State v. Smith

                                                              Office of the Director       New Mexico
                                                               10:23:40 2021.07.27         Compilation
                                                                             '00'06-       Commission


             IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: June 30, 2021

No. S-1-SC-38093

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

CHARLES SMITH,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Jacqueline D. Flores, District Judge

Released for Publication August 3, 2021.

Hector H. Balderas, Attorney General
Emily C. Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Kimberly M. Chavez Cook, Appellate Defender
Santa Fe, NM

for Respondent

                                        OPINION

THOMSON, Justice

{1}      Defendant Charles Smith was convicted in the Bernalillo County Metropolitan
Court of battery against a household member. He appealed his conviction first to the
Second Judicial District Court, which affirmed his conviction, and then to the Court of
Appeals. Defendant argued in both appeals that, based on the evidence presented at
trial, the metropolitan court erred by refusing to instruct the jury that the State must
prove that his conduct was unlawful. The Court of Appeals reversed the district court
and concluded “that the court’s refusal to instruct on the essential element of
unlawfulness was reversible error.” State v. Smith, A-1-CA-34765, mem. op. ¶ 15 (Dec.
16, 2019) (nonprecedential).

{2}    The State petitioned this Court for a writ of certiorari and argued that an
instruction on the statutory element of unlawfulness was not required because
Defendant did not establish all the elements of a specific, recognized, legal defense.
However, the State’s argument is contrary to State v. Osborne, which held that a
defendant is not required to establish all the elements of “an exception or defense”
when the term unlawful is used in a criminal statute. See 

, ¶¶ 16, 27-
30, 

, 

. Instead, when there is evidence that supports a
defendant’s theory that the conduct is justifiable or excusable, a trial court has a duty to
instruct the jury that the state must prove a defendant’s conduct was unlawful beyond a
reasonable doubt. See id. ¶¶ 30-32, 40. Although our reasoning differs from the Court of
Appeals, we affirm.

I.     BACKGROUND

{3}    At trial in the metropolitan court, the testimony of Defendant’s girlfriend
Franchessca Sandoval supported both the allegations against Defendant and
Defendant’s own theory of the case, which Defendant argued entitled him to an
unlawfulness instruction. Sandoval testified that she and Defendant were drinking and
playing pool in downtown Albuquerque when they started to argue. Sandoval did not
want to cause a scene because of the number of police in the area, so she took
Defendant’s car (without telling him that she was doing so) and went back to their
shared apartment, leaving him downtown. Left without a car, Defendant took a cab
home.

{4}    Sandoval testified that when Defendant arrived home she wanted to continue the
argument that began at the bar. Because their two children were asleep inside, she
wanted the argument to continue outside of the apartment, and so she blocked the
doorway to prevent Defendant from entering. She pushed him away from the door and
refused to go inside. Defendant did not want to argue or talk to Sandoval; he wanted to
leave. But Sandoval wanted to continue the argument. Defendant’s theory was that she
held onto his keys to prevent him from going inside the apartment or leaving.

{5}     Defendant eventually grabbed his keys out of Sandoval’s hand and pushed her.
She fell to the ground, and he entered the apartment. Sandoval got up and called
emergency services. A few minutes later, Defendant came back outside and went to his
car. Because emergency services asked for the number on the license plate of
Defendant’s car, Sandoval followed and stepped behind his vehicle to get a better look
at the license plate. She did not move out of the way when Defendant started to reverse
out of the parking space, and the car made contact with her arm. He drove away. Based
on this evidence, the jury was instructed that it could convict Defendant if it determined
he “intentionally touched or applied force to [Sandoval] by pushing her down to the
ground and/or backing his car into her.”
{6}    At the close of the State’s case, Defendant moved for a directed verdict and
argued that the State failed to prove that his use of force was unlawful because
Sandoval was using force to keep him out of their apartment and was preventing him
from leaving. The metropolitan court denied the motion for a directed verdict, but asked
the parties if they were going to include “an unlawfulness jury instruction.”

{7}    The State responded that an unlawfulness instruction was not required because
Defendant did not establish a recognized defense to the alleged crime. The
metropolitan court agreed with the State but nonetheless allowed defense counsel to
argue the lawfulness of Defendant’s act in closing argument to the jury. The court then
permitted the State to respond by arguing to the jury that under the instructions given to
the jury unlawfulness was not an element the State was required to prove. The court
would not allow Defendant to mention to the jury that unlawfulness was an essential
element of the crime and declined to include a jury instruction on this element. The jury
convicted Defendant without making the factual finding that the “touch[ing]” or “force”
was unlawful beyond a reasonable doubt.

{8}    The Court of Appeals held that an instruction “on the essential element of
unlawfulness” was required because there was “‘some evidence’” that justified or
excused Defendant’s conduct. Smith, A-1-CA-34765, mem. op. ¶ 6 (quoting State v.
Peterson, 

, 

, 

). The State petitioned
this Court for a writ of certiorari pursuant to Rule 12-502 NMRA, which we granted.

II.    ANALYSIS

{9}     Generally, a trial court is required to instruct a jury on all the essential elements
of a crime on which the jury must pass judgment. See State v. Sena, 

, 

 (“[F]undamental error occurs when jury instructions fail to inform the
jurors that the State has the burden of proving an essential element of a crime.” (internal
quotation marks and citation omitted)); accord State v. Henley, 

,

, 

 (“When evidence at trial supports the giving of an
instruction on a defendant’s theory of the case, failure to so instruct is reversible error.”
(internal quotation marks and citation omitted)). Counter to that general statement of law
however, New Mexico law has recognized “[t]wo exceptions . . . to the rule requiring the
trial court to instruct the jury on the essential element of unlawfulness.” Peterson, 1998-
NMCA-049, ¶ 10.

{10} The first exception occurs when “the instruction contains language that is
obviously synonymous with the element of unlawfulness . . . .” 

 (internal quotation
marks and citation omitted). The second exception occurs “when there is no evidence of
lawful behavior, and hence the element omitted from the instructions was not factually in
issue.” 

 (internal quotation marks and citation omitted). If neither of the two
exceptions apply, “the court is under a duty to instruct on the state’s burden to prove
unlawfulness beyond a reasonable doubt.” State v. Johnson, 

,

, 

. Throughout the trial and the appeals to the district court
and then the Court of Appeals, the State argued⸻under the second exception
only⸻that no evidence supported a theory of lawful behavior, and so our analysis
addresses only that exception. See Elane Photography, LLC v. Willock, 2013-NMSC-
040, ¶ 70, 

 (stating that this Court does not generally review undeveloped
arguments); State v. Arrendondo, 

, 

 (stating that “as
a general rule[,] propositions of law not raised in the trial court should not be raised sua
sponte by the appellate court”).

A.     Standard of Review

{11} Defendant requested, and the trial court refused to give, an unlawfulness
instruction at trial. We agree with the Court of Appeals that Defendant thus preserved
the issue for review. See Smith, A-1-CA34765, mem. op. ¶¶ 3-5; Rule 12-321(A) NMRA
(“To preserve an issue for review, it must appear that a ruling or decision by the trial
court was fairly invoked.”). Since the error was preserved, “we review the instructions
for reversible error.” State v. Benally, 

, 

, 

.

{12} “The propriety of denying a jury instruction is a mixed question of law and fact
that we review de novo.” State v. Gaines, 

, 

, 

. “We do not weigh the evidence but rather determine whether there is sufficient
evidence to raise a reasonable doubt about [the unlawfulness of Defendant’s conduct].”

 An instruction on the essential element of unlawfulness “is warranted if there is any
evidence, even slight evidence, supporting [a defendant’s corresponding theory of the
case].” Id. ¶ 5 (internal quotation marks and citation omitted). A trial court’s failure to
instruct on an essential element may only be justified if that element is not contested or
there is no evidence supporting a defendant’s theory of the case. Id. This Court reviews
“the evidence presented in the light most favorable to the giving of the requested
instruction.” Henley, 

 (internal quotation marks and citation
omitted).

B.     The Metropolitan Court Had a Duty to Provide an Unlawfulness Instruction

{13} “Battery against a household member consists of the unlawful, intentional
touching or application of force to the person of a household member, when done in a
rude, insolent or angry manner.” NMSA 1978, § 30-3-15(A) (2008) (emphasis added).
By using the word unlawful in the statute, the Legislature chose to require a
determination that the touch or application of force was not justified or excused under
certain circumstances; simply put, whether a defendant’s touch or application of force
was unlawful is an essential element of the crime. See Territory of New Mexico v. Miera,

, ¶¶ 4-5, 

 (“There are many strikings which are not unlawful,
and so are not offenses which the laws punish . . . . [T]he legislature intended to
discriminate between acts of violence which may be lawful and those which are not.”).
So if there was some evidence that excused or justified Defendant’s conduct, which is
to say if “the essential element of unlawfulness” was contested, the magistrate court
had “a duty to instruct [the jury] on the state’s burden to prove unlawfulness beyond a
reasonable doubt.” Johnson, 

.
{14} Defendant only contested one element of the crime of battery against a
household member—whether the evidence established that his conduct was unlawful
beyond a reasonable doubt. He argued that his conduct was justified or excused
because he used reasonable force in response to Sandoval's use of force to try to keep
him from entering their apartment and leaving in his car.

{15} The evidence presented at trial established that Defendant had a possessory
interest in the apartment. It also established that Sandoval initiated the altercation
outside the apartment because she wanted to continue an argument from earlier in the
evening. Sandoval admitted that she did not want Defendant to go into their apartment
so she blocked the doorway and pushed Defendant away from the door before he
touched her. Defendant responded by taking his keys out of her hand and pushing
Sandoval out of the doorway and to the ground. When Defendant tried to leave,
Sandoval stepped behind his car and did not move until the car touched her as
Defendant reversed out of the parking space. Thus, there was some evidence
presented at trial that called into question whether Defendant's behavior was unlawful.

{16} The metropolitan court understood that Defendant was contesting the
unlawfulness element of the crime. This is evidenced by the court’s question—“Are we
gonna have an unlawfulness jury instruction?”—and its subsequent permission to
defense counsel to argue this point to the jury. Despite this, the court refused to instruct
the jury that it was required to find that the State must prove beyond a reasonable doubt
that Defendant’s conduct was unlawful.

{17} Because a trial court must instruct the jury concerning a contested, essential
element of the crime, the metropolitan court erred by failing to give an unlawfulness
instruction in this case. Contrary to the State’s argument, a defendant is not required to
establish all elements of a recognized defense before a trial court is required to instruct
a jury that the state has the burden to prove the unlawfulness of the defendant’s
conduct beyond a reasonable doubt. See Jackson v. State, 

, ¶ 6, 

, 

 (“The trial court has a duty to instruct the jury on all questions
of law essential for a conviction of the crime with which the defendant is charged.”).
When, as here, there is some evidence to support a defendant’s theory that the conduct
is justifiable or excusable, a trial court has a duty to instruct the jury that the state must
prove a defendant’s conduct was unlawful beyond a reasonable doubt. Osborne, 1991-
NMSC-032, ¶¶ 16, 27-30 (concluding that by requiring the state to prove “the
impermissible nature of [a] defendant’s conduct,” we do “not require the state to prove
the absence of justification or excuse”); Gaines, 

 (observing that
an instruction is warranted if there is “‘slight evidence’” supporting the theory that the
alleged conduct was not unlawful (citation omitted)). Defendant advanced multiple
arguments to justify his use of force, including property-based arguments.

{18} One of Defendant's arguments was that his use of force was a reasonable
response to Sandoval's initial use of force. In this case, the evidence sufficiently called
into question who was the initial aggressor because Sandoval testified that she blocked
the doorway to the apartment and pushed Defendant away before he touched her. Cf.,
e.g., State v. Lucero, 

, 

, 

 (affirming the
general rule that the first aggressor is held to be primarily culpable for an altercation).
Defendant was not required to prove all the elements of a recognized defense, such as
self-defense, before he was entitled to an instruction that the prosecution has the
burden of proving the unlawfulness of his conduct. See Osborne, 

, ¶¶
24, 28, 29 (observing that unlawfulness is a “statutory element” of battery and a
defendant is not required to establish a recognized defense “until the state has
established that conduct has occurred which, under common standards of law and
morality, may be presumed criminal”). Thus, there was at least slight evidence to
support Defendant's theory that his use of force was justified as a reasonable response
to Sandoval's first use of force upon him.

{19} Defendant's multiple property-based arguments are essentially the same:
Defendant alleges his conduct was justified or excused because Sandoval committed
the crime of deprivation of property of a household member. See NMSA 1978, § 30-3-
18(C) (2009) (“Deprivation of the property of a household member consists of
intentionally depriving a household member of the use of separate, community or jointly
owned personal property of the household member with the intent to intimidate or
threaten that household member.”). We recognize this statute to acknowledge that there
was at least some evidence to support Defendant's theory that his conduct was justified
by Sandoval's attempt to prevent him from accessing his keys or entering the
apartment. See State v. Trammel, 

, ¶ 5, 

, 

(recognizing the general principle that an individual “may use force to defend . . . real or
personal property in [the individual's] actual possession against one who endeavors to
[take the property] without right”) (internal quotation marks and citation omitted). This
observation does not impose a requirement that Defendant must prove Sandoval
violated Section 30-3-18(C) in order to be entitled to an unlawfulness instruction. Such a
requirement would impermissibly shift the burden to the Defendant to prove the
lawfulness of his conduct, which would disturb a fundamental principle of criminal law—
a defendant is innocent until the prosecution proves every disputed element of the
alleged crime beyond a reasonable doubt.

{20} Viewing the evidence in the light most favorable to giving the requested
instruction, we conclude that Defendant elicited sufficient evidence to call into question
whether he used unlawful force. Although we conclude that the metropolitan court was
required to provide an unlawfulness instruction, we do not opine on the ultimate
question: whether Defendant's conduct was lawful or unlawful.

{21} Finally, Defendant has argued, as the Court of Appeals noted, that his conduct
was not unlawful because his constitutional right to possess property was violated. See
Smith, A-1-CA-34765, mem. op. ¶ 7. The Court of Appeals did not engage in an
analysis of Defendant's constitutional argument, nor do we suggest that Defendant is
entitled to an unlawfulness instruction based on any asserted constitutional claim. Our
reasoning does not require us to address a constitutional issue, and we decline to do
so. Allen v. LeMaster, 

, 

 (“It is an enduring principle
of constitutional jurisprudence that courts will avoid deciding constitutional questions . . .
unless necessary to the disposition of the case.”).
{22} As in this case, when the evidence may support a defendant’s theory that the
alleged conduct served a lawful purpose, the trial court must instruct the jury on the
essential element of unlawfulness. Under the unlawfulness instruction, UJI 14-132
NMRA, the jury must make two determinations: (1) whether the defendant’s conduct
was unlawful and (2) whether the defendant’s conduct nonetheless served a lawful
purpose. As Use Note 1 of UJI 14-132 explains, “[a]ppropriate language should be
tailored in specific cases.” This means that the trial court must craft the instruction to
identify both the alleged unlawful conduct and the defendant’s argued-for specific lawful
purpose for that conduct. We caution against giving a generalized, broad instruction on
unlawfulness, which may result in juror confusion and inadvertently shield a defendant
from justified criminal liability. “This of course does not preclude a defendant from
[affirmatively] establishing . . . an excuse or justification for his actions under any of the
traditional affirmative defenses which may apply, such as [self-defense].” Osborne,

, ¶ 30.

III.   CONCLUSION

{23} Based on the foregoing analysis, we affirm the Court of Appeals and remand this
case to the metropolitan court for a new trial.

{24}   IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice

GEORGE P. EICHWALD, Judge,
Sitting by designation