State v. Lopez

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Supreme Court.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: May 11, 2026

No. S-1-SC-40306

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

TIMOTHY MARC LOPEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Mary Marlowe Sommer, District Judge

Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Raúl Torrez, Attorney General
Santa Fe, NM
Eric J. Orona, Assistant Solicitor General
Albuquerque, NM

for Appellee

DECISION

BACON, Justice.

{1} Defendant Timothy Lopez was convicted of first-degree murder (willful and
deliberate) for shooting and killing Derek Velarde (Victim), contrary to NMSA 1978,
Section 30-2-1(A)(1) (1994). On appeal to this Court pursuant to Rule 12-102(A)(1)
NMRA (capital appeal), Defendant claims the lack of a voluntary manslaughter
instruction was error or, alternatively, constituted ineffective assistance of counsel; the
trial court abused its discretion in allowing an improper rebuttal witness; and that
sufficient evidence did not support his conviction. We exercise our discretion under Rule
12-405(B) NMRA to affirm Defendant’s conviction by nonprecedential decision.

I. BACKGROUND

{2} Defendant killed Victim on Thanksgiving Day, November 26, 2020, at the La
Tiendita gas station in Alcalde, New Mexico.

{3} As context, evidence presented at trial included Defendant’s report to police in
August of that year that his girlfriend, Lynsey Horcacitas, had been raped. Horcacitas
underwent a sexual assault nurse examiner exam, and the alleged rape case was
turned over to investigators. Victim, who was one of Defendant’s friends and employees
at Defendant’s small winery business, was the target of the investigation.

{4} Audio evidence from that investigation included Defendant’s statements to
investigators that he “seriously thought about blowing [Victim’s] head off”; “[planned to]
lure [Victim] in, bring him back to work, and shoot him at my house”; and “[had I known
Victim was raping Horcacitas], I would have beaten him to death with my bare hands.”
Defendant also told his neighbor, “I dug a bunker and I have a straight shot to [Victim’s]
house. I’m going to kill him.” Defendant also had yard signs on and near his property
saying Victim raped Horcacitas. After investigating the alleged rape, police concluded
that, based on Horcacitas’s inconsistent statements and video footage of her and Victim
having what appeared to be consensual sex, there was not “any evidence to suggest
[Horcacitas] was raped.”

{5} On the day of the homicide, Victim filled his vehicle with gas at La Tiendita,
joined by a passenger, Jimmy Campbell. Defendant soon arrived at the gas station.
Video surveillance shows Defendant approached the driver’s-side door of Victim’s truck
while Victim was sitting in the driver’s seat. Defendant then appears to strike the window
twice in a downward direction with an object in his hand. Campbell exited the truck and
entered the gas station. Moments later Defendant shot through the driver’s-side
window, which physical evidence supported was rolled most of the way up, and the
bullet struck Victim in the head. Defendant then opened and closed the car door quickly
before entering the gas station. He partially disassembled his gun and placed it
conspicuously outside the gas station. Victim died of the gunshot wound to the head.

{6} Police interviewed Defendant after the incident. During the interview, Defendant
admitted he was involved in the shooting, but claimed the shooting was accidental
during the course of self-defense. Specifically, Defendant claimed “[Victim] was trying to
stab me”; “he grabbed my gun as he put the knife through the window, and it barely
missed me”; “he grabbed my arm right here . . . had me like this and it fired”; “I didn’t fire
that gun, well I did technically, but [if he hadn’t] grabbed my hand against the secondary
safety, it wouldn’t have gone off.” Defendant also suggested he was still angry at Victim
for raping Horcacitas, stating, “[the goal was to] throw Victim in prison forever so that he
could get raped” and “I wanted him to suffer.” Defendant claimed to New Mexico State
Police Sergeant Alexander Bennett he had defensive wounds, but Sergeant Bennett
testified that he did not see any such injuries.

{7} At trial, following the State’s case-in-chief, Defendant moved for a directed
verdict, arguing the evidence was not sufficient to support the first-degree murder
charge and the case should not proceed further. Alternatively, Defendant argued he
should only be charged with second-degree murder or, because he was sufficiently
provoked by Victim waving a knife, voluntary manslaughter. The district court denied
Defendant’s motion and proceeded to hold a jury instruction conference.

{8} During that conference, the district court granted Defendant’s request for a self-
defense jury instruction and presumed, based on Defendant presenting the alleged rape
as evidence of “provocation,” that Defendant also wanted a voluntary manslaughter
instruction. The State urged the district court not to instruct on self-defense because the
evidence suggested Defendant was the first aggressor. After further discussion, the
district court eventually agreed with the State and rescinded Defendant’s self-defense
instruction.1 Defendant then withdrew the voluntary manslaughter instruction, apparently
believing the district court denied his self-defense instruction because of potential
confusion related to the issue of provocation in the voluntary manslaughter instruction.

{9} In an effort to regain his self-defense instruction, Defendant presented a case-in-
chief during which he testified. Defendant’s testimony abided with his consistent theory
of the case that the killing was accidental, including his testimony that his gun fired
when Victim “yanked” his arm during their struggle.

{10} After resting his case, Defendant renewed his request for a self-defense
instruction. The district court granted the instruction, reasoning there was sufficient
evidence to warrant it. Defendant never renewed his request for a voluntary
manslaughter instruction, nor did the district court issue one sua sponte.

{11} In response to Defendant’s case-in-chief, the State compelled the presence of
Campbell, who was not on the State’s witness list because he had previously declined
to participate, for rebuttal. The district court permitted the State to call Campbell, and
Defendant interviewed Campbell before he testified. Campbell testified that, to his
knowledge, Victim did not own a gun; that he himself does not own a gun; that to his
knowledge, Victim did not have a knife the day of the incident; that the only gun he saw
the day of the incident was the one Defendant pointed at him and Victim; and that when
Defendant walked up to Victim, Defendant said, “I’m going to kill you. You raped my
wife.”

1To support its denial of the self-defense instruction, the district court ultimately relied on the following
proposition in State v. Chavez, 1983-NMSC-037, ¶ 6, 99 N.M. 609, 661 P.2d 887: “The rule is well
established in this jurisdiction that a defendant who provokes an encounter, as a result of which he finds it
necessary to use deadly force to defend himself, is guilty of an unlawful homicide and cannot avail
himself of the claim that he was acting in self-defense.” We note this general pronouncement in Chavez
did not remove first-aggressor determinations from the province of the jury where a relevant evidentiary
issue remains. See UJI 14-5191 NMRA (Self-defense; limitations; aggressor).
{12} Ultimately, the jury was instructed on first- and second-degree murder and self-
defense. Defendant was convicted of first-degree murder and subsequently appealed.

II. DISCUSSION

{13} Defendant raises four issues before the Court, which we address in turn below.
First, he argues that, because the district court instructed the jury on self-defense, the
trial court’s failure to instruct on voluntary manslaughter constitutes reversible error or, if
the issue was unpreserved, fundamental error. Second, he argues ineffective
assistance of counsel in the alternative, based on his counsel withdrawing his request
for a voluntary manslaughter jury instruction and not subsequently re-requesting that
instruction. Third, he argues the district court abused its discretion by allowing the State
to call Campbell as a rebuttal witness. Fourth, he argues insufficient evidence supported
Defendant’s conviction for deliberate-intent first-degree murder.

A. Under Defendant’s Theory of the Case, the Absence of a Voluntary
Manslaughter Instruction Was Not Error

{14} “The propriety of jury instructions given or denied is a mixed question of law and
fact which we review de novo.” State v. Taylor, 2024-NMSC-011, ¶ 10, 548 P.3d 82
(internal quotation marks and citation omitted). “When evidence at trial supports the
giving of an instruction on a defendant’s theory of the case, failure to so instruct is
reversible error.” State v. Henley, 2010-NMSC-039, ¶ 25, 148 N.M. 359, 237 P.3d 103,
overruled on other grounds by State v. Ward, ___-NMSC-___, ¶ 45, ___P.3d___ (S-1-
SC-40503, Mar. 16, 2026).

{15} Regarding preservation of the issue, Defendant argues and the record reflects
that the trial court during the initial jury instruction conference understood he requested
a voluntary manslaughter instruction. On this basis, Defendant asserts this issue was
preserved for appellate review, notwithstanding his subsequent withdrawal of that
request. Citing State v. Zamarripa, 2009-NMSC-001, 145 N.M. 402, 199 P.3d 846,
Defendant suggests the trial court’s improper statement of the law—indicating that
Defendant had to request either a self-defense instruction or a voluntary manslaughter
instruction—resulted in defense counsel selecting the former in the best interests of
Defendant without a legitimate waiver of the latter. See id. ¶ 50 (“There is no waiver
where a defense attorney, his or her original objection rejected by the court, determines
to ‘make the best of a bad situation’ and argues the improperly admitted evidence in the
client’s favor.” (citation omitted)). Thus, Defendant argues we should review for
reversible error rather than fundamental error, though he argues for reversal under
either standard.

{16} Under the standards for both reversible error and fundamental error, our initial
determination is whether error occurred: “We must determine whether a reasonable
juror would have been confused or misdirected by the jury instruction.” State v. Barber,
2004-NMSC-019, ¶ 19, 135 N.M. 621, 92 P.3d 633 (“Fundamental-error analysis then
requires a higher level of scrutiny . . . to determine whether the [d]efendant’s conviction
was the result of a plain miscarriage of justice.” (internal quotation marks and citation
omitted)). For the reasons that follow, we conclude the absence of a voluntary
manslaughter instruction in this case was not error, and so we need not determine
whether the issue was preserved: in the absence of error, Defendant’s claim fails under
either standard.

{17} On the merits, Defendant argues under the premise that self-defense and
voluntary manslaughter instructions were both necessary to present his theory of
defense to the jury. Pointing to the district court’s grant of the self-defense instruction,
Defendant asserts that as a consequence “the court was also required to instruct on
voluntary manslaughter.” The Defendant then reinforces his proposition by quoting
State v. Abeyta: “[W]here sufficient evidence is presented to support a finding that a
defendant acted in self-defense, a defendant is entitled to have the jury receive an
instruction on voluntary manslaughter based on imperfect self-defense.” 1995-NMSC-
051, ¶ 47, 120 N.M. 233, 901 P.2d 164, abrogated on other grounds by State v.
Campos, 1996-NMSC-043, ¶ 32 n.4, 122 N.M. 148, 921 P.2d 1266. Defendant further
argues under State v. Reynolds, 1982-NMSC-091, ¶¶ 11-12, 98 N.M. 527, 650 P.2d
811, that the jury’s guilty verdict as to first-degree willful and deliberate murder “does
not mean [the jury] might not have reached voluntary manslaughter if correctly
instructed.” See id. ¶ 11 (holding denial of a voluntary manslaughter instruction was
error, the court rejected the argument “that a finding by the jury that the defendant acted
with deliberate intention precludes any possibility that they could have found sufficient
provocation”).

{18} Critically, however, Defendant’s arguments ignore that his theory of defense
throughout trial was predicated on the killing being accidental rather than intentional. As
discussed further below, because his consistent theory was accident, Defendant was
not entitled to a jury instruction justifying or mitigating an intentional homicide—including
the self-defense instruction he received. Because the self-defense instruction was
unwarranted, it cannot entitle Defendant to a voluntary manslaughter instruction under
the reasoning in Abeyta.

{19} In State v. Lucero, 2010-NMSC-011, 147 N.M. 747, 228 P.3d 1167, we relevantly
explained the distinction between accidental killings, which may be excused, and
intentional killings, which may be justified. See id. ¶ 14 (“A killing in self-defense is
intentional in nature, but justified by the imminent threat to the defendant’s life or limb,
whereas an accidental killing is unintentional and non-negligent in nature.”). In Lucero,
we upheld the trial court’s denial of a self-defense instruction where the defendant relied
on an accidental shooting theory and “failed to produce any evidence indicating that he
fired the pistol intentionally.” Id. ¶ 15. The Lucero defendant testified, “[After being
punched in the face], I stumbled just like out of a reaction, I put my hands up and the
gun was still in my hand at that time, and I shot off one round. . . . [i]t was just the reflex
of getting hit, you put your hands up. I pulled my hand out of my pocket and fired.” Id. ¶
6. Under the defendant’s accident theory, he was not entitled to a self-defense
instruction which would justify an intentional killing. Id. ¶ 15.

{20} We clarified in Lucero that “the fundamental distinction between [intentional
killings such as] self-defense and accident[al killings] is the defendant’s mental state”:
A killing in self-defense is justifiable because an otherwise criminal action
becomes permissible under the circumstances. Self-defense is thus a
complete defense; if established, a defendant is not guilty of the crime. By
contrast, an accidental killing is excusable because it is an unintended
homicide which occurs in the course of performing a lawful act, without
criminal negligence. As in other cases of excusable homicide, the slayer is
not criminally responsible therefor, as an act that is committed accidentally
does not involve a mental state cognizable to the criminal offenses of
murder and involuntary manslaughter.

Id. ¶¶ 13-14 (third emphasis added) (internal quotation marks and citation omitted). We
further recognized that our uniform jury instructions reflect this distinction in mental
states: under UJI 14-5171 NMRA a killing is in self-defense if “[t]he defendant was in
fact put in fear by the apparent danger of immediate death or great bodily harm and
killed [the victim] because of that fear,” whereas under UJI 14-5140 NMRA (excusable
homicide) a killing is accidental if it is committed “with usual and ordinary caution and
without any unlawful intent.” (Emphasis added.)

{21} For the defendant in Lucero to receive a self-defense instruction, therefore, he
“was required to produce evidence supporting a reasonable inference that he
intentionally and purposefully fired his pistol out of fear of immediate death or great
bodily harm.” 2010-NMSC-011, ¶ 15 (emphasis added). However, the defendant there
produced no such evidence of intentionality, instead testifying that his “pistol discharged
accidentally or reflexively as a result of the physical assault initiated by [the] [v]ictim.” Id.
(emphasis added). Under the defendant’s accident theory and his testimony that he
unintentionally used deadly force, he “was not entitled to a jury instruction regarding the
intentional use of force in self-defense.” Id. ¶¶ 20-21 (emphasis added).

{22} The reasoning in Lucero controls here. Relying on his accident theory, Defendant
produced no evidence demonstrating that the killing was intentional, and therefore he
was not entitled to a jury instruction predicated on the killing being an intentional act.
Accordingly, an instruction was not warranted pursuant to either self-defense or
voluntary manslaughter, both of which theories are premised on excusing or mitigating
intentional acts. See Henley, 2010-NMSC-039, ¶ 20 (“Self-defense, unlike accident, is
an intentional act.”); see also UJI 14-220 NMRA (providing the elements of voluntary
manslaughter as including that “[t]he defendant knew that their acts created a strong
probability of death or great bodily harm”). Instead, Defendant’s accident theory
presented the jury with a basis, if believed, to find him not guilty of homicide due to
lacking the requisite mens rea. See Lucero, 2010-NMSC-011, ¶ 14 (noting, under the
committee commentary for UJI 14-5140, that “juries are not given an instruction on the
defense of accident because, in the absence of criminal negligence, the defendant
cannot be found guilty of involuntary manslaughter”).

{23} “[J]uror confusion or misdirection may stem . . . from instructions which, through
omission or misstatement, fail to provide the juror with an accurate rendition of the
relevant law.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134.
Under the foregoing, the absence of a voluntary manslaughter instruction did not result
in an inaccurate rendition of the law relevant to Defendant’s theory of defense, and
Defendant’s claim for reversal does not avail.

B. Defendant Does Not Show Withdrawal of the Request for a Voluntary
Manslaughter Instruction Constituted Ineffective Assistance of Counsel

{24} In order to establish a successful claim of ineffective assistance of counsel, a
defendant must show error by counsel and then prejudice resulting from that error.
State v. Smith, 2016-NMSC-007, ¶ 62, 367 P.3d 420. “A prima facie case of ineffective
assistance of counsel is made on appeal where: (1) it appears from the record that
counsel acted unreasonably; (2) the appellate court cannot think of a plausible, rational
strategy or tactic to explain counsel’s conduct; and (3) the actions of counsel are
prejudicial.” Id. (internal quotation marks and citation omitted).

{25} Defendant’s argument for ineffective assistance of counsel relies on the false
premise that his testimony warranted jury instructions for both self-defense and
provocation claims. Under that premise, Defendant asserts that, “once [Defendant]
testified and a self-defense instruction was granted, trial counsel acted unreasonably by
failing to re-request a voluntary manslaughter instruction.” As to prejudice, Defendant
makes only a general argument under the same false premise that “[h]ad the jury been
instructed to determine whether [Defendant] acted with sufficient provocation, it is likely
the trial could have resulted in a conviction for manslaughter instead of murder.”

{26} Under our previous analysis, Defendant’s claims of error and prejudice fail, as
they are predicated on a legal theory we have rejected—that Defendant was entitled to
a voluntary manslaughter instruction. As the State cites, the evidence necessary for a
claim of ineffective assistance of counsel “is not usually sufficiently developed in the
original trial record,” and therefore such a claim “should normally be addressed in a
post-conviction habeas corpus proceeding, which may call for a new evidentiary hearing
to develop facts beyond the record.” State v. Crocco, 2014-NMSC-016, ¶ 13, 327 P.3d
1068. In this case, however, further development of the factual record cannot
substantiate Defendant’s ineffective assistance of counsel theory as currently
constructed. Consequently, we hold trial counsel’s failure to re-request a voluntary
manslaughter instruction was not error and Defendant by that failure was not deprived
of the right to competent counsel.

C. The District Court Did Not Abuse Its Discretion in Allowing Campbell to
Testify as a Rebuttal Witness

{27} Next, Defendant argues the trial court abused its discretion by allowing the State
to call Campbell as a rebuttal witness. Defendant argues the court’s ruling violates our
standards regarding late disclosure of evidence, as “the defense was not able to
interview [Campbell] until minutes before he testified.” Defendant also argues Campbell
was not a proper rebuttal witness because his testimony responded only to evidence
already presented in the State’s case-in-chief.
{28} Defendant preserved the issue in the district court by objecting to the rebuttal
witness and citing proper authority. Because the issue was preserved, this Court
reviews the district court’s decision with regard to discovery, including the remedy, for
an abuse of discretion. State v. Desnoyers, 2002-NMSC-031, ¶ 25, 132 N.M. 756, 55
P.3d 968, abrogated on other grounds by State v. Forbes, 2005-NMSC-027, ¶ 6, 138
N.M. 264, 119 P.3d 144; State v. Wilson, 2001-NMCA-032, ¶ 39, 130 N.M. 319, 24 P.3d
351 (“[R]emedies for violation of discovery rules or orders are discretionary with the trial
court.”), abrogated on other grounds as recognized by State v. Montoya, 2005-NMCA-
078, 137 N.M. 713, 114 P.3d 393; State v. Simonson, 1983-NMSC-075, ¶ 32, 100 N.M.
297, 669 P.2d 1092 (“The admissibility of rebuttal evidence is within the discretion of the
trial court and will not be disturbed absent an abuse of discretion.”). In order to find an
abuse of discretion, we must conclude that the decision below was against logic and not
justified by reason. State v. Brown, 1998-NMSC-037, ¶ 32, 126 N.M. 338, 969 P.2d
313.

{29} When evidence is disclosed for the first time during trial, our jurisprudence uses a
four-factor test to determine whether an abuse of discretion occurred to warrant
reversal. State v. Mora, 1997-NMSC-060, ¶ 43, 124 N.M. 346, 950 P.2d 789, abrogated
on other grounds by State v. Frazier, 2007-NMSC-032, ¶ 31, 142 N.M. 120, 164 P.3d 1.
The reviewing court will consider the following factors (Mora factors): “(1) whether the
[s]tate breached some duty or intentionally deprived the defendant of evidence; (2)
whether the improperly non-disclosed evidence was material; (3) whether the non-
disclosure of the evidence prejudiced the defendant; and (4) whether the trial court
cured the failure to timely disclose the evidence.” Id.

{30} For the first Mora factor, Defendant argues the State violated its discovery
obligations under Rule 5-501(A)(5) NMRA, which relevantly requires the State to “make
available to the defendant . . . a written list of the names and addresses of all witnesses
which the prosecutor intends to call at the trial.” Defendant concedes Campbell was
initially included on the State’s witness list but points to the State’s subsequent nolle
prosequi of the count of aggravated assault in which Campbell was the victim, due to
Campbell declining to participate. Defendant asserts he reasonably relied on the nolle
prosequi as an “assurance[] that [Campbell] would not testify” and alleges without
further support that the State later calling Campbell “as a rebuttal witness was an
attempt to skirt the disclosure rules.” Defendant does not contest the State’s explanation
that, only after Defendant’s testimony, law enforcement “then promptly located and
arrested [Campbell] to contradict Defendant’s version of events.”

{31} Under his concession above, Defendant does not demonstrate that “the [s]tate
breached some duty or intentionally deprived the defendant of evidence.” Mora, 1997-
NMSC-060, ¶ 43. The State relevantly satisfied its initial duty by including Campbell on
its witness list. As to intentional deprivation of evidence, Defendant implies such bad
faith in characterizing the State’s action as “an attempt to skirt the disclosure rules”;
however, Defendant offers no record evidence or explanation to support this allegation
against the State. To the contrary, Defendant elsewhere places blame on the district
court for these circumstances, alleging the court’s initial denial of a self-defense
instruction was erroneous and improperly required Defendant to testify, which in turn
“opened the door for the State to improperly call [Campbell] in rebuttal.” Though not
necessary to the analysis of this Mora factor, we have established above that Defendant
was not entitled to a self-defense instruction; thus, the underlying circumstance to which
Defendant objects here was not error. In sum, Defendant does not carry his burden to
show the first Mora factor weighs against the State.

{32} For the second Mora factor, regarding materiality, Defendant’s brief-in-chief
merely asserts without explanation that Campbell’s “testimony was crucial to the State’s
case.” Contradicting this assertion, however, Defendant’s reply brief states that “[n]one
of this was new,” referring to Campbell’s testimony rebutting Defendant’s testimony.
Defendant seems to argue the substance of Campbell’s testimony had been material
during the State’s case-in-chief to counter Defendant’s version of events stated to
police, but that Campbell’s testimony had no additional relevance to support its inclusion
at the rebuttal stage. Taken together, Defendant’s arguments do not offer a clear
position as to the materiality of Campbell’s testimony. The State answers that
Campbell’s testimony only became material when Defendant testified, implying this
Mora factor should not weigh against the State.

{33} Our test for materiality is whether “‘there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in
the outcome.’” Desnoyers, 2002-NMSC-031, ¶ 28 (quoting State v. Chavez, 1993-
NMCA-102, ¶ 20, 116 N.M. 807, 867 P.2d 1189). Importantly, Defendant presents no
substantive argument that the result of his trial would have been different had he known
further in advance that Campbell would testify on rebuttal. Thus, Defendant does not
show this factor should weigh against the State.

{34} For the third Mora factor, regarding prejudice, Defendant claims he was
prejudiced because he “reasonably understood” that Campbell was not going to testify,
and “[t]he last-second addition of [Campbell] as an improper rebuttal witness . . .
affected [Defendant’s] trial strategy regarding having [Defendant] testify.” The State
responds that Defendant’s trial strategy could not have been influenced by reliance on
Campbell not testifying because Defendant knew Campbell was a potential witness.

{35} While neither party’s argument is convincing, the burden is on Defendant to show
prejudice. Because Defendant does not explain how his trial strategy was affected in a
manner that hurt his cause, his argument here is unavailing.

{36} For the fourth Mora factor, the trial court took measures to cure the late
disclosure of Campbell by permitting Defendant to interview him before his testimony
and by permitting surrebuttal testimony by Defendant. Defendant claims the interview
was insufficient to cure any potential prejudice but does not explain why, asserting only
that the court’s measures “[did] nothing to cure the impact on [Defendant’s] right to
remain silent or contradiction of his defense by [Campbell].” The State argues the
interview and surrebuttal testimony were sufficient.
{37} Defendant’s undeveloped position does not avail: Defendant elected to forgo his
right to remain silent before Campbell testified, thus that decision was not affected by
the rebuttal testimony, and contradiction of a defendant’s defense is an ordinary
purpose of rebuttal testimony generally. Absent a developed argument by Defendant
regarding why the interview and surrebuttal were insufficient, we conclude the timing of
Campbell’s late disclosure was adequately cured.

{38} In sum, the Mora factors do not weigh in support of Defendant’s claim. Because
Defendant does not show the trial court’s decision to allow Campbell to testify in rebuttal
was against logic and not justified by reason, we hold no abuse of discretion occurred.

D. Defendant’s Conviction Was Supported by Sufficient Evidence

{39} Finally, Defendant argues insufficient evidence supports his conviction regarding
two of the elements of first-degree murder: that he did not act in self-defense and that
he killed Victim with deliberate intention.

{40} In reviewing whether sufficient evidence supports a conviction, we consider
“whether substantial evidence of either a direct or circumstantial nature exists to support
a verdict of guilt beyond a reasonable doubt with respect to every element essential to a
conviction.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. Our
task is to determine whether, on careful scrutiny of the record, “any rational jury could
have found each element of the crime to be established beyond a reasonable doubt.”
State v. Garcia, 1992-NMSC-048, ¶ 27, 114 N.M. 269, 837 P.2d 862. When reviewing
the record, we view the evidence in the light most favorable to the jury’s verdict,
remaining cognizant that “the jury is free to reject [the d]efendant’s version of the facts.”
State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515. This Court will “not
invade the jury’s province as fact-finder by second-guessing the jury’s decision
concerning the credibility of witnesses, reweighing the evidence, or substituting its
judgment for that of the jury.” State v. Garcia, 2016-NMSC-034, ¶ 15, 384 P.3d 1076
(text only)2 (citation omitted).

{41} As the enumerated evidence below demonstrates, sufficient evidence supported
the conviction as to both challenged elements.

{42} First, the following evidence supported the conclusion that Defendant did not act
in self-defense:

1) Defendant approached Victim at the gas station;

2) Defendant had his gun drawn when he approached Victim;

3) Neither Victim nor Campbell had a gun;

2“(Text only)” indicates the omission of nonessential punctuation marks—including internal quotation
marks, ellipses, and brackets—that are present in the text of the quoted source, leaving the quoted text
otherwise unchanged.
4) After approaching Victim, Defendant told Victim, “I’m going to kill
you. You raped my wife.”

5) Victim’s driver’s-side window was rolled most of the way up;

6) Defendant struck Victim’s driver’s-side window twice;

7) Defendant shot through the driver’s-side window;

8) Defendant had no injuries.

{43} Second, the following evidence supported the conclusion that Defendant acted
with deliberate intent:

1) Prior to the killing, Defendant made multiple statements to police
saying he wanted to kill Victim or planned to kill Victim;

2) Defendant had motives to kill Victim because Defendant thought
Victim raped Horcacitas and because Defendant thought Victim
had been shooting at his house;

3) Defendant dug a bunker and told his neighbor he planned on
shooting Victim from the bunker;

4) Defendant approached Victim’s vehicle with a gun in his hand;

5) After approaching Victim’s truck, Defendant told Victim, “I’m going
to kill you. You raped my wife.”

{44} Given this wealth of evidence, a reasonable juror could have concluded
Defendant acted with deliberate intent and did not act in self-defense.

{45} Regarding the element that he did not act in self-defense, Defendant relies on his
own testimony providing contrary evidence. However, because “the jury is free to reject
[the d]efendant’s version of the facts,” his contrary testimony does not demonstrate the
relevant evidence above was insufficient. State v. Duran, 2006-NMSC-035, ¶ 5.

{46} Regarding the element of deliberate intent, Defendant likens his case to Garcia,
1992-NMSC-048. In that case, this Court held sufficient evidence did not support a first-
degree murder conviction when “[t]here was no evidence to support the jury’s
conclusion that . . . Garcia decided to stab [his victim] as a result of careful thought; that
he weighed the considerations for and against his proposed course of action; and that
he weighed and considered the question of killing and his reasons for and against this
choice.” Id. ¶ 28. The Garcia Court went on to explain that the “only evidence before the
jury, direct or circumstantial, as to [the defendant’s] state of mind before the killing was
that he quarreled with [his victim], and then appeared to make up, in the back yard; that
he then quarreled again in the front yard, trading punches with and shoving [his victim]
against a wall; and that he then cut his victim in the face and stabbed him in the chest.”
Id.

{47} Defendant’s comparison of his case to Garcia is refuted by the abundance of
direct evidence revealing Defendant weighed the considerations for and against killing
Victim in the months leading up to the incident. This evidence was composed of his
statements to police explaining that he thought about killing Victim, and also the fact
that he told his neighbor about his “bunker” from which he planned on killing Victim.
True, the killing happened quickly, but the jury could have reasonably inferred it was not
a Garcia-type action lacking evidence of deliberation, but rather the culmination of one
saga in which Defendant contemplated killing and took advantage of an opportunity to
do it.

{48} Under the foregoing, we hold Defendant’s conviction for first-degree murder was
supported by sufficient evidence.

III. CONCLUSION

{49} We affirm.

{50} IT IS SO ORDERED.

C. SHANNON BACON, Justice

WE CONCUR:

JULIE J. VARGAS, Chief Justice

MICHAEL E. VIGIL, Justice

DAVID K. THOMSON, Justice

BRIANA H. ZAMORA, Justice