June 2, 2020- State of New Mexico v. Johnson Mud, No. A-1-CA-38107

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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-38107	4
JOHNSON MUD,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	7
John A. Dean, Jr., District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Bennett J. Baur, Chief Public Defender	12
Kathleen T. Baldridge, Assistant Appellate Defender	13
Santa Fe, NM	14
for Appelllant	15
MEMORANDUM OPINION	16
VARGAS, Judge.	17
{1} 	Defendant appeals from the district court’s judgment and sentence convicting	18
him of second-degree murder. In this Court’s notice of proposed disposition, we	19
proposed to summarily affirm. Defendant filed a memorandum in opposition, which	20
we have duly considered. Remaining unpersuaded, we affirm.	21
Court of Appeals of New Mexico
Filed 6/2/2020 10:54 AM

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{2} 	In his memorandum in opposition, Defendant continues to contend that there	1
was insufficient evidence presented by the State to show that Defendant did not act	2
as a result of sufficient provocation, which would warrant a conviction for the lesser	3
included offense of voluntary manslaughter. [MIO 3] See State v. Taylor, 2000-	4
NMCA-072, ¶ 27, 129 N.M. 376, 8 P.3d 863. It is generally for the jury to decide	5
whether any given act, condition, or circumstance could objectively be said to	6
constitute sufficient provocation. See State v. Stills, 1998-NMSC-009, ¶¶ 36-37, 125	7
N.M. 66, 957 P.2d 51 (holding that the fact-finder must determine whether “an	8
ordinary person of average disposition” in the same situation would have been	9
provoked (internal quotation marks and citation omitted)).	10
{3} 	In this case, the jury was instructed that	11
“Sufficient provocation” can be any action, conduct or circumstances	12
which arouse anger, rage, fear, sudden resentment, terror or other	13
extreme emotions. The provocation must be such as would affect the	14
ability to reason and to cause a temporary loss of self[-]control in an	15
ordinary person of average disposition. The “provocation” is not	16
sufficient if an ordinary person would have cooled off before acting.	17
[RP 206]	18
{4} 	As stated in our notice of proposed disposition, Defendant presented evidence	19
at trial that he told emergency dispatchers and officers that he killed Victim because	20
she was cheating on him. [MIO 2] However, the State presented testimony from a	21
friend of Victim’s that demonstrated they were not romantically involved, as well as	22
testimony from Victim’s children that Victim was not cheating on Defendant. [MIO	23

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2] Given this conflict, we conclude that a rational jury could have concluded that	1
Defendant did not act as a result of sufficient provocation, and thus Defendant’s	2
conviction is supported by substantial evidence. See Taylor, 2000-NMCA-072, ¶ 28	3
(holding that “[t]he question of whether the circumstances rose to the level of	4
provocation to reduce second[-]degree murder to voluntary manslaughter was for	5
the fact[-]finder to resolve”); see also State v. Duran, 2006-NMSC-035, ¶ 5, 140	6
N.M. 94, 140 P.3d 515 (“Contrary evidence supporting acquittal does not provide a	7
basis for reversal because the jury is free to reject [the d]efendant’s version of the	8
facts.” (internal quotation marks and citation omitted)); State v. Akers, 2010-NMCA-	9
103, ¶ 32, 149 N.M. 53, 243 P.3d 757 (“We do not weigh the evidence or substitute	10
our judgment for that of the fact[-]finder.”).	11
{5} 	Accordingly, for the reasons stated in our notice of proposed disposition and	12
herein, we summarily affirm Defendant’s conviction for second-degree murder.	13
{6} 	IT IS SO ORDERED.	14
______________________________	15
JULIE J. VARGAS, Judge	16
WE CONCUR:	17
______________________________	18
J. MILES HANISEE, Chief Judge	19
_______________________________	20
KRISTINA BOGARDUS, Judge	21