August 18, 2020- State of New Mexico v. Anthony Baca, No. A-1-CA-37411

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

Filing Date: AUGUST 18, 2020 Lh [> |
ark Reynolds

No. A-1-CA-37411 M

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

Vv.

ANTHONY BACA,
Defendant-A ppellant:

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Drew D. Tatum, District Judge

Hector H. Balderas, Attomey General

Benjamin L. Lammons, Assistant Attomey General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION	1
HANISEE, Chief Judge.	2
{1} 	This formal opinion replaces the memorandum opinion filed in this matter	3
on July 30, 2020.	4
{2} 	Anthony Baca (Defendant) appeals his convictions for (1) assault with intent	5
to commit a violent felony upon a peace officer, contrary to NMSA 1978, Section	6
30-22-23 (1971); and (2) aggravated battery upon a peace officer with a deadly	7
weapon, 	contrary 	to 	NMSA 	1978, 	Section 	30-22-25(C) 	(1971). 	On 	appeal,	8
Defendant challenges the sufficiency of the evidence supporting his conviction for	9
assault, and alternatively argues that his convictions for assault and aggravated	10
battery constitute a double jeopardy violation and that we should therefore vacate	11
his aggravated battery conviction. We affirm in part and reverse in part.	12
BACKGROUND	13
{3} 	On August 29, 2016, Defendant was stopped by Officer Christopher Caron of	14
the Clovis Police Department for riding his bicycle on the wrong side of the road.	15
Officer Caron asked Defendant for his identification, but Defendant had none.	16
Officer Caron then asked Defendant his name and date of birth and relayed both to	17
dispatch, from which Officer Caron learned there was an outstanding warrant for	18
Defendant. But when Officer Caron told Defendant that he was going to be arrested	19

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on the warrant and tried to handcuff Defendant, Defendant decided to flee rather	1
than be arrested.	2
{4} 	Defendant first attempted to utilize his bicycle to get away, but Officer Caron	3
tackled him. Defendant then ran away, and was chased by Officer Caron into a	4
poorly lit driveway. As Defendant tried again to thwart his capture, Officer Caron	5
fired his taser at Defendant, but missed. Defendant then shot Officer Caron and	6
subsequently “took off running” away from the scene. While Defendant’s weapon	7
cannot clearly be seen in Officer Caron’s lapel camera footage, the footage depicts	8
a bright flash and simultaneously records audio of a corresponding loud bang. From	9
his perspective, Officer Caron “observed [the] bright flash, . . . heard [the] loud bang,	10
and . . . then felt a very intense burning sensation [on] his left thigh[,]” where the	11
bullet fired by Defendant struck Officer Caron. Although Officer Caron did not	12
directly see Defendant shoot him, he knew immediately that he was shot and updated	13
dispatch to this fact, simultaneously taking cover behind a barbeque grill until	14
backup arrived on the scene.	15
{5} 	In the end, officers were unable to apprehend Defendant that night, but he	16
turned himself in two days later. In the aftermath of all that happened, Defendant	17
was charged with assault with intent to commit a violent felony upon a peace officer,	18
aggravated battery upon a peace officer, and resisting, evading, or obstructing an	19

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officer. After a two-day trial, a jury found Defendant guilty of everything with which	1
he was charged. Defendant appeals.	2
DISCUSSION	3
I. 	The 	Evidence 	Supporting 	Defendant’s 	Conviction 	for 	Assault 	Was	4
Insufficient	5
{6} 	Defendant argues there was insufficient evidence to support his conviction of	6
assault with intent to commit a violent felony upon a peace officer. Specifically,	7
Defendant contends that, under the State’s theory of assault based on reasonable	8
apprehension, there was no evidence presented that Defendant engaged in any	9
conduct before or after the shooting that could have placed Officer Caron in	10
reasonable fear of an immediate battery by Defendant. The State argues that	11
Defendant’s shooting of Officer Caron constituted not only the battery but what the	12
State contends to be a subsequent assault as well, because the shot fired at Officer	13
Caron caused him to reasonably fear that he would be shot again by Defendant, and	14
that sufficient evidence supported both convictions. Specifically, the State asserts	15
that “[u]nlawful conduct alone suffices as the actus reus for an assault charge” and	16
that because Defendant’s shooting of Officer Caron was indisputably unlawful	17
conduct, such is, on its own, sufficient evidence to support Defendant’s assault	18
conviction.	19
{7} 	The test for sufficiency of the evidence is “whether substantial evidence of	20
either a direct or circumstantial nature exists to support a verdict of guilt beyond a	21

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reasonable doubt with respect to every element essential to a conviction.” State v.	1
Carson, 2020-NMCA-015, ¶ 44, 460 P.3d 54 (internal quotation marks and citation	2
omitted). “Substantial evidence is that which a reasonable mind accepts as adequate	3
to support a conclusion.” State v. Huerta-Castro, 2017-NMCA-026, ¶ 24, 390 P.3d	4
185. We evaluate the sufficiency of the evidence by “viewing the evidence in the	5
light most favorable to the verdict, resolving all conflicts and indulging all	6
permissible inferences in favor of upholding the conviction, and disregarding all	7
evidence and inferences to the contrary.” State v. Trujillo, 2012-NMCA-092, ¶ 5,	8
287 P.3d 344. “Our appellate courts will not invade the jury’s province as fact-finder	9
by second-guessing the jury’s decision concerning the credibility of witnesses,	10
reweighing the evidence, or substituting its judgment for that of the jury.” State v.	11
Gwynne, 2018-NMCA-033, ¶ 49, 417 P.3d 1157 (internal quotation marks and	12
citation omitted). The ultimate question is “whether a rational jury could have found	13
beyond a reasonable doubt the essential facts required for a conviction.” State v.	14
Granillo, 2016-NMCA-094, ¶ 10, 384 P.3d 1121 (internal quotation marks and	15
citation omitted). “Jury instructions become the law of the case against which the	16
sufficiency of the evidence is to be measured.” State v. Smith, 1986-NMCA-089,	17
¶ 7, 104 N.M. 729, 726 P.2d 883.	18
{8} 	In this case, in order to convict Defendant of the assault charge, the jury was	19
required to find beyond a reasonable doubt that:	20

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1. 	[D]efendant shot Officer . . . Caron with a firearm;	1
2. 	At the time, Officer . . . Caron was a peace officer and was	2
performing duties of a peace officer;	3
3. 	[D]efendant knew Officer . . . Caron was a peace officer;	4
4. 	[D]efendant’s conduct caused Officer . . . Caron to believe	5
[D]efendant was about to intrude on Officer . . . Caron’s bodily	6
integrity or personal safety by touching or applying force to	7
Officer . . . Caron in a rude, insolent or angry manner;	8
5. 	A reasonable person in the same circumstances as Officer . . .	9
Caron would have had the same belief;	10
6. 	[D]efendant intended to kill Officer . . . Caron[.]	11
At trial, Officer Caron testified that prior to the shooting, it was “very dark” and	12
“very difficult” for him to see because he did not have a flashlight and there was no	13
outdoor lighting nearby. 	Once shot, Officer Caron testified he could not see	14
Defendant, did not know where Defendant was, and figured Defendant “was going	15
to try and kill him.” Officer Caron also testified that he did not specifically know	16
where Defendant “took off running” after firing his gun.	17
{9} 	Defendant was charged with assault with intent to commit a violent felony	18
against a peace officer which prohibits “assaulting a police officer . . . with intent to	19
kill the peace officer.” Section 30-22-23. More generally, “[a]ssault consists of	20
either: [(1)] an attempt to commit a battery upon the person of another; [or (2)] any	21
unlawful act, threat or menacing conduct which causes another person to reasonably	22
believe that he [or she] is in danger of receiving an immediate battery.” NMSA 1978,	23

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§ 30-3-1 (1963). The testimony presented at trial fails to prove that Officer Caron	1
reasonably feared an immediate battery after the shot. Defendant fled after shooting	2
at Officer Caron, and Officer Caron testified that he thought that Defendant might	3
come back and shoot him again. Were we to hold that such facts could allow a jury	4
to infer that Officer Caron reasonably feared an immediate battery, any scenario	5
wherein a battery with a deadly weapon occurs would necessarily transform into a	6
subsequent assault, so long as the victim testifies that he was afraid the shooter would	7
return and attack again. Without further evidence proving Defendant’s menacing	8
conduct or an explicit or implied threat of further violence, we cannot conclude that	9
the jury was able to find beyond a reasonable doubt that the required elements of	10
assault with intent to commit a violent felony against a peace officer were satisfied.	11
{10} 	The State additionally argues that because there was sufficient evidence to	12
support the jury’s conviction for battery—here, Defendant’s shooting of Officer	13
Caron—the “unlawful conduct” element of assault is satisfied, and such, on its own,	14
is enough to satisfy the elements of the charged crime. The State reasons that because	15
a conviction for assault can be supported by sufficient evidence of unlawful conduct	16
without further evidence of threatening or menacing conduct, a conviction for assault	17
with intent to commit a violent felony against a peace officer can likewise be	18
supported merely by sufficient evidence of unlawful conduct.	19

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{11} 	For this proposition, the State relies on State v. Branch, a case in which we	1
held there to be sufficient evidence to uphold the defendant’s conviction of	2
aggravated assault with a deadly weapon based on the defendant’s shooting of a	3
victim, which caused a bystander to be assaulted in that she, too, feared that she	4
would be shot by the defendant. 2018-NMCA-031, ¶¶ 1, 20-21, 417 P.3d 1141.	5
There, we rejected the defendant’s argument that because he had not made any threat	6
or exhibited any menacing conduct toward the bystander there was insufficient	7
evidence to support his conviction for aggravated assault. Id. ¶ 21. Instead, we held	8
that because the defendant committed an unlawful act by shooting the victim, and	9
because “[t]he commission of an unlawful act is an alternative method of committing	10
[assault] that does not rely on threatening or menacing conduct[,]” there was	11
sufficient evidence to uphold the defendant’s conviction of aggravated assault with	12
a deadly weapon. Id. (internal quotation marks omitted).	13
{12} 	We view Branch as distinct from the present case. Branch involved an alleged	14
assault on a bystander who personally viewed the shooting. Id. ¶¶ 16, 21. Thus, the	15
necessary inquiry in Branch was whether there was sufficient evidence to prove that	16
a bystander was assaulted by witnessing the defendant shoot the victim. Id. ¶¶ 20-	17
21. Here, by contrast, the State needed to present sufficient evidence to prove that	18
Officer Caron, the victim who suffered a battery when shot, was assaulted after	19
having been shot by Defendant. We reiterate that in Branch, the bystander—a	20

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separate person—was standing next to the victim when the victim was shot, had her	1
hand on the victim’s shoulder, saw the muzzle flash, “felt something hit her leg,”	2
and testified that she “thought [the defendant] was going to shoot all of us.” Id. ¶¶ 9,	3
20. As well, after the defendant shot the victim, the defendant lingered at the scene.	4
Id. ¶ 10. Conversely here, Officer Caron testified that while he did see a bright flash	5
and felt a burning sensation in his leg, he did not know where Defendant was after	6
being shot, stating that Defendant “took off running” after firing the gun at Officer	7
Caron. We consider these factual distinctions to be significant because while the	8
bystander in Branch witnessed the defendant both before and after the victim was	9
shot—including the time in which the victim lingered at the scene of the shooting—	10
here, Officer Caron’s testimony itself makes clear his belief that Defendant ran from	11
the scene afterward and that even before being shot by Defendant, Officer Caron	12
was not able to clearly see Defendant or Defendant’s weapon. Unlike in Branch,	13
here the State did not introduce evidence sufficient to allow the jury to conclude that	14
Officer Caron reasonably believed that Defendant would immediately batter him.	15
{13} 	It remains the case that our legal standard for determining whether there was	16
sufficient evidence presented to uphold a jury’s conviction of a particular defendant	17
gives significant deference to the jury’s determinations as fact-finder. See Gwynne,	18
2018-NMCA-033, ¶ 49. However, “[w]hile we cannot substitute our own judgment	19
for that of the jury in weighing the evidence, our own responsibility as a court	20

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requires scrutiny of the evidence and supervision of the jury’s fact-finding function	1
to ensure that, indeed, a rational jury could have found beyond a reasonable doubt	2
the essential facts required for a conviction.” State v. Vigil, 2010-NMSC-003, ¶ 4,	3
147 N.M. 537, 226 P.3d 636 (internal quotation marks and citation omitted). In doing	4
so, we have a duty to “assure that the basis of a conviction is not mere speculation.”	5
Id. ¶ 19 (internal quotation marks and citation omitted); see UJI 14-6006 NMRA	6
(providing that a jury’s “verdict should not be based on speculation, guess or	7
conjecture”). Here, we conclude that the evidence presented merely allowed the jury	8
to speculate—rather than infer—that Defendant separately acted in a manner that	9
caused Officer Caron reasonable fear of an immediate battery after he was shot at	10
by Defendant. Accordingly, we reverse Defendant’s conviction for assault with	11
intent to commit a violent felony upon a peace officer. Given our holding, we need	12
not address Defendant’s double jeopardy argument.	13
CONCLUSION	14
{14} 	For the reasons set forth above, we vacate Defendant’s conviction for assault	15
with intent to commit a violent felony upon a peace officer and affirm Defendant’s	16
conviction of aggravated battery upon a peace officer with a deadly weapon.	17
{15} 	IT IS SO ORDERED.	18
_____________________________	19
J. MILES HANISEE, Chief Judge	20

1 WE CONCUR:
Megan P Duffy
MEGAN P. DUFFY, Judge
ZACHARY A, IVES, Judge
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