April 16, 2020- State of New Mexico v. Jamie Tavarez, No. A-1-CA-37568

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of appeals of NA Wexico
Fi 6/2020 11:32 AM
STATE OF NEW MEXICO, eo

hE |
Plaintiff-Appellee,
Mark Reynolds

V. No. A-1-CA-37568
JAMIE TAVAREZ,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
William G. W. Shoobridge, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
John Kloss, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant

MEMORANDUM OPINION
IVES, Judge.

(3. Defendant Jaime Tavarez appeals his conviction, following a jury trial, for

aggravated assault on a peace officer with a deadly weapon in violation of NMSA

2
1978, Section 30-22-22(A)(1) (1971). He argues that the evidence is insufficient.	1
Unpersuaded, we affirm.	2
DISCUSSION1
3
{2} 	In reviewing Defendant’s sufficiency challenge, our duty is to “scrutin[ize]	4
. . . the evidence and supervis[e] . . . the jury’s fact-finding function to ensure that	5
. . . a rational jury could have found beyond a reasonable doubt the essential facts	6
required for a conviction.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971	7
P.2d 829 (emphasis, internal quotation marks, and citation omitted). “The test for	8
sufficiency of the evidence is whether substantial evidence of either a direct or	9
circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt	10
with respect to every element essential to a conviction.” State v. Cabezuela, 2015-	11
NMSC-016, ¶ 14, 350 P.3d 1145 (internal quotation marks and citation omitted).	12
“Substantial evidence is relevant evidence that a reasonable mind might accept as	13
adequate to support a conclusion.” State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d	14
532 (internal quotation marks and citation omitted). Our review employs a two-step	15
process in which we first “view the evidence in the light most favorable to the guilty	16
verdict, indulging all reasonable inferences and resolving all conflicts in the	17
evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128	18
1 Because 	the 	parties 	are 	familiar 	with 	the 	factual 	background, 	this
memorandum opinion does not include a background section. We describe the
pertinent facts in the discussion section.

3
N.M. 711, 998 P.2d 176. We then consider “whether the evidence, so viewed,	1
supports the verdict beyond a reasonable doubt.” State v. Garcia, 2016-NMSC-034,	2
¶ 24, 384 P.3d 1076. “We measure the sufficiency of the evidence against the	3
instructions given to the jury.” State v. Vargas, 2016-NMCA-038, ¶ 27, 368 P.3d	4
1232.	5
{3} 	In Defendant’s case, the jury received an instruction based on UJI 14-2201	6
NMRA, the uniform instruction for the type of aggravated assault on a peace officer	7
that involves an incomplete battery. See § 30-22-22(A)(1) (prohibiting “unlawfully	8
assaulting or striking at a peace officer with a deadly weapon while he is in the lawful	9
discharge of his duties”). The instruction defined battery as “touching or applying	10
force in a rude, insolent, or angry manner.” Regarding the essential elements	11
Defendant challenges on appeal, the instruction required the State to prove that	12
Defendant (1) “intended to commit the crime of battery against Officer Moen by	13
trying to pull his handgun” and (2) “began to do an act which constituted a	14
substantial part of the battery but failed to commit the battery[.]”	15
{4} 	With 	respect 	to 	the 	first	16
element, the State presented evidence from which the jury could have rationally	17
inferred that when Defendant removed a loaded handgun from the waistband of his	18
pants, he did so intending to batter Officer Moen. Officer Seay testified that	19
Defendant removed the gun after Officer Seay informed him that he had an	20

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outstanding arrest warrant and after officers repeatedly ordered him to exit his	1
vehicle. Before Defendant removed the gun, he denied having a warrant, and refused	2
to exit his vehicle. A physical altercation ensued as officers tried to extract	3
Defendant from his vehicle. Officer Seay unbuckled Defendant’s seat belt as Officer	4
Moen held onto Defendant’s left wrist with one hand while using his other hand to	5
grip the upper part of Defendant’s right arm. Officer Moen observed Defendant	6
reach toward the right side of the waistband of his pants, asked Defendant what he	7
was reaching for, and, a second later, saw Defendant pull out a silver handgun, which	8
he held by the grip and raised “all the way out in front of him.” Believing Defendant	9
was going to shoot him, Officer Moen jumped into the car and used his left hand to	10
grab Defendant’s right wrist, preventing Defendant from pointing the gun at Officer	11
Moen. The gun instead remained pointed at the vehicle’s dashboard and, after a short	12
time, fell out of Defendant’s hand. The officers continued to struggle with Defendant	13
and eventually succeeded in extracting him from the vehicle and placing him in	14
handcuffs. The pistol was loaded and, with its safety off, ready to fire. From this	15
evidence, it was rational for the jury to infer that when Defendant revealed the loaded	16
pistol and raised it, he did so with the intent to use the pistol to batter Officer Moen.	17
See 	State 	v. 	Flores, 	2010-NMSC-002, 	¶ 	19, 	147 	N.M. 	542, 	226 	P.3d 	641	18
(recognizing 	that 	“circumstantial 	evidence 	alone 	can 	amount 	to 	substantial	19
evidence” and that intent is generally inferred from the circumstances).	20

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{5} 	Defendant argues that the evidence “is too ambiguous to establish that	1
[Defendant] intended to commit a battery as opposed to, for example, ridding	2
himself of the loaded gun to avoid injury as he was about to be dragged from his	3
car.” The jury was, of course, free to infer that Defendant’s intent was innocent,	4
rather than criminal, but the jury was not required to do so. And it did not do so,	5
instead returning a guilty verdict. Reviewing that verdict on appeal, we may not	6
“search for inferences supporting a contrary verdict or re-weigh the evidence	7
because this type of analysis would substitute [our] judgment for that of the jury.”	8
State v. Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285. Considering	9
all of the evidence, we cannot conclude that the jury’s inference that Defendant acted	10
with the requisite intent was irrational.	11
{6} 	We 	also 	reject 	Defendant’s 	challenge 	to 	the 	evidence 	supporting 	the	12
remaining element—whether Defendant began to do an act that was a substantial	13
part of battery. Although an act that is “merely preparatory” will not suffice, the act	14
“need not be the last proximate act to the consummation of the offense attempted to	15
be perpetrated[,]” so long as the act “approach[es] sufficiently near to [the last	16
proximate act] to stand either as the first or some subsequent step in a direct	17
movement toward the commission of the offense after the preparation[.]” State v.	18
Stettheimer, 1980-NMCA-023, ¶ 25, 94 N.M. 149, 607 P.2d 1167 (internal quotation	19
marks and citation omitted). “[E]ven slight acts in furtherance of the crime will	20

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constitute an attempt.” State v. Brenn, 2005-NMCA-121, ¶ 14, 138 N.M. 451, 121	1
P.3d 1050 (alteration, internal quotation marks, and citation omitted). Here, the State	2
presented evidence from which a jury could reasonably infer that Defendant’s	3
actions, described above, went beyond mere preparation, constituting an act in	4
furtherance of a battery of Officer Moen. The evidence would have allowed the jury	5
to find that while Defendant was in the midst of a physical struggle with police	6
officers who were trying to remove him from his vehicle after he refused to obey	7
verbal orders to exit that vehicle, Defendant drew and raised a loaded pistol with its	8
safety off. Defendant has not persuaded us that these actions fall short of “the first .	9
. . step in a direct movement toward the commission” of the battery. Stettheimer,	10
1980-NMCA-023, ¶ 25 (internal quotation marks and citation omitted).	11
{7} 	Defendant argues that there was no evidence that he pointed the gun at Officer	12
Moen or made any verbal threats. Although either of those acts might have been	13
necessary under circumstances not present in this case, neither pointing a gun nor	14
making a verbal threat is always necessary under New Mexico law. New Mexico	15
law does not impose specific, categorical requirements about what types of actions	16
constitute a substantial step or overt act. We have instead held that “[n]o definite	17
rule can be laid down by which an act might be characterized as overt in any	18
particular case.” Stettheimer, 1980-NMCA-023, ¶ 25 (internal quotation marks and	19
citation omitted). Defendant has not persuaded us that we should depart from our	20

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precedent and create a new bright-line rule requiring evidence that the accused	1
pointed a gun or made a verbal threat. Because the State need not prove that the	2
accused performed “the last act proximate to” using the gun in a battery, id., an	3
assault conviction involving a gun may, under certain circumstances, have adequate	4
evidentiary support even when the accused did not point the firearm at the victim or	5
verbally threaten the victim. And here, for the reasons we have explained, the jury	6
could have rationally concluded that Defendant engaged in acts in furtherance of a	7
battery.	8
{8} 	We also find no merit in Defendant’s argument that the “fatal problems with	9
the State’s chosen theory . . . arise[] from the fact that Officer Moen effectively	10
prevented [Defendant] from taking any action that might have gone beyond mere	11
preparatory steps to committing a battery[.]” As we have explained, the State	12
presented evidence sufficient to support the jury’s finding that Defendant’s actions	13
went beyond mere preparation. And we decline to hold that Officer Moen’s	14
successful efforts to gain control over and disarm Defendant in the midst of the	15
physical struggle somehow render the evidence against Defendant insufficient.	16
CONCLUSION	17
{9} 	We affirm.	18
{10} 	IT IS SO ORDERED.	19
_________________________________	20
ZACHARY A. IVES, Judge	21

—

WE CONCUR:

2 MhMe—

J. MILES HANISEE, Chief Judge

MEGAN P. DUFFY, JUdge