This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-35123
5 ETHEL JACKSON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 William G. Shoobridge, District Judge
9 Hector H. Balderas, Attorney General 10 Anita Carlson, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Chief Public Defender 14 Kimberly M. Chavez Cook, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VIGIL, Judge. 1 {1} Defendant Ethel Jackson appeals her conviction following a bench trial for
2 aggravated battery (great bodily harm) in violation of NMSA 1978, Section
3 30-3-5(C) (1969). We affirm.
4 I. BACKGROUND
5 {2} This case arises from an altercation between Defendant and Latoya Royal
6 (Victim), wherein Defendant “bumped” Victim’s chest with her own and Victim
7 put Defendant in a headlock for approximately five seconds. While in the
8 headlock, Defendant pulled a knife out of her pocket. Victim pushed Defendant
9 after seeing the knife, at which point Defendant stabbed Victim in the chest. While
10 being treated at a hospital for a punctured lung, Victim told a nurse that Defendant
11 was the person who had stabbed her in the chest. Additionally, Victim told the
12 nurse that Defendant was “with her man.”
13 {3} The investigating officer, Detective Bryan Generotzky (Detective
14 Generotzky), spoke with Victim who informed him that she and Defendant were
15 “partying all night,” and that Defendant was drinking alcohol and smoking
16 methamphetamine and crack cocaine. Victim said they got into a physical
17 altercation because Defendant grabbed a cigarette out of Victim’s mouth while
18 they were in a car together, angering Victim. Victim told Detective Generotzky
19 that Defendant stabbed her with a small folding knife.
2 1 {4} Detective Generotzky also interviewed Defendant twice. During the first
2 attempt to interview Defendant, about fourteen hours after the incident,
3 Defendant’s behavior was “bizarre”: she could not sit still, her speech was slurred,
4 her eyes were bloodshot, and she was mumbling, jerking, rambling, and laughing
5 for no reason. According to Detective Generotzky, Defendant’s “cognitive thinking
6 skills weren’t there.” Because of her condition, Detective Generotzky questioned
7 Defendant fourteen hours later, when she was more coherent. Defendant’s story
8 significantly differed from Victim’s. Defendant said she did come in contact with
9 Victim, and Victim asked her for a “two-dollar hit,” but Defendant was not “about
10 to go look for that hit.” In both interviews, Defendant denied they argued, denied
11 she stabbed Victim, said she had no reason to stab Victim, and denied being in the
12 car with Victim. Asked why Victim would say she stabbed Victim, Defendant said
13 that Victim did not like her. Detective Generotzky agreed that Defendant’s story
14 was consistent, and that she recounted it over and over.
15 {5} During trial, Defendant impeached Victim with her admission that she had a
16 prior felony conviction for aggravated assault with a deadly weapon. Defendant
17 also attempted to elicit testimony from Victim regarding the circumstances of her
18 prior felony conviction. Defendant argued that Victim stated “her man was
19 cheating on her with the victim in that case and that the victim in that case had
20 stabbed her, yet she was not convicted.” Instead, Victim was convicted of
3 1 aggravated assault with a deadly weapon because she attempted to stab the victim
2 in that prior case. Defendant argued that the underlying circumstances of that case
3 were similar to those in the present case, indicating Victim’s bias and motive to lie.
4 The district court excluded the testimony. Nonetheless, Defendant impeached
5 Victim several times with inconsistent statements.
6 {6} In closing arguments to the district court, defense counsel said this was “not
7 a self-defense case.” Rather, counsel argued, Defendant was not the person who
8 stabbed Victim, and, in the alternative, that Defendant lacked the specific intent
9 required for aggravated battery because of her consumption of drugs and Victim’s
10 admission that she did not believe Defendant meant to hurt her. The State
11 responded that Defendant’s specific intent was apparent by the act of removing the
12 knife from her pocket, approaching and stabbing Victim. After recognizing that
13 Victim and Defendant were “using drugs,” the district court found the State had
14 proven that Defendant stabbed Victim and had the specific intent to injure her. The
15 district court found Defendant guilty of aggravated battery.
16 II. DISCUSSION
17 {7} Defendant appeals the district court’s verdict, arguing: (1) the State failed to
18 prove Defendant’s guilt beyond a reasonable doubt, (2) the district court erred in
19 excluding evidence regarding the underlying circumstances of Victim’s prior
20 felony conviction, and (3) defense counsel was ineffective.
4 1 A. Sufficiency of the Evidence
2 {8} Defendant first argues that her conviction for aggravated battery was not
3 supported by sufficient evidence. “In reviewing the sufficiency of the evidence, we
4 must view the evidence in the light most favorable to the guilty verdict, indulging
5 all reasonable inferences and resolving all conflicts in the evidence in favor of the
6 verdict.” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (internal quotation
7 marks and citation omitted). “In that light, the Court determines whether any
8 rational trier of fact could have found the essential elements of the crime beyond a
9 reasonable doubt.” Id. (internal quotation marks and citation omitted). “Contrary
10 evidence supporting acquittal does not provide a basis for reversal because the
11 [finder of fact] is free to reject [the d]efendant’s version of the facts.” State v. Rojo,
12 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “When a defendant argues
13 that the evidence and inferences present two equally reasonable hypotheses, one
14 consistent with guilt and another consistent with innocence, our answer is that by
15 its verdict, the [finder of fact] has necessarily found the hypothesis of guilt more
16 reasonable than the hypothesis of innocence.” State v. Montoya, 2005-NMCA-078,
17 ¶ 3, 137 N.M. 713, 114 P.3d 393. “[W]e presume that the judge in a bench trial is
18 able to properly weigh the evidence.” State v. Pickett, 2009-NMCA-077, ¶ 21, 146
19 N.M. 655, 213 P.3d 805.
5 1 {9} Defendant first argues that there was insufficient evidence to prove her
2 specific intent to injure Victim. “Specific intent to injure an individual is an
3 essential element of the offense of aggravated battery.” State v. Lovato, 1990-
4 NMCA-047, ¶ 4, 110 N.M. 146, 793 P.2d 276; see also UJI 14-323 NMRA
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-35123
5 ETHEL JACKSON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 William G. Shoobridge, District Judge
9 Hector H. Balderas, Attorney General 10 Anita Carlson, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Chief Public Defender 14 Kimberly M. Chavez Cook, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VIGIL, Judge. 1 {1} Defendant Ethel Jackson appeals her conviction following a bench trial for
2 aggravated battery (great bodily harm) in violation of NMSA 1978, Section
3 30-3-5(C) (1969). We affirm.
4 I. BACKGROUND
5 {2} This case arises from an altercation between Defendant and Latoya Royal
6 (Victim), wherein Defendant “bumped” Victim’s chest with her own and Victim
7 put Defendant in a headlock for approximately five seconds. While in the
8 headlock, Defendant pulled a knife out of her pocket. Victim pushed Defendant
9 after seeing the knife, at which point Defendant stabbed Victim in the chest. While
10 being treated at a hospital for a punctured lung, Victim told a nurse that Defendant
11 was the person who had stabbed her in the chest. Additionally, Victim told the
12 nurse that Defendant was “with her man.”
13 {3} The investigating officer, Detective Bryan Generotzky (Detective
14 Generotzky), spoke with Victim who informed him that she and Defendant were
15 “partying all night,” and that Defendant was drinking alcohol and smoking
16 methamphetamine and crack cocaine. Victim said they got into a physical
17 altercation because Defendant grabbed a cigarette out of Victim’s mouth while
18 they were in a car together, angering Victim. Victim told Detective Generotzky
19 that Defendant stabbed her with a small folding knife.
2 1 {4} Detective Generotzky also interviewed Defendant twice. During the first
2 attempt to interview Defendant, about fourteen hours after the incident,
3 Defendant’s behavior was “bizarre”: she could not sit still, her speech was slurred,
4 her eyes were bloodshot, and she was mumbling, jerking, rambling, and laughing
5 for no reason. According to Detective Generotzky, Defendant’s “cognitive thinking
6 skills weren’t there.” Because of her condition, Detective Generotzky questioned
7 Defendant fourteen hours later, when she was more coherent. Defendant’s story
8 significantly differed from Victim’s. Defendant said she did come in contact with
9 Victim, and Victim asked her for a “two-dollar hit,” but Defendant was not “about
10 to go look for that hit.” In both interviews, Defendant denied they argued, denied
11 she stabbed Victim, said she had no reason to stab Victim, and denied being in the
12 car with Victim. Asked why Victim would say she stabbed Victim, Defendant said
13 that Victim did not like her. Detective Generotzky agreed that Defendant’s story
14 was consistent, and that she recounted it over and over.
15 {5} During trial, Defendant impeached Victim with her admission that she had a
16 prior felony conviction for aggravated assault with a deadly weapon. Defendant
17 also attempted to elicit testimony from Victim regarding the circumstances of her
18 prior felony conviction. Defendant argued that Victim stated “her man was
19 cheating on her with the victim in that case and that the victim in that case had
20 stabbed her, yet she was not convicted.” Instead, Victim was convicted of
3 1 aggravated assault with a deadly weapon because she attempted to stab the victim
2 in that prior case. Defendant argued that the underlying circumstances of that case
3 were similar to those in the present case, indicating Victim’s bias and motive to lie.
4 The district court excluded the testimony. Nonetheless, Defendant impeached
5 Victim several times with inconsistent statements.
6 {6} In closing arguments to the district court, defense counsel said this was “not
7 a self-defense case.” Rather, counsel argued, Defendant was not the person who
8 stabbed Victim, and, in the alternative, that Defendant lacked the specific intent
9 required for aggravated battery because of her consumption of drugs and Victim’s
10 admission that she did not believe Defendant meant to hurt her. The State
11 responded that Defendant’s specific intent was apparent by the act of removing the
12 knife from her pocket, approaching and stabbing Victim. After recognizing that
13 Victim and Defendant were “using drugs,” the district court found the State had
14 proven that Defendant stabbed Victim and had the specific intent to injure her. The
15 district court found Defendant guilty of aggravated battery.
16 II. DISCUSSION
17 {7} Defendant appeals the district court’s verdict, arguing: (1) the State failed to
18 prove Defendant’s guilt beyond a reasonable doubt, (2) the district court erred in
19 excluding evidence regarding the underlying circumstances of Victim’s prior
20 felony conviction, and (3) defense counsel was ineffective.
4 1 A. Sufficiency of the Evidence
2 {8} Defendant first argues that her conviction for aggravated battery was not
3 supported by sufficient evidence. “In reviewing the sufficiency of the evidence, we
4 must view the evidence in the light most favorable to the guilty verdict, indulging
5 all reasonable inferences and resolving all conflicts in the evidence in favor of the
6 verdict.” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (internal quotation
7 marks and citation omitted). “In that light, the Court determines whether any
8 rational trier of fact could have found the essential elements of the crime beyond a
9 reasonable doubt.” Id. (internal quotation marks and citation omitted). “Contrary
10 evidence supporting acquittal does not provide a basis for reversal because the
11 [finder of fact] is free to reject [the d]efendant’s version of the facts.” State v. Rojo,
12 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “When a defendant argues
13 that the evidence and inferences present two equally reasonable hypotheses, one
14 consistent with guilt and another consistent with innocence, our answer is that by
15 its verdict, the [finder of fact] has necessarily found the hypothesis of guilt more
16 reasonable than the hypothesis of innocence.” State v. Montoya, 2005-NMCA-078,
17 ¶ 3, 137 N.M. 713, 114 P.3d 393. “[W]e presume that the judge in a bench trial is
18 able to properly weigh the evidence.” State v. Pickett, 2009-NMCA-077, ¶ 21, 146
19 N.M. 655, 213 P.3d 805.
5 1 {9} Defendant first argues that there was insufficient evidence to prove her
2 specific intent to injure Victim. “Specific intent to injure an individual is an
3 essential element of the offense of aggravated battery.” State v. Lovato, 1990-
4 NMCA-047, ¶ 4, 110 N.M. 146, 793 P.2d 276; see also UJI 14-323 NMRA
5 (requiring the state to prove a defendant’s intent to injure an individual for the
6 offense of aggravated battery). “It is settled law that a showing of intoxication is a
7 defense to a specific intent crime where the intoxication is to such a degree as
8 would negate the possibility of the necessary intent.” State v. Romero, 1998-
9 NMCA-057, ¶ 22, 125 N.M. 161, 958 P.2d 119 (internal quotation marks and
10 citation omitted). Criminal intent is an issue of fact to be determined by the finder
11 of fact and may be inferred from established facts and circumstances. See State v.
12 Roybal, 1960-NMSC-012, ¶ 6, 66 N.M. 416, 349 P.2d 332 (explaining that the
13 issue of intent is a question for the jury and “may be inferred by the jury from the
14 facts and circumstances established at the trial”). Here, the district court found the
15 State proved Defendant had the specific intent to injure Victim, after considering
16 Defendant’s likely use of drugs. Accordingly, we conclude there was sufficient
17 evidence regarding Defendant’s specific intent.
18 {10} Defendant next argues that there was insufficient evidence because the State
19 did not prove she was the person who stabbed Victim. Specifically, Defendant
20 argues that the only evidence establishing that Defendant was the person who
6 1 stabbed Victim was Victim’s testimony. Although Victim was impeached, the
2 district court, as finder of fact, was free to accept or reject her testimony. See State
3 v. Hughey, 2007-NMSC-036, ¶ 16, 142 N.M. 83, 163 P.3d 470 (explaining that
4 “[i]t is the role of the fact[-]finder to judge the credibility of witnesses and
5 determine the weight of evidence”); see also State v. Nichols, 2006-NMCA-017,
6 ¶ 9, 139 N.M. 72, 128 P.3d 500 (concluding that “[i]f evidence is in conflict, or
7 credibility is at issue, we accept any interpretation of the evidence that supports the
8 [district] court’s findings” (alteration, internal quotation marks, and citation
9 omitted)). Moreover, “[t]he testimony of a single witness may legally suffice as
10 evidence to support a jury’s verdict.” State v. Riley, 1970-NMCA-015, ¶ 6, 82
11 N.M. 298, 480 P.2d 693. Victim testified that Defendant was the person who
12 stabbed her, which was consistent with her statements to the nurse and Detective
13 Generotzky. Accordingly, we conclude there was sufficient evidence to support the
14 district court’s finding that Defendant stabbed Victim.
15 B. The Underlying Circumstances of Victim’s Felony Conviction
16 {11} Having concluded that Defendant’s conviction was supported by sufficient
17 evidence, we proceed to Defendant’s argument that the district court erred in
18 prohibiting Defendant from cross-examining Victim on the underlying
19 circumstances of her felony conviction. “We will only reverse a [district] court’s
20 ruling concerning the admission of evidence if the court abused its discretion.”
7 1 State v. Hamilton, 2000-NMCA-063, ¶ 14, 129 N.M. 321, 6 P.3d 1043. “An abuse
2 of discretion occurs when the ruling is clearly against the logic and effect of the
3 facts and circumstances of the case.” State v. Otto, 2007-NMSC-012, ¶ 9, 141
4 N.M. 443, 157 P.3d 8 (internal quotation marks and citation omitted).
5 {12} We need not address this argument because, even if the district court’s ruling
6 was erroneous, Defendant has not demonstrated reversible error. “[T]o warrant
7 reversible error in the exclusion of testimony, [the] defendant must show a
8 reasonable probability that the court’s failure to allow the testimony contributed to
9 [the] conviction.” State v. Gonzales, 1991-NMSC-075, ¶ 27, 112 N.M. 544, 817
10 P.2d 1186. In determining whether an error is reversible, courts may consider
11 whether evidence is cumulative. See State v. Tollardo, 2012-NMSC-008, ¶ 43, 275
12 P.3d 110 (explaining that “when reviewing an error’s role in the trial, courts
13 may . . . examine . . . whether the error was cumulative or instead introduced new
14 facts” (alterations, internal quotation marks, and citation omitted)); see also State
15 v. Johnson, 2004-NMSC-029, ¶ 38, 136 N.M. 348, 98 P.3d 998 (defining
16 cumulative evidence as “additional evidence of the same kind tending to prove the
17 same point as other evidence already given” (internal quotation marks and citation
18 omitted)). Given the fact that Defendant impeached Victim’s credibility on several
19 other occasions, the introduction of one more piece of impeachment evidence
20 would have merely been cumulative. In light of the totality of the circumstances
8 1 surrounding the excluded evidence, Defendant has failed to show a reasonable
2 probability that the district court’s ruling contributed to her conviction. See
3 Tollardo, 2012-NMSC-008, ¶ 43 (explaining that the harmless error analysis
4 requires courts to “evaluate all of the circumstances surrounding the error”).
5 Accordingly, we conclude the district court’s ruling did not rise to the level of
6 reversible error.
7 {13} Defendant also argues that the district court’s exclusion of this evidence
8 violated her constitutional right to present a defense. “We acknowledge the
9 Constitution guarantees criminal defendants a meaningful opportunity to present a
10 complete defense.” State v. Lasner, 2000-NMSC-038, ¶ 24, 129 N.M. 806, 14 P.3d
11 1282 (internal quotation marks and citation omitted). Considering Defendant failed
12 to preserve this constitutional claim in the district court, we review this issue for
13 fundamental error. See Rule 12-321(A) NMRA (“To preserve an issue for review,
14 it must appear that a ruling or decision by the [district] court was fairly invoked.”);
15 State v. Zamarripa, 2009-NMSC-001, ¶ 33, 145 N.M. 402, 199 P.3d 846
16 (explaining that “[a] party must assert its objection and the basis thereof with
17 sufficient specificity to alert the mind of the [district] court to the claimed error”
18 (internal quotation marks and citation omitted)); see also State v. Barber, 2004-
19 NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633 (holding that appellate courts review
20 unpreserved issues for fundamental error). “The doctrine of fundamental error is to
9 1 be resorted to in criminal cases only for the protection of those whose innocence
2 appears indisputably, or open to such question that it would shock the conscience
3 to permit the conviction to stand.” Id. ¶ 14 (internal quotation marks and citation
4 omitted). In the alternative, a conviction will be reversed under the doctrine of
5 fundamental error “where, notwithstanding the apparent culpability of the
6 defendant, substantial justice has not been served.” Campos v. Bravo, 2007-
7 NMSC-021, ¶ 18, 141 N.M. 801, 161 P.3d 846 (internal quotation marks and
8 citation omitted). “Substantial justice has not been served when a fundamental
9 unfairness within the system has undermined judicial integrity.” Id.
10 {14} Given the evidence supporting Defendant’s conviction for aggravated
11 battery, we cannot say that Defendant is indisputably innocent. See State v.
12 Trujillo, 2002-NMSC-005, ¶ 60, 131 N.M. 709, 42 P.3d 814 (concluding no
13 fundamental error exists where substantial evidence supports the defendant’s
14 convictions and the defendant failed to demonstrate circumstances that shock the
15 conscience or show a fundamental unfairness). We therefore discuss whether the
16 district court’s exclusion of this evidence resulted in a fundamental unfairness that
17 undermined judicial integrity. We are not faced with a situation wherein the district
18 court wholly prevented Defendant from cross-examining a witness. See, e.g.,
19 Chambers v. Mississippi, 410 U.S. 284, 287, 294, 302 (1973) (holding that the
20 state’s rule preventing the defendant from cross-examining a critical witness who
10 1 confessed to the crime for which the defendant was charged violated the
2 defendant’s right to a fair trial). Rather, the district court excluded a relatively
3 narrow scope of testimony intended to impeach Victim’s credibility. Indeed,
4 Defendant impeached Victim on several other occasions. We therefore cannot say
5 the district court’s ruling resulted in a fundamental unfairness that undermines the
6 integrity of the judicial system. Cf. State v. Stephen F., 2008-NMSC-037, ¶ 6, 144
7 N.M. 360, 188 P.3d 84 (concluding that “[a] defendant’s right to confront and to
8 cross-examine is not absolute” (internal quotation marks and citation omitted)).
9 Accordingly, we conclude the district court’s ruling did not constitute fundamental
10 error.
11 C. Ineffective Assistance of Counsel
12 {15} Defendant finally argues that defense counsel was ineffective. “Criminal
13 defendants are entitled to reasonably effective assistance of counsel.” State v.
14 Crocco, 2014-NMSC-016, ¶ 12, 327 P.3d 1068 (internal quotation marks and
15 citation omitted). “To establish a prima facie case of ineffective assistance, a
16 defendant must first show that counsel’s performance fell below that of a
17 reasonably competent attorney.” State v. Barela, 2018-NMCA-___, ¶ 17,
18 ___P.3d___ (No. A-1-CA-35355, Aug. 2, 2018) (alteration, internal quotation
19 marks, and citation omitted). “Second, a defendant must show that counsel’s
20 deficient performance prejudiced the defense such that there was a reasonable
11 1 probability that the outcome of the trial would have been different.” Id. (internal
2 quotation marks and citation omitted). “[A]n appellate court should presume that
3 [counsel’s] performance fell within a wide range of reasonable professional
4 assistance.” State v. Roybal, 2002-NMSC-027, ¶ 21, 132 N.M. 657, 54 P.3d 61
5 (internal quotation marks and citation omitted). “Our Supreme Court has expressed
6 a preference for bringing ineffective assistance claims through habeas corpus
7 proceedings, rather than on direct appeal.” Barela, 2018-NMCA-___, ¶ 17. “If
8 facts necessary to a full determination are not part of the record, an ineffective
9 assistance claim is more properly brought through a habeas corpus petition,
10 although an appellate court may remand a case for an evidentiary hearing if the
11 defendant makes a prima facie case of ineffective assistance.” Roybal, 2002-
12 NMSC-027, ¶ 19. “We review the legal issues involved with claims of ineffective
13 assistance of counsel de novo and defer to the findings of fact of the district court
14 if substantial evidence supports the court’s findings.” State v. Hobbs, 2016-
15 NMCA-006, ¶ 18, 363 P.3d 1259 (alterations, internal quotation marks, and
16 citation omitted).
17 {16} Defendant argues that defense counsel was ineffective in failing to pursue
18 self-defense. “[I]f on appeal we can conceive of a reasonable trial tactic which
19 would explain the counsel’s performance, we will not find ineffective assistance.”
20 Roybal, 2002-NMSC-027, ¶ 21. “Counsel’s choice of defenses will not be
12 1 disturbed unless the choice appears wholly unreasoned or deprives the defendant of
2 his only defense.” State v. Baca, 1993-NMCA-051, ¶ 34, 115 N.M. 536, 854 P.2d
3 363. However, defense counsel’s decision to attack the actus reus and specific
4 intent rather than pursuing self-defense cannot be said to have been wholly
5 unreasonable in light of the dearth of evidence establishing an actual or reasonable
6 fear of death or great bodily harm. See UJI 14-5183 NMRA (explaining that a
7 defendant acts in self-defense if “[t]here was an appearance of immediate danger of
8 death or great bodily harm to the defendant, . . . [t]he defendant was in fact put in
9 fear of immediate death or great bodily harm, . . . and [t]he apparent danger would
10 have caused a reasonable person in the same circumstances to act as the defendant
11 did”). Moreover, defense counsel’s choice of defenses did not deprive Defendant
12 of his only defense, as evidenced by defense counsel’s use of two other defenses
13 that were consistent with the evidence. Cf. Baca, 1993-NMCA-051, ¶ 34 (citing
14 defense counsel’s failure to tender jury instructions on the defendant’s sole
15 defense, thereby resulting in no presentation of a defense, as an example of
16 depriving the defendant of his only defense). We thus conclude Defendant has
17 failed to establish that defense counsel’s performance was deficient. However, our
18 decision does not preclude Defendant from pursuing this issue in habeas corpus
19 proceedings.
20 III. CONCLUSION
13 1 {17} The judgment and sentence are affirmed.
2 {18} IT IS SO ORDERED.
3 ______________________________ 4 MICHAEL E. VIGIL, Judge
5 WE CONCUR:
6 __________________________________ 7 J. MILES HANISEE, Judge
8 __________________________________ 9 JULIE J. VARGAS, Judge