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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-34538
5 JASON MYERS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Jane Shuler Gray, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 M. Victoria Wilson, Assistant Attorney General 12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender 15 Kimberly M. Chavez Cook, Assistant Appellate Defender 16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 KIEHNE, Judge Pro Tempore.
1 {1} Defendant Jason Myers was convicted of driving while impaired (DWI),
2 contrary to NMSA 1978, Section 66-8-102(B) (2010, amended 2016), and of
3 aggravated fleeing a law enforcement officer, contrary to NMSA 1978, Section 30-
4 22-1.1 (2003), both offenses arising from a methamphetamine-fueled, high-speed
5 car chase. Defendant does not challenge his DWI conviction, but he does ask us to
6 overturn his conviction for aggravated fleeing on several grounds. First, he
7 contends that the district court erred by wrongfully denying his requested jury
8 instruction under Uniform Jury Instruction (UJI) 14-5111 NMRA regarding the
9 defense of voluntary intoxication. Second, he argues that the district court
10 committed fundamental error when it failed to give a mistake-of-fact instruction
11 given its denial of the voluntary intoxication instruction. Third, Defendant
12 contends that the district court erred by denying his request to instruct the jury on
13 the lesser-included offense of resisting, evading, or obstructing an officer.
14 Alternatively, Defendant asserts that his counsel was ineffective for failing to more
15 vigorously pursue the lesser-included jury instruction for resisting, evading, or
16 obstructing an officer. Fourth and finally, Defendant asserts that the district court
17 violated his constitutional right to present a defense when it disallowed the
18 testimony of certain defense witnesses because their identities were not disclosed
19 until a week before trial, in violation of Rule 5-502(A)(3) NMRA. Because we
20 conclude that none of these claims has merit, we affirm.
1 BACKGROUND
2 {2} On the morning of February 27, 2013, just before 7:00 a.m., deputies
3 responded to reports of a reckless driver traveling west on Highway 180 between
4 Hobbs and Carlsbad, New Mexico. When Deputy Kiley Orgain encountered
5 Defendant’s vehicle (SUV), it was traveling 96 miles per hour in a 70 mile-per-
6 hour zone. Deputy Orgain, who was driving a marked patrol vehicle, turned on his
7 emergency lights, and eventually his siren, in an attempt to pull Defendant’s SUV
8 over. Defendant refused to stop, however, and continued to drive erratically toward
9 Carlsbad. On several occasions, Deputy Orgain thought that Defendant’s SUV was
10 going to crash. As Defendant approached Carlsbad, other police units responded
11 and joined in the effort to stop him. An assisting deputy deployed spike strips in an
12 attempt to stop the SUV, but Defendant managed to avoid the spike strips by
13 veering off the roadway, nearly colliding with other vehicles, and then hitting
14 another vehicle while driving on the wrong side of the roadway. During this
15 pursuit, one deputy observed Defendant frantically yelling into a cell phone.
16 Eventually, Defendant lost control of the SUV, causing it to flip over. After the
17 crash, Defendant was visibly agitated and attempted to extract himself from the
18 wreckage, but was arrested when officers reached the crash scene. Defendant was
19 relatively compliant with the officers at the scene and while he was being taken to
20 the hospital. At the hospital, Defendant’s blood was drawn, but he was unable to
1 speak coherently or effectively cooperate with hospital staff at the time. The
2 ensuing report on Defendant’s blood draw indicated that he had high levels of
3 methamphetamine and related compounds in his system.
4 {3} At trial, and in support of the DWI charge, the State’s expert testified that
5 Defendant had a level of “more than thirty times higher than the therapeutic range”
6 of methamphetamine in his blood and that such high dosages could cause a person
7 to be delusional, to experience hallucinations, and to experience other
8 psychological and physiological distortions. In light of this testimony, Defendant
9 argued that the high level of methamphetamine in his blood was sufficient to
10 support a voluntary intoxication defense to rebut the State’s claim he was driving
11 “willfully and carelessly in a manner that endangered the life of another and . . .
12 knew that a law enforcement officer had . . . given [a] visual or audible signal [to
13 stop].” UJI 14-2217 NMRA. Defendant therefore requested a modified version of
14 UJI 14-2217 on aggravated fleeing, which would have required the State to prove
15 that he “was not intoxicated from the use of drugs at the time the offense was
16 committed to the extent of being incapable of forming an intention to drive a
17 vehicle in a manner that endangered the life of another person after being given a
18 visual or audible signal to stop[.]”
19 {4} Defendant also asked the district court to give a modified version of UJI 14-
20 5111 on the voluntary intoxication defense, which would have told the jury to
1 determine whether or not Defendant was intoxicated as a result of his drug use, and
2 if so, the effect that it had on his “ability to form the intent to drive a vehicle in a
3 manner that endangered the life of another person after being given a visual or
4 audible signal to stop.” This proposed instruction also would have alerted the jury
5 that if it found Defendant not guilty of aggravated fleeing, it was to then consider
6 whether he was guilty of the lesser-included offense of resisting, evading, or
7 obstructing a police officer, contrary to NMSA 1978, § 30-22-1(B) (1981), but that
8 if the jury had a reasonable doubt about whether Defendant “was capable of
9 forming an intention to continue to drive after being given a visual or audible
10 signal to stop[,]” then it was to acquit him of that offense too.
11 {5} The district court denied Defendant’s request for these instructions,
12 concluding that voluntary intoxication is a defense available only to specific-intent
13 crimes, and thus was inapplicable to aggravated fleeing, which, according to the
14 district court, is a general-intent crime. This ruling also affected Defendant’s
15 request for a lesser-included-offense instruction, which the district court stated
16 “would be excluded based on what I just ruled on.” The jury convicted Defendant
17 of both DWI and aggravated fleeing. Defendant now appeals his conviction for
18 aggravated fleeing.
19 DISCUSSION
20 I. The district court properly rejected Defendant’s requested jury 21 instruction on voluntary intoxication 5
1 {6} On appeal, Defendant claims that the district court erred by refusing two of
2 his requested instructions, which would have informed the jury that it was to find
3 him not guilty if his own voluntary intoxication from taking drugs rendered him
4 incapable of forming the intent (willfulness) required to commit the offense of
5 aggravated fleeing. In the alternative, Defendant argues that the district court
6 should have instructed the jury to find him not guilty if his voluntary intoxication
7 rendered him incapable of subjectively knowing that law enforcement had signaled
8 for him to stop. We reject these claims, because voluntary intoxication is not a
9 defense to aggravated fleeing.
10 A. Standard of review
11 {7} “The propriety of denying a jury instruction is a mixed question of law and
12 fact that we review de novo.” State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M.
13 347, 36 P.3d 438. Regarding questions of fact, this Court does “not weigh the
14 evidence but rather determine[s] whether there is sufficient evidence to raise a
15 reasonable doubt” about the defense that has been offered. Id. But here we are
16 called on to decide whether voluntary intoxication is a defense to the crime of
17 aggravated fleeing, and that question presents a pure issue of law that we review de
18 novo. See Collins v. St. Vincent Hosp., Inc., 2018-NMCA-027, ¶ 21, 415 P.3d 1012
19 (stating that appellate courts apply de novo review to determine whether jury
1 instruction that the district court refused to give correctly stated the law), cert.
2 denied, 2018-NMCERT-___ (No. S-1-SC-36837, March 26, 2018).
3 B. Voluntary intoxication is not a defense to aggravated fleeing
4 {8} In New Mexico, it is well established that “voluntary intoxication is neither
5 excuse nor justification for a crime which does not require specific intent.” State v.
6 Crespin, 1974-NMCA-104, ¶ 9, 86 N.M. 689, 526 P.2d 1282; see also State v.
7 Campos, 1996-NMSC-043, ¶¶ 31-46, 122 N.M. 148, 921 P.2d 1266 (recognizing
8 “that voluntary intoxication is only a defense to specific-intent crimes”). Specific-
9 intent crimes encompass “those crimes for which the statutory elements include an
10 intent to do some further act or achieve some additional consequence.” Id. ¶ 37.
11 For example, first-degree murder, as set forth in NMSA 1978, § 30-2-1(A)(1)
12 (1994), is a specific-intent crime because it requires proof not only of a
13 “defendant’s intentional actions” causing the victim’s death, but also proof that the
14 defendant had a “deliberate intent to cause death[.]” Id. ¶ 39. “The remaining
15 crimes that lack this element of further intent comprise the class of general-intent
16 crimes. Thus, a general-intent crime is one for which no additional intent to
17 accomplish a further goal is specified.” Id. ¶ 37. “A general[-]intent crime . . .
18 requires only a conscious wrongdoing, or the purposeful doing of an act that the
19 law declares to be a crime.” State v. Brown, 1996-NMSC-073, ¶ 22, 122 N.M. 724,
20 931 P.2d 69 (internal quotation marks and citation omitted).
1 {9} We conclude that aggravated fleeing is not a specific-intent crime and,
2 therefore, the district court properly denied Defendant’s requested instructions. The
3 Legislature has defined aggravated fleeing as follows:
4 Aggravated fleeing a law enforcement officer consists of a person 5 willfully and carelessly driving his vehicle in a manner that endangers the 6 life of another person after being given a visual or audible signal to stop, 7 whether by hand, voice, emergency, light, flashing light, siren or other 8 signal, by a uniformed law enforcement officer in an appropriately marked 9 law enforcement vehicle in pursuit in accordance with the provisions of the 10 Law Enforcement Safe Pursuit Act.
11 Section 30-22-1.1(A). The statutory language merely required that Defendant
12 “willfully and carelessly driv[e]” his SUV in a dangerous manner after police
13 signaled to him to stop and pull over, id.; it did not require the State to prove that
14 he had “an intent to do some further act or achieve some additional consequence”
15 beyond the willful and careless driving. Campos, 1996-NMSC-043, ¶ 37.
16 {10} Defendant, however, argues that he was nevertheless entitled to the
17 instructions under Brown, a decision in which our Supreme Court recognized a
18 narrow exception to the rule that voluntary intoxication is only a defense to
19 specific-intent crimes. In that case, our Supreme Court held that a defendant may
20 also assert a voluntary intoxication defense to first-degree depraved mind murder.
21 Brown, 1996-NMSC-073, ¶ 1. That crime is defined as “the killing of one human
22 being by another without lawful justification or excuse, by any of the means with
23 which death may be caused . . . by any act greatly dangerous to the lives of others,
1 indicating a depraved mind regardless of human life.” Section 30-2-1(A)(3). Our
2 Supreme Court noted that it had previously interpreted “depraved mind regardless
3 of human life” as requiring the state to prove that a defendant had “ ‘subjective
4 knowledge’ that his or her act was extremely dangerous to the lives of others.”
5 Brown, 1996-NMSC-073, ¶ 16. Our Supreme Court explained that this
6 interpretation was necessary to distinguish first-degree depraved mind murder from
7 the less serious offense of second-degree murder, which contains a mens rea
8 element of knowledge. Id. ¶¶ 13-19; see § 30-2-1(B) (stating that “a person who
9 kills another human being without lawful justification or excuse commits murder
10 in the second degree if in performing the acts which cause the death he [or she]
11 knows that such acts create a strong probability of death or great bodily harm to
12 that individual or another”) (emphasis added)). The Brown Court then noted that
13 the knowledge element of second-degree murder requires only objective
14 knowledge, not subjective knowledge.1996-NMSC-073, ¶ 16.
15 {11} Turning to the question of whether voluntary intoxication should be a
16 defense to first-degree depraved mind murder, our Supreme Court stated that the
17 offense of depraved-mind murder presented a “unique circumstance,” because the
18 subjective knowledge element meant that the offense could not really be classified
19 as either a general-intent or a specific-intent crime. Id. ¶¶ 24-27. Our Supreme
20 Court then explained that a defendant’s “capacity to possess ‘subjective
1 knowledge’ may be just as affected by intoxication as the capacity to intend to do a
2 further act[,]” and held that the district court erred by refusing the defendant’s
3 proffered jury instruction on voluntary intoxication. Id. ¶¶ 27, 34.
4 {12} We conclude that the statutory definition of aggravated fleeing does not fall
5 within the narrow Brown exception. To be convicted of aggravated fleeing, a
6 defendant must act “willful[ly].” Section 30-22-1.1(A)(1). But the mens rea of
7 “willful[ness]” did not require proof that Defendant acted with subjective
8 knowledge. See State v. Rosaire, 1997-NMSC-034, ¶ 7, 123 N.M. 701, 945 P.2d
9 66 (stating that “ ‘[w]illfully’ denotes the doing of an act without just cause or
10 lawful excuse”).
11 {13} Defendant also relies on Elonis v. United States, 135 S. Ct. 2001 (2015), for
12 the proposition that “a defendant generally must ‘know the facts that make his
13 conduct fit the definition of the offense,’ even if he does not know that those facts
14 give rise to a crime.” Id. at 2009 (internal quotation marks and citation omitted).
15 Defendant argues that this statement means that to convict him of aggravated
16 fleeing, the jury was required to find that he knew that he was endangering the
17 lives of other people, and that the denial of an instruction telling the jury so
18 violated his rights to due process and to present a defense. We disagree. Defendant
19 takes the statement from Elonis out of context. In the passage that Defendant cites,
20 the Supreme Court of the United States was not imposing an unprecedented
1 subjective-knowledge requirement on all elements of all criminal offenses, as
2 Defendant seemingly contends, but was merely explaining that its previous
3 decisions required the government to prove that a defendant had knowledge of “the
4 facts that make his conduct fit the definition of the [crime]” in situations where the
5 lack of such evidence would run the risk of convicting a defendant for innocent
6 conduct. Id. at 2010-11 (internal quotation marks and citations omitted). The
7 Supreme Court then stated that “[t]he ‘presumption in favor of a scienter
8 requirement should apply to each of the statutory elements that criminalize
9 otherwise innocent conduct.” Id. at 2011 (internal quotation marks and citation
10 omitted). Elonis does not support reading a subjective-knowledge requirement into
11 “willfully and carelessly driving [a] vehicle in a manner that endangers the life of
12 another person[,]” Section 30-22-1.1(A), because there is no danger that otherwise
13 innocent conduct will be criminalized. Driving on the roads in a careless manner is
14 not innocent conduct. See NMSA 1978, § 66-8-114(B) (1978) (criminalizing the
15 operation of “a vehicle in a careless, inattentive or imprudent manner”). Much less
16 was it innocent conduct for Defendant to possess illegal drugs, ingest them until he
17 was intoxicated, and then drive while intoxicated.
18 {14} Finally, Defendant argues that if voluntary intoxication is not a defense to
19 the mens rea of “willfulness,” the district court should have instructed the jury that
20 voluntary intoxication was a defense to the requirement that he know that law
1 enforcement had signaled for him to stop. We disagree. Here the jury was
2 instructed, in accord with UJI 14-2217, that to convict Defendant of aggravated
3 fleeing, the State must prove that “[t]he defendant knew that a law enforcement
4 officer had given him an audible or visual signal to stop[.]” But this knowledge
5 element does not make aggravated fleeing a specific-intent offense. See State v.
6 Beach, 1985-NMSC-043, ¶ 12, 102 N.M. 642, 699 P.2d 115 (stating that the
7 “knowledge” element in crime of second-degree murder “is not an equivalent
8 mental state to the intent to do a further act or achieve a further consequence, and a
9 knowledge element does not always make a crime one of specific intent”),
10 overruled on other grounds by Brown, 1996-NMSC-073, ¶ 16; see also Campos,
11 1996-NMSC-043, ¶ 38 (“A crime defined as requiring the mens rea of knowledge,
12 such as second-degree murder, does not require any further intent and therefore
13 does not fall within the class of specific-intent crimes.”).
14 {15} In sum, aggravated fleeing is not a specific-intent offense, and it does not
15 contain any subjective-knowledge element. The district court therefore did not err
16 by declining to instruct the jury that voluntary intoxication was a defense to
17 aggravated fleeing.
18 II. The district court did not commit fundamental error by not giving the 19 jury a mistake-of-fact instruction, because a defendant’s mistake of fact 20 is not reasonable if it is based solely on voluntary intoxication
1 {16} Defendant argues that if he was not entitled to a voluntary intoxication
2 instruction, the district court should have given a mistake-of-fact instruction
3 instead. Defendant acknowledges that he did not propose a mistake-of-fact
4 instruction to the district court, and we therefore review his claim for fundamental
5 error. See State v. Bunce, 1993-NMSC-057, ¶ 1, 116 N.M. 284, 861 P.2d 965
6 (reviewing unpreserved claim that the district court should have given a mistake-
7 of-fact instruction for fundamental error). Because we conclude that Defendant
8 was not entitled to a mistake-of-fact instruction, the failure to give such an
9 instruction was not even reversible error, much less fundamental error.
10 {17} New Mexico recognizes the common-law defense of mistake of fact, which
11 a criminal defendant may assert if he or she had “an honest and reasonable belief in
12 the existence of circumstances, which, if true, would make the act for which [he or
13 she was] indicted an innocent act[.]” State v. Gonzales, 1983-NMCA-041, ¶ 14, 99
14 N.M. 734, 663 P.2d 710; see also Black’s Law Dictionary 1153 (10th ed. 2014)
15 (defining “mistake of fact” as “[t]he defense asserting that a criminal defendant
16 acted from an innocent misunderstanding of fact rather than from a criminal
17 purpose”). District courts should instruct the jury on mistake of fact “when it
18 negates the existence of the mental state essential to the crime charged.” State v.
19 Contreras, 2007-NMCA-119, ¶ 15, 142 N.M. 518, 167 P.3d 966 (internal
20 quotation marks and citation omitted). But the district court need not give a
1 mistake-of-fact instruction “where the intent element of the crime is adequately
2 defined by the other instructions given by the trial court.” Bunce, 1993-NMSC-
3 057, ¶ 9.
4 {18} Defendant argues that he was entitled to assert a mistake-of-fact defense
5 “[b]ecause he was likely delusional and/or hallucinating, and at the very least was
6 unable to clearly assess his surroundings or form rational thoughts” and therefore
7 lacked the required mens rea to commit aggravated fleeing. Defendant appears to
8 argue that due to his intoxicated state, a jury could find that he did not “willfully
9 and carelessly” drive in a manner that endangered human life because he was
10 unaware that he was driving dangerously, or that he did not know that he had been
11 “given a visual or audible signal to stop” by law enforcement, or both. Section 30-
12 22-1.1(A). Defendant further relies on Contreras for the proposition that he was
13 still entitled to assert a mistake-of-fact defense even though his voluntary
14 intoxication was the basis for his purported mistake. The State argues that a
15 mistake-of-fact defense is not appropriate as a matter of law where it is based
16 solely on a defendant’s voluntary intoxication; that the aggravated fleeing statute
17 contains no knowledge element; that the evidence here was not sufficient to
18 support giving a mistake-of-fact instruction in any event; and that mistake-of-fact
19 instructions were not appropriate in this case because the district court’s
20 instructions adequately defined the intent elements of the offense.
1 {19} We agree with the State that a mistake-of-fact defense is not appropriate
2 where the mistake at issue was caused solely by the defendant’s voluntary
3 intoxication, and we therefore do not address the State’s other proffered grounds
4 for affirmance. To assert a mistake-of-fact defense, a defendant must have “an
5 honest and reasonable belief in the existence of circumstances, which, if true,
6 would make the act for which [he or she was] indicted an innocent act[.]”
7 Gonzales, 1983-NMCA-041, ¶ 14 (emphasis added). Assuming, without deciding,
8 that Defendant presented evidence sufficient to show that his intoxication caused
9 him to genuinely believe that he was driving safely, or that someone other than law
10 enforcement was signaling him to stop, we conclude that those beliefs were not
11 objectively reasonable as a matter of law. Defendant does not point to any fact,
12 other than his own voluntary intoxication, that contributed to his mistaken beliefs.
13 To allow a mistake-of-fact defense in this circumstance, where the sole reason for
14 Defendant’s misperception of the true facts was his own voluntary decision to
15 deprive himself of the ability to correctly perceive those facts, would be
16 unreasonable. The common-law defense of mistake of fact was meant to protect
17 defendants against good-faith mistakes, not self-induced ones. In addition, to
18 recognize a mistake-of-fact defense to a general intent crime (like aggravated
19 fleeing) based solely on a defendant’s voluntary intoxication would effectively
1 allow an end run around our Supreme Court’s restriction of the voluntary
2 intoxication defense to specific-intent crimes. This we will not do.
3 {20} To be sure, as Defendant points out, in State v. Nozie, 2009-NMSC-018, 146
4 N.M. 142, 207 P.3d 1119, and in Contreras, our Supreme Court and this Court
5 considered voluntary intoxication as a relevant factor in evaluating whether a
6 mistake-of-fact instruction should be given. But those cases are distinguishable
7 because the defendant’s voluntary intoxication was not the sole basis of the
8 mistake-of-fact defense. In each of them, circumstances not caused by the
9 defendant’s culpable conduct combined with his voluntary intoxication to produce
10 a situation in which a mistake of fact occurred.
11 {21} In Nozie, the defendant, who had been drinking heavily throughout the day,
12 went to a Safeway grocery store with his wife and her sister after nightfall, and got
13 into an argument with them that quickly turned violent. 2009-NMSC-018, ¶ 2. A
14 store security guard, who was wearing black pants and a gray shirt, came out to
15 investigate, and got into a physical altercation with the defendant, punching him
16 several times. Id. ¶ 3. After that, the defendant walked over to a nearby vacant
17 parking lot, where he was approached by a police officer who was wearing dark
18 clothing, and who did not identify himself as a police officer. Id. ¶¶ 3-7. The
19 defendant struck the officer in the eye, knocked him to the ground, and head-butted
20 him several times. Id. ¶ 6. For this, the defendant was charged with aggravated
1 battery on a police officer. Id. ¶ 9. The defendant asked for a mistake-of-fact
2 instruction, arguing that he mistakenly thought the police officer was the private
3 security guard from the grocery store, but the district court refused to give the
4 instruction. Id. ¶¶ 10-11. On appeal, our Supreme Court held that the evidence was
5 sufficient to support a mistake-of-fact defense, because a jury could have found
6 that the defendant “was in a dazed, disoriented, and intoxicated state” and believed
7 that he was attacking a private security guard, not a law enforcement officer. Id.
8 ¶¶ 33-35 (internal quotation marks and citation omitted).
9 {22} Similarly, in Contreras, the defendant was charged with breaking and
10 entering into a motel room, and asked for a mistake-of-fact instruction, which was
11 denied. 2007-NMCA-119, ¶¶ 1, 3. This Court held that the instruction should have
12 been given, because: the defendant was intoxicated; he had paid for a room and
13 was given a card key to room 125, which he therefore had permission to enter; the
14 card key did not have the room number on it; he did not steal anything from room
15 121, the room that he had entered; he was in the bathroom in room 121 with his
16 shoes off, from which a jury could infer that he was using it as a room for which he
17 had paid; and the key to room 125 was found just outside room 121, from which a
18 jury could infer that the defendant had tried to use the key to open the room door.
19 Id. ¶¶ 2-3, 11.
1 {23} In both Nozie and Contreras, circumstances not of the defendants’ own
2 making combined with their voluntary intoxication to produce situations in which a
3 reasonable mistake of fact could have occurred. In Nozie, the defendant had been
4 punched several times by a security guard in a store parking lot after dark, and was
5 walking away from there in a vacant parking lot when he was approached by a
6 police officer on foot who was wearing dark clothing and who did not identify
7 himself. In Contreras, the defendant had paid for a motel room and received a card
8 key with no number on it, tried to use the room key on the wrong door, and was
9 inside the room using it as a customer would ordinarily use a motel room when
10 police arrived. Here, by contrast, no facts, other than Defendant’s voluntary
11 intoxication from using methamphetamines, could have contributed to Defendant’s
12 purported belief that he was driving safely, or that the people who were signaling
13 him to stop were not law enforcement officers. Indeed, Defendant identifies no
14 evidence supporting a reasonable belief either that he was driving safely or that he
15 had not been signaled to stop. See State v. Guerra, 2012-NMSC-014, ¶ 21, 278
16 P.3d 1031 (explaining that appellate courts are under no obligation to review
17 unclear or undeveloped arguments). And in any event, the record reflects that
18 Defendant was driving at high rates of speed, swerving back and forth between
19 lanes, and nearly crashing into other vehicles while yelling into a cell phone much
20 of the time. Similarly, the record reflects that Defendant made eye contact with one
1 of the pursuing officers through his rearview mirror and drove around a spike strip
2 that police had placed on the road in an effort to stop him.
3 {24} We therefore reject Defendant’s claim. The district court’s failure to give a
4 mistake-of-fact instruction sua sponte was not error at all, much less fundamental
5 error.
6 III. The district court did not commit fundamental error by not instructing 7 the jury on the lesser-included offense of resisting, evading, or 8 obstructing an officer
9 {25} Defendant argues that the district court should have instructed the jury on
10 the misdemeanor offense of resisting, evading, or obstructing an officer, contrary
11 Section 30-22-1, which is a lesser-included offense of aggravated fleeing. We
12 reject this claim.
13 {26} We ordinarily review a district court’s decision to deny a lesser-included
14 offense instruction under the de novo standard of review. State v. Munoz, 2004-
15 NMCA-103, ¶ 10, 136 N.M. 235, 96 P.3d 796. However, if a defendant has not
16 preserved his or her claim that a lesser-included offense instruction should have
17 been given, we do not review that claim for fundamental error, because the
18 defendant may have strategic reasons for seeking, or not seeking, a lesser-included
19 offense instruction. See State v. Foster, 1999-NMSC-007, ¶ 54, 126 N.M. 646, 974
20 P.2d 140 (stating that “we have declined to apply the doctrine of fundamental error
21 to a defendant’s choice of whether to have the jury instructed on lesser included
1 offenses,” and that appellate courts will not free defendants from the consequences
2 of their choice to ask for, or decline to ask for, such an instruction), abrogation on
3 other grounds recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M.
4 381, 237 P.3d 683.
5 {27} Here, Defendant requested lesser-included offense instructions that were
6 contingent on his argument that he was entitled to assert a voluntary intoxication
7 defense to aggravated fleeing. Once the district court ruled that the defense was not
8 available, he no longer asked for the instructions. Because Defendant asked for a
9 lesser-included offense instruction only in the context of his voluntary intoxication
10 defense, and once that defense was rejected he no longer asked for that instruction,
11 we conclude that his claim is unpreserved.
12 {28} But even if we believed that his claim was preserved, or that we should
13 review for fundamental error, as Defendant argues, we would still reject this claim
14 because the evidence at trial did not support giving a lesser-included offense
15 instruction. To be entitled to a lesser-included offense instruction, a criminal
16 defendant must satisfy three requirements; he must show that: “(1) the defendant
17 could not have committed the greater offense in the manner described in the
18 charging document without also committing the lesser offense, and therefore notice
19 of the greater offense necessarily incorporates notice of the lesser offense; (2) the
20 evidence adduced at trial is sufficient to sustain a conviction on the lesser offense;
1 and (3) the elements that distinguish the lesser and greater offenses are sufficiently
2 in dispute such that a jury rationally could acquit on the greater offense and convict
3 on the lesser.” State v. Meadors, 1995-NMSC-073, ¶ 12, 121 N.M. 38, 908 P.2d
4 731.
5 {29} The parties do not appear to dispute that Defendant could not have
6 committed aggravated fleeing without also committing the offense of resisting,
7 evading, or obstructing an officer, and that the evidence at trial would have
8 supported a conviction for the lesser-included offense. We agree that these
9 elements were satisfied because, in general, resisting, evading, or obstructing an
10 officer is a lesser-included offense of aggravated fleeing. See State v. Padilla,
11 2006-NMCA-107, ¶ 24, 140 N.M. 333, 142 P.3d 921 (“We agree that
12 resisting/evading is a lesser included offense of aggravated fleeing”), overruled on
13 other grounds, 2008-NMSC-006, ¶ 34, 143 N.M. 310, 176 P.3d 299.
14 {30} The State argues, however, that the third prong of the Meadors test is not
15 satisfied. That prong requires Defendant to show that “the elements that distinguish
16 the lesser and greater offenses are sufficiently in dispute such that a jury rationally
17 could acquit on the greater offense and convict on the lesser.” Meadors, 1995-
18 NMSC-073, ¶ 12; see also State v. Hill, 2001-NMCA-094, ¶ 17, 131 N.M. 195, 34
19 P.3d 139 (stating that to be entitled to a lesser-included offense instruction, a
20 defendant must show that “there is a rational view of the evidence that would lead
1 the jury to conclude beyond a reasonable doubt that [the d]efendant committed the
2 lesser included offense while still harboring a reasonable doubt that [the d]efendant
3 committed the charged offense”).
4 {31} The only element of aggravated fleeing not included in resisting, evading, or
5 obstructing an officer is “willfully and carelessly driving [a] vehicle in a manner
6 that endangers the life of another person.” Compare § 30-22-1.1(A), with § 30-22-
7 1(B),(C). We agree with the State that no rational view of the evidence would lead
8 a jury to conclude that Defendant was not “willfully and carelessly” driving in a
9 manner that endangered the lives of others. In response to the State’s argument,
10 Defendant again relies on his voluntary intoxication and argues that it negated his
11 subjective knowledge, but we have already rejected Defendant’s arguments that
12 willfulness required subjective knowledge, and that voluntary intoxication could
13 negate the mens rea of willfulness. Defendant points to no other facts that could
14 have caused a jury to entertain a reasonable doubt that Defendant was “willfully
15 and carelessly” driving in a manner that endangered the lives of other people. The
16 evidence at trial was that Defendant was driving at speeds far exceeding the speed
17 limit, weaving back and forth, driving at times in the left lane, and that he nearly
18 crashed into several vehicles. Based on this uncontradicted evidence, we conclude
19 that even if Defendant’s claim had been properly preserved, he was not entitled to
20 a lesser-included offense instruction.
1 {32} Our holding on this point also disposes of three other related arguments that
2 Defendant makes. First, Defendant argues that defense counsel committed
3 ineffective assistance by not asking the district court to give the lesser-included
4 offense instruction that he tendered, even though the district court rejected the
5 voluntary intoxication defense on which that instruction was premised. Second,
6 Defendant argues that while defense counsel properly submitted a lesser-included
7 offense instruction based on Section 30-22-1(B), he should also have requested a
8 lesser-included instruction based on Section 30-22-1(C), which states that a person
9 may also commit resisting, evading, or obstructing an officer by “willfully refusing
10 to bring a vehicle to a stop when given a visual or audible signal to stop, whether
11 by hand, voice, emergency light, flashing light, siren or other signal, by a
12 uniformed officer in an appropriately marked police vehicle[.]” Defendant argues
13 that counsel’s failure to do so also constituted ineffective assistance. Third,
14 Defendant argues that the district court committed fundamental error by not
15 instructing the jury on the lesser-included offense as defined in Section 30-22-
16 1(C). Each of these claims fails because Defendant was not entitled to a lesser-
17 included offense instruction under either Subsection (B) or (C) of Section 30-22-1
18 because there was no rational view of the evidence which could have caused a jury
19 to find that he did not “willfully and carelessly” drive in a manner that endangered
20 the lives of others. See State v. Gonzales, 1991-NMSC-075, ¶ 8, 112 N.M. 544,
1 817 P.2d 1186 (stating that where “no error” has occurred, there can be no
2 fundamental error); see also State v. Baca, 1997-NMSC-059, ¶ 30, 124 N.M. 333,
3 950 P.2d 776 (stating that counsel is not ineffective for declining to seek lesser-
4 included offense instruction where no reasonable view of the evidence supports
5 giving the instruction).
6 IV. The district court did not abuse its discretion by excluding the 7 testimony of Defendant’s untimely-disclosed witnesses
8 {33} A week before trial, Defendant filed a supplemental witness disclosure with
9 the names and telephone numbers of seven witnesses, but did not explain what
10 testimony he expected them to give. The prosecutor moved to exclude them on
11 timeliness and relevance grounds, explaining that he had been able to talk with two
12 of them, and he thought the purpose of the testimony was to bolster Defendant’s
13 character. Defense counsel explained that he provided the witnesses’ names to the
14 State as soon as he knew about them, and explained that they had relevant evidence
15 in support of Defendant’s voluntary intoxication defense, because they knew him
16 before the incident and had visited him at times during the five days after his
17 arrest, and could testify about the extent to which his intoxication had impaired his
18 ordinary mental capacity. The district court expressed strong doubts about whether
19 this evidence was relevant, but ruled that the disclosure was too late, and that the
20 witnesses would not be allowed to testify at trial.
1 {34} Defendant now claims that the district court erred by excluding these
2 witnesses, arguing that they would have provided relevant testimony in support of
3 his voluntary intoxication and mistake-of-fact defenses, that the State would not
4 have been prejudiced had they been allowed to testify, and that his defense was
5 prejudiced by the failure to allow their testimony. We review a district court’s
6 decision to exclude the testimony of untimely-disclosed witnesses for abuse of
7 discretion. See State v. Le Mier, 2017-NMSC-017, ¶ 22, 394 P.3d 959.
8 {35} We need not decide whether the district court abused its discretion by
9 excluding these witnesses on untimeliness grounds, because Defendant has failed
10 to show any prejudice as a result of the exclusion order. The excluded witnesses
11 did not see Defendant’s dangerous driving and pursuit by police, but would only
12 have been called to provide testimony in support of his voluntary intoxication and
13 mistake-of-fact defenses based on their personal interactions with him both before
14 and after the incident. But we have already held that Defendant was not entitled to
15 raise voluntary intoxication or mistake of fact as defenses in this case. The
16 witnesses’ testimony would therefore have been irrelevant in any event, and its
17 exclusion could not have unfairly prejudiced Defendant. We therefore reject
18 Defendant’s claim and uphold the exclusion order.
19 CONCLUSION
20 {36} We affirm the judgment and sentence.
1 {37} IT IS SO ORDERED.
2 __________________________________ 3 EMIL J. KIEHNE, Judge Pro Tempore
4 WE CONCUR:
5 _______________________________________ 6 J. MILES HANISEE, Judge
7 ________________________________________ 8 DANIEL J. GALLEGOS, Judge Pro Tempore