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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. 32,374

 5 MICHAEL PAUL ASTORGA,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Stan Whitaker, District Judge


 9 Hector H. Balderas, Attorney General
10 Yvonne M. Chicoine, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender
14 David Henderson, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 KENNEDY, Judge.
 1   {1}   Michael Astorga (Defendant) appeals his convictions for the second-degree

 2 murder of Candido Martinez, tampering with evidence, and possession of a firearm

 3 by a felon. The State concedes that the tampering conviction should be reversed.

 4 Having reviewed applicable cases cited by the parties, we agree and reverse

 5 Defendant’s conviction on that charge. Finding no error with Defendant’s remaining

 6 convictions, we affirm the district court.

 7   {2}   Defendant raises six issues, which boil down to three assertions for purposes

 8 of this Opinion: (1) substantial evidence, including the introduction of conflicting

 9 prior statements by various witnesses, did not support the verdict; (2) the district court

10 erred by admitting evidence that Defendant was arrested in Mexico; (3) the jury

11 should have been instructed on self-defense and voluntary manslaughter. The parties

12 are familiar with the facts and, for the sake of brevity, in this memorandum opinion,

13 we present only such facts as are needed for our discussion of the issues. Defendant

14 has raised other issues that we adjudicate in a separate opinion.

15 I.      DISCUSSION

16 A.      Substantial Evidence

17   {3}   Our standard of review requires us to review “whether substantial evidence of

18 either a direct or circumstantial nature exists to support a verdict of guilt beyond a

19 reasonable doubt with respect to every element essential to a conviction.” State v.

20 Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. We view the evidence

                                                2
 1 in the light most favorable to supporting the guilty verdict and resolve all conflicts and

 2 indulge all permissible inferences in favor of upholding that verdict. Id. Reweighing

 3 facts, searching for inferences supporting a finding contrary to the verdict, or

 4 substituting our judgment for that of the jury is not part of our review. State v.

 5 Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285. After looking at the

 6 evidence in the light most favorable to the verdict, we ask whether any rational trier

 7 of fact would have found the essential elements of the crime to have been proven

 8 beyond a reasonable doubt. State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M.

 9 711, 998 P.2d 176. In our evaluation, we do not look for evidence “to determine

10 whether some hypothesis could be designed which is consistent with a finding of

11 innocence.” Graham, 2005-NMSC-004, ¶ 13 (internal quotation marks and citation

12 omitted). Instead, “[w]e must be satisfied that the evidence was sufficient to establish

13 the facts essential to conviction with the level of certainty required by the applicable

14 burden of proof.” State v. Wynn, 2001-NMCA-020, ¶ 5, 130 N.M. 381, 24 P.3d 816.

15 B.      Second Degree Murder Verdict

16   {4}   The jury found Defendant guilty of second-degree murder in violation of

17 NMSA 1978, Section 30-2-1(B) (1994) and guilty of possession of a firearm by a

18 felon in violation of NMSA 1978, Section 30-7-16 (2001). To satisfy the elements of

19 these offenses, the State had the burden of proving that Defendant killed Martinez

20 without lawful justification, knowing that his actions created a strong probability of

                                               3
 1 death, and that Defendant possessed and used a firearm in commission of that killing.

 2 UJI 14-211. Because no one testified that they saw Defendant shoot Martinez, all the

 3 evidence that the State presented was circumstantial. Our Supreme Court has

 4 “emphasized that circumstantial evidence alone can amount to substantial evidence.”

 5 State v. Flores, 2010-NMSC-002, ¶ 19, 147 N.M. 542, 226 P.3d 641; see also State

 6 v. Tovar, 1982-NMSC-119, ¶ 12, 98 N.M. 655, 651 P.2d 1299 (stating that

 7 “substantial evidence, even if circumstantial, supports the conviction.”).

 8   {5}   As explained below, we determine that the circumstantial evidence presented

 9 at trial is sufficient to support the verdict. The evidence supporting the guilty verdict

10 includes: (1) circumstances of the shooting, (2) Defendant’s motive for shooting

11 Martinez through testimony that the argument between the two men concerned a long-

12 festering family feud over a car, and (3) Defendant’s post-incident conduct as

13 evidence of consciousness of guilt.

14 1.      The Circumstances of the Shooting

15   {6}   Although Defendant argues, and we agree, that the testimony presented

16 regarding the circumstances of the shooting present a conflicting and somewhat

17 inconsistent set of facts, the jury’s role is to resolve just such situations. It has long

18 been the province of the jury to resolve conflicting statements attributed to witnesses.

19 Staab v. Raynolds, 1888-NMSC-010, ¶ 5, 4 N.M. 603, 17 P. 136; State v. Kelly,

20 1921-NMSC-073, ¶ 51, 27 N.M. 412, 202 P. 524 (holding that, even in light of

                                               4
 1 contradictory or false statements, it is still the province of the jury to evaluate the

 2 weight and veracity of a witness’s testimony). Additionally, when presented with a

 3 variety of statements, theories, and perceptions to choose from, the jury is free to

 4 reject a defendant’s version of the facts. See State v. Cabezuela, 2011-NMSC-041, ¶

 5 45, 150 N.M. 654, 265 P.3d 705 (acknowledging that a jury is fee to reject the

 6 defendant’s version of the facts). We will not “invade the jury’s province as fact-

 7 finder by second-guessing the jury’s decision concerning the credibility of witnesses,

 8 reweighing the evidence, or substituting [our] judgment for that of the jury.” State v.

 9 Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (quoting State v. Lucero,

10 118 N.M. 696).

11   {7}   Despite whatever inconsistencies exist in the testimony of the State’s witnesses,

12 the testimony does consistently establish that Defendant was standing along a line

13 representing the trajectory of the bullet that killed Martinez when the fatal shot was

14 fired, that Defendant had a gun in his hand, and that Defendant left the scene in a car

15 near which he was standing immediately after the gunshot that killed Martinez. Ray

16 Maez and Rudy Contreras testified that the sound of the gunshot came from the

17 direction of Defendant’s car. Maez testified—no fewer than four times—that based

18 on his perceptions of the incident, Defendant shot Martinez. Contreras testified that

19 he saw Defendant at his car with a gun in his hand immediately prior to the shooting,

20 and told Martinez as much immediately prior to Martinez getting out of the truck and

                                               5
 1 verbally accosting Defendant from behind the Volvo, which was directly across the

 2 street from Defendant. This position behind the Volvo is where Contreras found

 3 Martinez’s body after the gunshot. Maez testified that Defendant had retrieved what

 4 Maez thought was a gun from his car and then walked toward Martinez before the

 5 shot. Luis Vera heard the shot and saw someone run across the street from where

 6 Martinez had been hit, get in Defendant’s car, and leave. Contreras testified that

 7 Defendant’s car passed him immediately after Martinez had been shot while it was

 8 leaving the scene. He also testified Defendant was driving. Expert testimony

 9 established that the line representing the trajectory of the fatal bullet corresponds with

10 the line between Defendant and Martinez as established by the three eyewitnesses

11 around the time they heard the shot fired.

12   {8}   The sum total of this evidence could be assembled by the jury and supported

13 the guilty verdict. Although we acknowledge there were some inconsistencies in the

14 testimony given, the State vigorously pursued most of the conflicts between the

15 witnesses’ many statements, and Defendant fully and vigorously cross-examined the

16 witnesses. Some of the witnesses were openly reluctant to testify against the

17 Defendant and recanted prior statements when they were on the stand. As we discuss

18 further below, the introduction of inconsistent statements of many of these witnesses

19 for impeachment purposes presented admissible, but not substantive, evidence. See,

20 e.g., State v. Lopez, 2011-NMSC-035, ¶ 15, 150 N.M. 179, 258 P.3d 458. Further,

                                               6
 1 nowhere during the trial did Defendant seek to exclude any of the conflicting

 2 substantive or impeachment evidence presented during the trial about which he now

 3 complains.

 4   {9}    The jury had a variety of statements, perceptions, and theories to choose from,

 5 and we see sufficient basis for correlation between the witnesses’ testimony and the

 6 guilty verdict to present no need for us to short-circuit the jury’s proper function as

 7 fact finder. See State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057

 8 (holding appellate courts are deferential to a jury’s finding).

 9   {10}   Defendant insists, without citation to facts in the record, that we should

10 conclude that it was impossible for him to have fired at Martinez from across the street

11 because the shell casing found at the scene could not have landed where it was found

12 following such a shot. Defendant’s assertion that it was physically impossible for him

13 to have shot Martinez is a theory, which the jury apparently rejected. See Cabezuela,

14 2011-NMSC-041, ¶ 45 (acknowledging that the jury is free to reject the defendant’s

15 version of the facts). The testimony of Contreras, Maez, and Vera placed Defendant

16 across the street and approaching the Volvo prior to the shot being fired, and running

17 from the Volvo to Defendant’s car after the shot was fired. The State’s expert testified

18 that, owing to an ejected cartridge bouncing and “people going through the scene,” the

19 location of the casing “doesn’t lend itself to giving us a lot of physical evidence to say

20 where the gun was.” The State’s expert also proffered the theory that the fatal shot

                                               7
 1 came “across the car” to where Martinez was standing at the time of the fatal shot.

 2 Combining the eyewitness’ testimony with the expert’s theory, the trajectory of the

 3 shot could have logically aligned with Defendant’s car across the street where

 4 witnesses placed Defendant contemporaneously with the shooting. It is the jury’s

 5 responsibility to resolve any discrepancies as to where on that line Defendant might

 6 have stood. See State v. Apodaca, 1994-NMSC-121, ¶ 5, 118 N.M. 762, 887 P.2d 756

 7 (“Only the jury may resolve factual discrepancies arising from conflicting evidence.”).

 8 The evidence supports the jury’s finding that Defendant was armed, that he was

 9 standing somewhere within the trajectory of the fatal bullet, and that the single shot

10 fired resulted in Martinez’s death.

11 2.       Evidence Concerning Defendant’s Post-Shooting Conduct

12   {11}   The jury’s verdict was also supported by evidence of Defendant’s conduct

13 following the shooting. Our inquiry into the evidence of Defendant’s post-shooting

14 conduct is two- fold. We must first address whether the district court erred in

15 admitting evidence of Defendant’s arrest in Mexico. On this point, Defendant argues

16 that such evidence was “highly prejudicial.” Second, we must add any admissible

17 evidence of Defendant’s post-shooting conduct to our analysis and determine whether

18 the total evidence is sufficient to support the verdict. On this issue, Defendant argues

19 that the evidence of his other post-shooting conduct is no more than “irresolvably

20 ambigu[ous].”

                                              8
 1   {12}   Defendant argues on appeal that the district court’s admission of evidence of

 2 his arrest in Mexico was error because it was “highly prejudicial.” During trial,

 3 Defendant vigorously argued against allowing evidence of his arrest being submitted

 4 to the jury. Once evidence of Defendant’s flight to Mexico was admitted, the State

 5 argued that Defendant was arrested in Mexico on a warrant related to the Martinez

 6 shooting, and that the evidence of the Mexican arrest was part of a continuum of

 7 conduct that would show consciousness of guilt. The district court agreed that the

 8 flight testimony was prejudicial, but concluded that its probative value was not

 9 outweighed by prejudice. All parties agreed that mention of a separate murder case,

10 in which Defendant was implicated, in reference to the evidence of flight would be

11 extremely prejudicial, and the district court allowed testimony of the Mexico arrest

12 only so far as the State agreed to omit any mention of the other murder case. Defense

13 counsel confirmed to the district court that the State did not transgress this

14 proscription.

15   {13}   Admission of evidence is reviewed for an abuse of discretion. Apodaca, 1994-

16 NMSC-021, ¶ 23. The admission of evidence of other acts that are consistent with

17 consciousness of guilt must be done with care by the district court because of its

18 tendency to permit misuse by the jury or to be unduly prejudicial. State v. Ruiz, 1995-

19 NMCA-007, ¶ 12 119 N.M. 515, 892 P.2d 962 (holding that evidence of other acts is

20 admissible to prove consciousness of guilt under Rule 11-404(B) NMRA. However,

                                              9
 1 “[t]he fact that competent evidence may tend to prejudice [the] defendant is not

 2 grounds for exclusion of that evidence. The question is whether the probative value

 3 of the evidence was outweighed by its prejudicial effect.” State v. Hogervorst, 1977-

 4 NMCA-057, ¶ 46, 90 N.M. 580, 566 P.2d 828. Flight evidence, such as adopting an

 5 alias and fleeing to Mexico, is admissible to show consciousness of guilt. State v.

 6 Gibson, 1992-NMCA-017, ¶ 33, 113 N.M. 547, 828 P.2d 980. Similarly, absconding

 7 from supervision is evidence from which it is proper to infer consciousness of guilt.

 8 Id. ¶ 34 (“The jury could properly conclude that only the strongest of motives would

 9 have induced [the d]efendant to risk re-incarceration by breaching the conditions of

10 his parole.”).

11   {14}   This evidence could properly be used to create an inference of consciousness

12 of guilt, and we disagree with Defendant’s assertion that the district court’s ruling to

13 allow evidence of Defendant’s arrest in Mexico was against the logic and

14 circumstances of the case. Although this evidence was prejudicial, its probative value

15 was not outweighed by that prejudice. The district court and the State carefully limited

16 the testimony so as not to include any unfairly prejudicial information. Defendant’s

17 argument that the decision to admit the evidence was error because he fled not because

18 of the Martinez shooting, but because of another murder investigation, is

19 unpersuasive. In order to successfully argue that theory, Defendant would have had

20 to open the door to evidence concerning the other murder, which all parties agreed

                                              10
 1 would have been extremely prejudicial and against which Defendant vigorously

 2 argued during trial.

 3   {15}   Defendant also asserts that he was unfairly placed in an untenable position by

 4 having to forego cross-examination of the officer who arrested him in Mexico because

 5 he asserts cross-examination would have opened the door to testimony of another

 6 murder. We are unpersuaded by this argument. Defendant chose not to exercise his

 7 right to cross-examine the arresting officer and did so of his own volition. See State

 8 v. Gonzales, 1992-NMSC-003, ¶ 20, 113 N.M. 221, 824 P.2d 1023 (concluding that

 9 the defendant’s decision not to exercise his right to cross-examination was a trial

10 tactic, as he was not impeded in any way by the state) overruled on other grounds by

11 State v. Montoya, 2013-NMSC-020, 306 P.3d 426.The decision not to cross examine

12 does not negate a defendant’s right to present a defense. See State v. Ervin, 2008-

13 NMCA-016, ¶ 39, 143 N.M. 493, 177 P.3d 1067 (concluding that the defendant was

14 not deprived of his right to present a defense where he had “ample opportunity to

15 cross-examine [the witness,] . . . yet chose not to do so”); see also State v. Massengill,

16 1983-NMCA-001, ¶ 9, 99 N.M. 283, 657 P.2d 139 (stating that the defendant’s

17 decision not to cross-examine witness during preliminary hearing was a tactical

18 decision). He is bound by his tactical decision, and cannot assert it as error now. This

19 is particularly true in light of defense counsel’s refusal of the district court’s invitation

20 to make a proffer of the evidence he would try to elicit during cross-examination. He

                                                11
 1 similarly refused to attempt a cross-examination of the witness outside the presence

 2 of the jury to determine if it was possible to cross-examine the witness without

 3 broaching the subject of the other murder. We therefore conclude that the district

 4 court’s decision to admit evidence of Defendant’s arrest in Mexico was not error.

 5 3.       Other Post-Shooting Conduct

 6   {16}   We find Defendant’s assertion that the evidence of his post-shooting conduct

 7 is “irresolvably ambiguous” to be without merit. His argument for irresolvable

 8 ambiguity is hinged on the theory that flight can often coincide with innocence. While

 9 this is true, he also concedes that courts require more than evidence of flight to prove

10 guilt. This case contains just such evidence; Defendant’s flight from the scene of the

11 shooting is not the only evidence that gives rise to a permissible consciousness of guilt

12 inference. In addition to flight evidence, the State proffered evidence that Defendant

13 admitted to getting into a fight on the day Martinez was killed, that Defendant moved

14 to a remote location under an assumed name, and that Defendant absconded to

15 Mexico, again under an assumed name. We therefore reject Defendant’s irresolvable

16 ambiguity argument.

17   {17}   On the day after the shooting, Defendant asked his father-in-law for advice

18 about whether to turn himself in, revealing that he had been in a fight the night before

19 “and I won[.]” The State impeached testimony of Defendant’s father-in-law, in which

20 he claimed Defendant had not said anything about severely injuring someone during

                                              12
 1 the fight, using a prior statement given to an investigator in the case. The day after

 2 Defendant spoke with his father-in-law, Defendant moved out of his residence and

 3 visited his probation officer for the last time. After Defendant failed to appear at

 4 subsequent appointments, the probation officer issued a warrant for his arrest for

 5 absconding from supervision. Defendant rented a house two months later in a remote

 6 location using an assumed name. Five months after that, Defendant was arrested in

 7 Mexico while using another assumed name.

 8   {18}   The evidence supports the jury’s conclusion that Defendant killed Martinez

 9 without lawful justification, knowing his acts created a strong probability of death or

10 great bodily harm to Martinez. NMSA 1978, § 30-2-1 (1994); UJI 14-211 NMRA.

11 The State proffered evidence that Martinez and Defendant had an argument that

12 Martinez instigated, walked away from, and rejoined a few minutes later. The

13 evidence shows that only one shot was fired, that Defendant was standing somewhere

14 along the line representing the trajectory of the fatal bullet when that shot was fired,

15 and that a jury could properly infer Defendant’s consciousness of guilt from his post-

16 shooting behaviors. Defendant attacks the circumstantial nature of the State’s case by

17 pointing to the lack of testimony putting him in any precise location, putting a gun in

18 his hand, or indicating he pulled the trigger; in short, he argues that the evidence

19 should have been awarded less weight than the jury evidently gave it. These attacks

20 are not enough to overturn the conviction on appeal. See State v. Fuentes, 2010-

                                              13
 1 NMCA-027, ¶ 17, 147 N.M. 761, 228 P.3d 1181 (stating that attacking the credibility

 2 of witnesses and de-emphasizing evidence supporting the defendant’s guilt does “little

 3 to demonstrate that the evidence submitted at trial was insufficient to convict [the

 4 d]efendant of the offense charged[,]” and instead “highlights the all-important role of

 5 the jury”).

 6   {19}   In addition to evidence of motive, the incident, and consciousness of guilt, the

 7 jury also received evidence that Defendant was on probation for a felony and

 8 possessed a gun at the time of the shooting. Thus, we conclude that the circumstantial

 9 evidence the State proffered, viewed in a light most favorable to the verdict, was

10 sufficient to support the jury’s decision.

11 B.       Jury Instructions for Self-Defense and Manslaughter

12   {20}   Defendant asserts that the district court’s rejection of jury instructions on self-

13 defense and manslaughter was erroneous. Our standard of review is de novo. State v.

14 Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438.

15 1.       No Evidence Supported a Self-Defense Instruction

16   {21}   Giving a self-defense instruction must be justified by sufficient evidence on

17 every element of self-defense. State v. Rudolfo, 2008-NMSC-036, ¶ 17, 144 N.M. 305,

18 187 P.3d 170. The elements are that “(1) the defendant was put in fear by an apparent

19 danger of immediate death or great bodily harm, (2) the killing resulted from that fear,

20 and (3) the defendant acted reasonably when he or she killed.” Id. (internal quotation

                                                14
 1 marks and citation omitted). Reasonableness is judged by an objective standard,

 2 focusing on the hypothetical behavior of a reasonable person acting under the same

 3 circumstances as the defendant. Id. (citing State v. Coffin, 1999-NMSC-038, ¶ 15, 128

 4 N.M. 192, 991 P.2d 477). If reasonable minds could differ as to all elements of the

 5 defense, the instruction should be given. See State v. Branchal, 1984-NMCA-063, ¶

 6 8, 101 N.M. 498, 684 P.2d 1163. The circumstances at the time deadly force was used

 7 by the defendant, and not at some earlier point, are the facts relevant to deciding

 8 whether a defendant believed that deadly force was required. Rudolfo,

 9 2008-NMSC-036, ¶ 18. We do not search the record to find support for a party’s

10 arguments. State v. Soutar, 2012-NMCA-024, ¶ 39, 272 P.3d 154 (referencing rule

11 that appellate courts will not search the record where the defendant fails to provide

12 appropriate transcript references). We therefore address only the facts that, according

13 to Defendant, support those elements of self-defense.

14   {22}   Defendant first contends that he was put in fear by the unexpected arrival of

15 three men—Martinez, Contreras, and Prieto—who had been using drugs and who

16 were “apparently acting in concert.” Defendant asserts that he was “completely

17 vulnerable” when these men arrived, and in support of this assertion, points to the fact

18 that the altercation took place at night and that Defendant was laying underneath his

19 van when Martinez approached. Defendant’s argument that he feared these three

20 assailants hinges on all three men exhibiting hostility toward Defendant. Defendant

                                              15
 1 has not identified any evidence to indicate that Contreras or Prieto was exhibiting any

 2 aggression toward Defendant; only Martinez was being verbally aggressive towards

 3 Defendant. In fact, at the time that the fatal shot was fired, Contreras was in his truck

 4 and Prieto was returning to his vehicle. We look to the time of the shooting alone to

 5 determine if Defendant was in fear of immediate death or great bodily harm, Rudolfo,

 6 2008-NMSC-036, ¶ 18, and Martinez was alone in his verbal altercation with

 7 Defendant at the time the shot was fired. As such, Defendant’s multiple assailant

 8 theory fails.

 9   {23}   Defendant also argues that Prieto’s handing Martinez a phone “may have

10 appeared” to be Martinez arming himself and that Martinez’s statement about living

11 and dying as a “gangster” could have been viewed as an escalation from a verbal to

12 a physical altercation. In support of these assertions, Defendant points to State v.

13 Sandoval, 2011-NMSC-022, ¶ 19, 150 N.M. 224, 258 P.3d 1016, where our Supreme

14 Court found sufficient evidence to support a self-defense instruction as to a victim

15 who “looked as if he were searching for something” in the back of the car in which

16 he rode with two other assailants. Defendant asks us to liken the exchange of a cell

17 phone between Prieto and Martinez during a verbal altercation to the facts in

18 Sandoval. We decline to do so. In Sandoval, the man who appeared to be searching

19 for something was a passenger in a car; that car had driven the defendant’s car off the

20 road, and contained two individuals who engaged in an altercation involving gunfire

                                              16
 1 with the defendant, at least one of whom was pointing a gun at the defendant. Id. ¶¶ 5-

 2 6. Although the dispute in which the two men were embroiled had gone on for five

 3 years, Defendant does not point to any evidence suggesting that the dispute had ever

 4 resulted in violence. There is no evidence that any physical contact occurred

 5 previously between Martinez and Defendant. Defendant does not point us to any

 6 evidence that Martinez threatened Defendant with physical harm, or that the

 7 altercation escalated beyond a verbal exchange prior to the shooting.

 8   {24}   Defendant also correctly points out that he need not testify in order to make the

 9 showing of fear necessary for a self-defense instruction. He does, however, have to

10 present some evidence from which a jury could infer his fear. See State v. Duarte,

11 1996-NMCA-038, ¶ 7, 125 N.M. 553, 915 P.2d 309. As enumerated above, he failed

12 to do so. In fact, nothing but counsel’s arguments support the notion that Defendant

13 was in fear of Martinez. Defendant has not pointed us to anything in the record. There

14 is no evidence in the record that Martinez appeared to be armed or that Defendant

15 feared death or great bodily harm from Martinez. We therefore conclude that there

16 was no attack from Martinez that an objectively reasonable person, acting under the

17 same circumstances as Defendant, would believe required the use of deadly force.

18 2.       No Evidence Supported a Voluntary Manslaughter Instruction

19   {25}   Defendant asserts error in the district court’s refusal to issue an instruction on

20 voluntary manslaughter, asserting that the jury could conclude Defendant was in fear

                                                17
 1 of Martinez, but that he acted unreasonably in using deadly force to protect himself.

 2 This theory suffers from the same lack of evidence as the self-defense instruction. In

 3 order to be entitled to a voluntary manslaughter instruction, the defendant must be

 4 under the influence of “an uncontrollable fear of death or great bodily harm caused by

 5 the circumstances, but without the presence of all the ingredients necessary to excuse

 6 the act on the ground of self-defense.” State v. Melendez, 1982-NMSC-039, ¶ 9, 97

 7 N.M. 738, 643 P.2d 607 (internal quotation marks and citation omitted). Put another

 8 way, Defendant need not have acted reasonably when he killed, but he must have

 9 acted out of fear of death or great bodily harm. See Rudolfo, 2008-NMSC-036, ¶ 17.

10 As explained above, there was no evidence to support the conclusion that Defendant

11 acted out of fear. Defendant’s argument suffers from an utter lack of evidence, and we

12 affirm the district court’s denial of the tendered instruction.

13 II.      CONCLUSION

14   {26}   The State having conceded the invalidity of Defendant’s conviction for

15 tampering with evidence, we reverse that conviction and order that the charge be

16 vacated and dismissed. Defendant’s arguments concerning whether he was present at

17 Ms. Martinez’ deposition or the culling of jury members for cause is resolved in a

18 separate opinion filed herewith. Based on the foregoing, we conclude that Defendant’s

19 remaining convictions were supported by properly admitted evidence sufficient to

20 allow a jury to find him guilty beyond a reasonable doubt. There was no error in

                                              18
1 allowing evidence concerning Defendant’s arrest in Mexico. There was also no reason

2 to give jury instructions on self-defense or voluntary manslaughter. Finding no error

3 with regard to these arguments, we affirm the district court.

4   {27}   IT IS SO ORDERED.

5                                               _______________________________
6                                               RODERICK T. KENNEDY, Judge

7 WE CONCUR:


8 _________________________________
9 MICHAEL D. BUSTAMANTE, Judge



10 _________________________________
11 M. MONICA ZAMORA, Judge




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