August 22, 2019- State of New Mexico v. David Florez, No. A-1-CA-36245

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INT ~~ ~~ URTC APPEALS OF THE STAT” ~ FNEW MV ™XICO
Court of Appeals of New Mexico
STATE OF NEW MEXICO Filed 8/22/2019 11:34 AM
Plaintiff-Appellee, A. ~£e4
Mark Reyn
V. No. A-1-CA-36245
DAVID FLOREZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY

William G. W. Shoobridge, District Judge

Hector H. Balderas, Attorney General

10, Santa Fe, NM

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Meryl L. Francolini, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

MEMORANDUM OPINION
ATTREP, Judge.
43 Defendant David Florez appeals his convictions for two counts of aggravated
assault upon a peace officer (deadly weapon), contrary to NMSA 1978, Section 30-

22-22(A)(1) (1971), arguing that fundamental error resulted from the omission of

1 the deadly weapon element in the jury instructions for both counts. We agree and
2 thus reverse Defendant's convictions and remand for a new trial.
3 	BACKGROUND
4 	{2} 	At trial, Lieutenant Clipper Miller and Officer Kevin Martinez of the Hobbs
5 Police Department testified to the events giving rise to Defendant's charges and
6 convictions. The following facts are drawn from that testimony.
7 	{3} 	On the night of the incident, then-Sergeant Miller responded to the scene of a
8 stabbing, where he encountered Joshua Peterson, who had a stab wound to his torso.
9 Mr. Peterson gave Sergeant Miller a description of his attacker. Sergeant Miller
10 began searching the area, and soon after, he observed 	someone matching the
11 	description walk into the backyard of a nearby house. Inside the house, Sergeant
12 	Miller encountered Defendant, who largely matched the description given by Mr.
13 	Peterson. Sergeant Miller escorted Defendant out of the house and onto the front
14 	lawn and began asking for personal information. Sergeant Miller noticed Defendant
15 	had his hands in his pockets and would not look at him. Sergeant Miller asked
16 Defendant to remove his hands from his pockets, repeating the command three times.
17 After Defendant failed to comply with his third request, Sergeant Miller attempted
18 	to pat-down Defendant for weapons. As Sergeant Miller reached for Defendant's
19 hands, Defendant retreated, raised his left hand in a defensive posture, and held in
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1 his right hand a "knife with an open blade" to his side. Sergeant Miller described the
2 knife as a pocketknife with a four-to-five-inch locking blade.
3 	{4} 	Sergeant Miller drew his firearm and repeatedly ordered Defendant to drop
4 the 	knife. 	Officer 	Martinez 	arrived 	shortly 	after 	to 	assist 	Sergeant 	Miller,
5 approaching Defendant from behind, such that Defendant was between Sergeant
6 Miller and Officer Martinez. Officer Martinez described Defendant as being in a
7 "fighting stance." Sergeant Miller shouted to Officer Martinez that Defendant had a
8 knife. Officer Martinez testified that Defendant then turned around and made a "s ide
9 slash" 	with the knife towards 	him, forcing 	Officer Martinez to 	backup. 	Both
10 	Sergeant Miller and Officer Martinez testified that they did not fire their weapons
11 	because of the potential for "crossfire" created by Defendant being directly between
12 them.
13 	{5} 	Defendant 	then 	backed 	away 	from 	the 	officers 	toward 	the 	house 	and
14 	positioned himself behind his mother, where he eventually became compliant and
15 	was taken into custody. No knife was found on Defendant's person, but Sergeant
16 Miller located a knife on a couch near the area where Defendant had been standing.
17 	Sergeant Miller later inspected the knife, observing tissue and clear and red fluid on
18 	the blade. Sergeant Miller testified that, based on his training and experience, the red
19 fluid was consistent with blood. The knife was admitted into evidence for the jury
20 	to examine.
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1 {6} 	Defendant was charged with two counts of aggravated assault upon a peace
2 officer (deadly weapon) and one count of aggravated battery relating to the stabbing
3 incident, to which Sergeant Miller and Officer Martinez originally responded. The
4 State dismissed the battery charge prior to trial. The jury was instructed on two
5 counts of aggravated assault upon a peace officer, with one step-down instruction
6 for assault upon a peace officer as to Officer Martinez. The jury found Defendant
7 guilty of the two counts of aggravated assault upon a peace officer.
8 DISCUSSION
9 	{7} 	Defendant argues that the di strict court erred in its instructions to the jury by
10 omitting an essential element of aggravated assault upon a peace officer-i.e., that
11 	the jury must find the knife at issue was a deadly weapon. We agree this was error
12 	and further conclude the error was fundamental.
13 	{8} 	Because Defendant failed to object to the jury in~tructions, our review is
14 limited to a consideration of whether the district court committed fundamental error.
15 	See State v. 	Cunningham, 2000-NMSC-009, ,r 11, 128 N .M. 711, 998 P .2d 17 6
16 (reviewing an unpreserved claim of jury-instruction error for fundamental error).
17 "The rule of fundamental error applies only ifthere has been a miscarriage of justice,
18 	if the question of guilt is so doubtful that it would shock the conscience to permit the
19 conviction to stand, or if substantial justice has not been done." State v. Sutphin,
20 2007-NMSC-045, ,r 16,142 N.M. 191,164 P.3d 72 (internal quotation marks and
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1 citation omitted). "[F]ailure to instruct the jury on an essential element ... ordinarily
2 	is fundamental error even when the defendant fails to object or offer a curative
3 	instruction." State v. Barber, 2004-NMSC-019, ,r 20, 135 N.M. 621 , 92 P.3d 633.
4 However, fundamental error does not occur if "there can be no dispute that the
5 omitted element was established" or the omitted element was not at issue in the case.
6 Sutphin, 2007-NMSC-045 , ,r 16.
7 	{9} 	Here, the jury was 	instructed, m 	relevant part, that 	in 	order to 	convict
8 Defendant of aggravated assault upon a peace officer, it merely had to find that
9 Defendant "used a knife" when he assaulted Sergeant Miller and Officer Martinez.
10 	But because a pocketknife is not a per se deadly weapon under the applicable statute,
11 	NMSA 1978, § 30-l-12(B) (1963), this instruction was incomplete. See State v.
12 	Tra eger, 2001-NMSC-022, ,r 13 , 130 N.M. 618 , 29 P.3d 518 ("[W]hen an instrument
13 	is not declared by the statute to be a deadly weapon it is a jury question, to be
14 determined by considering the character of the instrument and the manner ofits use."
15 	(internal quotation marks and citation omitted)); see also UJI 14-2202 NMRA , use
16 note 7 (requiring the jury to determine whether object is deadly weapon if object is
17 	not listed in Section 30-l-12(B)); UJI 	14-2203 NMRA , use note 9 (same). Our
18 	Supreme Court has made clear that, when a weapon is not listed as a deadly weapon
19 in the statute, the jury must determine whether the object is a deadly weapon. See
20 	State v. Nick R. , 2009-NMSC-050, ,r,r 37, 41 , 43, 147 N.M. 	182, 218 P.3d 868
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1 (holding that a pocketknife is not per sea deadly weapon and, as such, this is a jury
2 determination). In particular, the jury mu st be instructed that to find the defendant
3 used a "deadly weapon," it mu st find that the object, "when used as a weapon, could
4 cause death or great bodily harm[.]" UJI 14-2202; UJI 14-2203 (same). The jury
5 instructions here, having omitted this element, were erroneous. Further analysis,
6 however, is required to determine whether this deficiency ri ses to the level of
7 fundamental error.
8 {IO} 	The State makes two arguments why the omission of an essential element
9 from the jury instructions is nonetheless not fundamental error in this case. See
10 Barbe r, 	2004-NMSC-019, ,r 20 (stating that omission 	of an essential element
11 	ordinarily is fundamental error). First, the State argues that there is no fundamental
12 	error because "the deadly weapon element was indisputably established at trial and
13 	no rational jury could have concluded otherwise[.]" See State v. Orosco , 1992-
14 NMSC-006, ,r 12 , 113 N.M. 780, 833 P.2d 1146 (stating that reversal is not required
15 	where "there can be no dispute that the element was established" ). Specifically, the
16 	State argues the evidence demonstrated that Defendant used the knife to stab Mr.
17 	Peterson, that the knife had what appeared to be blood and tissue on it and, if true,
18 	could transfer 	disease, 	and that the officers ' 	protective vests would 	not have
19 protected against an edged weapon 	like Defendant 's 	knife. 	For the following
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1 reasons, we conclude that this evidence did not indisputably establish that the
2 pocketknife in question was a deadly weapon.
3 {11} 	No evidence in the record established that the red substance on the knife was
4 in 	fact 	blood. 	And 	while 	the 	State 	presented 	evidence 	establishing 	that 	law
5 enforcement originally responded to the scene of a stabbing and encountered Mr.
6 Peterson with a stab wound, Defendant was not conclusively tied to this stabbing,
7 and no evidence established that this particular knife caused any specific physical
8 injury. 	Indeed, 	although 	Defendant 's 	behavior 	toward 	the 	officers 	may 	have
9 rendered his possession of the pocketknife dangerous, he inflicted no wounds during
10 	the interaction, a fact distinguishing this case from others in which we have declined
11 	to find fundamental error owing to the defendant's actual use of the weapon. Cf
12 	Traeger, 200 l -NMSC-022, ,r 25 (concluding that "it [did] not shock the conscience
13 	or implicate a fundamental unfairness within the system to affirm the [d]efendant's
14 conviction" where the defendant actually used a baseball bat to inflict injury (internal
15 	quotation 	marks 	and 	citation 	omitted)). 	Finally, 	even 	though 	Sergeant 	Miller
16 testified that the knife was "like a pocketknife" with a four-to-five-inch blade,
17 "[t]here was no evidence at trial about this particular [pocket] knife that might
18 	suggest it was inherently threatening or deadly." State v. Radosevich, 2016-NMCA-
19 060, ,r 9,376 P.3d 871, rev'd on other grounds, 2018-NMSC-028, 419 P.3d 176; see
20 	id. ,r,r 8-10 (reversing the defendant's conviction for aggravated assault with a deadly
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1 weapon based on fundamental error in the district court 's failure to instruct the jury
2 on the deadly weapon element where the defendant used a three-and-one-half-inch
3 	kitchen knife). For these reasons, we cannot say that the deadly weapon element was
4 indisputably established at trial.
5 	{12} 	Similarly, 	we 	are 	unpersuaded 	by 	the 	State' s 	argument 	that 	the jury ' s
6 conviction on the aggravated assault charge for Count 2, instead of the lesser
7 included offense of assault upon a peace officer, establishes the "jury harbored no
8 reasonable 	doubt 	concerning 	whether 	Defendant 	used 	a 	deadly 	weapon." 	As
9 discussed above, the jury was not asked to determine whether the knife was a deadly
10 weapon and, therefore, its guilty verdict creates no presumption regarding the deadly
11 	weapon element.
12 	{13} 	Second, the State contends the deadly weapon element was not in issue at trial,
13 	arguing that Defendant "made an 	overt tactical 	decision" to 	concede that the
14 	pocketknife was a deadly weapon and because no evidence was presented to the
15 	contrary. See Sutphin , 2007-NMSC-045, ,r 16 ("[F]undamental error does not occur
16 	if the jury was not instructed on an element not at issue in the case." ). "The question
17 	is whether there was any evidence or suggestion in the facts, however slight, that
18 	could have put the element ... in issue." Orosc o, 1992-NMSC-006, ,r 10. For the
19 	reasons that follow, we conclude that Defendant did not concede the deadly weapon
20 element, and this element was in issue at trial.
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1 {14} 	Defendant proceeded at trial on the theory that he did not have a knife during
2 his 	confrontation with police because, 	if he had, 	Sergeant Miller and 	Officer
3 Martinez would have shot him. In attempting to establish this theory, Defendant
4 elicited testimony from Sergeant Miller that he considered a knife to be a deadly
5 threat and he was trained to respond to deadly threats with deadly force. Defendant
6 reiterated this theory during closing argument, stating, "If in fact Officer Martinez
7 was threatened with a knife ... [Defendant] would have been shot." The State
8 equates the foregoing as a concession by Defendant that the knife at issue was a
9 deadly weapon. We disagree. While Defendant elicited testimony from Sergeant
10 Miller establishing he believed knives to be "deadly threat[s]," such testimony does
11 	not amount to a concession that the particular knife at issue here meets the specific
12 	legal definition of a deadly weapon outlined in Section 30-l-12(B). Indeed, Sergeant
13 	Miller testified that he perceives any knife to be a deadly threat, a contention that
14 has been specifically rejected by our Supreme Court. See Nick R., 2009-NMSC-050,
15 iiii 43, 49 (holding that a pocketknife is not a per se deadly weapon and concluding
16 a jury determination on this issue was required). Further, because Defendant never
17 conceded he had a knife, we cannot agree with the State that he conceded the knife
18 	was a deadly weapon and, as discussed above, this element was not indisputably
19 established. Finally, contrary to the State's contention, nothing in the facts suggests
20 Defendant endorsed the deficient jury instructions "in furtherance of some deliberate
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1 trial tactic," rather than through oversight or neglect. See State v. Foxen, 2001-
2 NMCA-061, 112, 130 N.M. 670, 29 P.3d 1071 	(reviewing jury instructions for
3 fundamental error where the "deficiencies in the instructions ... by all appearances
4 	... were simply the result of oversight or neglect" ). Given these circumstances, we
5 conclude that the knife's character as a deadly weapon was in issue at trial.
6 {15} 	It was the jury 's province to determine whether the pocketknife qualified as a
7 deadly weapon and was used as such. See Traeger, 2001-NMSC-022, 1112-13. The
8 instructions given in this case failed to apprise the jury of its responsibility to make
9 those determinations. Because of this, and because the deadly weapon element was
10 	not indisputably established and was in issue, we conclude Defendant was deprived
11 	of his fundamental right to have the jury decide each element of the charged offenses
12 	beyond a reasonable doubt. 	See Sutphin , 2007-NMSC-045, 1 16. Accordingly,
13 	Defendant's 	convictions 	for 	aggravated 	assault 	upon 	a peace 	officer 	(deadly
14 	weapon) resulted in fundamental error and must be reversed.
15 	CONCLUSION
16 {16} 	We reverse Defendant's convictions and remand to the district court for a new
17 	trial.
18 	{17}
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IT IS SO ORDERED.
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WE CONCUR:
2 Jacqueline R. Medina
3 JACQUELINE R. MEDINA, Judge
4 5
Megan PDuffy
MEGAN P. DUFFY, Judge
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