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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. 32,253

 5 ELGIN VINE,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Mark Terrence Sanchez, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Acting Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                                 MEMORANDUM OPINION
 1 CASTILLO, Judge.

 2        Defendant appeals from the amended judgment and sentence. This Court’s first

 3 calendar notice proposed to affirm the district court. Defendant filed a memorandum

 4 in opposition to the proposed disposition. We are not persuaded by Defendant’s

 5 arguments, and affirm the judgment and sentence.

 6        Defendant continues to argue, pursuant to Franklin and Boyer, that the State

 7 failed to present sufficient evidence on the cause of death because the State failed to

 8 qualify an expert pathologist to testify concerning the autopsy of the deceased and the

 9 cause of death. See State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967);

10 State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985) (stating that

11 on appeal, defense counsel has the duty to advance a defendant’s non-meritorious

12 contentions). [MIO 10] As stated in the first calendar notice, we do not agree with

13 Defendant’s interpretation of State v. Sosa, 2000-NMSC-036, 129 N.M. 767, 14 P.3d

14 32, and are not persuaded by Defendant’s arguments. Defendant failed to point to any

15 factual or legal errors with this Court’s proposed disposition. See State v. Mondragon,

16 107 N.M. 421, 423, 759 P.2d 1003, 1005 (Ct. App. 1988) (stating that a party

17 responding to a summary calendar notice must come forward and specifically point

18 out errors of law and fact, and the repetition of earlier arguments does not fulfill this

19 requirement). Therefore, we affirm on the sufficiency of the evidence to support


                                               2
 1 Defendant’s conviction for second degree murder.

 2         Defendant also continues to argue that the district court erred in denying his

 3 tender for a jury instruction on imperfect self-defense. “Imperfect self-defense occurs

 4 when an individual uses excessive force while otherwise lawfully engaging in

 5 self-defense.” State v. Henley, 2010-NMSC-039, ¶ 20, 148 N.M. 359, 237 P.3d 103.

 6 Therefore, to be entitled to an instruction on imperfect defense, Defendant has to

 7 present sufficient evidence to warrant an instruction on self-defense. This Court’s

 8 first notice proposed to hold that no reasonable man could believe that Defendant was

 9 in such immediate danger that it would justify him in approaching the door where the

10 deceased was standing and firing his gun at the door. See State v. Reneau, 111 N.M.

11 217, 219, 804 P.2d 408, 410 (Ct. App. 1990) (“The inquiry in a self-defense claim

12 focuses on the reasonableness of [the] defendant’s belief as to the apparent necessity

13 for the force used to repel an attack.”); see also State v. Abeyta, 120 N.M. 233, 239,

14 901 P.2d 164, 170 (1995) (enumerating the requirements of self-defense), abrogated

15 on other grounds by State v. Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d

16 1266.

17         Defendant does not dispute the facts relied upon in this Court’s first notice of

18 proposed disposition, but emphasizes the fact that the deceased had shot at him the

19 week before when the two exchanged heated words. [MIO 1] Defendant argues that


                                               3
 1 what occurred the day of the shooting, coupled with the deceased’s recent armed

 2 attack on him, supported his statement that he believed he was the victim of an

 3 ambush. [MIO 5] Nevertheless, the claim of self-defense may fail if the defendant

 4 was the aggressor or instigator of the conflict. UJI 14-5191 NMRA (stating that self-

 5 defense ordinarily is not a defense available to the first aggressor); see State v.

 6 Chavez, 99 N.M. 609, 611, 661 P.2d 887, 889 (1983).

 7        Defendant provoked an encounter with the deceased by stopping in front of the

 8 house when beckoned by the neighbor, Mr. Ester, and getting out of the car even

 9 though Defendant suspected it was an ambush. [MIO 1, 5] Because Defendant got

10 a gun, approached the house where the deceased was standing behind the door, and

11 fired shots toward the door, he instigated a confrontation. Cf. State v. Emmons, 2007-

12 NMCA-082, ¶ 13, 141 N.M. 875, 161 P.3d 920 (holding that the defendant instigated

13 the encounter with repo men who had already left the property with his truck when the

14 defendant got a gun, got in his truck, and drove to look for the repo men). Before

15 Defendant got out his car and armed himself with a gun, there was no appearance of

16 immediate danger of death or great bodily harm to him by the deceased. See State v.

17 Lucero, 1998-NMSC-044, ¶ 9, 126 N.M. 552, 972 P.2d 1143 (holding that the

18 defendant was not entitled to a self-defense instruction despite the fact that he had

19 been shot at by one in a group of three people earlier that day, where his provocative


                                             4
 1 acts of later that day obtaining a gun, waiting for, then following the group to a vacant

 2 lot, brandishing a deadly weapon, and shooting into the air instigated a confrontation

 3 with the group). All that Defendant observed was that Mr. Ester waved them over,

 4 then quickly walked away, and that the front door to Mr. Ester’s house had been left

 5 ajar. [MIO 2] Nevertheless, despite his suspicions from the beginning that it was an

 6 ambush, it was Defendant who made the choice to get out of his car and get a gun,

 7 walk toward the house, and shoot toward the door where the deceased was standing.

 8 “This is not defensive, rather, an offensive use of deadly force which is not justified.”

 9 Emmons, 2007-NMCA-082, ¶ 13. Therefore, we hold that Defendant was not entitled

10 to a jury instruction on imperfect self-defense. See State v. Brown, 1996-NMSC-073,

11 ¶ 34, 122 N.M. 724, 931 P.2d 69 (stating that a defendant is only entitled to jury

12 instructions on his theory of the case if there is evidence to support the instruction).

13        Lastly, Defendant continues to argue that the State’s laser photographs were

14 irrelevant and overly prejudicial because the jury could not interpret them without

15 speculation. [MIO 11] Defendant did not raise factual or legal errors with this

16 Court’s proposed disposition. See Mondragon, 107 N.M. at 423, 759 P.2d at 1005

17 (stating that a party responding to a summary calendar notice must come forward and

18 specifically point out errors of law and fact, and the repetition of earlier arguments

19 does not fulfill this requirement). Nor has Defendant shown how this evidence


                                               5
 1 prejudiced him, particularly in light of the evidence from eye witnesses who saw

 2 Defendant shoot at the door where the deceased was standing. See In re Ernesto M.,

 3 Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice

 4 is not a showing of prejudice.”).      Defendant failed to demonstrate how the

 5 photographic evidence prejudiced him resulting in an erroneous conviction for second

 6 degree murder. “In the absence of prejudice, there is no reversible error.” State v.

 7 Fernandez, 117 N.M. 673, 677, 875 P.2d 1104, 1108 (Ct. App. 1994).

 8       For the foregoing reasons, and those stated in the first notice of proposed

 9 disposition, we affirm the judgment and sentence.

10       IT IS SO ORDERED.



11                                        __________________________________
12                                        CELIA FOY CASTILLO, Chief Judge

13 WE CONCUR:




14 __________________________________
15 JONATHAN B. SUTIN, Judge




                                            6
1 __________________________________
2 CYNTHIA A. FRY, Judge




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