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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   No. 36,225

 5 CINDERELLA SAAVEDRA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
 8 Gerald E. Baca, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Aarons Law Firm PC
13 Stephen D. Aarons
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 HANISEE, Judge.
 1   {1}   Defendant appeals from her conviction of aggravated battery without great

 2 bodily harm. We previously issued a notice of proposed summary disposition in which

 3 we proposed to affirm. Defendant has filed a memorandum in opposition thereto.

 4 After due consideration, we remain unpersuaded.

 5   {2}   In her memorandum in opposition, Defendant reiterates her position that her

 6 testimony that she hit the victim “out of panic” was sufficient to warrant an instruction

 7 on simple battery as a lesser included offense because it supported her theory that she

 8 did so without any intent to injure the victim. [MIO 2] Defendant argues that her

 9 testimony established that she was having a panic attack, citing the fact that, in closing

10 argument, the prosecutor characterized her testimony as having said that she was

11 having a panic attack. [Id.] However, the memorandum in opposition acknowledges

12 that Defendant’s exact words were that she hit the victim over the face and head “out

13 of panic” and does not challenge our observation that prior to doing so and breaking

14 the pool stick in half in the process, Defendant had become enraged, had pushed the

15 victim to the ground, had armed herself with the pool stick after the two had been

16 separated, had instigated the victim to come out of her room again, and had warned

17 the victim not to approach her. [Id.; RP 195-97] Regardless of the prosecutor’s

18 subsequent characterization of Defendant’s testimony, we remain unpersuaded that

19 her isolated statement that she acted “out of panic[,]” without more, “tend[ed] to


                                               2
 1 establish that [simple battery was] the highest degree of crime committed.” State v.

 2 Pettigrew, 1993-NMCA-095, ¶ 5, 116 N.M. 135, 860 P.2d 777. Contrary to

 3 Defendant’s assertion, our notice of proposed summary disposition did not state that

 4 “no reasonable jury could believe Defendant when she testified that she struck out of

 5 panic.” [MIO 5] Rather, we proposed to hold that her testimony, coupled with the

 6 other evidence presented at trial, was “inconsistent with a lack of intent to injure.”

 7 [CN 4] Defendant’s reliance on State v. Skippings, 2011-NMSC-021, 150 N.M. 216,

 8 258 P.3d 1008, is misplaced. [MIO 5-6] In Skippings, the victim died after she and the

 9 defendant “became entangled, with [the v]ictim straddling [the d]efendant. [The

10 d]efendant sought to extricate himself from [the v]ictim and forced her off of him,

11 resulting in her landing on the asphalt roadway and cracking her skull.” Id. ¶ 6. Unlike

12 the present case, there was no evidence in Skippings that the defendant had armed

13 himself in advance with any type of weapon, and there was evidence in addition to the

14 defendant’s testimony to suggest that he was merely trying to free himself from the

15 victim. Id.

16   {3}   Defendant further cites State v. Seal, 1966-NMSC-123, 76 N.M. 461, 415 P.2d

17 845 (reviewing the sufficiency of the evidence to support conviction of simple

18 battery), and State v. Hill, 2001-NMCA-094, 131 N.M. 195, 34 P.3d 139 (reviewing

19 the denial of requested self defense, resisting, obstructing, or evading an officer, and


                                              3
 1 entrapment instructions). [MIO 6] Neither one of these cases addresses the issue

 2 before us, and thus we fail to see how they support Defendant’s position.

 3   {4}   Defendant further argues that our observation that her testimony was relevant

 4 to the issue of self-defense requires reversal. [MIO 7-8] Defendant cites a thirty-year-

 5 old out-of-state case dealing with imperfect self-defense as authority for the

 6 proposition that “ ‘one who truly believes that there is a need for self[-]defense cannot

 7 be said to act with intent to injure.’ ” [MIO 7] (quoting People v. McKelvy, 239 Cal.

 8 Rptr. 782 (1987)) (internal quotation marks and alterations omitted). However, the

 9 language relied upon by Defendant was dictum by a single judge, and Defendant fails

10 to cite any authority demonstrating that it has been adopted in that jurisdiction or ours.

11 [Id.] See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329

12 (stating that where a party cites no authority to support an argument, we may assume

13 no such authority exists). As such, we remain unpersuaded.

14   {5}   Defendant further argues that the jury’s questions whether “[the battery] can be

15 thoughtless and spur of the moment?” and “what constitutes purpose and intention to

16 harm?” establish that reversal is in order. [MIO 3] At most, the first inquiry

17 demonstrates that at least one juror questioned the essential element of specific intent,

18 whereas the second inquiry merely demonstrates that at least one juror wished to

19 receive additional definitions. As such, we hold that these questions do not establish


                                               4
1 that there was “some evidence tending to establish that [simple battery was] the

2 highest degree of crime committed.” Pettigrew, 1993-NMCA-095, ¶ 5. For the same

3 reason, we hereby deny Defendant’s motion to supplement the record proper with

4 these jury questions.

5   {6}   Therefore, and for the reasons stated in our calendar notice, we affirm.

6   {7}   IT IS SO ORDERED.



7                                                _________________________________
8                                                J. MILES HANISEE, Judge


9 WE CONCUR:



10 _________________________________
11 MICHAEL E. VIGIL, Judge



12 ________________________________
13 TIMOTHY L. GARCIA, Judge




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