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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. 32,332

 5 BRITNEE BLAIR,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Jane Shuler Gray, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Acting Chief Public Defender
13 B. Douglas Wood III, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 SUTIN, Judge.
 1        Defendant appeals from the district court’s judgment and sentence, convicting

 2 her after a bench trial for voluntary manslaughter and embezzlement of a motor

 3 vehicle. Unpersuaded that Defendant demonstrated error, we issued a notice of

 4 proposed summary disposition proposing to affirm.            Defendant has filed a

 5 memorandum in opposition to our notice. We have considered Defendant’s response

 6 and remain unpersuaded. Therefore, we affirm.

 7        Defendant raises two issues on appeal. First, she argues that the district court

 8 erred by denying her a continuance of the trial after a defense witness, Arnold Cline,

 9 failed to appear. [DS 6; MIO 6-8] Second, pursuant to the demands of State v.

10 Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M.

11 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant challenges the sufficiency

12 of the State’s evidence to support her conviction for voluntary manslaughter and the

13 sufficiency of the State’s evidence to rebut her theory of self-defense. [DS 7; MIO 8-

14 12]

15 Denial of a Continuance

16        In response to our notice, Defendant states that, given the inconsistent

17 statements Mr. Cline made during police interviews, she needed Mr. Cline’s live

18 testimony to verify that Mr. Tiller had antagonized Defendant and attempted to

19 sexually batter and harm her in Mr. Cline’s presence. [MIO 5] Defendant also states


                                              2
 1 that defense counsel stipulated with the State to substitute the recordings of Mr.

 2 Cline’s police interviews for his in-person testimony. [MIO 4]

 3        We believe that Defendant has waived any argument that the recordings were

 4 insufficient by the defense’s stipulation to use those recordings. The New Mexico

 5 Supreme Court has held that where a defendant acquiesces in the admission of an

 6 unavailable witness’s prior statements, it constitutes a voluntary abandonment of the

 7 right to examine the witness and a waiver of the issue on appeal. See State v. Campos,

 8 1996-NMSC-043, ¶ 47, 122 N.M. 148, 921 P.2d 1266. The Court went on to say that

 9 “[t]he doctrine of fundamental error cannot be invoked to remedy the defendant’s own

10 invited mistakes.” Id.

11        We also note that although Defendant does not provide us with the exact

12 statements of Mr. Cline that she wanted to present at trial or direct us to the statements

13 in the record, it appears to us that Defendant, nevertheless, received the benefit of

14 those exculpatory statements Mr. Cline made to police. The district court found that

15 Mr. Tiller had sufficiently provoked Defendant to raise a reasonable doubt that

16 Defendant committed murder. [MIO 5] As indicated in our notice of proposed

17 summary disposition, self-defense requires the presence of an “immediate danger of

18 death or great bodily harm” that causes the defendant actual fear and elicits a reaction

19 from the defendant that a reasonable person would have had under the circumstances.


                                               3
 1 See UJI 14-5171 NMRA. Mr. Cline did not witness the killing of Mr. Tiller, and

 2 Defendant gives us no indication that his in-person testimony would have clarified

 3 whether Mr. Tiller placed Defendant in fear of an immediate danger of death or great

 4 bodily harm or whether a reasonable person would have acted as she did. [RP 8-19]

 5 At best, witness statements that appear in the record support the district court’s finding

 6 that there was sufficient provocation to mitigate murder to a manslaughter conviction.

 7 [Id.] Based on the foregoing, we hold that Defendant waived any continuance that

 8 might have permitted Mr. Cline’s in-person testimony and that she nevertheless

 9 received any benefit that she would have gotten by his availability at trial.

10 Sufficiency of the Evidence

11        As indicated earlier, self-defense requires proof of the following beyond a

12 reasonable doubt.

13               1.    There was an appearance of immediate danger of death or
14        great bodily harm to the defendant as a result of __________________;
15        and

16             2.   The defendant was in fact put in fear by the apparent danger
17        of immediate death or great bodily harm and killed
18        __________________ (name of victim) because of that fear; and

19              3.   A reasonable person in the same circumstances as the
20        defendant would have acted as the defendant did.

21 Id. (use notes omitted).



                                               4
 1        In response to our notice, Defendant provides a more thorough recitation of the

 2 facts. Those facts, however, viewed in the light most favorable to the verdict do not

 3 support Defendant’s theory that she acted in self-defense. See State v. Cunningham,

 4 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (stating that on appeal we “view

 5 the evidence in the light most favorable to the guilty verdict, indulging all reasonable

 6 inferences[,] and resolving all conflicts in the evidence in favor of the verdict”).

 7 “Contrary evidence supporting acquittal does not provide a basis for reversal because

 8 the [fact-finder] is free to reject [the d]efendant’s version of the facts.” State v. Rojo,

 9 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We agree with the State’s

10 theory that it is reasonable to infer that Defendant would not have repeatedly exposed

11 herself to Mr. Tiller’s presence or allowed him to remain in her house while she was

12 alone if she truly were afraid that he posed a threat of imminent death or great bodily

13 harm. In light of the standards articulated, we are persuaded that the State’s evidence

14 created a reasonable doubt as to whether Mr. Tiller placed Defendant in fear of

15 immediate danger of death or great bodily harm and whether a reasonable person

16 would have acted as Defendant did under the circumstances. We therefore affirm her

17 conviction for voluntary manslaughter.

18 Conclusion




                                                5
1       For the reasons stated in this Opinion and in our notice, we affirm the district

2 court’s judgment and sentence.



3       IT IS SO ORDERED.


4                                        __________________________________
5                                        JONATHAN B. SUTIN, Judge


6 WE CONCUR:


7 _______________________________
8 CYNTHIA A. FRY, Judge


 9 _______________________________
10 RODERICK T. KENNEDY, Judge




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