January 16, 2020- State of New Mexico v. Micola Sopyn, No. A-1-CA-36593

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36593	4
MICOLA SOPYN,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY	7
Jeff Foster McElroy, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
The Law Office of Scott M. Davidson, Ph.D., Esq.	13
Scott M. Davidson	14
Albuquerque, NM	15
for Appellant	16
MEMORANDUM OPINION	17
B. ZAMORA, Judge.	18
{1} 	Defendant appeals from his conviction for second-degree murder, contrary to	19
NMSA 1978, Section 30-2-1(B) (1994). Defendant articulates three issues on	20
appeal: (1) “[w]hether the uncorroborated testimony of [the eyewitness] as to the	21
circumstances of the shooting was inherently improbable or physically impossible,	22
Court of Appeals of New Mexico
Filed 1/16/2020 12:26 PM

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and thus an insufficient basis for a second-degree murder conviction”; (2) “[w]hether	1
the State failed to prove beyond a reasonable doubt that [Defendant]’s act of shooting	2
[Victim] was not the result of sufficient provocation”; and (3) “[w]hether the jury	3
was improperly instructed as to sufficient provocation and voluntary manslaughter.”	4
Having considered Defendant’s arguments, we affirm.	5
BACKGROUND	6
{2} 	The State and Defendant both presented evidence at trial, telling very similar	7
stories about how a night and day of partying ended with Defendant shooting Victim	8
with a shotgun, resulting in Victim’s death, with the significant difference being	9
Defendant’s state of mind at the time of firing the gun. Because the issues asserted	10
on appeal require an understanding of the facts presented to the jury, we set forth the	11
evidence presented at trial, noting when the parties disagreed.	12
{3} 	On the evening before the incident at issue in this case, Defendant, Victim,	13
and another man—Victim’s boyfriend Gary Medina—were together at Defendant’s	14
residence. The three friends used cocaine until about 2:00 a.m., after which Victim	15
and Medina left Defendant’s home. Several hours later, on the morning in question,	16
Defendant called Victim and Medina and said he was not feeling well and was	17
suicidal, picked up Victim and Medina, and took them to his house. Later that	18
morning, Defendant and Medina arranged to buy more cocaine, and all three smoked	19

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the cocaine at Defendant’s house. Defendant and Victim also obtained and drank	1
some vodka miniatures.	2
{4} 	The parties do not dispute that Defendant, Medina, and Victim began arguing	3
about money and about using more drugs. Defendant purchased more cocaine, but	4
he did not want to share it with Victim and Medina. The argument escalated, and	5
Victim “slapped [Defendant’s] face, tore a painting she had given him, and walked	6
out of the house.” As Victim left, she told Medina to gather her things. Defendant	7
locked the door behind her. Victim returned and knocked on the front door to tell	8
Medina to hurry up.	9
{5} 	At some point after Victim initially left Defendant’s house, Defendant shot	10
Victim, resulting in her death. The State and Defendant presented evidence	11
supporting opposing theories as to how the shooting happened and, crucially,	12
whether it was an accident. According to Defendant, after Victim allegedly struck	13
him, he armed himself with a loaded shotgun in order to shoot into the air and scare	14
Victim and Medina into leaving his residence. Instead, after a scuffle between	15
Defendant and Victim, Defendant shot Victim in the left side of her chest, and she	16
died as a result of the wound. This version of events describes an unintentional	17
shooting that was caused when Victim and Defendant “were in the doorway, they	18
got in a tussle; she grabbed the barrel of the gun from him. Then the gun went off,	19
creating a large, fatal wound to the left-hand side of her body.” It appears that this	20

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theory is based on the audio-tape of Defendant’s police interview, which was played	1
at trial and also was provided to the jury via an unofficial transcript.	2
{6} 	The State presented testimony that Defendant contends also supports his	3
theory that Victim’s death was accidental. In particular, a neighbor and a passerby	4
who stopped to assist at the scene both testified that Medina said the shooting was	5
an accident, although Medina testified that he did not recall making those statements.	6
In support of the State’s theory that the shooting was not an accident, however, the	7
passerby witness also testified that Defendant said twice to Medina, “Well, you saw	8
her. She hit me right across the face.”	9
{7} 	The State also presented several law enforcement and forensic witnesses,	10
whose testimonies Defendant likewise contends support his theory. A medical	11
examiner, a firearms expert, and a retired crime scene analyst from the New Mexico	12
State Police all testified regarding the forensics of the firearm evidence and the	13
trajectory of the shot that killed Victim. In addition, Defendant presented his own	14
firearms expert who testified regarding the trajectory of the shot that killed Victim.	15
All four of the forensic witnesses testified that the gun shot came from a distance of	16
less than a foot away and no more than three feet away from Victim.	17
{8} 	In support of its theory of an intentional shooting, the State also presented	18
testimony from Deputy Mauro Rosales regarding the investigation of the death.	19
Deputy Rosales testified that, at the scene, Defendant told him that Victim “f-ing	20

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beat the f- out of me.” The investigating detective, Detective Robert Salazar,	1
interviewed Defendant and, in line with Defendant’s theory, testified that Defendant	2
claimed at the time of the incident that he knew the gun was loaded, but maintained	3
the shooting was an accident. Detective Salazar also testified Defendant knew that	4
Victim “was already leaving,” but said “I hope she’s a few feet away and I’m going	5
to shoot in the air” so that she and Medina would stay away. Detective Salazar	6
confirmed that Defendant claimed he thought the safety was on, he never pointed	7
the shotgun at Victim, and his finger was not on the trigger.	8
{9} 	With this background in mind, we turn to address Defendant’s arguments on	9
appeal.	10
DISCUSSION	11
I. 	The “Inherent Improbability Doctrine”	12
{10} 	Defendant asks us to apply the “inherent improbability doctrine” and set aside	13
his conviction, arguing that his conviction for second-degree murder is supported	14
only by Medina’s inherently implausible, physically impossible, and uncorroborated	15
testimony. Based on the evidence presented at trial, we are unpersuaded and decline	16
to reverse Defendant’s conviction on this ground.	17
{11} 	Under the inherent improbability doctrine, an appellate court may, in rare	18
circumstances, set aside a conviction supported only by a lone witness’s testimony	19
that is inherently improbable and uncorroborated. See State v. Armijo, 1931-NMSC-	20

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008, ¶¶ 28-31, 35 N.M. 533, 2 P.2d 1075 (holding on rehearing that the inherently	1
improbable, uncorroborated testimony of an accomplice was insufficient to support	2
a conspiracy conviction). Application of the doctrine has resulted in the reversal of	3
convictions in State v. Taylor, 1927-NMSC-006, ¶ 11, 32 N.M. 163, 252 P. 984	4
(setting aside a conviction for statutory rape based on the alleged victim’s inherently	5
improbable story, uncorroborated by any unequivocal fact, in the interests of justice),	6
and Armijo, 1931-NMSC-008, ¶¶ 28-31.	7
{12} 	More recently, however, our Supreme Court briefly addressed the doctrine in	8
State v. Garcia, 2011-NMSC-003, ¶¶ 6, 11, 149 N.M. 185, 246 P.3d 1057, declining	9
to apply the doctrine when there was otherwise sufficient evidence to permit the jury	10
to 	convict. Specifically, in 	Garcia, the defendant 	urged 	the Court 	to 	reject	11
eyewitness 	testimony 	pertinent 	to 	a 	felony 	murder 	charge 	as 	“inherently	12
unbelievable [because] each witness harbored reasons to provide false or misleading	13
testimony, and 	therefore the testimony fails to 	meet 	a minimal 	standard of	14
truthfulness.” 	Id. 	¶ 6 (internal quotation marks omitted). After undertaking a	15
sufficiency analysis, the Court concluded that the non-conflicting testimony of	16
multiple witnesses provided the jury with a reasonable basis to convict the	17
defendant. Id. ¶ 11. Our Supreme Court reiterated that, “[b]ecause an appellate	18
tribunal does not enjoy the same exposure to the evidence and witnesses as the jury	19
at trial, our review for sufficiency of the evidence is deferential to the jury’s	20

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findings.” Id. ¶ 5. “In particular, New Mexico appellate courts will not invade the	1
jury’s province as fact-finder by second-guessing the jury’s decision concerning the	2
credibility of witnesses, reweighing the evidence, or substituting its judgment for	3
that of the jury.” Id. ¶ 5 (alterations, internal quotation marks and citation omitted).	4
{13} 	Similarly, in the present case, Defendant argues that the State’s case was based	5
on inherently improbable evidence because it relied solely on Medina’s testimony,	6
which was in contradiction with all of the other evidence. See, e.g., Armijo, 1931-	7
NMSC-008, ¶ 34 (reversing when unreliable evidence came from a single witness).	8
As our Supreme Court reasoned in Garcia, Defendant’s argument warrants that we	9
consider the sufficiency of the evidence supporting the intent element of second-	10
degree murder, apart from Medina’s testimony. See Garcia, 2001-NMSC-003, ¶ 11.	11
{14} 	In 	reviewing 	the 	sufficiency 	of 	the 	evidence, 	we 	determine 	whether	12
substantial evidence, either direct or circumstantial, exists to support a verdict of	13
guilty beyond a reasonable doubt for every essential element of the crime at issue.	14
See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We view the	15
evidence in the light most favorable to the verdict, resolving all conflicts and	16
indulging all permissible inferences to uphold the conviction and disregarding all	17
evidence and inferences to the contrary, to ensure that a rational jury could have	18
found each element of the crime established beyond a reasonable doubt. See id.	19

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{15} 	The jury instruction on intent required the State to prove, beyond a reasonable	1
doubt, that Defendant knew his actions created a strong probability of death or great	2
bodily harm to Victim, he acted without sufficient provocation, and he acted	3
intentionally. See State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883	4
(“Jury instructions become the law of the case against which the sufficiency of the	5
evidence 	is 	to 	be 	measured.”). 	We 	separately 	conclude 	that 	the 	sufficient	6
provocation element was satisfied, below. We therefore only address at this juncture	7
whether Defendant acted intentionally when he shot Victim.	8
{16} 	The State introduced testimony at trial that Defendant was very angry with	9
Victim, that he said, “She f-ing beat the f- out of me” and said, “Well, you saw her.	10
She hit me right across the face.” The State also introduced evidence that Defendant	11
took several affirmative steps or actions to create a strong probability of death or	12
great bodily harm to Victim, including that he went to find his shotgun, loaded it,	13
pumped it to chamber a round before approaching the door, took off the safety, and	14
pulled the trigger. Moreover, there was testimony that the shot was fired at extremely	15
close range at an individual who was already leaving the house. Finally, the State	16
also presented evidence that Defendant and Victim had engaged in at least two	17
separate arguments on that day, Victim had struck Defendant, Defendant armed	18
himself with a loaded shotgun, and Victim was shot and died at the front door of the	19
residence.	20

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{17} 	Considering this evidence in the light most favorable to the verdict, we	1
conclude the State presented sufficient circumstantial evidence to support the intent	2
requirement, even if Medina’s testimony were deemed inherently implausible,	3
physically impossible, or internally contradictory. See Garcia, 2011-NMSC-003,	4
¶ 11 (concluding in a felony murder case that sufficient evidence was present to	5
permit a jury to find all the elements of the crime beyond a reasonable doubt, which	6
stood in “marked contrast to Armijo, the case relied upon by the defense, where th[e]	7
Court reversed a conspiracy conviction based upon the inherently improbable,	8
uncorroborated testimony of an accomplice who earlier had declared that the	9
defendant was innocent”); State v. Flores, 2010-NMSC-002, ¶ 19, 147 N.M. 542,	10
226 P.3d 641 (stating that “circumstantial evidence alone can amount to substantial	11
evidence”); State v. Durant, 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d 495	12
(“Intent can rarely be proved directly and often is proved by circumstantial	13
evidence.”); State v. Wasson, 1998-NMCA-087, ¶ 12, 125 N.M. 656, 964 P.2d 820	14
(holding that a defendant’s knowledge or intent generally presents a question of fact	15
for a jury to decide). Accordingly, Defendant’s argument that the conviction relies	16
on a lone witness fails, and as such, we do not conclude that the conviction was	17
based solely on inherently improbable, or physically impossible testimony. See	18
Garcia, 2011-NMSC-003, ¶ 11.	19

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{18} 	Additionally, to the extent Defendant contends that Medina’s pecuniary	1
interest in the outcome of the trial lends credence to his inherent improbability	2
theory—in light of Medina’s wrongful death lawsuit against Defendant, seeking	3
damages for Victim’s death—we note that Medina testified he believed that the suit	4
had been dismissed, and the jury was entitled to make its own determination about	5
the credibility of that statement. See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M.	6
686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any conflict in	7
the testimony of the witnesses and to determine where the weight and credibility lie).	8
For all of these reasons, we conclude that Defendant’s conviction was not based on	9
the “inherently improbable” testimony of a single witness, see Armijo, 1931-NMSC-	10
008, ¶¶ 28-31, and we decline to reverse on these grounds.	11
II. 	Lack of Sufficient Provocation	12
{19} 	Defendant argues that there was evidence of sufficient provocation, and	13
therefore 	a 	conviction 	for 	second-degree 	murder 	cannot 	stand. 	Defendant	14
specifically contends there was “abundant evidence that there was sufficient	15
provocation immediately prior to the shooting,” and as such, voluntary manslaughter	16
is the highest degree of homicide with which he could be convicted. Because the	17
absence of sufficient provocation was an element of the crime charged, Defendant’s	18
argument again challenges the sufficiency of the evidence supporting this element.	19

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{20} 	To convict Defendant of second-degree murder, the State was required to	1
prove beyond a reasonable doubt that: (1) “[D]efendant killed [Victim]”; (2)	2
“[D]efendant knew that his acts created a strong probability of death or great bodily	3
harm to [Victim]”; and (3) “[D]efendant did not act as a result of sufficient	4
provocation.” See UJI 14-210 NMRA; see also Smith, 1986-NMCA-089, ¶ 7.	5
Further, the jury was instructed that:	6
“Sufficient provocation” can be any action, conduct or circumstances	7
which arouse anger, rage, fear, sudden resentment, terror or other	8
extreme emotions. The provocation must be such as would affect the	9
ability to reason and to cause a temporary loss of self control in an	10
ordinary person of average disposition. The “provocation” is not	11
sufficient if an ordinary person would have cooled off before acting.	12
UJI 14-222 NMRA. It is generally for the jury to decide whether any given act,	13
condition, 	or 	circumstance 	could 	objectively 	be 	said 	to 	constitute 	sufficient	14
provocation. See State v. Stills, 1998-NMSC-009, ¶¶ 36-37, 125 N.M. 66, 957 P.2d	15
51 (holding that the fact-finder must determine whether “an ordinary person of	16
average disposition” in the same situation would have been provoked (internal	17
quotation marks and citation omitted)); State v. Taylor, 2000-NMCA-072, ¶ 28, 129	18
N.M. 376, 8 P.3d 863 (holding that “[t]he question of whether the circumstances	19
rose to the level of provocation to reduce second[-]degree murder to voluntary	20
manslaughter was for the fact[-]finder to resolve”).	21
{21} 	In support of his argument, Defendant asks us to consider his statements	22
during the course of the investigation that Victim had beaten him prior to the	23

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shooting. In response, the State points out that Defendant also told police during his	1
interview that he was being hustled by Victim. Based on the evidence set forth earlier	2
in this opinion and viewing such evidence in the light most favorable to the verdict,	3
we conclude the jury could have found that the testimony regarding the unarmed	4
Victim leaving Defendant’s house and encouraging Medina to hurry up so they could	5
leave satisfied the “lack of sufficient provocation” element of the jury instructions.	6
In other words, we hold the testimony was sufficient to support a rational jury’s	7
determination that Defendant did not act as a result of sufficient provocation. See	8
UJI 14-210, 14-222; Stills, 1998-NMSC-009, ¶¶ 36-37; Taylor, 2000-NMCA-072,	9
¶ 28; see also State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515	10
(“Contrary evidence supporting acquittal does not provide a basis for reversal	11
because the jury is free to reject [the d]efendant’s version of the facts.” (internal	12
quotation marks and citation omitted)); State v. Akers, 2010-NMCA-103, ¶ 32, 149	13
N.M. 53, 243 P.3d 757 (“We do not weigh the evidence or substitute our judgment	14
for that of the fact[-]finder.”).	15
III. 	Jury Instructions	16
{22} 	Finally, Defendant argues that the jury was not properly instructed as to	17
sufficient 	provocation 	and 	voluntary 	manslaughter, 	while 	simultaneously	18
acknowledging 	that 	the 	jury 	instructions 	given 	“cover[ed] 	the 	bases.” 	The	19
instructions given in this case were consistent with the New Mexico Uniform Jury	20

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Instructions. See UJI 14-210 (second-degree murder); UJI 14-220 NMRA (voluntary	1
manslaughter); 	UJI 	14-231 	NMRA 	(involuntary 	manslaughter); 	UJI 	14-222	2
(sufficient provocation); UJI 14-250 NMRA (jury procedure for various degrees of	3
homicide).	4
{23} 	Nonetheless, Defendant claims that it was fundamental error not to give the	5
jury “a special interrogatory and not to correctly and clearly instruct them as to	6
sufficient provocation, second-degree murder and voluntary manslaughter.” No	7
special interrogatory was requested in this case; in fact, as Defendant acknowledges,	8
this argument is unpreserved. Therefore, we apply the fundamental error standard of	9
review. See State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134	10
(“The standard of review we apply to jury instructions depends on whether the issue	11
has been preserved. If the error has been preserved we review the instructions for	12
reversible error. If not, we review for fundamental error.” (citation omitted)). Even	13
when reviewing for fundamental error, “we seek to determine whether a reasonable	14
juror would have been confused or misdirected by the jury instruction.” Id. (internal	15
quotation marks and citation omitted).	16
{24} 	Uniform Jury Instruction 14-220, the voluntary manslaughter instruction,	17
reads as follows:	18
The 	difference 	between 	second[-]degree 	murder 	and 	voluntary	19
manslaughter is sufficient provocation. In second[-]degree murder the	20
defendant kills without having been sufficiently provoked, that is,	21
without sufficient provocation. In the case of voluntary manslaughter	22

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the defendant kills after having been sufficiently provoked, that is, as a	1
result 	of 	sufficient 	provocation. 	Sufficient 	provocation 	reduces	2
second[-]degree murder to voluntary manslaughter.	3
Although the jury instruction in the present case followed the uniform jury	4
instruction, Defendant nonetheless contends the “instructions were systematically	5
ambiguous” and that “[a] clearer instruction would have informed the jury that	6
[Defendant] did not have the burden to prove sufficient provocation.” Defendant	7
additionally contends that “[t]he jury should have been given a special interrogatory,	8
asking it, in the event of a verdict of guilty for second-degree murder, whether or not	9
it found that the State had proved beyond a reasonable [doubt] the lack of sufficient	10
provocation.”	11
{25} 	In reply, Defendant urges us to accept principles from United States v.	12
Alexander, 471 F.2d 923 (D.C. Cir. 1972), and People v. Garcia, 1 P.3d 214 (Colo.	13
App. 1999), to determine that the uniform jury instructions on provocation in	14
homicide cases are “systematically ambiguous.” We decline to do so here because	15
when viewing the instructions as a whole, we cannot say “a reasonable juror would	16
have been confused or misdirected by the jury instruction[s]” about whether	17
Defendant had the burden to prove sufficient provocation. Benally, 2001-NMSC-	18
033, ¶ 12 (internal quotation marks and citation omitted); see also State v. Ortega,	19
2014-NMSC-017, ¶ 32, 327 P.3d 1076 (stating that the “[u]niform jury instructions	20
are presumed to be correct”); Jackson v. State, 1983-NMSC-098, ¶ 5, 100 N.M. 487,	21

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672 P.2d 660 (stating that when a uniform jury instruction is given for the elements	1
of a crime, generally that instruction must be used without substantive modification).	2
We therefore conclude no fundamental error occurred in this case.	3
CONCLUSION	4
{26} 	For the foregoing reasons, we affirm.	5
{27} 	IT IS SO ORDERED.	6
______________________________	7
BRIANA H. ZAMORA, Judge	8
WE CONCUR:	9
____________________________	10
JENNIFER L. ATTREP, Judge	11
____________________________	12
MEGAN P. DUFFY, Judge	13