 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                      NO. 29,264

 5 BRENDAN JAMES,

 6       Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
 8 Grant L. Foutz, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                             MEMORANDUM OPINION

17 KENNEDY, Judge.

18       Defendant is appealing from a district court judgment and sentence entered after

19 a jury found Defendant guilty of second degree murder. We issued a calendar notice

20 proposing to affirm, and Defendant has responded with a memorandum in opposition.

21 We affirm.
 1        Defendant continues to argue that the district court erred in refusing

 2 Defendant’s tendered jury instruction [RP 208] on voluntary manslaughter. A

 3 defendant is entitled to jury instructions on his theory of the case if there is evidence

 4 to support the instruction. See State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724,

 5 931 P.2d 69. “In order to obtain an instruction on a lesser included offense, [t]here

 6 must be some view of the evidence pursuant to which the lesser offense is the highest

 7 degree of crime committed, and that view must be reasonable.” State v. Brown, 1998-

 8 NMSC-037, ¶ 12, 126 N.M. 338, 969 P.2d 313 (alteration in original) (internal

 9 quotation marks and citation omitted).

10        The evidence presented in this case was that Defendant, Victim, and two other

11 men were driving around the Gallup area on the evening of the incident, smoking

12 marijuana and drinking beer. [MIO 1-2; DS 2] The shooting took place at the

13 apartment complex of a friend. [MIO 2-3] The memorandum in opposition describes

14 the shooting as follows: “As [Victim] came down the stairs of the apartment,

15 [Defendant] jumped from the rear passenger side of the car and ran toward [Victim]

16 suddenly pointing a gun at him and fired from a few inches away into his cheek area.”

17 [MIO 3] There was no indication that there had been any disagreements, fights, or

18 arguments amongst the four men. [MIO 2] Defendant testified that Victim always

19 carried a knife and was prone to blackouts and violence when he was under the

20 influence. [MIO 3] Defendant further testified that when he approached, Victim

21 grabbed Defendant’s shirt with his right hand and struck him on the forehead with his

22 left hand. [MIO 3]

                                               2
 1        In order to support a voluntary manslaughter instruction, the evidence would

 2 have to support a jury finding that Defendant had been sufficiently provoked. See UJI

 3 14-220 NMRA.        Sufficient provocation is defined as “any action, conduct or

 4 circumstances which arouse anger, rage, fear, sudden resentment, terror or other

 5 extreme emotions.” UJI 14-222 NMRA. “The provocation must be such as would

 6 affect the ability to reason and to cause a temporary loss of self control in an ordinary

 7 person of average disposition.” Id.

 8        Defendant relied on the testimony of Dr. Zumwalt to support sufficient

 9 provocation. Dr. Zumwalt testified that there was soot from the gun on Victim’s arm,

10 and that he could not say with any medical certainty whether Victim’s arm had been

11 raised in a defensive manner or an aggressive manner. [MIO 3; DS 3] Although there

12 is evidence (Defendant’s testimony and an inference from Zumwalt’s testimony) that

13 Victim might have struck Defendant with his hand, we do not believe that it would be

14 rational for a jury to determine that the acts of Victim constituted sufficient

15 provocation to be shot. Therefore, even if we rely on evidence that Victim was the

16 initial aggressor [MIO 8-9], it was not “such as would affect the ability to reason and

17 to cause a temporary loss of self control in an ordinary person of average disposition."

18 UJI 14-222. See State v. Stills, 1998-NMSC-009, ¶¶ 12, 40, 125 N.M. 66, 957 P.2d

19 51(evidence that the victim pushed the defendant and threatened to have him killed

20 was insufficient to require voluntary manslaughter instruction).

21        For the reasons set forth above, we affirm.



                                               3
1      IT IS SO ORDERED.

2                               ___________________________________
3                               RODERICK T. KENNEDY, Judge

4 WE CONCUR:



5 ___________________________
6 CYNTHIA A. FRY, Chief Judge



7 ___________________________
8 MICHAEL E. VIGIL, Judge




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