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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. A-1-CA-35688

 5 JERRAD BOWEN,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Alisa A. Hart, District Judge

 9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender
14 Will O’Connell, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VANZI, Chief Judge.
 1   {1}   Defendant Jerrad Bowen appeals his convictions for aggravated battery with a

 2 deadly weapon and tampering with evidence. On appeal he argues that (1) the district

 3 court committed reversible error when it refused to give Defendant’s tendered jury

 4 instruction for non-deadly force self-defense; and (2) the evidence offered at trial was

 5 insufficient to support his conviction for tampering with evidence. We affirm.

 6 BACKGROUND

 7   {2}   On or about May 9, 2015, Defendant and Dennis Knight (Victim) were

 8 involved in a bar fight at the Dirty Bourbon nightclub in Albuquerque, New Mexico.

 9 According to Victim, he was at the crowded club with his girlfriend when he felt

10 someone push up against his shoulder. Victim testified that he then made eye contact

11 with Defendant, and Defendant said, “You got an F’en problem, you know.” The two

12 exchanged words at which point Defendant, according to Victim, “started like getting

13 just like, lack of a better term, going nuts kind of.” According to Victim, a group of

14 Defendant’s friends tried to hold Defendant back, but Defendant appeared through the

15 crowd and “bear hugged” Victim. Victim testified that he grabbed Defendant’s arms

16 and tried to hold them down to avoid getting punched. Victim struggled with

17 Defendant through the crowd of his friends and pushed Defendant up against a wall.

18 Victim testified that he “could feel [Defendant] like hitting me or somebody was

19 hitting me on the sides[,]” at which point Victim threw Defendant to the floor. The



                                              2
 1 bouncers from the club then showed up and pulled Victim off of Defendant. Victim

 2 admitted at trial that he is six feet two inches tall and 260 pounds, had been a wrestler

 3 in high school, and used a wrestling move known as an “underhook” to control

 4 Defendant’s arms.

 5   {3}   Victim testified that after the fight, he was taken out of the club and noticed that

 6 he was covered in blood. The bouncers lifted Victim’s shirt and there was blood

 7 running from his arms down his torso. Victim was initially unsure if he had landed on

 8 a glass bottle, but then learned he had been stabbed. Victim was transported by

 9 ambulance to the hospital and treated for his wounds. At the time of trial, almost a

10 year after the fight, Victim continued to experience numbness and discomfort from

11 his wounds.

12   {4}   After the fight, Albert Lucero, who was working security at the club, followed

13 Defendant to his car where he overheard Defendant say that he had stabbed somebody

14 and needed to get out of there. Lucero testified that Defendant put two knives, his

15 cowboy hat, and bloody t-shirt into his car. Officer Jonathan Mares with the

16 Albuquerque Police Department responded to the scene. After speaking with security

17 at the club, Officer Mares left the club, drove across the intersection near the club and

18 made contact with Defendant who was outside of a nearby store. Defendant had blood

19 on his clothes and stated to Officer Mares, “I don’t have a knife.” Another officer



                                                3
 1 testified that Defendant said to her, “Run the cameras. I had someone take a swing at

 2 me,” and stated that he was defending himself.

 3   {5}   After a search warrant was obtained for Defendant’s vehicle, officers executed

 4 the warrant and recovered from the vehicle a bloody knife located on the driver’s seat,

 5 along with a cowboy hat that had dried blood on the front rim. A forensic scientist in

 6 the DNA unit at the Albuquerque Police Department testified that Victim could not

 7 be excluded as the major contributor to the blood on the blade of the knife and the

 8 blood on the cowboy hat, and Defendant could not be excluded as the major

 9 contributor to DNA on the inner headband of the cowboy hat.

10   {6}   During the trial, the parties presented jury instructions to the district court. In

11 accordance with Defendant’s theory of self-defense, Defendant offered two self-

12 defense instructions: UJI 14-5181 NMRA (non-deadly force self-defense) and UJI 14-

13 5183 NMRA (deadly force self-defense). The elements for non-deadly force self-

14 defense under UJI 14-5181, as presented by Defendant, were:

15               1.    There was an appearance of immediate danger of bodily
16         harm to [Defendant] as a result of [Victim]’s bearhugging or
17         underhooking [Defendant], pushing [Defendant] across the bar, pinning
18         [Defendant] to a wall, lifting [Defendant] over [Victim]’s left shoulder
19         and throwing [Defendant] to the floor and thereafter getting on top of
20         [Defendant]; and

21               2.    [Defendant] was in fact put in fear of immediate bodily
22         harm and used a knife on [Victim] because of that fear; and



                                                4
 1               3.    [Defendant] used an amount of force that [D]efendant
 2         believed was reasonable and necessary to prevent the bodily harm; and

 3                4.    The apparent danger would have caused a reasonable person
 4         in the same circumstances to act as [Defendant] did.

 5 See id.

 6   {7}   The elements for deadly force self-defense under UJI 14-5183, as ultimately

 7 instructed to the jury, were:

 8                1.     There was an appearance of immediate danger of death or
 9         great bodily harm to [D]efendant as a result of [Victim’s] bearhugging
10         or underhooking [D]efendant, pushing [D]efendant, pinning [D]efendant
11         to the wall, throwing [D]efendant to the floor and thereafter getting on
12         top of [D]efendant; and

13                2.    [D]efendant was in fact put in fear of immediate death or
14         great bodily harm and stabbed [Victim] with a knife because of that fear;
15         and

16                3.    The apparent danger would have caused a reasonable person
17         in the same circumstances to act as [D]efendant did.

18 See id.

19   {8}   The State opposed Defendant’s instruction on non-deadly force self-defense and

20 the district court agreed, ruling that it would only instruct the jury on deadly force

21 self-defense “[b]ecause stabbing another person with a knife does qualify as deadly

22 force, whether or not—the resulting injury with death isn’t the issue. And [UJI

23 14-]5181 should not [be] given.”




                                              5
 1   {9}    At the close of trial, the jury convicted Defendant of aggravated battery with

 2 a deadly weapon and tampering with evidence. Defendant filed this appeal

 3 challenging the district court’s denial of Defendant’s proffered jury instruction on

 4 non-deadly force self-defense and the sufficiency of the evidence underlying the

 5 jury’s verdict finding the Defendant guilty of tampering with evidence.

 6 DISCUSSION

 7 Jury Instruction

 8   {10}   “The propriety of denying a jury instruction is a mixed question of law and fact

 9 that we review de novo.” State v. Guerra, 2012-NMSC-014, ¶ 13, 278 P.3d 1031

10 (internal quotation marks and citation omitted). When considering a defendant’s

11 requested instructions, this Court “view[s] the evidence in the light most favorable to

12 the giving of the requested instruction.” State v. Hill, 2001-NMCA-094, ¶ 5, 131 N.M.

13 195, 34 P.3d 139.

14   {11}   “[A] defendant is entitled to have his or her theory of the case submitted to the

15 jury under proper instructions where the evidence supports it.” State v. Lucero, 1998-

16 NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143 (alteration, internal quotation marks,

17 and citation omitted). “A defendant is only entitled to jury instructions on a self-

18 defense theory if there is evidence presented to support every element of that theory.”

19 State v. Baroz, 2017-NMSC-030, ¶ 14, 404 P.3d 769; see State v. Boyett, 2008-



                                                6
 1 NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 (“Failure to instruct the jury on a

 2 defendant’s theory of the case is reversible error only if the evidence at trial supported

 3 giving the instruction.”). When the evidence does not support the defendant’s theory

 4 of self-defense, then the district court is not required to provide that jury instruction

 5 to the jury. See State v. Rudolfo, 2008-NMSC-036, ¶ 17, 144 N.M. 305, 187 P.3d 170

 6 (“A defendant is not entitled to a self-defense instruction unless it is justified by

 7 sufficient evidence on every element of self-defense.”); State v. Sutphin, 2007-NMSC-

 8 045, ¶ 22, 142 N.M. 191, 164 P.3d 72 (“[A] defendant is not entitled to the instruction

 9 when the evidence is so slight as to be incapable of raising a reasonable doubt in the

10 jury’s mind on whether a defendant did act in self-defense.” (omission, internal

11 quotation marks, and citation omitted)).

12   {12}   Here, the district court did not commit reversible error when it refused to

13 instruct the jury with the language of UJI 14-5181 because the evidence did not

14 support Defendant’s claim that he used non-deadly force. Contrary to Defendant’s

15 arguments, neither Poore v. State, 1980-NMSC-035, ¶¶ 10-11, 94 N.M. 172, 608 P.2d

16 148, nor State v. Romero, 2005-NMCA-060, ¶ 8, 137 N.M. 456, 112 P.3d 1113,

17 require that a jury instruction be given merely because a defendant argues in favor of

18 it. As stated in both cases, there must be some evidence supporting the instruction to

19 warrant its provision to the jury. See Poore, 1980-NMSC-035, ¶ 10 (“While an



                                               7
 1 accused is entitled to instruction on his theory of the case if evidence exists to support

 2 it, the court need not instruct if there is absence of such evidence.” (internal quotation

 3 marks and citation omitted)); Romero, 2005-NMCA-060, ¶ 8 (“In the case of self-

 4 defense, there must be some evidence, even if slight, to support the defense.”).

 5   {13}   Even when viewing the evidence in the light most favorable to Defendant, we

 6 conclude that there was not sufficient evidence to support a reasonable jury finding

 7 that Defendant’s act of repeatedly stabbing Victim with a knife constituted non-deadly

 8 force. Although Defendant’s knife was not per se a deadly weapon under the non-

 9 exhaustive definition in NMSA 1978, Section 30-1-12(B) (1963), this Court’s

10 decisions—both in published and memorandum opinions—demonstrate that using a

11 weapon, including a knife to repeatedly stab someone, constitutes deadly force rather

12 than non-deadly force. See, e.g., State v. Vargas, No. A-1-CA-34276, mem. op. ¶ 13

13 (N.M. Ct. App. Feb. 8, 2018) (non-precedential) (affirming the district court’s

14 decision to tender only a deadly force self-defense instruction rather than a non-deadly

15 force self-defense instruction where the defendant and the victim were using knives

16 offensively and in a manner consistent with deadly force by “fighting” or “swinging”

17 knives (internal quotation marks omitted)); State v. Banda, No. 34,457, mem. op. ¶¶ 6-

18 11 (N.M. Ct. App. June 15, 2017) (non-precedential) (affirming the district court’s

19 decision denying a defendant’s request for a non-deadly force instruction when the



                                               8
 1 defendant hit the victim repeatedly with nunchucks); State v. Neatherlin, 2007-

 2 NMCA-035, ¶ 20, 141 N.M. 328, 154 P.3d 703 (affirming that a person using their

 3 mouth to bite someone can be considered a deadly weapon); State v. Montano, 1999-

 4 NMCA-023, ¶¶ 5, 12, 126 N.M. 609, 973 P.2d 861 (affirming that a brick wall can be

 5 a deadly weapon when used to cause injury and dangerous wounds).

 6   {14}   It is undisputed in this case that Defendant stabbed Victim numerous times with

 7 a knife in the arms and abdomen. Defendant’s use of the knife to stab Victim

 8 amounted to “deadly force” because it was a “violent action known to create a

 9 substantial risk of causing death or serious bodily harm[.]” State v. Cardenas, 2016-

10 NMCA-042, ¶ 19, 380 P.3d 866 (alteration, internal quotation marks, and citation

11 omitted). Given the substantial risk of great bodily harm or death when stabbing

12 someone with a knife, the district court did not err in rejecting Defendant’s non-deadly

13 force self-defense instruction as unsupported by the evidence.

14 Sufficiency of the Evidence

15   {15}   Defendant’s second argument on appeal is that there was insufficient evidence

16 to support his conviction for tampering with evidence. “We review sufficiency of the

17 evidence . . . from a highly deferential standpoint.” State v. Dowling, 2011-NMSC-

18 016, ¶ 20, 150 N.M. 110, 257 P.3d 930. We view the evidence at trial “in the light

19 most favorable to the guilty verdict, indulging all reasonable inferences and resolving



                                               9
 1 all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-

 2 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

 3   {16}   At trial, the jury was instructed that, to convict Defendant of tampering with

 4 evidence, it had to find that Defendant “hid or placed a knife in a vehicle” and, “[b]y

 5 doing so, . . . intended to prevent the apprehension, prosecution, or conviction of

 6 [D]efendant for the crime of aggravated battery.” See UJI 14-2241 NMRA. On appeal

 7 Defendant argues that the State had insufficient evidence to support the conviction for

 8 tampering with evidence because the knife was found in Defendant’s vehicle at the bar

 9 where the crime occurred. In support of his argument, Defendant relies on New

10 Mexico cases in which our Supreme Court has held that the evidence was inadequate

11 to support a conviction for tampering when the State relied solely on the police’s

12 inability to find the evidence. See State v. Guerra, 2012-NMSC-027, ¶ 16, 284 P.3d

13 1076; State v. Silva, 2008-NMSC-051, ¶¶ 17-21, 144 N.M. 815, 192 P.3d 1192; State

14 v. Duran, 2006-NMSC-035, ¶¶ 12-16, 140 N.M. 94, 140 P.3d 515. Defendant appears

15 to argue that just as the case law does not allow the State to rely solely on the fact that

16 the police were unable to find evidence to support a conviction for tampering with

17 evidence, the State should not be able to argue that Defendant tampered with evidence

18 solely because the police found the knife that was in plain sight in Defendant’s car.




                                               10
 1   {17}   Defendant’s interpretation of these cases is misplaced. The cited cases stand

 2 only for the proposition that the State cannot rely solely on the absence of evidence

 3 to prove intent to tamper with the evidence. See, e.g., Guerra, 2012-NMSC-027, ¶ 16

 4 (holding that “[t]he [s]tate cannot convict [the d]efendant of tampering with evidence

 5 simply because evidence that must have once existed cannot now be found”); Silva,

 6 2008-NMSC-051, ¶ 19 (holding that the inability of the police to find the gun used in

 7 the crime was insufficient evidence to prove tampering with the evidence); Duran,

 8 2006-NMSC-035, ¶ 15 (holding that the inability to find the knife used in the crime

 9 or bloody clothing was insufficient to support a conviction of tampering with

10 evidence). Instead, the State must have some direct or circumstantial evidence other

11 than an inability to find the evidence to support a conviction for tampering with the

12 evidence. Guerra, 2012-NMSC-027, ¶ 14 (“[A]bsent either direct evidence of a

13 defendant’s specific intent to tamper or evidence from which the fact[-]finder may

14 infer such intent, the evidence cannot support a tampering conviction.” (internal

15 quotation marks and citation omitted)).

16   {18}   In this case, the State had evidence that Defendant intended to tamper with the

17 evidence by taking the knives from the crime scene and putting them in his vehicle.

18 At trial, a security guard testified that he saw Defendant put knives into his car. The

19 testimony and evidence further showed that Defendant left the Dirty Bourbon



                                              11
 1 nightclub, crossed the intersection, and that an officer intercepted him outside a

 2 nearby store. When Defendant was arrested some blocks away from the club, he told

 3 police, “I don’t have a knife.” However, after a search warrant was obtained for his

 4 vehicle, officers found a bloody knife on the driver’s seat.

 5   {19}   Given this evidence, the jury could reasonably infer that Defendant intended to

 6 prevent his apprehension, prosecution, or conviction when he threw the knife in his

 7 car, left the scene of the crime, and tried to convince the police that he did not have

 8 a knife when he was eventually arrested. The fact that the knife was in plain sight in

 9 his car is irrelevant to Defendant’s tampering conviction because, as noted by our

10 Supreme Court, “the proper focus” in applying the tampering statute “should be on

11 the accused subjective, specific intent to blind or mislead law enforcement, regardless

12 of whether his objective is ill-conceived [or] ultimately unsuccessful.” State v.

13 Jackson, 2010-NMSC-032, ¶ 16, 148 N.M. 452, 237 P.3d 754, overruled on other

14 grounds by State v. Radosevich, 2018-NMSC-028, ¶ 2, 419 P.3d 176. We agree with

15 the State that Defendant did not identify any element of the crime that was not

16 supported by the evidence to support overturning his conviction. Therefore, we affirm.




                                              12
1 CONCLUSION

2   {20}   For the reasons set forth above, we hold that the district court did not commit

3 reversible error when it refused to give Defendant’s tendered jury instruction for non-

4 deadly force self-defense. We also hold that the evidence presented at trial is sufficient

5 to sustain Defendant’s conviction for tampering with evidence. We therefore affirm.

6   {21}   IT IS SO ORDERED.


7
8                                          LINDA M. VANZI, Chief Judge

9 WE CONCUR:



10
11 J. MILES HANISEE, Judge



12
13 HENRY M. BOHNHOFF, Judge




                                              13
