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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            No. 34,234

 5 NORA HUERTA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Judith K. Nakamura, District Judge

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

13 for Appellant

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

17 for Appellee

18                                 MEMORANDUM OPINION

19 GARCIA, Judge.
 1   {1}   Defendant Nora Huerta (Defendant) appeals following her jury trial convictions

 2 for aggravated battery against a household member with a deadly weapon and criminal

 3 damage to property. See NMSA 1978, §30-3-16 (2008); NMSA 1978, 30-3-18 (2009).

 4 Defendant raises two issues on appeal: (1) whether the district court erred in denying

 5 her requested self-defense instruction as an affirmative defense to criminal damage to

 6 property and (2) whether the district court erred when it did not sua sponte instruct the

 7 jury on duress as a defense to criminal damage to property. We affirm.

 8 I. BACKGROUND

 9   {2}   Defendant was charged with aggravated battery against a household member,

10 aggravated assault against a household member, and criminal damage to property

11 based on an incident involving her ex-boyfriend, Vidal Armenta (Armenta). The

12 incident began when Defendant confronted Armenta at a motel, where he was staying

13 with his girlfriend, Vivian Garcia (Garcia). The parties dispute the subject of the

14 confrontation but agree Defendant drove up and parked directly behind Armenta’s car

15 while Armenta was in the driver’s seat and Garcia was in the passenger seat.

16 Defendant testified that after she first arrived, Armenta threw rocks at her, hitting her

17 head and vehicle. A verbal altercation ensued, at the start of which Defendant was

18 seated inside her vehicle and Armenta was standing outside the vehicle and holding


                                               2
 1 the door shut to prevent Defendant from exiting. Defendant was eventually able to exit

 2 the vehicle and picked up a wooden ax handle she testified fell from her vehicle.

 3 Armenta testified he feared Defendant would strike him with the handle, and as he

 4 grabbed Defendant’s arm holding the handle, he looked down and noticed a knife

 5 being withdrawn from his thigh. Defendant denied stabbing Armenta and theorized

 6 Armenta stabbed himself. Armenta went into his motel room and stayed inside for a

 7 brief time before coming back out. During the time Armenta was in the motel room,

 8 Defendant used a knife to slash Armenta’s tire. The parties disagree whether the knife

 9 Defendant used to slash the tire was the one that stabbed Defendant. Defendant then

10 got back into her vehicle and left. Garcia was able to see and hear much of the incident

11 from her position in the passenger seat. Garcia testified Armenta appeared to be

12 defending himself against Defendant, and Garcia heard the noise of air leaving a tire

13 while Defendant was behind the car. Garcia became aware of the fact that Armenta

14 had been stabbed, but was unsure whether she saw him bleeding when she went back

15 into the motel room or only saw the bleeding after Armenta told her what happened

16 when she returned to the motel room. Defendant testified at trial regarding past

17 violence between herself and Armenta, that she believed Armenta was high on

18 methamphetamine at the time of the incident, and that Armenta knew Defendant was


                                              3
 1 staying at her aunt’s house at the time. Defendant went on to testify, based on past

 2 violence against her by Armenta, that she was afraid of Armenta and slashed his tire

 3 to prevent him from pursuing her.

 4   {3}   Defendant sought self-defense instructions for each of the three charges, but the

 5 district court denied a self-defense instruction for the criminal damage to property

 6 charge on the ground that it was not a valid defense to criminal damage to property.

 7 The jury convicted Defendant of aggravated battery against a household member with

 8 a deadly weapon and criminal damage to property. This appeal follows.

 9 II. DISCUSSION

10   {4}   We begin with the standard of review. “The propriety of jury instructions given

11 or denied is a mixed question of law and fact. Mixed questions of law and fact are

12 reviewed de novo.” State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d

13 996. “The standard of review we apply to jury instructions depends on whether the

14 issue has been preserved. If the error has been preserved we review the instructions

15 for reversible error. If not, we review for fundamental error.” State v. Benally, 2001-

16 NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (citation omitted).

17 A.      Self-Defense

18   {5}   As we noted above, the district court denied Defendant’s proposed instruction


                                               4
 1 on the ground that self-defense is not an available defense to criminal damage to

 2 property. In reaching this conclusion, the district court reviewed the annotations to UJI

 3 14-5181 NMRA ([s]elf defense; nondeadly force by defendant) and UJI 14-1501

 4 NMRA ([c]riminal damage to property) and relied on the lack of any cases providing

 5 for self-defense as a valid defense to criminal damage to property.

 6   {6}   Whether our law permits a defendant to raise self-defense as an affirmative

 7 defense to criminal damage to property is a novel issue in New Mexico. Other

 8 jurisdictions have addressed whether self-defense can provide an affirmative defense

 9 to crimes that are not against a person, however, as discussed in more detail below,

10 we need not decide the issue based on the present facts. See Boget v. State, 74 S.W.3d

11 23, 31 (Tex. Crim. App. 2002) (holding that self-defense is available in a prosecution

12 for criminal mischief where the mischief arises out of the accused’s use of force

13 against another); State v. Arth, 87 P.3d 1206, 1209 (Wash. Ct. App. 2004) (holding

14 that self-defense may be available to a person charged with malicious mischief when

15 the damage arises out of the accused’s use of force against another); D.M.L. v. State,

16 976 So.2d 670, 673 (Fla. Dist. Ct. App. 2008) (holding the district court erred in

17 excluding evidence of self-defense, because Florida courts had previously held self-

18 defense is available to defend against a charge of criminal mischief); People v.


                                               5
 1 McLennon, 957 N.E.2d 1241, 1246 (Ill. App. Ct. 2011) (holding there is no self-

 2 defense to criminal damage to property, because criminal damage to property is not

 3 based on behavior involving directing force against another).

 4   {7}   Defendant asserts that nothing in the jury instruction or caselaw specifies a

 5 defendant’s defensive action must be directed at a person. Defendant also argues

 6 disallowing self-defense as an affirmative defense to criminal damage to property

 7 creates an incentive for violence, because a person in Defendant’s position would have

 8 to physically confront Armenta personally to claim self-defense. Nonetheless, beyond

 9 her bare assertions, Defendant does not argue that our caselaw affirmatively

10 recognizes self-defense as a defense to criminal damage to property or that our law

11 should be expanded to afford such a defense. She also cites no caselaw in support of

12 such an expansion. Instead, Defendant’s argument focuses largely on the evidence

13 that, in her view, supports a self-defense instruction. However, as we discuss in more

14 detail below, the facts in this case were not sufficient to support an instruction on self-

15 defense. Even if we assume without deciding that New Mexico law would allow the

16 defense of self-defense to a charge of criminal damage to property, we would still




                                                6
 1 affirm the district court’s refusal to give the instruction in this case.1

 2   {8}   We note that self-defense to criminal damage to property would have required

 3 the following proof:

 4               1.    There was an appearance of immediate danger of bodily
 5         harm to [D]efendant as a result of [Defendant’s] concern . . . Armenta
 6         would pursue her in his vehicle after she left[;] and

 7               2.    [D]efendant was in fact put in fear of immediate bodily
 8         harm and slashed [Armenta’s] tire . . . because of that fear; and

 9               3.    [D]efendant used an amount of force that [D]efendant
10         believed was reasonable and necessary to prevent the bodily harm; and

11                4.    The apparent danger would have caused a reasonable person
12         in the same circumstances to act as [D]efendant did.

13         ....

14                The burden is on the [S]tate to prove beyond a reasonable doubt
15         that [D]efendant did not act in self[-]defense. If you have a reasonable
16         doubt as to whether [D]efendant acted in self[-]defense, you must find
17         [D]efendant not guilty.


           1
15            It does not appear the district court denied the instruction because it was not
16   supported by the evidence. However, as a general rule, we will uphold the decision
17   of a district court if it is right for any reason. State v. Ruiz, 2007-NMCA-014, ¶ 38,
18   141 N.M. 53, 150 P.3d 1003. While a decision of the district court will be upheld if
19   it is right for any reason, we will not rely on this doctrine if doing so would be unfair
20   to the appellant. State v. Gomez, 2003-NMSC-012, ¶ 7, 133 N.M. 763, 70 P.3d 753.
21   In this case, it is not unfair to apply the right-for-any-reason doctrine, because
21   Defendant had an opportunity to fully develop the facts below, and Defendant’s briefs
22   focus mainly on facts she believes support the giving of a self-defense instruction.

                                                7
 1 See UJI 14-5181 NMRA. The first use note to UJI 14-5181 states the instruction is

 2 “[f]or use in nonhomicide cases when the self[-]defense theory is based upon:

 3 necessary defense of self against any unlawful action; reasonable grounds to believe

 4 a design exists to commit an unlawful act; or reasonable grounds to believe a design

 5 exists to do some bodily harm.” Id. Use Note 1. The use note to the second element

 6 instructs the district court to “[d]escribe [the] unlawful act which would result in some

 7 bodily harm as established by the evidence. Give at least enough detail to put the act

 8 in the context of the evidence.” Id. Use Note 2. The second use note refers to the

 9 unlawful conduct of the victim that led the defendant to act in self-defense. This is

10 evidenced by the third use note, which instructs the district court to describe the

11 defendant’s actions in the second element of the instruction. See id. Use Note 3. Thus,

12 to claim self-defense, Defendant would have to point to sufficient facts demonstrating

13 either (a) Armenta acted unlawfully, or (b) Defendant had reasonable grounds to

14 believe Armenta had designs to commit an unlawful act or do Defendant bodily harm,

15 and also that a reasonable person would have slashed Armenta’s tire to prevent

16 Armenta from committing the unlawful act or effectuating the bodily harm. See UJI

17 14-5181.

18   {9}   Defendant argues she was entitled to the self-defense instruction, because the


                                               8
 1 evidence shows it was necessary for her to slash the tire to prevent Armenta from

 2 pursuing her. While Defendant asserts Armenta threw rocks at her when she first

 3 arrived at the motel, Defendant does not argue that Armenta, in fact, tried to commit

 4 an unlawful act immediately preceding or concurrent with her act of slashing the tire.

 5 Instead, Defendant presented evidence about past violence in her relationship as the

 6 basis for her belief that Armenta had designs to commit some unlawful act or to do

 7 Defendant bodily harm. Defendant’s argument hypothesizes Armenta was going to

 8 pursue her to her aunt’s house, but Defendant does not cite to any evidence of

 9 Armenta’s intention to pursue her either before, at the time, or after she slashed his

10 tire. See State v. Elliott, 1977-NMSC-002, ¶ 10, 89 N.M. 756, 557 P.2d 1105 (“[Our

11 appellate courts] will not speculate about hypothetical evidence that might have been

12 developed at the defendant’s trial.”). Moreover, Defendant does not point to any

13 evidence that she was in immediate danger. See id.(noting that speculation about the

14 evidence is not allowed). Defendant slashed Armenta’s tire only after he had retreated

15 to his motel room and stayed there. Finally, it is not reasonable that a person in these

16 circumstances would slash Armenta’s tire. Defendant was free to leave the scene and

17 there was no indication of threatening or confrontational activity once Armenta

18 returned to the motel room. In fact, Defendant did immediately leave in her vehicle


                                              9
 1 after the tire slashing. Thus, Defendant has not shown that the act of slashing the tire

 2 was connected to a particular or imminent action or threat by Armenta or that

 3 Defendant’s action was reasonably necessary to escape the scene of the confrontation.

 4 See State v. Nozie, 2007-NMCA-131, ¶ 14, 142 N.M. 626, 168 P.3d 756 (affirming

 5 the denial of a self-defense instruction where “no reasonable jury could [find] on the

 6 evidence before it that . . . there was an appearance of immediate danger of bodily

 7 harm, . . . the force used by [the d]efendant was reasonable and necessary, or that a

 8 reasonable person in the same circumstances would have acted as [the d]efendant did”

 9 (internal quotation marks and citation omitted)).

10   {10}   Even if New Mexico recognizes self-defense as a defense to criminal damage

11 to property, which we do not decide today, the evidence in the present case did not

12 support giving the instruction. We therefore conclude the district court did not err

13 when it denied Defendant’s proposed self-defense instruction as to the charge of

14 criminal damage to property.

15 B.       Duress

16   {11}   Defendant next argues the district court erred when it did not sua sponte give

17 a duress jury instruction as a defense to criminal damage to property. Because

18 Defendant did not tender a duress instruction, we review for fundamental error. See


                                              10
 1 Benally, 2001-NMSC-033, ¶ 12 (stating, where an error has not been preserved, we

 2 review for fundamental error); State v. Haskins, 2008-NMCA-086, ¶ 26, 144 N.M.

 3 287, 186 P.3d 916 (“[T]he fundamental error doctrine is applied to review

 4 unpreserved error when the court’s conscience is shocked at a miscarriage of justice,

 5 such as when a defendant is indisputably innocent or when a mistake in the process

 6 makes a conviction fundamentally unfair notwithstanding the apparent guilt of the

 7 accused.” (internal quotation marks and citation omitted)).

 8   {12}   A duress defense to criminal damage to property would have required the

 9 following proof:

10                Evidence has been presented that [D]efendant was forced to [slash
11          Armenta’s tire] under threats. If [D]efendant feared immediate great
12          bodily harm to [herself] or another person if [s]he did not commit the
13          crime and if a reasonable person would have acted in the same way
14          under the circumstances, you must find [D]efendant not guilty.

15                 The burden is on the [S]tate to prove beyond a reasonable doubt
16          that [D]efendant did not act under such reasonable fear.

17 See UJI 14-5130 NMRA. As discussed above, Defendant slashed Armenta’s tire after

18 Armenta had left the scene and was inside the motel room. While Defendant testified

19 to Armenta’s past violence against her and her fear Armenta would pursue her to her

20 aunt’s house, no facts support Defendant’s belief she was under threat of being

21 pursued or that she was at risk of suffering immediate great bodily harm. We

                                              11
 1 acknowledge Defendant’s testimony regarding Armenta’s past violence, but “[f]ear

 2 of immediate harm must be viewed together with whether a reasonable person in the

 3 defendant’s position would have acted the same way under the circumstances. That

 4 latter element implicitly presumes that a reasonable person would not violate the law

 5 if legal alternatives are available.” State v. Castrillo, 1991-NMSC-096, ¶ 15, 112 N.M.

 6 766, 819 P.2d 1324. As we noted above, Defendant had a legal alternative to slashing

 7 Armenta’s tire—getting in her vehicle and driving away, something she immediately

 8 did afterward. Thus, Defendant’s choice to illegally slash Armenta’s tire was not

 9 forced upon her or based upon any existing threat of harm by Armenta.

10   {13}   As with Defendant’s argument for a self-defense instruction, her argument for

11 a duress instructions fails because there was no evidence Defendant was threatened,

12 the threat was of great bodily harm, the harm was imminent, or Defendant acted

13 reasonably in slashing Armenta’s tire. We therefore conclude Defendant was not

14 entitled to a duress instruction based on the evidence presented, and the district court

15 did not commit fundamental error by failing to sua sponte instruct the jury on a

16 defense of duress.

17   {14}   Accordingly, we affirm.

18   {15}   IT IS SO ORDERED.


                                              12
1                               __________________________________
2                               TIMOTHY L. GARCIA, Judge




3 WE CONCUR:


4 _________________________________
5 J. MILES HANISEE, Judge


6 _________________________________
7 STEPHEN G. FRENCH, Judge




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