April 8, 2021- State of New Mexico v. Roberto Ocon, No. A-1-CA-37575

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:________________	2
Filing Date: April 8, 2021	3
No. A-1-CA-37575	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
ROBERTO OCON,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	10
William G.W. Shoobridge, District Judge	11
Hector H. Balderas, Attorney General	12
Benjamin Lammons, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Bennett J. Baur, Chief Public Defender	16
Mary Barket, Assistant Appellate Defender	17
Santa Fe, NM	18
for Appellant	19
Court of Appeals of New Mexico
Filed 4/8/2021 10:57 AM

OPINION	1
IVES, Judge.	2
{1} 	Defendant Roberto Ocon appeals his convictions for aggravated assault upon	3
a peace officer (deadly weapon), in violation of NMSA 1978, Section 30-22-	4
22(A)(1) (1971); resisting, evading, or obstructing an officer (resisting or abusing a	5
peace officer), in violation of NMSA 1978, Section 30-22-1(D) (1981); and battery	6
against a household member, in violation of NMSA 1978, Section 30-3-15 (2008).	7
Defendant argues that (1) his conviction for aggravated assault upon a peace officer	8
resulted from a fundamental error in the jury instructions and was not supported by	9
sufficient evidence; (2) his conviction for resisting or abusing a peace officer	10
resulted from a fundamental error in the jury instructions and violated his right	11
against double jeopardy; and (3) a new trial is required on the charge of battery	12
against a household member because the district court admitted hearsay evidence.	13
Accepting the State’s concession that Defendant’s conviction for resisting or abusing	14
a peace officer was the result of fundamental error, we reverse and remand for a new	15
trial on that charge. We affirm Defendant’s other convictions.	16
BACKGROUND	17
{2} 	On the afternoon of August 2, 2016, Victim called 911 from her cell phone.	18
Victim did not respond when the operator answered, but the operator could hear	19
people speaking Spanish on the open line. The operator, who understood Spanish,	20

2
heard someone say the Spanish equivalent of “you’re here to kill me; why are you	1
here to kill me?” Believing that the call might have related to an act of domestic	2
violence, the operator dispatched Officer Kevin Gutierrez and Chief James Jones of	3
the Eunice Police Department to Victim’s home. When Officer Gutierrez and Chief	4
Jones arrived, a neighbor told them that she thought Victim’s ex-boyfriend was there	5
trying to hurt Victim. The neighbor’s concerns were not unfounded; Defendant, who	6
was in fact Victim’s estranged husband, was in the home engaged in an argument	7
with Victim that, by all accounts, turned physical.	8
{3} 	After speaking with the neighbor, the officers knocked on Victim’s front door	9
and announced themselves as police, and Defendant opened the door. Officer	10
Gutierrez asked Defendant if Victim was there. Instead of answering, Defendant	11
began walking back into the home. When Officer Gutierrez told and motioned for	12
Defendant to come toward him, Defendant said, “Okay[,]” but continued toward the	13
kitchen. Officer Gutierrez then drew his gun and approached the threshold of the	14
kitchen while yelling at Defendant to get on the ground. Defendant turned back	15
toward Officer Gutierrez, and, as the two men met at the threshold of the kitchen,	16
Officer Gutierrez yelled, “No, no, no; no, no, no; get on the ground; get on the	17
ground, 	sir” 	before 	shooting 	Defendant 	twice 	in 	the 	chest. 	Defendant 	was	18
transported to a nearby hospital and ultimately survived the shooting. Victim was	19
also transported by ambulance to a hospital, as she had sustained visible injuries.	20

3
{4} 	At trial, Officer Gutierrez testified that he shot Defendant because Defendant	1
had armed himself with a knife in the kitchen and thrusted, slashed, and reared back	2
to stab him with it. But Defendant’s counsel argued that Defendant had been holding	3
a cell phone. Footage from Officer Gutierrez’s lapel camera is inconclusive; the	4
moments surrounding the shooting are a blur, and the footage shows both a cell	5
phone and a knife on the floor of the kitchen after the shooting. There was also a	6
dispute at trial as to the amount of force Defendant used against Victim, whether he	7
had threatened to kill her, and whether he prevented her from using her cell phone.	8
{5} 	For the violence against Victim, the State prosecuted Defendant for assault	9
against a household member with intent to commit a violent felony, in violation of	10
NMSA 1978, Section 30-3-14(A) (1995); 1 false imprisonment, in violation of	11
NMSA 1978, Section 30-4-3 (1963); and interference with communications, in	12
violation of NMSA 1978, Section 30-12-1 (1979). On those charges, the jury only	13
found Defendant guilty of battery against a household member, on which it had been	14
instructed as a lesser included offense of assault against a household member with	15
1 The violent felony, under the State’s theory of the case, was aggravated
battery against a household member (great bodily harm). See generally NMSA 1978,
§ 30-3-16(A), (C) (2008). While we note that neither aggravated battery against a
household member nor any other form of battery is explicitly listed as a “violent
felony” in Section 30-3-14(A), we need not decide whether that crime qualifies as a
violent felony because the jury acquitted Defendant of the charge.

4
intent to commit a violent felony.2 For the violence against Officer Gutierrez, the	1
State prosecuted Defendant for aggravated assault upon a peace officer (deadly	2
weapon), 	in 	violation 	of 	Section 	30-22-22(A)(1); 	and 	resisting, 	evading, 	or	3
obstructing an officer (resisting or abusing a peace officer), in violation of Section	4
30-22-1(D). The jury found Defendant guilty of both crimes against the officer.	5
Defendant appeals.	6
DISCUSSION	7
I. 	Defendant’s Conviction for Aggravated Assault Upon a Peace Officer	8
Was Not the Result of Fundamental Error	9
{6} 	Defendant argues that we should reverse his conviction for aggravated assault	10
upon a peace officer because the jury was not instructed on every essential element	11
of the crime. The jury was instructed that, to convict Defendant of aggravated assault	12
upon a peace officer by use of a deadly weapon, it had to find the following elements	13
beyond a reasonable doubt:	14
1. 	[D]efendant walked towards Officer Gutierrez with a knife and made a	15
stabbing motion;	16
2. 	At the time, [Officer] Gutierrez was a peace officer and was performing	17
duties of a peace officer;	18
3. 	[D]efendant knew [Officer] Gutierrez was a peace officer;	19
2 Because Defendant does not raise the issue on appeal, we offer no opinion
about whether, in certain circumstances, battery against a household member is a
lesser included offense of aggravated assault against a household member with intent
to commit a violent felony.

5
4. 	[D]efendant’s 	conduct 	caused 	[Officer] 	Gutierrez 	to 	believe	1
[D]efendant was about to intrude on [Officer] Gutierrez[’s] bodily	2
integrity or personal safety by touching or applying force to [Officer]	3
Gutierrez in a rude[,] insolent[,] or angry manner;	4
5. 	A reasonable person in the same circumstances as [Officer] Gutierrez	5
would have had the same belief;	6
6. 	[D]efendant used a knife;	7
7. 	This happened in New Mexico on or about the 2nd day of August 2016.	8
Although we agree with Defendant that the given instruction erroneously failed to	9
inform the jury that it was also required to find that Defendant used a deadly weapon	10
and that his conduct was unlawful, we conclude that these errors do not rise to the	11
level of fundamental error under our Supreme Court’s precedents and therefore do	12
not warrant reversal.	13
A. 	Standard of Review	14
{7} 	We review for fundamental error because Defendant did not preserve his	15
argument by objecting to the jury instruction at trial. State v. Barber, 2004-NMSC-	16
019, ¶ 8, 135 N.M. 621, 92 P.3d 633. Our review involves two basic steps. The first	17
is to determine whether error occurred. In other words, our analysis “begins at the	18
same place as [the] analysis for reversible error[:]” we ask “whether a reasonable	19
juror would have been confused or misdirected by the jury instruction.” Id. ¶ 19; see	20
State v. Grubb, 2020-NMCA-003, ¶ 7, 455 P.3d 877 (“In a fundamental error	21
analysis, 	we 	begin 	by 	considering 	whether 	reversible 	error 	exists[.]”). 	Jury	22

6
instructions 	cause 	confusion 	or 	misdirection 	when, 	“through 	omission 	or	1
misstatement,” they do not provide “an accurate rendition” of the essential elements	2
of a crime. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134;	3
see State v. Herrera, 2014-NMCA-007, ¶ 8, 315 P.3d 343 (explaining that the Sixth	4
and Fourteenth Amendments to the United States Constitution “entitle a criminal	5
defendant to a jury determination that he is guilty of every element of the crime with	6
which he is charged, beyond a reasonable doubt” (internal quotation marks and	7
citation omitted)); see also State v. Suazo, 2017-NMSC-011, ¶ 26, 390 P.3d 674 (“A	8
jury instruction [that] does not instruct the jury upon all questions of law essential	9
for a conviction . . . is reversible error.” (internal quotation marks and citation	10
omitted)). But see id. ¶¶ 27-31 (analyzing, “under a reversible error standard[,]”	11
whether “a failure to instruct on an essential element of an offense” did not require	12
reversal because “there [could] be no dispute that the essential element was	13
established” (internal quotation marks and citation omitted)).	14
{8} 	If we conclude that the instructions were erroneous, we proceed to the second	15
step, asking whether the error is fundamental. Fundamental error exists if it would	16
“shock the [court’s] conscience” to allow the conviction to stand, Barber, 2004-	17
NMSC-019, ¶ 14, either because of “the obvious innocence of the defendant,” id.	18
¶ 16, or because “a mistake in the process makes a conviction fundamentally unfair	19
notwithstanding the apparent guilt of the accused.” Id. ¶ 17. This inquiry requires us	20

7
to “review the entire record, placing the jury instructions in the context of the	1
individual facts and circumstances of the case[.]” Id. ¶ 19 (internal quotation marks	2
and citation omitted).	3
{9} 	Our Supreme Court has recognized that the omission of an essential element	4
from a jury instruction often rises to the level of fundamental error, id. ¶ 20, but its	5
precedent includes multiple formulations of the circumstances under which the	6
omission of an essential element does not amount to fundamental error. These	7
formulations diverge on a crucial point: whether the focus of the inquiry is on what	8
the jury in a particular case actually found—what it “effectively determined,” State	9
v. Orosco, 1992-NMSC-006, ¶ 19, 113 N.M. 780, 833 P.2d 1146—under the given	10
instructions, or on the degree of confidence an appellate court has in what the jury	11
would have found had it been properly instructed. Compare State v. Samora, 2016-	12
NMSC-031, ¶ 29, 387 P.3d 230 (“Fundamental error occurs when jury instructions	13
fail to inform the jurors that the [s]tate has the burden of proving an essential element	14
of a crime and we are left with no way of knowing whether the jury found that	15
element beyond a reasonable doubt.” (emphasis added) (internal quotation marks	16
and citation omitted)), Barber, 2004-NMSC-019, ¶ 29 (“Error is not fundamental	17
when the jury could not have reached its verdict without also finding the element	18
omitted from the instructions.” (emphasis added)), and State v. Cunningham, 2000-	19
NMSC-009, ¶¶ 23-24, 128 N.M. 711, 998 P.2d 176 (upholding a conviction because	20

8
the omitted element “was decided by the jury when [it] contemplated [a] separate	1
. . . instruction” (emphasis added)), with State v. Padilla, 1997-NMSC-022, ¶ 8, 123	2
N.M. 216, 937 P.2d 492 (explaining that “[i]t is fundamental error . . . to fail to	3
instruct on an essential element of a crime unless that element is undisputed” and	4
“the jury undoubtedly would have . . . found” the element (emphasis added)), and	5
State v. Lopez, 1996-NMSC-036, ¶ 13, 122 N.M. 63, 920 P.2d 1017 (“We will only	6
affirm a case in which the trial court failed to instruct the jury on an essential element	7
when, under the facts adduced at trial, that omitted element was undisputed and	8
indisputable, and no rational jury could have concluded otherwise.” (emphasis	9
added) (internal quotation marks and citation omitted)).	10
{10} 	We elaborate on both formulations, beginning with Orosco, which we view	11
as the foundation for our Supreme Court’s modern fundamental error jurisprudence	12
in the context of jury instructions that omit essential elements and which has	13
continued to inform the Court’s decisions in recent years. See, e.g., Samora, 2016-	14
NMSC-031, ¶¶ 28-29. In Orosco, our Supreme Court recognized that fundamental	15
error does not exist where the jury actually, albeit implicitly, found the missing	16
element. In that case, the Court consolidated two sex-offense cases and considered	17
whether to reverse the defendants’ convictions because the jury in each case had not	18
been instructed on the unlawfulness element of the charged crime. 1992-NMSC-006,	19
¶¶ 1, 3, 5. One of the defendants “was alleged to have fondled the [child victim’s]	20

9
intimate parts in the restroom of a bar[,]” and “[n]o other version of the . . . manner	1
of the touching was presented.” Id. ¶ 11. Regarding the other defendant’s conviction,	2
“the only evidence” of the alleged sexual contact was the child victim’s “description	3
of an incident in which [the] defendant fondled the [child victim]’s genitals for three	4
hours in [the] defendant’s truck.” Id. Each defendant denied that these touchings had	5
occurred, but the juries rejected those denials in returning guilty verdicts. Id.	6
¶¶ 10-11. On the facts of each case, the defendants’ actions were inherently	7
unlawful: because there was nothing “in the facts to suggest that the touchings, if	8
they occurred, might have involved . . . any . . . lawful purpose[,]” the juries in each	9
case could only have found that “an unlawful touching occurred or [that] it did	10
not[.]” Id. ¶ 11. Accordingly, the Court held that, despite the omission of the	11
unlawfulness element in each case, the defendants’ convictions were not the result	12
of fundamental error because, “under the undisputed evidence of unlawfulness in the	13
cases and the facts upon which the juries relied to find that [the] defendants	14
committed the [charged] acts, the juries themselves effectively determined the	15
existence of the omitted element.” Id. ¶ 19 (emphasis added). Orosco thus indicates	16
that fundamental error does not occur when the facts and circumstances of the case	17
show that the jury implicitly found the missing element in reaching its verdict.	18
Orosco teaches that cases in which a jury’s findings “necessarily include[] or	19
amount[] to a finding on an element omitted from the jury’s instructions” are	20

10
“[c]lear[]” examples of circumstances under which our courts will find that the	1
omission does not rise to the level of fundamental error. Id. ¶ 12; see, e.g., Barber,	2
2004-NMSC-019, ¶¶ 29-31 (holding that the district court’s failure to inform the	3
jury that findings of knowledge and control were required for the jury to find that	4
the defendant possessed methamphetamine did not result in fundamental error	5
because the jury found that the defendant “intended to transfer the methamphetamine	6
to another” and “could not [have done so] . . . without also finding that [the	7
d]efendant was [knowingly] exercising some degree of control over the drugs”);	8
Cunningham, 2000-NMSC-009, ¶ 23 (holding that the district court’s failure to	9
instruct the jury on unlawfulness in a first-degree murder case did not result in	10
fundamental error because the element of unlawfulness “was decided by the jury	11
when [it] contemplated [a] separate self-defense instruction” and a reasonable juror	12
could not have “found [a different] lawful justification” for a homicide in “the	13
evidence presented at trial”).	14
{11} 	But other precedent of our Supreme Court demonstrates that an actual, though	15
implicit, jury determination on an omitted element is not an absolute prerequisite to	16
affirmance. State v. Stevens, 2014-NMSC-011, 323 P.3d 901, illustrates the narrow	17
circumstance in which a conviction will be upheld because the jury’s verdict,	18
considered together with the given instructions and the parties’ legal and factual	19
presentations, leaves no doubt that the jury would have found the omitted element if	20

11
properly instructed. In Stevens, the jury had found the defendant guilty of criminal	1
sexual penetration during the commission of a felony where the underlying felony	2
was distribution of a controlled substance to a minor. Id. ¶¶ 4, 11. However, there	3
were multiple errors in the jury instructions, including a failure to instruct the jury	4
that it could not return a guilty verdict unless it found that the criminal sexual	5
penetration was the result of the underlying felony of distribution of a controlled	6
substance to a minor. Id. ¶ 44. Although the jury found that the defendant gave	7
methamphetamine to the victim and that the defendant caused the victim to engage	8
in a sex act, id. ¶¶ 13, 43, those findings did not explicitly or implicitly resolve the	9
question of whether the defendant’s provision of methamphetamine to the victim	10
caused the victim to engage in the sex act. See id. ¶¶ 2-3, 13, 39, 44-45; see also id.	11
¶ 39 (holding “that when a [charge of criminal second penetration in the second	12
degree] is based on the commission of a felony, it must be a felony that is committed	13
against the victim of, and that assists in the accomplishment of, sexual penetration	14
perpetrated by force or coercion or against a victim who, by age or other statutory	15
factor, gave no lawful consent”). The Court nevertheless affirmed. The victim had	16
testified that she engaged in the sex act because she was high, indicating that the sex	17
act was the result of the separate offense, perpetrated against the victim, of	18
distribution of a controlled substance to a minor and not merely contemporaneous	19
with it. Id. ¶ 45. Because the testimony on this point went “unchallenged,” the Court	20

12
determined that the causal connection between the sex act and the provision of	1
methamphetamine had been established. Id. And, emphasizing the jury’s findings	2
that the defendant gave the victim methamphetamine and caused the victim to	3
engage in a sex act, the Court further concluded that the defendant’s guilt was not	4
“so doubtful that a conviction would shock the judicial conscience.” Id. (citing	5
Orosco, 1992-NMSC-006, ¶ 12). In other words, the Stevens Court concluded that	6
the jury “undoubtedly would have . . . found[,]” Padilla, 1997-NMSC-022, ¶ 8, the	7
omitted causation element if the jury had been properly instructed. See Stevens,	8
2014-NMSC-011 ¶¶ 44-46.	9
{12} 	Synthesizing our Supreme Court’s precedent, we conclude that an appellate	10
court may affirm a conviction notwithstanding the absence of an implicit jury finding	11
on an omitted element if the jury, having considered the parties’ legal and factual	12
presentations and returned a guilty verdict on the given instructions, undoubtedly	13
would have found the essential element if properly instructed. See Padilla, 1997-	14
NMSC-022, ¶ 8. That conclusion is possible only where proof of the omitted element	15
is so strong that no rational jury could have failed to find that element. And,	16
irrespective of the strength of the State’s case, a reviewing court cannot conclude	17
that the jury undoubtedly would have found an omitted element when that element	18
was “disputed” or “in issue” at trial. Reversal is mandatory regardless of a	19
defendant’s trial strategy if “any evidence or suggestion in the facts, however slight”	20

13
would have permitted a rational jury to conclude that the State failed to meet its	1
burden to prove the omitted element beyond a reasonable doubt. Orosco, 1992-	2
NMSC-006, ¶¶ 10, 13.3
3
B. 	The Error in the Instruction Did Not Amount to Fundamental Error	4
Under the Circumstances Presented	5
{13} 	Applying the fundamental error standard set forth in our Supreme Court’s	6
precedents, we conclude that, although the jury instruction in Defendant’s case	7
omitted two essential elements, reversal is not warranted. The errors here were not	8
fundamental because the jury’s findings and the unchallenged evidence on which	9
those findings rested show that the jury, if properly instructed, undoubtedly would	10
have found both omitted elements. Cf. Stevens, 2014-NMSC-011, ¶¶ 44-46. The	11
given instruction deviated from UJI 14-2202 NMRA 4 by omitting the deadly	12
3 Our Supreme Court’s cases demonstrate that an element may be “undisputed”
if by “concession it is not at issue.” Padilla, 1997-NMSC-022, ¶ 8; see Lopez, 1996-
NMSC-036, ¶ 18 (holding that the defendant’s testimony that he shot at a person
while “knowing that his acts created a strong probability of death or great bodily
harm” “conclusively established the mens rea requirement for second-degree
murder”). Since no concession or admission of the elements omitted from the jury
instructions in this case appears in the record, this basis for determining that an
omitted element is undisputed has no bearing on our analysis.
4 Although the State cites UJI 14-2201 NMRA as the appropriate instruction,
the given instruction hews closer to UJI 14-2202, and we therefore base our analysis
on UJI 14-2202. Because Defendant only challenges the omission of the deadly
weapon and unlawfulness elements, which the State must prove in any prosecution
under Section 30-22-22(A)(1), it is not necessary for us to opine on whether another
of the aggravated assault on a peace officer UJIs would have been more appropriate
in this case.

14
weapon and unlawfulness elements. See generally § 30-22-22(A)(1) (proscribing, in	1
pertinent part, “unlawfully assaulting or striking at a peace officer with a deadly	2
weapon” (emphasis added)). We analyze each omitted element in turn.	3
{14} 	As to the deadly weapon element, the jury was only instructed that it could	4
not 	return 	a 	guilty 	verdict 	unless 	it 	found 	beyond 	a 	reasonable 	doubt 	that	5
“[D]efendant used a knife[.]” The given instruction omitted the further, necessary	6
direction that “[a] knife is a deadly weapon only if you find that a knife, when used	7
as a weapon, could cause death or great bodily harm.” See UJI 14-2202 use note 7	8
(indicating that such additional direction is required if the object in question is not	9
specifically listed in the definition of “deadly weapon” under NMSA 1978, Section	10
30-1-12(B) (1963) and, therefore, not a per se deadly weapon). 5 Although the	11
5 The use notes also provide that, when the object in question is not a per se
deadly weapon, “the definition of ‘great bodily harm[]’ must also be given.” UJI 14-
2202 use notes 6-7. Although a definition of “great bodily harm” was among the
given jury instructions, presumably in conjunction with the charge of assault against
a household member with intent to commit a violent felony where the violent felony
was aggravated battery against a household member (great bodily harm), that
instruction asked the jury to determine whether “[D]efendant acted in a way that
would likely result in death or great bodily harm to [Victim.]” (Emphasis added.) See
UJI 14-131, -393 NMRA. Because no instruction referenced great bodily harm to
Officer Gutierrez, we do not think the jury would have considered the given
definition of the phrase relevant to its verdict on the aggravated assault upon a peace
officer 	charge. 	Cf. Benally, 	2001-NMSC-033, 	¶¶ 19-20 	(basing 	a 	finding 	of
fundamental error in part on the Court’s conclusion that a reasonable jury “would
[not] graft the correct burden of proof” from a self-defense instruction addressing
aggravated battery and voluntary manslaughter onto a separate elements instruction
addressing second-degree murder).

15
statutory definition of “deadly weapon” lists a number of specific kinds of knives, it	1
does not list the generic “knife.” Accordingly, our Supreme Court has held that a	2
“knife” is not a per se deadly weapon. See State v. Nick R., 2009-NMSC-050, ¶ 37,	3
147 N.M. 182, 218 P.3d 868 (“[I]n an actual use case involving an unlisted weapon,	4
the jury must find, among other elements, that an object was actually used as a	5
weapon and that it was capable of causing the wounds described in the statute.”); see	6
also § 30-1-12(A)-(B) (defining “deadly weapon” as “any weapon which is capable	7
of producing death or great bodily harm,” including listed weapons and “other	8
weapons with which dangerous wounds can be inflicted[,]” and defining “great	9
bodily harm” as “injury . . . which creates a high probability of death; . . . causes	10
serious disfigurement; or . . . results in permanent or protracted loss or impairment	11
of the function of any member or organ of the body”). Because it did not require the	12
jury to determine whether the knife Defendant used was capable of causing death or	13
dangerous wounds, as described in the statutory definition of “deadly weapon,” the	14
jury instruction erroneously omitted an essential element. See Nick R., 2009-NMSC-	15
050, ¶ 37 (providing that, “no matter how obvious the existence of any essential	16
element of an offense may seem[,]” that determination “cannot be . . . taken from	17
the jury’s consideration”); see also Stevens, 2014-NMSC-011, ¶ 40 (“[T]he law is	18
clear that the . . . right to trial by jury guarantees that all facts essential to a	19
defendant’s [conviction and] sentence must be determined by a jury, whether or not	20

16
a judge or panel of judges might think those facts were proved in a particular case.”).	1
But cf. State v. Sutphin, 2007-NMSC-045, ¶¶ 21-22, 142 N.M. 191, 164 P.3d 72	2
(concluding that unlawfulness was not an essential element in a homicide case that	3
did not involve self-defense and, therefore, the omission of that element was not	4
erroneous).6
5
{15} 	However, we conclude that the omission of the deadly weapon element was	6
not fundamental error. The jury explicitly found that Defendant “walked towards	7
Officer Gutierrez with a knife and made a stabbing motion[,]” placing the officer in	8
an objectively reasonable fear for his “bodily integrity or personal safety.” This	9
amounts to a finding that Defendant used the knife as a weapon. 7 Cf. State v.	10
6 Because “[e]very killing of a person by another is presumed to be unlawful,”
State v. Osborne, 1991-NMSC-032, ¶ 29, 111 N.M. 654, 808 P.2d 624 (internal
quotation marks and citation omitted), our Supreme Court’s cases indicate that
unlawfulness is an essential element of a homicide crime only where the evidence
provides a reasonable basis for concluding that the homicide was justified or
excusable. See Sutphin, 2007-NMSC-045, ¶¶ 21-22 (holding that “unlawfulness was
not an essential element needing to be proven by the [s]tate” because “the evidence
. . . [was] incapable of raising a reasonable doubt in the jury’s mind” regarding the
lawfulness of the defendant’s conduct (internal quotation marks and citation
omitted)); State v. Parish, 1994-NMSC-073, ¶ 5, 118 N.M. 39, 878 P.2d 988. But cf.
Cunningham, 2000-NMSC-009, ¶ 9 (recognizing the presumption and stating that
the defendant on appeal “correctly assert[ed] that unlawfulness is an element of
deliberate-intent murder” in a case where self-defense was raised).
7 Although UJI 14-2202 requires the jury to explicitly find that the object in
question is a deadly weapon, it does not require an explicit finding that the defendant
used the object in question as a weapon. But see Nick R., 2009-NMSC-050, ¶ 37
(“[I]n an actual use case involving an unlisted weapon, the jury must find . . . that an
object was actually used as a weapon[.]”). Instead, the UJI calls for a case-specific

17
Herrera, 2015-NMCA-116, ¶¶ 11, 16-17, 362 P.3d 167 (analyzing the sufficiency	1
of the evidence for the defendants’ aggravated assault convictions and treating the	2
jury’s finding that the defendants either brandished a knife or held a knife to one	3
victim’s throat and placed the victims in an objectively reasonable fear for their	4
bodily integrity or personal safety as a finding that the knife was used as a weapon).	5
Hence, as to the deadly weapon element, the only question before us is whether	6
fundamental error occurred because the jury was not instructed on the need to	7
determine whether the knife, when so used, could cause death or great bodily harm.	8
{16} 	Although the jury did not implicitly decide that issue, it undoubtedly would	9
have found the knife to be capable of causing death or great bodily harm if properly	10
instructed. Chief Jones testified that the knife was “large,” and Officer Gutierrez	11
testified that it was a “fillet kni[fe]” with a “long, sharp blade[] . . . about six inches	12
long.” Aside from that testimony, the only other evidence of the knife’s character	13
was a photograph of the knife, which was entirely consistent with the officers’	14
descriptions of it. Having reviewed all of the evidence and argument presented by	15
the State and Defendant at trial, we see nothing suggesting that the “knife” the jury	16
found was used could have been anything other than a sharp, six-inch-long knife. To	17
provide a few obvious examples, no witness expressed doubt or uncertainty	18
description of the alleged unlawful act, threat, or menacing conduct and requires the
jury to determine whether the object in question was used as described.

18
regarding those characteristics; no documentary evidence hinted that the knife did	1
not possess them; and neither party argued that, if a knife was used, its characteristics	2
were debatable.	3
{17} 	On the basis of the facts presented at trial and the jury’s findings, we see no	4
plausible reason to doubt that the jury, if asked, would have drawn the commonsense	5
conclusion that the sharp, six-inch knife that Defendant used was capable of causing	6
death or the kinds of injuries that amount to great bodily harm. Cf., e.g., State v.	7
Cordova, 2016-NMCA-019, ¶¶ 18-19, 366 P.3d 270 (holding that the evidence was	8
sufficient for the jury’s conclusion that the victim suffered “great bodily injury”	9
based on the victim’s testimony that she “experienced severe bruising, road rash,	10
and bruised ribs[,]” along with other testimony that allowed for the jury to conclude	11
those injuries were “prolonged”). Neither the defense presented nor anything else in	12
the record suggests that the sharp, six-inch knife in question would be incapable of	13
causing death or great bodily harm. Compare Samora, 2016-NMSC-031, ¶ 28	14
(concluding, under Orosco, that an omitted element had been in issue at trial), with	15
Stevens, 2014-NMSC-011, ¶¶ 45-46 (concluding, under Orosco, that an omitted	16
element was not in issue). See generally Orosco, 1992-NMSC-006, ¶ 10 (requiring	17
a reviewing court to determine whether the missing element was “in issue” by asking	18
“whether there was any evidence or suggestion in the facts, however slight, that	19
could have put the [omitted] element . . . in issue,” rather than focusing exclusively	20

19
on the defense theory and presentation (emphasis added)). We think reason would	1
have compelled the jury to find that the knife’s use as a weapon could result in death	2
or great bodily harm—indeed, given that jurors possess basic human experience, it	3
would be astonishing if a single juror had any doubt that a sharp, six-inch knife could	4
cause at least great bodily harm. Having “review[ed] the entire record” and “plac[ed]	5
the jury instructions in the context of the individual facts and circumstances of the	6
case,” 	Barber, 2004-NMSC-019, ¶ 19 (internal quotation marks and citation	7
omitted), we conclude that the jury undoubtedly would have found the knife to be a	8
deadly weapon had it been properly instructed. The omission of the deadly weapon	9
element was not fundamental error.	10
{18} 	Nor was the omission of the unlawfulness element. To establish that element,	11
the State was 	required 	to 	prove beyond 	a reasonable doubt 	that 	Defendant	12
“threatened the safety” or “challenged the authority” of Officer Gutierrez. UJI 14-	13
2202; see Padilla, 1997-NMSC-022, ¶ 2 (explaining that only those acts that	14
“actually harm officers by jeopardizing their safety, or that meaningfully challenge	15
their 	authority” 	are 	unlawful). 8 Defendant 	argues 	that 	the 	omission 	of 	the	16
unlawfulness element was fundamental error because “[t]he jury could have found	17
8 We again note that the use notes for many of the assault on a peace officer
UJIs erroneously indicate that this requirement was established by State v. Padilla,
1996-NMCA-072, 122 N.M. 92, 920 P.2d 1046, rather than Padilla, 1997-NMSC-
022. See State v. Florez, No. A-1-CA-36062, mem. op. ¶ 19 & n.6 (N.M. Ct. App.
Oct. 2, 2019) (non-precedential).

20
that [Defendant]’s conduct was sufficient to have put Officer Gutierrez in reasonable	1
apprehension of a battery[] while simultaneously doubting that [Defendant]’s	2
conduct represented a genuine threat to Officer Gutierrez’s authority or safety.” We	3
conclude that no rational jury could have made such a finding.	4
{19} 	Although the jury’s guilty verdict does not imply a finding on whether	5
Defendant “threatened the safety” or “challenged the authority” of Officer Gutierrez,	6
the jury undoubtedly would have found, if properly instructed, that Defendant at	7
least threatened the officer’s safety. The jury found that Officer Gutierrez reasonably	8
believed Defendant was about to intrude on his bodily integrity or personal safety	9
because Defendant used a knife to make a stabbing motion. It made those findings	10
on the basis of unchallenged evidence showing that the knife was six inches long	11
and that Defendant and the officer were at close quarters.9 Given the undisputed	12
evidence of Defendant’s proximity to the officer and the facts underlying the	13
findings the jury did make, whether there was an actual threat to Officer Gutierrez’s	14
safety was not in issue here. Considering the lack of dispute on this element and the	15
jury’s explicit findings accepting the State’s account of events, we have no doubt	16
9 The footage from Officer Gutierrez’s lapel camera shows that Defendant and
the officer were standing face to face just before the shooting, and Officer Gutierrez
testified 	that 	Defendant 	had 	touched 	him. 	There 	was 	no 	dispute 	regarding
Defendant’s proximity to the officer, and defense counsel implied as much when he
argued in closing that Defendant had moved toward the officer in an effort to push
the officer’s gun away from himself.

21
that the jury also would have found that Defendant’s conduct threatened Officer	1
Gutierrez’s safety. We thus conclude that any rational jury, having determined that	2
Defendant committed aggravated assault upon a peace officer in the manner shown	3
at trial, would also have found “that [his] acts were performed in the manner	4
proscribed by law.” Orosco, 1992-NMSC-006, ¶ 20.	5
{20} 	Given the unchallenged facts developed at trial, we conclude that, in light of	6
the findings that the jury did make, the jury undoubtedly would have found, if	7
properly instructed, that the knife was capable of causing death or great bodily harm	8
and that Defendant acted unlawfully. The omission of the essential elements neither	9
makes “the question of guilt . . . so doubtful that it would shock the conscience to	10
permit the conviction to stand,” id. ¶ 12, nor “makes [the] conviction fundamentally	11
unfair notwithstanding the apparent guilt of the accused.” Barber, 2004-NMSC-019,	12
¶ 17. Accordingly, we hold that Defendant’s conviction was not the result of	13
fundamental error.10 We emphasize that our holding flows from Defendant’s failure	14
to raise the errors in the jury instruction at trial. See Stevens, 2014-NMSC-011, ¶ 45	15
(indicating that the case before the Court “exemplifie[d] the kind of situation in	16
which a preserved challenge to an instruction might have resulted in reversal”).	17
10 Contrary to Defendant’s argument, the omission of two elements, rather than
one, has no bearing on our analysis. The jury’s findings and the evidence underlying
those findings permit us to independently conclude that no fundamental error
resulted from either omission or from the combination of the two.

22
II. 	The Evidence Was Sufficient for the Jury’s Verdict as to Aggravated	1
Assault Upon a Peace Officer Under the Erroneous Instruction	2
{21} 	Defendant also argues that the evidence did not suffice to support his	3
conviction for aggravated assault upon a peace officer because it was unclear from	4
the lapel camera video whether Defendant in fact wielded a knife. We review the	5
sufficiency of the evidence “in light of the defective jury instruction given below.”	6
State v. Rosaire, 1996-NMCA-115, ¶ 20, 123 N.M. 250, 939 P.2d 597, aff’d, 1997-	7
NMSC-034, 123 N.M. 701, 945 P.2d 66. We do so “for the same reason that . . . we	8
review the sufficiency of all the evidence below, including the wrongfully admitted	9
evidence.” Id.; see also State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (“The	10
jury instructions become the law of the case against which the sufficiency of the	11
evidence is to be measured.” (alterations, internal quotation marks, and citation	12
omitted)). But see State v. Carpenter, 2016-NMCA-058, ¶ 15, 374 P.3d 744 (citing	13
Musacchio v. United States, 136 S. Ct. 709, 713-15 (2016) (holding that, because	14
“[s]ufficiency review essentially addresses whether the government’s case was so	15
lacking that it should not have even been submitted to the jury[,]” “a sufficiency	16
challenge should be assessed against the elements of the charged crime” (internal	17
quotation marks and citation omitted))).	18
{22} 	In reviewing the sufficiency of the evidence, we first “view the evidence in	19
the light most favorable to the guilty verdict, indulging all reasonable inferences and	20
resolving all conflicts in the evidence in favor of the verdict.” Cunningham, 2000-	21

23
NMSC-009, ¶ 26. We then consider “whether the evidence, so viewed, supports the	1
verdict beyond a reasonable doubt.” State v. Garcia, 2016-NMSC-034, ¶ 24, 384	2
P.3d 1076. “We do not reweigh the evidence or substitute our judgment for that of	3
the fact finder as long as there is sufficient evidence to support the verdict.” State v.	4
Gipson, 2009-NMCA-053, ¶ 4, 146 N.M. 202, 207 P.3d 1179. “We will affirm a	5
conviction if supported by a fair inference from the evidence regardless of whether	6
a contrary inference might support a contrary result.” State v. Barrera, 2002-NMCA-	7
098, ¶ 10, 132 N.M. 707, 54 P.3d 548.	8
{23} 	The jury was instructed in pertinent part that, to convict Defendant of	9
aggravated assault upon a peace officer, it had to find beyond a reasonable doubt	10
that (1) Defendant “walked towards Officer Gutierrez with a knife and made a	11
stabbing motion”; (2) Defendant’s “conduct caused [Officer] Gutierrez to believe	12
[Defendant] was about to intrude on [Officer] Gutierrez[’s] bodily integrity or	13
personal safety by touching or applying force to [Officer] Gutierrez in a rude[,]	14
insolent[,] or angry manner”; (3) “[a] reasonable person in the same circumstances	15
as [Officer] Gutierrez would have had the same belief”; and (4) Defendant “used a	16
knife[.]”	17
{24} 	At trial, Officer Gutierrez testified that Defendant thrusted and slashed at him	18
with a knife and reared back to stab him, placing him in fear for his life. Footage	19
from Officer Gutierrez’s lapel camera was admitted into evidence, and it shows both	20

24
a knife and a cell phone near where Defendant lay on the kitchen floor after being	1
shot. A still from the video showing that knife was also admitted into evidence.	2
Officer Gutierrez testified that the knife in the still was the knife that Defendant used	3
to attack him. And Chief Jones testified that he saw a knife—and only a knife—on	4
the floor after the shooting. Viewing this evidence in the light most favorable to the	5
guilty verdict, we conclude that the jury rationally found that Defendant attacked	6
Officer Gutierrez with a knife as alleged. Although Defendant maintained that he	7
had been holding a cell phone and not a knife, the jury was free to credit the State’s	8
version of events over Defendant’s. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.	9
438, 971 P.2d 829. Accordingly, we hold that there was sufficient evidence to	10
support the verdict and affirm Defendant’s conviction for aggravated assault upon a	11
peace officer.	12
III. 	We 	Reverse 	Defendant’s 	Conviction 	for 	Resisting, 	Evading, 	or	13
Obstructing an Officer	14
{25} 	Defendant argues that we should reverse his conviction for resisting, evading,	15
or obstructing an officer because (1) it resulted from a fundamental error in the jury	16
instruction, and (2) his convictions for both resisting or abusing a peace officer and	17
aggravated assault upon a peace officer constitute double jeopardy. 11 The State	18
11 Because we vacate Defendant’s conviction, we do not examine his double
jeopardy claim, which is premised on the contention that his conviction for two
crimes against Officer Gutierrez subjected him to multiple punishments for a single
offense. See Swafford v. State, 1991-NMSC-043, ¶ 6, 112 N.M. 3, 810 P.2d 1223

25
concedes the fundamental error argument on the ground that the jury convicted	1
Defendant of a crime that the State had not charged. See Grubb, 2020-NMCA-003,	2
¶ 	9 	(“[A] 	conviction 	for 	a 	crime 	with 	which 	the 	defendant 	was 	not	3
charged . . . constitutes a due process violation that amounts to fundamental error.”).	4
Although we are not bound by the State’s concession, State v. Tapia, 2015-NMCA-	5
048, ¶ 31, 347 P.3d 738, we agree that our precedents require reversal.12
6
{26} 	Section 30-22-1 has four subsections that provide “alternative means by	7
which 	the offense [of resisting, evading, or obstructing 	an 	officer] may be	8
committed.” State v. Jimenez, 2017-NMCA-039, ¶ 26, 392 P.3d 668 (internal	9
quotation marks and citation omitted). “[A] violation of one subsection cannot	10
necessarily establish a violation of another.” Id. ¶ 28. Because the statute “provides	11
distinct and alternative” means of committing the offense, when the State “chooses	12
to charge under only a particular part of the statute,” it “is limited to proving what it	13
has charged.” Id. ¶ 27 (internal quotation marks and citation omitted). UJI 14-2215	14
(explaining that the double jeopardy clause protects against multiple punishments
for the same offense and distinguishing that protection from the clause’s protections
against a second prosecution for the same offense after conviction or acquittal).
12 We understand the State to concede that fundamental error occurred because
Defendant did not receive due process, not because Defendant was denied his
“fundamental right . . . to have the jury determine whether each element of the
charged offense [was] proved by the [S]tate beyond a reasonable doubt[.]” Orosco,
1992-NMSC-006, ¶ 20. Therefore, our review employs 	a different 	analytical
framework than the one we used in reviewing the erroneous jury instruction as to
aggravated assault upon a peace officer.

26
NMRA 	“reinforce[s] 	the 	structure 	of 	Section 	30-22-1” 	by 	providing 	“four	1
alternatives” that “correspond to the four subsections of Section 30-22-1.” Jimenez,	2
2017-NMCA-039, ¶¶ 28-29. The use notes to the UJI direct the trial court to “[u]se	3
only the applicable alternative.” UJI 14-2215 use note 3.	4
{27} 	Here, the State charged Defendant under Section 30-22-1(D) but used, with	5
some customization, the alternative from the UJI that corresponds to Section 30-22-	6
1(C). As a result, the jury was not instructed on the “resisting or abusing” elements	7
of Section 30-22-1(D) that differentiate the offense from the other forms of resisting,	8
evading, or obstructing an officer. See generally Jimenez, 2017-NMCA-039, ¶¶ 25-	9
29, 32-40. By using an instruction roughly modeled on Section 30-22-1(C), the State	10
sought to obtain a conviction for a crime that it had not charged, see Jimenez, 2017-	11
NMCA-039, ¶ 27, and the district court consequently erred by instructing the jury	12
on an offense that “the State did not prosecute and Defendant did not defend	13
against[.]” State v. Radosevich, 2016-NMCA-060, ¶ 10, 376 P.3d 871, rev’d on	14
other grounds, 2018-NMSC-028, 419 P.3d 176; see Grubb, 2020-NMCA-003, ¶ 9.	15
To preserve Defendant’s right to due process, we accept the State’s concession that	16
Defendant’s conviction was the result of fundamental error.	17
IV. 	Defendant Is Not Entitled to a New Trial on the Charge of Battery	18
Against a Household Member	19
{28} 	Defendant argues that the district court abused its discretion by admitting	20
Officer Gutierrez’s testimony that the 911 dispatcher told him that someone on the	21

27
911 call said, “You’re here to kill me; why are you here to kill me?” Defendant	1
contends that this error requires reversal of his conviction for battery against a	2
household member. We disagree.	3
{29} 	“We review the district court’s evidentiary rulings for an abuse of discretion.”	4
State v. Garnenez, 2015-NMCA-022, ¶ 29, 344 P.3d 1054. “An abuse of discretion	5
occurs when [a] ruling is clearly against the logic and effect of the facts and	6
circumstances of the case.” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation marks	7
and citation omitted). Even when a defendant shows that the district court has abused	8
its discretion, the improper admission of evidence “is not grounds for a new trial	9
unless the error is determined to be harmful.” State v. Tollardo, 2012-NMSC-008,	10
¶ 25, 275 P.3d 110. “Non-constitutional error is harmless when there is no	11
reasonable probability the error affected the verdict.” State v. Serna, 2013-NMSC-	12
033, ¶ 22, 305 P.3d 936 (alteration, emphasis, internal quotation marks, and citation	13
omitted). In assessing the potential impact of an error on the outcome below, we	14
review “all of the circumstances surrounding the error[,]” including “the source of	15
the error, the emphasis placed on the error, evidence of the defendant’s guilt apart	16
from the error, the importance of the erroneously admitted evidence to the	17
prosecution’s case, and whether the erroneously admitted evidence was merely	18
cumulative.” Id. ¶ 23 (internal quotation marks and citation omitted).	19

28
{30} 	Defendant objected to the testimony on confrontation clause and hearsay	1
grounds at trial, and the district court overruled the objection. On appeal, Defendant	2
only challenges the admissibility of the testimony under our hearsay rules and we	3
therefore do not address the constitutional question. Assuming without deciding that	4
the testimony was inadmissible hearsay, we conclude that there is no reasonable	5
probability that its admission affected the verdict. The challenged testimony was	6
cumulative of Officer Gutierrez’s description of the 911 call in the footage from his	7
lapel camera that was admitted into evidence without objection. And, although the	8
State argued in closing that Victim’s statements on the 911 call demonstrated that	9
Victim believed Defendant was going to kill her, it did not otherwise emphasize the	10
statements, which had little importance to the State’s case as to battery against a	11
household member. Victim’s statements on the 911 call, though cumulative, were	12
probative of the charge that Defendant committed aggravated assault against a	13
household member with intent to commit a violent felony. Notably, however, the	14
jury acquitted Defendant of that crime, indicating that the admission of the	15
challenged testimony did not affect the verdict.	16
{31} 	Because there was ample evidence, apart from the challenged testimony, of	17
Defendant’s guilt as to battery against a household member, the State had no reason	18
to emphasize the idea that someone on the 911 call had said, “You’re here to kill me;	19
why are you here to kill me?” The jury was instructed, consistent with UJI 14-390	20

29
NMRA, that a guilty verdict for battery against a household member required proof	1
beyond a reasonable doubt that (1) “[D]efendant intentionally touched or applied	2
force to [Victim] . . . by pushing her”; (2) “[D]efendant acted in a rude, insolent, or	3
angry manner”; (3) “[Victim] . . . 	was a household member of [D]efendant”; and	4
(4) “[t]his happened in New Mexico on or about the 2nd day of August[] 2016.” The	5
only elements of the jury instruction of which the challenged testimony could be	6
probative are the requirements that Defendant acted “intentionally” and “in a rude,	7
insolent, or angry manner.” However, the challenged testimony is not nearly as	8
probative of those elements as the other evidence on which the State relied in making	9
its case that Defendant committed battery against a household member. In his	10
testimony, Defendant admitted having pushed Victim because of an argument.	11
Victim testified that Defendant choked, dragged, smacked, and punched her, “really	12
hard.” And she testified that Defendant repeatedly threatened to kill her and burn her	13
body during the attack. Hence, the challenged testimony was cumulative of Victim’s	14
testimony about Defendant’s mental state and the nature of his conduct toward her.	15
We thus conclude that there is no reasonable probability that the admission of Officer	16
Gutierrez’s testimony about the 911 call affected the verdict when the jury heard	17
from Defendant himself that he pushed Victim during an argument and from Victim	18
herself that Defendant beat and threatened to kill her. Accordingly, we hold that the	19

30
admission of Officer Gutierrez’s testimony about the 911 call, if erroneous, was	1
harmless and affirm Defendant’s conviction for battery against a household member.	2
CONCLUSION	3
{32} 	We affirm Defendant’s convictions for aggravated assault upon a peace	4
officer and battery against a household member. We reverse his conviction for	5
resisting or abusing a peace officer and remand to the district court for a retrial on	6
that charge.	7
{33} 	IT IS SO ORDERED.	8
_________________________________	9
ZACHARY A. IVES, Judge	10
WE CONCUR:	11
_________________________________	12
JENNIFER L. ATTREP, Judge	13
_________________________________	14
BRIANA H. ZAMORA, Judge	15