State v. Deleon

Opinion

This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Filing Date: June 29, 2017 3 STATE OF NEW MEXICO, 4 Plaintiff-Appellee, 5 v. NO. S-1-SC-34808 6 ENRIQUE DELEON, 7 Defendant-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 9 Teddy L. Hartley, District Judge

10 Bennett J. Baur, Chief Public Defender 11 J.K. Theodosia Johnson, Assistant Appellate Defender 12 Santa Fe, NM

13 for Appellant

14 Hector H. Balderas, Attorney General 15 Elizabeth Ashton, Assistant Attorney General 16 Albuquerque, NM

17 for Appellee 1 DECISION 2 MAES, Justice. 3 {1} Enrique Deleon (Defendant) murdered Joe Valero (Joe) and his girlfriend 4 Guadalupe Castaneda (Guadalupe) in their backyard. Their four-month-old son Gino 5 and Guadalupe’s five-year-old daughter Renee were inside a nearby vehicle at the 6 time of the shooting. Defendant was convicted of two counts of willful and deliberate 7 first-degree murder and two counts of abuse of a child (endangerment). See NMSA 8 1978, § 30-2-1(A)(1); NMSA 1978, § 30-6-1(D)(1). The district court sentenced 9 Defendant to a term of life imprisonment for each of the murder charges and six 10 years’ imprisonment for both child abuse convictions and ran all sentences 11 concurrently. 12 {2} In his direct appeal, Defendant raises four issues. We affirm his convictions 13 of first-degree murder but reverse the convictions of child abuse. Because Defendant 14 raises no questions of law that New Mexico precedent does not already sufficiently 15 address, we issue this nonprecedential decision pursuant to Rule 12-405(B)(1) 16 NMRA. 17 I. FACTS AND PROCEDURAL HISTORY 18 {3} During the afternoon of September 13, 2011, Joe and Guadalupe had a cookout 19 at their home on Prince Street in Clovis. Their four-month-old son Gino and 20 Guadalupe’s five-year-old daughter Renee were also present. Attending the cookout 21 were Joe’s brother Frank Valero (Frank), Frank’s ex-girlfriend Elizabeth Fain 22 (Elizabeth), and their son Xavier.

1 {4} Defendant, his girlfriend Shauna Perry (Shauna), and Shauna’s son Malachi 2 Perry (Malachi) lived behind Joe and Guadalupe. Joe and Guadalupe invited Shauna 3 and Defendant to the cookout. Shauna was the first to show up at the cookout, and 4 Defendant arrived later. This was the first time Joe and Defendant had met. 5 Defendant, Joe, and Frank left the cookout to get beer. They first stopped at Joe’s 6 sister’s house to get money for beer, and then all three men drove to a local 7 convenience store to buy an eighteen-pack of Budweiser. Sometime after the three 8 men returned to the cookout, Joe and Defendant got into an argument. It is not clear 9 what the origin of the argument was, but testimony from Frank and Shauna indicates 10 Joe and Defendant were discussing gang affiliations and tattoos. 11 {5} Joe became angry and punched Defendant in the face, and Defendant fell to the 12 ground. Shauna and Guadalupe intervened to stop the fight, and eventually 13 Defendant got back on his feet. While Guadalupe was trying to help, Defendant 14 “shrugged [Guadalupe] off and hit her with his elbow” and said, “[B]itches should 15 know their place.” Joe punched Defendant again, and it appeared Defendant was 16 knocked unconscious. 17 {6} Shauna testified she couldn’t wake Defendant, so she dragged him back to their 18 home. Defendant soon regained consciousness, and Shauna urged Defendant to go 19 to the hospital, but Defendant refused. Defendant noticed he was bleeding from the 20 back of his head, and he went to the bathroom to clean up. Defendant then entered 21 the bedroom, opened the gun safe, and removed some guns and a clip from the gun

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1 safe. Shauna continued to urge Defendant to go to the hospital and stood in the 2 doorway to prevent Defendant from exiting the room and to prevent her children from 3 entering the room. Defendant tried to load a magazine into an AR-15 rifle but it did 4 not fit, so he threw the rifle and magazine on the bed. Eventually Defendant told 5 Shauna, “It’s not meant to be; it’s not worth it,” threw the rifle and magazine onto the 6 bed, and exited the bedroom. Shauna placed the guns back in the safe. Shauna 7 begged him not to go back outside. Defendant then exited the house though the 8 kitchen door, and Shauna followed Defendant as he walked to the fence in the 9 backyard. 10 {7} Shauna testified she did not see Defendant leave the room with a gun. 11 However, Malachi testified he saw Defendant get a handgun from the safe and load 12 it with bullets. Malachi also testified Defendant put the gun in a holster on his belt. 13 {8} Meanwhile, because of the altercation, Joe and Guadalupe decided to leave 14 their house, and they put their two children inside the vehicle. Frank told Joe he was 15 going home and left by foot down an alley with Elizabeth and his son Xavier. 16 {9} When Defendant and Shauna returned to Joe’s house, Guadalupe and Joe were 17 putting things in the vehicle. Shauna testified that Defendant started to apologize to 18 Joe and Guadalupe. When Joe saw Defendant had a gun he said, “Oh, you have a gun 19 now?” and rushed toward Defendant, jumping a small chicken wire fence separating 20 the two men. Defendant drew the gun from his holster and shot Joe three or four 21 times and Guadalupe once. Shauna testified that it appeared that Joe had something

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1 in his hands as he rushed Defendant, although she was not sure what it was, and she 2 was afraid for Defendant. Two photos admitted into evidence at trial show that Joe 3 was holding keys. 4 {10} Shauna took the gun from Defendant and ran into her home. Shauna attempted 5 to put the gun back in the safe, but Defendant told her to put the gun where the police 6 could find it, and she put it on the couch in the living room. Defendant then asked 7 Shauna to take her rings off and hit him so it would “look like self-defense.” Shauna 8 testified at trial that Guadalupe told her about Joe’s violent character and that he 9 became more violent when intoxicated. 10 {11} Frank and Elizabeth heard the gunshots, and Frank ran back to the yard with 11 Elizabeth following. Frank saw Guadalupe and Joe on the ground and went first to 12 check on Joe. Frank realized he couldn’t help Joe and then went to check on 13 Guadalupe. Guadalupe told Frank, “[H]e shot me.” Elizabeth pushed her son Xavier 14 through the window of Joe’s home so that he could unlock the front door. Frank told 15 Elizabeth to call 911. 16 {12} Edward Sanchez (Edward) lived nearby and he also heard the gunshots. He 17 stayed inside his house for his own safety. Frank went to Edward’s house to elicit his 18 help, and Edward went with Frank to check on Joe. As they were walking toward 19 Joe’s house, Frank wanted to look for Defendant, but Edward was able to convince 20 Frank they needed to check on Joe and Guadalupe. They returned to the scene, 21 Edward checked Joe for a pulse, and Joe did not have a pulse. At this point,

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1 Defendant returned and asked Edward, “[W]hat happened?” and “Dog, is he okay?” 2 Edward said, “No, dog, you killed him.” Then Frank proceeded to jump the fence and 3 chase Defendant down and beat him. When the police arrived, Frank had Defendant 4 on the ground beating his head. 5 {13} Malachi testified that Defendant spoke to him before going back outside and 6 told him to stay inside. After Defendant left the house, Malachi went to the bathroom 7 window and watched Defendant shoot Joe and Guadalupe. Malachi saw Guadalupe 8 standing behind Joe at the time, and she was also shot. 9 {14} Joe was pronounced dead at the scene. Defendant and Guadalupe were taken 10 to the hospital. Guadalupe died at the hospital the next day. 11 {15} Defendant was treated by Dr. Carol Marquez, an emergency room physician, 12 and Nurse Kim Bender. Both testified Defendant had a three-centimeter laceration 13 on the back of his head that required seven staples. Defendant received a CT scan of 14 his head, face, and C-spine, which came back normal. Dr. Marquez also testified she 15 did not see any internal head injuries on the scan. Despite the laceration, Dr. 16 Marquez did not find anything in the tests that caused her to believe Defendant had 17 any type of internal head injury or trauma. Dr. Marquez testified that Defendant 18 received a score of 15—the highest possible score—on the Glasgow Coma Scale. 19 Defendant’s blood was drawn, tested, and showed a blood-alcohol content (BAC) of 20 .175. Dr. Marquez testified Defendant was intoxicated but he was stable, alert, and 21 she was not concerned about his intoxication. Defendant’s speech was not slurred,

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1 he knew the year, his name, and that he was in a hospital in Clovis. Defendant was 2 able to dress himself in scrubs, and he walked out of the hospital without any 3 assistance. Both Dr. Marquez and Nurse Bender also testified that Defendant did not 4 remember what happened, but neither ascribed his lack of memory to his being 5 intoxicated. Defendant was discharged at 3:40 a.m. the next day. 6 {16} Dr. Ian Paul, a forensic pathologist with the Office of the Medical Investigator, 7 testified that Joe had four gunshot wounds, but one was probably caused by a bullet 8 going through his arm and then entering his torso and lodging in his back. Dr. Paul 9 also testified that there was no gunpowder residue on Joe’s clothing, so the distance 10 from the gun to Joe was likely greater than two or three feet. 11 {17} Deputy Sandy Loomis (Loomis) testified at trial as an expert in crime scene 12 reconstruction. Loomis’s expert testimony was that Joe was moving away from 13 Defendant when the first shot was fired. As to Guadalupe, Loomis testified that 14 based on the trajectory of bullets found in the house, Defendant would have had to 15 swing the gun after firing at Joe to shoot Guadalupe. Five shell casings were found 16 in the yard. Days later, Frank found a shell casing in the vehicle where Gino and 17 Renee were when the shooting occurred; however, no damage was found in or on the 18 vehicle. 19 {18} Defendant was convicted on both counts of first-degree murder and both counts 20 of child abuse. The district court sentenced Defendant to a term of life imprisonment 21 for each of the first-degree murder charges (willful and deliberate) and six years’

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1 imprisonment for both child abuse charges. See § 30-2-1(A)(1); § 30-6-1(D)(1). 2 Defendant appeals directly to this Court in accordance with the New Mexico 3 Constitution. See N.M. Const. art. VI, § 2 (“Appeals from a judgment of the district 4 court imposing a sentence of death or life imprisonment shall be taken directly to the 5 supreme court.”). 6 {19} Defendant raises four issues: (1) the district court erred in not giving an 7 instruction on the inability to form a specific intent due to intoxication, (2) the district 8 court erred in not giving an instruction on self-defense, (3) the jury was improperly 9 prevented from hearing about Joe’s reputation as a violent drunk, and (4) there was 10 insufficient evidence to support first-degree murder of Guadalupe and child 11 endangerment of the two children. 12 II. DISCUSSION 13 A. Jury Instructions 14 1. Standard of Review 15 {20} “The propriety of jury instructions given or denied is a mixed question of law 16 and fact.” State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. We 17 review mixed questions of law and fact de novo. Id. A defendant is allowed “an 18 instruction on a theory of the case where the evidence supports the theory.” Id. ¶ 50. 19 In considering a defendant’s proposed instruction, “[this Court] view[s] the evidence 20 in the light most favorable to the giving of the requested instruction[].” State v. 21 Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 (citation omitted).

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1 2. The District Court Did Not Err When It Denied an Instruction on the 2 Inability to Form a Specific Intent Due to Intoxication

3 {21} Defendant argues that because evidence of his blood alcohol level (.175) exists 4 in the record and he was extremely drunk, he was entitled to the jury instruction on 5 voluntary intoxication so that the jury could consider how alcohol impaired his ability 6 to reason and deliberate. The State first argues that Defendant has not preserved this 7 issue. However, if this Court finds that the issue was preserved, the State then argues 8 that Defendant was not entitled to a voluntary intoxication instruction because the 9 evidence did not support the instruction and because his theory of the case was based 10 on self-defense and not on voluntary intoxication. 11 {22} We first address the preservation issue raised by the State. The State argues 12 Defendant did not preserve the issue because he failed to object when the district 13 judge refused the intoxication defense instruction. At the conclusion of the State’s 14 case, Defendant tendered an instruction on intoxication and the inability to form the 15 deliberate intention to take away the life of another that followed our Uniform Jury 16 Instruction 14-5110. See UJI 14-5110 NMRA. At the end of the conference 17 discussing the jury instructions, defense counsel requested that all instructions be 18 given to the jury. The district court ruled that any tendered instructions that were 19 inconsistent with the court’s ruling were denied and wrote “denied” and his initials 20 on the proffered instructions. 21 {23} “Ordinarily a defendant may not base a claim of error on instructions he or she

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1 requested or to which he or she made no objection.” State v. Sandoval, 2011-NMSC- 2 022, ¶ 14, 150 N.M. 224, 258 P.3d 1016 (citation omitted). However, there are 3 several cases holding that an oral request for a correct instruction may suffice for the 4 purposes of preservation. See State v. Jernigan, 2006-NMSC-003, ¶ 10, 139 N.M. 5 1, 127 P.3d 537; State v. Akers, 2010-NMCA-103, ¶ 21, 149 N.M. 53, 243 P.3d 757; 6 State v. Hill, 2001-NMCA-094, ¶ 7, 131 N.M. 195, 34 P.3d 139. In Jernigan, this 7 Court stated the purpose of the preservation requirement is to “alert the trial court to 8 the defendant’s argument.” 2006-NMSC-003, ¶ 10. 9 {24} Although defense counsel did not specifically present argument to the district 10 court as to why the intoxication instruction should be given, the district judge must 11 have known defense counsel was requesting it because he wrote “denied” on the 12 tendered instruction. Accordingly, this issue was preserved. Our review is de novo 13 whether there was evidence to support an instruction on intoxication as a defense. 14 State v. Romero, 1998-NMCA-057, ¶ 22, 125 N.M. 161, 958 P.2d 119. 15 {25} To be entitled to a voluntary intoxication instruction, a “defendant must present 16 evidence that (1) he or she consumed intoxicants, (2) he or she was actually 17 intoxicated, and (3) the degree of intoxication interfered with his or her ability to 18 develop the requisite intent to commit the charged crime.” State v. Arrendondo, 19 2012-NMSC-013, ¶ 43, 278 P.3d 517. “Merely demonstrating that a defendant 20 consumed alcohol or other intoxicants is inadequate.” State v. Garcia, 2011-NMSC- 21 003, ¶ 35, 149 N.M. 185, 246 P.3d 1057. “There must be evidence supporting the

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1 conclusion that the defendant was actually intoxicated.” Id. ¶ 35. In viewing the 2 evidence of intoxication, “the trial court must not weigh the evidence, but must 3 simply determine whether such evidence exists.” State v. Privett, 1986-NMSC-025, 4 ¶ 20, 104 N.M. 79, 717 P.2d 55. 5 {26} Citing Privett, Defendant argues that because Privett had a similar blood 6 alcohol level (.18) to him and the Privett court stated no expert testimony regarding 7 intoxication is required, this Court should find the district judge erred in not allowing 8 the instruction. However, in that case there was more evidence than Privett’s BAC. 9 The jury also heard testimony regarding Privett’s long-term alcoholism, and a sheriff 10 testified that Privett “had a strong odor of alcohol on his breath and appeared 11 ‘strongly intoxicated.’ ” 1986-NMSC-025, ¶ 11. Testimony was also presented that 12 Privett’s “conduct and emotional responses in the presence of witnesses . . . ranged 13 from inappropriate to bizarre.” Id. ¶ 16. Our holding was that to entitle defendant to 14 a voluntary intoxication instruction, the record must contain evidence that defendant 15 “consumed an intoxicant and the intoxicant affected his mental state at or near the 16 time of the crime.” Id. ¶ 20. 17 {27} That was not the case here. The only evidence presented concerning 18 Defendant’s intoxication was that he had a relatively high BAC (.175) when tested 19 at the hospital. There was no testimony that Defendant displayed any of the typical 20 signs of intoxication such as slurred speech, unsteadiness, or the odor of alcohol on 21 his breath. Moreover, the testimony showed that both before and after the shooting,

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1 Defendant had the presence of mind to clean his head wound, go to his gun safe and 2 load a handgun, speak to his girlfriend and son, and ask his girlfriend to punch him 3 after the shooting so it looked like self-defense. While Dr. Marquez testified 4 Defendant was intoxicated, she had no concerns about his intoxication. And both Dr. 5 Marquez and Nurse Bender also testified that Defendant did not remember what 6 happened, but neither ascribed his lack of memory to his being intoxicated. 7 {28} Because there was insufficient evidence to support the argument that Defendant 8 was intoxicated to such a degree that he was unable to form the intent necessary to 9 commit first-degree murder, Defendant was not entitled to an instruction on voluntary 10 intoxication. Accordingly, the district judge did not err when it denied Defendant’s 11 tendered instruction on the inability to form a specific intent due to intoxication.

12 3. The District Court Did Not Err When It Denied an Instruction on Self- 13 Defense

14 {29} Defendant proffered jury instructions on self-defense and defense of another. 15 See UJI 14-5171 NMRA; UJI 14-5172 NMRA. In addition, Defendant requested 16 instructions explaining that an assailed person need not retreat and on the issue of 17 whether Joe was the first aggressor. See UJI 14-5190 NMRA; UJI 14-5191 NMRA. 18 These instructions were discussed and then denied by the district judge, who stated, 19 “There’s no self-defense facts in this case.” 20 {30} Before an instruction on self-defense can be given, the district court must first 21 find evidence of three essential elements: “(1) an appearance of immediate danger of

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1 death or great bodily harm to the defendant, (2) the defendant was in fact put in fear 2 by the apparent danger, and (3) a reasonable person in the same circumstances would 3 have reacted similarly.” State v. Lucero, 1998-NMSC-044, ¶ 6, 126 N.M. 552, 972 4 P.2d 1143 (citation omitted). “[E]vidence must be sufficient to allow reasonable 5 minds to differ regarding all elements of the defense.” State v. Swick, 2012-NMSC- 6 018, ¶ 60, 279 P.3d 747. 7 {31} Defendant argues that sufficient evidence was presented to fulfill all three 8 requirements of a self-defense instruction. As to the first two elements of self- 9 defense, Defendant points to testimony from trial that Defendant “saw Joe come 10 toward him and [Shauna] with something shiny in his left hand while taunting him, 11 ‘Oh, you have [a] gun now?’ ” This was after Joe had beaten Defendant unconscious 12 a short time before. Defendant concludes that because of the appearance of 13 something in Joe’s hand and his apparent lunging at Defendant, he had reason to fear 14 Joe and to believe Joe would “stab him or [Shauna]” and that Joe’s death was a result 15 of that fear. As to the last element, whether Defendant’s response was reasonable, 16 Defendant argues this is a matter for the jury (citing State v. Johnson, 1998-NMCA- 17 019, ¶ 16, 124 N.M. 647, 954 P.2d 79.) 18 {32} The State argues there was not sufficient evidence to support a self-defense 19 instruction by asserting Defendant was not in immediate fear of his life because he 20 “was the instigator,” as he was beaten by Joe, went home to arm himself, and returned 21 to “continue the dispute.” Citing Lucero, the State argues that by returning to a

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1 dispute after retrieving a weapon, Defendant became a first aggressor. 1998-NMSC- 2 044, ¶ 9. 3 {33} We addressed the issue of first aggressor in State v. Chavez, 1983-NMSC-037, 4 99 N.M. 609, 661 P.2d 887, and in Lucero, 1998-NMSC-044. The defendant in 5 Chavez was a first aggressor when he entered a convenience store with a knife 6 intending to rob the store and subsequently stabbed and killed a patron who tried to 7 stop the robbery. 1983-NMSC-037, ¶ 6. We held that it is “well established in this 8 jurisdiction that a defendant who provokes an encounter, as a result of which he finds 9 it necessary to use deadly force to defend himself, is guilty of an unlawful homicide 10 and cannot avail himself of the claim that he was acting in self-defense.” Id. 11 However, we clarified in Lucero that if the defendant was an aggressor or instigator 12 of the conflict, a self-defense instruction is available only if “[t]he defendant was 13 using force which would not ordinarily create a substantial risk of death or great 14 bodily harm; and . . . victim responded with force which would ordinarily create a 15 substantial risk of death or great bodily harm.” 1998-NMSC-044 ¶ 7 (internal 16 punctuation and citation omitted). In Lucero, the defendant followed his victims, 17 with whom he had an earlier confrontation that day, to a vacant lot and fired into the 18 air. 1998-NMSC-044, ¶ 8. The victims fired back creating an ensuing gun battle in 19 which two people were killed. Id. ¶ 4. We held that “[b]efore [defendant] drew his 20 gun, there was no appearance of immediate danger of death or great bodily harm to 21 him by [victim]” because the previous encounters between victim and defendant had

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1 ended. Therefore, these previous encounters were unavailable as evidence of the 2 immediate danger to defendant and he was not entitled to a self-defense instruction. 3 Id. ¶ 8. 4 {34} In this case, the evidence most favorable to support an instruction of self- 5 defense was the following;

6 1. Defendant was assaulted by Joe and knocked unconscious. 7 2. Defendant went home but returned to speak to Joe about the fight. 8 3. Joe saw Defendant had a gun and said, “Oh, you have a gun 9 now?” and Joe moved toward Defendant and had something in his 10 hands. 11 4. Character evidence that Joe was violent and became more violent 12 when intoxicated.

13 This evidence could support the first element that Defendant was in fear of an 14 apparent danger of immediate death or great bodily harm when he shot Joe. Even 15 this, however, is generous as it is speculative whether Joe posed an apparent danger 16 of immediate death or great bodily harm. But we will assume that because Defendant 17 had been knocked unconscious in the previous incident, it was reasonable to fear it 18 could happen again. Nevertheless, the third element of the jury instruction requires 19 that Defendant acted reasonably when he killed. 20 {35} It is clear Defendant was the victim when Joe punched him and knocked him 21 unconscious. At that point, Defendant had the right to defend himself. However, 22 Defendant returned to his home, cleaned himself up, got a handgun and loaded it, 23 spoke to Shauna and his son, and then went back to confront Joe. After he shot Joe

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1 and Guadalupe, he returned home and asked Shauna to punch him so it would look 2 like self-defense. To use the language of Chavez, because it was Defendant who 3 “provoke[d] [the] encounter” and “as a result . . . [found] it necessary to use deadly 4 force to defend himself,” he cannot avail himself of the claim that he was acting in 5 self-defense. 1983-NMSC-037, ¶ 6. After the initial altercation, Joe posed no threat 6 to Defendant and was leaving the scene when Defendant returned. We cannot say 7 Defendant acted reasonably in this case. 8 {36} It could be argued that Defendant was showing concern for Joe’s well-being 9 when he went back to the scene and asked Edward Sanchez, “[I]s he okay?” But even 10 this generous inference is beyond the pale of reasonableness. To say that Defendant 11 was entitled to a self-defense instruction in this case would be to say that after a 12 fistfight, it is lawful to retreat to one’s home and get a loaded gun to use when 13 returning to confront the initial attacker. 14 {37} Defendant did not act reasonably when he shot Joe and Guadalupe and was 15 therefore not entitled to the self-defense instruction. Accordingly, the district court 16 did not err when it denied the instruction on self-defense because Defendant was the 17 aggressor when he used a gun.

18 B. The District Court Did Not Abuse Its Discretion When It Excluded 19 Evidence of Joe’s Reputation as a Violent Drunk

20 {38} Defendant argues he was improperly precluded from presenting evidence of 21 Joe’s violent character. Defendant contends he sought to elicit testimony from both

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1 Shauna and Loomis to support his claim of self-defense. Defendant states it was 2 “critical for the jury to know that Joe’s reputation was such that [Defendant] could 3 believe he and [Shauna] were in imminent danger and likely that Joe instigated the 4 deadly conflict.” The State argues that the district court was correct in limiting 5 Defendant’s presentation of evidence because evidence showing the victim was a first 6 aggressor is limited to reputation and opinion evidence only. 7 {39} The exclusion of evidence falls within the discretion of the district court. State 8 v. Baca, 1997-NMSC-045, ¶ 22, 124 N.M. 55, 946 P.2d 1066. An abuse of discretion 9 arises when the evidentiary ruling is clearly contrary to logic and the facts and 10 circumstances of the case. State v. Maples, 2013-NMCA-052, ¶ 13, 300 P.3d 749. 11 “An evidentiary ruling within the discretion of the court will constitute reversible 12 error only upon a showing of an abuse of discretion and a demonstration that the error 13 was prejudicial rather than harmless.” State v. Smith, 2016-NMSC-007, ¶ 46, 367 14 P.3d 420 (citation omitted). 15 {40} Character evidence is generally “not admissible to prove that on a particular 16 occasion the person acted in accordance with the character.” Rule 11-404(A)(1) 17 NMRA. But in criminal cases, Rule 11-404(A)(2)(b) NMRA allows a defendant to 18 offer evidence of a victim’s pertinent character or character trait. There are two basic 19 methods by which a party may prove character. See Rule 11-405 NMRA. First, 20 character “may be proved by testimony about the person’s reputation or by testimony 21 in the form of opinion.” Rule 11-405(A). Second, when a defendant is claiming self-

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1 defense, the victim’s character may be proved by “relevant specific instances of 2 conduct” to show the defendant’s fear of a victim. Rule 11-405(B). While admissible 3 for purposes of establishing self-defense, “evidence of specific instances of a victim’s 4 prior violent conduct may not be admitted to show that the victim was the first 5 aggressor.” State v. Armendariz, 2006-NMSC-036, ¶ 17, 140 N.M. 182, 141 P.3d 6 749, overruled on other grounds by Swick, 2012-NMSC-018. On the other hand, a 7 defendant may show the victim was the first aggressor with evidence of reputation or 8 opinion, but as a condition of admissibility, the defendant must have been aware of 9 that reputation or opinion. See Armendariz, 2006-NMSC-036, ¶ 17. 10 {41} With respect to the evidence to be elicited from Shauna, Defendant contends 11 that for purposes of showing his fear of Joe was reasonable, Shauna “was prepared 12 to testify that she told [Defendant] that Joe was a mean, violent drunk.” That 13 testimony would have been essential because as an element of his defense, Defendant 14 was required to establish he was aware of Joe’s prior violent conduct so as to show 15 he reasonably feared Joe. But despite Defendant’s claim to the contrary, he actually 16 elicited some testimony from Shauna concerning Joe’s violent character. 17 {42} The following exchange is illustrative: 18 Q: Did Joe seem threatening when he was coming over the fence? 19 A: Yes. 20 Q: Isn’t it a fact that [Guadalupe] indicated to you through her words 21 or actions that Joe was a violent person?

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1 A: Yes. 2 Q: Did [Guadalupe] ever indicate to you through words or actions 3 that Joe became more violent when he was intoxicated? 4 A: Yes. 5 {43} While Defendant did introduce some evidence of Joe’s pertinent character trait, 6 with respect to the more specific question of whether Shauna would have said she had 7 told Defendant about Joe’s violent character, a review of the record indicates the 8 testimony was never elicited and Defendant made no offer of proof. That omission 9 alone suggests Defendant failed to preserve the issue for our review. See generally 10 Rule 11-103(A)(2) NMRA (requiring a party to make an offer of proof in order to 11 preserve error concerning the exclusion of evidence). The lack of an adequate record 12 prevents us from evaluating the merits of Defendant’s claim of error with respect to 13 other potential testimony from Shauna on appeal. See, e.g., State v. Mark Vincent 14 Garcia, 1983-NMCA-069, ¶ 7, 100 N.M. 120, 666 P.2d 1267 (applying Rule 11- 15 103(A)(2) NMRA and concluding that the defendant failed to make an offer of proof 16 necessary to preserve the issue of whether the district court properly excluded 17 testimony). 18 {44} Moreover, there was no evidence presented that Joe was intoxicated. There 19 was testimony that he drank beer before the incident, and photos of the scene show 20 many beer bottles, but no evidence was presented regarding his conduct or behavior 21 or any other evidence of intoxication. And without some additional evidence of

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1 intoxication, any testimony from Shauna regarding Joe’s violent behavior when 2 intoxicated would have been without adequate foundation. Because the proper 3 foundation had not been laid for that portion of Shauna’s testimony, the potential 4 character evidence would not have satisfied the basic relevancy requirement. Cf. 5 State v. Herrera, 1978-NMCA-048, ¶ 32, 92 N.M. 7, 582 P.2d 384 (“Since, however, 6 the trait of character must be ‘pertinent’ the question of relevance remains.”). Given 7 the failure to preserve error with respect to Shauna’s testimony and the lack of 8 foundation, we find no abuse of discretion by the district court as to Shauna’s 9 testimony. 10 {45} Defendant also argues that he was prevented from eliciting testimony from 11 Loomis regarding his opinion of Joe and Joe’s reputation for being a violent drunk. 12 Defendant asserts that through Loomis’s previous encounters with Joe, Loomis “had 13 formed an opinion of Joe and knew that Joe had a reputation of being a violent mean 14 drunk.” On direct examination, Loomis testified he knew Joe. Before Loomis was 15 cross-examined, the State lodged a general objection requesting that defense counsel 16 be precluded from asking about Loomis’s previous encounters with Joe. The State 17 cited Rule 11-403 and 11-404(B) in support. The district court granted the request, 18 ordering that defense counsel avoid any questions about Loomis’s previous 19 encounters with Joe because that would constitute inappropriate introduction of 20 character evidence. The district court also explained that “under the facts of this case, 21 [Joe’s] character is not at issue.” Given that sequence, we address two issues: (1) the

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1 exclusion of testimony regarding past encounters between Loomis and Joe, and (2) 2 the exclusion of Loomis’s opinion of Joe and Joe’s reputation in the community. 3 {46} The first issue is easily disposed of because specific instances of a victim’s 4 violent conduct may only be introduced to show the defendant’s subjective fear of the 5 victim if it is established that the defendant knew of the victim’s past violent acts at 6 the time of the incident. Maples, 2013-NMCA-052, ¶ 18. But there was no evidence 7 presented establishing that Defendant knew of Joe’s past violent acts at the time of 8 the incident. And in addition, as stated above, evidence of the victim’s prior violent 9 conduct is not admissible to show the victim was the first aggressor when a defendant 10 is claiming self-defense, as was the case here. Armendariz, 2006-NMSC-036, ¶ 17. 11 It was therefore proper for the district court to exclude this testimony. 12 {47} The second issue is more problematic, as the defense may present reputation 13 or opinion evidence to show the victim was the first aggressor. Maples, 2013- 14 NMCA-052, ¶ 17. And importantly, the defense need not show the defendant knew 15 of the victim’s reputation for purposes of establishing the victim was the first 16 aggressor. Id. ¶ 18. While the district court ruled that Defendant could not elicit 17 testimony regarding Loomis’s past encounters with Joe, the court made no ruling to 18 prevent Defendant from eliciting more general opinion or reputation testimony. 19 Although Defendant stated that Loomis “had formed an opinion of Joe and knew that 20 Joe had a reputation of being a violent mean drunk,” he failed to make an offer of 21 proof, and he failed to ask Loomis any questions regarding his opinion of Joe or Joe’s

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1 reputation. Therefore, for the sake of completeness, even in the absence of an offer 2 of proof, we will assume Loomis would have testified that in his opinion Joe was 3 violent and he had a reputation for violence. That would have been a proper use of 4 character evidence and the testimony would have been, as a general proposition, 5 admissible under Rule 11-404(A)(2)(b). 6 {48} But our review also requires that we address whether exclusion in that scenario 7 would have been sufficiently prejudicial to Defendant so as to constitute harmful 8 error. State v. Campbell, 2007-NMCA-051, ¶ 13, 141 N.M 543, 157 P.3d 722. In 9 other words, “[a] defendant seeking relief because an avenue for his defense was 10 foreclosed by an evidentiary ruling must show that he was prejudiced by the ruling.” 11 Id. ¶14 (citation omitted). But “[n]o more prejudice need be shown than that the trial 12 court’s order may have made a potential avenue of defense unavailable to the 13 defendant.” Id. ¶ 14 (quoting State v. Orona, 1979-NMSC-011, ¶ 8, 92 N.M. 450, 14 589 P.2d 1041). 15 {49} The prejudice inquiry is telling because even without the Loomis testimony, 16 Defendant was able to support his self-defense theory based on various portions of 17 the record. Shauna, for example, testified about Joe’s violent character and his 18 demeanor before the shooting. And the jury could have inferred Joe was prone to 19 violence, given his assault of Defendant prior to the shooting. That evidence 20 adequately supported Defendant’s claims that he was in fear of Joe when he shot him 21 and that Joe was the first aggressor, and thus Defendant was given adequate

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1 opportunity to present the defense to the jury. Accordingly, the exclusion of 2 Loomis’s testimony about Joe’s character was not sufficiently prejudicial as to 3 constitute harmful error.

4 C. There Was Sufficient Evidence to Support First-Degree Murder of 5 Guadalupe; There Was Insufficient Evidence to Support Child 6 Endangerment

7 1. Murder of Guadalupe 8 {50} Defendant argues there was insufficient evidence to establish that he killed 9 Guadalupe deliberately, that her shooting was accidental, and that the State 10 recognized this by submitting an instruction on transferred intent that was later 11 withdrawn. The State asserts deliberate intent was shown at trial by evidence that 12 Defendant swung his gun in Guadalupe’s direction to shoot her. 13 {51} We review the evidence to determine whether there was “substantial evidence 14 . . . to support a verdict of guilt beyond a reasonable doubt with respect to every 15 element essential to a conviction.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 16 94, 140 P.3d 515 (citation omitted). “[W]e resolve all disputed facts in favor of the 17 State, indulge all reasonable inferences in support of the verdict, and disregard all 18 evidence and inferences to the contrary.” State v. Smith, 2016-NMSC-007, ¶ 19 19 (citation omitted). 20 {52} The jury was instructed that to find Defendant guilty of first-degree murder by 21 a deliberate killing, it must find each of the following: (1) Defendant killed

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1 Guadalupe, (2) the killing was with deliberate intention to take away the life of 2 Guadalupe or any other human being, and (3) this killing happened in New Mexico 3 on or about September 13, 2011. There is no question that Defendant shot and killed 4 Guadalupe. We need only address the second element: that Defendant committed the 5 killing with the deliberate intent to kill that distinguishes first-degree murder from 6 second-degree murder. 7 {53} “Deliberate intent may be inferred from the particular circumstances of killing 8 as proved by the State through the presentation of physical evidence.” Duran, 9 2006-NMSC-035, ¶ 8. A jury may draw inferences of deliberation from evidence of 10 “earlier confrontation[s] . . . or other common areas of friction leading to violence,” 11 State v. Tafoya, 2012-NMSC-030, ¶ 52, 285 P.3d 604, or fleeing the scene, disposing 12 of evidence, or concocting false alibis. See State v. Flores, 2010-NMSC-002, ¶ 22, 13 147 N.M. 542, 226 P.3d 641. The jury can also use the defendant’s actions after a 14 killing to aid them in finding deliberate intent. See State v. Astorga, 2015-NMSC- 15 007, ¶ 65, 343 P.3d 1245. 16 {54} We first address Defendant’s argument that it was error to include the phrase 17 “any other human being” in the jury instruction. Defendant claims this was a partial 18 instruction on transferred intent, but because the instruction on transferred intent was 19 not given, it was error to include the phrase. Defendant concedes he intended to kill 20 Joe, but absent a finding of transferred intent, contends he could not have formed the 21 requisite intent regarding Guadalupe.

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1 {55} In State v. Fekete, we stated that in some instances the phrase “or any other 2 human being” may assist the jury and its use is not limited only to cases involving 3 transferred intent. 1995-NMSC-049, ¶ 25-26, 120 N.M. 290, 901 P.2d 708. This is 4 because New Mexico’s deliberate intent murder statute provides that first-degree 5 murder is the “killing of one human being by another.” Id. ¶ 23 (quoting Section 30- 6 2-1(A)). It is only necessary to find beyond a reasonable doubt that a defendant had 7 the intent to kill a human being, not a specific named person. Therefore, the State 8 only had to prove Defendant had the intent to kill when he shot Guadalupe, not that 9 he intended to kill Guadalupe specifically. Often it is the case that a defendant will 10 intend to kill a specific person, but this is not the specific intent necessary for first- 11 degree murder. See State v. Vega, 2014 WL 72581, ¶ 28, No. 33,363, dec. ¶ 13 (N.M. 12 Sup. Ct. Jan. 9, 2014) (non-precedential) (“[T]he deliberate intent to kill ‘someone,’ 13 followed by the deliberately intentional killing of the victim satisfied the 14 requirements of first-degree murder irrespective of any theory of transferred intent.”). 15 Therefore, it was not error to include the phrase, “any other human being” in the jury 16 instruction. 17 {56} The evidence of deliberation included:

18 1. Loomis testified that in his expert opinion the shooter would have 19 had to swing his arm to shoot Guadalupe after shooting Joe. 20 2. Joe’s body and Guadalupe were not right next to each other when 21 officers arrived. 22 3. Before the shooting, there was friction between Defendant and 23 Guadalupe when she tried to help Defendant after he was knocked

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1 down. 2 4. Guadalupe said, “[H]e shot me.” 3 5. Defendant asked Shauna to punch him so it looked like self- 4 defense and returned to the scene and asked, “What happened?” 5 and “[I]s he okay?”

6 {57} Defendant’s contention that the shooting was accidental does not make the 7 evidence presented against him insufficient. “The jury heard evidence regarding the 8 [d]efendant’s version of the facts and was free to reject that testimony.” Salazar, 9 1997-NMSC-044, ¶ 46, 123 N.M. 778, 945 P.2d 996. 10 {58} Viewing the evidence in the light most favorable to the verdict, a rational jury 11 could have found beyond a reasonable doubt that Defendant killed Guadalupe with 12 deliberate intent and intended to hide the fact by creating a self-defense narrative. 13 Accordingly, there was sufficient evidence to convict Defendant of first-degree 14 murder and affirm the jury’s verdict. 15 2. Child Endangerment of Gino and Renee 16 {59} Defendant argues there was not sufficient evidence to support a conviction for 17 child endangerment because Defendant was not aware of where the children were 18 when the shooting occurred. Defendant asserts Gino and Renee were not in the zone 19 of danger created by Defendant’s conduct. In addition, Defendant argues the bullet 20 found in the vehicle did not match Defendant’s gun. 21 {60} The State asserts the evidence was sufficient, arguing Defendant should have 22 known Gino and Renee were in the vehicle because Defendant shot into the backyard

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1 and home, a bullet was found in the victim’s vehicle where the children were placed, 2 and they were playing among the other adults at the barbeque. 3 {61} At trial, the State had the burden to prove (1) Defendant caused Gino and 4 Renee to be placed in a situation which endangered their lives or health, (2) 5 Defendant acted intentionally or with reckless disregard and without justification; he 6 knew or should have known his conduct created a substantial and foreseeable risk and 7 disregarded that risk, (3) Gino and Renee were under the age of 18, and (4) the 8 incident happened in New Mexico on or about September 13, 2011. Only the second 9 element is in dispute. See UJI 14-604 (2013) NMRA. 10 {62} In Arrendondo, we explained that a showing the defendant should have known 11 that his conduct created a substantial risk can be made with “evidence that the 12 defendant was or should have been aware that the child was present within the zone 13 of danger.” 2012-NMSC-013, ¶ 25, (citation omitted). We also stated that the 14 “criminal negligence ‘mental state requires that [d]efendant know, or at least should 15 know, that her conduct is endangering a child.’ ” Id. ¶ 25 (quoting State v. Gonzales, 16 2011-NMCA-081, ¶30, 150 N.M. 494, 263 P.3d 271). 17 {63} In Arrendondo, we found sufficient evidence that the defendant should have 18 known that one of the children was in the house into which he shot. 2012-NMSC- 19 013, ¶¶ 27-28. We relied on evidence presented at trial that the defendant was told 20 “before the shooting that there was a ‘newborn baby’ in the house.” Id. ¶ 27. That 21 information “would allow a reasonable jury to have found that [the defendant] knew

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1 or should have known that his conduct created a substantial risk to [a newborn baby], 2 who was approximately three weeks old at the time of the shooting.” Id. In contrast, 3 we held there was insufficient evidence to support a conviction for abuse of a second 4 child in the house because we found no evidence in the record that the defendant 5 knew or should have known the second child was in the house. Id. ¶ 28. 6 {64} While Defendant should have known the children were in the backyard at the 7 time of the initial altercation, he had no reason to know that the children were in the 8 vehicle after the fight. Defendant left the backyard with his girlfriend. Then Joe and 9 Guadalupe began packing their things up and loaded their children into the vehicle. 10 Defendant was not present during this process. When he returned, he would not have 11 seen any children in the immediate vicinity. Similar to the defendant in Arrendondo 12 with respect to the second child in the home in that case, Defendant here had no 13 knowledge the children were in the vehicle. Moreover, the bullet eventually found 14 in the vehicle in which the children had been placed did not match Defendant’s gun; 15 it was found by the victim’s brother days after the shooting, and it was revealed the 16 vehicle had incurred no damage from a bullet. Without a bullet from Defendant’s gun 17 in the vehicle or any other evidence linking the vehicle to the zone of danger, the 18 record cannot support a conclusion the vehicle was a part of the zone of danger. 19 Accordingly, the State has not presented evidence sufficient to warrant a conviction 20 on child endangerment in this case. Therefore, we reverse both child endangerment 21 convictions.

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1 III. CONCLUSION 2 {65} For the reasons outlined above we affirm the first-degree murder convictions 3 as to Joe and Guadalupe and reverse both child endangerment convictions. 4 {66} IT IS SO ORDERED.

5 _____________________________ 6 PETRA JIMENEZ MAES, Justice

7 WE CONCUR:

8 ___________________________________ 9 JUDITH K. NAKAMURA, Chief Justice

10 ___________________________________ 11 EDWARD L. CHÁVEZ, Justice

12 ___________________________________ 13 CHARLES W. DANIELS, Justice

14 ___________________________________ 15 BARBARA J. VIGIL, Justice