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

 2 Opinion Number: _______________

 3 Filing Date: May 23, 2016

 4 NO. 33,064

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 LAWRENCE BRANCH,

 9       Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
11 William C. Birdsall, District Judge

12 Hector H. Balderas, Attorney General
13 Maris Veidemanis, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Bennett J. Bauer, Chief Public Defender
17 Mary Barket, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1                                       OPINION

 2 VANZI, Judge.

 3   {1}   There is no question that Defendant Lawrence Branch shot and injured his

 4 adult son, Joshua Branch, with a .44 caliber revolver. Defendant confessed to the

 5 shooting and was charged with aggravated battery with a deadly weapon and

 6 negligent use of a deadly weapon. He was also charged with aggravated assault with

 7 a deadly weapon for allegedly assaulting his wife, Patricia Branch, on the theory that

 8 Defendant’s conduct caused Patricia to reasonably believe that he was about to batter

 9 her as well. The key issue at trial was whether the shooting, which was the basis for

10 all three charges, was in self defense.

11   {2}   The jury ultimately convicted Defendant on all counts. Penalties for aggravated

12 battery and aggravated assault were each increased by one year pursuant to the

13 statutory firearm enhancement. NMSA 1978, § 31-18-16(A) (1993). The district court

14 then adjudged the aggravated assault conviction to be a “serious violent offense,”

15 which limits Defendant’s eligibility for good time credit for time served in a state

16 prison. See NMSA 1978, § 33-2-34(A)(1) (2006, amended 2015).

17   {3}   On appeal, Defendant argues that (1) insufficient evidence and instructional

18 error require reversal of the aggravated assault conviction, (2) multiple punishments

19 violate Defendant’s right to be free from double jeopardy, (3) discovery and
 1 evidentiary rulings undermined Defendant’s ability to present a defense and to

 2 confront the State’s evidence with respect to all charges, and (4) the serious violent

 3 offense designation to the aggravated assault conviction lacks necessary findings. We

 4 affirm in part, reverse in part, and remand for the district court to document its

 5 findings related to the serious violent offense designation.

 6 BACKGROUND

 7   {4}   By all accounts, Joshua and Defendant spent the morning of May 7, 2012,

 8 arguing in the front yard, as they often did, about how best to care for the property

 9 they occupied in separate trailers. Joshua, who was a college student in the spring of

10 2012, left in the middle of the argument to take an exam. The argument resumed upon

11 his return and ended when Defendant fired a single shot, striking Joshua in the thigh.

12 Joshua’s injuries resulted in five surgeries and ongoing issues with circulation and

13 limb function. He was on crutches when he testified for the State at trial a year later.

14   {5}   The specific circumstances surrounding the shooting were contested below.

15 The State’s witnesses testified that Defendant was visibly upset—“aggravated,

16 agitated”—that morning. When Joshua finished his exam and returned to his parents’

17 trailer, Defendant, with “hatred in his voice,” told him to “get . . . off the property.”

18 The two then shouted back and forth before Joshua attempted to leave. Joshua and

19 Patricia walked toward the concrete slab that surrounded the steps to the porch. He



                                               2
 1 had plans to meet his girlfriend for lunch, and Patricia, attempting to ease the tension,

 2 told him to do that. But as Joshua and Patricia talked near the front steps, Defendant

 3 walked past them into the house.

 4   {6}   At some point prior, two guns—including a .44 caliber super blackhawk

 5 (described as a “hand cannon” by one witness)—were moved from their usual spot

 6 in a closet at the back of the trailer and stashed in Defendant’s recliner, which faced

 7 the trailer’s front entrance. Defendant armed himself with the .44 within seconds of

 8 entering the trailer and then walked back to the front door. Steven Hickman, a family

 9 friend who was visiting the Branch home that day, testified that Defendant “went to

10 the door and then [said] ‘get . . . out of here’ and then bang, just like that, that quick,

11 the gun was fired.”

12   {7}   Patricia testified that she had her hand on Joshua’s shoulder when he was shot.

13 The two were facing one another when she looked up and saw Defendant standing in

14 the doorway with the .44. She hollered, “No!” And Defendant fired. She saw the “fire

15 come out” of the gun, felt something hit her leg, and saw Joshua fall. She testified

16 that she “thought he was going to shoot all of us.”

17   {8}   While Joshua lay bleeding on the pavement, Defendant came out of the trailer

18 and placed a set of keys on the dash of a car that was parked under the carport. He

19 then looked over to Patricia, turned, and walked up the road, stopping only to dispose



                                                3
 1 of his pocket knife in a flower pot on the way out. Patricia did not see Defendant

 2 again that day.

 3   {9}    Defendant’s version of events differed in some respects. He testified that he

 4 was sitting with Patricia on a swing in the yard when Joshua returned from school.

 5 Defendant, who no longer wanted to argue, told Joshua that he would leave. When

 6 Defendant stood to do so, he saw that Joshua was furious. As Defendant walked

 7 toward the trailer, he saw Joshua and Patricia coming toward him. He entered the

 8 house and saw Joshua outside, nearing the porch and then reaching for the rail by the

 9 door. Defendant was frightened because he knew that Joshua was a “violent kid” with

10 post traumatic stress disorder (PTSD) who had been in several fights before,

11 including a fight in the military. He armed himself with the .44 and shot Joshua, who

12 then released the rail and fell to the concrete. Additional facts will be included as

13 needed in the analysis that follows.

14 DISCUSSION

15 A.       Instructional Error and Sufficiency of the Evidence

16   {10}   Assault consists of “any unlawful act, threat or menacing conduct which causes

17 another person to reasonably believe that he is in danger of receiving an immediate

18 battery[.]” NMSA 1978, § 30-3-1(B) (1963). The offense is aggravated when, as in

19 this case, it is committed with a deadly weapon. NMSA 1978, § 30-3-2(A) (1963).



                                               4
 1 Defendant argues that Section 30-3-1(B) required the State to prove something more

 2 than general criminal intent, which was the instruction given to the jury. Specifically,

 3 Defendant argues that the State had to prove “specific intent to frighten or put

 4 someone in fear of an imminent battery[,]” or at the very least, that one charged with

 5 violating Section 30-3-1(B) did so recklessly. Reading limiting principles of this sort

 6 into the statute would theoretically ensure some nexus between a defendant and his

 7 victim, thereby preventing what might otherwise amount to a construction of the

 8 assault statute that criminalizes the infliction of emotional distress for every bystander

 9 that is reasonably put in fear by the commission of a nearby crime.

10   {11}   Defendant’s argument is characterized as a sufficiency of the evidence

11 challenge, as a challenge to the jury instructions themselves, and as an assertion of

12 ineffective assistance of trial counsel in failing to request more demanding jury

13 instructions. “Our review for sufficiency of the evidence is deferential to the jury’s

14 findings. We review direct and circumstantial evidence in the light most favorable to

15 the guilty verdict, indulging all reasonable inferences and resolving all conflicts in

16 the evidence in favor of the verdict.” State v. Webb, 2013-NMCA-027, ¶ 14, 296 P.3d

17 1247 (alteration, internal quotation marks, and citations omitted). With respect to jury

18 instructions, we review for reversible error when an instruction is preserved and for

19 fundamental error when not. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258,



                                               5
 1 34 P.3d 1134. Whether preserved or not, however, Defendant’s contention ultimately

 2 raises an issue of statutory interpretation, for which our review is de novo. State v.

 3 Tafoya, 2012-NMSC-030, ¶ 11, 285 P.3d 604; see also State v. Osborne, 1991-

 4 NMSC-032, ¶ 40, 111 N.M. 654, 808 P.2d 624 (“[I]t is the duty of the court, not the

 5 defendant, to instruct the jury on the essential elements of a crime.”).

 6   {12}   Defendant’s view of Section 30-3-1(B) has some merit. At common law, “[a]

 7 criminal assault was an attempt to commit a battery. A tortious assault was an act

 8 which put another in reasonable apprehension of immediate bodily harm.” United

 9 States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976) (per curiam) (citation omitted).

10 The latter type—reasonable apprehension assault—has since been made a crime in

11 many jurisdictions, which have normally adopted specific intent requirements rooted

12 in the offense’s history as an intentional tort. Carter v. Commonwealth, 594 S.E.2d

13 284, 287-88 (Va. Ct. App. 2004); see, e.g., Robinson v. United States, 506 A.2d 572,

14 575 (D.C. 1986) (“An intent to frighten is sufficient[.]”); Lamb v. State of Maryland,

15 613 A.2d 402, 413 (Md. Ct. Spec. App. 1992) (“An assault of the intentional

16 frightening variety . . . requires a specific intent to place the victim in reasonable

17 apprehension of an imminent battery.”); Commonwealth v. Spencer, 663 N.E.2d 268,

18 271 (Mass. App. Ct. 1996) (“[P]roof of an intent to cause fear is required.”); accord

19 Model Penal Code § 211.1(1)(c) (2015) (“A person is guilty of assault if he . . .



                                             6
 1 attempts by physical menace to put another in fear of imminent serious bodily

 2 injury.”). This apparent uniformity in other jurisdictions has prompted one leading

 3 treatise to categorically declare that “[t]here must be an actual intention to cause

 4 apprehension, unless there exists the morally worse intention to cause bodily harm.”

 5 2 Wayne R. LaFave & David C. Baum, Substantive Criminal Law § 16.3(b), at 569

 6 (2d ed. 2003).

 7   {13}   But that is not the law of New Mexico. In State v. Cruz, this Court held that

 8 specific intent is not an essential element of aggravated assault. 1974-NMCA-077,

 9 ¶ 7, 86 N.M. 455, 525 P.2d 382. As a principle of construction, when a statute does

10 not refer to intent, which is the case with Section 30-3-1(B), we normally presume

11 that the only mens rea involved is that of conscious wrongdoing—commonly referred

12 to as “general criminal intent.” State v. Campos, 1996-NMSC-043, ¶ 56, 122 N.M.

13 148, 921 P.2d 1266 (Franchini, J., dissenting). We applied that presumption to

14 aggravated assault in Cruz, and in State v. Cutnose, 1974-NMCA-130, ¶¶ 19-20, 87

15 N.M. 307, 532 P.2d 896. Cf. State v. Mascarenas, 1974-NMCA-100, ¶¶ 11-12, 86

16 N.M. 692, 526 P.2d 1285 (“[I]nstructions in the language of the statute sufficiently

17 instruct on the required intent.”).

18   {14}   In State v. Manus, our Supreme Court—apparently persuaded by that

19 reasoning—confirmed that general criminal intent is all that is required to support a



                                              7
 1 conviction of aggravated assault under Section 30-3-1(B). State v. Manus, 1979-

 2 NMSC-035, ¶ 12, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v.

 3 State, 1982-NMSC-125, ¶¶ 9-10, 98 N.M. 786, 653 P.2d 162. The arguments made

 4 in Manus, which was also a bystander-assault case, are nearly identical to those

 5 presented here. A police officer and a bystander were filling out an accident report

 6 when the defendant approached and killed the officer with a shotgun. Id. ¶ 3. The

 7 defendant was charged with killing the officer and assaulting the bystander on the

 8 theory that the bystander was put in reasonable fear of receiving an immediate

 9 battery. Id. ¶¶ 1, 14.

10   {15}   The defendant argued that his conviction for aggravated assault of the

11 bystander could not stand because “there was no evidence of any intentional assault

12 directed at [her].” Id. ¶ 12. Our Supreme Court rejected that argument, holding that

13 “[t]he [s]tate was not required to prove that [the defendant] intended to assault [the

14 bystander], but only that he did an unlawful act which caused [the bystander] to

15 reasonably believe that she was in danger of receiving an immediate battery, that the

16 act was done with a deadly weapon, and that it was done with general criminal

17 intent.” Id. ¶ 14; see State v. Morales, 2002-NMCA-052, ¶ 36, 132 N.M. 146, 45 P.3d

18 406 (“To convict [the d]efendant of aggravated assault on a peace officer, the [s]tate

19 was not required to prove that [the d]efendant intended to injure or even frighten [the



                                              8
 1 officer].”), overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37

 2 n.6, 275 P.3d 110; see also United States v. Rede-Mendez, 680 F.3d 552, 557 (6th Cir.

 3 2012) (“The New Mexico version of aggravated assault differs from the generic

 4 version most significantly in the mens rea it attaches to the element of bodily injury

 5 or fear of injury.”); United States v. Silva, 608 F.3d 663, 675 (10th Cir. 2010) (Hartz,

 6 J., dissenting) (“[A] person [in New Mexico] who intentionally handles a weapon in

 7 a manner that induces a fear of battery can be guilty of assault even if he merely

 8 wants to show off his dexterity in handling the weapon, without any interest in

 9 inducing fear.”).

10   {16}   The expansive application of assault in Manus controls our construction of

11 Section 30-3-1(B). In accordance with the language of the statute, the State was only

12 required to prove that Defendant “did an unlawful act which caused [the bystander]

13 to reasonably believe that she was in danger of receiving an immediate battery, that

14 the act was done with a deadly weapon, and that it was done with general criminal

15 intent.” Manus, 1979-NMSC-035, ¶ 14. There is no nexus required between

16 Defendant and Patricia. Liability under the statute is only limited by the requisite

17 mental state of conscious wrongdoing and by the requirement that the victim’s fear

18 must be reasonable. See id.




                                              9
 1   {17}   Evidence was presented that Defendant’s behavior on the day of the shooting

 2 was generally threatening. He was “aggravated, agitated at something” on that day;

 3 he had “hatred in his voice.” He was in the midst of an ongoing argument with Joshua

 4 that had taken a turn for the worse. He spent the morning acting erratically—driving

 5 around the yard on a backhoe, threatening to “plow Joshua’s house down.” He

 6 demanded that Patricia choose between him and Joshua, but she refused to do so. His

 7 demeanor prior to the shooting frightened Patricia.

 8   {18}   According to his own version of events, Defendant ascended the porch steps

 9 and saw Joshua coming toward the trailer with Patricia “behind him.” Steven and

10 Patricia testified that Defendant armed himself within “a couple of seconds” and shot

11 Joshua while Patricia was standing right next to him. Patricia testified that she saw

12 the muzzle flash, felt something hit her leg, and “thought he was going to shoot all

13 of us.” We view this testimony in the light most favorable to the State. See Webb,

14 2013-NMCA-027, ¶ 14. While Defendant’s version of events differs in some respects,

15 it was for the jury to weigh the credibility of the witnesses and resolve any conflicts

16 in the testimony. See id. The jury could conclude that Defendant committed an

17 unlawful act (shooting Joshua), which caused Patricia—who had witnessed the day’s

18 events and was “standing right next to” Joshua when the shooting occurred—to

19 reasonably believe that she was also going to be shot. The jury was properly



                                             10
 1 instructed on general criminal intent. Nothing more is required. See Manus, 1979-

 2 NMSC-035, ¶ 14.

 3   {19}   Defendant makes one additional (and related) argument with respect to the

 4 sufficiency of the evidence for the aggravated assault conviction. He contends that

 5 the evidence failed to establish that he made any threat or exhibited any menacing

 6 conduct toward Patricia, which he argues is required by the statute. Defendant

 7 misreads Section 30-3-1(B). Assault consists of “any unlawful act, threat or menacing

 8 conduct which causes another person to reasonably believe that he is in danger of

 9 receiving an immediate battery[.]” Id. The commission of an “unlawful act” is an

10 alternative method of committing the offense that does not rely on threatening or

11 menacing conduct. See Hale v. Basin Motor Co., 1990-NMSC-068, ¶ 9, 110 N.M.

12 314, 795 P.2d 1006 (“[T]he word ‘or’ should be given its normal disjunctive meaning

13 unless the context of a statute demands otherwise.”). It was, in fact, the prong of the

14 statute applied in Manus, where the state was not required to prove any threat—or any

15 conduct at all—directed toward the bystander. 1979-NMSC-035, ¶ 14. There is

16 abundant evidence to support a finding that Defendant acted unlawfully when he shot

17 Joshua.




                                             11
 1 B.       Double Jeopardy

 2   {20}   We next turn to the various double jeopardy issues that Defendant raises. The

 3 constitution protects against both successive prosecutions and multiple punishments

 4 for the same offense. Swafford v. State, 1991-NMSC-043, ¶ 6, 112 N.M. 3, 810 P.2d

 5 1223. There are two types of multiple punishment cases: (1) unit of prosecution cases,

 6 in which an individual is convicted of multiple violations of the same criminal statute;

 7 and (2) double-description cases, in which a single act results in multiple convictions

 8 under different statutes. Id. ¶¶ 8-9. Defendant’s arguments, involving separate

 9 statutes, raise only double-description concerns.

10   {21}   Our courts apply a two-step inquiry to double-description claims. Id. ¶ 25.

11 First, we analyze the factual question, “whether the conduct underlying the offenses

12 is unitary, i.e., whether the same conduct violates both statutes[,]” and if so, we

13 consider the legal question, “whether the [L]egislature intended to create separately

14 punishable offenses.” Id. “If it reasonably can be said that the conduct is unitary, then

15 [we] must move to the second part of the inquiry. Otherwise, if the conduct is

16 separate and distinct, [the] inquiry is at an end.” Id. ¶ 28.

17   {22}   Because it is undisputed that this case involves unitary conduct (the firing of

18 a single shot) that resulted in multiple convictions, our analysis will be limited to the

19 question of legislative intent. “Determinations of legislative intent, like double



                                              12
 1 jeopardy, present issues of law that are reviewed de novo, with the ultimate goal of

 2 such review to be facilitating and promoting the [L]egislature’s accomplishment of

 3 its purpose.” State v. Montoya, 2013-NMSC-020, ¶ 29, 306 P.3d 426 (alterations,

 4 internal quotation marks, and citation omitted). When, as here, the statutes themselves

 5 do not expressly provide for multiple punishments, we begin by applying the rule of

 6 statutory construction from Blockburger v. United States, 284 U.S. 299 (1932), to

 7 determine whether each provision requires proof of a fact that the other does not.

 8 Swafford, 1991-NMSC-043, ¶¶ 10, 30. If not, one offense is logically subsumed

 9 within the other, and “punishment cannot be had for both.” Id. ¶ 30.

10   {23}   In State v. Gutierrez, our Supreme Court modified the Blockburger analysis for

11 double jeopardy claims involving statutes that are “vague and unspecific” or “written

12 with many alternatives.” 2011-NMSC-024, ¶¶ 58-59, 150 N.M. 232, 258 P.3d 1024

13 (emphasis, internal quotation marks, and citation omitted). Accordingly, “the

14 application of Blockburger should not be so mechanical that it is enough for two

15 statutes to have different elements.” State v. Swick, 2012-NMSC-018, ¶ 21, 279 P.3d

16 747. That is, we no longer apply a strict elements test in the abstract; rather, we look

17 to the state’s trial theory to identify the specific criminal cause of action for which the

18 defendant was convicted, filling in the case-specific meaning of generic terms in the

19 statute when necessary. Gutierrez, 2011-NMSC-024, ¶¶ 58-59. We do so



                                               13
 1 “independent of the particular facts of the case . . . by examining the charging

 2 documents and the jury instructions given in the case.” Swick, 2012-NMSC-018, ¶ 21.

 3   {24}   If the statutes survive Blockburger, we examine “other indicia of legislative

 4 intent.” Swafford, 1991-NMSC-043, ¶ 31. We look to “the language, history, and

 5 subject of the statutes, and we must identify the particular evil sought to be addressed

 6 by each offense.” Montoya, 2013-NMSC-020, ¶ 32 (internal quotation marks and

 7 citation omitted). “Statutes directed toward protecting different social norms and

 8 achieving different policies can be viewed as separate and amenable to multiple

 9 punishments.” Swafford, 1991-NMSC-043, ¶ 32.

10   {25}   Defendant argues that his right to be free from double jeopardy is violated by

11 multiple punishments for (1) aggravated battery and negligent use of a firearm, (2)

12 aggravated assault and aggravated battery, and (3) the firearm enhancements to

13 aggravated assault and aggravated battery. The State concedes at the outset that

14 Defendant’s conviction for negligent use of a firearm must be vacated, because—as

15 charged—it is subsumed within the aggravated battery conviction. We agree. We

16 address Defendant’s two remaining arguments in turn.

17 1.       Aggravated Assault and Aggravated Battery

18   {26}   The charge of aggravated assault with a deadly weapon was apparently pursued

19 under the “unlawful act” prong of Section 30-3-1(B). The term “any unlawful act” is



                                              14
 1 a generic one; there are numerous forms of conduct that could fulfill that requirement.

 2 See Mascarenas, 1974-NMCA-100, ¶ 14 (“ ‘Unlawful’ may mean nothing more than

 3 ‘not authorized by law.’ ”). In applying Blockburger, we identify the State’s actual

 4 theory of the case to supply the case-specific meaning of generic statutory terms.

 5 Gutierrez, 2011-NMSC-024, ¶¶ 58-59. The “unlawful act” that was charged to the

 6 jury was that Defendant “shot Joshua Branch while Patricia Branch was standing next

 7 to him[.]”

 8   {27}   Defendant’s conviction for aggravated battery, on the other hand, required the

 9 State to prove “the unlawful touching or application of force to the person of another

10 with intent to injure that person or another.” NMSA 1978, § 30-3-5(A) (1969)

11 (emphasis added). Section 30-3-5(A) always includes a statutory element (intent to

12 injure another person) that is never an element of assault under Section 30-3-1(B),

13 even as charged in this case. That is because—as we have discussed at length in this

14 Opinion—assault under Section 30-3-1(B) has no specific intent requirement. Manus,

15 1979-NMSC-035, ¶ 14. Similarly, assault under Section 30-3-1(B) always includes

16 an element (the victim’s reasonable belief that battery is imminent) that is never

17 required to commit a battery. See In re Marlon C., 2003-NMCA-005, ¶ 12, 133 N.M.

18 142, 61 P.3d 851 (“It is theoretically possible to complete a battery on a person

19 without prior conduct causing the person to believe the person is about to be battered,



                                              15
 1 for example, if the person is struck from behind.”). Therefore, one offense is not

 2 subsumed within the other, and Blockburger alone does not foreclose punishment

 3 under both statutes.

 4   {28}   When two statutes survive Blockburger, we look to “the language, history, and

 5 subject of the statutes, and we must identify the particular evil sought to be addressed

 6 by each offense.” Montoya, 2013-NMSC-020, ¶ 32 (internal quotation marks and

 7 citation omitted). “[T]he social evils proscribed by different statutes must be

 8 construed narrowly[.]” Swafford, 1991-NMSC-043, ¶ 32. “The aggravated battery

 9 statute protects against the social evil that occurs when one person intentionally

10 physically attacks and injures another.” State v. Carrasco, 1997-NMSC-047, ¶ 33,

11 124 N.M. 64, 946 P.2d 1075 (internal quotation marks and citation omitted). The

12 culpable act under Section 30-3-1(B), on the other hand, is one that causes

13 apprehension or fear. In other words, “[t]he harm related to assault is mental harm;

14 assaults put persons in fear. The harm related to battery is physical harm; batteries

15 actually injure persons.” State v. Cowden, 1996-NMCA-051, ¶ 12, 121 N.M. 703, 917

16 P.2d 972.

17   {29}   In State v. Roper, we held that double jeopardy principles are not offended

18 when a defendant is convicted and sentenced for two counts of assault for pointing

19 a gun at two persons at the same time. 2001-NMCA-093, ¶ 12, 131 N.M. 189, 34 P.3d



                                              16
 1 133. The analysis in Roper is consistent with the principle that our assault statutes are

 2 designed to protect distinct victims from mental harm caused by a single act. Id.;

 3 Cowden, 1996-NMCA-051, ¶ 12. Although this is not a unit of prosecution case, the

 4 same logic applies here, where one victim is shot and another assaulted. Defendant’s

 5 convictions for offenses involving distinct social harms caused to multiple victims

 6 do not violate the right to be free from double jeopardy.

 7 2.       Firearm Enhancements

 8   {30}   Defendant next argues that firearm enhancements to his convictions for

 9 aggravated battery and aggravated assault, both committed with a deadly weapon,

10 violate double jeopardy because use of a firearm—the only essential requirement for

11 the increased penalty—was also charged to the jury to prove the underlying crimes.

12 The law in this area is not clear.

13   {31}   A sentence shall be increased by one year when a court or jury makes a

14 separate finding of fact that a firearm was used in the commission of a noncapital

15 felony. Section 31-18-16(A). We have previously held that the firearm enhancement

16 can be constitutionally applied to both aggravated battery with a deadly weapon, State

17 v. Gonzales, 1981-NMCA-023, ¶ 6, 95 N.M. 636, 624 P.2d 1033, overruled on other

18 grounds by Buzbee v. Donnelly, 1981-NMSC-097, ¶ 46, 96 N.M. 692, 634 P.2d 1244,

19 and aggravated assault with a deadly weapon, State v. Charlton, 1992-NMCA-124,



                                              17
 1 ¶¶ 23, 26, 115 N.M. 35, 846 P.2d 341. In some instances, we have upheld the

 2 enhancement even when the jury instruction for the underlying offense expressly

 3 required the state to prove that the deadly weapon used was, in fact, a firearm. See,

 4 e.g., State v. Gonzales, 2010 WL 4924986, No. 28,467, mem. op. *11 (N.M. Ct. App.

 5 Oct. 26, 2010) (non-precedential). The State cites these cases in support of its

 6 argument. Defendant counters in his reply brief that Gonzales and Charlton (and

 7 other similar cases) are no longer good law on this point.

 8   {32}   Gonzales relied entirely on State v. Gabaldon, 1978-NMCA-101, 92 N.M. 230,

 9 585 P.2d 1352. In Gabaldon, we upheld a firearm enhancement applied to a

10 conviction of robbery with a deadly weapon, where the deadly weapon used was a

11 firearm because armed robbery could (in theory) be committed by using a knife, brass

12 knuckles, or any other deadly weapon. Id. ¶¶ 1, 28, 31. Since the statutory elements

13 for armed robbery did not always require proof that a firearm was used, there was no

14 double jeopardy violation. Id. ¶ 31. Charlton similarly resolved the Blockburger

15 portion of the double jeopardy analysis by looking strictly to the elements of the

16 statutes. Charlton, 1992-NMCA-124, ¶¶ 22-23.

17   {33}   Thus, there is a natural distinction in cases where the elements of the enhanced

18 offense specifically refer to the use of a “firearm” as opposed to a “deadly weapon.”

19 State v. Varela, 1999-NMSC-045, ¶ 41, 128 N.M. 454, 993 P.2d 1280 (vacating



                                               18
 1 firearm enhancements applied to a conviction for shooting into a dwelling and for

 2 felony murder predicated on that offense because the use of a firearm is an element

 3 of the crimes); State v. Franklin, 1993-NMCA-135, ¶ 15, 116 N.M. 565, 865 P.2d

 4 1209 (distinguishing Gabaldon because the defendant in Franklin was specifically

 5 charged with manslaughter by negligent use of a firearm). As we recognized in

 6 Franklin, the state is not required to prove any additional facts to enhance the

 7 sentence when use of a firearm—as opposed to a deadly weapon—is an express

 8 statutory element of the enhanced offense. 1993-NMCA-135, ¶¶ 13-15. In those

 9 instances, the firearm enhancement has always been subsumed under Blockburger

10 (even when applied to the statutes in the abstract), and punishment cannot be had for

11 both the enhancement and the enhanced offense. Franklin, 1993-NMCA-135, ¶¶ 13-

12 15.

13   {34}   The basis for the distinction between Charlton and Gonzales, on the one hand,

14 and Varela and Franklin, on the other, is no longer sound. Our Supreme Court’s

15 subsequent rejection of a mechanical, strict elements test in cases involving statutes

16 that are “vague and unspecific” or “written with many alternatives” now requires our

17 courts to apply Blockburger with reference to the state’s legal theory of the case.

18 Gutierrez, 2011-NMSC-024, ¶¶ 58-59 (emphasis, internal quotation marks, and

19 citation omitted).



                                              19
 1   {35}   A “deadly weapon” is a generic term. As defined in the Criminal Code, it

 2 “means any firearm, whether loaded or unloaded; or any weapon which is capable of

 3 producing death or great bodily harm[.]” NMSA 1978, § 30-1-12(B) (1963). The

 4 definition then includes a nonexclusive list of various weapons, including brass

 5 knuckles, switchblade knives, etc. Id. Although the deadly weapon required to

 6 commit aggravated battery and aggravated assault could have technically been any

 7 of these weapons, see Gabaldon, 1978-NMCA-101, ¶¶ 28, 31, there is no doubt that

 8 the State sought to prove that the deadly weapon actually used in this case was a

 9 firearm.

10   {36}   To determine the State’s theory of the case, we look to the charging documents

11 and jury instructions. See Swick, 2012-NMSC-018, ¶ 21. For aggravated battery with

12 a deadly weapon, Defendant was charged by criminal information with “touch[ing]

13 or apply[ing] force to Joshua Branch, with a .44 caliber revolver handgun, a deadly

14 weapon.” To convict him of that offense, the jury was charged to find that Defendant

15 “touched or applied force to Joshua Branch by shooting him with a firearm[.]” For

16 aggravated assault with a deadly weapon, Defendant was charged with

17 “assault[ing] . . . Patricia Branch with a .44 caliber revolver[,] a deadly weapon[.]”

18 The jury instruction on that count required a finding that Defendant “shot Joshua

19 Branch.” In light of the theory of the case charged to the jury, we can no longer



                                              20
 1 examine the elements of the assault and battery statutes in the abstract to uphold the

 2 firearm enhancements as we did in Charlton and Gonzales. See Swick, 2012-NMSC-

 3 018, ¶ 21; Gutierrez, 2011-NMSC-024, ¶¶ 58-59.

 4   {37}   Our Supreme Court’s most recent pronouncement on this issue was in an

 5 unpublished decision. State v. Ferri, 2015 WL 560798, No. 34,229, dec. ¶¶ 66-67

 6 (N.M. Sup. Ct. Feb. 9, 2015) (non-precedential). The Court concluded that, when use

 7 of a firearm was specifically instructed as an element of the aggravated burglary

 8 offense, which similarly refers to the generic “deadly weapon” element, the inclusion

 9 of a firearm enhancement violates double jeopardy. Id. ¶¶ 1, 66-67. The result in

10 Ferri, which is persuasive authority, see Rule 12-405(A) NMRA, is not consistent

11 with Gabaldon’s abstract analysis of the “deadly weapon” element of armed robbery,

12 upon which Charlton and Gonzales relied. Gabaldon,1978-NMCA-101, ¶¶ 1, 29-31.

13   {38}   Because the State, according to its own theory of the case, was not required to

14 prove any additional facts to have Defendant’s sentence enhanced, the firearm

15 enhancements in this case violate double jeopardy under the rule stated in Varela and

16 Franklin just as they would if the statutes themselves said “firearm” instead of

17 “deadly weapon.” The enhancements must be vacated.




                                              21
 1 C.       Discovery and Evidentiary Rulings

 2   {39}   Defendant next argues that discovery and evidentiary rulings undermined his

 3 right to present a defense and to confront the State’s evidence. He argues that the

 4 district court erred when it (1) failed to order disclosure of Joshua’s military and

 5 mental health records, (2) excluded expert testimony related to PTSD, and (3) failed

 6 to provide a remedy for the destruction of evidence material to the case. Defendant

 7 asserts that these errors, either separately or combined, deprived him of a fair trial.

 8   {40}   We review these contentions in a manner highly deferential to the court below.

 9 “The granting of discovery in a criminal case is a matter peculiarly within the

10 discretion of the trial court. A trial judge’s denial of a defendant’s discovery requests

11 will be reviewed according to an abuse of discretion standard.” State v. Bobbin, 1985-

12 NMCA-089, ¶ 7, 103 N.M. 375, 707 P.2d 1185 (citation omitted). The same standard

13 applies in evaluating a trial court’s decision to exclude evidence, State v. Stills, 1998-

14 NMSC-009, ¶ 44, 125 N.M. 66, 957 P.2d 51, and in evaluating a trial court’s ruling

15 as to the proper remedy for evidence that has been lost or destroyed, State v.

16 Chouinard, 1981-NMSC-096, ¶¶ 25-26, 96 N.M. 658, 634 P.2d 680. “An abuse of

17 discretion arises when the evidentiary ruling is clearly contrary to logic and the facts

18 and circumstances of the case.” State v. Downey, 2008-NMSC-061, ¶ 24, 145 N.M.

19 232, 195 P.3d 1244 (internal quotation marks and citation omitted).



                                               22
 1 1.       Disclosure of Military and Mental Health Records

 2   {41}   Defendant issued a subpoena duces tecum directing Joshua, who is a veteran

 3 of the Marine Corps, to provide a copy of his military discharge paperwork.

 4 Defendant also requested a court order authorizing the release of Joshua’s discharge

 5 records from the National Archives in St. Louis, Missouri. See 5 U.S.C. § 552a(b)(11)

 6 (2014) (permitting the disclosure of agency records “pursuant to the order of a court

 7 of competent jurisdiction”). In response, the State asserted that Joshua’s discharge

 8 records were inadmissible and contained sensitive personal identifying information

 9 and protected medical information. The State also asserted that Joshua’s prior service

10 as a Marine could not possibly provide a justification for Defendant shooting him in

11 the leg.

12   {42}   At the hearing on the issue, the district court apparently viewed Defendant’s

13 various discovery requests as a “fishing expedition.”1 The court asked Defendant to

14 articulate his reasons for seeking Joshua’s military records. Defendant asserted that

15 Joshua had been previously involved in “violence against other members of the

16 military.” Defendant specifically referred to a fight in the military that may have

17 resulted in Joshua’s service being prematurely terminated. He argued that evidence

18 of the fight could be admissible to show Joshua’s propensity for violence. He also


          1
19          Defendant also subpoenaed Joshua’s college academic records. That subpoena
20 is not involved in this appeal.

                                              23
 1 argued that Joshua was going to take the stand and that the discharge papers would

 2 be useful to impeach him. And finally, Defendant argued that the military records

 3 could open an avenue into Joshua’s mental health history as it relates to PTSD.

 4   {43}   The district court correctly determined that, in self defense cases, evidence of

 5 specific instances of a victim’s prior violent conduct cannot be admitted as propensity

 6 evidence of the victim’s violent disposition. See State v. Armendariz, 2006-NMSC-

 7 036, ¶ 17, 140 N.M. 182, 141 P.3d 526 (“[A] victim’s violent character is not an

 8 essential element of a defendant’s claim of self[]defense, but rather circumstantial

 9 evidence that tends to show that the victim acted in conformity with his or her

10 character on a particular occasion. . . . [O]nly reputation or opinion evidence should

11 be admitted to show that the victim was the first aggressor.”), overruled on other

12 grounds by Swick, 2012-NMSC-018, ¶ 31. The district court also recognized that the

13 discharge papers would not be admissible to impeach Joshua. See Rule 11-608(B)

14 NMRA (“[E]xtrinsic evidence is not admissible to prove specific instances of a

15 witness’s conduct in order to attack or support the witness’s character for

16 truthfulness.”). Because the requested records allegedly contained Joshua’s

17 “sacrosanct” medical history, and because Defendant did not justify the need for those

18 records at the hearing, the district court quashed Defendant’s subpoena and declined




                                               24
 1 to issue an order authorizing production of the documents from the National

 2 Archives.

 3   {44}   Records are normally discoverable if reasonably calculated to lead to the

 4 discovery of admissible evidence. See Rule 5-503(C) NMRA. While records need not

 5 be admissible to be discoverable, a proponent of discovery may still be required to

 6 provide “a reasonable basis on which to believe that it is likely the records contain

 7 material information.” State v. Garcia, 2013-NMCA-064, ¶ 28, 302 P.3d 111.

 8 Defendant argues on appeal that the proper procedure to determine materiality of

 9 Joshua’s military records would have been for the district court to order in camera

10 review of the documents.

11   {45}   We agree that in camera review would have been the best way to balance

12 Joshua’s privacy interests with Defendant’s interests in obtaining records that were

13 potentially relevant to his defense. See State v. Luna, 1996-NMCA-071, ¶ 13, 122

14 N.M. 143, 921 P.2d 950 (“In camera review of confidential information represents a

15 compromise between the intrusive disclosure of irrelevant information on the one

16 hand and the complete withholding of possibly exculpatory evidence on the other.”);

17 State v. Gonzales, 1996-NMCA-026, ¶ 20, 121 N.M. 421, 912 P.2d 297 (stating that

18 the proper procedure to determine whether the material requested by the defendant

19 is relevant is in camera review by the district court); State v. Pohl, 1976-NMCA-089,



                                            25
 1 ¶ 5, 89 N.M. 523, 554 P.2d 984 (holding that the district court erred in not conducting

 2 an in camera review “to determine whether the files contained evidence material to

 3 the defense”).

 4   {46}   But there is one problem for Defendant. Unlike the defendants in Luna, 1996-

 5 NMCA-071, ¶ 3, Gonzales, 1996-NMCA-026, ¶ 20, and Pohl, 1976-NMCA-089, ¶ 4,

 6 Defendant never actually requested in camera inspection of any records before the

 7 district court—even after the court asked Defendant to provide “specific

 8 knowledge . . . as to what to look for and where, or on the other hand to request an

 9 in camera review[.]” For that reason alone, this case better resembles State v. Baca,

10 in which we stated,

11          As in Pohl, we cannot determine whether the suppressed evidence was
12          material to [the d]efendants’ claim of self[]defense, but, unlike Pohl,
13          [the d]efendants neither requested an in camera hearing nor showed as
14          specific a need as could be expected under the
15          circumstances. . . . Rather, our review of the argument made during the
16          motion hearing convinces us that [the d]efendants were on a fishing
17          expedition. [The d]efendants made no showing that their rights would
18          be violated but for full disclosure of the master file[.]

19 1993-NMCA-051, ¶¶ 25-26, 115 N.M. 536, 854 P.2d 363 (internal quotation marks

20 and citations omitted).

21   {47}   There are compelling arguments on appeal that in camera review of Joshua’s

22 military records could have been useful to locate material information, such as the

23 identities of character witnesses who could have testified about Joshua’s reputation


                                              26
 1 for violence, see Rule 11-405(A) NMRA, or corroborating witnesses who arguably

 2 could have testified under Rule 11-404(B) NMRA and State v. Maples, 2013-NMCA-

 3 052, ¶ 27, 300 P.3d 749. But we cannot say that the district court abused its discretion

 4 in rejecting the arguments that were actually presented below, where Defendant did

 5 not seek in camera review but sought full disclosure of all discharge records. See

 6 Baca, 1993-NMCA-051, ¶¶ 25-26; see also State v. Ortiz, 2009-NMCA-092, ¶ 32,

 7 146 N.M. 873, 215 P.3d 811 (“To preserve an issue for review on appeal, it must

 8 appear that appellant fairly invoked a ruling of the trial court on the same grounds

 9 argued in the appellate court.” (internal quotation marks and citation omitted)). We

10 affirm the district court because its ruling on the arguments before it was not “clearly

11 contrary to logic and the facts and circumstances of the case.” Downey, 2008-NMSC-

12 061, ¶ 24 (internal quotation marks and citation omitted).

13 2.       Testimony Related to PTSD

14   {48}   Defense counsel questioned Joshua at a preliminary hearing about a diagnosis

15 of PTSD related to prior military service. The State then filed a motion in limine to

16 exclude evidence of Joshua’s mental health history in the absence of expert testimony

17 establishing the relevance of such evidence. The district court granted that motion,

18 ordering that if “Defendant does not make, through expert testimony, a prima faci[e]

19 showing that evidence of [Joshua’s] mental health history is relevant, then no such



                                              27
 1 evidence may be introduced.” A little over a week before trial, Defendant identified

 2 Dr. Alexander Paret, a psychologist, to testify about PTSD. The State moved to

 3 exclude Dr. Paret’s testimony on the ground that he had no prior contact with Joshua

 4 and would have been unable to testify about how PTSD symptoms were specifically

 5 manifested in Joshua.

 6   {49}   The district court held a hearing on the issue on the day before trial. Defendant

 7 conceded that Dr. Paret had never met or spoken with Joshua and would only testify

 8 about PTSD generally because a diagnosis of PTSD goes to the reasonableness of

 9 Defendant’s assumption that he was in apparent danger when he shot Joshua. The

10 court pointed out that “PTSD is a spectrum” that manifests itself in different people

11 in different ways and that without ever having examined Joshua, Dr. Paret could not

12 assist the jury in determining whether Defendant’s alleged concerns about Joshua’s

13 PTSD were reasonable. The court suppressed the proposed testimony.

14   {50}   “The very essence of discretion is that there will be reasons for the district

15 court to rule either way on an issue, and whatever way the district court rules will not

16 be an abuse of discretion.” State v. Layne, 2008-NMCA-103, ¶ 7, 144 N.M. 574, 189

17 P.3d 707. “The trial judge’s discretion is necessarily broad for he sits in the arena of

18 litigation.” State v. Tafoya, 1980-NMSC-099, ¶ 6, 94 N.M. 762, 617 P.2d 151

19 (internal quotation marks and citation omitted). It is the trial judge that is best suited



                                               28
 1 to answer the determinative question: “On this subject can a jury from this person

 2 receive appreciable help?” Id. (internal quotation marks and citations omitted).

 3   {51}   The defendant in Tafoya was prevented from calling a child psychologist to

 4 testify that children had fantasized an alleged instance of sexual assault. Id. ¶ 3. The

 5 psychologist’s testimony “was to have been based upon statements and depositions

 6 of the children, as well as tapes of their trial testimony. She had never personally

 7 observed the demeanor of the children, nor questioned them herself.” Id. On appeal,

 8 our Supreme Court held that it was not an abuse of discretion for the trial court to

 9 “determine that the probative value of the testimony was slight, based upon the lack

10 of personal observation” by the psychologist. Id. ¶ 7.

11   {52}   The situation is no different here. The district court in this case reasonably

12 discounted the value of Dr. Paret’s general testimony about PTSD, which would have

13 made no reference to any observation of Joshua. “PTSD is simply not a monolithic

14 disease with a uniform structure that does not permit of individual variation.” Brunell

15 v. Wildwood Crest Police Dep’t, 822 A.2d 576, 588-89 (N.J. 2003). Those diagnosed

16 with PTSD exhibit a range of reactions related to their trauma. See The National

17 Institute of Mental Health: Post-Traumatic Stress Disorder, available at

18 http://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.s

19 html (last accessed April 20, 2016). Dr. Paret’s proposed testimony would not have



                                              29
 1 accounted for any individual variation or meaningfully assisted the jury in

 2 determining whether Defendant’s reaction to the manifestation of PTSD in Joshua

 3 was reasonable. “No error occurs when the judge excludes expert testimony where

 4 the probative value of that testimony is slight.” State v. Blea, 1984-NMSC-055, ¶ 7,

 5 101 N.M. 323, 681 P.2d 1100. The cases cited by Defendant are not to the contrary.

 6 State v. Alberico, 1993-NMSC-047, ¶ 44, 116 N.M. 156, 861 P.2d 192 (“[T]he

 7 relevant inquiry is on this subject can a jury from this person receive appreciable

 8 help.” (alteration, internal quotation marks, and citation omitted)); State v. Marquez,

 9 2009-NMSC-055, ¶ 25, 147 N.M. 386, 223 P.3d 931 (dealing with harmless error in

10 an analysis that has been overruled), overruled by Tollardo, 2012-NMSC-008.

11 3.       Destruction of Evidence

12   {53}   At some point on the day of the shooting, Detective Danny Clugsten of the San

13 Juan County Sheriff’s Office took photographs of the crime scene that were

14 inadvertently lost. Defendant moved on the morning of trial to dismiss all charges or

15 to otherwise exclude several of the State’s witnesses pursuant to Scoggins v. State,

16 1990-NMSC-103, ¶¶ 8-9, 111 N.M. 122, 802 P.2d 631. In the alternative, Defendant

17 requested a last-minute continuance so that the State could review and respond to the

18 authorities cited in the motion to dismiss. The district court denied the motion

19 because it was not timely and because there were multiple eyewitnesses at the scene



                                              30
 1 who could testify about the relevant details. Defendant subsequently requested a jury

 2 instruction that the lost photographs “may have supported the conclusion that

 3 Joshua Branch was in a position from which he could cause immediate harm to . . .

 4 [D]efendant” and that the jury could consider the loss of evidence to be “unfavorable

 5 to the [S]tate.” The court gave defense counsel carte blanche to raise the issue in

 6 cross-examination of police witnesses and in closing arguments but denied the

 7 request for a limiting instruction.

 8   {54}   We apply a three-part test to determine whether deprivation of evidence by the

 9 State constitutes reversible error. Chouinard, 1981-NMSC-096, ¶ 16. We ask, first,

10 whether the State breached some duty or intentionally deprived Defendant of

11 evidence; second, whether the suppressed evidence was material; and third, whether

12 prejudice resulted. Id. Because there is no allegation that the photographs were lost

13 in bad faith, Defendant bore the burden of showing materiality and prejudice before

14 any sanctions would have been appropriate. See State v. Pacheco, 2008-NMCA-131,

15 ¶ 30, 145 N.M. 40, 193 P.3d 587. The district court is in the best position to evaluate

16 the importance of lost evidence. Id.

17   {55}   Defendant’s motion was filed at the last minute and without any good reason

18 for the late filing. The defense team had known for months that the photographs were

19 lost. They nevertheless brought the issue to the court’s attention on the morning of



                                              31
 1 trial because, after a discussion the night before, they realized they “had a duty to

 2 generate a record.” They faxed the motion to opposing counsel at 7:00 p.m. that night,

 3 leaving the State little opportunity to respond. It was undisputed that the motion was

 4 untimely and that there was no good excuse for the late filing.

 5   {56}   In any event, Defendant’s argument is not convincing on the merits. While

 6 there is no doubt that the State breached a duty to preserve evidence, the district court

 7 could reasonably conclude that Defendant did not show materiality or prejudice.

 8 Defendant asserted at the hearing that blood spatter in the photographs might show

 9 Joshua’s location when he was shot. That is speculative because Defendant did not

10 know what was in the photographs. “The mere possibility that an item of undisclosed

11 information might have helped the defense, or might have affected the outcome of the

12 trial, does not establish ‘materiality’ in the constitutional sense.” State v. Martin,

13 1984-NMSC-077, ¶ 37, 101 N.M. 595, 686 P.2d 937 (internal quotation marks and

14 citation omitted). It was, after all, Defendant’s burden to establish materiality.

15 Pacheco, 2008-NMCA-131, ¶ 30. And that burden might have been met had the

16 defense team addressed the issue when the State brought it to their attention months

17 earlier. The photos were taken and lost by an identified officer, Detective Clugston.

18 There were likely two other witnesses, Deputy Todd Mangan, the first officer that

19 arrived on the scene, and Detective Tim Nyce, who stated in open court that he was



                                              32
 1 present when the photos were taken, that could have testified about the nature of the

 2 lost evidence. But instead of interviewing them prior to filing the motion, defense

 3 counsel speculated on the morning of trial about the contents of the photographs,

 4 asking—based on the unknown—for outright dismissal of all charges, exclusion of

 5 several of the State’s witnesses, or a continuance of the trial after the jury had already

 6 been empaneled. See State v. Aragon, 1997-NMCA-087, ¶ 22, 123 N.M. 803, 945

 7 P.2d 1021 (“[A]s a general rule, a motion for a continuance filed at the last minute is

 8 not favored.”).

 9   {57}   Even assuming that there was discernable blood spatter in the photographs, it

10 is unlikely that suppression prejudiced Defendant. The State’s theory about Joshua’s

11 location when he was shot was not meaningfully different from Defendant’s version

12 of events. Joshua testified that he was three to four feet from the railing on the steps

13 to the front porch. Patricia testified to the same effect. Steven saw Joshua lying on the

14 pavement six to eight feet from the trailer after the shooting. And Defendant

15 conceded that Joshua did not follow him onto the porch. All accounts put Joshua in

16 the immediate vicinity of the railing surrounding the door to the trailer when the

17 shooting occurred. The real question was not where Joshua was standing, but whether

18 he was advancing on Defendant. No after-the-fact photograph of blood spatter could

19 have resolved that critical issue. See State v. Duarte, 2007-NMCA-012, ¶ 11, 140



                                              33
 1 N.M. 930, 149 P.3d 1027 (“[R]eversal is not mandated unless the evidence is in some

 2 way determinative of guilt.” (internal quotation marks and citation omitted)). On

 3 these facts, we defer to the district court’s sound discretion not to mandate sanctions

 4 of any kind.

 5   {58}   We conclude that there was no error in any of the district court’s discovery and

 6 evidentiary rulings, and therefore, there was no cumulative error. See State v. Salas,

 7 2010-NMSC-028, ¶ 40, 148 N.M. 313, 236 P.3d 32.

 8 D.       Aggravated Assault as a Serious Violent Offense

 9   {59}   This final issue arises, as it often does, because the district court used only

10 boilerplate language in a sentencing document to designate a serious violent offense

11 under Section 33-2-34(L)(4)(o) of the Earned Meritorious Deductions Act (EMDA).

12 The EMDA provides that prisoners convicted of serious violent offenses may earn

13 only four (as opposed to thirty) days per month of good time credit for time served

14 in our state prisons. Section 33-2-34(A)(1), (2). The statute divides serious violent

15 offenses into two categories: (1) an enumerated list of crimes, such as second degree

16 murder, that are serious violent offenses as a matter of law; and (2) several

17 “additional offenses that the district court may determine to be serious violent

18 offenses due to the nature of the offense and the resulting harm.” State v. Scurry,

19 2007-NMCA-064, ¶ 5, 141 N.M. 591, 158 P.3d 1034 (internal quotation marks and



                                               34
 1 citation omitted). Aggravated assault is a discretionary offense under the second

 2 category. Section 33-2-34(L)(4)(o). In language mirroring the statute, the district

 3 court designated it to be a serious violent offense “due to the nature of the offense and

 4 the resulting harm.”

 5   {60}   When, as here, an offense is discretionary under the statute, “a court’s

 6 designation of a crime as a serious violent offense affects the length of time the

 7 defendant serves time in prison,” and therefore “it is important that the court make

 8 specific findings both to inform the defendant being sentenced of the factual basis on

 9 which his good time credit is being substantially reduced, and to permit meaningful

10 and effective appellate review of the court’s designation.” State v. Loretto, 2006-

11 NMCA-142, ¶ 12, 140 N.M. 705, 147 P.3d 1138. Express findings must demonstrate

12 that the crime was “committed in a physically violent manner either with an intent to

13 do serious harm or with recklessness in the face of knowledge that one’s acts are

14 reasonably likely to result in serious harm.” Id. ¶ 11 (internal quotation marks and

15 citation omitted). Even where support exists in the record for the district court to

16 make such a determination, it is up to the district court “in the first instance to make

17 the required findings.” State v. Morales, 2002-NMCA-016, ¶ 18, 131 N.M. 530, 39

18 P.3d 747, abrogated on other grounds by State v. Frawley, 2007-NMSC-057, ¶ 36,

19 143 N.M. 7, 172 P.3d 144.



                                              35
 1   {61}   The State argues that “[t]he evidence presented at trial fully supports the trial

 2 court’s finding that the aggravated assault conviction was a serious violent offense.”

 3 But the standard is not whether there is sufficient evidence in the record to support

 4 the district court’s unexplained conclusion. The standard is a bright line that “requires

 5 the district court to explain its conclusions.” Scurry, 2007-NMCA-064, ¶ 6. We have

 6 held in this Opinion that, under Manus, Defendant may technically have been

 7 convicted of aggravated assault without directing any conduct toward Patricia,

 8 without acting recklessly, and without harboring any specific intent to cause

 9 apprehension or fear. See 1979-NMSC-035, ¶ 14. The district court’s findings for

10 sentencing on aggravated assault are both important and required. Morales, 2002-

11 NMCA-016, ¶¶ 16, 18.

12   {62}   The State has not pointed out any specific findings in the record. The judgment

13 and sentence contains only the same run-of-the-mill explanation—“due to the nature

14 of the offense and the resulting harm”—that frequently causes us to remand cases for

15 additional factfinding. See, e.g., State v. Irvin, 2015 WL 4276092, No. 32,643, mem.

16 op. ¶ 37 (N.M. Ct. App. June 23, 2015) (non-precedential); State v. Kuykendall, 2014

17 WL 5782937, No. 32,612, mem. op. ¶ 37 (N.M. Ct. App. Sept. 23, 2014) (non-

18 precedential); State v. Ybanez, 2013 WL 4527245, No. 31,216, mem. op. ¶¶ 18-19

19 (N.M. Ct. App. Mar. 27, 2013) (non-precedential); State v. Farrell, 2010 WL



                                               36
 1 3997938, No. 29,186, mem. op. *7 (N.M. Ct. App. Feb. 3, 2010) (non-precedential);

 2 State v. Salles, 2009 WL 6677933, No. 29,222, mem. op. *2-3 (N.M. Ct. App. May

 3 1, 2009) (non-precedential).

 4   {63}   We once again remand for findings consistent with the standard described in

 5 Morales, 2002-NMCA-016, ¶¶ 16, 18, and the cases that have followed it.

 6 CONCLUSION

 7   {64}   Defendant’s convictions for aggravated assault and aggravated battery, both

 8 with a deadly weapon, are affirmed. The firearm enhancements to those convictions

 9 are reversed and vacated. Defendant’s conviction for negligent use of a deadly

10 weapon is also reversed and vacated. Finally, we remand the serious violent offense

11 designation related to Defendant’s aggravated assault conviction back to the district

12 court for specific findings to identify and explain the evidence supporting the

13 designation.

14   {65}   IT IS SO ORDERED.


15                                         _______________________________
16                                         LINDA M. VANZI, Judge




                                             37
1 WE CONCUR:



2 _________________________________
3 TIMOTHY L. GARCIA, Judge


4 _________________________________
5 STEPHEN G. FRENCH, Judge




                                  38
