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

 2 Opinion Number: _______________

 3 Filing Date: March 2, 2016

 4 NO. 33,934

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 CHRIS BAXENDALE,

 9       Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Briana H. Zamora, District Judge

12 Hector H. Balderas, Attorney General
13 Laura E. Horton, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Jorge A. Alvarado, Chief Public Defender
17 Kathleen T. Baldridge, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1                                       OPINION

 2 VANZI, Judge.

 3   {1}   Defendant Christopher Baxendale appeals from his convictions for aggravated

 4 assault against a household member with a deadly weapon, contrary to NMSA 1978,

 5 § 30-3-13 (1995), and aggravated assault with a deadly weapon, contrary to NMSA

 6 1978, § 30-3-2(A) (1963). Defendant challenges the district court’s refusal to give his

 7 requested instructions on self defense and defense of property. He also contends that

 8 his convictions for two counts of aggravated assault with a deadly weapon violate his

 9 constitutional right against double jeopardy. We conclude that the district court

10 committed reversible error when it did not instruct the jury on defense of habitation

11 and therefore reverse and remand for a new trial. Consequently, we need not reach

12 Defendant’s double jeopardy claim.

13 BACKGROUND

14   {2}   Defendant and Christina Lee met and began dating in high school. Although

15 never married, they moved in together and had four children over the course of their

16 twelve-year relationship. In 2005 or 2006, Defendant purchased a home on San

17 Jacinto Northeast in Albuquerque, New Mexico, where he, Christina, and their

18 children lived until 2010. Only Defendant’s name was on the mortgage; Christina’s

19 was not. During the summer of 2010, the couple broke up. Christina took the children
 1 to live with her at her mother’s home. However, after less than one week, Christina’s

 2 mother expressed that she could not afford to have Christina and the children living

 3 with her. Christina then asked Defendant if she and the children could stay with him

 4 until she finished school and could support herself and the children. Defendant

 5 agreed, and they maintained this living arrangement until the last day of 2010.

 6   {3}   At approximately three o’clock in the afternoon on December 31, 2010,

 7 Christina and the children went to her grandmother’s home to celebrate New Year’s

 8 Eve. Christina sent a text message to Defendant, who was at work at that time, to

 9 invite him to her grandmother’s, but he did not go. Instead, over the course of the

10 evening, Defendant and Christina exchanged a number of text messages, with

11 Defendant indicating his desire that she not return home. Christina replied that that

12 was their home and that’s where they lived. Defendant let Christina know that he

13 would not be at home because he was going out with a friend. He followed up with

14 a message to “have fun getting in.”

15   {4}   Christina and the children left her grandmother’s house at approximately 12:30

16 a.m., returning to the house on San Jacinto. The house was dark when they arrived.

17 Christina noticed that there was a padlock on a newly welded hook attached to the

18 wrought iron security door in front of the house. She took her oldest daughter to

19 check on the back door, leaving the other three children in her running car in the


                                              2
 1 driveway. She discovered that the back security door similarly had a padlock on a

 2 newly welded hook. Although she had a key to the front and back doors, as well as

 3 to the wrought iron security doors in front and back, she did not have a key to unlock

 4 the padlocks, which had been placed on the security doors sometime after she had

 5 gone to her grandmother’s house.

 6   {5}   Christina put her daughter in the car and proceeded across the street to see if

 7 her neighbor had anything she could use to get into the house. The neighbor, Donald

 8 “Sonny” Trombley, and a man named Gus accompanied Christina back across the

 9 street to her front door. Not wanting to appear as if they were breaking into the house,

10 Sonny suggested that they go to the back door. According to Christina’s testimony,

11 when Sonny saw the padlock on the back security door, he went to his house to get

12 something to break the lock off. When he returned, Sonny used a “clamp” tool to

13 break the padlock. According to Sonny, however, he did not use a tool to break the

14 lock; instead, he testified that he broke the lock with his hand. Regardless of how the

15 lock was broken, the testimony indicated that it was indeed broken off approximately

16 ten to fifteen minutes after they had entered the backyard.1




         1
17         Although the time line is unclear, it appears that Gus left sometime before the
18 lock was broken.

                                              3
 1   {6}   As Christina began to open the iron security door, she heard a popping sound.

 2 She began to laugh, thinking that Defendant must have put firecrackers somewhere

 3 around the handle to the door. Sonny, on the other hand, thought it was a gunshot.

 4 Christina then began to unlock the back door, when a second, louder sound rang out.

 5 Debris from the wooden door fell into Christina’s face and hair. Afraid, Sonny said

 6 that it was a gunshot and ran home. Christina, still standing at the door, saw

 7 Defendant standing in the house with a shotgun in his hand. Defendant said, “Holy

 8 shit,” and then followed that up with “you’re breaking and entering.” After an

 9 argument with Defendant, Christina called 911.

10   {7}   Although Defendant did not testify at trial, the State admitted the statement he

11 made to Albuquerque Police Department (APD) Detective Gonterman, as well as

12 testimony by APD Officer Patrick regarding his conversation with Defendant.

13 According to the detective, Defendant stated that he had added the padlocks to the

14 security doors around lunchtime on New Year’s Eve. Defendant told the detective

15 that when he spoke to Christina the previous evening, she did not indicate that she

16 and the children would be returning home. According to Defendant’s statement, he

17 spent the evening watching television. He decided to take a shower and then retire for

18 the night. While in the shower, he heard a crash or bang outside. Scared, Defendant

19 grabbed his shotgun and ran to the back door. He could not see who was outside. He


                                              4
 1 heard what sounded like the back security door being ripped off. He thought someone

 2 was trying to break into his house. He then pointed the shotgun at the back door,

 3 aimed high, and shot.

 4   {8}   Although Defendant admitted to the officers that he had only fired the shotgun,

 5 the State presented testimony from a firearms expert who opined that a second hole

 6 in the door could have been caused by a .38 caliber handgun seized from Defendant’s

 7 home, given the fact that a spent .38 caliber casing was found at the scene. Based on

 8 this testimony, the State proceeded on a theory that Defendant had fired two shots at

 9 the door—the .38 caliber handgun that produced the “firecracker” sound, and the

10 shotgun, which caused the louder bang and the resultant spray of debris. Defendant

11 does not appear to have challenged this two-shot theory, opting instead to present

12 expert testimony that the shots were fired “in a manner consistent with a defensive

13 position.”

14   {9}   Following the presentation of evidence, Defendant requested—in accordance

15 with his theory that the ballistics proved that he fired the two shots from a defensive

16 position—that jury instructions be given on self defense and defense of property. The

17 district court denied the request, finding that the facts did not support either of the

18 requested instructions.




                                              5
 1 DISCUSSION

 2 Jury Instructions

 3   {10}   On appeal, Defendant contends that he was entitled to instructions on self

 4 defense and defense of property and that the district court erred in denying his

 5 tendered instructions. The propriety of denying a jury instruction is a mixed question

 6 of law and fact that we review de novo. State v. Gaines, 2001-NMSC-036, ¶ 4, 131

 7 N.M. 347, 36 P.3d 438. A defendant is entitled to an instruction on his or her theory

 8 of the case if evidence has been presented that is “sufficient to allow reasonable

 9 minds to differ as to all elements of the offense.” State v. Gonzales, 2007-NMSC-059,

10 ¶ 19, 143 N.M. 25, 172 P.3d 162. “When considering a defendant’s requested

11 instructions, we view the evidence in the light most favorable to the giving of the

12 requested instructions.” State v. Contreras, 2007-NMCA-119, ¶ 8, 142 N.M. 518, 167

13 P.3d 966 (alteration, internal quotation marks, and citation omitted).

14 A.       Preservation

15   {11}   In order to determine the proper standard of review, we must first determine

16 whether the district court’s refusal to give Defendant’s tendered instructions on self

17 defense and defense of property was preserved for appeal. See State v. Benally, 2001-

18 NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (“The standard of review we apply to

19 jury instructions depends on whether the issue has been preserved. If the error has


                                              6
 1 been preserved we review the instructions for reversible error. If not, we review for

 2 fundamental error.” (citation omitted)). Generally, to preserve error on a district

 3 court’s refusal to give a tendered instruction, the defendant must tender a legally

 4 correct statement of the law. State v. Jernigan, 2006-NMSC-003, ¶ 10, 139 N.M. 1,

 5 127 P.3d 537; accord Rule 5-608(D) NMRA (“[F]or the preservation of error in the

 6 charge, . . . a correct written instruction must be tendered before the jury is

 7 instructed.”).

 8   {12}   In this case, Defendant tendered two written instructions: (1) self defense by

 9 means of nondeadly force, UJI 14-5181 NMRA; and (2) defense of property, UJI 14-

10 5180 NMRA. The State argued below, and continues to do so on appeal, that

11 Defendant was not entitled to either of these particular jury instructions because he

12 used deadly force when he twice shot firearms at his back door. Specifically,

13 regarding Defendant’s request for a defense of property instruction, the State argued

14 to the district court—based on the Committee Commentary to UJI 14-5180—that

15 deadly force may only be used for protection of a person’s real or personal property

16 if the interference is accompanied by a deadly force, in which case a self defense

17 instruction would be given instead. In essence, the State’s argument is that UJI 14-

18 5180 only applies when a defendant uses nondeadly force in defense of property

19 because the use of deadly force in defense of property would be unreasonable as a


                                               7
 1 matter of law. This view finds support in Brown v. Martinez, 1961-NMSC-040, ¶ 22,

 2 68 N.M. 271, 361 P.2d 152, where the Court observed that “[t]he use of a deadly

 3 weapon in the protection of property is generally held, except in extreme cases, to be

 4 the use of more than justifiable force, and to render the owner of property liable, both

 5 civilly and criminally, for the assault.” (Internal quotation marks and citations

 6 omitted.) Defendant replies that “[t]his is not a deadly force case[,]” contending that

 7 he “presented uncontroverted expert testimony that both shots had been fired at an

 8 upward angle” and that “[t]he angle of the shots fired suggest[s] that neither shot was

 9 fired for the purpose of injuring or killing anyone[.]”

10   {13}   We have previously concluded that deadly force is the force employed, whether

11 or not it results in a lethal effect. State v. Cardenas, 2016-NMCA-___, ¶ 18,

12 ___P.3d___ (No. 33,564, Feb. 16, 2016) (noting that deadly force is a “[v]iolent

13 action known to create a substantial risk of causing death or serious bodily harm.”);

14 accord State v. Lucero, 1998-NMSC-044, ¶ 9, 126 N.M. 552, 972 P.2d 1143

15 (determining that the brandishing and firing of a deadly weapon into the air was a

16 show of potentially deadly force that “created a substantial risk of death or great

17 bodily harm”). In this case, Defendant shot two firearms, including a shotgun, at his

18 back door, knowing that at least one person was just on the other side of the door. We

19 would be hard-pressed to conclude that Defendant’s actions created less of a risk of


                                              8
 1 death or serious bodily harm because of either his intent in pulling the trigger or the

 2 fact that he shot from a “defensive position.” Further, we note that Defendant’s own

 3 expert testified that the smaller caliber bullet entered the door “a little over four feet

 4 off the ground.” We determine, therefore, that the two tendered instructions—setting

 5 forth the standards for self defense and defense of property applicable to the use of

 6 nondeadly force by a defendant—were deficient in that they incorrectly stated the law

 7 as it related to Defendant’s actions on the night of the incident.

 8   {14}   However, this does not end our analysis. We have held that if the record

 9 reflects that the court clearly understood the type of instruction the defendant wanted

10 and understood the tendered instruction needed to be modified to correctly state the

11 law, then the issue is deemed preserved for appellate review. State v. Hill, 2001-

12 NMCA-094, ¶ 7, 131 N.M. 195, 34 P.3d 139. As our Supreme Court has stated, the

13 “rationale for allowing such flexibility regarding preservation is reinforced by the

14 actual purpose of Rule 5-608(D) NMRA, which is to alert the trial court to the

15 defendant’s argument.” Jernigan, 2006-NMSC-003, ¶ 10 (footnote omitted). In this

16 case, it is clear that Defendant was asking for a self defense instruction, as well as an

17 instruction that would justify his actions in defense of his home, given that Defendant

18 listed his residence on San Jacinto as the property he was protecting. While

19 Defendant’s argument that the force he used was “defensive” and, therefore,


                                               9
 1 nondeadly, may have been misguided, his use of potentially deadly force in protecting

 2 either himself or his home did not make these defenses unavailable. Instead, it simply

 3 required the consideration of defense instructions that more accurately stated the law

 4 applicable to the facts of this case.

 5   {15}   As the State appears to acknowledge in its answer brief, there are two

 6 instructions that take into account the amount of force used by Defendant: self

 7 defense by means of deadly force, UJI 14-5183 NMRA, and defense of habitation,

 8 UJI 14-5170 NMRA. “Defense of habitation has long been recognized in New

 9 Mexico.” State v. Boyett, 2008-NMSC-030, ¶ 15, 144 N.M. 184, 185 P.3d 355. “It

10 gives a person the right to use lethal force against an intruder when such force is

11 necessary to prevent the commission of a violent felony in his or her home.” Id.; see

12 also State v. Couch, 1946-NMSC-047, ¶ 30, 52 N.M. 127, 193 P.2d 405 (“The . . .

13 rule limiting the amount of force which may be lawfully used in defense of other

14 property does not apply in defense of habitation.”). Although the defense of

15 habitation instruction appears in the justifiable homicide section of the uniform jury

16 instructions, we conclude that the instruction would have been available to Defendant

17 to request under these circumstances. See Couch, 1946-NMSC-047, ¶ 21 (recognizing

18 that the defense is grounded in the theory that “[t]he home is one of the most

19 important institutions of the state, and has ever been regarded as a place where a


                                             10
 1 person has a right to stand his [or her] ground and repel, force by force, to the extent

 2 necessary for its protection” (internal quotation marks and citation omitted)). The

 3 focal point of the jury instruction’s “necessary to kill” language lies on the

 4 defendant’s intent to prevent the commission of the violent felony using whatever

 5 force—including deadly force—is necessary. Cardenas, 2016-NMCA-___, ¶ 18.

 6 Killing the intruder is not required to permit the use of force to be justified. To hold

 7 otherwise would accomplish an absurd result, depriving a defendant of the defense

 8 of habitation when the use of deadly force was justified, but its use did not

 9 accomplish a fatal result.

10   {16}   Therefore, based on Defendant’s theory of the case, presented through his

11 expert witness and in his two motions for directed verdict as well as through his

12 tendered instructions, we conclude that the district court was sufficiently on notice

13 that Defendant was requesting an instruction on self defense and defense of his

14 habitation, and the district court’s refusal to give these instructions was preserved for

15 review on appeal. See State v. Chacon, 1979-NMCA-154, ¶ 9, 93 N.M. 581, 603 P.2d

16 320 (holding that, although the defendant’s requested self defense instruction might

17 have been technically deficient, under the circumstances of the case, he sufficiently

18 alerted the district court to the need for a self defense instruction).




                                              11
 1   {17}   We note one procedural anomaly that we must address before moving on to

 2 consider whether the district court erred in not giving a deadly force self defense

 3 instruction and/or a defense of habitation instruction. That is, although Defendant

 4 preserved the error below by tendering instructions—albeit deficient—he continues

 5 to argue on appeal that the district court’s error lies in not giving those specific

 6 instructions. To the point, buoyed by his contention that he did not use deadly force,

 7 Defendant maintains that the nondeadly force instructions should have been given.

 8 As noted above, Defendant’s divorcing the use of deadly force from actually causing

 9 a fatality is unsupported by law.

10   {18}   Defendant has put forward no argument to this Court that he was entitled to a

11 deadly force self defense instruction or a defense of habitation instruction. We

12 ordinarily do not reach issues that the parties have failed to raise in their briefs. See

13 In re Doe, 1982-NMSC-099, ¶¶ 3, 5, 98 N.M. 540, 650 P.2d 824 (stating that “courts

14 risk overlooking important facts or legal considerations when they take it upon

15 themselves to raise, argue, and decide legal questions overlooked by the lawyers who

16 tailor the case to fit within their legal theories” and declining to consider a

17 constitutional argument because it was not raised by the appellants (alteration,

18 internal quotation marks, and citation omitted)); see also In re Adoption of Doe,

19 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“We have long held that to


                                              12
 1 present an issue on appeal for review, an appellant must submit argument and

 2 authority as required by rule.” (emphasis omitted)).

 3   {19}   However, we note that in this case, the issue of whether Defendant committed

 4 aggravated assault with a deadly weapon was essentially a foregone conclusion, given

 5 Christina and Sonny’s testimony, the physical evidence, and his own admissions. The

 6 only question to be answered by the jury was whether Defendant’s actions were

 7 somehow justified. Defendant’s theories of defense of habitation and self defense

 8 were aimed at providing this justification. Crucially, then, in the absence of

 9 instructions on Defendant’s defense theories, the case was submitted to the jury on

10 “matters so little in dispute that the verdict was almost predetermined.” See State v.

11 Williams, 1935-NMSC-028, ¶ 7, 39 N.M. 165, 42 P.2d 1111.

12   {20}   A defendant has the fundamental right to present his or her theory of defense

13 to the jury where the evidence supports it. See Lucero, 1998-NMSC-044, ¶ 5 (“It is

14 basic that a defendant is entitled to have his or her theory of the case submitted to the

15 jury under proper instructions where the evidence supports it.” (alteration, internal

16 quotation marks, and citation omitted)). This concept is supported by the “well-

17 established principle that adequate instruction on self[]defense is the duty of the

18 courts where it finds support in the evidence.” State v. Foxen, 2001-NMCA-061, ¶ 12,

19 130 N.M. 670, 29 P.3d 1071; cf. State v. Bailey, 1921-NMSC-009, ¶ 30, 27 N.M. 145,


                                              13
 1 198 P. 529 (stating that the doctrine of self defense and the doctrine of defense of

 2 habitation “bear such marked resemblance to each other . . . as to be almost

 3 identical”).

 4   {21}   This duty of the courts should not stop at the district court. Cf. State v. Barber,

 5 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633 (recognizing that “there exists in

 6 every court an inherent power to see that a man’s fundamental rights are protected in

 7 every case” (alterations, internal quotation marks, and citation omitted)).

 8 Consequently, in a situation such as this, where the jury instruction issue was

 9 preserved below, but not raised on appeal, and where not raising the issue on appeal

10 was clear error, this Court will consider whether the district court erred in not giving

11 jury instructions on defense of habitation and self defense. We do so with the

12 understanding that failure to instruct the jury on a defendant’s theory of the case is

13 reversible error only if the evidence at trial supported giving the instruction. See State

14 v. Gardner, 1973-NMSC-034, ¶ 22, 85 N.M. 104, 509 P.2d 871 (“[T]he court need

15 not instruct if there is absence of such evidence.”).

16 B.       Entitlement to Defense of Habitation Instruction

17   {22}   An instruction on defense of habitation would require evidence that (1)

18 Defendant believed that the commission of a felony in Defendant’s home was

19 immediately at hand, (2) Defendant believed it was necessary to use deadly force


                                                14
 1 against the intruder to prevent the commission of the felony, and (3) Defendant acted

 2 reasonably. Cf. Gonzales, 2007-NMSC-059, ¶ 21 (outlining the elements of the UJI

 3 14-5170 defense of habitation instruction).

 4   {23}   Our Supreme Court has held that the defense of habitation “gives the

 5 householder the right to meet force with force, and an attack upon a dwelling, . . .

 6 especially in the night, the law regards as equivalent to an assault on a man’s person,

 7 for a man’s house is his castle.” Couch, 1946-NMSC-047, ¶ 29 (internal quotation

 8 marks omitted). In Boyett, the Court emphasized “that a person has right to defend his

 9 or her residence not only when an intruder is already inside the home, but also when

10 an intruder is outside the home and attempting to enter to commit a violent felony.”

11 2008-NMSC-030, ¶ 19; see also 2 Wharton’s Criminal Law § 131 (15th ed. 2015)

12 (“When a dwelling house is entered or attempted to be entered by force . . . , the

13 occupant may use deadly force, if reasonably necessary, to prevent or terminate such

14 entry.” (emphasis added)).

15   {24}   Defendant claims that he was entitled to an instruction on the defense of his

16 home because he used necessary force to stop the “forceful entry into [his] home.”

17 According to Defendant, he was in the process of taking a shower at approximately

18 12:30 a.m. when he heard noises coming from his backyard. He went into his kitchen,

19 and he heard a noise that sounded like the iron security door being ripped off. Scared


                                              15
 1 that someone was trying to break into his home, he fired a .38 caliber handgun at the

 2 back door. When the suspected intruders continued to try to enter the home, he fired

 3 the shotgun. According to his statement to Detective Gonterman, he had no indication

 4 that Christina and the children would be returning that night.

 5   {25}   The State argues that Defendant was not entitled to an instruction of defense

 6 of habitation because the earlier text messages indicated that Christina wanted to

 7 come home that night and because he placed the padlocks on the security doors

 8 necessitating Christina’s use of force to enter the home. Further, the State contends

 9 that Defendant remained home after telling Christina that he would be going out for

10 the night and that he sat in the house with the lights out while his family was gone.

11 These facts—while potentially bearing on the ultimate success of Defendant’s theory

12 at trial—are not appropriate for consideration of whether the instruction should have

13 been given. See Contreras, 2007-NMCA-119, ¶ 8 (“When considering a defendant’s

14 requested instructions, we view the evidence in the light most favorable to the giving

15 of the requested instructions.” (alteration, internal quotation marks, and citation

16 omitted)).

17   {26}   Viewing the evidence in the light most favorable to Defendant, it appears that

18 he provided sufficient evidence that he was under a reasonable belief that unknown

19 intruders were breaking through his iron security back door in the middle of the night


                                              16
 1 and that he fired two shots in order to prevent the forceful entry into his home.

 2 Therefore, we hold that the jury should have been instructed on defense of habitation.

 3 “Whether the amount of force used by [the d]efendant was more than the attack

 4 warranted was a question for the jury to determine, under proper instructions from the

 5 court.” Couch, 1946-NMSC-047, ¶ 42.

 6   {27}   Because we conclude that the district court committed reversible error by not

 7 giving a defense of habitation instruction, we need not address whether the evidence

 8 supported the giving of a self defense instruction.

 9 CONCLUSION

10   {28}   For the foregoing reasons, we conclude that the district court committed

11 reversible error when it did not instruct the jury on Defendant’s defense of habitation

12 theory. Consequently, we need not decide whether Defendant would have been

13 entitled to a self defense instruction or whether his two convictions for aggravated

14 assault with a deadly weapon violated his right against double jeopardy. We therefore

15 reverse Defendant’s convictions and remand to the district court for retrial.

16   {29}   IT IS SO ORDERED.


17                                          _______________________________
18                                          LINDA M. VANZI, Judge




                                              17
1 WE CONCUR:



2 _________________________________
3 RODERICK T. KENNEDY, Judge



4 _________________________________
5 J. MILES HANISEE, Judge




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