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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. 33,965

 5 DAVID GRADO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
 8 Daniel Viramontes, District Judge

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

13 for Appellee

14   Bennett J. Baur, Chief Public Defender
15   Sergio Viscoli, Appellate Defender
16   David Henderson, Assistant Appellate Defender
17   Santa Fe, NM

18 for Appellant

19                                 MEMORANDUM OPINION

20 VIGIL, Chief Judge.
 1   {1}   Convicted of aggravated burglary, contrary to NMSA 1978, § 30-16-4(C)

 2 (1963), Defendant appeals. Defendant argues that: (1) he received ineffective

 3 assistance of counsel; and (2) flaws in the jury instructions constitute fundamental

 4 error. We disagree and affirm.

 5 I.      BACKGROUND

 6   {2}   Around midnight on July 23, 2013, Defendant broke through a bathroom

 7 window screen and entered the Gullien home in Deming, New Mexico. At trial,

 8 Defendant did not dispute the occurrence of his unorthodox entry into the Gullien

 9 home, or the fact that he was without permission to enter the home. Rather, he

10 explained he had been awake for several days binging on methamphetamine, and

11 consistent with his experience on prior such occasions, Defendant said he had become

12 very fearful and suspicious, and came to believe the group of people he was with

13 wanted to hurt him. To get away, Defendant testified that he ran down the street

14 without his shoes and took refuge within the Gullien home located about six houses

15 from where he fled.

16   {3}   When Defendant broke through the bathroom window screen, the teenage

17 daughter of Antonio Gullien (Gullien) was using the bathroom. When she heard the

18 sound of the screen breaking and then heard Defendant breathing, she pulled up her

19 underwear and darted for the door. Before she could leave the bathroom she felt



                                            2
 1 someone, who she identified as Defendant, grab her arm. She managed to get to the

 2 hall and started running. However, she hadn’t had time to pull her pants up properly,

 3 so she tripped and fell in the hallway. Defendant maintained that he didn’t recall

 4 seeing her.

 5   {4}   Gullien had just fallen asleep after turning off the television a few minutes

 6 before. When he heard screaming, he opened the door to the hall and saw his daughter

 7 on the floor. He also saw Defendant, who raised his hands. Gullien testified he picked

 8 Defendant up and “body-slammed” him to the floor. Defendant didn’t struggle, but

 9 informed Gullien that he had just seen “the devil.” Gullien asked that his wife call the

10 police and held Defendant on the floor until Officer Feltrow of the Deming Police

11 Dapartment arrived several minutes later.

12   {5}   Officer Feltrow testified that he saw Gullien astride Defendant on the floor in

13 the hallway. Officer Feltrow handcuffed Defendant and placed Defendant in the back

14 of his patrol car. Defendant smelled of alcohol, seemed very intoxicated, and lay down

15 in the back seat. Officer Feltrow then drove to the emergency room of a nearby

16 hospital.

17   {6}   Officer Feltrow testified that as they drove, Defendant volunteered that he was

18 dating the teenager, yet could not provide her name when asked to do so by Officer

19 Feltrow. Upon arriving at the hospital, Defendant declined medical treatment, and



                                              3
 1 Officer Feltrow proceeded to the police station. En route, Defendant spontaneously

 2 blurted out that he broke into the Gullien residence because he wanted to steal jewelry.

 3   {7}   The defense theory at trial was that Defendant did not commit the crime of

 4 aggravated burglary, but rather the lesser included crime of breaking and entering. He

 5 admitted that he intentionally broke into the Gullien home, but maintained that he did

 6 so to seek shelter and refuge.This theory was supported by testimony that Defendant

 7 was intoxicated with alcohol, high on illegal drugs, and became paranoid that the

 8 people he was with were “out to get me.” Despite his entry into the Gullien home

 9 through the bathroom window, Defendant asserted that his intention was to get help.

10 Defendant testified to feeling relieved once Officer Feltrow arrived and arrested him

11 because he knew then that he was no longer in danger.

12   {8}   During closing argument, defense counsel argued that Defendant was

13 intoxicated, but stated that intoxication did not excuse bad behavior and was not being

14 offered as an excuse by Defendant. Rather, Defendant’s attorney stated Defendant’s

15 intoxication was an explanation of Defendant’s mindset when “[Defendant] was

16 running from some danger, real or imagined, but in his mind very real.” This was

17 consistent with the defense theory that Defendant did not break into the home to steal,

18 but to seek safety, whether the threat was real or not.

19   {9}   Consistent with the defense theory of the case, defense counsel submitted a



                                              4
 1 requested jury instruction on the lesser included offense of breaking and entering. The

 2 State objected to timeliness of the submission of the instruction, but took no position

 3 and deferred to the trial court’s discretion. The trial court prepared the final jury

 4 instructions, including the lesser included instruction submitted by Defendant, and

 5 provided them to counsel. The trial court asked counsel if they were “comfortable

 6 with the instructions and the order.” Defense counsel had no objection to the

 7 instruction.

 8   {10}   The jury found Defendant guilty of aggravated burglary, and the State filed a

 9 supplemental information alleging Defendant to be a habitual offender by virtue of

10 two prior felony convictions. Defendant conceded habitual offender status, and

11 accordingly received an enhanced sentence. Defendant appeals.

12 II.      DISCUSSION

13 A.       Ineffective Assistance of Counsel

14   {11}   We examine claims of ineffective assistance of counsel de novo. State v.

15 Cordova, 2014-NMCA-081, ¶ 7, 331 P.3d 980, cert. denied, 2014-NMCERT-007, 337

16 P.3d 923. We generally presume that trial counsel provided adequate assistance. State

17 v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. To succeed on an

18 ineffective assistance of counsel claim, “a defendant must first demonstrate error on

19 the part of counsel, and then show that the error resulted in prejudice.” Id. The



                                              5
 1 defendant has the burden to establish each element. State v. Roybal, 2002-NMSC-027,

 2 ¶ 19, 132 N.M. 657, 54 P.3d 61. To satisfy the first prong, a defendant must

 3 demonstrate that the “representation falls below an objective standard of

 4 reasonableness.” Bernal, 2006-NMSC-050, ¶ 32 (alteration, internal quotation marks,

 5 and citation omitted). In this regard, there is no error if counsel’s conduct can be

 6 justified as trial strategy or tactical. Id. To satisfy the second prong of prejudice, a

 7 defendant must demonstrate, based on a reasonable probability that, “but for counsel’s

 8 unprofessional errors, the result of the proceeding would have been different.” Id.

 9 (internal quotation marks and citation omitted).

10   {12}   Defendant argues that he received ineffective assistance of counsel because

11 defense counsel “failed to fully develop the evidence supporting voluntary

12 intoxication; or to request elements instructions that embedded a voluntary

13 intoxication defense and which would have provided a complete defense to both

14 aggravated burglary and breaking-and-entering; or to object to a general criminal

15 intent instruction limited to the crime of aggravated burglary (to which it did not

16 apply) rather than breaking-and-entering (to which it did).” We disagree.

17   {13}   We acknowledge that “[v]oluntary intoxication provides a defense to specific-

18 intent crimes where the intoxication is to such a degree as would negate the possibility

19 of the necessary intent.” State v. Hernandez, 2003-NMCA-131, ¶ 20, 134 N.M. 510,



                                              6
 1 79 P.3d 1118 (internal quotation marks and citation omitted). However, the record

 2 before us demonstrates a reasonable tactical decision not to employ this defense or

 3 seek an instruction on this defense. Defense counsel argued a valid theory that

 4 Defendant was running from danger—real or imagined—and entered the house to

 5 obtain safety, contending that his intoxication explained the situation and indicated

 6 his “mindset.” Defendant used the term “mindset” interchangeably with intent. The

 7 record further demonstrates that counsel emphasized to the jury at closing arguments

 8 that intoxication “is not an excuse for bad behavior and [he is] not offering it as an

 9 excuse for bad behavior.” Defense counsel stressed Defendant’s intoxication to

10 provide support for an alternative mental state in order to negate an intent to steal

11 jewelry.

12   {14}   Nevertheless, Defendant argues on appeal that defense counsel’s theory

13 conflated a voluntary intoxication defense with a defense that Defendant had an

14 irrational and confused intent based on his fatigue and drug consumption, and

15 overlooked what is otherwise a complete defense. We are not persuaded. Defense

16 counsel emphasized that Defendant’s intoxication affected his “mindset,” to highlight

17 that Defendant’s intent was to obtain safety during the incident. This strategy

18 highlighted Defendant’s intent to find safety rather than to steal jewelry, a reasonable

19 tactical choice under the circumstances.



                                              7
 1   {15}   We conclude that defense counsel’s decision not to use Defendant’s

 2 intoxication as an excuse was “a legitimate strategy well within the wide range of

 3 reasonable professional assistance.” State v. Garcia, 2011-NMSC-003, ¶ 37, 149 N.M.

 4 185, 246 P.3d 1057 (internal quotation marks and citation omitted). Moreover, the

 5 reliability of the defense that was actually presented could have been undermined by

 6 simultaneously offering voluntary intoxication as an alternative defense. Cf. id. (“For

 7 counsel to press this alibi-based argument and simultaneously request a voluntary

 8 intoxication instruction could have undermined [the d]efendant’s credibility with the

 9 jury.”). We hold that defense counsel’s strategic decision to avoid conflicting theories

10 was well within the standard of competent counsel. See id. (“Counsel made the

11 strategic decision to pursue a valid theory on [the d]efendant’s behalf, and

12 understandably demurred from posing a contradictory theory to the jury.”).

13   {16}   Regarding Defendant’s ineffective assistance challenge as it relates to the jury

14 instructions, the district court gave an instruction on the essential elements of

15 aggravated burglary, followed by an instruction on general intent, a step-down

16 instruction, then an instruction on breaking and entering. Defendant complains that

17 trial counsel did not request a specific intent instruction for aggravated burglary, and

18 did not object to placing the general intent instruction after the instruction on the

19 elements of aggravated burglary, or to the absence of a general intent instruction after



                                                8
 1 instruction on the elements of breaking and entering. We do not agree that this

 2 amounts to ineffective assistance of counsel.

 3   {17}   In State v. Stefani, 2006-NMCA-073, 139 N.M. 719, 137 P.3d 659 we held that

 4 it was not error for the general intent instruction to be used with a specific intent

 5 offense:

 6          [The d]efendant’s argument that including the instruction on general
 7          criminal intent serves to mislead or confuse the jury as to what is
 8          required to prove ‘intent’ is without merit, and has already been
 9          addressed and answered by this Court in State v. Gee, 2004-NMCA-042,
10          ¶ 7, 135 N.M. 408, 89 P.3d 80.

11                ....

12                 The Use Note Following UJI 14-141 [NMRA], the general intent
13          instruction, states that the ‘instruction must be used with every crime
14          except for the relatively few crimes not requiring criminal intent or those
15          crimes in which the intent is specified in the statute or instruction.’
16          Furthermore, this Court in Gee held that it is not fundamental error to
17          give a general intent instruction where the crime charged is a specific
18          intent crime. Consistent with UJI 14-141, the Use Note following the
19          instruction, as well as this Court’s holding in Gee, we hold that there was
20          no error in the use of the general intent instruction.

21 Stefani, 2006-NMCA-073, ¶¶ 27, 29 (emphasis added) (citations omitted). In

22 accordance with Stefani, counsel was not ineffective in failing to object to the use of,

23 and placement of, the general intent instruction. See State v. Ruiz, 1980-NMCA-123,

24 ¶ 46, 94 N.M. 771, 617 P.2d 160, superceded by statute on other grounds as stated

25 in State v. McCormack, 1984-NMCA-042, ¶ 12, 101 N.M. 349, 682 P.2d 742 (“When



                                                9
 1 one intends to commit a felony or theft under the burglary statute one also has the

 2 general criminal intent of purposely doing an act even though he may not know the

 3 act is unlawful.”).

 4   {18}   Regarding the instruction on breaking and entering itself, the jury did not even

 5 consider this offense. The jury was instructed that “[i]f you have a reasonable doubt

 6 as to his guilt of [aggravated burglary], you will go on to a consideration of the crime

 7 of [b]reaking and [e]ntering.” We presume that the jury followed the jury instruction

 8 and did not consider the lesser offense of breaking and entering. See State v. Perry,

 9 2009-NMCA-052, ¶ 45, 146 N.M. 208, 207 P.3d 1185 (“There is a presumption that

10 the jury follows the instructions they are given.” (internal quotation marks and citation

11 omitted)). While defense counsel should have asked that the general intent instruction

12 be worded to include breaking and entering, doing so would not have produced a

13 different outcome. Thus, counsel was not ineffective in failing to do so. Counsel’s

14 error therefore did not result in prejudice.

15   {19}   Defendant has not established a prima-facie case of ineffective assistance of

16 counsel on appeal. However, our conclusion here does not prevent Defendant from

17 seeking “habeas corpus proceedings on this issue should he be able to garner evidence

18 to support his claims.” Bernal, 2006-NMSC-050, ¶ 36.

19 B.       Fundamental Error



                                               10
 1   {20}   Defendant did not object to the jury instructions. Therefore, we review the jury

 2 instructions complained of for fundamental error. State v. Benally, 2001-NMSC-033,

 3 ¶ 12, 131 N.M. 258, 34 P.3d 1134. Under our standard of review for fundamental

 4 error, we will not reverse the jury verdict “unless necessary to prevent a miscarriage

 5 of justice.” State v. Sandoval, 2011-NMSC-022, ¶ 13, 150 N.M. 224, 258 P.3d 1016

 6 (internal quotation marks and citation omitted).

 7   {21}   Defendant argues that under Rule 5-608 NMRA, the district court was required

 8 to give an instruction on voluntary intoxication as a defense, even though it was not

 9 requested, because the evidence supported giving the instruction. Under Rule 5-

10 608(A),“[t]he court must instruct the jury upon all questions of law essential for a

11 conviction of any crime submitted to the jury.” The Committee commentary and our

12 case law under this rule demonstrate that the district court only has a duty to instruct

13 on the essential law required for a conviction. See Rule 5-608(A) comm. cmt.

14 (“Paragraph A of this rule, codifying prior court decisions, requires the district court

15 to instruct the jury on the law essential for a conviction of the crimes submitted to the

16 jury even if no requested instructions are presented by the parties.”); See also State v.

17 Acosta, 1997-NMCA-035, ¶ 7, 123 N.M. 273, 939 P.2d 1081 (“[U]nder our rules of

18 criminal procedure, [Rule 5-608(A), (D)], and the doctrine of fundamental error, the

19 use of a jury instruction that omits an essential element of the offense can be grounds



                                               11
 1 for reversal even when the omission was caused by the defendant’s own actions.”).

 2   {22}   The presence or absence of voluntary intoxication is not essential to a

 3 conviction for aggravated burglary. Accordingly, it was not fundamental error for the

 4 district court not to give an instruction on the defense sua sponte in the absence of a

 5 request from Defendant, even if the evidence supported giving the instruction.

 6 Defendant does not cite us to any applicable authority holding that such an omission

 7 constitutes fundamental error. State v. Vaughn, 2005-NMCA-076, ¶ 42, 137 N.M.

 8 674, 114 P.3d 354 (“This [c]ourt will not consider an argument that lacks citation to

 9 any legal authority in support of that argument. Where a party cites no authority to

10 support an argument, we may assume no such authority exists.”).

11   {23}   Defendant reiterates his contentions regarding the general intent instruction,

12 asserting that the district court committed fundamental error in not sua sponte

13 correcting the errors. Again, for the reasons we have already given, there was no error

14 regarding the aggravated burglary charge, and if there was error regarding the

15 breaking and entering charge, it was harmless.

16   {24}   In addition to the foregoing, we observe that Defendant did not contest the

17 breaking and entering charge at trial. Defendant admitted he punched the screen out,

18 went through the bathroom window, and entered the home without permission. In

19 closing arguments, moreover, Defendant requested the jury to find him guilty of

20 breaking and entering. See State v. Lopez, 1996-NMSC-036, ¶ 11, 122 N.M. 63, 920

                                              12
 1 P.2d 1017 (“There is, however, an exception to this general rule that failure to include

 2 an essential element in an instruction for a crime constitutes fundamental error. This

 3 exception applies when the element that was omitted from the instruction was not at

 4 issue in the trial.”). The record demonstrates that none of the elements of breaking and

 5 entering, including general intent, were contested at trial.

 6   {25}   For the foregoing reasons, we conclude that the district court did not commit

 7 fundamental error in instructing the jury.

 8 III.     CONCLUSION

 9   {26}   The judgment and sentence are affirmed.

10   {27}   IT IS SO ORDERED.

11                                                 ______________________________
12                                                 MICHAEL E. VIGIL, Chief Judge

13 WE CONCUR:


14 ___________________________________
15 TIMOTHY L. GARCIA, Judge


16 ___________________________________
17 J. MILES HANISEE, Judge




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