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State v. Mann6/6/2000
792 P.2d 408, 417 (1990) (holding that it is a violation of double jeopardy for defendant to be sentenced for both intentional child abuse resulting in death and first-degree murder). Applying the rationale and holdings of Cooper and Mora, we hold that Defendant cannot be punished for both intentional child abuse resulting in death and second-degree murder.
The next question we must address is which conviction should be vacated. As a general rule, the lesser offense must be vacated. See Pierce, 110 N.M. at 86-87, 792 P.2d at 418-19. Based on the facts of this case, Defendant could not have committed the offense of intentional child abuse resulting in death without also committing second-degree murder. For that reason, second-degree murder is a lesser included offense of intentional child abuse resulting in death. "The rule of merger precludes an individual's conviction and sentence for a crime that is a lesser included offense of a greater charge upon which defendant has also been convicted." Id. at 86, 792 P.2d at 418 (emphasis added). Defendant's conviction for second-degree murder must therefore be vacated.
B. Defendant Was Entitled to an Instruction on Defense of Another
Defendant requested a jury instruction on defense of another by use of non-deadly force. Defendant orally amended the instruction in open court. The instruction requested was a defense to the charge of aggravated battery against a household member. Defendant contended that he was attempting to hold the screwdriver still to protect his son because he was afraid the boy might suffer more extensive injuries if the screwdriver was moved. It was Defendant's theory that if in fact he committed a battery against Patricia St. Jeor, the household member, it was justified because he was attempting to defend his son from further injury . The trial court refused to give the instruction on the basis that "it was [the court's] recollection that Mr. Mann testified that he didn't remember this happening, that he didn't remember striking Ms. St. Jeor, and speculation as to why he did that would be speculation, and there's insufficient evidence before the court at this time for this instruction to be given."
When a defendant raises defense of another as a justification for his actions, an instruction on the defense should be given "`if there is any evidence, even slight evidence, to support the claim.'" State v. Lucero, 1998-NMSC-044, 6, 126 N.M. 552, 972 P.2d 1143 (quoting State v. Duarte, 121 N.M. 553, 556, 915 P.2d 309, 312 (Ct. App. 1996)). Our Supreme Court has interpreted this standard to "require evidence that is `sufficient to allow reasonable minds to differ as to all elements of the defense.'" State v. Lopez, 2000-NMSC-003, 23, 128 N.M. 410, 415, 993 P.2d 727 (quoting State v. Branchal, 101 N.M. 498, 500, 684 P.2d 1163, 1165 (Ct. App. 1984)). UJI 14-5182 NMRA 1999 sets forth the elements of the defense of another-non-deadly force by defendant:
The defendant acted in defense of another if:
1. There was an appearance of immediate danger of bodily harm to ________________________ as a result of _______________________; and
2. The defendant believed that _________________ was in immediate danger of bodily harm from ____________________ and ________________ to prevent the bodily harm; and
3. The defendant used the amount of force that the defendant believed was reasonable and necessary to prevent the bodily harm; and
5. The apparent danger to __________________ would have caused a reasonable person in the same circumstances to act as defendant did.
We must review the evidence presented
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