State v. Valencia

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number: 2

Filing Date: July 14, 2025 3

NO. S-1-SC-40141 4

STATE OF NEW MEXICO, 5

Plaintiff-Appellee, 6

v. 7

MARK R. VALENCIA, 8

Defendant-Appellant. 9

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 10

Abigail P. Aragon, District Judge 11 Bennett J. Baur, Chief Public Defender 12 Joelle N. Gonzales, Assistant Appellate Defender 13 Santa Fe, NM 14

for Appellant 15

Raúl Torrez, Attorney General 16

Van Snow, Acting Deputy Solicitor General 17 Albuquerque, NM 18

for Appellee19

1

OPINION 1

BACON, Justice. 2

{1} This is a capital appeal pursuant to Rule 12-102(A)(1) NMRA wherein Mark 3 Valencia (Defendant) raises four challenges. First, he argues his convictions for two 4 counts of first-degree murder (willful and deliberate), contrary to NMSA 1978, 5 Section 30-2-1(A)(1) (1994), and one count of attempt to commit first-degree 6 murder (willful and deliberate), contrary to NMSA 1978, Sections 30-28-1 (1963, 7 amended 2024) and 30-2-1(A)(1), must be reversed because the district court denied 8 his requested inability-to-form-intent (voluntary intoxication) jury instructions. We 9 hold Defendant was not entitled to his requested instructions because his proffered 10 instructions misstated the law, and thus affirm. Second, Defendant argues his 11 convictions for aggravated assault with a deadly weapon, contrary to NMSA 1978, 12 Section 30-3-2(A) (1963), and attempt to commit first-degree murder violated 13 double jeopardy. We hold double jeopardy was not violated, and affirm. Third, 14 Defendant argues his convictions for shooting at a dwelling or occupied building, 15 contrary to NMSA 1978, Section 30-3-8(A) (1993), and negligent use of a deadly 16 weapon, contrary to NMSA 1978, Section 30-7-4(A)(2) (1993), violated double 17 jeopardy. We again hold double jeopardy was not violated, and affirm. Fourth, 18 Defendant argues the district court lacked statutory authority to increase his basic 19

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sentence for attempt to commit first-degree murder with a three-year firearm 1 enhancement. We disagree, and affirm. We remand this case to the district court 2 solely to amend Defendant's 365-day sentence for negligent use of a deadly weapon, 3 a petty misdemeanor that may not carry a sentence of more than six months pursuant 4 to NMSA 1978, Section 31-19-1(B) (1984). 5

I. BACKGROUND 6

A. Facts 7

{2} During the evening of December 11, 2021, Defendant and his girlfriend, 8 murder-victim Eva Aragon (Aragon), went to hang out with Aragon's uncle, David 9 Sturgeon (Sturgeon), at Sturgeon's house in Pecos, New Mexico. Sturgeon and his 10 friend, murder-victim Steven Singer (Singer), were at the house drinking beers 11 before Defendant and Aragon arrived. Defendant and Aragon had also been drinking 12 prior to meeting up with Sturgeon and Singer. 13

{3} Once at the house, Defendant, Aragon, and Singer took shots of vodka, and 14 progressed to simply passing around the bottle. They finished one bottle and started 15 sharing a second. Around seven or eight o'clock, Singer gave Defendant a haircut, 16 which started an argument because Defendant was not happy with the result. Singer 17 and Defendant argued and pushed each other, and Defendant then retrieved a gun 18 from his vehicle. While Defendant was retrieving the gun, Sturgeon closed and 19

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locked the front door of the house. Defendant shot at the front door at least eight 1 times, eventually shot the lock, and opened the door. 2

{4} Singer and Aragon were standing just inside the door. Defendant shot Singer 3 in the head just below the left nostril, killing him. Aragon got down on the floor next 4 to Singer, and Defendant then shot Aragon between the eyes, killing her as well. 5

{5} Defendant pointed the gun at Sturgeon and said he would shoot him, too. 6 Sturgeon hid in a closet and called 911. Defendant walked around the house, and 7 repeatedly said he was going to find and shoot Sturgeon. Defendant "shot the whole 8 house up," with one bullet going into the closet where Sturgeon was hiding. 9

{6} Police were dispatched around 9:26 p.m. and arrived at the scene within 10 fifteen minutes. The scene was quiet when they arrived. They checked each vehicle 11 in front of the house for people, finding Defendant slumped over the steering wheel 12 in the driver's seat of Sturgeon's van. Defendant was not moving, so the police did 13 not know whether he was deceased or asleep. He had an unlit cigar or cigarette in 14 his hand, smelled of alcohol, and was not wearing shoes. Police woke Defendant, 15 but it took a while to get his attention. Defendant was put in a patrol car without 16 incident. While in the patrol car, he repeatedly hung his head and mumbled 17 incoherently to himself. 18

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{7} At approximately 2:00 a.m., agents questioned Defendant about what 1 happened. The agents noticed Defendant had slow speech, as well as bloodshot and 2 watery eyes. Defendant confessed to the shootings. He claimed he shot Singer 3 because Singer started "coming at him," and he shot Aragon because she got in the 4 way. Defendant denied threatening Sturgeon and also said he did not remember 5 firing any shots after shooting Singer. Also, he told the agents he had a lot to drink—6 half a fifth of vodka and two beers. Defendant was subsequently charged with, inter 7 alia, the murders of both Singer and Aragon. Additional facts will be provided in the 8 analysis sections below as relevant. 9

B. Procedural History 10

{8} In August 2023, Defendant was tried by a jury on two counts of first-degree 11 murder (willful and deliberate), attempt to commit first-degree murder (willful and 12 deliberate), aggravated assault with a deadly weapon, shooting at a dwelling or 13 occupied building, and negligent use of a deadly weapon. Defendant's theory of the 14 case with regards to both counts of first-degree murder and attempt to commit first-15 degree murder was that he was too intoxicated to form the requisite mental state—16 deliberate intention—required to commit the offenses. He requested a voluntary 17 intoxication jury instruction pursuant to UJI 14-5110 NMRA for both charges of 18 first-degree murder, and a like instruction pursuant to UJI 14-5111 NMRA for the 19

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charge of attempt to commit first-degree murder. The district court denied his 1 request, reasoning the instructions were not supported by the evidence. Defendant 2 was found guilty on all charges. The jury also found he "used" a firearm in the 3 commission of the first-degree murder of Aragon, the attempted first-degree murder 4 of Sturgeon, and the aggravated assault against Sturgeon, as well as while shooting 5 at a dwelling or occupied building. 6

{9} The district court imposed a sentence of life without possibility of parole for 7 each of the first-degree murder convictions; a nine-year basic sentence for the 8 attempt to commit first-degree murder conviction; and an eighteen-month sentence 9 for the shooting at a dwelling or occupied building conviction. The district court ran 10 all of those sentences consecutively. Pursuant to NMSA 1978, Section 31-18-16 11 (2020, amended 2022), the district court enhanced Defendant's attempt to commit 12 first-degree murder conviction with a three-year firearm enhancement, also run 13 consecutively; the district court did not enhance any of Defendant's other 14 convictions.¹Finally, the district court sentenced Defendant to serve eighteen 15 months for aggravated assault with a deadly weapon and 365 days for negligent use 16

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of a deadly weapon. These two sentences were to be served concurrently with other 1 sentences. 2

{10} Defendant timely appealed his convictions directly to this Court pursuant to 3 Rule 12-102(A)(1), and raises the following issues: 4

(1) whether the district court erred by denying Defendant's 5 voluntary intoxication jury instruction as it pertained to the 6 charges of first-degree murder (willful and deliberate) and 7 attempt to commit first-degree murder (willful and deliberate); 8

(2) whether his convictions for attempted murder and aggravated 9 assault violated double jeopardy; 10

(3) whether his convictions for shooting at a dwelling or occupied 11 building and negligent use of a deadly weapon violated double 12 jeopardy; 13

(4) whether the firearm enhancement was unlawful because "using" 14 a firearm in the commission of a noncapital felony was not, on 15 the date of the offense, enhanceable conduct under Section 31-16 18-16 (2020). 17

II. DISCUSSION 18

{11} We begin by addressing whether Defendant was improperly denied his 19 requested voluntary intoxication jury instructions. We conclude denial was not 20 improper because Defendant's proffered instructions misstated the law. 21 Consequently, we affirm Defendant's convictions for first-degree murder and 22 attempt to commit first-degree murder. Next, we address Defendant's first double 23 jeopardy challenge, holding his convictions for attempt to commit first-degree 24

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murder and aggravated assault did not violate double jeopardy. Then, we address 1 Defendant's second double jeopardy challenge, holding his convictions for shooting 2 at a dwelling or occupied building and negligent use of a deadly weapon did not 3 violate double jeopardy. Last, we address Defendant's argument that the firearm 4 enhancement constituted an unlawful sentence, holding that even though the 5 enhancement was in error, the error was not fundamental. 6

A. Voluntary Intoxication Jury Instructions 7

1. Standard of review 8

{12} There are two standards we employ to determine the outcome of this issue. 9 First, the standard of appellate review: "[t]he propriety of denying a jury instruction 10 is a mixed question of law and fact that we review de novo." State v. Swick, 2012-11 NMSC-018, ¶ 60, 279 P.3d 747 (internal quotation marks and citation omitted). 12 Second, because there is no dispute the issue was preserved, as Defendant timely 13 requested the instructions, argued for them during trial, and cited proper authority, 14 we review for reversible error. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 15 258, 34 P.3d 1134. 16

2. Analysis 17

{13} For the charges of first-degree murder, the jury had to find Defendant acted 18 with a specific "deliberate intention" to take away the lives of Singer and Aragon; 19

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for attempt to commit first-degree murder, the jury had to find Defendant acted with 1 the specific intent to commit the crime of first-degree murder, which in turn required 2 Defendant to have a deliberate intention to take away the life of Sturgeon. The jury 3 was given the following instruction pursuant to UJI 14-201 NMRA for both charges 4 of first-degree murder and the charge of attempt to commit first-degree murder: 5 A deliberate intention refers to the state of mind of the defendant. A 6 deliberate intention may be inferred from all of the facts and 7 circumstances of the killing. The word deliberate means arrived at or 8 determined upon as a result of careful thought and the weighing of the 9 consideration for and against the proposed course of action. A 10 calculated judgment and decision may be arrived at in a short period of 11 time. A mere unconsidered and rash impulse, even though it includes 12 an intent to kill, is not a deliberate intention to kill. To constitute a 13 deliberate killing, the slayer must weigh and consider the question of 14 killing and his reasons for and against such a choice. 15

{14} Defendant's sole defense at trial was that his intoxication impaired his ability 16 to form the deliberate intent required to be convicted of either first-degree murder or 17 attempt to commit first-degree murder. "The defense of inability to form specific 18 intent allows a defendant to avoid culpability for willful and deliberate murder 19 whenever he or she was unable to form the specific intent required to commit the 20 crime." State v. Boyett, 2008-NMSC-030, ¶ 27, 144 N.M. 184, 185 P.3d 355; see 21 also State v. Brown, 1996-NMSC-073, ¶ 22, 122 N.M. 724, 931 P.2d 69 (defining a 22

"specific-intent crime" as a crime "for which a statute expressly requires proof of 23 intent to do a further action or achieve a further consequence," while defining a 24

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general intent crime as one only requiring a "conscious wrongdoing" (internal 1 quotation marks and citations omitted)). The defense "applies in two situations: (1) 2 when the defendant was intoxicated from the use of alcohol or drugs and (2) when 3 the defendant suffered from a mental disease or disorder." Boyett, 2008-NMSC-030, 4 ¶ 27. Only the former is at issue in this case, informing the requested instructions for 5 first-degree murder and attempt to commit first-degree murder. 6

{15} To be entitled to a voluntary intoxication jury instruction, "the defendant must 7 present evidence that (1) he or she consumed intoxicants, (2) he or she was actually 8 intoxicated, and (3) the degree of intoxication interfered with his or her ability to 9 develop the requisite intent to commit the charged crime." State v. Arrendondo, 10 2012-NMSC-013, ¶ 43, 278 P.3d 517. "In deciding whether the instruction is proper, 11 the trial court must not weigh the evidence, but must simply determine whether such 12 evidence exists." State v. Privett, 1986-NMSC-025, ¶ 20, 104 N.M. 79, 717 P.2d 55. 13

"When considering a defendant's requested instructions, we view the evidence in 14 the light most favorable to the giving of the requested instructions." Boyett, 2008-15 NMSC-030, ¶ 12 (text only) (citation omitted).²16

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{16} Looking at the Arrendondo elements, the district court found there was 1 evidence to establish Defendant had consumed intoxicants and was actually 2 intoxicated. However, the district court found the evidence did not support the third 3 Arrendondo element regarding whether the degree of intoxication interfered with 4 Defendant's ability to form the requisite intent. We disagree. 5

a. The district court improperly weighed the evidence and failed to consider 6

the evidence in the light most favorable to giving the requested 7

instructions 8

{17} Prior to arriving at its conclusion that the evidence did not support the third 9 Arrendondo element, the district court articulated for the record the evidence it was 10 considering. Before listing the evidence, the district court stated, "the court is not 11 weighing the evidence, but the court must note the evidence." The district court then 12 proceeded to weigh the evidence by pitting facts tending to prove the third 13 Arrendondo element against facts tending to disprove the element: 14 The evidence before the [district] court is that there was vodka 15 consumed. It was shared by Mr. Singer, Ms. Aragon, and by 16

[Defendant]. There was some verbal, perhaps, altercation. At that time, 17 [Defendant] left the home on his own power. He entered his vehicle on 18 his own power. He located his weapon—the 9mm weapon, and he 19 obtained the weapon and the magazine. Although the court has no 20 evidence before it as to whether the weapon was already loaded or not, 21 clearly it had the magazine. He walked back to the home on his own 22 power. He shot the door approximately, I believe, eight to fifteen times 23 until the lock was broken on the door. He then entered the home—24 again, there is no evidence of stumbling—and shot Mr. Singer. He then 25 shot Ms. Aragon. . . . Defendant then walked back to his own vehicle 26

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and placed the weapon in his own vehicle. He then entered the van 1 belonging to Mr. Sturgeon on his own power. Upon arrest—although 2 there is evidence that his head was slumped over, and they did not know 3 whether he was dead or alive—he was able to crawl across the console 4 of the van on his own power. There was no evidence that he stumbled. 5 He was then placed in handcuffs. He walked on his own power to the 6 patrol vehicle. The evidence also shows that he carried on a 7 conversation with the patrol officer, almost immediate in time, 8 including a discussion of football teams. Specifically, it shows his 9 ability to articulate [his thoughts on] the [Dallas] Cowboys. There is 10 also no evidence that he vomited, which . . . might indicate extreme 11 intoxication. 12

Weighing evidence occurs when a court considers the degree to which evidence 13 proves or disproves a fact. This includes any determination about the persuasiveness 14 of the evidence when compared to the persuasiveness of other evidence. Weight of 15 the evidence, Black's Law Dictionary (12th ed. 2024) (defining "weight of the 16 evidence" as "[t]he persuasiveness of some evidence in comparison with other 17 evidence"). The district court's focus on Defendant's ability to move about "on his 18 own power," to make intelligent choices such as retrieving and then returning his 19 gun to his vehicle, his ability to "crawl" over the van's console, and his ability to 20 converse with police reveals the district court was weighing the evidence by 21 comparing evidence pro and con on the issue of whether Defendant's degree of 22 intoxication interfered with his ability to form the requisite intent. 23

{18} By weighing the evidence in this manner, the district court also failed to view 24 the evidence in the light most favorable to giving the instruction. To view evidence 25

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in the light most favorable to a certain outcome means a court must indulge all 1 reasonable inferences and resolve all conflicts in the evidence in favor of the 2 outcome. See State v. Kersey, 1995-NMSC-054, ¶ 11, 120 N.M. 517, 903 P.2d 828; 3 Light most favorable, Black's Law Dictionary (12th ed. 2024) (defining "light most 4 favorable" as "[t]he standard of scrutinizing or interpreting a verdict by accepting as 5 true all evidence and inferences that support it and disregarding all contrary evidence 6 and inferences"). Applied here, the district court should not have considered facts 7 tending to prove sobriety, such as Defendant's ability to move "on his own power" 8 and converse with police. Rather, the district court should have only considered 9 evidence tending to prove intoxication. 10

b. Evidence was presented showing that Defendant's degree of intoxication 11

interfered with his ability to form a deliberate intent to kill 12

{19} The trial record contained the following evidence relevant to the issue of 13 whether the degree of Defendant's intoxication interfered with his ability to form a 14 deliberate intent: 15

(1) Defendant had already been drinking before arriving at 16 Sturgeon's house; 17

(2) After arriving at Sturgeon's home, Defendant drank beer and 18 vodka; 19

(3) Defendant took shots of vodka; 20

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(4) After taking shots, Defendant and two others consumed the 1 vodka by passing around the bottle; 2

(5) Defendant and two others finished one bottle (a fifth, i.e., 3 approximately 750 ml); 4

(6) Defendant and two others passed around a second bottle; 5

(7) Defendant was drunk by the time the second bottle was opened; 6

(8) Defendant appeared to be as intoxicated as Aragon who, when 7 tested post-mortem, had a blood-alcohol level of .292; 8

(9) Defendant was found by police slumped over the steering wheel 9 of Sturgeon's van with an unlit cigar or cigarette and no shoes; 10

(10) When an officer looked into the van and found Defendant, she 11 could not tell if Defendant was deceased or asleep; 12

(11) It took "some time" for Defendant to comprehend that police 13 were waking him up after he fell asleep in the van; 14

(12) While in the back of the patrol car, Defendant had his head down 15 and was mumbling to himself; 16

(13) Defendant told officers he had drank "a lot . . . half a fifth of 17 vodka and probably two beers" over the course of three to four 18 hours; 19

(14) Defendant did not remember firing any other shots or remember 20 anything after shooting Singer. 21

{20} Viewing this evidence in the light most favorable to giving the instruction, 22 and refraining from weighing this evidence against countervailing evidence of 23 sobriety, these facts could have supported a conclusion that Defendant was 24

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intoxicated to a degree that interfered with his ability to form a deliberate intent to 1 kill. To begin, the evidence showed the quantity of alcohol consumed was 2 significant: at least half a bottle of vodka and two beers. This is relevant because a 3 juror could logically reason the more alcohol Defendant consumed, the more 4 intoxicated he would be, and a higher degree of intoxication increases the potential 5 the intoxication interfered with Defendant's ability to deliberate. Further, testimony 6 revealed Defendant was intoxicated to the same degree as Aragon, whose post-7 mortem BAC was .292. True, it would be speculation to conclude Defendant's BAC 8 was at a similar level because his level was not documented, but the importance of 9 this fact is that Defendant appeared like someone with a .292 BAC. 10

{21} Next, Defendant was found inside Sturgeon's van, slumped over the steering 11 wheel, unshod, holding an unlit cigar or cigarette. Defendant did not leave the scene, 12 which could lead a reasonable juror to conclude his mental faculties were seriously 13 impaired. After all, reason and experience inform us that culpable people leave crime 14 scenes, not that they sleep at them. See, e.g., State v. Trujillo, 1981-NMSC-023, ¶ 15 31, 95 N.M. 535, 624 P.2d 44 (holding that evidence of flight after a crime is 16 committed is admissible to prove consciousness of guilt). Being slumped over the 17 wheel could indicate to a reasonable juror that Defendant was intoxicated to the 18 degree he was able to fall asleep in what could be seen as an extremely 19

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uncomfortable position. Additionally, because he was "slumped over the wheel," a 1 reasonable mind could conclude Defendant did not purposefully put himself in that 2 position to go to sleep, but rather passed out as a result of his intoxicated state. 3 Passing out, or falling asleep unwilfully, could reasonably correlate with a 4 heightened degree of intoxication and a seriously impaired mind. The unlit cigarette 5 could further support this theory because Defendant presumably would not hold a 6 cigarette just to go to sleep with it in his hand. Rather, a reasonable inference could 7 be that he removed a cigarette from its pack but passed out before he could light it. 8 Lastly, the fact Defendant was not wearing shoes could be reasonably interpreted as 9 his inability to think cogently or plan effectively because, typically, people put on 10 shoes when they leave the house, especially if they enter a vehicle intending to drive. 11 Lastly, Defendant said he "did not remember firing any other shots or remember 12 anything after shooting [Singer]." If believed, this could mean that Defendant was 13 intoxicated to such a degree that he could not remember anything after killing Singer, 14 which would mean he did not even remember killing Aragon. A logical inference 15 could be that at the time of the killings he was so intoxicated that he later had no 16 memory of major aspects of the events. 17

{22} In arriving at the conclusion that evidence showed the degree of intoxication 18 interfered with Defendant's ability to form a deliberate intent, we acknowledge there 19

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was significant evidence of sobriety. For example, Defendant told officers he 1

"thought about [going home]" but returned to the trailer with his gun because he did 2 not want to leave Aragon there. Also, as the district court acknowledged, he moved 3 about on his own power and was cogent enough to retrieve the firearm from his 4 vehicle and converse with police. Further, there was not only evidence of sobriety 5 but contradictory statements by Defendant that could readily cause any factfinder to 6 discredit his theory of the case. For example, Defendant said he did not remember 7 anything after shooting Singer, which would mean he did not remember shooting 8 Aragon, but also said he only shot Aragon because she "got in the way." Clearly, 9 these two versions of the facts cannot coexist. However, all the evidence of sobriety, 10 along with evidence cutting against Defendant's credibility, should not have been 11 considered by the district court because evidence must not be weighed and must be 12 viewed in the light most favorable to giving the instruction. 13

{23} Applying these principles, evidence supported giving Defendant's requested 14 voluntary intoxication instructions. 15

3. Quantum of proof 16

{24} We take this opportunity to clarify the quantum of evidence necessary to 17 warrant the grant of an instruction under Arrendondo. The three-part test from 18 Arrendondo does not state the quantum of evidence required to prove each element, 19

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but rather only requires the defendant to "present evidence" supporting each 1 element. 2012-NMSC-013, ¶ 43. Without a descriptor, "evidence" suggests an any-2 evidence standard. This is improper, and warrants clarification. 3

{25} To determine the requisite quantum of evidence required to support giving a 4 voluntary intoxication instruction, it is helpful to recognize the category of defenses 5 into which voluntary intoxication falls. See 1 Paul H. Robinson, Criminal Law 6 Defenses § 21 (June 2025 Update) (defining five categories of defenses: failure of 7 proof, offense modification, justifications, excuses, and nonexculpatory). Voluntary 8 intoxication is properly categorized as a failure of proof defense because intoxication 9 negates an element of the charge, namely, the intent element. Brown, 1996-NMSC-10 073, ¶ 21 ("Like mistake and mental illness, a state of intoxication may also negate 11 a required offense element, and when raised in this context, is a failure of proof 12 defense." (internal quotation marks and citation omitted)). 13

{26} With a failure of proof defense, a defendant has no burden to produce evidence 14 because the burden of production is constitutionally on the prosecution to introduce 15 sufficient evidence supporting each element of the crime. See In re Winship, 397 16 U.S. 358, 364 (1970) ("Due process commands that no [person] shall lose [their] 17 liberty unless the Government has borne the burden of convincing the factfinder of 18 [their] guilt." (text only) (citation omitted)); but see Patterson v. New York, 432 U.S. 19

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197, 205-07 (1977) (holding it was not unconstitutional to place the burden of 1 production on the defendant to prove the affirmative defense of "extreme emotional 2 disturbance" by preponderance of the evidence when extreme emotional disturbance 3 did not negate an element of the charged crime). However, the prosecution is not 4 required to prove any crime beyond all possible doubt, only beyond reasonable 5 doubt. UJI 14-5060 NMRA. Consequently, if a defendant seeks to negate an element 6 of an offense based on a particular theory of the case, a defendant may have to 7 present evidence to support that theory if supporting evidence has not been revealed 8 during the prosecution's case-in-chief. Otherwise, any argument in support of a 9 defendant's theory—and any acceptance of the theory by the trier of fact—would 10 require speculation. This limited burden of production does not upset the 11 constitutional requirement that the prosecution prove each element beyond a 12 reasonable doubt, but rather reflects the tenet of evidence law and trial practice that 13 litigants may only argue—and jurors must only consider—evidenced facts and 14 reasonable inferences therefrom. See UJI 14-6006 NMRA (instructing the jury that 15

"[y]our verdict should not be based on speculation, guess or conjecture"). 16

{27} Just as a defendant must point to evidence supporting their theory of the case 17 if they intend to argue that theory to the trier of fact, a defendant also must point to 18 evidence in order to warrant a jury instruction on their theory. 1 Robinson, supra, § 19

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4(a)(2) (explaining that "[t]he defendant may have to bear a burden of production if 1 he seeks to inject a particular theory for or seeks an instruction suggesting a 2 particular theory for the absence of the required element, such as a special instruction 3 on mental illness negating an element"). And so, there must be some amount of 4 evidence presented during trial in support of a defendant's theory of the case in order 5 to warrant a jury instruction on that theory—but how much? For voluntary 6 intoxication instructions, our precedent prior to Arrendondo varied in articulating 7 the requisite amount of evidence. See, e.g., State v. Williams, 1966-NMSC-145, ¶ 8 28, 76 N.M. 578, 417 P.2d 62 ("[T]he evidence as to intoxication must be 9 substantial."); Privett, 1986-NMSC-025, ¶ 20 ("[T]he record must contain some 10 evidence showing or tending to show that defendant [was intoxicated]."); State v. 11 Begay, 1998-NMSC-029, ¶ 38, 125 N.M. 541, 964 P.2d 102 ("Where the record 12 contains evidence which reasonably tends to show that defendant's claimed 13 intoxication rendered him incapable of acting in a purposeful way, an instruction . . . 14 is warranted." (internal quotation marks and citation omitted)); State v. Garcia, 15 2011-NMSC-003, ¶ 35, 149 N.M. 185, 246 P.3d 1057 ("[T]here must be evidence 16 supporting the conclusion that the defendant was actually intoxicated."). 17

{28} Looking outside our voluntary intoxication jurisprudence, precedent 18 involving when defendants are entitled to a jury instruction on other failure of proof 19

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defenses reveals a common standard. Regarding a defendant's requested self-1 defense instruction, this Court has held we must "'determine whether there is 2 sufficient evidence to raise a reasonable doubt about self-defense.'" State v. Baroz, 3 2017-NMSC-030, ¶ 13, 404 P.3d 769 (quoting State v. Gaines, 2001-NMSC-036, ¶ 4 4, 131 N.M. 347, 36 P.3d 438). Regarding a defendant's lawfulness instruction for 5 a battery charge, this Court has applied the same standard, holding that to warrant a 6 lawfulness instruction for battery, there must be "'sufficient evidence to raise a 7 reasonable doubt about [the unlawfulness of [the] [d]efendant's conduct].'" State v. 8 Smith, 2021-NMSC-025, ¶ 12, 491 P.3d 748 (first and sixth brackets in original) 9 (quoting Gaines, 2001-NMSC-036, ¶ 4). 10

{29} In accordance with Baroz and Smith, we conclude a defendant seeking a jury 11 instruction on voluntary intoxication must point to evidence in the trial record 12 sufficient to raise a reasonable doubt about whether they were—as a result of their 13 intoxicated state—capable of forming the requisite intent. This is synonymous with 14 saying the evidence must be sufficient for a reasonable juror to find in favor of a 15 defendant's theory of the case. See Gaines, 2001-NMSC-036, ¶ 6 ("'As a general 16 proposition a defendant is entitled to an instruction as to any recognized defense for 17 which there exists evidence sufficient for a reasonable jury to find in his favor.'" 18 (quoting Mathews v. United States, 485 U.S. 58, 63 (1988))). Applied to the 19

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Arrendondo elements individually, a district court should engage in an inquiry to 1 determine whether sufficient evidence has been presented so that a reasonable juror 2 could find the defendant (1) consumed alcohol, (2) was actually intoxicated, and (3) 3 the degree of intoxication interfered with the defendant's ability to form the requisite 4 intent. If each element is supported by enough evidence so that a reasonable juror 5 could find each element to be true—that is, sufficient evidence—then a juror could 6 reasonably find the defendant's theory of the case to be true and, consequently, could 7 have reasonable doubt about whether the defendant was capable of forming the 8 requisite intent. 9

{30} When determining how much evidence is sufficient to raise a reasonable 10 doubt—or sufficient to find in favor of a defendant's theory of the case—differences 11 of opinion have attended the question whether "slight" or "any" evidence is enough. 12 Baroz and Smith reveal these differences. In Baroz, this Court concluded "[w]here 13 the evidence is so slight as to be incapable of raising a reasonable doubt in the jury's 14 mind on whether a defendant . . . [acted] in self-defense, the instruction should not 15 be given." 2017-NMSC-030, ¶ 19 (internal quotation marks and citation omitted). 16 In Smith, however, this Court went on to explain that evidence is sufficient to warrant 17

"[a]n instruction on the essential element of unlawfulness . . . if there is any evidence, 18 even slight evidence, supporting a defendant's corresponding theory of the case." 19

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2021-NMSC-025, ¶ 12 (emphasis added) (brackets, internal quotation marks, and 1 citation omitted). 2

{31} We clarify that slight or any evidence supporting a defendant's theory of the 3 case does not necessarily mean the evidence qualifies as sufficient to raise a 4 reasonable doubt. The reason for this is that doubt should be reasonable. Doubt 5 based on speculation or mere remote possibilities drawn from a scant amount of 6 evidence would be unreasonable. True, the question of whether a reasonable doubt 7 exists will always be a matter solely within the province of the jury—but whether to 8 instruct on a particular theory is the province of a court, and a court is under no 9 obligation to give a defendant's requested instruction on a particular theory of the 10 case when a finding in favor of that theory could only be based on speculation. 11

{32} In sum, when determining whether to give a voluntary intoxication 12 instruction, a court should determine whether there is sufficient evidence in the 13 record to raise a reasonable doubt about whether a defendant was—as a result of 14 their intoxicated state—capable of forming the requisite intent. In answering this 15 question, a court must determine if the evidence could lead a reasonable juror to 16 believe the defendant (1) consumed alcohol, (2) was actually intoxicated, and (3) the 17 degree of intoxication interfered with his or her ability to form the requisite intent. 18 Any evidence is not necessarily sufficient evidence, and if necessary conclusions 19

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could only be drawn by buttressing the evidenced facts with surmise and conjecture, 1 the instruction should not be given. Cf. State v. Tovar, 1982-NMSC-119, ¶ 8, 98 2 N.M. 655, 651 P.2d 1299 (stating in the context of sufficiency review, "[a] 3 conviction cannot stand if the evidence must be buttressed by surmise and 4 conjecture, rather than logical inference in order to support the conviction" (text 5 only)). 6

4. The district court's denial of Defendant's proposed voluntary 7

intoxication jury instructions is not reversible error 8

{33} "When evidence at trial supports the giving of an instruction on a defendant's 9 theory of the case, failure to so instruct is reversible error." Brown, 1996-NMSC-10 073, ¶ 34. However, "[a] trial court's refusal to submit a jury instruction is not error 11 if the submission of the instruction would mislead the jury by promoting a 12 misstatement of the law." State v. Nieto, 2000-NMSC-031, ¶ 17, 129 N.M. 688, 12 13 P.3d 442; State v. Salazar, 1997-NMSC-044, ¶ 57, 123 N.M. 778, 945 P.2d 996 ("It 14 is not error for a trial court to refuse instructions which are inaccurate."); State v. 15 Casteneda, 1982-NMCA-046, ¶ 33, 97 N.M. 670, 642 P.2d 1129 ("In order to 16 premise error on the refusal of the trial court to instruct, the defendant must tender a 17 legally correct statement of law."). In this case, Defendant's proposed voluntary 18 intoxication instructions misstated the law by omitting language required by the 19

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relevant uniform jury instructions. We recognize that these omissions were highly 1 favorable to Defendant. 2

{34} First, for both charges of first-degree murder, Defendant requested the 3 following jury instruction based on UJI 14-5110: 4

An issue you must consider in this case is whether the defendant was 5 intoxicated from [the] use of alcohol. You must determine whether or 6 not the defendant was intoxicated from the use of alcohol and if so, 7 what effect this had on the defendant's ability to form the deliberate 8 intent to take away the lives of others. 9

The burden is on the state to prove beyond a reasonable doubt that the 10 defendant was capable of forming a deliberate intention to take the lives 11 of others. 12

If you have a reasonable doubt as to whether the defendant was capable 13 of forming a deliberate intent to take away the lives of others, you must 14 find the defendant not guilty of a first-degree murder by deliberate 15 killing. 16

Importantly, UJI 14-5110 includes the following use note: 17 If this instruction is given, add to the essential elements instruction for 18 the offense charged, "The defendant was not intoxicated from use of 19 alcohol . . . at the time the offense was committed to the extent of being 20 incapable of forming an intent to take away the life of another. 21 Id. use note 1 (brackets and parentheses omitted). In his proposed instruction 22 to the district court, Defendant added the following element to the essential 23 elements instruction for both charges of first-degree murder: "The defendant 24 was not intoxicated from use of alcohol." Clearly, Defendant's requested 25

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instruction omitted the requirement that the jury find—beyond a reasonable 1 doubt—that he was not intoxicated to the extent of being incapable of forming 2 an intent to take away the life of another. His proposed instruction would have 3 required the jury to acquit on both first-degree murder charges simply if they 4 had a reasonable doubt whether he was sober. This would have constituted a 5 blatantly erroneous legal standard, and the judge was therefore under no 6 obligation to give Defendant's proposed instruction even though it was 7 supported by sufficient evidence. 8

{35} Second, Defendant requested the following instruction based on UJI 14-5111 9 for the charge of attempt to commit first-degree murder: 10 An issue you must consider in this case is whether the defendant was 11 intoxicated from the use of alcohol. You must determine whether or not 12 the defendant was intoxicated from the use of alcohol and, if so, what 13 effect this had on the defendant's ability to form the intent to attempt to 14 commit the crime of first[-]degree murder (willful or deliberate). 15 Intent to attempt to commit the crime of first[-]degree murder (willful 16 or deliberate) is not an element of the crime of first[-]degree murder 17 (willful and deliberate). 18

The burden is on the state to prove beyond a reasonable doubt that the 19 defendant was capable of forming an intention to attempt to commit the 20 crime of first[-]degree murder (willful or deliberate). If you have a 21 reasonable doubt as to whether the defendant was capable of forming 22 such an intention, you must find the defendant not guilty of attempt to 23 commit the crime of first[-]degree murder (willful or deliberate). 24 Critically, and like UJI 14-5110, UJI 14-5111 contains the following Use Note: 25

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If this instruction is given, add to the essential elements instruction for 1 the offense charged, "The defendant was not intoxicated from use of 2 alcohol . . . at the time the offense was committed to the extent of being 3 incapable of forming an intention to [commit first-degree murder]." 4 UJI 14-5111 use note 1 (brackets and parentheses omitted). However, in his 5 proposed instruction to the district court, Defendant added the following element to 6 the essential elements instruction for attempt to commit first-degree murder: "The 7 defendant was not intoxicated from use of alcohol." Like the added element for the 8 first-degree murder charges, Defendant omitted the requirement that the jury find—9 beyond a reasonable doubt—that he was not intoxicated to the extent of being 10 incapable of forming an intention to commit first-degree murder. And again, 11 Defendant's proposed instruction would have required the jury to acquit on the 12 attempt to commit first-degree murder charge simply if they had a reasonable doubt 13 whether he was sober. This would have been an erroneous standard, and Defendant's 14 proposed instruction should not have been presented to the jury even though it was 15 supported by sufficient evidence. 16

{36} In sum, the district court's denial of Defendant's voluntary intoxication 17 instructions is not reversible error because Defendant did not propose accurate 18 instructions to the court. The instructions were not just inaccurate—they were blatant 19 misstatements of the law highly favorable to Defendant. Accordingly, we affirm 20

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Defendant's convictions for first-degree murder and attempt to commit first-degree 1 murder. 2

B. Double Jeopardy 3

{37} Defendant contends his convictions for attempt to commit first-degree murder 4 and aggravated assault violated double jeopardy, and also claims his convictions for 5 shooting at a dwelling or occupied building and negligent use of a deadly weapon 6 violated double jeopardy. We conclude double jeopardy was not violated and affirm 7 all four convictions. 8

1. Standard of review 9

{38} "A double jeopardy challenge presents a question of constitutional law, which 10 we review de novo." State v. Torres, 2018-NMSC-013, ¶ 17, 413 P.3d 467. 11

2. Analysis 12

{39} Under the United States and New Mexico Constitutions, no person shall be 13

"twice put in jeopardy" for the same offense. U.S. Const. amend. V; N.M. Const. 14 art. II, § 15. "The double jeopardy clause protects against (1) a second prosecution 15 for the same offense after acquittal, (2) a second prosecution for the same offense 16 after conviction, and (3) multiple punishments for the same offense." State v. 17 Begaye, 2023-NMSC-015, ¶ 12, 533 P.3d 1057 (internal quotation marks and 18 citation omitted). "[M]ultiple punishment cases [come to this Court] in two ways." 19

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Id. "First, there are double description cases in which a single act results in multiple 1 charges under different criminal statutes. Second, there are unit of prosecution cases 2 in which an individual is convicted of multiple violations of the same criminal 3 statute." Id. (text only) (citation omitted). Here, both double jeopardy issues present 4 double-description cases because Defendant argues he was convicted multiple times 5 under different criminal statutes for the same act. 6

{40} When faced with a double-description challenge, we follow the two-part test 7 adopted in Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. 8 Begaye, 2023-NMSC-015, ¶ 13. "First, we assess whether the conduct underlying 9 the offenses is unitary, that is, whether the same conduct violates both statutes. 10 Second, we examine the statutes at issue to determine whether the legislature 11 intended to create separately punishable offenses." Id. (text only) (quoting Swafford, 12 1991-NMSC-043, ¶ 25). Only if the conduct is unitary and the legislature did not 13 intend to create separately punishable offenses will the double jeopardy clause 14 prohibit multiple punishment in the same trial. Id. 15

a. Unitary conduct overview 16

{41} To determine whether the conduct was unitary, we ask whether the conduct 17 underlying both convictions is sufficiently distinct as to time, place, or action. Id. ¶ 18

14. "The conduct question depends to a large degree on the elements of the charged 19

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offenses and the facts presented at trial." Id. ¶ 20 (internal quotation marks and 1 citation omitted). To determine the elements of the charged offenses, we look to the 2 jury instructions presented at trial. Cf. State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 3 409 (stating that when a reviewing court determines whether sufficient evidence 4 supports each element of a charged offense, "the jury instructions become the law 5 of the case" (text only) (citation omitted)). When the legal theory is still unclear 6 based on the elements of the charged offenses and facts presented at trial, we may 7 also review opening statements and closing arguments to establish whether the same 8 evidence supported a defendant's convictions under both statutes. Begaye, 2023-9 NMSC-015, ¶ 18. For both double jeopardy issues, we conclude the conduct was not 10 unitary. We address each in turn. 11

b. The conduct underlying Defendant's convictions for aggravated assault 12

and attempt to commit first-degree murder was not unitary 13

{42} For the first double jeopardy issue, Defendant argues, and the State concedes, 14 the conduct constituting both aggravated assault and attempt to commit first-degree 15 murder was unitary. We disagree. 16

{43} For the charge of aggravated assault, the prosecution pursued an "attempted 17 battery" theory. Under this theory, and according to the jury instructions, the jury 18 had to find Defendant "intended to commit the crime of battery against David 19 Sturgeon by shooting him," and "began to do an act which constituted a substantial 20

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part of the battery but failed to commit the battery." "Substantial part" was not 1 further defined by the jury instructions, but in closing argument the prosecutor said 2 the aggravated assault was when "[Defendant] pointed the gun at [Sturgeon]."³For 3 attempted murder, the jury had to find that, with the intent to commit first-degree 4 murder against Sturgeon, Defendant "began to do an act which constituted a 5 substantial part" of the crime but failed to complete it. "Substantial part" was not 6 further defined by the jury instructions, but in closing arguments the prosecutor said, 7

"the attempted murder is when [Defendant] starts putting the bullets in the walls and 8 he's searching for [Sturgeon]." So, according to the prosecution's closing argument, 9 the conduct constituting aggravated assault was Defendant pointing the gun at 10 Sturgeon, and the conduct constituting attempted murder was when Defendant 11 started (1) putting bullets in the walls and (2) searching for Sturgeon. 12

{44} In his briefing, Defendant recognized the prosecutor said in closing argument 13 that the aggravated assault was when Defendant pointed the gun at Sturgeon. 14 Defendant contends, however, this theory of aggravated assault was "belied by the 15

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jury instruction which required shooting at [Sturgeon]." The State agreed in its 1 briefing, and said, "the same conduct of shooting at Sturgeon but missing formed 2 the factual basis for both crimes." 3

{45} Upon our own review of the record, the jury instruction on aggravated assault 4 did not contradict the theory that pointing the gun at Sturgeon constituted the 5 aggravated assault. Defendant claims the jury instruction for aggravated assault 6 required a finding Defendant "shot at" Sturgeon. However, the jury instruction did 7 not require shooting at Sturgeon. Rather, it only required the jury to find Defendant 8

"intended to commit the crime of battery against David Sturgeon by shooting him." 9 Defendant misreads the jury instruction as requiring a finding of actual shooting, but 10 it only requires an intent to shoot. Then, the instruction requires an act constituting 11 a "substantial part" of the battery. Per the prosecutor's closing argument, the 12 aggravated assault occurred when Defendant pointed the gun at Sturgeon. The 13 prosecutor did not label this act a "substantial part" of the battery, but when taken in 14 conjunction with the jury instruction, it was the only possible act that could have 15 constituted the "substantial part." 16

{46} So, the question for this Court is whether pointing the loaded gun at Sturgeon 17 (aggravated assault) and putting bullets in the walls and searching for Sturgeon 18 (attempt to commit first-degree murder) constituted unitary conduct. We conclude 19

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that in this case, no, pointing a gun at Sturgeon and then putting bullets in the walls 1 and searching for Sturgeon were not unitary conduct because they were sufficiently 2 distinct actions that occurred sequentially. Because the conduct was not unitary, we 3 need not analyze whether the legislature intended multiple punishments. Double 4 jeopardy was not violated, and we affirm Defendant's convictions for aggravated 5 assault and attempt to commit first-degree murder. 6

c. The conduct underlying Defendant's convictions for shooting at a 7

dwelling or occupied building and negligent use of a deadly weapon was 8

not unitary 9

{47} Defendant argues the conduct underlying both shooting at a dwelling or 10 occupied building and negligent use of a deadly weapon was unitary "because [he] 11 was carrying a firearm while intoxicated when he shot at a dwelling or occupied 12 building." The State counters that the conduct was not unitary because "carrying a 13 gun without discharging it while drunk is different from shooting at a home knowing 14 that there are people inside." We agree with the State that the conduct was not 15 unitary. In arriving at this conclusion, we underscore Begaye's direction that the 16 conduct question depends to a large degree on the elements of the charged offenses 17 and the facts presented at trial. 18

{48} According to the jury instructions, for the charge of shooting at a dwelling or 19 occupied building, the prosecution had to prove Defendant (1) willfully shot at a 20

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dwelling or occupied building, and (2) knew the building was a dwelling or 1 occupied. For negligent use of a deadly weapon, the prosecution had to prove 2 Defendant carried a firearm while under the influence of alcohol. While the elements 3 for each charge both involve a firearm, they are otherwise distinct. 4

{49} Additionally, by the facts of the case, Defendant's "negligent use of a firearm" 5 was complete the moment he grabbed the firearm out of the car, but he only 6 completed shooting at a dwelling or occupied building after he pulled the trigger on 7 the gun and sent the first of at least eight bullets into Sturgeon's front door. Further, 8 Defendant's "negligent use of a firearm" continued after he shot the front door 9 because he was carrying his gun while inside Sturgeon's house. True, while 10 Defendant was shooting at the front door he was also negligently using a firearm 11 because he was carrying his gun while intoxicated, but overlapping conduct does not 12 make the conduct unitary. Only if conduct were to overlap to the point where the 13 acts were without "sufficient indicia of distinctness" would such conduct be unitary. 14 Begaye, 2023-NMSC-015, ¶ 20 (internal quotation marks and citation omitted). 15 Here, that was not the case because instances of Defendant carrying his gun while 16 intoxicated occurred distinctly both before and after he shot at Sturgeon's front door. 17

{50} Thus, based on the elements of the charged offenses and the facts presented 18 at trial, the conduct was not unitary. Because the conduct was not unitary, double 19

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jeopardy was not violated, and we need not analyze whether the Legislature intended 1 multiple punishments. Defendant's convictions for shooting at a dwelling or 2 occupied building and negligent use of a deadly weapon are affirmed. 3

C. Firearm Enhancement 4

1. Factual overview 5

{51} This incident occurred December 11, 2021. At that time, the pertinent part of 6 Section 31-18-16 (2020) read as follows: 7

A. When a separate finding of fact by the court or jury shows that a 8 firearm was brandished in the commission of a noncapital felony, the 9 basic sentence of imprisonment prescribed for the offense in Section 10 31-18-15 NMSA 1978 shall be increased by three years. 11

. . . 12

D. As used in this section, "brandished" means displaying or 13 making a firearm known to another person while the firearm is present 14 on the person of the offending party with intent to intimidate or injure 15 a person. 16

Id. (emphasis added). 17

{52} However, at trial the jury was given the following jury instruction, which 18 followed UJI 14-6013 NMRA (2021): 19

If you find the defendant guilty of second degree murder, attempt to 20 commit a felony, to wit: first[-]degree murder (willful and deliberate), 21 attempt to commit a felony, to wit: second[-]degree murder, aggravated 22 assault with a deadly weapon or shooting at a dwelling or occupied 23 building, then you must determine if the crimes were committed while 24 the defendant used a firearm and report your determination. You must 25

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complete the special form to indicate your finding. With respect to any 1 crime, for you to make a finding of "yes," the state must prove to your 2 satisfaction beyond a reasonable doubt that crime was committed while 3 the defendant used a firearm. 4

See id. (emphasis added) (setting forth an instruction on reaching a special verdict 5 for use of a firearm). 6

{53} Clearly, the UJI had not been updated to reflect the 2020 legislative change in 7 the firearm enhancement statute, which changed enhanceable conduct from "use" to 8

"brandish." Compare Section 31-18-16 (1993), with Section 31-18-16 (2020). The 9 jury returned four special verdict forms finding "a firearm was used in the 10 commission of" the first-degree murder of Aragon⁴, the attempted first-degree 11 murder of Sturgeon, the aggravated assault against Sturgeon, and while shooting at 12 a dwelling or occupied building. Despite the jury's finding that a firearm was used 13 in all three of the noncapital felonies committed by Defendant, the district court only 14 enhanced Defendant's sentence for attempt to commit first-degree murder. Because 15 the district court only applied the enhancement to the sentence for attempt to commit 16 first-degree murder, we limit our analysis of this issue accordingly. 17

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2. The error on the jury instruction and special verdict form does not 1

implicate a jurisdictional issue 2

{54} As a preliminary matter, we address Defendant's argument that the district 3 court lacked subject matter jurisdiction to impose an enhanced sentence. Defendant 4 argues that because the district court's power to sentence is derived exclusively from 5 statute, the district court had no statutory authority to impose the firearm 6 enhancement because the jury did not make a finding that Defendant "brandished" 7 a firearm during the commission of the attempted first-degree murder as required by 8 Section 31-18-16(A) (2020). Thus, so the argument goes, the district court did not 9 have subject matter jurisdiction to impose the enhanced sentence. 10

{55} We recognize that a court's sentencing power "is derived exclusively from 11 statute," State v. Martinez, 1998-NMSC-023, ¶ 12, 126 N.M. 39, 966 P.2d 747, and 12 that "a court's sentencing power properly is considered part of its subject matter 13 jurisdiction." State v. Tafoya, 2010-NMSC-019, ¶ 7, 148 N.M. 391, 237 P.3d 693. 14 Further, in many situations, and as our Court of Appeals has concluded, "[a] claim 15 that a sentence is illegal and unauthorized by statute is jurisdictional." State v. 16 Wyman, 2008-NMCA-113, ¶ 2, 144 N.M. 701, 191 P.3d 559. 17

{56} However, this Court has also held that an omitted element in a jury instruction 18 does not implicate a jurisdictional issue. See State v. Orosco, 1992-NMSC-006, ¶ 7, 19

113 N.M. 780, 833 P.2d 1146. In arguing that an omitted element in a jury instruction 20

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invokes a court's jurisdiction, the reasoning goes that (1) a court only has authority 1 to impose a sentence by statute, (2) jury instructions list the elements as required by 2 the statute, (3) an omitted element means the jury did not make a finding on it, (4) a 3 lack of a jury finding means the statutory elements are unmet, and therefore (5) the 4 court is without authority—that is, "jurisdiction"—to impose a sentence. See State 5

v. Southerland, 1983-NMCA-131, ¶ 9, 100 N.M. 591, 673 P.2d 1324. In Orosco, we 6 rejected this argument. 1992-NMSC-006, ¶ 7. There, we clarified that 7

"'jurisdictional error' should be confined to instances in which the court was not 8 competent to act," id., and "by failing to instruct on an element of an offense, the 9 trial court cannot really be said to have lost its competence to act in the matter." Id. 10 ¶ 8. "Rather, the deficiency in the instructions constitutes error, and it is the task of 11 an appellate court to determine whether the error so undermined the reliability of the 12 conviction or prejudiced the defendant's rights as to require reversal." Id. 13

{57} Defendant's argument is therefore answered by Orosco. That this case 14 involves a sentencing factor rather than an element of a charged offense is 15 inconsequential. See Apprendi v. New Jersey, 530 U.S. 466, 478 (2000) ("Any 16 possible distinction between an 'element' of a felony offense and a 'sentencing 17 factor' was unknown to the practice of criminal indictment, trial by jury, and 18 judgment by court as it existed during the years surrounding our Nation's founding." 19

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(footnote omitted)). Additionally, we ascribe no significance to the fact that this case 1 involves errors on a jury instruction and a special verdict form. Therefore, we 2 conclude the error on the instruction and special verdict form is not jurisdictional, 3 and automatic reversal is inappropriate. Instead, the deficiency in the instruction and 4 special verdict form is an issue of instructional error, and we apply our rules and 5 principles of error analysis accordingly. 6

3. Standard of review 7

{58} Defendant did not object to the instruction and special verdict form at trial. 8 Consequently, this issue was not preserved, see Rule 12-321(A) NMRA, and so we 9 review for fundamental error. State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 10

92 P.3d 633 (holding that unpreserved error in a jury instruction only warrants 11 review for fundamental error). 12

4. The instruction and special verdict form for the firearm enhancement 13

were erroneous 14

{59} In reviewing for fundamental error, we begin by asking "whether a reasonable 15 juror would have been confused or misdirected by the instruction." State v. Lucero, 16 2017-NMSC-008, ¶ 27, 389 P.3d 1039 (internal quotation marks and citation 17 omitted). Jury instructions cause confusion or misdirection when, "through omission 18 or misstatement," they do not provide "an accurate rendition of the relevant law." 19 Benally, 2001-NMSC-033, ¶ 12. 20

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{60} Here, the firearm enhancement instruction and special verdict form did not 1 give an accurate rendition of the factual finding required by law. "Brandished" is 2 statutorily defined as "displaying or making a firearm known to another person while 3 the firearm is present on the person of the offending party with intent to intimidate 4 or injure a person." Section 31-18-16(D) (2020). This definition renders 5

"brandished" narrower than the term "used," which means "to put into action or 6 service: avail oneself of: employ." Use, Merriam-Webster Online Dictionary, 7 https://www.merriam-webster.com/dictionary/use (last visited July 9, 2025); see 8 State v. Johnson, 2009-NMSC-049, ¶ 10, 147 N.M. 177, 218 P.3d 863 (stating that 9 when words are not otherwise defined in a statute, we "giv[e] those words their 10 ordinary meaning absent clear and express legislative intention to the contrary" 11 (internal quotation marks and citation omitted)); see also State v. Trujillo, 1978-12 NMCA-041, ¶ 14, 91 N.M. 641, 578 P.2d 342 (holding that "'use' should be broadly 13 construed"). Therefore, a person can use a firearm without brandishing it, even 14 though a firearm could not be brandished without being used. See Trujillo, 1978-15 NMCA-041, ¶ 13 ("The display of [a] gun in a menacing manner . . . is certainly 16 'use' of the gun in the commonly accepted definition of that term." (internal 17 quotation marks and citation omitted)). Because "brandished" is narrower than 18

"used" and its specific statutory definition was not given to the jury in this case, we 19

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conclude a reasonable juror would have been misdirected by the instruction. 1 Therefore, the instruction and special verdict form were erroneous. 2

5. The error was not fundamental 3

{61} Because we conclude the instruction and special verdict form were erroneous, 4 we move to step two, asking whether the error was fundamental. Fundamental error 5 exists if it would "shock the [court's] conscience" to affirm the conviction, either 6 because of "the obvious innocence of the defendant," or because "a mistake in the 7 process makes a conviction fundamentally unfair notwithstanding the apparent guilt 8 of the accused." Barber, 2004-NMSC-019, ¶¶ 14, 16, 17. The scope of this analysis 9 is broad: we "review the entire record, placing the jury instructions in the context of 10 the individual facts and circumstances of the case, to determine whether the 11 [d]efendant's conviction was the result of a plain miscarriage of justice." Id. ¶ 19 12 (internal quotation marks and citation omitted). 13

{62} The "failure to instruct the jury on an essential element . . . ordinarily is 14 fundamental error." Id. ¶ 20; see Apprendi, 530 U.S. at 490 (holding that "any fact 15 that increases the penalty for a crime beyond the prescribed statutory maximum must 16 be submitted to a jury, and proved beyond a reasonable doubt"). However, not every 17 failure to instruct on an essential element amounts to fundamental error. Orosco, 18 1992-NMSC-006, ¶ 17. There are two exceptions. First, failure to instruct on an 19

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essential element is not fundamental error when the jury implicitly finds that the 1 state has proven the omitted element. Barber, 2004-NMSC-019, ¶ 29 ("Error is not 2 fundamental when the jury could not have reached its verdict without also finding 3 the element omitted from the instructions."). This occurs when the jury makes a 4 specific finding that—in the context of the facts and circumstances of the case—5 necessarily includes or amounts to a finding of the omitted element. See Orosco, 6 1992-NMSC-006, ¶ 19. Second, there is no fundamental error when the omitted 7 element is "undisputed . . . and indisputable," such that any rational jury would have 8 found the element to be true beyond a reasonable doubt if properly instructed. State 9

v. Padilla, 1997-NMSC-022, ¶ 8, 123 N.M. 216, 937 P.2d 492. This second 10 exception is narrow and will support affirmance only when proof of the omitted 11 element is so strong that no rational jury could have failed to find that element and, 12 even if the evidence is that strong, the missing element was not disputed or in issue 13 at trial. See Orosco, 1992-NMSC-006, ¶ 10 (explaining that the court will look 14 beyond the defendant's trial strategy to determine whether "any evidence or 15 suggestion in the facts" could have put the omitted element in issue). 16

{63} Here, the first exception applies, and so we need not reach the second. Given 17 the elements of attempt to commit first-degree murder and the supporting facts 18 introduced at trial, the jury implicitly found Defendant brandished a firearm when it 19

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found him guilty of attempt to commit first-degree murder. To prove attempt to 1 commit first-degree murder, the jury had to find beyond a reasonable doubt (1) 2 Defendant intended to commit the crime of first-degree murder, and (2) he began to 3 do an act which constituted a substantial part of the first-degree murder but failed to 4 commit it. Per the prosecutor's closing argument, and as discussed in Part B, 5 paragraph 43, supra, the attempt to commit first-degree murder occurred when 6 Defendant "starts putting the bullets in the walls, and searching for [Sturgeon]." The 7 evidence supporting this charge was Sturgeon's testimony that Defendant "shot the 8 whole house up" and in the course of doing so "shot at" Sturgeon once while he was 9 in the closet. Additionally, while Sturgeon was hiding in the closet, Defendant said, 10

"I'm going to find you, too; I'll shoot you, too." And so, based on the elements of 11 the charge and the facts used to prove them, the jury could not have found Defendant 12 guilty of attempt to commit first-degree murder without also finding he brandished 13 a firearm: Defendant made his firearm known to Sturgeon because Sturgeon himself 14 testified to the fact that Defendant was shooting within the house and shot at 15 Sturgeon once while he was in the closet; Defendant had the firearm on his person 16 while squeezing its trigger because there is no other plausible way to fire a weapon; 17 and Defendant harbored the intent to injure Sturgeon because the jury found 18 Defendant had the intent to commit first-degree murder, which requires a deliberate 19

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