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

 2 Opinion Number: __________

 3 Filing Date: February 6, 2017

 4 NO. 34,385

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 RAQUEL PERCIVAL,

 9         Defendant-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Benjamin Chavez, District Judge


12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   John J. Woykovsky, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17   Bennett J. Baur, Chief Public Defender
18   Santa Fe, NM
19   Josephine H. Ford, Assistant Public Defender
20   Albuquerque, NM

21 for Appellant
 1                                        OPINION

 2 WECHSLER, Judge.

 3   {1}   Defendant Raquel Percival was convicted in metropolitan court for aggravated

 4 driving while under the influence of intoxicating liquor or drugs (aggravated DWI),

 5 contrary to NMSA 1978, Section 66-8-102 (2010, amended 2016), and careless

 6 driving, contrary to NMSA 1978, Section 66-8-114 (1978). She appealed to the

 7 district court and that court affirmed her convictions. As a basis for her appeal to this

 8 Court, Defendant argues, as she did in the district court, that the metropolitan court

 9 incompletely instructed the jury with respect to her duress defense. Defendant also

10 argues that the metropolitan court’s misreading of an instruction during its oral

11 charge to the jury constituted fundamental error. We conclude that the jury

12 instructions as given did not constitute either reversible or fundamental error. We

13 therefore affirm Defendant’s convictions.

14 BACKGROUND

15   {2}   On February 16, 2012, at approximately 2:45 a.m., Albuquerque Police

16 Department (APD) Officer Nicholas Sheill observed Defendant driving erratically on

17 Eubank Boulevard in Albuquerque, New Mexico. He also observed that Defendant’s

18 license plate lamp was not functioning. He followed Defendant’s vehicle for a short

19 time and then conducted a traffic stop.
 1   {3}   After approaching Defendant’s vehicle, Officer Sheill noted an odor of alcohol

 2 emanating from her person. He also observed that Defendant had bloodshot eyes and

 3 mildly slurred speech. Officer Sheill called for assistance, and APD Officer Charles

 4 Miller arrived to conduct a DWI investigation. As a result of this investigation,

 5 Officer Miller placed Defendant under arrest for aggravated DWI. She was also

 6 charged with careless driving and an equipment violation.

 7   {4}   At trial, Defendant did not deny that she was guilty of the charged offenses but

 8 instead claimed that certain circumstances required her to drive in violation of the

 9 law. Specifically, Defendant testified that: (1) she was visiting a male friend and that

10 she planned to spend the night at his apartment; (2) she consumed alcohol at the

11 apartment; (3) after she consumed alcohol, her friend invited another man to the

12 apartment; (4) this person’s behavior and comments made her feel uncomfortable and

13 unsafe; and (5) fearing for her safety, she left the house while the two men were in

14 the backyard. Officer Sheill stopped Defendant shortly after she left her friend’s

15 apartment.

16   {5}   Defendant tendered jury instructions that imbedded the absence of duress as

17 an essential element of aggravated DWI and careless driving. The metropolitan court

18 refused Defendant’s tendered instructions and instead gave, among others, UJI 14-

19 4506 NMRA, UJI 14-4505 NMRA, and UJI 14-5130 NMRA.


                                               2
 1   {6}   During its oral charge to the jury, the metropolitan court read each jury

 2 instruction. While reading UJI 14-5130, the metropolitan court misspoke; the result

 3 was an incorrect articulation of the State’s burden of proof. Defendant did not object

 4 to this incorrect recitation of the instruction.

 5   {7}   Defendant was convicted on all charges. After the district court affirmed the

 6 convictions, Defendant filed this appeal.

 7 STANDARD OF REVIEW AND PRESERVATION

 8   {8}   Appellate courts review a trial court’s rejection of proposed jury instructions

 9 de novo, “because [the rejection] is closer to a determination of law than a

10 determination of fact.” State v. Ellis, 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186 P.3d

11 245 (internal quotation marks and citation omitted). If the alleged error has been

12 preserved, we review for reversible error. State v. Benally, 2001-NMSC-033, ¶ 12,

13 131 N.M. 258, 34 P.3d 1134. If the alleged error has not been preserved, we review

14 for fundamental error. Id. An allegation of error is generally preserved by “[t]he

15 tender but refusal of an instruction[.]” Apodaca v. AAA Gas Co., 2003-NMCA-085,

16 ¶ 40, 134 N.M. 77, 73 P.3d 215. “A jury instruction which does not instruct the jury

17 upon all questions of law essential for a conviction of any crime submitted to the jury

18 is reversible error.” Ellis, 2008-NMSC-032, ¶ 14 (internal quotation marks and

19 citation omitted). Reversible error also occurs “if the jury is given two contradictory


                                               3
 1 instructions, each of which is complete and unambiguous, . . . because it is impossible

 2 to tell if the error is cured by the correct instruction[.]” State v. Parish, 1994-NMSC-

 3 073, ¶ 4, 118 N.M. 39, 878 P.2d 988.

 4   {9}    Defendant tendered alternate jury instructions that the metropolitan court

 5 rejected. Defendant additionally argued that the uniform jury instructions, without

 6 modification, could result in juror confusion. Because Defendant sufficiently

 7 preserved this issue, we review for reversible error. With respect to the remaining and

 8 unpreserved issue raised by Defendant on appeal, we review for fundamental error.

 9 See Benally, 2001-NMSC-033, ¶ 16 (“[U]npreserved error in jury instructions is

10 ‘fundamental’ when it remains uncorrected, thereby allowing juror confusion to

11 persist.”).

12 UNIFORM JURY INSTRUCTION 14-5130

13   {10}   UJI 14-5130 instructs on the issue of duress, stating,

14                 Evidence has been presented that the defendant was forced to
15          ______________ under threats. If the defendant feared immediate great
16          bodily harm to himself or another person if he did not commit the crime
17          and if a reasonable person would have acted in the same way under the
18          circumstances, you must find the defendant not guilty.

19                The burden is on the state to prove beyond a reasonable doubt that
20          the defendant did not act under such reasonable fear.

21 (Footnote omitted.) In 1996, our Supreme Court amended the use notes

22 accompanying various justification-related uniform jury instructions to require that

                                               4
 1 the absence of the relevant consideration be added as an essential element. See

 2 Supreme Court Order No. 96-8300 (Oct. 30, 1996) (amending the use notes to UJI

 3 14-5101 to -5103 NMRA, UJI 14-5106 NMRA, UJI 14-5110 to -5111 NMRA, UJI

 4 14-5120 NMRA, UJI 14-5132 NMRA, UJI 14-5170 to -5174 NMRA, UJI 14-5180

 5 to -5184 NMRA). However, the use note accompanying UJI 14-5130 was not

 6 amended at that time and does not require that the metropolitan court add the absence

 7 of duress as an essential element of the charged offense. Contra, e.g., UJI 14-5181

 8 Use Note 1 (“If this instruction is given, add to the essential elements instruction for

 9 the offense charged, ‘The defendant did not act in self defense.’ ”).

10   {11}   An analytical distinction exists between duress and other justification-based

11 defenses. Compare State v. Rios, 1999-NMCA-069, ¶ 12, 127 N.M. 334, 980 P.2d

12 1068 (“A defendant pleading duress is not attempting to disprove a requisite mental

13 state. Defendants in that context are instead attempting to show that they ought to be

14 excused from criminal liability because of the circumstances surrounding their

15 intentional act.” (citation omitted)), with State v. Armijo, 1999-NMCA-087, ¶ 14, 127

16 N.M. 594, 985 P.2d 764 (“[A] claim of self defense negates the element of

17 unlawfulness[.]”), and State v. Contreras, 2007-NMCA-119, ¶ 15, 142 N.M. 518, 167

18 P.3d 966 (“Mistake of fact is a defense when it negates the existence of the mental

19 state essential to the crime charged.” (internal quotation marks and citation omitted)),


                                              5
 1 and State v. Brown, 1996-NMSC-073, ¶ 21, 122 N.M. 724, 931 P.2d 69 (“Like

 2 mistake and mental illness, a state of intoxication may also negate a required offense

 3 element[.]”). This distinction—that duress excuses intentional conduct while the other

 4 justification-based defenses negate an essential element of the charged

 5 offense—supports the omission of UJI 14-5130 from Order No. 96-8300.1 As a result,

 6 the metropolitan court did not err in refusing Defendant’s tendered instructions unless

 7 the instructions given by the metropolitan court failed to “instruct the jury upon all

 8 questions of law essential for a conviction[,]” Ellis, 2008-NMSC-032, ¶ 14, or were

 9 facially erroneous, vague, or contradictory. Parish, 1994-NMSC-073, ¶ 4.

10 INTERPLAY BETWEEN THE CHARGED OFFENSES AND DURESS

11 Essential Elements

12   {12}   To secure a conviction, the state must prove each of the essential elements of

13 the charged offense. State v. Osborne, 1991-NMSC-032, ¶ 40, 111 N.M. 654, 808

14 P.2d 624. “When the jury is not instructed on the essential elements of the crime, it

15 has not been instructed on the law applicable to the crime charged.” State v. Kendall,

16 1977-NMCA-002, ¶ 24, 90 N.M. 236, 561 P.2d 935, judgment reversed in part by



          1
17          We are uncertain as to the rationale underlying the decision to include UJI 14-
18 5132, which addresses a defendant’s claim that the defendant escaped from prison as
19 a result of duress, in Order No. 96-8300. We leave this question to our Supreme
20 Court.

                                               6
 1 Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464. The failure to instruct

 2 on all questions of law is reversible error. Ellis, 2008-NMSC-032, ¶ 14.

 3   {13}   Defendant argues that the metropolitan court’s refusal to add the absence of

 4 duress as an essential element to the charged offenses amounts to a failure to instruct

 5 on all essential elements. The charges against Defendant included aggravated DWI

 6 and careless driving. In support of her argument, Defendant cites Parish for the

 7 proposition that “her duress claim put the element of unlawfulness factually at

 8 issue[.]”

 9   {14}   In Parish, the defendant was attacked by several people while walking in Taos,

10 New Mexico. 1994-NMSC-073, ¶ 2. In response to this attack, the defendant shot and

11 killed one of his attackers. Id. The defendant claimed that his actions were in

12 self-defense, but the jury convicted him of voluntary manslaughter. Id. ¶ 3.

13   {15}   The relevant statute defined “voluntary manslaughter” as “the unlawful killing

14 of a human being without malice . . . upon a sudden quarrel or in the heat of passion.”

15 Id. ¶ 5 (omission in original); NMSA 1978, § 30-2-3 (1994). However, the jury

16 instructions given by the district court did not instruct on the question of

17 unlawfulness, which is “the element of [the charged offense] that is negated by self-

18 defense.” Parish, 1994-NMSC-073, ¶ 8. Because the instructions did not instruct the

19 jury on an essential element of the charged offense, they were erroneous. Id. ¶ 13.


                                               7
 1 Parish, however, does not analyze a duress defense and is therefore distinguishable

 2 from the present case.

 3   {16}   Our Supreme Court has adopted uniform jury instructions for both aggravated

 4 DWI and careless driving. UJI 14-4506; UJI 14-4505. These jury instructions outline

 5 the essential elements of each charge.

 6          1.    The defendant operated a motor vehicle;

 7          2.     Within three hours of driving, the defendant had an alcohol
 8          concentration of sixteen one-hundredths (.16) grams or more in [one
 9          hundred milliliters of blood;] [or] [two hundred ten liters of breath;] and
10          the alcohol concentration resulted from alcohol consumed before or
11          while driving the vehicle.

12          3.   This happened in New Mexico, on or about the ___ day of
13          __________, ___.

14 UJI 14-4506 (footnotes omitted).

15          1.    The defendant operated a motor vehicle on a highway;

16          2.    The defendant operated the motor vehicle in a careless, inattentive
17          or imprudent manner without due regard for the width, grade, curves,
18          corners, traffic, weather, road conditions and all other attendant
19          circumstances;

20          3.   This happened in New Mexico, on or about the ____ day of
21          __________, ____.

22 UJI 14-4505 (footnotes omitted). The metropolitan court gave UJI 14-4506 and UJI

23 14-4505 in this case. A conviction for careless driving requires a finding of intent.

24 See UJI 14-141 Use Note 1 (“This instruction must be used with every crime except

                                                8
 1 for the relatively few crimes not requiring criminal intent or those crimes in which the

 2 intent is specified in the statute or instruction.”). Therefore, UJI 14-4505 must be

 3 accompanied by UJI 14-141, which defines “general criminal intent.” It is this general

 4 criminal intent that is negated by certain justification-based defenses. See, e.g, State

 5 v. Gonzales, 1971-NMCA-007, ¶ 25, 82 N.M. 388, 482 P.2d 252 (“Intoxication may

 6 be shown to negative the existence of the required intent.”). As a strict liability crime,

 7 aggravated DWI does not require criminal intent. State v. Gurule, 2011-NMCA-042,

 8 ¶ 18, 149 N.M. 599, 252 P.3d 823.

 9   {17}   As discussed above, duress and the other justification-based defenses are not

10 functionally equivalent.2 Duress does not negate an element of the charged offense

11 but instead excuses intentional conduct. Rios, 1999-NMCA-069, ¶ 12. For this

12 reason, including additional language addressing the absence of duress within UJI 14-

13 4506 or UJI 14-4505 would not negate any of the essential elements required for a

14 conviction of either offense, or the general criminal intent required for a conviction

15 of careless driving. This rationale encompasses the element of unlawfulness raised

16 by Defendant on appeal. Therefore, UJI 14-4506 and UJI 14-4505 as given

17 sufficiently “instruct[ed] the jury upon all questions of law essential for a


         2
18         Defendant’s brief in chief and reply brief liken self-defense and duress by
19 misquoting Rios, 1999-NMCA-069, ¶ 12. Rios does not equate self-defense and
20 duress as implied by Defendant.

                                               9
 1 conviction[,]” when given in conjunction with UJI 14-5130. Ellis, 2008-NMSC-032,

 2 ¶ 14.

 3 Facially Erroneous, Vague, or Contradictory Jury Instructions

 4   {18}   Because the instructions given instructed on all questions of law, they

 5 constitute reversible error only if they are facially erroneous, vague, or contradictory.

 6 Parish, 1994-NMSC-073, ¶ 4. A jury instruction is facially erroneous if it presents

 7 an incurable problem. State v. Cabezuela, 2011-NMSC-041, ¶ 21, 150 N.M. 654, 265

 8 P.3d 705; Parish, 1994-NMSC-073, ¶ 4. A jury instruction is vague, or ambiguous,

 9 if it is subject to more than one interpretation. Parish, 1994-NMSC-073, ¶ 4. None

10 of these conditions applies to the uniform jury instructions given in this case.

11 Contradictory jury instructions constitute reversible error if each instruction “is

12 complete and unambiguous . . . because it is impossible to tell if the error is cured by

13 the correct instruction[,]” or if “a reasonable juror would have been confused or

14 misdirected.” Id. However, in determining whether jury instructions are contradictory,

15 the “instructions must be considered as a whole[.]” Id. (internal quotation marks and

16 citation omitted).

17   {19}   UJI 14-4506 and UJI 14-4505 as given outline the essential elements required

18 to convict Defendant of aggravated DWI and careless driving respectively. UJI 14-

19 5130 as given outlines conditions under which Defendant’s duress defense would (1)


                                              10
 1 excuse her conduct and (2) require a finding of not guilty. See UJI 14-5130 (“If the

 2 defendant feared immediate great bodily harm to himself or another person if he did

 3 not commit the crime and if a reasonable person would have acted in the same way

 4 under the circumstances, you must find the defendant not guilty.”). Intuitively, jurors

 5 need not consider a duress defense if they find that the state did not prove all of the

 6 elements of the underlying offenses beyond a reasonable doubt. Cf. State v. James,

 7 1971-NMCA-156, ¶ 18, 83 N.M. 263, 490 P.2d 1236 (noting that an outright finding

 8 of not guilty by a jury negates the jury’s need to analyze the defendant’s insanity

 9 defense), overruled in part by State v. Victorian, 1973-NMSC-008, ¶ 12, 84 N.M.

10 491, 505 P.2d 436.

11   {20}   For this reason, UJI 14-5130 does not contradict either UJI 14-4506 or UJI 14-

12 4505. Instead, UJI 14-5130 is a necessary and complementary second step if a jury

13 concludes that a defendant is guilty beyond a reasonable doubt of each essential

14 element outlined in UJI 14-4506 or UJI 14-4505. This two-step process would not

15 confuse a reasonable juror.

16   {21}   In both her brief in chief and reply brief, Defendant makes reference to our

17 Supreme Court’s holding in Parish, which provides that “an erroneous instruction

18 cannot be cured by a subsequent correct one[.]” 1994-NMSC-073, ¶ 4 (internal

19 quotation marks and citation omitted). This rule requires, of course, that the


                                              11
 1 instruction at issue actually be erroneous as a matter of law. Because the instructions

 2 given in this case are not facially erroneous, vague, or contradictory, they do not

 3 constitute reversible error.

 4 ORAL CHARGE TO JURY

 5   {22}   Defendant additionally argues that the metropolitan court’s misreading of UJI

 6 14-5130 in its oral charge to the jury constitutes fundamental error. “[U]npreserved

 7 error in jury instructions is ‘fundamental’ [only] when it remains uncorrected[.]”

 8 Benally, 2001-NMSC-033, ¶ 16.

 9   {23}   The metropolitan court read each instruction aloud to the jury. While doing so,

10 it misspoke, stating “[t]he burden is on the state to prove beyond a reasonable doubt

11 that the defendant acted under such reasonable fear” instead of “[t]he burden is on the

12 state to prove beyond a reasonable doubt that the defendant did not act under such

13 reasonable fear.” UJI 14-5130 (emphasis added). This misstatement could result in

14 juror confusion as to the State’s burden of proof.

15   {24}   However, our review of the record leads us to believe that this error was

16 corrected by the correct articulation of the State’s burden in the written jury

17 instructions. As noted by the metropolitan court prior to its oral recitation of the

18 instructions to the jury, “You do not have to take notes on this, because this packet




                                              12
 1 that I’m going to read from will actually be given to you to take back to the jury

 2 room.”

 3   {25}   In State v. Armendarez, 1992-NMSC-012, ¶ 11, 113 N.M. 335, 825 P.2d 1245,

 4 the prosecutor erroneously recited the mens rea requirement in a first degree murder

 5 case. The defendant did not object at trial but argued fundamental error on appeal. Id.

 6 Our Supreme Court held that the written copies of jury instructions were sufficient

 7 to overcome any potential prejudice caused by the prosecutor’s misstatement and

 8 noted that jurors are presumed to follow the written instructions. Id. ¶ 13; see State

 9 v. Smith, 2001-NMSC-004, ¶ 40, 130 N.M. 117, 19 P.3d 254 (“Juries are presumed

10 to have followed the written instructions.”).

11   {26}   In a different context, this Court recently held that “the purpose of written jury

12 instructions relates directly to the [limited] ability of jurors to remember oral

13 instructions once they have retired to the jury room.” State v. Ortiz-Castillo, 2016-

14 NMCA-045, ¶ 12, 370 P.3d 797. This purpose is consistent with other New Mexico

15 cases requiring that written jury instructions be provided in order to “properly

16 enunciate the law on the subject.” Territory v. Lopez, 1884-NMSC-012, ¶ 10, 3 N.M.

17 156, 2 P. 364; see State v. Greenlee, 1928-NMSC-020, ¶ 27, 33 N.M. 449, 269 P. 331

18 (“Since 1880 it has evidently been the legislative policy that there should be an




                                                13
 1 authoritative record to which the jurors might refer to avoid misapprehension or

 2 differences of opinion[.]”).

 3   {27}   The metropolitan court’s written instruction on duress, which was available

 4 during the jury’s deliberations, correctly articulated the State’s burden with respect

 5 to Defendant’s claim of duress. We thus conclude that the metropolitan court’s

 6 misstatement did not go “uncorrected” such that fundamental error occurred. Benally,

 7 2001-NMSC-033, ¶ 16; see, e.g., People v. Prieto, 66 P.3d 1123, 1142 (Cal. 2003)

 8 (“[T]he misreading of a jury instruction does not warrant reversal if the jury received

 9 the correct written instructions.”).

10 CONCLUSION

11   {28}   For the foregoing reasons, we affirm.

12   {29}   IT IS SO ORDERED.


13                                                  ________________________________
14                                                  JAMES J. WECHSLER, Judge


15 WE CONCUR:


16 ________________________________
17 JONATHAN B. SUTIN, Judge


18 ________________________________
19 M. MONICA ZAMORA, Judge

                                             14
