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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. 34,708

 5 EUGENE E. GONZALES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
 8 John M. Paternoster, Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   John Kloss, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Tania Shahani, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VIGIL, Judge.

20   {1}    Defendant Eugene Gonzales appeals from his conviction of voluntary
 1 manslaughter contrary to NMSA 1978, Section 30-2-3(A) (1994). Defendant argues

 2 that the district court erred when it denied Defendant’s proffered jury instructions for

 3 self-defense and defense of another. We affirm.

 4 BACKGROUND

 5   {2}   Defendant raised his daughter, Selina, from a young age. When Selina was

 6 nineteen years old, she began to use methamphetamine and started dating Augustine

 7 Grano (Victim), a sixty-one year old man. Victim had a reputation in the community

 8 as a drug dealer with a violent past, and it was rumored that Victim also carried a gun.

 9 Defendant did not approve of Selina dating Victim, which he made known to Victim.

10 However, there was no indication that Selina was in the relationship with Victim

11 involuntarily, or that Victim abused Selina.

12   {3}   Defendant and Victim had multiple encounters that Defendant considered

13 threatening. On one occasion, Victim rode his bicycle around Defendant on his way

14 to the post office. Defendant contends that when he told Victim that Victim would

15 date Selina “over [his] dead body,” Victim suggested “that could be done, something

16 like that.” However, as the State points out, Defendant stated that he only speculated

17 that Victim said something to this effect. On multiple occasions, when Defendant saw

18 Victim in public, Victim would yell obscenities at Defendant, grab his genitals, and

19 “flip the birdie” at Defendant.



                                              2
 1   {4}   After Selina failed to return home one evening, Defendant had a bout of anxiety

 2 and “couldn’t take it anymore.” Defendant was worried for Selina’s safety, feared that

 3 she would overdose, and decided to go to Victim’s house to bring her home.

 4 Defendant armed himself with a .22 caliber revolver before he went to Victim’s home

 5 in light of the rumors that Victim carried a gun. When he arrived at Victim’s

 6 residence, Victim, who was unarmed, stepped in Defendant’s direction, and asked

 7 Defendant “What are you going to do now old man, shoot me?” Defendant then shot

 8 Victim.

 9   {5}   Selina was inside the Victim’s residence, and after she heard the shot, she ran

10 to the back of the house where Defendant yelled for her to call 911. When Selina

11 asked Defendant what had happened to Victim, he stated “I told him not to f**k with

12 me Selina.” Selina left the scene and Defendant called 911. Defendant told the 911

13 operator “I just shot a man dead in the head . . . I’m guilty . . . I’m guilty of it because

14 I told him I was gonna kill him . . . I just want to be picked up cause I’m guilty of it.”

15 Defendant put his gun in his vehicle and waited for law enforcement to arrive. At the

16 scene, Defendant voluntarily told an EMT that “he did what he had to do” and also

17 told an officer that “I shot the son of a bitch.”

18   {6}   After both parties rested, Defendant requested that the jury be instructed on

19 self-defense under UJI 14-5171 NMRA. Defendant also requested a separate

20 instruction for defense of another under UJI 14-5172 NMRA. The district court

                                                3
 1 rejected giving both instructions. The jury convicted Defendant of voluntary

 2 manslaughter as a lesser included offense to the charge of second degree murder.

 3 Defendant appeals.

 4 DISCUSSION

 5   {7}   Defendant argues that the district court erred when it rejected giving

 6 Defendant’s requested instructions on self-defense and defense of another. We

 7 disagree and therefore affirm the district court.

 8 Standard of Review

 9   {8}   A defendant is entitled to a jury instruction on his theory of the case if there is

10 evidence to support the instruction. The failure to give a requested instruction which

11 the evidence supports constitutes reversible error. State v. Brown, 1996-NMSC-073,

12 ¶ 34, 122 N.M. 724, 931 P.2d 69. “The propriety of jury instructions given or denied

13 is a mixed question of law and fact. Mixed questions of law and fact are reviewed de

14 novo.” State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. This

15 Court reviews a defendant’s requested instruction in a light most favorable to the

16 giving of the requested instruction. State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M.

17 184, 185 P.3d 355. Therefore, in our analysis, “we review the evidence in the light

18 most favorable to the giving of the self-defense or defense of another instruction.”

19 State v. Sandoval, 2011-NMSC-022, ¶ 2, 150 N.M. 224, 258 P.3d 1016 (alteration,

20 internal quotation marks, and citation omitted).

                                                4
 1 A.       Self-Defense

 2   {9}    We first turn to Defendant’s argument that he was entitled to a self-defense

 3 instruction. Defendant was entitled to this instruction if there was evidence that

 4 showed: “(1) [D]efendant was put in fear by an apparent danger of immediate death

 5 or great bodily harm, (2) the killing resulted from that fear, and (3) [D]efendant acted

 6 reasonably when he or she killed.” Id. ¶ 17 (internal quotation marks and citation

 7 omitted); see UJI 14-5171. “The first two requirements, the appearance of immediate

 8 danger and actual fear, are subjective in that they focus on the perception of the

 9 defendant at the time of the incident. By contrast, the third requirement is objective

10 in that it focuses on the hypothetical behavior of a reasonable person acting under the

11 same circumstances as the defendant.” State v. Rudolfo, 2008-NMSC-036, ¶ 17, 144

12 N.M. 305, 187 P.3d 170 (internal quotation marks and citation omitted).

13 1.       Defendant’s Fear

14   {10}   We first examine whether the evidence is sufficient to cause “reasonable minds

15 [to] differ,” about whether Victim caused Defendant to be put in fear of an apparent

16 danger of immediate death or great bodily harm. Sandoval, 2011-NMSC-022, ¶ 17.

17 Defendant contends that he was in fear for his life since he heard Victim had a

18 reputation for carrying a weapon, that Victim had a violent reputation, and that Victim

19 had harassed Defendant in the past.

20   {11}   “It is important to view the circumstances at the time the deadly force was used

                                               5
 1 by the defendant and not at some earlier point.” Rudolfo, 2008-NMSC-036, ¶ 18. As

 2 such, we look to the circumstances at the time Defendant confronted Victim at his

 3 home. When Defendant went to Victim’s home, Victim was unarmed and took a step

 4 toward Defendant who reacted with gunfire. Moreover, after the shooting, Defendant

 5 told Selina, “I told him not to f**k with me Selina” and confessed that he had shot

 6 Victim to police and emergency personnel, without mentioning any perception of

 7 danger of death, or great bodily harm arising from Victim’s behavior. Thus, the

 8 evidence fails to raise an issue as to whether Defendant believed he was in “apparent

 9 danger of immediate death or great bodily harm” from Victim’s behavior at the time

10 of the shooting. State v. Gonzales, 2007-NMSC-059, ¶ 20, 143 N.M. 25, 172 P.3d

11 162.

12 2.       Shooting of Victim Resulting From Fear

13   {12}   Next, we examine whether Victim’s shooting resulted from Defendant’s fear

14 of an apparent danger of immediate death or great bodily harm. We recognize that “[a]

15 defendant’s knowledge or intent generally presents a question of fact for a jury to

16 decide.” State v. Wasson, 1998-NMCA-087, ¶ 12, 125 N.M. 656, 964 P.2d 820.

17 Further, “[i]ntent is subjective and is almost always inferred from other facts in the

18 case.” State v. Frank, 1979-NMSC-012, ¶ 11, 92 N.M. 456, 589 P.2d 1047. Finally,

19 conflicts in the testimony are for the fact-finder to weigh and resolve. See State v.

20 Rivera, 2010-NMCA-109, ¶ 16, 149 N.M. 406, 249 P.3d 944 (“Conflicts in the

                                             6
 1 evidence, even within the testimony of a witness, are to be resolved by the fact[-]

 2 finder at trial.” (internal quotation marks and citation omitted)), aff’d in part, rev’d in

 3 part on other grounds, 2012-NMSC-003, 268 P.3d 40.

 4   {13}   Here, however, Defendant stated to the 911 operator, law enforcement, and

 5 emergency personnel that he shot Victim. At no time, did Defendant mention, nor

 6 does the evidence support a finding, that Defendant shot Victim because of fear for

 7 his own safety, and Defendant’s own testimony contravenes any assertion that he shot

 8 Victim as a result of a fear of immediate death or great bodily harm. As such, we

 9 conclude the evidence is insufficient to raise a question on the second element of the

10 instruction.

11 3.       Reasonableness of Defendant’s Actions

12   {14}   Because the evidence fails to raise a question as to whether (1) Defendant was

13 put in fear of an apparent danger of immediate death or great bodily harm; and (2)

14 killing Victim resulted from that fear, we conclude that a reasonable person in the

15 same circumstances would not have acted as Defendant did.

16   {15}   In summary, although “there need be only enough evidence to raise a

17 reasonable doubt in the mind of a juror about whether the defendant lawfully acted in

18 self-defense[,]” Rudolfo, 2008-NMSC-036, ¶ 27, we conclude that the evidence here

19 fails to meet that standard. In addition, Defendant was the original aggressor of the

20 interaction, and as such, he is not necessarily entitled to a self-defense instruction.

                                                7
 1 “The rule is well established in this jurisdiction that a defendant who provokes an

 2 encounter, as a result of which he [or she] finds it necessary to use deadly force to

 3 defend himself [or herself], is guilty of an unlawful homicide and cannot avail himself

 4 [or herself] of the claim that he [or she] was acting in self-defense.” State v. Lucero,

 5 1998-NMSC-044, ¶ 7, 126 N.M. 552, 972 P.2d 1143 (alteration in original) (internal

 6 quotation marks and citation omitted).

 7   {16}   For all the foregoing reasons, we conclude that Defendant was not entitled to

 8 a self-defense instruction. See Rudolfo, 2008-NMSC-036, ¶ 17 (“A defendant is not

 9 entitled to a self-defense instruction unless it is justified by sufficient evidence on

10 every element of self-defense.”).

11 B.       Defense of Another

12   {17}   Next, Defendant argues that the district court erred when it denied his

13 instruction on defense of another under UJI 14-5172. Defendant was entitled to the

14 instruction if there was evidence that: “(1) there was an appearance of death or great

15 bodily harm to a person; (2) [D]efendant believed the person was in immediate danger

16 of death or great bodily harm . . . ; and (3) the apparent danger would have caused a

17 reasonable person in the same circumstances to act as [D]efendant did.” Sandoval,

18 2011-NMSC-022, ¶ 17 (internal quotation marks and citation omitted); see UJI 14-

19 5172.

20 1.       Appearance of Immediate Danger of Death or Great Bodily Harm To

                                              8
 1          Selina

 2   {18}   The evidence presented at trial fails to raise a question on this element as there

 3 was no appearance of an immediate danger of death or great bodily harm to Selina

 4 resulting from Victim’s acts. Therefore, there was insufficient evidence as to this

 5 element.

 6 2.       Shooting Victim as a Result of Belief that Selina Was in Immediate Danger
 7          of Death or Great Bodily Harm

 8   {19}   The evidence is likewise insufficient to cause reasonable minds to differ as to

 9 whether Defendant believed Selina was in immediate danger of death or great bodily

10 harm when Defendant shot Victim.

11   {20}   Defendant stated that he had an anxiety attack and “couldn’t take it anymore”

12 when Selina left his home, voluntarily, and did not return as planned. In his brief,

13 Defendant states that “Selina’s . . . prolonged absence meant that she might have

14 overdosed . . . at [Victim’s] home.” Although these beliefs are understandable given

15 the circumstances, there is no indication that Defendant shot Victim believing that

16 Selina was in immediate danger of death or great bodily harm from Victim. In short,

17 there was no evidence that Victim was causing an immediate danger of death or great

18 bodily harm to Selina and that Defendant shot Victim to prevent that harm.

19 3.       Reasonableness of Defendant’s Actions

20   {21}   Because the evidence fails to raise a question as to whether (1) there was an


                                                9
 1 appearance of immediate danger of death or great bodily harm to Selina; or (2) that

 2 Defendant believed there was an immediate danger of death or great bodily harm to

 3 Selina when Defendant shot Victim, we conclude that reasonable minds would not

 4 differ as to whether a reasonable person would have acted in the same manner as

 5 Defendant. See Sandoval, 2011-NMSC-022, ¶ 17, (citing to UJI 14-5171 and noting

 6 the requirement that the “apparent danger would have caused a reasonable person in

 7 the same circumstances to act as the defendant did” (internal quotation marks and

 8 citation omitted)).

 9   {22}   Defendant was not entitled to his requested instruction on defense of another

10 under UJI 14-5172. See Rudolfo, 2008-NMSC-036, ¶ 17 (“A defendant is not entitled

11 to a self-defense instruction unless it is justified by sufficient evidence on every

12 element of self-defense.”); see also Sandoval, 2011-NMSC-022, ¶ 16 (stating that

13 because self-defense and defense of another are treated virtually identically for

14 purposes of analysis, “assertions made regarding self-defense instructions are also

15 assumed to apply to defense of another instructions”).

16 CONCLUSION

17   {23}   The judgment and sentence is affirmed.

18   {24}   IT IS SO ORDERED.


19                                          __________________________________
20                                          MICHAEL E. VIGIL, Judge

                                              10
1 WE CONCUR:


2 ___________________________
3 JAMES J. WECHSLER, Judge


4 ___________________________
5 TIMOTHY L. GARCIA, Judge




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