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                      PROPOSED MEMORANDUM OPINION

                          STATE v. WALTERS, A-1-CA-35980

       Larry Walters (“Defendant”) appeals his conviction of battery on a peace

officer. See NMSA 1978, § 30-22-24 (1971). On appeal, Defendant challenges the

district court’s response to an inquiry from the jury during deliberations. [DS 4] This

Court issued a calendar notice proposing to affirm Defendant’s conviction and he has

filed a memorandum in opposition to that proposed summary disposition. Having duly

considered that memorandum, we are unpersuaded and now affirm.

       The jury question at the center of this appeal asked, in the context of a battery

case, “[h]ow important is intention at the time of the kick?” [RP 85] The district

court’s response to that question instructed the jury: “[y]ou must rely on the law as

contained in the instructions of the Court.” [RP 86] Because Defendant does not assert

any error in the instructions themselves, our calendar notice proposed to review the

district court for an abuse of discretion. See State v. Wall, 1980-NMSC-034, ¶ 10, 94

N.M. 169, 608 P.2d 145 (reviewing a district court’s response to a jury question for

abuse of discretion), overruled on other grounds by State v. Lucero, 1993-NMSC-064,

116 N.M. 450, 863 P.2d 1071. [CN 2-3]
      In his memorandum in opposition, Defendant contends that the abuse-of-

discretion standard of review is inapplicable, pursuant to State v. Juan, 2010-NMSC-

041, ¶ 16, 148 N.M. 747, 242 P.3d 314. In that case, a jury submitted a question to the

court during deliberations, asking whether a “non-verdict or a hung jury” was

permissible. Id. ¶ 13. Rather than offer any guidance on the question of a hung jury,

the trial court in Juan decided not to give any response to the question, and the jury

eventually returned a verdict without any further communication from the court. Id.

¶¶ 13-14. In reviewing that verdict, our Supreme Court noted that,“[t]he decision to

issue additional jury instructions generally lies within the sound discretion of the trial

court,” before adding that, “when a jury requests clarification regarding the legal

principles governing a case, the trial court has a duty to respond promptly and

completely to the jury’s inquiry.” Id. ¶ 16 (internal citations omitted). Based upon that

statement, Defendant asserts that our Supreme Court has “rejected the ‘abuse of

discretion’ standard of review, though it did not explicitly state which standard should

be used in its place.” [MIO 4] We disagree.

      Juan explicitly reaffirms the proper role of a court’s discretion in responding

to jury questions before also noting that such discretion must be exercised within the

broader context of a “duty to respond promptly and completely.” Id. ¶ 16. Unlike

Juan, the district court in this case actually responded to the question asked by the


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jury, and there appears to be no issue with regard to promptness. Further, in this case,

unlike Juan, the question posed by the jury was actually answered by the written

instructions they had already been given. Indeed, defense counsel’s argument below

was simply that the district court should direct the jury’s attention to those instructions

by “stating that intent is an essential element of the crime that must be proven beyond

a reasonable doubt, and to refer them to UJI 14-2211.” [DS 3]

       Ultimately, the district court’s response to the question did refer the jury to the

written instructions, which presumably included some version of UJI 14-2211, as well

as instructions explaining the State’s burden of proof, defining intent, and describing

the proper role of inferences in assessing intent.1 [RP 86] Thus, the proper response

to the jury’s question, according to both Defendant and the district court, was to direct

the jury’s attention to principles already articulated in the written instructions. Further,

because Defendant does not assert any error in those written instructions, the error

asserted in this appeal consists solely of the actual words used by the district court to

reiterate the legally sound instructions already given to the jury.

       We believe that the district court’s decision to refer the jury broadly to the law

contained in the written instructions falls well within the “sound discretion of the trial

       1
        Neither the record proper, nor the docketing statement, nor the memorandum in
opposition in this appeal contains or describes the instructions used at trial. Our calendar notice
pointed out that Defendant does not assert any error in the written instructions used at trial and
Defendant’s memorandum in opposition does not challenge that conclusion. [CN 2]

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court” described in Juan. We decline Defendant’s invitation to second-guess the

district court by applying de novo review to the manner in which that court told the

jury to follow the law already contained in the jury instructions. Defendant’s

conviction is affirmed.

      IT IS SO ORDERED.




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