 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 28,348

10 DARYL DONALD BEGAYE,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Thomas J. Hynes, District Judge

14 Gary K. King, Attorney General
15 Andrea Sassa, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender
19 Susan Roth, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 VANZI, Judge.
 1        Defendant appeals his conviction of accessory to voluntary manslaughter.

 2 Defendant raises two issues on appeal. Defendant asserts that there is insufficient

 3 evidence to support his conviction and that the district court erred in not allowing

 4 Defendant to introduce Jeremiah Nelson’s (Victim) record for violent crimes. For the

 5 reasons that follow, we affirm.

 6 BACKGROUND

 7        Defendant Daryl Donald Begaye was charged with four counts of criminal

 8 misconduct including: accessory in the commission of murder in the second degree,

 9 assault with intent to commit a violent felony, conspiracy to commit assault with the

10 intent to commit a violent felony, and tampering with evidence. Following a jury trial

11 with his co-defendant, Daryl Williams, Defendant was convicted of accessory in the

12 commission of voluntary manslaughter, a lesser included offense of the second degree

13 murder charge.

14        The underlying facts of this matter are not disputed by the parties. Co-

15 defendant and Victim were both involved in selling drugs. On the evening of July 14,

16 2006, Defendant and co-defendant were at a friend’s house when Victim drove up in

17 a Jeep with some passengers. After a verbal exchange, and after Victim threatened

18 Defendant and co-defendant with a sawed-off shotgun, co-defendant stabbed Victim

19 several times with a knife. Victim ultimately died from the wounds inflicted by co-



                                             2
 1 defendant. At trial, Defendant argued that his actions were in self-defense and that he

 2 was trying to protect his co-defendant.



 3 DISCUSSION

 4        Defendant presents two issues on appeal. Defendant contends: (1) that there

 5 was insufficient evidence to support his conviction; and (2) that the district court erred

 6 in excluding evidence of Victim’s criminal record to be offered through the testimony

 7 of Victim’s sister. Defendant argues that Victim’s criminal record would be relevant

 8 to his theory of self-defense and defense of another. We address each in turn.

 9 Sufficiency of the Evidence

10        “In reviewing the sufficiency of the evidence, we must view the evidence in the

11 light most favorable to the guilty verdict, indulging all reasonable inferences and

12 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,

13 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. This review “requires analysis

14 of whether direct or circumstantial substantial evidence exists and supports a verdict

15 of guilt beyond a reasonable doubt with respect to every element essential for

16 conviction. We determine whether a rational fact[]finder could have found that each

17 element of the crime was established beyond a reasonable doubt.” State v. Kent,

18 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations omitted). Substantial

19 evidence is “such relevant evidence as a reasonable mind might accept as adequate to

                                               3
 1 support a conclusion.” State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974

 2 P.2d 661 (internal quotation marks and citation omitted). We do “not weigh the

 3 evidence or substitute [our] judgment for that of the fact finder as long as there is

 4 sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124

 5 N.M. 346, 950 P.2d 789.

 6        Defendant was charged with and convicted of accessory in the commission of

 7 voluntary manslaughter pursuant to NMSA 1978, Section 30-2-3(A) (1994) and

 8 Section 30-1-13. In order for the jury to find Defendant guilty of voluntary

 9 manslaughter, the jury was required to find beyond a reasonable doubt that

10        a.    [D]efendant killed [Victim];

11        b.    [D]efendant knew that his acts created a strong probability of
12              death or great bodily harm to [Victim];

13        c.    This happened in New Mexico on or about the 14th day of July,
14              2006.

15 UJI 14-221 NMRA. The jury was also instructed that, to find Defendant guilty of

16 voluntary manslaughter under an aiding and abetting theory, the State had to prove

17 each of the following elements:

18        1.     [D]efendant intended that the crime be committed;

19        2.    The crime was committed;

20        3.    [D]efendant helped, encouraged or caused the crime to be
21              committed.


                                               4
 1 UJI 14-2822 NMRA. The jury was given the intent instruction, UJI 14-141 NMRA,

 2 which required that it find that Defendant acted intentionally when he committed the

 3 crime.

 4          In State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075, our

 5 Supreme Court explained that “an accessory must share the criminal intent of the

 6 principal” and that the requisite intent “can be inferred from behavior which

 7 encourages the act or which informs the confederates that the person approves of the

 8 crime after the crime has been committed.” Id. ¶ 7. See also State v. Brenn,

 9 2005-NMCA-121, ¶ 24, 138 N.M. 451, 121 P.3d 1050 (“Intent is usually established

10 by circumstantial evidence.”).

11          Defendant argues that “[n]o evidence was presented that Mr. Begaye intended

12 that voluntary manslaughter be committed” and that the State “failed to prove the

13 ‘intent’ element of accessory liability.” In support of this contention, Defendant notes

14 that during the motion for directed verdict, “the judge had doubts about Mr. Begaye

15 being an accessory.” Further, Defendant contends that co-defendant acted alone when

16 he stabbed Victim, and that Defendant was merely trying to protect co-defendant

17 when he wrestled the sawed-off shotgun from Victim. Thus, Defendant argues that

18 there was insufficient evidence for the jury to conclude that he intended for co-

19 defendant to commit murder, or that he helped, encouraged, or caused co-defendant

20 to fatally stab Victim. We disagree.

                                              5
 1        In this case, the jury heard testimony from several witnesses that Defendant

 2 intended to aid and abet co-defendant in the voluntary manslaughter of Victim. The

 3 jury heard testimony from Amanda Jackson, Victim’s sister, who was in the Jeep

 4 when Victim was stabbed. Jackson testified that she was in the rear passenger seat of

 5 the Jeep when she saw Defendant and co-defendant walk together toward the Jeep.

 6 The two had been standing by their truck talking and “kept looking back towards the

 7 Jeep” before they approached Victim. Co-defendant approached Victim on the

 8 driver’s side, while at the same time, Defendant approached on the passenger side.

 9 Victim rolled down the driver’s side window, and a few words were exchanged with

10 co-defendant who then reached into the Jeep. Simultaneously, Defendant opened the

11 passenger door, got into the Jeep, and using both arms, attacked Victim in a “punching

12 stabbing motion.” Jackson testified that there was a gun on Victim’s lap but that

13 Victim did not point the gun at the co-defendant when he approached the Jeep.

14        Jackson further testified that Defendant had a shiny silver object in his hand

15 when he opened the passenger side door. After Defendant and co-defendant entered

16 the Jeep, Jackson saw that Victim was “leaning forward and saying ahhh, and that’s

17 when [Defendant] grabbed for the gun.” Using both arms, Defendant and Victim

18 struggled over the gun inside the Jeep. As they struggled over the gun, Defendant

19 pulled Victim out of the Jeep. Defendant and co-defendant then dragged Victim to

20 the back of the vehicle and fought with him. Jackson testified that during the fight,

                                             6
 1 the gun went off. Defendant and co-defendant ran to their truck and fled. Victim

 2 staggered to the passenger side of the Jeep and said he had been stabbed.

 3        Nicole Trujillo-Thompson, who testified via an audiotape from a preliminary

 4 hearing, was a passenger in the Jeep when it arrived at 2806 Southside River Road.

 5 She testified that as she was getting out of the Jeep, she saw Defendant and co-

 6 defendant look at the Jeep, talk to one another, and then walk toward the Jeep together

 7 in an unfriendly manner. Defendant “had something in his hand that was long.” He

 8 proceeded to enter the Jeep as Victim was rolling the driver’s side window down.

 9 Trujillo-Thompson heard arguing and ran to the passenger side of the vehicle. She

10 saw Defendant trying to wrestle the gun from Victim, while co-defendant was

11 reaching in to the Jeep and either stabbing or hitting Victim. Trujillo-Thompson

12 testified that she tried to stop Defendant from fighting with Victim but that Defendant

13 shoved her. She further testified that although Defendant’s arm was in a sling, it

14 “wasn’t hurt that bad” because he used his injured arm to push her while he was trying

15 to take the gun away from Victim with his other hand.

16        The jury heard testimony from co-defendant, Darryl Williams, that he was at

17 2806 Southside River Road with Defendant when Victim pulled up in his vehicle. Co-

18 defendant testified that although he was scared of Victim, he did not leave, but instead

19 walked up to the Jeep with his hands in his pockets. After watching Defendant and

20 Victim struggle with the shotgun, co-defendant grabbed a knife and stabbed Victim.

                                              7
 1 The stabbing occurred at about 1:00 a.m., after which Defendant and co-defendant

 2 fled the scene. They were arrested at about 8:00 a.m. the next morning. The two had

 3 traveled to multiple places throughout the night and never reported the incident to the

 4 police.

 5        Defendant testified that he had seen Victim earlier in the day and had seen the

 6 sawed-off shotgun on Victim’s hip at that time. Defendant had a previous run-in with

 7 Victim when a girl—at Victim’s direction—punched Defendant’s girlfriend.

 8 Defendant testified that he was fearful of Victim. However, when Victim pulled up,

 9 Defendant did not leave the scene, but instead approached Victim’s Jeep with a fire

10 poker in his hand. While Victim was wrestling with co-defendant, Defendant entered

11 the Jeep in order to “get control of the gun.” Defendant testified that he distracted

12 Victim from defending himself against co-defendant’s assaults by tugging at the gun

13 and trying to get control of it. After the stabbing, Defendant and co-defendant drove

14 by the hospital emergency room and saw Victim’s Jeep there. Defendant testified that

15 several hours later, the police were looking for him at a friend’s house where he ended

16 up that evening, but that he did not answer the door. He was arrested upon leaving the

17 house when he believed the police had already left.

18        Defendant does not question the testimony of the witnesses in this case and

19 instead argues that he “did not intend that [co-defendant] commit murder, nor did he

20 help or encourage or cause [co-defendant] to fatally stab [Victim].” Defendant further

                                              8
 1 contends that he was merely “trying to wrestle the sawed-off shotgun out of [Victim’s]

 2 hands in order to protect [co-defendant].” We note first that the jury was free to reject

 3 Defendant’s version of the events that he was only acting in self-defense and defense

 4 of another. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829

 5 (filed 1998). Moreover, there was ample testimony at trial, including from Defendant,

 6 that Defendant approached the Jeep with a tire iron or fireplace poker and then

 7 struggled with Victim over the shotgun while co-defendant was striking Victim. Co-

 8 defendant repeatedly stabbed Victim in the Jeep and therefore knew his acts would

 9 result in a strong probability of death or great bodily harm. Viewing the evidence in

10 the light most favorable to the State, a reasonable jury could conclude that Defendant

11 aided and abetted in the commission of the crime and that he shared the criminal intent

12 of his co-defendant because he knew that co-defendant’s acts of repeatedly striking

13 Victim created a strong probability of death or great bodily harm. We hold there was

14 sufficient evidence to support Defendant’s conviction for accessory to voluntary

15 manslaughter.

16 Victim’s Prior Convictions for Violent Crimes

17        The next issue concerns whether the trial judge abused his discretion by not

18 permitting Defendant to introduce evidence of Victim’s former criminal convictions

19 through the testimony of his sister. Defendant argues that he “wanted to introduce

20 evidence of [Victim’s] extensive record of convictions for violent crimes to

                                               9
 1 demonstrate why they were terrified of what [Victim] would do with his sawed-off

 2 shotgun.” We have previously addressed this same issue in co-defendant Williams’

 3 appeal. See State v. Williams, No. 27,667, slip op. (N.M. Ct. App. Apr. 24, 2009),

 4 cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42. “[W]e review a trial

 5 court’s admission or exclusion of evidence for abuse of discretion.” State v.

 6 Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526. “An abuse of

 7 discretion occurs when the ruling is clearly against the logic and effect of the facts and

 8 circumstances of the case. We cannot say the trial court abused its discretion by its

 9 ruling unless we can characterize it as clearly untenable or not justified by reason.”

10 State v. Rojo, 1999-NMSC-001, ¶ 41 (internal quotation marks and citation omitted).

11        Amanda Jackson testified that she had been “hanging out” with Victim and

12 others and witnessed the stabbing. On cross examination, co-defendant’s counsel

13 asked: “Ms. Jackson, your brother has a prior felony conviction for aggravated

14 battery . . .” The State objected, arguing that Defendant had not laid the proper

15 foundation for such a question and that there were limits with regard to how evidence

16 of Victim’s criminal history could be introduced given that Defendant intended to

17 proceed on the theory of self-defense. Specifically, the State argued that

18        if [Defendant is] doing a self-defense argument, [he] could let it in with
19        respect to what [Defendant] knew of [Victim’s] prior felonies, as to
20        whether or not it created a sense of fear in [Defendant’s] mind[], and not
21        whether or not he was acting in conformity. I mean, (inaudible) prior
22        felonies, we don’t want to show conformity, we want to show whether

                                               10
 1        or not [Defendant] knew of these felonies, whether or not (inaudible)
 2        have a fear to act the way they act. [Jackson] is not the person to get
 3        these felonies in.

 4 The trial judge sustained the State’s objection. The judge indicated that he would

 5 consider taking judicial notice of Victim’s former criminal convictions if, during the

 6 trial, defense counsel laid the appropriate foundation to permit him to do so.

 7        Subsequently, co-defendant testified. Co-defendant described specific events

 8 illustrating Victim’s propensity for violence and the regularity with which Victim

 9 carried guns. He also testified that he was scared of Victim that night, because he had

10 been told Victim had guns and a “Rambo” knife. Defendant testified that when he

11 saw Victim pull up to the house, he was afraid something was going to happen.

12 However, neither Defendant nor co-defendant were ever asked—nor did they ever

13 offer any testimony—about their knowledge of Victim’s former criminal convictions

14 or discussions they had with Jackson about those convictions. Defendant does not

15 point us to any place in the record where the trial court prevented him from discussing

16 his knowledge of Victim’s criminal record.

17        In Armendariz, 2006-NMSC-036, ¶¶ 6-8, the defendant claimed self-defense

18 and sought to introduce evidence through the testimony of the victim’s widow that the

19 victim had committed two acts of domestic violence. The trial court upheld the

20 State’s objection, and our Supreme Court affirmed. Id. ¶ 30. Our Supreme Court

21 addressed and clarified the admissibility of evidence of a victim’s prior violent

                                             11
 1 conduct submitted by a criminal defendant in support of a self-defense claim. Id. The

 2 Court noted that “evidence of specific instances of a victim’s prior violent conduct

 3 may not be admitted to show that the victim was the first aggressor when the

 4 defendant is claiming self-defense.” Id. ¶ 17. Further, the New Mexico Rules of

 5 Evidence, specifically Rule 11-405(B) NMRA, “only allow[s] evidence of specific

 6 instances of a person’s conduct when the character or character trait of that person is

 7 an essential element of a charge, claim, or defense.” Armendariz, 2006-NMSC-036,

 8 ¶ 17. The Court next concluded that “[w]hen a defendant is claiming self-defense, his

 9 or her apprehension of the victim is an essential element of his or her claim.” Id.

10 Accordingly, the Court held that “under Rule 11-405(B), evidence of specific

11 instances of the victim’s prior violent conduct of which the defendant was aware may

12 be admitted to show the defendant’s fear of the victim.” Id. (Emphasis added).

13        As in Armendariz, Defendant here claims that he sought to elicit testimony from

14 Victim’s sister concerning specific instances of Victim’s prior criminal conduct to

15 demonstrate his fear of Victim for purposes of establishing his self-defense claim.

16 However, as the State argues, Defendant failed to lay any foundation or explain how

17 Jackson’s knowledge concerning Victim’s prior criminal convictions related to

18 Defendant’s own awareness of Victims’s criminal background. Without the proper

19 foundation demonstrating that Defendant knew about Victim’s criminal record, any

20 testimony Jackson could have given on that matter would have constituted evidence

                                             12
1 of specific acts of conduct offered to prove the Victim’s character, which Armendariz

2 holds is inadmissible. 2006-NMSC-036, ¶¶ 17-18. Accordingly, we hold that the trial

3 court did not abuse its discretion by excluding evidence of Victim’s prior criminal

4 conduct through Jackson’s testimony.

5 CONCLUSION

6        For the reasons set forth above, we affirm Defendant’s conviction.

7        IT IS SO ORDERED.



8                                        __________________________________
9                                        LINDA M. VANZI, Judge


10 WE CONCUR:



11 _________________________________
12 MICHAEL D. BUSTAMANTE, Judge



13 _________________________________
14 TIMOTHY L. GARCIA, Judge




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