     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 34,613

 5 CHAVEZ CHARLES MARTIN, JR.,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Karen L. Townsend, District Judge

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

13 for Appellee

14 Gary C. Mitchell, P.C.
15 Gary C. Mitchell
16 Ruidoso, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 WECHSLER, Judge.
 1   {1}   Defendant Chavez Charles Martin, Jr. appeals from his conviction for second

 2 degree murder, contrary to NMSA 1978, Section 30-2-1(B) (1994). Defendant’s sole

 3 argument on appeal is that the district court erred in refusing to instruct the jury on his

 4 claim of self-defense. Because reasonable minds could differ as to whether Defendant

 5 acted in self-defense under the circumstances, we reverse Defendant’s conviction and

 6 remand for a new trial.

 7 BACKGROUND

 8   {2}   April 15, 2013 began uneventfully for all involved in this case. Anthony

 9 Norberto (Victim), Darlena Upshaw, and Defendant all spent the night at Victim’s

10 house and awoke there in the morning. Defendant and Upshaw left the house, driving

11 first to a convenience store and then to the home of Defendant’s niece. They then

12 returned to Victim’s house, where they remained for the next several hours. Defendant

13 drank alcohol throughout the day. Between 3:00 p.m. and 4:00 p.m., Defendant,

14 Victim, and Upshaw left Victim’s house and picked up several other individuals,

15 including Lucita Mason-Archuleta. Upshaw drove the vehicle, a four-door Dodge

16 pickup truck that belonged to Defendant. She did not consume any alcohol so that she

17 could blow into the truck’s interlock device. A hunting knife owned by Defendant was

18 in the seat-back pouch behind the front passenger seat.



                                                2
 1   {3}   At some point during the late afternoon, the group returned to Victim’s house.

 2 While there, they talked and watched television. Victim started drinking around dusk

 3 and consumed approximately “half a fifth” of liquor. He also smoked both

 4 methamphetamine and marijuana with Upshaw during the day.

 5   {4}   The group again got into the truck and headed toward a nearby apartment

 6 complex. Upshaw was driving, and Victim was sitting in the front passenger seat.

 7 Defendant was sitting behind Victim in the rear passenger seat. Victim began to

 8 discuss childhood memories that involved his father physically abusing his mother.

 9 Defendant commented on these memories in a manner that angered Victim. Victim

10 exited the truck and demanded that Defendant get out and fight. Defendant refused,

11 and Victim reentered the truck.

12   {5}   After reentering the truck, Victim again became angry at comments made by

13 Defendant and repeatedly hit Defendant while threatening to kill him. Victim then

14 reached for the knife in the seat-back pouch behind the front passenger seat. A

15 struggle for the knife ensued. Defendant gained control of the knife and stabbed

16 Victim multiple times. Victim had one deep incision over the left side of his neck that

17 extended to his right lower back and two stab wounds: one to his left chest and one

18 to his right chest that penetrated his lung and liver. After stabbing Victim, Defendant




                                              3
 1 exited the truck, discarded the knife, and fled the scene on foot. Victim died from his

 2 wounds.

 3   {6}   Officer Roque Velarde of the Farmington Police Department (FPD) located

 4 Defendant at a local motel. He transported Defendant to FPD headquarters, where

 5 Defendant participated in a videotaped interview with FPD Detective Daven Badoni.

 6 Defendant described the events of the evening and repeatedly expressed his fear that

 7 Victim was going to hurt him. He described Victim’s reputation for violence and

 8 tendency to carry a specific weapon. Defendant could not remember stabbing Victim.

 9 Defendant also stated that he himself was physically disabled as a result of a car

10 accident.

11   {7}   At trial, the parties offered conflicting evidence as to the events of the evening.

12 Defendant did not testify, but the jury viewed his videotaped interview with Detective

13 Badoni. The State offered expert witness testimony by Dr. Ian Paul, a forensic

14 pathologist, who agreed with Defendant that the incision extending from Victim’s

15 neck was consistent with Defendant’s theory that Victim was “coming at” Defendant

16 when the wound was inflicted. Defendant offered expert witness testimony by Teresa

17 Vigil, a forensic scientist, who testified that her fingerprint analysis of the knife

18 revealed a palm print on the blade that did not belong to Defendant. Dr. Paul




                                                4
 1 additionally testified that Victim had a blood-alcohol content of 0.139 and both

 2 methamphetamine and marijuana in his system.

 3   {8}    Upshaw testified that Victim’s temperament invoked fear in others and that

 4 Victim had a criminal history for violent acts. Both Upshaw and Victim’s brother

 5 testified that Victim would not let go of perceived slights. To the contrary,

 6 Defendant’s niece testified that Defendant was a kind and peaceful person.

 7   {9}    The district court refused Defendant’s requested self-defense instruction. The

 8 jury deliberated for approximately two hours before finding Defendant guilty of

 9 second degree murder. This appeal resulted.

10 STANDARD OF REVIEW

11   {10}   Whether a district court erred in denying a requested jury instruction is a mixed

12 question of law and fact that appellate courts review de novo. State v. Swick, 2012-

13 NMSC-018, ¶ 60, 279 P.3d 747. “[T]o warrant jury instructions on self-defense,

14 evidence must be sufficient to allow reasonable minds to differ regarding all elements

15 of the defense.” Id. Those elements are whether “(1) the defendant was put in fear by

16 an apparent danger of immediate death or great bodily harm, (2) the killing resulted

17 from that fear, and (3) the defendant acted reasonably when he or she killed.” State

18 v. Rudolfo, 2008-NMSC-036, ¶ 17, 144 N.M. 305, 187 P.3d 170 (internal quotation

19 marks and citation omitted). “If any reasonable minds could differ, the instruction


                                                5
 1 should be given.” Id. ¶ 27. “When considering a defendant’s requested instructions,

 2 [the appellate courts] view the evidence in the light most favorable to the giving of the

 3 requested instructions.” Swick, 2012-NMSC-018, ¶ 60 (alteration, internal quotation

 4 marks, and citation omitted).

 5 DEFENDANT’S ENTITLEMENT TO A SELF-DEFENSE INSTRUCTION

 6   {11}   This case presents a close call as to whether Defendant was entitled to a self-

 7 defense instruction. Courts evaluate the elements of self-defense both subjectively and

 8 objectively. See Rudolfo, 2008-NMSC-036, ¶ 17 (“The first two requirements, the

 9 appearance of immediate danger and actual fear, are subjective in that they focus on

10 the perception of the defendant at the time of the incident. By contrast, the third

11 requirement is objective in that it focuses on the hypothetical behavior of a reasonable

12 person acting under the same circumstances as the defendant.” (internal quotation

13 marks and citation omitted)). In this case, the district court did not rule on the

14 subjective elements. It did, however, conclude that Defendant presented insufficient

15 evidence that a reasonable person would respond with deadly force under the same

16 circumstances. We disagree.

17   {12}   Numerous appellate cases hold that defendants are not entitled to self-defense

18 instructions if their use of deadly force is objectively unreasonable. See, e.g., State v.

19 Guerra, 2012-NMSC-014, ¶ 17, 278 P.3d 1031 (holding that the defendant was not


                                               6
 1 entitled to a self-defense instruction when she repeatedly stabbed an unarmed woman

 2 who was lying on the ground); Rudolfo, 2008-NMSC-036, ¶¶ 6, 18 (holding that the

 3 defendant was not entitled to a self-defense instruction when he shot at the victim

 4 while the victim was driving away); State v. Lopez, 2000-NMSC-003, ¶¶ 3, 26, 128

 5 N.M. 410, 993 P.2d 727 (holding that the defendant was not entitled to a self-defense

 6 instruction when he inflicted more than fifty stab wounds on the victim and crushed

 7 his skull with a rock). In Guerra, our Supreme Court noted that the defendant was not

 8 entitled to a self-defense instruction when “the response . . . was indisputably

 9 unreasonable.” 2012-NMSC-014, ¶ 18.

10   {13}   We conclude that Defendant’s conduct was not indisputably unreasonable under

11 the circumstances. Inflicting three wounds in close quarters is not analogous to the

12 conduct of the defendants in the cases described above. Instead, this case is more

13 analogous to State v. Branchal, 1984-NMCA-063, 101 N.M. 498, 684 P.2d 1163. In

14 Branchal, the female defendant and the male victim were in a “stormy” six-year

15 relationship. Id. ¶ 1. After a day of heavy drinking, the victim returned home in a

16 belligerent state. Id. ¶ 13. While attempting to fix a light, he told the defendant to

17 wake up one of the children to fetch a screwdriver. Id. ¶¶ 13-14. The defendant told

18 him to leave the children alone and placed a handgun in the pocket of her housecoat.

19 Id. ¶¶ 14-15. The victim invited a friend to the house, and the two drank more alcohol


                                              7
 1 and smoked marijuana. Id. ¶ 16. The defendant went to bed with her sister and a baby.

 2 Id. The victim repeatedly came into the bedroom and disturbed the women. Id. ¶ 17.

 3 He told the defendant that he had a list of people to kill that included the defendant’s

 4 child and other family members. Id. ¶ 18. The victim went outside and the defendant

 5 went to the kitchen and locked the door. Id. ¶ 20. She had the gun in her pocket. Id.

 6 The victim banged on the door and threatened to break it down, so the defendant

 7 opened the door. Id. ¶ 21. She testified that the victim

 8        just showed anger and more anger. That’s when I figured that if I didn’t
 9        shoot at him he was either gonna kill me, take the gun away from me or
10        kill one of the kids, or kill me, or something. I just got so scared that I
11        didn’t know what to think. I just had to shoot.

12 Id. The defendant shot the victim in the chest. Id. ¶ 1. At trial, the defendant attempted

13 to introduce evidence of previous domestic abuse she had suffered at the hands of the

14 victim. Id. ¶ 22. The district court refused to admit the evidence but allowed the

15 defendant to make an offer of proof. Id. This Court concluded that “the admitted

16 evidence was sufficient to raise an issue of fact with respect to the elements of a self-

17 defense claim.” Id. ¶ 24. The evidence supporting a self-defense claim was: (1) the

18 victim started the fight; (2) the victim came after the defendant in a threatening way;

19 and (3) the defendant feared for her life. Id. We note, for purposes of analogy, that the

20 defendant’s fear that the gun could be taken away and used against her was central to

21 her self-defense claim.

                                               8
 1   {14}   Absent the domestic relationship, the present case is not dissimilar. Defendant

 2 and Victim were closely acquainted. Defendant was aware that Victim had a

 3 reputation for violence and a tendency to carry a weapon on his person. Defendant,

 4 to the contrary, had a reputation for being a peaceful person. He was also physically

 5 disabled. Both men were drunk, and Victim was high on methamphetamine and

 6 marijuana. They were closely confined as passengers in a moving truck. Victim

 7 became angry and challenged Defendant to a fight. Defendant refused to fight. Victim

 8 then punched Defendant repeatedly in the head from the front passenger seat of the

 9 truck and grabbed for the knife that was in the seat-back pouch behind the front

10 passenger seat. After struggling with Victim over the knife, Defendant gained control

11 of the knife and stabbed Victim three times.

12   {15}   Although the evidence of Defendant’s subjective fear and the objective

13 reasonableness of his conduct is less clear than in Branchal, we “view the evidence

14 in the light most favorable to the giving of the requested instructions.” Swick, 2012-

15 NMSC-018, ¶ 60 (alteration, internal quotation marks, and citation omitted). The

16 evidence showed that the men struggled over the knife. Regardless of who possessed

17 the knife immediately after the struggle, a reasonable juror could conclude that

18 Defendant’s possession of the knife did not mitigate the threat of great bodily harm

19 presented to Defendant by Victim while Defendant remained within the confines of


                                               9
 1 the truck. See UJI 14-131 NMRA (defining “great bodily harm” as “an injury to a

 2 person which creates a high probability of death” (alteration omitted)). Because a

 3 reasonable juror could so conclude, Defendant was entitled to a self-defense

 4 instruction. See Rudolfo, 2008-NMSC-036, ¶ 27 (“If any reasonable minds could

 5 differ, the instruction should be given.”).

 6 CONCLUSION

 7   {16}   The district court erred in refusing Defendant’s requested self-defense

 8 instruction. We therefore reverse and remand for a new trial.

 9   {17}   IT IS SO ORDERED.


10                                                ________________________________
11                                                JAMES J. WECHSLER, Judge


12 WE CONCUR:


13 ________________________________
14 JONATHAN B. SUTIN, Judge


15 ________________________________
16 MICHAEL E. VIGIL, Judge




                                             10
