State v. Robert H

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 29,274 5 ROBERT H., 6 Child-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 Frank K. Wilson, District Judge

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

11 for Appellee

12 The Rose Law Firm 13 Timothy L. Rose 14 Ruidoso, NM

15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 18 Robert H. (Child) appeals his adjudication of delinquency after a non-jury 19 hearing for committing public affray, arguing that the evidence was insufficient. This 20 Court filed a calendar notice on April 21, 2009, proposing summary affirmance. 21 Child filed a memorandum in opposition stating that he has no objection to the

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1 calendar notice’s description of the facts this Court proposed to rely on, but again 2 contending that these facts do not amount to the offense of public affray. [DS 2] 3 Having given due consideration to Child’s memorandum, we affirm the district court’s 4 adjudication of delinquency. 5 In delinquency proceedings, “[t]he court shall make a finding of delinquency 6 based on a valid admission of the allegations of the petition or on the basis of proof 7 beyond a reasonable doubt.” NMSA 1978, § 32A-2-16(E) (1993). “Substantial 8 evidence is relevant evidence that a reasonable mind might accept as adequate to 9 support a conclusion.” Sate v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 10 829. In reviewing the sufficiency of evidence used to support a conviction, we resolve 11 all disputed facts in favor of the State, indulge all reasonable inferences in support of 12 the verdict, and disregard all evidence and inferences to the contrary. Id. Then the 13 appellate court must make a legal determination of “whether the evidence viewed in 14 this manner could justify a finding by any rational trier of fact that each element of the 15 crime charged has been established beyond a reasonable doubt.” State v. Apodaca, 16 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation 17 omitted). 18 “Public affray consists of two or more persons voluntarily or by agreement 19 engaging in any fight or using any blows or violence toward each other in an angry

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1 or quarrelsome manner in any public place, to the disturbance of others.” NMSA 2 1978, § 30-20-2 (1963). 3 Child argues that the evidence was insufficient to show that he “voluntarily or 4 by agreement” engaged in a fight. Rather, he asserts that he acted in self-defense and 5 that he was entitled to stand his ground. A claim of self-defense is available if, in the 6 circumstances, the defendant “was put in fear by an apparent danger of immediate 7 bodily harm, . . . his assault resulted from that fear, and [he] acted as a reasonable 8 person would act under those circumstances.” State v. Lara, 109 N.M. 294, 297, 784 9 P.2d 1037, 1040 (Ct. App. 1989); see also UJI 14-5181 NMRA. Where self-defense 10 is claimed, “the State must disprove the defendant's self-defense claim beyond a 11 reasonable doubt.” State v. Benally, 2001-NMSC-033, ¶ 10, 131 N.M. 258, 34 P.3d 12 1134. New Mexico law recognizes a right to stand one’s ground in the course of self- 13 defense. See, e.g., State v. Southworth, 2002-NMCA-091, ¶ 19, 132 N.M. 615, 52 14 P.3d 987 (recognizing right to stand ground unless threatened with lawful force); see 15 also UJI 14-5190 NMRA (“A person who is threatened with an attack need not retreat. 16 In the exercise of his right of self defense, he may stand his ground and defend 17 himself.”). 18 The record proper, including the tape log, gives no indication that Child 19 affirmatively asserted a claim of self-defense. The district court, however, considered

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1 the possibility of self-defense, finding (as reported in the tape log) that “This fight [is] 2 not a case in which [the] court is unable to say where self defense ends and voluntary 3 participation begins. By the time this involved Officer Esquero it was a mutual 4 combat situation and disturbance to others.” [RP 44] Our review of the tape log 5 reveals ample evidence to support the district court’s finding. Officer Munoz testified 6 that during the fight Child said, “Come on Mother F . . . ,” which suggests that Child 7 was taunting the other participant, not defending himself. [RP 34] Officer Esquero 8 testified that after he put Child in a bear hug, Child “was still trying to get to” the 9 other participant and “was going right back at [the other participant] and I had to hold 10 him.” [RP 36, 38] Esquero described the fight as “toe to toe” and testified that Child 11 took no opportunity to get away. [RP 36] Child himself testified that the other 12 participant “just start[ed] towards . . . me and swung at me and we started fighting.” 13 [RP 41] 14 Recognizing that the other participant might have started the fight, and 15 recognizing Child’s right to defend himself and stand his ground, we conclude that the 16 evidence, particularly the evidence that Child tried to continue fighting even when an 17 officer was restraining him, was sufficient to prove beyond a reasonable doubt that 18 Child “voluntarily” engaged in the fight. The testimony regarding Child’s swearing

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1 at the other participant was sufficient to prove the “angry or quarrelsome manner” 2 element of the offense of public affray. § 30-20-2. 3 Accordingly, we affirm the district court’s adjudication of delinquency. 4 IT IS SO ORDERED.

5 6 MICHAEL E. VIGIL, Judge

7 WE CONCUR:

8 9 CYNTHIA A. FRY, Judge

10 11 JAMES J. WECHSLER, Judge