March 02, 2016 – State of New Mexico v. Chris Baxendale, No. 33,934

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: March 2, 2016

NO. 33,934

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

CHRIS BAXENDALEF,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District J udge

Hector H. Balderas, Attomey General

Laura E. Horton, Assistant Attomey General

Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
VANZI, Judge.
{1} 	Defendant Christopher Baxendale appeals from his convictions for aggravated
assault against a household member with a deadly weapon, contrary to NMSA 1978,
§ 30-3-13 (1995), and aggravated assault with a deadly weapon, contrary to NMSA
1978, § 30-3-2(A) (1963). Defendant challenges the district court’s refusal to give his
requested instructions on self defense and defense of property. He also contends that
his convictions for two counts of aggravated assault with a deadly weapon violate his
constitutional right against double jeopardy. We conclude that the district court
committed reversible error when it did not instruct the jury on defense of habitation
and therefore reverse and remand for a new trial. Consequently, we need not reach
Defendant’s double jeopardy claim.
BACKGROUND
{2} 	Defendant and Christina Lee met and began dating in high school. Although
never married, they moved in together and had four children over the course of their
twelve-year relationship. In 2005 or 2006, Defendant purchased a home on San
Jacinto Northeast in Albuquerque, New Mexico, where he, Christina, and their
children lived until 2010. Only Defendant’s name was on the mortgage; Christina’s
was not. During the summer of 2010, the couple broke up. Christina took the children

2
to live with her at her mother’s home. However, after less than one week, Christina’s
mother expressed that she could not afford to have Christina and the children living
with her. Christina then asked Defendant if she and the children could stay with him
until she finished school and could support herself and the children. Defendant agreed,
and they maintained this living arrangement until the last day of 2010.
{3} 	At approximately three o’clock in the afternoon on December 31, 2010,
Christina and the children went to her grandmother’s home to celebrate New Year’s
Eve. Christina sent a text message to Defendant, who was at work at that time, to
invite him to her grandmother’s, but he did not go. Instead, over the course of the
evening, Defendant and Christina exchanged a number of text messages, with
Defendant indicating his desire that she not return home. Christina replied that that
was their home and that’s where they lived. Defendant let Christina know that he
would not be at home because he was going out with a friend. He followed up with
a message to “have fun getting in.”
{4} 	Christina and the children left her grandmother’s house at approximately 12:30
a.m., returning to the house on San Jacinto. The house was dark when they arrived.
Christina noticed that there was a padlock on a newly welded hook attached to the
wrought iron security door in front of the house. She took her oldest daughter to check
on the back door, leaving the other three children in her running car in the driveway.

1Although the time line is unclear, it appears that Gus left sometime before the
lock was broken.
3
She discovered that the back security door similarly had a padlock on a newly welded
hook. Although she had a key to the front and back doors, as well as to the wrought
iron security doors in front and back, she did not have a key to unlock the padlocks,
which had been placed on the security doors sometime after she had gone to her
grandmother’s house.
{5} 	Christina put her daughter in the car and proceeded across the street to see if her
neighbor had anything she could use to get into the house. The neighbor, Donald
“Sonny” Trombley, and a man named Gus accompanied Christina back across the
street to her front door. Not wanting to appear as if they were breaking into the house,
Sonny suggested that they go to the back door. According to Christina’s testimony,
when Sonny saw the padlock on the back security door, he went to his house to get
something to break the lock off. When he returned, Sonny used a “clamp” tool to
break the padlock. According to Sonny, however, he did not use a tool to break the
lock; instead, he testified that he broke the lock with his hand. Regardless of how the
lock was broken, the testimony indicated that it was indeed broken off approximately
ten to fifteen minutes after they had entered the backyard.1

4
{6} 	As Christina began to open the iron security door, she heard a popping sound.
She began to laugh, thinking that Defendant must have put firecrackers somewhere
around the handle to the door. Sonny, on the other hand, thought it was a gunshot.
Christina then began to unlock the back door, when a second, louder sound rang out.
Debris from the wooden door fell into Christina’s face and hair. Afraid, Sonny said
that it was a gunshot and ran home. Christina, still standing at the door, saw Defendant
standing in the house with a shotgun in his hand. Defendant said, “Holy shit,” and
then followed that up with “you’re breaking and entering.” After an argument with
Defendant, Christina called 911.
{7} 	Although Defendant did not testify at trial, the State admitted the statement he
made to Albuquerque Police Department (APD) Detective Gonterman, as well as
testimony by APD Officer Patrick regarding his conversation with Defendant.
According to the detective, Defendant stated that he had added the padlocks to the
security doors around lunchtime on New Year’s Eve. Defendant told the detective that
when he spoke to Christina the previous evening, she did not indicate that she and the
children would be returning home. According to Defendant’s statement, he spent the
evening watching television. He decided to take a shower and then retire for the night.
While in the shower, he heard a crash or bang outside. Scared, Defendant grabbed his
shotgun and ran to the back door. He could not see who was outside. He heard what

5
sounded like the back security door being ripped off. He thought someone was trying
to break into his house. He then pointed the shotgun at the back door, aimed high, and
shot.
{8} 	Although Defendant admitted to the officers that he had only fired the shotgun,
the State presented testimony from a firearms expert who opined that a second hole
in the door could have been caused by a .38 caliber handgun seized from Defendant’s
home, given the fact that a spent .38 caliber casing was found at the scene. Based on
this testimony, the State proceeded on a theory that Defendant had fired two shots at
the door—the .38 caliber handgun that produced the “firecracker” sound, and the
shotgun, which caused the louder bang and the resultant spray of debris. Defendant
does not appear to have challenged this two-shot theory, opting instead to present
expert testimony that the shots were fired “in a manner consistent with a defensive
position.”
{9} 	Following the presentation of evidence, Defendant requested—in accordance
with his theory that the ballistics proved that he fired the two shots from a defensive
position—that jury instructions be given on self defense and defense of property. The
district court denied the request, finding that the facts did not support either of the
requested instructions.

6
DISCUSSION
Jury Instructions
{10} 	On appeal, Defendant contends that he was entitled to instructions on self
defense and defense of property and that the district court erred in denying his
tendered instructions. The propriety of denying a jury instruction is a mixed question
of law and fact that we review de novo. State v. Gaines, 2001-NMSC-036, ¶ 4, 131
N.M. 347, 36 P.3d 438. A defendant is entitled to an instruction on his or her theory
of the case if evidence has been presented that is “sufficient to allow reasonable minds
to differ as to all elements of the offense.” State v. Gonzales, 2007-NMSC-059, ¶ 19,
143 N.M. 25, 172 P.3d 162. “When considering a defendant’s requested instructions,
we view the evidence in the light most favorable to the giving of the requested
instructions.” State v. Contreras, 2007-NMCA-119, ¶ 8, 142 N.M. 518, 167 P.3d 966
(alteration, internal quotation marks, and citation omitted).
A. 	Preservation
{11} 	In order to determine the proper standard of review, we must first determine
whether the district court’s refusal to give Defendant’s tendered instructions on self
defense and defense of property was preserved for appeal. See State v. Benally, 2001-
NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (“The standard of review we apply to
jury instructions depends on whether the issue has been preserved. If the error has

7
been preserved we review the instructions for reversible error. If not, we review for
fundamental error.” (citation omitted)). Generally, to preserve error on a district
court’s refusal to give a tendered instruction, the defendant must tender a legally
correct statement of the law. State v. Jernigan, 2006-NMSC-003, ¶ 10, 139 N.M. 1,
127 P.3d 537; accord Rule 5-608(D) NMRA (“[F]or the preservation of error in the
charge, . . . a correct written instruction must be tendered before the jury is
instructed.”).
{12} 	In this case, Defendant tendered two written instructions: (1) self defense by
means of nondeadly force, UJI 14-5181 NMRA; and (2) defense of property, UJI 14-
5180 NMRA. The State argued below, and continues to do so on appeal, that
Defendant was not entitled to either of these particular jury instructions because he
used deadly force when he twice shot firearms at his back door. Specifically,
regarding Defendant’s request for a defense of property instruction, the State argued
to the district court—based on the Committee Commentary to UJI 14-5180—that
deadly force may only be used for protection of a person’s real or personal property
if the interference is accompanied by a deadly force, in which case a self defense
instruction would be given instead. In essence, the State’s argument is that UJI 14-
5180 only applies when a defendant uses nondeadly force in defense of property
because the use of deadly force in defense of property would be unreasonable as a

8
matter of law. This view finds support in Brown v. Martinez, 1961-NMSC-040, ¶ 22,
68 N.M. 271, 361 P.2d 152, where the Court observed that “[t]he use of a deadly
weapon in the protection of property is generally held, except in extreme cases, to be
the use of more than justifiable force, and to render the owner of property liable, both
civilly and criminally, for the assault.” (Internal quotation marks and citations
omitted.) Defendant replies that “[t]his is not a deadly force case[,]” contending that
he “presented uncontroverted expert testimony that both shots had been fired at an
upward angle” and that “[t]he angle of the shots fired suggest[s] that neither shot was
fired for the purpose of injuring or killing anyone[.]”
{13} 	We have previously concluded that deadly force is the force employed, whether
or not it results in a lethal effect. State v. Cardenas, 2016-NMCA-___, ¶ 18,
___P.3d___ (No. 33,564, Feb. 16, 2016) (noting that deadly force is a “[v]iolent
action known to create a substantial risk of causing death or serious bodily harm.”);
accord State v. Lucero, 1998-NMSC-044, ¶ 9, 126 N.M. 552, 972 P.2d 1143
(determining that the brandishing and firing of a deadly weapon into the air was a
show of potentially deadly force that “created a substantial risk of death or great
bodily harm”). In this case, Defendant shot two firearms, including a shotgun, at his
back door, knowing that at least one person was just on the other side of the door. We
would be hard-pressed to conclude that Defendant’s actions created less of a risk of

9
death or serious bodily harm because of either his intent in pulling the trigger or the
fact that he shot from a “defensive position.” Further, we note that Defendant’s own
expert testified that the smaller caliber bullet entered the door “a little over four feet
off the ground.” We determine, therefore, that the two tendered instructions—setting
forth the standards for self defense and defense of property applicable to the use of
nondeadly force by a defendant—were deficient in that they incorrectly stated the law
as it related to Defendant’s actions on the night of the incident.
{14} 	However, this does not end our analysis. We have held that if the record reflects
that the court clearly understood the type of instruction the defendant wanted and
understood the tendered instruction needed to be modified to correctly state the law,
then the issue is deemed preserved for appellate review. State v. Hill, 2001-NMCA-
094, ¶ 7, 131 N.M. 195, 34 P.3d 139. As our Supreme Court has stated, the “rationale
for allowing such flexibility regarding preservation is reinforced by the actual purpose
of Rule 5-608(D) NMRA, which is to alert the trial court to the defendant’s
argument.” Jernigan, 2006-NMSC-003, ¶ 10 (footnote omitted). In this case, it is clear
that Defendant was asking for a self defense instruction, as well as an instruction that
would justify his actions in defense of his home, given that Defendant listed his
residence on San Jacinto as the property he was protecting. While Defendant’s
argument that the force he used was “defensive” and, therefore, nondeadly, may have

10
been misguided, his use of potentially deadly force in protecting either himself or his
home did not make these defenses unavailable. Instead, it simply required the
consideration of defense instructions that more accurately stated the law applicable
to the facts of this case.
{15} 	As the State appears to acknowledge in its answer brief, there are two
instructions that take into account the amount of force used by Defendant: self defense
by means of deadly force, UJI 14-5183 NMRA, and defense of habitation, UJI 14-
5170 NMRA. “Defense of habitation has long been recognized in New Mexico.” State
v. Boyett, 2008-NMSC-030, ¶ 15, 144 N.M. 184, 185 P.3d 355. “It gives a person the
right to use lethal force against an intruder when such force is necessary to prevent the
commission of a violent felony in his or her home.” Id.; see also State v. Couch, 1946-
NMSC-047, ¶ 30, 52 N.M. 127, 193 P.2d 405 (“The . . . rule limiting the amount of
force which may be lawfully used in defense of other property does not apply in
defense of habitation.”). Although the defense of habitation instruction appears in the
justifiable homicide section of the uniform jury instructions, we conclude that the
instruction 	would 	have 	been 	available 	to 	Defendant 	to 	request 	under 	these
circumstances. See Couch, 1946-NMSC-047, ¶ 21 (recognizing that the defense is
grounded in the theory that “[t]he home is one of the most important institutions of the
state, and has ever been regarded as a place where a person has a right to stand his [or

11
her] ground and repel, force by force, to the extent necessary for its protection”
(internal quotation marks and citation omitted)). The focal point of the jury
instruction’s “necessary to kill” language lies on the defendant’s intent to prevent the
commission of the violent felony using whatever force—including deadly force—is
necessary. Cardenas, 2016-NMCA-___, ¶ 18. Killing the intruder is not required to
permit the use of force to be justified. To hold otherwise would accomplish an absurd
result, depriving a defendant of the defense of habitation when the use of deadly force
was justified, but its use did not accomplish a fatal result.
{16} 	Therefore, based on Defendant’s theory of the case, presented through his
expert witness and in his two motions for directed verdict as well as through his
tendered instructions, we conclude that the district court was sufficiently on notice
that Defendant was requesting an instruction on self defense and defense of his
habitation, and the district court’s refusal to give these instructions was preserved for
review on appeal. See State v. Chacon, 1979-NMCA-154, ¶ 9, 93 N.M. 581, 603 P.2d
320 (holding that, although the defendant’s requested self defense instruction might
have been technically deficient, under the circumstances of the case, he sufficiently
alerted the district court to the need for a self defense instruction).
{17} 	We note one procedural anomaly that we must address before moving on to
consider whether the district court erred in not giving a deadly force self defense

12
instruction and/or a defense of habitation instruction. That is, although Defendant
preserved the error below by tendering instructions—albeit deficient—he continues
to argue on appeal that the district court’s error lies in not giving those specific
instructions. To the point, buoyed by his contention that he did not use deadly force,
Defendant maintains that the nondeadly force instructions should have been given. As
noted above, Defendant’s divorcing the use of deadly force from actually causing a
fatality is unsupported by law.
{18} 	Defendant has put forward no argument to this Court that he was entitled to a
deadly force self defense instruction or a defense of habitation instruction. We
ordinarily do not reach issues that the parties have failed to raise in their briefs. See
In re Doe, 1982-NMSC-099, ¶¶ 3, 5, 98 N.M. 540, 650 P.2d 824 (stating that “courts
risk overlooking important facts or legal considerations when they take it upon
themselves to raise, argue, and decide legal questions overlooked by the lawyers who
tailor the case to fit within their legal theories” and declining to consider a
constitutional argument because it was not raised by the appellants (alteration, internal
quotation marks, and citation omitted)); see also In re Adoption of Doe, 1984-NMSC-
024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“We have long held that to present an issue
on appeal for review, an appellant must submit argument and authority as required by
rule.” (emphasis omitted)).

13
{19} 	However, we note that in this case, the issue of whether Defendant committed
aggravated assault with a deadly weapon was essentially a foregone conclusion, given
Christina and Sonny’s testimony, the physical evidence, and his own admissions. The
only question to be answered by the jury was whether Defendant’s actions were
somehow justified. Defendant’s theories of defense of habitation and self defense
were aimed at providing this justification. Crucially, then, in the absence of
instructions on Defendant’s defense theories, the case was submitted to the jury on
“matters so little in dispute that the verdict was almost predetermined.” See State v.
Williams, 1935-NMSC-028, ¶ 7, 39 N.M. 165, 42 P.2d 1111.
{20} 	A defendant has the fundamental right to present his or her theory of defense
to the jury where the evidence supports it. See Lucero, 1998-NMSC-044, ¶ 5 (“It is
basic that a defendant is entitled to have his or her theory of the case submitted to the
jury under proper instructions where the evidence supports it.” (alteration, internal
quotation marks, and citation omitted)). This concept is supported by the “well-
established principle that adequate instruction on self[]defense is the duty of the courts
where it finds support in the evidence.” State v. Foxen, 2001-NMCA-061, ¶ 12, 130
N.M. 670, 29 P.3d 1071; cf. State v. Bailey, 1921-NMSC-009, ¶ 30, 27 N.M. 145, 198
P. 529 (stating that the doctrine of self defense and the doctrine of defense of

14
habitation “bear such marked resemblance to each other . . . as to be almost
identical”).
{21} 	This duty of the courts should not stop at the district court. Cf. State v. Barber,
2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633 (recognizing that “there exists in
every court an inherent power to see that a man’s fundamental rights are protected in
every 	case” 	(alterations, 	internal 	quotation 	marks, 	and 	citation 	omitted)).
Consequently, in a situation such as this, where the jury instruction issue was
preserved below, but not raised on appeal, and where not raising the issue on appeal
was clear error, this Court will consider whether the district court erred in not giving
jury instructions on defense of habitation and self defense. We do so with the
understanding that failure to instruct the jury on a defendant’s theory of the case is
reversible error only if the evidence at trial supported giving the instruction. See State
v. Gardner, 1973-NMSC-034, ¶ 22, 85 N.M. 104, 509 P.2d 871 (“[T]he court need
not instruct if there is absence of such evidence.”).
B. 	Entitlement to Defense of Habitation Instruction
{22} 	An instruction on defense of habitation would require evidence that (1)
Defendant believed that the commission of a felony in Defendant’s home was
immediately at hand, (2) Defendant believed it was necessary to use deadly force
against the intruder to prevent the commission of the felony, and (3) Defendant acted

15
reasonably. Cf. Gonzales, 2007-NMSC-059, ¶ 21 (outlining the elements of the UJI
14-5170 defense of habitation instruction).
{23} 	Our Supreme Court has held that the defense of habitation “gives the
householder the right to meet force with force, and an attack upon a dwelling, . . .
especially in the night, the law regards as equivalent to an assault on a man’s person,
for a man’s house is his castle.” Couch, 1946-NMSC-047, ¶ 29 (internal quotation
marks omitted). In Boyett, the Court emphasized “that a person has right to defend his
or her residence not only when an intruder is already inside the home, but also when
an intruder is outside the home and attempting to enter to commit a violent felony.”
2008-NMSC-030, ¶ 19; see also 2 Wharton’s Criminal Law § 131 (15th ed. 2015)
(“When a dwelling house is entered or attempted to be entered by force . . . , the
occupant may use deadly force, if reasonably necessary, to prevent or terminate such
entry.” (emphasis added)).
{24} 	Defendant claims that he was entitled to an instruction on the defense of his
home because he used necessary force to stop the “forceful entry into [his] home.”
According to Defendant, he was in the process of taking a shower at approximately
12:30 a.m. when he heard noises coming from his backyard. He went into his kitchen,
and he heard a noise that sounded like the iron security door being ripped off. Scared
that someone was trying to break into his home, he fired a .38 caliber handgun at the

16
back door. When the suspected intruders continued to try to enter the home, he fired
the shotgun. According to his statement to Detective Gonterman, he had no indication
that Christina and the children would be returning that night.
{25} 	The State argues that Defendant was not entitled to an instruction of defense of
habitation because the earlier text messages indicated that Christina wanted to come
home that night and because he placed the padlocks on the security doors necessitating
Christina’s use of force to enter the home. Further, the State contends that Defendant
remained home after telling Christina that he would be going out for the night and that
he sat in the house with the lights out while his family was gone. These facts—while
potentially bearing on the ultimate success of Defendant’s theory at trial—are not
appropriate for consideration of whether the instruction should have been given. See
Contreras, 2007-NMCA-119, ¶ 8 (“When considering a defendant’s requested
instructions, we view the evidence in the light most favorable to the giving of the
requested instructions.” (alteration, internal quotation marks, and citation omitted)).
{26} 	Viewing the evidence in the light most favorable to Defendant, it appears that
he provided sufficient evidence that he was under a reasonable belief that unknown
intruders were breaking through his iron security back door in the middle of the night
and that he fired two shots in order to prevent the forceful entry into his home.
Therefore, we hold that the jury should have been instructed on defense of habitation.

17
“Whether the amount of force used by [the d]efendant was more than the attack
warranted was a question for the jury to determine, under proper instructions from the
court.” Couch, 1946-NMSC-047, ¶ 42.
{27} 	Because we conclude that the district court committed reversible error by not
giving a defense of habitation instruction, we need not address whether the evidence
supported the giving of a self defense instruction.
CONCLUSION
{28} 	For the foregoing reasons, we conclude that the district court committed
reversible error when it did not instruct the jury on Defendant’s defense of habitation
theory. Consequently, we need not decide whether Defendant would have been
entitled to a self defense instruction or whether his two convictions for aggravated
assault with a deadly weapon violated his right against double jeopardy. We therefore
reverse Defendant’s convictions and remand to the district court for retrial.
{29} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge

WE CONCUR:

RODERICK T. KENNEDY, J udge

J. MILES HANISEE, Judge

18