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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. A-1-CA-35265

 5 CARLSON JONES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Briana H. Zamora, District Judge

 9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender
14 Kathleen T. Baldridge, Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VIGIL, Judge.
 1   {1}   Defendant Carlson Jones appeals from a jury verdict convicting him of one

 2 count of aggravated battery with a deadly weapon, in violation of NMSA 1978,

 3 Section 30-3-5(A), (C) (1969); one count of leaving the scene of an accident with no

 4 great bodily harm or death, in violation of NMSA 1978, Section 66-7-202 (1978); one

 5 count of criminal damage to property over $1000, in violation of NMSA 1978,

 6 Section 30-15-1 (1963); one count of criminal damage to property less than $1000,

 7 in violation of Section 30-15-1; and one count of reckless driving, in violation of

 8 NMSA 1978, Section 66-8-113 (1987). Defendant argues: (1) trial counsel was

 9 ineffective in failing to argue and request that the jury be instructed on self-defense

10 and duress as affirmative defenses to aggravated battery; and (2) the State’s evidence

11 was insufficient to support convicting Defendant on any of the counts charged. For

12 the reasons that follow, we affirm Defendant’s convictions. Because this is a

13 memorandum opinion and the parties are familiar with the facts and procedural

14 posture of the case, we set forth only such facts and law as are necessary to decide the

15 merits.

16 BACKGROUND

17   {2}   Defendant’s convictions stem from an incident in which a group of bail

18 bondsmen attempted to arrest him for failing to appear in court. New Mexico Bonding

19 posted a bond for Defendant in association with a charge against him for driving with


                                              2
 1 a revoked license. Defendant failed to show up for court appearances. As of March

 2 2015, New Mexico Bonding had been attempting to locate Defendant for

 3 approximately six months, without success.

 4   {3}   Aaron Alberti (Victim), a bail bondsman for New Mexico Bonding, eventually

 5 received a tip about Defendant’s whereabouts and that his vehicle was parked in the

 6 carport of an apartment complex in Albuquerque. Based on this tip, Victim, four other

 7 bail bondsmen (Richard Montoya, Gabriel Diaz, Joe Nash, and Felipe Tapia), and Joe

 8 Nash’s fiancee, Crystal Baca went to the apartment complex to arrest Defendant, but

 9 when they arrived, Defendant’s vehicle was gone. While they waited for Defendant

10 to return, Victim and the other bail bondsmen discussed the layout of the apartment

11 complex and how best to position themselves and their cars so that when Defendant

12 returned, he would not be able to get away. All of the bail bondsmen had a badge or

13 logo on their vest identifying themselves as such. They were also carrying equipment,

14 including firearms, tasers, mace, handcuffs, and flashlights.

15   {4}   Defendant returned to the apartment complex a couple of hours later, around

16 midnight, and backed his vehicle into a parking space in the carport. The bail

17 bondsmen approached Defendant’s vehicle. Victim was positioned in front of

18 Defendant’s vehicle near one of the headlights and the other bondsmen were

19 positioned on the sides of the vehicle. The bondsmen identified themselves, yelled at


                                             3
 1 Defendant to get out of the car, and banged on the Defendant’s driver’s side window.

 2 In response, Defendant, who had met Victim before, looked directly at Victim with

 3 a “blank stare” and did not say anything. There was testimony that the



 4 carport had sufficient lighting to allow Defendant to see who the bondsmen were.

 5   {5}   Defendant’s vehicle started “going back and forth like he was putting it in

 6 gear,” and then “took off at a real high rate of speed out of that spot[,]” turning toward

 7 the exit of the carport, which put Victim right “in the center of the car[’s]” trajectory.

 8 This acceleration caused Victim to be struck by the vehicle and to fall onto the hood.

 9 After Defendant had already started to leave, Richard Montoya broke the Defendant’s

10 driver’s side window “to neutralize” Defendant from running anyone over and so that

11 Defendant would not smash Victim into a nearby wall. After rolling off the hood after

12 the first hit, Victim was struck by Defendant’s vehicle again. Victim drew his firearm

13 and fired seven or eight shots at Defendant’s vehicle as he was being pushed back by

14 Defendant’s vehicle during the second hit. As a result of these hits, Victim suffered

15 sore knees, a sore back, and a headache. There was testimony that Defendant could

16 have exited the parking space without hitting Victim if he had been driving slower.

17   {6}   The carport was located in a narrow alleyway with one entrance and exit.

18 Victim and Joe Nash (who was driving Crystal Baca’s vehicle) had parked their cars


                                               4
 1 between where Defendant was parked and the exit of the carport. As Defendant exited

 2 the alley, he collided “head-on” with Crystal Baca’s vehicle. Defendant then “backed

 3 it up and ran over the driver’s side portion of the car[.]” Crystal Baca was in the

 4 vehicle during this collision. Joe Nash testified that there was about $9000 in damage

 5 to Crystal Baca’s car. Defendant also hit Victim’s vehicle, causing minor damage.

 6 After a short chase, the bondsmen chose not to continue pursuing Defendant. There

 7 was testimony that Defendant could have exited the carport without hitting Crystal

 8 Baca and Victim’s vehicles.

 9 DISCUSSION

10 I.      Ineffective Assistance of Counsel

11   {7}   Defendant argues that his trial counsel was ineffective in failing to request that

12 the jury be instructed on the affirmative defenses of self-defense and duress to the

13 charge of aggravated battery. We disagree.

14   {8}   “We review de novo the legal issues involved with claims of ineffective

15 assistance of counsel and defer to the findings of fact of the district court if substantial

16 evidence supports the court’s findings.” State v. Lopez, 2018-NMCA-002, ¶ 17, 410

17 P.3d 226 (alteration, internal quotation marks, and citation omitted). “A prima facie

18 case of ineffective assistance of counsel is made where: (1) it appears from the record

19 that counsel acted unreasonably; (2) the appellate court cannot think of a plausible,


                                                5
 1 rational strategy or tactic to explain counsel’s conduct; and (3) the actions of counsel

 2 are prejudicial.” Id. ¶ 18 (internal quotation marks and citation omitted).

 3   {9}    “We indulge a strong presumption that counsel’s conduct falls within the wide

 4 range of reasonable professional assistance” and “we do not second guess defense

 5 counsel’s strategic decisions when applying the deficient performance prong.” State

 6 v. Morgan, 2016-NMCA-089, ¶ 14, 382 P.3d 981 (alteration, internal quotation marks,

 7 and citation omitted); see State v. Baca, 1993-NMCA-051, ¶ 34, 115 N.M. 536, 854

 8 P.2d 363 (“Counsel’s choice of defenses will not be disturbed unless the choice

 9 appears wholly unreasoned or deprives the defendant of his only defense.”). “The use

10 of a particular jury instruction that comports with the law and use notes is a tactical

11 decision on the part of trial counsel that this Court will not disturb.” State v. Perea,

12 2001-NMCA-002, ¶ 25, 130 N.M. 46, 16 P.3d 1105, aff’d in part, vacated in part,

13 2001-NMSC-026, ¶ 6, 130 N.M. 732, 31 P.3d 1006.

14   {10}   We begin by placing Defendant’s claim in context. Defendant’s theory of the

15 case was that his actions hitting Victim with his vehicle were reactions to the “[c]haos,

16 confusion, and gunshots” he encountered when Victim and the other bondsmen

17 attempted to arrest him. In opening statement, defense counsel explained to the jury

18 that:

19                This night was chaotic and it was confusing. Even to the people
20          experiencing it, especially to [Defendant], who had no idea the stakeout

                                               6
 1          was taking place in the first place. . . . [N]o one can testify that
 2          [Defendant] intended to hit [Victim] with his vehicle; that he intended to
 3          injure him[.] . . . No one can testify that he was not just reacting to the
 4          chaos and the confusion caused by the bail bondsmen.

 5 At the close of the State’s evidence, Defendant moved for a directed verdict on the

 6 State’s count of aggravated battery, which the district court denied, arguing that the

 7 State failed to establish that Defendant intended to injure Victim when he struck him

 8 with his vehicle. And during closing argument, defense counsel argued that:

 9          All we know about [Defendant’s] intent is that he wanted to get out of
10          there, that he was surrounded, being yelled at, his windows were
11          breaking. It’s a chaotic situation. And his instinct was to flee, and that’s
12          what he did.

13                 And we know from [Richard] Montoya that [Defendant] couldn’t
14          have fled without tapping [Victim] with his car because of where he was
15          positioned, that there was no way out. But simply hitting [Victim] with
16          his car is not enough. That’s not an aggravated battery. [Defendant]
17          needed to do that with the intent to injure [Victim]. But what we have
18          here is somebody trying to get away.

19                ....

20          People react to situations. Accidents happen. But not all accidents are
21          criminal.

22   {11}   Under these facts, we conclude that defense counsel’s choice to not request jury

23 instructions on the affirmative defenses of self-defense and duress was part of a

24 plausible, rational trial strategy. Defense counsel’s strategy for defending the

25 aggravated battery count was that Defendant lacked the requisite intent to injure


                                                 7
 1 Victim when he struck him with his vehicle, arguing that Defendant’s acts of hitting

 2 Victim were merely reactions to the “[c]haos, confusion, and gunshots” that he faced

 3 when the bail agents attempted to arrest him. This strategy was not wholly

 4 unreasonable in light of the fact that Defendant did not testify and the State was forced

 5 to rely heavily upon circumstantial evidence to prove Defendant’s intent to injure

 6 Victim.

 7   {12}   Additionally, even if the evidence at trial was sufficient to warrant giving the

 8 instructions on self-defense and duress, pursuing these defenses would have been

 9 inconsistent with defense counsel’s theory that Defendant lacked intent to injure

10 Victim. In pursuing self-defense or duress defenses, Defendant would have effectively

11 conceded that he intended to hurt Victim when he hit Victim with his vehicle—either

12 on grounds of “necessary defense of self against any unlawful action; reasonable

13 grounds to believe a design exists to commit a felony; or reasonable grounds to

14 believe a design exists to do some great bodily harm[,]” UJI 14-5183 NMRA, Use

15 Note 1; or because “defendant was forced” to injure Victim “under threats or out of

16 necessity.” UJI 14-5130 NMRA (alterations omitted).

17   {13}   We conclude that Defendant failed to establish a claim of ineffective assistance

18 of counsel. See Baca,1993-NMCA-051, ¶¶ 2-5, 36 (holding that defense counsel was

19 not ineffective in failing to request a duress jury instruction in aggravated battery case


                                                8
 1 in part because it would have been inconsistent with the defendants’ theory of the case

 2 that no conspiracy to stab the victim had occurred and that they acted in self-defense

 3 to an incident initiated by the victim); State v. Gonzales, 2007-NMSC-059, ¶¶ 2-4, 15,

 4 143 N.M. 25, 172 P.3d 162 (holding that defense counsel was not ineffective in failing

 5 to request an imperfect self-defense jury instruction in homicide case; defense

 6 counsel’s choice was reasonable trial strategy where the defendant’s theory of the case

 7 was to maintain his factual innocence).

 8 II.      Sufficiency of the Evidence

 9   {14}   Defendant also claims that the State’s evidence was insufficient to support his

10 convictions “because it failed to prove beyond a reasonable doubt that [Defendant]

11 acted with the requisite intent under the circumstances.”

12   {15}   In reviewing a defendant’s challenge to the sufficiency of evidence, we view

13 “the evidence in the light most favorable to the guilty verdict, indulging all reasonable

14 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.

15 Carrillo, 2017-NMSC-023, ¶ 42, 399 P.3d 367 (internal quotation marks and citation

16 omitted). The central consideration in a sufficiency of the evidence review is “whether

17 substantial evidence of either a direct or circumstantial nature exists to support a

18 verdict of guilty beyond a reasonable doubt with respect to every element essential to

19 a conviction.” State v. Suazo, 2017-NMSC-011, ¶ 32, 390 P.3d 674 (internal quotation


                                               9
 1 marks and citation omitted). In jury trials, “the jury instructions are the law of the case

 2 against which the sufficiency of the evidence supporting the jury’s verdict is to be

 3 measured.” State v. Duttle, 2017-NMCA-001, ¶ 18, 387 P.3d 885, cert. denied, ___-

 4 NMCERT-___, (No. S-1-SC-35993, Aug. 8, 2016).

 5 A.       Aggravated Battery With a Deadly Weapon

 6   {16}   The jury was instructed, according to UJI 14-322 NMRA, that in order to find

 7 Defendant guilty of aggravated battery with a deadly weapon that the State was

 8 required to prove beyond a reasonable doubt each of the following elements:

 9          1.    . . . Defendant, touched or applied force to [Victim] by hitting him
10                with a vehicle. [Defendant] used a vehicle. A vehicle is a deadly
11                weapon only if you find that a vehicle when used as a weapon,
12                could cause death or great bodily harm;

13          2.     . . . Defendant, intended to injure [Victim];

14          3.     [Defendant’s] act was unlawful;

15          4.    This happened in New Mexico on or about the 3rd day of
16                March, 2015.

17 “Intent to injure need not be established by direct evidence but may be inferred from

18 conduct and the surrounding circumstances.” State v. Valles, 1972-NMCA-076, ¶ 4,

19 84 N.M. 1, 498 P.2d 693.

20   {17}   In their attempt to arrest Defendant, the bondsmen identified themselves, yelled

21 at Defendant to get out of the car, and banged on the Defendant’s driver’s side



                                               10
 1 window. The lighting was sufficient to allow Defendant to see who the bondsmen

 2 were. In response, Defendant, who had met Victim before, looked directly at Victim

 3 with a “blank stare” and did not say anything. Defendant nevertheless proceeded to

 4 accelerate out of the parking space, and hit Victim with his vehicle twice, despite

 5 evidence that he could have left the parking space and carport without hitting Victim

 6 had he been driving slower. Based on the evidence presented at trial, we conclude, in

 7 addition to proving the other elements of aggravated battery with a deadly weapon,

 8 that the State presented sufficient evidence to establish that Defendant acted with

 9 intent to injure Victim when he hit him with his vehicle.

10 B.       Leaving the Scene of an Accident

11   {18}   The jury was instructed, consistent with Section 66-7-202, that in order to find

12 Defendant guilty of leaving the scene of an accident with no great bodily harm or

13 death, the State was required to prove beyond a reasonable doubt each of the

14 following elements:

15          1.    . . . Defendant, operated a motor vehicle;

16          2.    . . . Defendant, was involved in an accident which resulted in
17                injury but not great bodily harm to [Victim];

18          3.    . . . Defendant, failed to stop and give his name, address, and
19                registration number of the vehicle he was driving.

20          4.    This happened in New Mexico on or about the 3rd day of March,
21                2015.

                                               11
 1 In addition to the other elements of leaving the scene of an accident, the State was also

 2 required to prove beyond a reasonable doubt that Defendant “acted intentionally when

 3 he committed the crime. A person acts intentionally when he purposely does an act

 4 which the law declares to be a crime. Whether . . . Defendant, acted intentionally may

 5 be inferred from all of the surrounding circumstances, such as the manner in which

 6 he acts, the means used, and his conduct.”

 7   {19}   Defendant was undisputably involved in an accident resulting in injury to

 8 Victim when he hit him twice with his vehicle. Defendant did not stop after hitting

 9 Victim and he did not give his name, address, and registration number of the vehicle

10 he was driving to Victim or to any of the other bail agents present at the scene. Rather,

11 Defendant ran from the scene of the accident. Based on the evidence presented at trial,

12 we conclude, in addition to proving the other elements of leaving the scene of an

13 accident, that the State presented sufficient evidence to establish that Defendant acted

14 intentionally when he failed to stop and give his name, address, and the registration

15 of the vehicle he was driving after he was involved in an accident that resulted in

16 injury to Victim.

17 C.       Criminal Damage to Property

18   {20}   The jury was instructed, according to UJI 14-1501 NMRA, that in order to find




                                              12
 1 Defendant guilty of criminal damage to property in excess of $1000, the State was

 2 required to prove beyond a reasonable doubt each of the following elements:

 3        1.    [D]efendant intentionally damaged property of Crystal Baca;

 4        2.    [D]efendant did not have the owner’s permission to damage the
 5              property;

 6        3.    The amount of the damage to the property was more than $1000[];

 7        4.    This happened in New Mexico on or about the 3rd day of March,
 8              2015.

 9 The jury was also instructed, according to UJI 14-1501, that in order to find Defendant

10 guilty of criminal damage to property less than $1000, the State was required to prove

11 beyond a reasonable doubt each of the following elements:

12        1.    [D]efendant intentionally damaged property of [Victim];

13        2.    [D]efendant did not have the owner’s permission to damage the
14              property;

15        3.    This happened in New Mexico on or about the 3rd day of March,
16              2015.

17 In addition to the other elements of criminal damage to property, the State was also

18 required to prove beyond a reasonable doubt that Defendant “acted intentionally when

19 he committed the crime[s]. A person acts intentionally when he purposely does an act

20 which the law declares to be a crime. Whether . . . Defendant acted intentionally may




                                             13
 1 be inferred from all of the surrounding circumstances, such as the manner in which

 2 he acts, the means used, and his conduct.”

 3   {21}   As Defendant exited the carport, he collided “head-on” with Crystal Baca’s

 4 vehicle. Defendant then “backed it up and ran over the driver’s side portion of the

 5 car[.]” Joe Nash testified that there was about $9000 in damage to Crystal Baca’s car.

 6 Defendant also hit Victim’s vehicle, causing minor damage. Defendant then exited the

 7 carport and left the scene. There was testimony that Defendant could have exited the

 8 carport without hitting Crystal Baca and Victim’s vehicles. Based on the evidence

 9 presented at trial, in addition to proving the other elements of the two counts of

10 criminal damage to property, we conclude that the State presented sufficient evidence

11 to establish that Defendant acted intentionally when he damaged the property of

12 Crystal Baca and Victim without their permission.

13 D.       Reckless Driving

14   {22}   The jury was instructed, according to UJI 14-4504 NMRA, that in order to find

15 Defendant guilty of reckless driving, the State was required to prove beyond a

16 reasonable doubt each of the following elements:

17          1.    . . . Defendant, operated a motor vehicle;

18          2.    . . . Defendant, drove carelessly and heedlessly in willful or
19                wanton disregard of the rights or safety of others and without due
20                caution and circumspection and at a speed or in a manner so as to
21                endanger or be likely to endanger any person or property;

                                              14
 1          3.    This happened in New Mexico on or about the 3rd day of March,
 2                2015.

 3   {23}   Under the facts already described, and in addition to proving the other elements

 4 of reckless driving, we conclude that the State presented sufficient evidence to

 5 establish that Defendant drove recklessly. Defendant, in operating his vehicle, hit

 6 Victim with his vehicle twice, crashed into both Victim’s and Crystal Baca’s vehicles,

 7 and sped away from the scene of the accident. Defendant committed these acts despite

 8 evidence that he could have left the carport without hitting Victim or crashing into

 9 Victim and Crystal Baca’s vehicles.

10 CONCLUSION

11   {24}   The judgment and sentence is affirmed.

12   {25}   IT IS SO ORDERED.


13                                           _______________________________
14                                           MICHAEL E. VIGIL, Judge


15 WE CONCUR:



16 _________________________
17 M. MONICA ZAMORA, Judge




                                               15
1 ___________________________
2 STEPHEN G. FRENCH, Judge




                                16
