 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 30,045

10 SAMUEL GUERRERO,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
13 Stephen K. Quinn, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Ralph E. Trujillo, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Law Office of Craig C. Kling
20 Craig C. Kling
21 San Diego, CA

22 for Appellant

23                                 MEMORANDUM OPINION

24 VANZI, Judge.
 1        Defendant Sammy Guerrero appeals his conviction for aggravated battery in

 2 violation of NMSA 1978, Section 30-3-5(A) and (C) (1969). Defendant argues that

 3 the district court erred when it denied his tendered jury instruction on defense of

 4 another and when it denied his motion for a new trial. We conclude that the district

 5 court did not err in denying Defendant’s tendered instruction or Defendant’s motion

 6 for a new trial. We affirm.

 7 BACKGROUND

 8        At trial, the parties presented two different theories of what might have

 9 happened in the early morning hours of February 7, 2008. The State’s theory was that

10 Defendant’s brother, Fernando Rodriguez, got into a fight with Elias Calderon at

11 Defendant’s home at 712 Calhoun, and after that fight, Defendant and Fernando

12 drove to 601 Thornton and used a bat to retaliate against Elias. Defendant’s theory,

13 on the other hand, was that there was a single fight involving the use of a bat to defend

14 Fernando at 712 Calhoun. We outline the evidence presented at trial that supports

15 each of the competing theories.

16        The State’s evidence at trial included the following. On February 6, 2009,

17 friends and family gathered at Janette Chavarria’s home at 601 Thornton in Clovis,

18 New Mexico. Sometime after midnight, two people were outside Janette’s home

19 smoking, and they noticed two other people breaking into a black jeep belonging to


                                               2
 1 Raquel Nicolas. The two smokers alerted those inside, and Janette and Racquel ran

 2 outside in time to see the burglars getting out of the jeep and running away with a

 3 purse. The two smokers, Racquel, and Elias left 601 Thornton in pursuit of the

 4 thieves.

 5        Elias followed the sound of footsteps until he saw Fernando outside of the

 6 house at 712 Calhoun, just a few blocks from 601 Thornton. Elias questioned

 7 Fernando about the purse, and he and Fernando began arguing and then began

 8 fighting. Elias and Fernando engaged in a fist fight at 712 Calhoun where Elias

 9 remembered being hit in the eye and nose but did not recall being hit with a bat.

10        Once the fight stopped, Elias rode back to 601 Thornton in a car. Shortly after

11 Elias returned to 601 Thornton, Defendant and Fernando drove up in a white Ford

12 Focus. Defendant and Fernando got out of the car and started beating Elias with a bat

13 that they were trading back and forth. After the first hit with the bat, Elias passed out.

14 When Elias was passed out and laying on the ground, Janette started throwing beer

15 bottles at Defendant and Fernando, because they would not stop beating Elias. One

16 of the bottles hit and shattered a window in the Ford Focus. When the beating

17 stopped, Defendant and Fernando left in the Ford Focus.

18        Janette and her mother both testified that during the fight, several people were

19 trying to call 911, and Janette’s mother got through to an operator. Shortly after


                                               3
 1 connecting with the 911 operator, police officers arrived at 601 Thornton, and Elias

 2 was taken to the hospital by emergency medical personnel. Elias received twenty-four

 3 staples in his head for the injuries he sustained.

 4        While responding to the incident at 601 Thornton, one officer received a tip

 5 from some passengers in a truck that passed by who stated that the men who had

 6 beaten Elias were at 712 Calhoun. Officers went to 712 Calhoun and spoke with

 7 Defendant and Fernando. The officers investigated both addresses to determine what

 8 happened. Defendant and Fernando were taken to the police station for further

 9 questioning, and Defendant admitted to using a bat to stop the battery of Fernando at

10 their home at 712 Calhoun.

11        At trial, Defendant argued that there was a single fight involving the use of a

12 bat to defend Fernando at 712 Calhoun. His theory was supported by his statements

13 to the police and his witnesses’ testimony at trial. Defendant told police that shortly

14 after he returned home from work, he heard Fernando yelling for him outside.

15 Defendant stated that he went outside his house at 712 Calhoun and saw Fernando

16 being attacked by four men and being hit with rocks. Defendant told police officers

17 that he used a bat to stop the attack.

18        While Defendant initially denied going to 601 Thornton, he later changed his

19 story and told police officers that after the fight at 712 Calhoun, he and Fernando left


                                              4
 1 in their mother’s white Ford Focus and drove to 601 Thornton. However, he stated

 2 that because there were so many people outside and because those people were

 3 throwing beer bottles at the car he and Fernando were in, he and Fernando just drove

 4 by.

 5        Fernando similarly testified that after the fight at 712 Calhoun stopped, he and

 6 Defendant took their mother’s white Ford Focus and drove by 601 Thornton. He

 7 testified that he had wanted to “talk to them” but was unable to because there were too

 8 many people outside the house at 601 Thornton throwing beer bottles and rocks at the

 9 Ford Focus. He also stated that one of the back windows of the car was broken out

10 while they were driving by.

11        The State charged Defendant with aggravated battery, and Defendant went to

12 trial on August 11 and 12, 2009. At trial, Defendant requested that the jury be

13 instructed on the defense of another defense as provided in UJI 14-5182 NMRA. The

14 district court denied his request. Defendant was convicted on the aggravated battery

15 charge. After the verdict, defense counsel made an oral motion for a new trial because

16 he contended that the jury could have misunderstood that it had to find that Defendant

17 used the bat at 601 Thornton and not at the 712 Calhoun address. The district court

18 denied the motion.




                                              5
 1 DISCUSSION

 2 The District Court Did Not Err in Denying Defendant’s Tendered Jury
 3 Instruction on Defense of Another

 4        Defendant appeals the district court’s denial of his tendered jury instruction on

 5 defense of another. He contends that he was entitled to the instruction, because it

 6 supported his theory of the case that he only used the bat to defend Fernando at 712

 7 Calhoun and that he did not get out of the car at 601 Thornton. The denial of

 8 Defendant’s tendered jury instruction on defense of another is a mixed question of law

 9 and fact. State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. We

10 review mixed questions of law and fact de novo. Id.

11        A jury instruction on defense of another is appropriate when the defendant has

12 presented evidence sufficient to support every element of the instruction. See id. ¶ 50;

13 State v. Rudolfo, 2008-NMSC-036, ¶ 27, 144 N.M. 305, 187 P.3d 170 (holding that

14 the defendant must present sufficient evidence for each element of the self-defense

15 instruction in order to give the instruction); see also State v. Gallegos, 2001-NMCA-

16 021, ¶ 7, 130 N.M. 221, 22 P.3d 689 (holding that jury instructions for defense of

17 another and self-defense are virtually identical for purpose of analysis). For evidence

18 to be sufficient, “there need be only enough evidence to raise a reasonable doubt in

19 the mind of a juror about whether the defendant lawfully acted” in defending another

20 person. Rudolfo, 2008-NMSC-036, ¶ 27. The elements of defense of another are:

                                              6
 1              1.     There was an appearance of immediate danger of bodily
 2        harm to [another] as a result of [an unlawful act that would result in
 3        some bodily harm]; and
 4              2.      [D]efendant believed that [another] was in immediate
 5        danger of bodily harm from [the victim] and [Defendant’s action was] to
 6        prevent the bodily harm; and
 7              3.     [D]efendant used an amount of force that [D]efendant
 8        believed was reasonable and necessary to prevent the bodily harm; and

 9               ....

10              5.    The apparent danger to [another] would have caused a
11        reasonable person in the same circumstances to act as [D]efendant did.

12 UJI 14-5182.

13        In this case, we conclude that Defendant did not present sufficient evidence of

14 the above elements for the defense of another instruction. As we have noted, evidence

15 was presented of two separate altercations, the first at 712 Calhoun and the second at

16 601 Thornton. Defendant admitted to police officers that he used the bat to defend

17 Fernando during the altercation at 712 Calhoun. However, as we discuss more fully

18 below, the State and the charging officer agreed that Defendant could have been

19 defending Fernando at 712 Calhoun, and for that reason, he was not charged for

20 anything that occurred during that fight. Instead, Defendant was only charged with

21 and prosecuted for his actions in the altercation occurring at 601 Thornton.

22        Turning to the incident at 601Thornton for which Defendant was charged, we

23 conclude that none of the elements for a defense of another jury instruction are present


                                              7
 1 under either parties’ theory of the case. Defendant’s argument at trial and the

 2 evidence he presented was that he only drove by 601 Thornton and that no fight

 3 occurred at that location. Thus, under Defendant’s theory, he is not entitled to the

 4 instruction because no altercation took place that would warrant such an instruction.

 5 Evidence in support of the State’s theory of the case established that Defendant

 6 pursued Elias back to 601 Thornton and used a bat to beat Elias in retaliation for the

 7 fight at 712 Calhoun. Under the State’s theory of the case, Defendant is not entitled

 8 to the instruction either. See Rudolfo, 2008-NMSC-036, ¶ 18 (explaining that even

 9 if the defendant had been in fear of death or imminent bodily harm, the fear could not

10 have been present once the victims were fleeing by vehicle).

11        We conclude that the district court did not err in denying Defendant’s tendered

12 jury instruction on defense of another.

13 The District Court Did Not Abuse Its Discretion in Denying Defendant’s Motion
14 for a New Trial

15        Defendant contends that the district court abused its discretion when it denied

16 his motion for a new trial because the jury could have misunderstood the law and facts

17 of the case when the jury instructions did not specifically state that the State had to

18 prove that Defendant used the bat at 601 Thornton. He contends that it was not clear

19 from the jury instructions that Defendant could only be convicted if the jury found that

20 he used the bat at 601 Thornton. Further, Defendant argues that because he had

                                              8
 1 admitted to the use of the bat at the fight that took place 712 Calhoun, the jury could

 2 have used that admission to find him guilty of the charged crime. We are not

 3 persuaded.

 4        We review a district court’s decision to deny a motion for a new trial for an

 5 abuse of discretion. State v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185

 6 P.3d 363. “An abuse of discretion occurs when the ruling is clearly against the logic

 7 and effect of the facts and circumstances of the case.” State v. Woodward, 121 N.M.

 8 1, 4, 908 P.2d 231, 234 (1995) (internal quotation marks and citation omitted).

 9 “When there exist reasons both supporting and detracting from a trial court decision,

10 there is no abuse of discretion.” Moreland, 2008-NMSC-031, ¶ 9 (internal quotation

11 marks and citation omitted).

12        At trial, the jury was instructed on aggravated battery, based on UJI 14-322

13 NMRA and 14-323 NMRA. Defendant did not object to the instructions. As a result,

14 the district court did not abuse its discretion in denying the motion for a new trial

15 because Defendant “cannot be heard to complain, since he failed to object to the

16 instruction[s] and thus, to alert the mind of the court to the claimed error.” State v.

17 Weber, 76 N.M. 636, 642, 417 P.2d 444, 448 (1966).

18        Defendant contends that it would have been useless to request that the 601

19 Thornton address be included in the aggravated battery instruction because the district


                                              9
 1 court had already denied his instruction for defense of another on the grounds that the

 2 use of a bat was not reasonable at either address. However, the issue of whether an

 3 instruction on defense of another was warranted is distinct from the issue of the need

 4 for an instruction on the location of the crime. One provides a justification for the

 5 infliction of great bodily harm, while the other merely specifies which of the two

 6 attacks formed the basis for the crime that was charged. See Rudolfo, 2008-NMSC-

 7 036, ¶ 20 (stating that self-defense is a justification for a homicide). Because the

 8 district court’s ruling on the defense of another instruction was unrelated to the

 9 question of where the charged crime occurred, it would not have been useless for

10 Defendant to object to the instruction given or to have tendered an instruction which

11 included the address.

12        Furthermore, at several points during the trial, it was clarified that Defendant

13 was being tried for the altercation that took place at 601 Thornton. The police officer

14 who charged Defendant with the crime testified that he did not charge Defendant for

15 anything that happened at 712 Calhoun because Defendant could have been acting in

16 defense of another person during that fight, but he instead charged Defendant with

17 aggravated battery for the events that occurred at 601 Thornton.

18        The State explained to the jury in both opening and closing arguments that the

19 case against Defendant was based on what happened at 601 Thornton. In closing


                                             10
 1 arguments, defense counsel also stated that what happened at 712 Calhoun was not the

 2 basis for the crime that was charged against Defendant. Defense counsel further

 3 clarified that for purposes of the aggravated battery charge, it did not matter whether

 4 Defendant used a bat at 712 Calhoun; it only mattered whether the jury believed that

 5 the State met its burden of establishing that Defendant used a bat to beat Elias at 601

 6 Thornton. Although these arguments were not evidence in the case, these statements

 7 were made to assist the jury in its understanding that it only needed to consider the

 8 evidence presented regarding the fight at 601 Thornton. See UJI 14-101 NMRA

 9 (explaining that the “statements made by the lawyers . . . can be of considerable

10 assistance to [the jury] in understanding the evidence as it is presented at trial”).

11        Thus, where Defendant failed to object to the instruction as given and where the

12 district court could have reasonably concluded that the jury would not be confused

13 that the crime was only for the altercation at 601 Thornton, it was not an abuse of

14 discretion to deny the motion for a new trial.


15 CONCLUSION

16        For the foregoing reasons, we affirm Defendant’s conviction.

17        IT IS SO ORDERED.



18                                          __________________________________

                                              11
1                               LINDA M. VANZI, Judge


2 WE CONCUR:



3 __________________________________
4 CELIA FOY CASTILLO, Chief Judge



5 __________________________________
6 JAMES J. WECHSLER, Judge




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