the district court abused its discretion by excluding a 16 witness listed but not called by the State, w ho Defendant decided later that she wanted 17 to call, from testifying on the ground that, in violation of Rule 11-615 NMRA and in 18 contravention of the district court’s openi ng instructions, the witness had remained in 1913 the courtroom during the State’s presentation of its case. See id. (“At a party’s request, 1 the court must order witnesses excluded sothat they cannot h ear other witnesses’ 2 testimony, or the court may do so on its ow n.”). She further argues that by excluding 3 the witness’s testimony, the district court deprived her of her constitutional right to 4 present a defense. 5 {20} We review the district court’s decision to exclude testimony because of a 6 violation of Rule 11-615 for an abuse of discretion. State v. Ruiz , 1995-NMCA-007, 7 ¶ 22, 119 N.M. 515, 892 P.2d 962. We re view constitutional issues de novo. 8 Marquart , 1997-NMCA-090, ¶ 7; see State v. Rosales , 2004-NMSC-022, ¶ 7, 136 9 N.M. 25, 94 P.3d 768 (recognizing that a defendant has a constitutional right to 10 present “witnesses to establish a defens e” (internal quotation marks and citation 11 omitted)). 12 {21} The district court found that Ms. Powers , the at-issue defense witness, “clearly 13 attended virtually the entire trial.” Ms. Powers’s physical appearance rendered her 14 presence conspicuous because, in the court’ s words, she “stands out,” she was one of 15 two, and at the most eight, spectators who attended the trial, and she was one of the 16 two people who sat behind Defendant throughout the trial. The court further 17 determined that to concludethat Defendant’s counsel did not notice that Ms. Powers 18 was present during the trial would be “unreasonable” particularly because Ms. Powers 1914 walked out of the courtroom with Defe ndant during every break, and they were 1 sometimes joined by Defendant’s counsel. Th e district court concluded that it was 2 Defendant’s counsel’s obligation to monito r a witness he intended to call to ensure 3 that they were not in the courtroom duri ng trial and that Ms. Powers should not have 4 been in the courtroom if she was going to testify. Based on the foregoing, the district 5 court ruled that Ms. Powers could not testify. 6 {22} Rule 11-615 serves to prevent a witn ess from tailoring her testimony according 7 to her observations at trial. See Ruiz , 1995-NMCA-007, ¶¶ 21-22 (holding that the 8 district court properly exercised its di scretion under Rule 11- 615 when it excluded a 9 witness from testifying because the witne ss “could have easily tailored her testimony” 10 to accord with the defense’s version of th e facts). Ms. Powers, having witnessed the 11 State’s evidentiary presentation, was in a position to tailor her testimony in a manner 12 favorable to the defense. Under these circ umstances, we will not conclude that the 13 district court abused its discretion. See id. To the extent that Defendant claims that this 14 resulted in a violation of her right to present a defens e, we conclude that by not 15 ensuring that Ms. Powers remained outside of the courtroom during the trial as 16 required by Rule 11-615, Defendant forfeited her right to present Ms. Powers as a 17 defense witness. See Rosales , 2004-NMSC-022, ¶ 8 (recognizing that “[a] defendant’s 18 right to present evidence on his own behalf is subject to his compliance with 1915 established rules of procedure and evidence designed to assure both fairness and 1 reliability in the ascertainment of guilt and innocence” (internal quotation marks and 2 citation omitted)). 3 CONCLUSION 4 {23} We affirm. 5 {24} IT IS SO ORDERED. 6

__________________________________ 7 JONATHAN B. SUTIN, Judge 8 WE CONCUR: 9

__________________________________ 10 MICHAEL D. BUSTAMANTE, Judge 11

__________________________________ 12 LINDA M. VANZI, Judge 13