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State v. Mantelli1/29/2002
clude a modified version of subsection four of UJI 14-343 NMRA 2001 that reads "The Defendant was not a law enforcement officer engaged in the lawful performance of duty." Instead the instruction tendered by Defendant and given by the court modified UJI 14-343 to include as an element that the State was required to prove that "the Defendant was not acting in self-defense or defense of others."
When a defendant does not object to a jury instruction as given, we review only for fundamental error. State v. Cunningham, 2000-NMSC-009, 8, 128 N.M. 711, 998 P.2d 176. Because we are remanding for a new trial, we need not inquire if the tendered jury instruction rises to the level of fundamental error. However, in the event of a new trial on this count, the jury should be instructed on the element found in subsection C of Section 30-3-8.
VI. SUFFICIENCY OF THE EVIDENCE TO SUPPORT CONVICTION FOR VOLUNTARY MANSLAUGHTER AND AGGRAVATED BATTERY
Defendant contends that no reasonable jury could have reasonably determined that the shooting was not in self-defense or the defense of Sgt. Marquez and as a result his conviction is not based on sufficient evidence. In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, we review the record to determine whether substantial evidence, either direct or circumstantial, exists such that a rational jury could have found proof beyond a reasonable doubt with respect to every element of the charged offense. State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct. App. 1993). In applying this standard we view the evidence in a light most favorable to the State and resolve all conflicts and indulge all permissible inferences in favor of upholding the verdict of the jury. Id. We have reviewed the record and find there was substantial evidence to sustain Defendant's convictions-even under proper instructions-for voluntary manslaughter, and aggravated assault with a deadly weapon, and shooting at a motor vehicle resulting in injury . See State v. Foxen, 2001-NMCA-061, 18, 130 N.M. 670, 29 P.3d 1071.
VII. CONCLUSION
The judgment and sentence of the district court is reversed and the matter is remanded with instructions that Defendant be granted a new trial.
IT IS SO ORDERED.
WE CONCUR:
RICHARD C. BOSSON, Chief Judge
JAMES J. WECHSLER, Judge (concurring in part and dissenting in part)
WECHSLER, Judge (concurring in part and dissenting in part).
I agree that there is a view of the evidence such that Defendant could construct a defense of justifiable homicide. However, I do not believe that a jury instruction on justifiable homicide would have made a material difference in this case. With that belief, I respectfully dissent from the majority's holding reversing and remanding for a new trial on the voluntary manslaughter and aggravated assault with a deadly weapon charges.
The defense of justifiable homicide permits a law enforcement officer to use deadly force to arrest a fleeing felon when the officer has probable cause to believe that the officer or another is threatened with serious harm or deadly force. Section 30-2-6. Defendant was trying to stop Abelino Montoya, there was testimony that Mr. Montoya had committed a felony, and Defendant testified that he used deadly force because he believed that Mr. Montoya was attacking Sergeant Marquez and himself. The issue of whether Mr. Montoya was fleeing at the time was an issue of fact for the jury. On this basis, Defendant was entitled to the justifiable homicide instruction. State v. Nieto, 2000-NMSC-031, 15, 129 N.M. 688, 12 P.3d 442 (
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