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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. 29,810

 5 DENNIS CHAVEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Carl J. Butkus, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   M. Victoria Wilson, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Law Offices of Nancy L. Simmons
15 Nancy L. Simmons
16 Albuquerque, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 HANISEE, Judge.
 1   {1}   A jury found Defendant guilty of one count of voluntary manslaughter, contrary

 2 to NMSA 1978, Section 30-2-3 (1994), and one count of criminal damage to property,

 3 contrary to NMSA 1978, Section 30-15-1 (1963). Defendant appeals his convictions,

 4 arguing that his speedy trial rights were violated and there was insufficient evidence

 5 to support his conviction for voluntary manslaughter. We affirm.

 6 BACKGROUND

 7   {2}   Defendant met and befriended a woman named Renee Chavez at a yard sale.

 8 Chavez was fighting drug addiction, and Lupe Garcia was her supplier. Defendant

 9 killed Garcia on June 24, 2007. The events surrounding Garcia’s death are as follows.



10   {3}   Defendant and Garcia were involved in an altercation the night before Garcia’s

11 death. According to Defendant, Garcia attacked him shortly after Defendant had told

12 Chavez to stop hanging out with Garcia. Defendant testified that Garcia hit him in the

13 face with a gun, stuck the gun in his mouth, and threw a beer bottle at his face.

14 Defendant reported the incident to 911 and identified Garcia as his attacker.

15   {4}   The next morning, Defendant went to Chavez’s home, where Garcia had spent

16 the night. While Chavez and Garcia were asleep, Defendant removed the air

17 conditioner from the bedroom window where Garcia slept, threw smoke bombs into

18 the room, and flooded the carpet with water from a garden hose. Defendant claimed

                                              2
 1 at trial that he had gone to Chavez’s house to “check up” on her and that he threw the

 2 smoke bombs because he was concerned about Chavez’s safety. During cross-

 3 examination, however, Defendant stated that he threw the smoke bombs as “kind of

 4 like a kid joke.” When Chavez woke up, she called Defendant because she suspected

 5 that he was involved in the events at her house, but had not seen him there that

 6 morning. Defendant believed that Chavez threatened his mother during their phone

 7 conversation.

 8   {5}   Shortly after the phone call, Defendant returned to Chavez’s home. Upon

 9 arrival, he was yelling and proceeded to break her apartment windows with rocks.

10 Chavez ran out her back door and hid underneath an RV camper. Garcia went out the

11 front door and approached Defendant. Garcia had a pellet gun in his waistband, which

12 Defendant mistook for a higher caliber weapon. When Garcia pulled the pellet gun

13 from his waistband, Defendant began hitting Garcia with a pole that he found on the

14 ground. Defendant hit Garcia with the pole at least twice, grabbed the pellet gun, and

15 ran from the scene of the incident. At this point, Defendant realized that the gun was

16 a pellet gun, and not a higher caliber weapon. Chavez called 911 when she heard

17 Defendant leave. Garcia died from injuries to his head later that day.

18   {6}   Defendant was arrested on July 12, 2007. The State entered its appearance on

19 July 31, 2007, and substituted counsel nearly a year later on June 4, 2008. On August

                                             3
 1 24, 2007, defense counsel entered his appearance, requested discovery, and made a

 2 speedy trial demand. On March 25, 2009, after a series of continuances, Defendant

 3 filed a motion to dismiss for violation of his right to a speedy trial. The motion was

 4 argued, and orally denied by the district court on March 30, 2009. Jury selection

 5 began March 31, 2009, and opening statements began on April 1, 2009. During trial,

 6 Defendant’s theory of defense was self-defense. The district court instructed the jury

 7 on self-defense, but at the request of the State also instructed the jury with New

 8 Mexico Uniform Jury Instruction (UJI) 14-5191 NMRA, which states that when an

 9 accused is the initial aggressor he may not assert the self-defense justification. On

10 April 9, 2009, the jury entered a verdict against Defendant.

11   {7}   Defendant timely filed a notice of appeal with this Court on August 12, 2009.

12 The case was initially assigned to the summary calendar where both parties

13 acknowledged that the district court had not entered written findings regarding the

14 speedy trial issue. This Court ordered a limited remand for the district court to

15 prepare and enter written findings explaining its denial of Defendant’s motion to

16 dismiss.

17 DISCUSSION

18 I.      SPEEDY TRIAL

19   {8}   On appeal, Defendant contends that he was denied his right to a speedy trial

                                             4
 1 because one year and nine months had elapsed between his arrest and his trial. The

 2 right to a speedy trial is protected under both the federal and state constitutions. See

 3 U.S. Const. amend. VI; N.M. Const. art. II, § 14. In assessing a violation of this right,

 4 we examine four factors: (1) the length of delay, (2) the reasons for delay, (3) the

 5 defendant’s assertion of the right, and (4) prejudice to the defendant. State v. Moreno,

 6 2010-NMCA-044, ¶ 5, 148 N.M. 253, 233 P.3d 782. While we give deference to the

 7 district court’s fact finding, we independently examine the record to ensure that no

 8 constitutional violation has occurred. State v. Tortolito, 1997-NMCA-128, ¶ 6, 124

 9 N.M. 368, 950 P.2d 811. We address each factor in turn.

10 A.      Length of Delay

11   {9}   Defendant asserts that the twenty-one-month delay was “presumptively

12 prejudicial.” The district court considered a delay lasting longer than fifteen to

13 eighteen months “presumptively prejudic[ial]” in the present case because the case

14 “existed on the continuum from intermediate to complex[.]” The parties do not attack

15 the district court’s finding with regard to the issue of complexity. See State v.

16 Ortiz-Burciaga, 1999-NMCA-146, ¶ 31, 128 N.M. 382, 993 P.2d 96 (accepting lower

17 court’s unchallenged complexity characterization); see also State v. Manzanares,

18 1996-NMSC-028, ¶ 9, 121 N.M. 798, 918 P.2d 714 (“The question of the complexity

19 of a case is best answered by a [district] court familiar with the factual circumstances,

                                               5
 1 the contested issues and available evidence, the local judicial machinery, and

 2 reasonable expectations for the discharge of law enforcement and prosecutorial

 3 responsibilities.”). Thus, we agree with Defendant that the delay was presumptively

 4 prejudicial. However, our inquiry does not end merely because the delay in this case

 5 was presumptively prejudicial. See State v. Garza, 2009-NMSC-038, ¶ 21, 146 N.M.

 6 499, 212 P.3d 387. (“[A] ‘presumptively prejudicial’ length of delay is simply a

 7 triggering mechanism, requiring further inquiry.”). “If a court determines that the

 8 length of delay is ‘presumptively prejudicial,’ then it should consider the length of

 9 delay as one of four factors in the analysis, none of which alone are sufficient to find

10 a violation of the right.” Id. ¶ 23.

11   {10}   In this case, the delay of twenty-one months is sufficient to trigger further

12 inquiry into the four factors. Considering the length of delay as one of the factors, the

13 greater the delay the more heavily it will potentially weigh against the State. Id. ¶ 24.

14 In evaluating the length-of-delay factor, we examine “the extent to which the delay

15 stretches beyond the bare minimum needed to trigger judicial examination of the

16 claim.” State v. Coffin, 1999-NMSC-038, ¶ 59, 128 N.M. 192, 991 P.2d 477 (internal

17 quotation marks and citation omitted). The twenty-one-month period here stretched

18 six months beyond our Supreme Court’s guideline on intermediate cases and three

19 months beyond our Supreme Court’s guideline on complex cases. Garza, 2009-

                                               6
 1 NMSC-038, ¶¶ 47, 48 (holding that twelve months is presumptively prejudicial for

 2 simple cases, fifteen months is presumptively prejudicial for intermediate cases, and

 3 eighteen months is presumptively prejudicial for complex cases.) As such, it weighs

 4 against the State. See State v. Plouse, 2003-NMCA-048, ¶ 43, 133 N.M. 495, 64 P.3d

 5 522 (holding under the old guidelines that a total delay of twenty-one months in a

 6 complex case, six months beyond the bare minimum, weighed in the defendant’s

 7 favor). However, the delay in this case exceeded the bare minimum by six months at

 8 most. We cannot conclude that the extended period of six months was extraordinary,

 9 protracted, or otherwise a delay that requires us to weigh the length of delay factor

10 against the State more than slightly. See State v. Valencia, 2010-NMCA-005, ¶ 17,

11 147 N.M. 432, 224 P.3d 659 (referring in the context of the reasons for delay that “[a]

12 more neutral reason such as negligence and administrative delay, including

13 overcrowded dockets, is weighed ‘less heavily,’ and the weight to be assigned

14 depends on the length of delay, such as whether it is extraordinary or protracted”).

15 Because the delay in this case was not extraordinary, we weigh this factor slightly in

16 Defendant’s favor.

17 B.       Reason for the Delay

18   {11}   We next examine the reasons for delay, “allocating the reasons for the delay to

19 each side and determining the weight attributable to each reason.” Tortolito,

                                               7
 1 1997-NMCA-128, ¶ 8. We have classified three types of delay that either heighten

 2 or temper the prejudice to the defendant caused by the length of the delay. State v.

 3 Wilson, 2010-NMCA-018, ¶¶ 30-31, 147 N.M. 706, 228 P.3d. 490. The types are:

 4 “(1) deliberate or intentional delay, (2) negligent or administrative delay, and (3) delay

 5 for which there is a valid reason.” Id. ¶ 31. To classify the delay in a particular case,

 6 we assess the justifications provided to excuse the delay. See Garza, 2009-NMSC-

 7 038, ¶¶ 25-30, (indicating that under the reasons for delay factor the court analyzes

 8 “the reason the government assigns to justify the delay” and concentrating on

 9 assessing those justifications) (internal quotation marks and citation omitted).

10   {12}   The district court determined that “the delay argument, as a practical matter,

11 focuses mostly, if not completely, on the time period from the arrest[,] June 4, 2007[,]

12 through roughly June 4, 2008.” During this time, a large portion of the delay was due

13 to difficulty in obtaining discovery and scheduling witness interviews. The State

14 concedes on appeal that the delay was negligent, and we weigh it against the State.

15 See Tortolito, 1997-NMCA-128, ¶ 9 (weighing a neutral reason for delay less heavily

16 than a deliberate reason, but reasoning that “the ultimate responsibility for such

17 circumstances must rest with the government rather than with the defendant.” (internal

18 quotation marks and citation omitted)). The only explanation for the delay identifiable

19 in the record, however, is the State’s statement that a personnel issue at the

                                               8
 1 Albuquerque Police Department was preventing the Department from providing the

 2 discovery to the State. Although the State’s explanation for the delay is not

 3 well-explained, or particularized in the record, defense counsel has consistently stated

 4 that “the reasons for delay appear to be mostly neutral[,]” and that the defense is “not

 5 blaming the State [for the delay] in this case,” which was accepted by the parties to

 6 have arisen due to delays attributable to the Albuquerque Police Department. The

 7 record thus reflects that the defense was satisfied with the State’s explanation for the

 8 delay. We therefore conclude that the delay was, in large part, outside the State’s

 9 control yet nonetheless weigh the delay against the State. See Wilson, 2010-NMCA-

10 018, ¶ 44 (“The slightness of weight attributed for these eleven months is appropriate

11 because there exists nothing to indicate particularized fault on the State’s part[.]”).

12   {13}   Although the overall delay lasted twenty-one months, the period of delay that

13 we can characterize as negligent lasted approximately twelve months. Beginning in

14 June 2008, the record reflects that Defendant’s case moved “toward trial with

15 customary promptness.” Id. ¶ 34 (internal quotation marks and citation omitted); see

16 id. (weighing periods during which the case proceeds at a reasonable pace “neutrally

17 between the parties” (internal quotation marks and citation omitted)). At that time, the

18 delay in obtaining discovery and scheduling interviews was resolved, and a second

19 prosecutor took over Defendant’s case. The replacement prosecutor subsequently

                                              9
 1 “ramped up the speed with which it was pursuing the case[,]” and any remaining delay

 2 was attributable to the State’s scientific testing of the evidence, which was requested

 3 on June 19, 2008. There is nothing in the record to suggest that the State deliberately

 4 slowed the processing of the DNA and fingerprint evidence or was negligent in the

 5 conduct of its DNA investigation. Rather, it appears that the State attempted to

 6 facilitate a speedy processing of the DNA and other evidence requiring scientific

 7 analysis, and that Defendant chose to wait until the scientific testing was complete to

 8 conduct additional witness interviews. As such, we do not weigh this period of delay

 9 against either party. See Moreno, 2010-NMCA-044, ¶ 13 (refusing to hold delay

10 against either party during the time when “the case proceeded with customary

11 promptness”).

12   {14}   Based on the record, we agree with the district court’s evaluation of the delay.

13 Out of the overall twenty-one month delay, we weigh the approximately twelve-month

14 period of negligent delay against the State. “Although negligence is obviously to be

15 weighed more lightly than a deliberate intent to harm the accused’s defense, it still

16 falls on the wrong side of the divide between acceptable and unacceptable reasons for

17 delaying a criminal prosecution once it has begun.” Garza, 2009-NMSC-038, ¶ 26

18 (internal quotation marks and citation omitted). Negligent delay is assigned a weight

19 based on its protractedness. Id. ¶ 30 (“Because the delay was negligent, the extent to

                                               10
 1 which it weighs against the State depends on the length of the delay.”). As described

 2 above, the delay in this case extended only slightly beyond the threshold to trigger the

 3 speedy trial inquiry. Accordingly, we conclude that the delay was negligent but not

 4 protracted. The reason for the delay factor thus weighs only slightly in Defendant’s

 5 favor.

 6 C.       Assertion of Defendant’s Right

 7   {15}   “The third factor in the . . . analysis requires us to assign weight to Defendant’s

 8 assertion of his right to a speedy trial.”          Tortolito, 1997-NMCA-128, ¶ 15.

 9 “Generally, we assess the timing of the defendant’s assertion and the manner in which

10 the right was asserted. Thus, we accord weight to the ‘frequency and force’ of the

11 defendant’s objections to the delay.” Garza, 2009-NMSC-038, ¶ 32. (citations

12 omitted). “We also analyze the defendant’s actions with regard to the delay.” Id.

13 “[T]he timeliness and vigor with which the right is asserted may be considered as an

14 indication of whether a defendant was denied needed access to speedy trial over his

15 objection.” Id.

16   {16}   Less than one week before trial, Defendant filed a motion to dismiss claiming

17 a violation of his right to speedy trial. Prior to Defendant’s motion to dismiss,

18 Defendant asserted the right to speedy trial in defense counsel’s entry of appearance

19 and in a motion to compel disclosure of witnesses. The district court afforded both

                                                11
 1 of those assertions “relatively little weight” because it found that they were

 2 “essentially pro forma.” Cf. State v. Marquez, 2001-NMCA-062, ¶ 21, 130 N.M. 651,

 3 29 P.3d 1052 (“While [the d]efendant’s demand was made early in the proceedings,

 4 the demand was perfunctory in nature and we assign it little weight.”). Defendant

 5 does not challenge this finding on appeal, and states only that “Defendant certainly

 6 sought to enforce his right to a speedy trial by filing a motion to dismiss and arguing

 7 the issue before the [d]istrict [c]ourt.” As such, the district court’s finding is

 8 conclusive on appeal. Rule 12-213 (A)(4) NMRA (stating that an appellant’s brief

 9 “shall set forth a specific attack on any finding, or such finding shall be deemed

10 conclusive”); State v. Urioste, 2002-NMSC-023, ¶ 2, 132 N.M. 592, 52 P.3d 964

11 (indicating that the trial court’s findings are conclusive when not attacked on appeal).

12   {17}   Defendant’s first substantive assertion of the right to speedy trial was in his

13 motion to dismiss, filed on March 24, 2009. Defendant’s late assertion of his right to

14 a speedy trial does not weigh significantly in his favor. State v. Maddox, 2008-

15 NMSC-062, ¶¶ 29-31, 145 N.M. 242, 195 P.3d 1254 (stating that the defendant’s

16 attempt to assert the right by a motion to dismiss filed five days before trial was “not

17 timely” and weighed slightly in his favor) abrogated on other grounds by Garza,

18 2009-NMSC-038; Coffin, 1999-NMSC-038, ¶ 67 (stating that a second request for a

19 speedy trial, filed two weeks before trial, was not sufficient to weigh the factor in the

                                              12
 1 defendant’s favor); Tortolito, 1997-NMCA-128, ¶ 17 (declining to weigh this factor

 2 significantly in the defendant’s favor where the defendant did not specifically invoke

 3 a ruling on his speedy trial right until he moved to dismiss the case almost one year

 4 after he was arrested, and where the defendant indicated some willingness to wait for

 5 the defense expert’s analysis of the DNA evidence in the hope that it would exculpate

 6 him).

 7 D.       Prejudice to the Defendant

 8   {18}   We consider three interests relevant to the prejudice-factor analysis: (1) to

 9 prevent oppressive pretrial incarceration, (2) to minimize the accused’s anxiety and

10 concern, and (3) to limit the possibility of an impairment to the defense. Garza, 2009-

11 NMSC-038, ¶ 35. Defendant has the burden to demonstrate and substantiate

12 prejudice. Id. We weigh the first two interests in the defendant’s favor only where

13 the incarceration or the anxiety suffered is undue. Id. The district court weighed the

14 prejudice factor slightly in favor of Defendant and against the State. We agree.

15   {19}   Defendant argues that he was prejudiced “due to the length of the delay, its

16 detrimental effect on the preparation of his defense due to potential memory lapses,

17 the anxiety and concern he was subjected to . . . and the fact that he was subjected to

18 oppressive pre-trial incarceration.” We agree with Defendant that some degree of

19 oppression and anxiety is inherent for every defendant who is jailed while awaiting

                                              13
 1 trial. Id. But Defendant has made no particularized showing to substantiate prejudice

 2 from undue pretrial incarceration or undue anxiety. In the absence of a particularized

 3 showing of prejudice, we will not speculate as to the prejudice to Defendant. Id.

 4 (stating that “without a particularized showing of prejudice, we will not speculate as

 5 to the impact of pretrial incarceration on a defendant or the degree of anxiety a

 6 defendant suffers”); Wilson, 2010-NMCA-018, ¶ 48 (“[The d]efendant has made no

 7 particularized showing to substantiate prejudice from undue pretrial incarceration or

 8 undue anxiety. We will not speculate as to the impact of his pretrial incarceration or

 9 the degree of anxiety he suffered.”).

10   {20}   We recognize that we have previously concluded that twenty-two months of

11 pretrial incarceration is unacceptably long. See Moreno, 2010-NMCA-044, ¶ 37

12 (concluding that the length of incarceration is the main prejudice factor to be

13 evaluated and finding that the “[d]efendant did suffer some prejudice” from his almost

14 two year pre-trial incarceration). But Defendant “has not demonstrated [in this case]

15 that any anxiety and concern he suffered was at all different from the anxiety and

16 concern inherent in being incarcerated[.]” Wilson, 2010-NMCA-018, ¶ 48. Nor has

17 Defendant offered any reason why or how his defense was impaired, except to argue

18 that he experienced anxiety and concern. Id. ¶ 49; Muse v. Muse, 2009-NMCA- 003,

19 ¶ 51, 145 N.M. 451, 200 P.3d 104 (“It is not our practice to rely on assertions of

                                             14
 1 counsel unaccompanied by support in the record. The mere assertions and arguments

 2 of counsel are not evidence.”).        Despite the prejudice inherent in pre-trial

 3 incarceration, we are not persuaded that Defendant was prejudiced to any additional

 4 degree that rises to the level of significant for purposes of our analysis.

 5 E.       Balancing the Factors

 6   {21}   We remain cognizant of the importance of any Defendant’s right for a speedy

 7 trial, and caution the State against the nature of the delay that preceded the customary

 8 progression of this case to trial. Yet in this case, we conclude that none of the four

 9 factors weighs heavily in either side’s favor under our analysis. We note Defendant’s

10 failure to make an affirmative showing of particularized prejudice, the neutral

11 progression of the case from June 2008 until trial, and Defendant’s own delay in

12 presenting his claim in a substantively timely manner. See, e.g., Garza, 2009-NMSC-

13 038, ¶ 40. Viewing the circumstances in their entirety and weighing factors slightly

14 in Defendant’s favor, we conclude that Defendant’s constitutional right to a speedy

15 trial was not violated.

16 II.      JURY INSTRUCTIONS

17   {22}   It was undisputed at trial that Defendant killed Garcia. However, Defendant

18 argued that his conduct was justified as self-defense because Garcia had previously

19 assaulted Defendant and Defendant believed Garcia was threatening his life with a

                                              15
 1 gun. [BIC 1] On appeal, Defendant argues that the district court erred in providing

 2 the jury UJI 14-5191 because “the facts presented at trial do not support a theory that

 3 Defendant was the initial aggressor.” The propriety of jury instructions denied or

 4 given involves mixed questions of law and fact that we review de novo. State v.

 5 Lucero, 2010-NMSC-011, ¶ 11, 147 N.M. 747, 228 P.3d 1167.

 6   {23}   Although framed as an attack on the jury instructions, Defendant’s challenge

 7 is essentially to the sufficiency of the evidence to support the challenged instruction.

 8 Defendant contends that no reasonable jury could have determined that he was the

 9 initial aggressor and as a result his convictions are not based on sufficient evidence.

10 In reviewing a challenge to the sufficiency of the evidence to support a criminal

11 conviction, we review the record to determine whether substantial evidence exists,

12 either direct or circumstantial, such that a rational jury could have found proof beyond

13 a reasonable doubt with respect to every element of the charged offense. State v.

14 Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct. App. 1993) abrogated on other

15 grounds by State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891. In

16 applying this standard we view the evidence in a light most favorable to the State and

17 resolve all conflicts and indulge all permissible inferences in favor of upholding the

18 verdict of the jury. Id. “When considering . . . requested instructions, we view the

19 evidence in the light most favorable to the giving of the requested instruction[s].”

                                              16
 1 State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 (alteration in

 2 original) (internal quotation marks and citation omitted).

 3   {24}   The district court found, after looking at the various potential scenarios, “that

 4 a case can be argued that [Defendant] was the aggressor.” We have reviewed the

 5 record and we agree that the State presented evidence sufficient to bring into question

 6 whether or not Defendant was the initial aggressor. Here, the jury was presented with

 7 evidence that at the time of the encounter, Defendant had loudly approached and

 8 broken the windows of the home in which Garcia was a guest and from which Chavez

 9 then fled and hid. The conflict between Defendant and Garcia was thus occasioned

10 by Defendant’s second trip to the house that day—both of which resulted in

11 Defendant’s hostile and destructive behavior. See State v. Hill, 2001-NMCA-094, ¶

12 10, 131 N.M. 195, 34 P.3d 139 (“Unless reasonable minds could not differ, the

13 question of whether [the d]efendant was the instigator or the victim should be left to

14 the jury.”). Defendant’s assertions that he could not have been the aggressor are based

15 upon his particular view of the collective events, the credibility of the State’s

16 witnesses, and of the weight of the evidence against him.               State v. Foxen,

17 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 1071. If members of the jury believed

18 Defendant’s version of events, it would be reasonable for them to conclude that he

19 acted in self-defense. Hill, 2001-NMCA-094, ¶ 10. But, “the jury was not obligated

                                               17
 1 to believe Defendant’s testimony, to disbelieve or discount conflicting testimony, or

 2 to adopt Defendant’s view.” Foxen, 2001-NMCA-061, ¶ 17; State v. Vernon, 116

 3 N.M. 737, 738, 867 P.2d 407, 408 (1993) (noting that the fact finder may reject a

 4 defendant’s version of the incident in question); State v. Johnson, 99 N.M. 682, 685,

 5 662 P.2d 1349, 1352 (1983) (observing that conflicts in the evidence, including

 6 conflicts in testimony among witnesses, are to be resolved by the trier of fact). We

 7 have reviewed the record and find there was sufficient evidence to support the giving

 8 of UJI 14-5191.

 9 CONCLUSION

10   {25}   For the foregoing reasons, we affirm the judgment of the district court.

11   {26}   IT IS SO ORDERED.


12                                          ___________________________________
13                                          J. MILES HANISEE, Judge

14 WE CONCUR:



15 ___________________________________
16 JAMES J. WECHSLER, Judge



17 ___________________________________
18 TIMOTHY L. GARCIA, Judge

                                              18
