A-1-CA-33064 | Omnilex

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Filed

Court of Appeals of New Mexico
1/23/2018 11:20:03 AM

Offige of the Clerk

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO wa

Opinion Number:

Filing Date: January 23, 2018
STATE OF NEW MEXICO,
Plaintiff-Appellee,
V. NO. A-1-CA-33064
LAWRENCE BRANCH,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
William C. Birdsall, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Bauer, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

k Reynolds

16]

OPINION

VANZI, Judge.

1} Defendant appeals his convictions for aggravated battery with a deadly
weapon, negligent use of a deadly weapon, and aggravated assault with a deadly
weapon. On May 23, 2016, we issued an opinion affirming in part, reversing in part,
and remanding for the district court to document its findings related to the serious
violent offense designation. State v. Branch, 2016-NMCA-071, 387 P.3d 250. The
Supreme Court granted a writ of certiorari and conditional cross-petition on July 28,
2016. Order at 1, State v. Branch, No. S-1-SC-35951 (July 28, 2016). The Court
subsequently quashed the writ of certiorari on Defendant’s petition, and quashed and |.
remanded this case to this Court on the State’s conditional cross-petition after |
deciding issues related to whether the firearm enhancements on sentences for
aggravated assault with a deadly weapon violated double jeopardy in State v. Baroz,
2017-NMSC-030, 4] 20-27, 404 P.3d 769. In that case, our Supreme Court noted that
“[t]he legislative policy behind the firearm sentence enhancement is that a noncapital
felony, committed with a firearm, should be subject to greater punishment than a
noncapital felony committed without a firearm because it is more reprehensible.” Jd.

{ 27. Consequently, because the Legislature intended to authorize an enhanced

punishment when a firearm is used in the commission of aggravated assault, the Court
held that “[t]he sentence enhancement does not run afoul of double jeopardy.” Id.
23} Onremand, we withdraw the opinion issued on May 23, 2016, and substitute
this opinion in its stead.

3} As we noted in our original opinion, there is no question that Defendant
Lawrence Branch shot and injured his adult son, Joshua Branch, with a .44 caliber
revolver. Defendant confessed to the shooting and was charged with aggravated:
battery with a deadly weapon and negligent use of a deadly weapon. He was also
charged with aggravated assault with a deadly weapon for allegedly assaulting his
wife, Patricia Branch, on the theory that Defendant’s conduct caused Patricia to]
reasonably believe that he was about to batter her as well. The key issue at trial was
whether the shooting, which was the basis for all three charges, was in self defense.
(44 Thejuryultimately convicted Defendant on all counts. Penalties for aggravated
battery and aggravated assault were each increased by one year pursuant to the
statutory firearm enhancement. NMSA 1978, § 31-18-16(A) (1993). The district court
then adjudged the aggravated assault conviction to be a “serious violent offense,”

which limits Defendant’s eligibility for good time credit for time served in a state

prison. See NMSA 1978, § 33-2-34(A)(1) (2006, amended 2015).

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{5} On appeal, Defendant argues that (1) insufficient evidence and instructional
error require reversal of the aggravated assault conviction, (2) multiple punishments
violate Defendant’s right to be free from double jeopardy, (3) discovery and
evidentiary rulings undermined Defendant’s ability to present a defense and to
confront the State’s evidence with respect to all charges, and (4) the serious violent |
offense designation to the aggravated assault conviction lacks necessary findings. In
our original opinion, we affirmed Defendant’s convictions for aggravated assault and
aggravated battery, vacated his conviction for negligent use ofa deadly weapon, and
remanded for the district court to document its findings related to the serious violent
offense designation. The Supreme Court order quashed the writ of certiorari on the
questions presented in Defendant’s petition on the above issues, and they are no
longer subject to further consideration. See Order at 2, State v. Branch, No. S-1-SC-
35951 (Dec. 18, 2017). On remand, and in light of Baroz, however, we hold that
Defendant’s firearm enhancements for aggravated assault and aggravated battery do
not violate double jeopardy and that the district court’s decision in this regard is
affirmed.

BACKGROUND

{6 | By all accounts, Joshua and Defendant spent the morning of May 7, 2012,

arguing in the front yard, as they often did, about how best to care for the property

they occupied in separate trailers. Joshua, who was a college student in the spring of
2012, left in the middle of the argument to take an exam. The argument resumed upon
his return and ended when Defendant fired a single shot, striking Joshua in the thigh.
J oshua’s injuries resulted in five surgeries and ongoing issues with circulation and
limb function. He was on crutches when he testified for the State at trial a year later.
{7} The specific circumstances surrounding the shooting were contested below.
The State’s witnesses testified that Defendant was visibly upset—“aggravated,
agitated”—that morning. When Joshua finished his exam and returned to his parents’
trailer, Defendant, with “hatred in his voice,” told him to “get . . . off the property.”
The two then shouted back and forth before Joshua attempted to leave. Joshua and
Patricia walked toward the concrete slab that surrounded the steps to the porch. He
had plans to meet his girlfriend for lunch, and Patricia, attempting to ease the tension,
told him to do that. But as Joshua and Patricia talked near the front steps, Defendant
walked past them into the house.

{83} At some point prior, two guns—including a .44 caliber super blackhawk
(described as a “hand cannon” by one witness)}—were moved from their usual spot
in a closet at the back of the trailer and stashed in Defendant’s recliner, which faced
the trailer’s front entrance. Defendant armed himself with the .44 within seconds of

entering the trailer and then walked back to the front door. Steven Hickman, a family

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friend who was visiting the Branch home that day, testified that Defendant “went to
the door and then [said] ‘get... out of here’ and then bang, just like that, that quick,
the gun was fired.” |

{9} Patricia testified that she had her hand on Joshua’s shoulder when he was shot.
The two were facing one another when she looked up and saw Defendant standing in
the doorway with the .44. She hollered, “No!” And Defendant fired. She saw the “fire
come out” of the gun, felt something hit her leg, and saw Joshua fall. She testified
that she “thought he was going to shoot all of us.”

410} While Joshua lay bleeding on the pavement, Defendant came out of the trailer
and placed a set of keys on the dash of a car that was parked under the carport. He
then looked over to Patricia, turned, and walked up the road, stopping only to dispose
of his pocket knife in a flower pot on the way out. Patricia did not see Defendant
again that day.

{113 Defendant’s version of events differed in some respects. He testified that he
was Sitting with Patricia on a swing in the yard when Joshua returned from school.
Defendant, who no longer wanted to argue, told Joshua that he would leave. When |
Defendant stood to do so, he saw that Joshua was furious. As Defendant walked
toward the trailer, he saw Joshua and Patricia coming toward him. He entered the

house and saw Joshua outside, nearing the porch and then reaching for the rail by the

door. Defendant was frightened because he knew that Joshua was a “violent kid” with
post traumatic stress disorder (PTSD) who had been in several fights before,
including a fight in the military. He armed himself with the .44 and shot Joshua, who
then released the rail and fell to the concrete. Additional facts will be included as
needed in the analysis that follows.

DISCUSSION

A. Instructional Error and Sufficiency of the Evidence

2} Assault consists of “any unlawful act, threat or menacing conduct which causes
another person to reasonably believe that he is in danger of receiving an immediate
battery[.]” NMSA 1978, § 30-3-1(B) (1963). The offense is aggravated when, as in
this case, it is committed with a deadly weapon. NMSA 1978, § 30-3-2(A) (1963).
Defendant argues that Section 30-3-1(B) required the State to prove something more
than general criminal intent, which was the instruction given to the jury. Specifically,
Defendant argues that the State had to prove “specific intent to frighten or put
someone in fear of an imminent battery[,]” or at the very least, that one charged with |
violating Section 30-3-1(B) did so recklessly. Reading limiting principles of this sort
into the statute would theoretically ensure some nexus between a defendant and his

victim, thereby preventing what might otherwise amount to a construction of the

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assault statute that criminalizes the infliction of emotional distress for every bystander
that is reasonably put in fear by the commission of a nearby crime.

13}, Defendant’s argument is characterized as a sufficiency of the evidence
challenge, as a challenge to the jury instructions themselves, and as an assertion of
ineffective assistance of trial counsel in failing to request more demanding jury
instructions. “Our review for sufficiency of the evidence is deferential to the jury’s
findings. We review direct and circumstantial evidence in the light most favorable to
the guilty verdict, indulging all reasonable inferences and resolving all conflicts in
the evidence in favor of the verdict.” State v. Webb, 2013-NMCA-027, 14, 296 P.3d | .
1247 (alteration, internal quotation marks, and citations omitted). With respect to jury
instructions, we review for reversible error when an instruction is preserved and for
fundamental error when not. State v. Benally, 2001-NMSC-033, 7 12, 131 N.M. 258,
34 P.3d 1134. Whether preserved or not, however, Defendant’s contention ultimately
raises an issue of statutory interpretation, for which our review is de novo. State v.
Tafoya, 2012-NMSC-030, § 11, 285 P.3d 604; see also State v. Osborne, 1991-
NMSC-032, ¢ 40, 111 N.M. 654, 808 P.2d 624 (“[I]t is the duty of the court, not the
defendant, to instruct the jury on the essential elements of a crime.”).

{14} Defendant’s view of Section 30-3-1(B) has some merit. At common law, “[a]

criminal assault was an attempt to commit a battery. A tortious assault was an act

which put another in reasonable apprehension of immediate bodily harm.” United
States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976) (per curiam) (citation omitted).
The latter type—reasonable apprehension assault—has since been made a crime in
many jurisdictions, which have normally adopted specific intent requirements rooted
in the offense’s history as an intentional tort. Carter v. Commonwealth, 594 S.E.2d
284, 287-88 (Va. Ct. App. 2004); see, e.g., Robinson v. United States, 506 A.2d 572,
575 (D.C. 1986) (“An intent to frighten is sufficient[.]”); Lamb v. State of Maryland,
613 A.2d 402, 413 (Md. Ct. Spec. App. 1992) (“An assault of the intentional
frightening variety . . . requires a specific intent to place the victim in reasonable
apprehension of an imminent battery.”); Commonwealth v. Spencer, 663 N.E.2d 268,
271 (Mass. App. Ct. 1996) (“[P]roof of an intent to cause fear is required.”); accord
Model Penal Code § 211.1(1)(c) (2015) (“A person is guilty of assault if he...
attempts by physical menace to put another in fear of imminent serious bodily
injury.”). This apparent uniformity in other jurisdictions has prompted one leading
treatise to categorically declare that “[t]here must be an actual intention to cause

apprehension, unless there exists the morally worse intention to cause bodily harm.”
2 Wayne R. LaFave & David C. Baum, Substantive Criminal Law § 16.3(b), at 569

(2d ed. 2003).

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5} But that is not the law of New Mexico. In State v. Cruz, this Court held that
specific intent is not an essential element of aggravated assault. 1974-NMCA-077,
{ 7, 86 N.M. 455, 525 P.2d 382. As a principle of construction, when a statute does
not refer to intent, which is the case with Section 30-3-1(B), we normally presume
that the only mens rea involved is that of conscious wrongdoing—commonly referred
to as “general criminal intent.” State v. Campos, 1996-NMSC-043, 9 56, 122 N.M.
148, 921 P.2d 1266 (Franchini, J., dissenting). We applied that presumption to
aggravated assault in Cruz, and in State v. Cutnose, 1974-NMCA-130, 1 19-20, 87
N.M. 307, 532 P.2d 896. Cf State v. Mascarenas, 1974-NMCA-100, 4] 11-12, 86
N.M. 692, 526 P.2d 1285 (“[I]nstructions in the language of the statute sufficiently
instruct on the required intent.”).

{16} In State v. Manus, our Supreme Court—apparently persuaded by. that
reasoning—confirmed that general criminal intent is all that is required to support a
conviction of aggravated assault under Section 30-3-1(B). State v. Manus, 1979-
NMSC-035, § 12, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v.
State, 1982-NMSC-125, {4 9-10, 98 NM. 786, 653 P.2d 162. The arguments made
in Manus, which was also a bystander-assault case, are nearly identical to those
presented here. A police officer and a bystander were filling out an accident report

when the defendant approached and killed the officer with a shotgun. Jd. 9 3. The

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defendant was charged with killing the officer and assaulting the bystander on the
theory that the bystander was put in reasonable fear of receiving an immediate
battery. Id. 991, 14.

41 The defendant argued that his conviction for aggravated assault of the
bystander could not stand because “there was no evidence of any intentional assault
directed at [her].” Jd. 12. Our Supreme Court rejected that argument, holding that
“(t]he [s]tate was not required to prove that [the defendant] intended to assault [the
bystander], but only that he did an unlawful act which caused [the bystander] to
reasonably believe that she was in danger of receiving an immediate battery, that the
act was done with a deadly weapon, and that it was done with general criminal
intent.” Id. J 14; see State v. Morales, 2002-NMCA-052, § 36, 132 N.M. 146, 45 P.3d
406 (To convict [the dJefendant of aggravated assault on a peace officer, the [s]tate
was not required to prove that [the d]efendant intended to injure or even frighten [the
officer].”), overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 437
n.6, 275 P.3d 110; see also United States v. Rede-Mendez, 680 F.3d 552, 557 (6th Cir.
2012) (“The New Mexico version of aggravated assault differs from the generic
version most significantly in the mens rea it attaches to the element of bodily injury
or fear of injury.”); United States v. Silva, 608 F.3d 663, 675 (10th Cir. 2010) (Hartz,

J., dissenting) (“[A] person [in New Mexico] who intentionally handles a weapon in

a manner that induces a fear of battery can be guilty of assault even if he merely
wants to show off his dexterity in handling the weapon, without any interest in
inducing fear.”’).

{18} The expansive application of assault in Manus controls our construction of
Section 30-3-1(B). In accordance with the language of the statute, the State was only |
required to prove that Defendant “did an unlawful act which caused [the bystander]
to reasonably believe that she was in danger of receiving an immediate battery, that
the act was done with a deadly weapon, and that it was done with general criminal
intent.” Manus, 1979-NMSC-035, § 14. There is no nexus required between
Defendant and Patricia. Liability under the statute is only limited by the requisite
mental state of conscious wrongdoing and by the requirement that the victim’s fear
must be reasonable. See id.

4193 Evidence was presented that Defendant’s behavior on the day of the shooting
was generally threatening. He was “aggravated, agitated at something” on that day;
he had “hatred in his voice.” He was in the midst of an ongoing argument with Joshua
that had taken a turn for the worse. He spent the morning acting erratically—driving
around the yard on a backhoe, threatening to “plow Joshua’s house down.” He|:
demanded that Patricia choose between him and Joshua, but she refused to do so. His

demeanor prior to the shooting frightened Patricia.

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20} According to his own version of events, Defendant ascended the porch steps
and saw Joshua coming toward the trailer with Patricia “behind him.” Steven and
Patricia testified that Defendant armed himself within “a couple of seconds” and shot
Joshua while Patricia was standing right next to him. Patricia testified that she saw
the muzzle flash, felt something hit her leg, and “thought he was going to shoot all
of us.” We view this testimony in the light most favorable to the State. See Webb,
2013-NMCA-027, 14. While Defendant’s version of events differs in some respects,
it was for the jury to weigh the credibility of the witnesses and resolve any conflicts
in the testimony. See id. The jury could conclude that Defendant committed an
unlawful act (shooting Joshua), which caused Patricia—who had witnessed the day’s
events and was “standing right next to” Joshua when the shooting occurred—to |
reasonably believe that she was also going to be shot. The jury was properly
instructed on general criminal intent. Nothing more is required. See Manus, 1979-.
NMSC-035, {| 14.

21} Defendant makes one additional (and related) argument with respect to the
sufficiency of the evidence for the aggravated assault conviction. He contends that
the evidence failed to establish that he made any threat or exhibited any menacing
conduct toward Patricia, which he argues is required by the statute. Defendant

misreads Section 30-3-1(B). Assault consists of “any unlawful act, threat or menacing

conduct which causes another person to reasonably believe that he is in danger of
receiving an immediate battery[.]” Jd. The commission of an “unlawful act” is an
alternative method of committing the offense that does not rely on threatening or
menacing conduct. See Hale v. Basin Motor Co., 1990-NMSC-068, § 9, 110 N.M.
314, 795 P.2d 1006 (“[T]he word ‘or’ should be given its normal disjunctive meaning
unless the context of a statute demands otherwise.”). It was, in fact, the prong of the
statute applied in Manus, where the state was not required to prove any threat—or any
conduct at all—directed toward the bystander. 1979-NMSC-035, § 14. There is
abundant evidence to support a finding that Defendant acted unlawfully when he shot
Joshua.

B. Double Jeopardy

22} Wenext turn to the various double jeopardy issues that Defendant raises. The
constitution protects against both successive prosecutions and multiple punishments
for the same offense. Swafford y. State, 1991-NMSC-043, 4 6, 112 N.M. 3, 810 P.2d
1223. There are two types of multiple punishment cases: (1) unit of prosecution cases,
in which an individual is convicted of multiple violations of the same criminal statute;
and (2) double-description cases, in which a single act results in multiple convictions
under different statutes. Id. J] 8-9. Defendant’s arguments, involving separate

statutes, raise only double-description concerns.

23} Our courts apply a two-step inquiry to double-description claims. Id. § 25.
First, we analyze the factual question, “whether the conduct underlying the offenses
is unitary, i.e., whether the same conduct violates both statutes[,]” and if so, we
consider the legal question, “whether the [L]egislature intended to create separately
punishable offenses.” Jd. “Ifit reasonably can be said that the conduct is unitary, then
[we] must move to the second part of the inquiry. Otherwise, if the conduct is
separate and distinct, [the] inquiry is at an end.” Id. ¥ 28.

(24; Because it is undisputed that this case involves unitary conduct (the firing of
a single shot) that resulted in multiple convictions, our analysis will be limited to the
question of legislative intent. “Determinations of legislative intent, like double
jeopardy, present issues of law that are reviewed de novo, with the ultimate goal of
such review to be facilitating and promoting the [L]egislature’s accomplishment of
its purpose.” State v. Montoya, 2013-NMSC-020, { 29, 306 P.3d 426 (alterations,
internal quotation marks, and citation omitted). When, as here, the statutes themselves
do not expressly provide for multiple punishments, we begin by applying the rule of
statutory construction from Blockburger v. United States, 284 U.S. 299 (1932), to
determine whether each provision requires proof of a fact that the other does not.
Swafford, 1991-NMSC-043, q4 10, 30. If not, one offense is logically subsumed

within the other, and “punishment cannot be had for both.” Jd. J 30.

25} InStatev. Gutierrez, our Supreme Court modified the Blockburger analysis for
double jeopardy claims involving statutes that are “vague and unspecific” or “written
with many alternatives.” 2011-NMSC-024, 4 58-59, 150 N.M. 232, 258 P.3d 1024
(emphasis, internal quotation marks, and citation omitted). Accordingly, “the
application of Blockburger should not be so mechanical that it is enough for two
statutes to have different elements.” State v. Swick, 2012-NMSC-018, § 21, 279 P.3d
747. That is, we no longer apply a strict elements test in the abstract; rather, we look

to the state’s trial theory to identify the specific criminal cause of action for which the

defendant was convicted, filling in the case-specific meaning of generic terms in the

statute when necessary. Gutierrez, 2011-NMSC-024, §] 58-59. We do so

“independent of the particular facts of the case . . . by examining the charging

documents and the jury instructions given in the case.” Swick, 2012-NMSC-018, 921.
26} Ifthe statutes survive Blockburger, we examine “other indicia of legislative
intent.” Swafford, 1991-NMSC-043, § 31. We look to “the language, history, and
subject of the statutes, and we must identify the particular evil sought to be addressed
by each offense.” Montoya, 2013-NMSC-020, { 32 (internal quotation marks and
citation omitted). “Statutes directed toward protecting different social norms and

achieving different policies can be viewed as separate and amenable to multiple

punishments.” Swafford, 1991-NMSC-043, {| 32.

27 Defendant argues that his right to be free from double jeopardy is violated by
multiple punishments for (1) aggravated battery and negligent use of a firearm, (2)
aggravated assault and aggravated battery, and (3) the firearm enhancements to
aggravated assault and aggravated battery. The State concedes at the outset that
Defendant’s conviction for negligent use of a firearm must be vacated, because—as
charged—it is subsumed within the aggravated battery conviction. We agree. We
address Defendant’s two remaining arguments in turn.

1. Aggravated Assault and Aggravated Battery

28} Thecharge ofaggravated assault with a deadly weapon was apparently pursued
under the “unlawful act” prong of Section 30-3-1(B). The term “any unlawful act” is
a generic one; there are numerous forms of conduct that could fulfill that requirement.
See Mascarenas, 1974-NMCA-100, ¢ 14 (“ ‘Unlawful’ may mean nothing more than

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‘not authorized by law.’ ”). In applying Blockburger, we identify the State’s actual
theory of the case to supply the case-specific meaning of generic statutory terms.
Gutierrez, 201 1-NMSC-024, 77 58-59. The “unlawful act” that was charged to the
jury was that Defendant “shot Joshua Branch while Patricia Branch was standing next
to him[.]”

29} Defendant’s conviction for aggravated battery, on the other hand, required the

State to prove “the unlawful touching or application of force to the person of another

with intent to injure that person or another.” NMSA 1978, § 30-3-5(A) (1969)
(emphasis added). Section 30-3-5(A) always includes a statutory element (intent to
injure another person) that is never an element of assault under Section 30-3-1(B),
even as charged in this case. That is because—as we have discussed at length in this
Opinion—assault under Section 30-3-1(B) has no specific intent requirement. Manus,
1979-NMSC-035, § 14. Similarly, assault under Section 30-3-1(B) always includes
an element (the victim’s reasonable belief that battery is imminent) that is never
required to commit a battery. See In re Marlon C.,2003-NMCA-005, § 12, 133 N.M.
142, 61 P.3d 851 (“tt is theoretically possible to complete a battery on a person
without prior conduct causing the person to believe the person is about to be battered,
for example, if the person is struck from behind.”). Therefore, one offense is not
subsumed within the other, and Blockburger alone does not foreclose punishment
under both statutes.

30} Whentwo statutes survive Blockburger, we look to “the language, history, and
subject of the statutes, and we must identify the particular evil sought to be addressed
by each offense.” Montoya, 2013-NMSC-020, § 32 (internal quotation marks and |
citation omitted). “[T]he social evils proscribed by different statutes must be
construed narrowly[.|” Swafford, 1991-NMSC-043, § 32. “The aggravated battery

statute protects against the social evil that occurs when one person intentionally

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physically attacks and injures another.” State v. Carrasco, 1997-NMSC-047, § 33,

124 N.M. 64, 946 P.2d 1075 (internal quotation marks and citation omitted). The

culpable act under Section 30-3-1(B), on the other hand, is one that causes

apprehension or fear. In other words, “[t]he harm related to assault is mental harm;
assaults put persons in fear. The harm related to battery is physical harm; batteries
actually injure persons.” State v. Cowden, 1996-NMCA-051, 4 12, 121 N.M. 703, 917
P.2d 972.

313} In State v. Roper, we held that double jeopardy principles are not offended
when a defendant is convicted and sentenced for two counts of assault for pointing
a gun at two persons at the same time. 2001-NMCA-093, ¢ 12, 131 N.M. 189, 34 P.3d
133. The analysis in Roper is consistent with the principle that our assault statutes are
designed to protect distinct victims from mental harm caused by a single act. Jd;
Cowden, 1996-NMCA-051, 4 12. Although this is not a unit of prosecution case, the
same logic applies here, where one victim is shot and another assaulted. Defendant’s
convictions for offenses involving distinct social harms caused to multiple victims
do not violate the right to be free from double jeopardy.

2. Firearm Enhancements

323 Defendant next argues that firearm enhancements to his convictions for

aggravated battery and aggravated assault, both committed with a deadly weapon,

violate double jeopardy because use of a firearm—the only essential requirement for
the increased penalty—was also charged to the jury to prove the underlying crimes.
33}, We consider this issue on remand from the Supreme Court in light of the
Court’s disposition in Baroz. See Order at 1-2, State v. Branch, No. 8-1-SC-35951
(Dec. 18, 2017). In Baroz, the defendant was sentenced to a term of eighteen months,
followed by one year of parole, for each of his convictions of aggravated assault with
a deadly weapon. 2017-NMSC-030, | 20. Defendant’s sentences on these counts were
each enhanced by one year pursuant to the firearm enhancement statute, Section 31-
18-16(A). Baroz, 2017-NMSC-030, 920. Our Supreme Court rejected the defendant’s
contention that the firearm enhancement violates double jeopardy because use of a
firearm is an element of the underlying crime, aggravated assault with a deadly
weapon. /d. Concluding that the Legislature intended to authorize an enhanced
punishment when a firearm is used in the commission of aggravated assault, the Court
held that “[t]he sentence enhancement does not run afoul of double jeopardy.” Id.
q 27.

34} Given the Supreme Court’s holding in Baroz, we conclude that the firearm
enhancements in this case do not violate double jeopardy. We withdraw our previous

holding that the enhancements must be vacated and instead affirm the district court’s

ruling that Defendant’s sentences for aggravated battery and aggravated assault each
be increased by one year pursuant to the statutory firearm enhancement.

C. Discovery and Evidentiary Rulings

{35} Defendant next argues that discovery and evidentiary rulings undermined his
right to present a defense and to confront the State’s evidence. He argues that the
district court erred when it (1) failed to order disclosure of Joshua’s military and
mental health records, (2) excluded expert testimony related to PTSD, and (3) failed
to provide a remedy for the destruction of evidence material to the case. Defendant
asserts that these errors, either separately or combined, deprived him of a fair trial.

{36} | Wereview these contentions in a manner highly deferential to the court below.
“The granting of discovery in a criminal case is a matter peculiarly within the
discretion of the trial court. A trial judge’s denial ofa defendant’s discovery requests
will be reviewed according to an abuse of discretion standard.” State v. Bobbin, 1985-
NMCA-089, 47, 103 N.M. 375, 707 P.2d 1185 (citation omitted). The same standard
applies in evaluating a trial court’s decision to exclude evidence, State v. Stills, 1998-
NMSC-009, § 44, 125 N.M. 66, 957 P.2d 51, and in evaluating a trial court’s ruling
as to the proper remedy for evidence that has been lost or destroyed, State v.
Chouinard, 1981-NMSC-096, {J 25-26, 96 N.M. 658, 634 P.2d 680. “An abuse of

discretion arises when the evidentiary ruling is clearly contrary to logic and the facts

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and circumstances of the case.” State v. Downey, 2008-NMSC-061, § 24, 145 N.M.
232, 195 P.3d 1244 (internal quotation marks and citation omitted).

1. . Disclosure of Military and Mental Health Records

373 Defendant issued a subpoena duces tecum directing Joshua, who is a veteran
of the Marine Corps, to provide a copy of his military discharge. paperwork.
Defendant also requested a court order authorizing the release of Joshua’s discharge
records from the National Archives in St. Louis, Missouri. See 5 U.S.C. § 552a(b)(11)
(2014) (permitting the disclosure of agency records “pursuant to the order of a court
of competent jurisdiction”). In response, the State asserted that Joshua’s discharge
records were inadmissible and contained sensitive personal identifying information
and protected medical information. The State also asserted that Joshua’s prior service
as a Marine could not possibly provide a justification for Defendant shooting him in
the leg.

38} At the hearing on the issue, the district court apparently viewed Defendant’s
various discovery requests as a “fishing expedition.”’ The court asked Defendant to
articulate his reasons for seeking Joshua’s military records. Defendant asserted that
Joshua had been previously involved in “violence against other members of the

military.” Defendant specifically referred to a fight in the military that may have

‘Defendant also subpoenaed Joshua’s college academic records. That subpoena
is not involved in this appeal.

resulted in Joshua’s service being prematurely terminated. He argued that evidence
of the fight could be admissible to show Joshua’s propensity for violence. He also
argued that Joshua was going to take the stand and that the discharge papers would
be useful to impeach him. And finally, Defendant argued that the military records |
could open an avenue into Joshua’s mental health history as it relates to PTSD.

439} The district court correctly determined that, in self defense cases, evidence of
specific instances ofa victim’s prior violent conduct cannot be admitted as propensity
evidence of the victim’s violent disposition. See State v. Armendariz, 2006-NMSC- |
036, 9 17, 140 N.M. 182, 141 P.3d 526 (“[A] victim’s violent character is not an
essential element of a defendant’s claim of self[]defense, but rather circumstantial
evidence that tends to show that the victim acted in conformity with his or. her
character on a particular occasion. .. . [O]nly reputation or opinion evidence should
be admitted to show that the victim was the first aggressor.”), overruled on other
grounds by Swick, 2012-NMSC-018, { 31. The district court also recognized that the
discharge papers would not be admissible to impeach Joshua. See Rule 11-608(B)
NMRA (“[E]xtrinsic evidence is not admissible to prove specific instances of a
witness’s conduct in order to attack or support the witness’s character for

truthfulness.”). Because the requested records allegedly contained Joshua’s

“sacrosanct” medical history, and because Defendant did not justify the need for those

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records at the hearing, the district court quashed Defendant’s subpoena and declined
to issue an order authorizing production of the documents from the National
Archives.

{40} Records are normally discoverable if reasonably calculated to lead to the
discovery ofadmissible evidence. See Rule 5-503(C) NMRA. While records need not
be admissible to be discoverable, a proponent of discovery may still be required to
provide “a reasonable basis on which to believe that it is likely the records contain |.
material information.” State v. Garcia, 2013-NMCA-064, § 28, 302 P.3d 111.
Defendant argues on appeal that the proper procedure to determine materiality of
Joshua’s military records would have been for the district court to order in camera
review of the documents.

{41} We agree that in camera review would have been the best way to balance
Joshua’s privacy interests with Defendant’s interests in obtaining records that were |
potentially relevant to his defense. See State v. Luna, 1996-NMCA-071, § 13, 122
N.M. 143, 921 P.2d 950 (“In camera review of confidential information represents a
compromise between the intrusive disclosure of irrelevant information on the one
hand and the complete withholding of possibly exculpatory evidence on the other.”);
State v. Gonzales, 1996-NMCA-026, § 20, 121 N.M. 421, 912 P.2d 297 (stating that

the proper procedure to determine whether the material requested by the defendant

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is relevant is in camera review by the district court); State v. Pohl, 1976-NMCA-0 89,
975,89 N.M. 523, 554 P.2d 984 (holding that the district court erred in not conducting
an in camera review “to determine whether the files contained evidence material to
the defense”).
{42} But there is one problem for Defendant. Unlike the defendants in Luna, 1996-
NMCA-071, 93, Gonzales, 1996-NMCA-026, § 20, and Pohl, 1976-NMCA-089, 4,
Defendant never actually requested in camera inspection. of any records before the
district court—even after the court asked Defendant to provide “specific
knowledge . . . as to what to look for and where, or on the other hand to request an
in camera review|.|” For that reason alone, this case better resembles State v. Baca,
in which we stated,
As in Pohl, we cannot determine whether the suppressed evidence was
material to [the d]efendants’ claim of self] |defense, but, unlike Pohl, -
[the dJefendants neither requested an in camera hearing nor showed as
specific a need as could be expected under the
circumstances. ... Rather, our review of the argument made during the
motion hearing convinces us that [the dJefendants were on a fishing
expedition. [The d]Jefendants made no showing that their rights would
be violated but for full disclosure of the master file[.]
1993-NMCA-051, fff 25-26, 115 N.M. 536, 854 P.2d 363 (internal quotation marks
and citations omitted).

{43} There are compelling arguments on appeal that in camera review of Joshua’s

military records could have been useful to locate material information, such as the

identities of character witnesses who could have testified about Joshua’s reputation
for violence, see Rule 11-405(A) NMRA, or corroborating witnesses who arguably
could have testified under Rule 11-404(B) NMRA and State v. Maples, 2013-NMCA- | |
052, 27, 300 P.3d 749. But we cannot say that the district court abused its discretion
in rejecting the arguments that were actually presented below, where Defendant did
not seek in camera review but sought full disclosure of all discharge records. See
Baca, 1993-NMCA-051, TN 25-26: see also State v. Ortiz, 2009-NMCA-092, 4 32,
146 N.M. 873, 215 P.3d 811 (“To preserve an issue for review on appeal, it must
appear that appellant fairly invoked a ruling of the trial court on the same grounds
argued in the appellate court.” (internal quotation marks and citation omitted)). We
affirm the district court because its ruling on the arguments before it was not “clearly
contrary to logic and the facts and circumstances of the case.” Downey, 2008-NMSC- | |
061, { 24 Gnternal quotation marks and citation omitted).

2. Testimony Related to PTSD

{44 Defense counsel questioned Joshua at a preliminary hearing about a diagnosis
of PTSD related to prior military service. The State then filed a motion in limine to
exclude evidence of Joshua’s mental health history in the absence of expert testimony
establishing the relevance of such evidence. The district court granted that motion,

ordering that if “Defendant does not make, through expert testimony, a prima facile]

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showing that evidence of [Joshua’s] mental health history is relevant, then no such
evidence may be introduced.” A little over a week before trial, Defendant identified
Dr. Alexander Paret, a psychologist, to testify about PTSD. The State moved to
exclude Dr. Paret’s testimony on the ground that he had no prior contact with Joshua
and would have been unable to testify about how PTSD symptoms were specifically
manifested in Joshua.

{45} The district court held a hearing on the issue on the day before trial. Defendant
conceded that Dr. Paret had never met or spoken with Joshua and would only testify
about PTSD generally because a diagnosis of PTSD goes to the reasonableness of
Defendant’s assumption that he was in apparent danger when he shot Joshua. The
court pointed out that “PTSD is a spectrum” that manifests itself in different people
in different ways and that without ever having examined Joshua, Dr. Paret could not
assist the jury in determining whether Defendant’s alleged concerns about Joshua’s
PTSD were reasonable. The court suppressed the proposed testimony.

{46} “The very essence of discretion is that there will be reasons for the district
court to rule either way on an issue, and whatever way the district court rules will not
be an abuse of discretion.” State v. Layne, 2008-NMCA-103, J 7, 144 N.M. 574, 189
P.3d 707. “The trial judge’s discretion is necessarily broad for he sits in the arena of

litigation.” State v. Tafoya, 1980-NMSC-099, § 6, 94 N.M. 762, 617 P.2d 151

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(internal quotation marks and citation omitted). It is the trial judge that is best suited
to answer the determinative question: “On this subject can a jury from this person
receive appreciable help?” Jd. (internal quotation marks and citations omitted).

47} The defendant in Tafoya was prevented from calling a child psychologist to
testify that children had fantasized an alleged instance of sexual assault. Jd. 9 3. The
psychologist’s testimony “was to have been based upon statements and depositions
of the children, as well as tapes of their trial testimony. She had never personally
observed the demeanor of the children, nor questioned them herself.” Jd. On appeal,
our Supreme Court held that it was not an abuse of discretion for the trial court to
“determine that the probative value of the testimony was slight, based upon the lack
of personal observation” by the psychologist. Id. J 7.

{48} The situation is no different here. The district court in this case reasonably
discounted the value of Dr. Paret’s general testimony about PTSD, which would have
made no reference to any observation of Joshua. “PTSD is simply not a monolithic
disease with a uniform structure that does not permit of individual variation.” Brunell
v. Wildwood Crest Police Dep ’t, 822 A.2d 576, 588-89 (N.J. 2003). Those diagnosed
with PTSD exhibit a range of reactions related to their trauma. See The National
Institute of Mental Health: Post-Traumatic Stress Disorder, available at

http://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.s

html (last accessed April 20, 2016). Dr. Paret’s proposed testimony would not have
accounted for any individual variation or meaningfully assisted the jury in
determining whether Defendant’s reaction to the manifestation of PTSD in Joshua
was reasonable. “No error occurs when the judge excludes expert testimony where.
the probative value of that testimony is slight.” State v. Blea, 1984-NMSC-055, § 7,
101 N.M. 323, 681 P.2d 1100. The cases cited by Defendant are not to the contrary.
State v. Alberico, 1993-NMSC-047, § 44, 116 N.M. 156, 861 P.2d 192 (“[T]he
relevant inquiry is on this subject can a jury from this person receive appreciable
help.” (alteration, internal quotation marks, and citation omitted)); State v. Marquez,
2009-NMSC-055, 9 25, 147 N.M. 386, 223 P.3d 931 (dealing with harmless error in
an analysis that has been overruled), overruled by Tollardo, 2012-NMSC-008.

3. Destruction of Evidence

449 Atsome point on the day of the shooting, Detective Danny Clugsten of the San
Juan County Sheriff's Office took photographs of the crime scene that were
inadvertently lost. Defendant moved on the morning of trial to dismiss all charges or
to otherwise exclude several of the State’s witnesses pursuant to Scoggins v. State,
1990-NMSC-103, ff 8-9, 111 N.M. 122, 802 P.2d 631. In the alternative, Defendant

requested a last-minute continuance so that the State could review and respond to the

‘authorities cited in the motion to dismiss. The district court denied the motion

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because it was not timely and because there were multiple eyewitnesses at the scene
who could testify about the relevant details. Defendant subsequently requested a jury
instruction that the lost photographs “may have supported the conclusion that
Joshua Branch was in a position from which he could cause immediate harm to...
[D]efendant” and that the jury could consider-the loss of evidence to be “unfavorable
to the [S]tate.” The court gave defense counsel carte blanche to raise the issue in
cross-examination of police witnesses and in closing arguments but denied the
request for a limiting instruction.

{50} Weapplya three-part test to determine whether deprivation of evidence by the
State constitutes reversible error. Chouinard, 1981-NMSC-096, § 16. We ask, first,
whether the State breached some duty or intentionally deprived Defendant of
evidence; second, whether the suppressed evidence was material; and third, whether
prejudice resulted. Jd. Because there is no allegation that the photographs were lost
in bad faith, Defendant bore the burden of showing materiality and prejudice before
any sanctions would have been appropriate. See State v. Pacheco, 2008-NMCA-131
430, 145 N.M. 40, 193 P.3d 587. The district court is in the best position to evaluate
the importance of lost evidence. /d. |

{51} Defendant’s motion was filed at the last minute and without any good reason

for the late filing. The defense team had known for months that the photographs were

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lost. They nevertheless brought the issue to the court’s attention on the morning of
trial because, after a discussion the night before, they realized they “had a duty to
generate arecord.” They faxed the motion to opposing counsel at 7:00 p.m. that night,
leaving the State little opportunity to respond. It was undisputed that the motion was
untimely and that there was no good excuse for the late filing.

{52} | In any event, Defendant’s argument is not convincing on the merits. While
there is no doubt that the State breached a duty to preserve evidence, the district court
could reasonably conclude that Defendant did not show materiality or prejudice.
Defendant asserted at the hearing that blood spatter in the shotographs might show
Joshua’s location when he was shot. That is speculative because Defendant did not
know what was in the photographs. “The mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the outcome of the
trial, does not establish ‘materiality’ in the constitutional sense.” State v. Martin,
1984-NMSC-077, § 37, 101 N.M. 595, 686 P.2d 937 (internal quotation marks and
citation omitted). It was, after all, Defendant’s burden to establish materiality.
Pacheco, 2008-NMCA-131, 4 30. And that burden might have been met had the
defense team addressed the issue when the State brought it to their attention months |
earlier. The photos were taken and lost by an identified officer, Detective Clugston.

There were likely two other witnesses, Deputy Todd Mangan, the first officer that

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arrived on the scene, and Detective Tim Nyce, who stated in open court that he was

present when the photos were taken, that could have testified about the nature of the

lost evidence. But instead of interviewing them prior to filing the motion, defense

counsel speculated on the moming of trial about the contents of the photographs,

asking—based on the unknown—for outright dismissal of all charges, exclusion of
several of the State’s witnesses, or a continuance of the trial after the jury had already
been empaneled. See State v. Aragon, 1997-NMCA-087, § 22, 123 N.M. 803, 945

P.2d 1021 (“[A]s a general rule, a motion for a continuance filed at the last minute is

not favored.”).

{53} - -Bven assuming that there was discernable blood spatter in the photographs, it
is unlikely that suppression prejudiced Defendant. The State’s theory about Joshua’s

location when he was shot was not meaningfully different from Defendant’s version
of events. Joshua testified that he was three to four feet from the railing on the steps
to the front porch. Patricia testified to the same effect. Steven saw Joshua lying on the
pavement six to eight feet from the trailer after the shooting. And Defendant
conceded that Joshua did not follow him onto the porch. All accounts put Joshua in
the immediate vicinity of the railing surrounding the door to the trailer when the

shooting occurred. The real question was not where Joshua was standing, but whether

he was advancing on Defendant. No after-the-fact photograph of blood spatter could

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have resolved that critical issue. See State v. Duarte, 2007-NMCA-012, 4 11, 140
N.M. 930, 149 P.3d 1027 (“[R]eversal is not mandated unless the evidence is in some
way determinative of guilt.” (internal quotation marks and citation omitted)). On
these facts, we defer to the district court’s sound discretion not to mandate sanctions
of any kind.

{54 We conclude that there was no error in any of the district court’s discovery and
evidentiary rulings, and therefore, there was no cumulative error. See State v. Salas,
2010-NMSC-028, § 40, 148 N.M. 313, 236 P.3d 32.

D. Aggravated Assault as a Serious Violent Offense

55} This final issue arises, as it often does, because the district court used only
boilerplate language in a sentencing document to designate a serious violent offense
under Section 33-2-3 4(L)(4)(0) of the Earned Meritorious Deductions Act (EMDA).
The EMDA provides that prisoners convicted of serious violent offenses may earn
only four (as opposed to thirty) days per month of good time credit for time served
in our state prisons. Section 33-2-34(A)(1), (2). The statute divides serious violent
offenses into two categories: (1) an enumerated list of crimes, such as second degree
murder, that are serious violent offenses as a matter of law; and (2) several]
“additional offenses that the district court may determine to be serious violent

offenses due to the nature of the offense and the resulting harm.” State v. Scurry,

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2007-NMCA-064, 9 5, 141 N.M. 591, 158 P.3d 1034 (internal quotation marks and
citation omitted). Aggravated assault is a discretionary offense under the second
category. Section 33-2-34(L)(4)(o). In language mirroring the statute, the district
court designated it to be a serious violent offense “due to the nature of the offense and
the resulting harm.”

{56} When, as here, an offense is discretionary under the statute, “a court’s
designation of a crime as a serious violent offense affects the length of time the
defendant serves time in prison,” and therefore “it is important that the court make
specific findings both to inform the defendant being sentenced of the factual basis on
which his good time credit is being substantially reduced, and to permit meaningful
and effective appellate review of the court’s designation.” State v. Loretto, 2006-
NMCA-142, 4 12, 140 N.M. 705, 147 P.3d 1138. Express findings must demonstrate
that the crime was “committed in a physically violent manner either with an intent to
do serious harm or with recklessness in the face of knowledge that one’s acts are] _
reasonably likely to result in serious harm.” Jd. § 11 (internal quotation marks and
citation omitted), Even where support exists in the record for the district court to

make such a determination, it is up to the district court “in the first instance to make

the required findings.” State v. Morales, 2002-NMCA-016, § 18, 131 N.M. 530, 39

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P.3d 747, abrogated on other grounds by State v. Frawley, 2007-NMSC-057, { 36,
143 N.M. 7, 172 P.3d 144.

{57} The State argues that “[t]he evidence presented at trial fully supports the trial
court’s finding that the aggravated assault conviction was a serious Violent offense.”
But the standard is not whether there is sufficient evidence in the record to support
the district court’s unexplained conclusion. The standard is a bright line that “requires

the district court to explain its conclusions.” Scurry, 2007-NMCA-064, 4 6. We have

held in this Opinion that, under Manus, Defendant may technically have been

convicted of aggravated assault without directing any conduct toward Patricia,
without acting recklessly, and without harboring any specific intent to cause
apprehension or fear. See 1979-NMSC-035, 4 14. The district court’s findings for
sentencing on aggravated assault are both important and required. Morales, 2002-
NMCA-016, fF 16, 18.

{58} The State has not pointed out any specific findings in the record. The judgment
and sentence contains only the same run-of-the-mill explanation—“due to the nature
of the offense and the resulting harm”—that frequently causes us to remand cases for
additional factfinding. See, eg, State v. Irvin, 2015 WL 4276092, No. 32,643, mem.
op. 937 (N.M. Ct. App. June 23, 2015) (non-precedential); State v. Kuykendall, 2014

WL 5782937, No. 32,612, mem. op. § 37 (N.M. Ct. App. Sept. 23, 2014) (non-

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precedential); State v. Ybanez, 2013 WL 4527245, No. 31,216, mem. op. ff 18-19
(N.M. Ct. App. Mar. 27, 2013) (non-precedential); State y, Farrell, 2010 WL
3997938, No. 29,186, mem. op. *7 (N.M. Ct. App. Feb. 3, 2010) (non-precedential);
State v. Salles, 2009 wo 6677933, No. 29,222, mem. op. *2-3 (N.M. Ct. App. May
1, 2009) (non-precedential).

{59} We once again remand for findings consistent with the standard described in
Morales, 2002-NMCA-016, 4] 16, 18, and the cases that have followed it.
CONCLUSION

60} Defendant’s convictions for aggravated assault and aggravated battery, both
with a deadly weapon, are affirmed. The firearm enhancements to those convictions
are also affirmed. Defendant’s conviction for negligent use of a deadly weapon is
reversed and vacated. Finally, we remand the serious violent offense designation
related to Defendant’s aggravated assault conviction back to the district court for
specific findings to identify and explain the evidence supporting the designation.

13} ITISSO ORDERED.

AM. VANZI, Chief Judge

1
WE CONCUR:
mathy L. Marcia
2 3
TIMOTHY L. GARCIA, Judge
1
4 5
STEPHEN G. FRENCH, Judge
36

January 23, 2018- State of New Mexico v. Lawrence Branch, No. A-1-CA-33064

Testo completo

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