State v. Ricoy

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: November 10, 2025

No. S-1-SC-40471

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

EZEQUIEL PROFETA RICOY,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Jennifer E. DeLaney, District Judge

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

for Appellant

Raúl Torrez, Attorney General
Benjamin L. Lammons, Assistant Solicitor General
Santa Fe, NM

for Appellee

DECISION

ZAMORA, Justice.

I. INTRODUCTION

{1} Defendant, Ezequiel Ricoy, appeals his conviction for first-degree willful and
deliberate murder, contrary to NMSA 1978, Section 30-2-1(A)(1) (1994), arising from
the fatal shooting of his stepson, Brendan Kern (Victim). Defendant argues that this
Court must vacate his conviction because (1) there was insufficient evidence of
deliberate intent; (2) the district court failed to instruct the jury on self-defense, voluntary
manslaughter, and defense of habitation; and (3) he received ineffective assistance of
counsel. We affirm Defendant’s convictions and exercise our discretion to decide this
appeal by nonprecedential decision because the issues have been previously decided
by this Court. See Rule 12-405(B)(1) NMRA.
II. BACKGROUND

{2} Defendant was Victim’s stepfather, having recently married Victim’s mother, Kelly
Kern. Defendant and Kelly resided together in Victim’s childhood home. Kelly had
multiple sclerosis, was unable to walk, and used a wheelchair. About a week before
Defendant killed Victim, Defendant hired Victim to help him renovate a trailer and the
two traveled to the worksite together with Kelly. However, a few days after beginning
work, Defendant fired Victim after the two got into an argument because Victim wanted
to take his own vehicle and a television to the worksite. Prior to being fired, Victim
anticipated that the two would continue to work together and left his cooler in
Defendant’s truck. After firing Victim, Defendant expressed a dislike for Victim, stating
that Victim and his siblings were “useless” and that Defendant did not like how they
treated Kelly.

{3} On the day Victim was fatally shot, Kelly was at home with Defendant and
Defendant’s daughter, Katrina Ricoy. Kelly spoke to Victim’s fiancée, Emili Jones, and
told Emili that she and Victim could come over to pick up the cooler that was left behind
in Defendant’s truck and that the cooler would be placed outside. Only after Victim had
almost arrived did Defendant express his disagreement with the arrangement.

{4} Shortly after her phone call with Kelly, Emili arrived with Victim, their two minor
children, and Victim’s friend Jaime. Not knowing anything was amiss, Emili exited the
vehicle and approached the home in search of the cooler, calling Kelly again after
arriving. Victim stayed in the vehicle with Jaime and the two children.

{5} At some point between Kelly’s and Emili’s first and second phone calls,
Defendant went outside. Upon reentering the home, Defendant continued to protest
Victim coming to the property, telling Kelly that he did not want her son there and that
he did not want “any Kerns,” meaning any of her children, on the property. Emili was on
the phone with Kelly and overheard Defendant’s statements. Defendant then began
screaming into the phone and told Emili that she would “regret ever coming” to the
home. Recognizing Defendant was angry, Emili began walking away from the home
towards her vehicle, intending to leave. She ended the call with Kelly.

{6} Back inside the home, Defendant retrieved an AR-15 assault rifle. When Kelly
reached for his arm in an attempt to stop him from going outside, Defendant “shrugged
[her] off.” Defendant returned to the porch and opened fire as Emili continued to move
towards her vehicle. Victim only exited the vehicle after Defendant had fired several
shots. Victim crossed paths with Emili as she ran back to the vehicle, and Victim pushed
her behind him. Emili continued running to the vehicle. Victim then raised both of his
hands and said to Defendant, “We’re leaving.”

{7} Defendant continued to fire additional shots and, while Victim was ten to thirty
feet away from Defendant, two bullets fatally struck Victim in the chest and neck. In
total, Defendant fired nine shots, several of which also struck the front of Victim’s
vehicle. While on the phone with a 911 dispatcher, Emili asked Defendant what size
caliber the bullets were. Defendant responded “that’s none of your f***ing business” and
laughed. Later, while speaking to an officer on the scene, Defendant referred to Victim
and his family as “arrogant pricks” for coming onto the property despite his warnings.

{8} Defendant told police Victim had two things in his hands that Defendant was
unable to identify. It was later determined that Victim had an aluminum energy drink can
in one hand and a cell phone in the other. According to Defendant, Victim charged at
him. Defendant stated he was scared of being beaten up by Victim, who was taller and
younger than him.

{9} Defendant was arrested and charged with first-degree willful and deliberate
murder, two counts of abuse of a child, aggravated assault, and shooting at or from a
motor vehicle. During trial, Defendant requested that the jury be instructed on the lesser
included offenses of second-degree murder and voluntary manslaughter, as well as on
self-defense. The district court granted Defendant’s requested second-degree murder
instruction but denied Defendant’s requests for voluntary manslaughter and self-
defense instructions, concluding that there was insufficient evidence to support giving
either instruction. The jury convicted Defendant of first-degree murder, two counts of
child abuse not resulting in death or great bodily harm, aggravated assault, and
shooting at or from a motor vehicle. Defendant was sentenced to life in prison plus nine
years. Defendant timely appealed to this Court.

III. DISCUSSION

A. Sufficiency of the Evidence

{10} Defendant argues that there was insufficient evidence to establish the deliberate
intent necessary to sustain his first-degree murder conviction. Based on the evidence at
trial, the State argues a rational jury could reasonably find Defendant deliberately killed
Victim. We agree with the State.

1. Standard of review

{11} The sufficiency of the evidence is measured against the jury instructions, which
“become the law of the case.” State v. Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d
517 (internal quotation marks and citation omitted). Evidence is sufficient when
substantial evidence “‘exists to support a verdict of guilt beyond a reasonable doubt with
respect to every element essential to a conviction.’” State v. Duran, 2006-NMSC-035, ¶
5, 140 N.M. 94, 140 P.3d 515 (quoting State v. Sutphin, 1988-NMSC-031, ¶ 21, 107
N.M. 126, 753 P.2d 1314). “We view the evidence as a whole and indulge all
reasonable inferences in favor of the jury’s verdict.” State v. Graham, 2005-NMSC-004,
¶ 13, 137 N.M. 197, 109 P.3d 285. “Contrary evidence supporting acquittal does not
provide a basis for reversal because the jury is free to reject Defendant’s version of the
facts.” Duran, 2006-NMSC-035, ¶ 5 (internal quotation marks and citation omitted).

2. There was sufficient evidence to support the jury’s verdict

{12} To establish first-degree willful and deliberate murder under Section 30-2-1(A)(1),
the state must prove that the defendant killed another person and that the killing was
committed with deliberate intent. See UJI 14-201 NMRA. Deliberate means “arrived at
or determined upon as a result of careful thought and the weighing of the consideration
for and against the proposed course of action.” Id. For a killing to be deliberate, a
defendant “must weigh and consider the question of killing and his reasons for and
against such a choice.” Id. Although deliberate intent “may be arrived at in a short
period of time[, a] mere unconsidered and rash impulse, even though it includes an
intent to kill, is not a deliberate intention to kill.” Id.

{13} Taken together, the State presented sufficient evidence of deliberate intent
through evidence that Defendant (1) held animus towards Victim, (2) resisted Kelly’s
attempts to stop him from going outside with a gun, (3) fired warning shots toward Emili
and the vehicle, but specifically targeted Victim, and (4) expressed a lack of remorse
after killing Victim.

{14} Deliberate intent may be inferred from “the animus of the accused toward the
deceased.” State v. Smith, 1966-NMSC-128, ¶ 13, 76 N.M. 477, 416 P.2d 146; accord
State v. Guerra, 2012-NMSC-027, ¶ 29, 284 P.3d 1076 (quoting Smith to support its
reasoning that the defendant’s animus towards the victim was relevant to deliberate
intent). Animus may be evidenced by “circumstantial evidence of earlier confrontation,
threats, . . . or other common areas of friction leading to violence.” State v. Tafoya,
2012-NMSC-030, ¶ 52, 285 P.3d 604. Here, the State presented evidence of
Defendant’s animus towards Victim, showing that Defendant fired Victim after a
disagreement, spoke poorly about Victim to others, was irate that Kelly gave Victim
permission to pick up the cooler, and made a direct threat to Victim’s fiancée, Emili.

{15} Further evidence of deliberation may be inferred because Defendant ignored
Kelly’s attempts to stop him from going outside and shrugged her off when she reached
for his arm. Additionally, when Defendant exited the home, Defendant only shot Victim
and shot him multiple times despite firing a total of nine shots with multiple people in the
line of fire. See State v. Chavez, 2024-NMSC-023, ¶ 46, 562 P.3d 521. Lastly, the
evidence demonstrated deliberate intent because Defendant lacked remorse towards
Victim after the shooting based on his responses to Emili as she attempted to render aid
and his characterization of Victim as an “arrogant prick” to law enforcement. See
Guerra, 2012-NMSC-027, ¶ 29, 284 P.3d 1076 (inferring deliberate intent based on the
defendant’s lack of remorse evidenced by his statement, “I think I stabbed that fool
seven or eight times”); Duran, 2006-NMSC-035, ¶ 9 (recognizing a jury could infer
deliberate intent where the defendant stated that he “murdered some b*tch”).

{16} Based on the substantial evidence presented in this case showing that
Defendant deliberately intended to shoot Victim, we hold that sufficient evidence
supported the jury’s finding that Defendant was guilty of first-degree willful and
deliberate murder.

B. Challenges to the Jury Instructions

{17} Defendant argues that the district court erred in failing to instruct the jury on self-
defense, voluntary manslaughter, and defense of habitation. Whether a jury instruction
was properly denied is a mixed question of law and fact that this Court reviews de novo.
State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438. “‘When considering
a defendant’s requested instruction[], we view the evidence in the light most favorable to
the giving of the requested instruction[].’” State v. Boyett, 2008-NMSC-030, ¶ 12, 144
N.M. 184, 185 P.3d 355 (quoting State v. Contreras, 2007-NMCA-119, ¶ 8, 142 N.M.
518, 167 P.3d 966). The applicable standard of review depends on whether the issue
was preserved below. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d
1134. We review preserved challenges for reversible error and unpreserved challenges
for fundamental error. Id. “Under both standards we seek to determine whether a
reasonable juror would have been confused or misdirected by the jury instruction.” Id.
(internal quotation marks and citation omitted).

1. Preserved claims

{18} Defendant argues that the district court erred by not instructing the jury on self-
defense or on voluntary manslaughter. Defendant preserved this issue by requesting
jury instructions on self-defense and voluntary manslaughter. See State v. Jernigan,
2006-NMSC-003, ¶ 10, 139 N.M. 1, 127 P.3d 537. We therefore review these claims for
reversible error. Benally, 2001-NMSC-033, ¶ 12. Failure to give a requested instruction
amounts to reversible error when “a reasonable juror would have been confused or
misdirected” by the instruction actually given. State v. Parish, 1994-NMSC-073, ¶ 4, 118
N.M. 39, 878 P.2d 988. However, “[f]ailure to instruct the jury on a defendant's theory of
the case is reversible error only if the evidence at trial supported giving the instruction.”
Boyett, 2008-NMSC-030, ¶ 12.

a. Defendant was not entitled to a self-defense instruction

{19} Defendant asserts that the district court’s failure to instruct the jury on self-
defense amounted to reversible error because there was sufficient evidence to support
the instruction. The State argues that the “evidence presented at trial was insufficient to
merit a self-defense instruction.” We agree with the State and hold Defendant was not
entitled to an instruction on self-defense.

{20} A defendant is entitled to a self-defense instruction when there is sufficient
evidence “to allow reasonable minds to differ” as to each of the following elements: (1)
“the defendant was put in fear by an apparent danger of immediate death or great bodily
harm,” (2) “the killing resulted from that fear,” and (3) “the defendant acted as a
reasonable person would act under those circumstances.” State v. Lopez, 2000-NMSC-
003, ¶ 23, 128 N.M. 410, 993 P.2d 727 (internal quotation marks and citations omitted).
The first and second elements are subjective, requiring evidence that the defendant
feared immediate death or great bodily harm and acted out of that fear; the third
element is objective, requiring that the defendant’s fear and action were reasonable.
State v. Coffin, 1999-NMSC-038, ¶ 15, 128 N.M. 192, 991 P.2d 477.

{21} The evidence presented at trial was insufficient to establish that Defendant
subjectively feared death or great bodily harm or that the killing resulted from that fear.
To argue such fear existed, Defendant points to his statements to police that he did not
want Victim—who was younger and larger—to beat him up, that he saw Victim with
something in his hands, and that Victim “continued to charge him even after he fired
warning shots.” Our case law recognizes that the fear of a simple battery, such as
getting punched in the face or being beaten up, is not force that ordinarily results in
death or great bodily harm. See State v. Lucero, 2010-NMSC-011, ¶ 15, 147 N.M. 747,
228 P.3d 1167. Here, Defendant does not point to any evidence in the record to
establish that he feared anything beyond a simple battery. Additionally, a difference in
size, alone, cannot subjectively establish a fear of death or great bodily harm. See State
v. Duarte, 1996-NMCA-038, ¶ 10, 121 N.M. 553, 915 P.2d 309. Lastly, while Defendant
stated that Victim had “something” in his hands, there is no evidence that Defendant
believed the items were weapons or items capable of causing death or great bodily
harm. Therefore, when Victim “charged” at Defendant, there is no indication that
Defendant had the subjective belief that Victim posed a threat of death or great bodily
harm. Because there is insufficient evidence to support Defendant’s subjective fear,
there is similarly insufficient evidence to establish that the killing resulted from such fear.

{22} Further, there was insufficient evidence for a jury to find that Defendant acted as
a reasonable person would act under the circumstances. A defendant’s conduct is
objectively unreasonable when “the evidence was insufficient for the jury reasonably to
find that [the v]ictim threatened [the d]efendant with death or great bodily harm.” Lucero,
2010-NMSC-011, ¶¶ 15, 18; see also State v. Baroz, 2017-NMSC-030, ¶ 18, 404 P.3d
769 (holding the defendant did not act reasonably, in part, because there was no
evidence indicating the victim had any weapons). While we view the facts in the light
most favorable to giving the instruction, the undisputed facts reveal that Defendant
initiated the deadly confrontation and used deadly force when he faced no threat of
death or great bodily harm. Under the circumstances, no reasonable jury could find that
Defendant acted reasonably. Here, Defendant initially made a showing of deadly force
when he fired multiple “warning shots” while Victim was seated in his vehicle and
presented no threat to Defendant. When Victim did exit the vehicle, he was unarmed,
had his hands raised, and told Defendant, “We’re leaving.” Deadly force may only be
used if the defendant is threatened with death or great bodily harm. See Lucero, 2010-
NMSC-011, ¶ 15. Under these circumstances, no jury could find that Defendant
reasonably believed Victim had the opportunity or intent to use deadly force against
him. As a result, Defendant did not act reasonably in using an assault rifle to shoot and
kill Victim. Therefore, Defendant was not entitled to a self-defense instruction, and the
district court did not err in refusing to give the requested instruction.

b. Defendant was not entitled to a voluntary manslaughter instruction

{23} Defendant argues the district court committed reversible error by failing to
instruct the jury on voluntary manslaughter because Victim provoked Defendant by
“charging at [Defendant] after shots had been fired” and because Victim and Defendant
had previously been in an argument. The State argues that the evidence presented at
trial did not merit instruction on voluntary manslaughter because Defendant failed to
demonstrate adequate provocation. We agree with the State and hold there was
insufficient evidence to allow a reasonable jury to find Victim provoked Defendant.
{24} To convict on voluntary manslaughter, there must be “evidence that there was a
sudden quarrel [or] heat of passion at the time of the commission of the crime, to show
that the killing was the result of provocation sufficient to negate the presumption of
malice.” State v. Reynolds, 1982-NMSC-091, ¶ 8, 98 N.M. 527, 650 P.2d 811; see also
NMSA 1978, § 30-2-3(A) (1994) (defining voluntary manslaughter). “The general rule is
that, in order to reduce murder to manslaughter, the victim must have been the source
of the defendant’s provocation.” State v. Manus, 1979-NMSC-035, ¶ 16, 93 N.M. 95,
597 P.2d 280, overruled on other grounds by Sells v. State, 1982-NMSC-125, ¶ 9, 98
N.M. 786, 653 P.2d 162. Sufficient provocation is defined as “any action, conduct or
circumstances which arouse anger, rage, fear, sudden resentment, terror or other
extreme emotions.” UJI 14-222 NMRA. “The provocation must be such as would affect
the ability to reason and to cause a temporary loss of self control in an ordinary person
of average disposition.” Id. However, the provocation “is not sufficient if an ordinary
person would have cooled off before acting.” Id.

{25} Defendant fails to direct this Court to any evidence in the record establishing
Victim sufficiently provoked Defendant. “[T]he law does not permit one who intentionally
instigates an assault on another to then rely on the victim’s reasonable response to that
assault as evidence of provocation sufficient to mitigate the subsequent killing of the
victim from murder to manslaughter.” See State v. Gaitan, 2002-NMSC-007, ¶ 13, 131
N.M. 758, 42 P.3d 1207. Here, the evidence in the record reveals Defendant provoked
Victim to exit the vehicle when Defendant stood on his porch and fired a series of shots
from an assault rifle in the general direction of Victim’s fiancée. When Victim exited the
vehicle, Victim was unarmed, had his hands raised, and told Defendant that he and his
family were leaving. As Defendant fails to direct this Court to any evidence in the record
to establish Victim sufficiently provoked him, the district court did not err in refusing to
instruct the jury on voluntary manslaughter.

2. Unpreserved claim

{26} Defendant argues the district court erred by failing to instruct the jury on defense
of habitation. Defendant did not request an instruction on defense of habitation, so we
review his claim for fundamental error. Benally, 2001-NMSC-033, ¶ 12. Under this
standard, our inquiry remains “‘whether a reasonable juror would have been confused
or misdirected by the jury instruction.’” Id. ¶ 12 (quoting State v. Cunningham, 2000-
NMSC-009, ¶ 14, 128 N.M. 711, 998 P.2d 176). We first determine “whether an error
occurred” and, if so, “whether the error was fundamental.” State v. Silva, 2008-NMSC-
051, ¶ 11, 144 N.M. 815, 192 P.3d 1192. Error occurs only when there is sufficient
evidence at trial to support giving the instruction. Boyett, 2008-NMSC-030, ¶ 12.
“Fundamental error only applies in exceptional circumstances when guilt is so doubtful
that it would shock the judicial conscience to allow the conviction to stand.”
Cunningham, 2000-NMSC-009, ¶ 13 (internal quotation marks and citation omitted).

{27} Defendant argues that he was entitled to an instruction on defense of habitation
because he “reasonably could have believed [Victim] intended to commit a felony inside
[Defendant’s home].” The State disagrees and asserts that the evidence presented at
trial would not have entitled Defendant to a defense of habitation instruction, even if the
instruction had been requested. We agree with the State.

{28} “New Mexico caselaw is clear that an inhabitant of a dwelling is entitled to
significant latitude in the use of force in defense of habitation.” State v. Galindo, 2024-
NMSC-004, ¶ 22, 547 P.3d 112. But, “in every purported defense of habitation, the use
of deadly force is justified only if the defendant reasonably believed that the commission
of a felony in his or her home was immediately at hand and that it was necessary to kill
the intruder to prevent that occurrence.” Boyett, 2008-NMSC-030, ¶ 15. In this context,
a “felony” is “properly limited to those felonies involving violence.” Id. ¶ 21. A defendant
is entitled to a defense of habitation instruction if the evidence “is ‘sufficient to allow
reasonable minds to differ as to all elements of the offense.’” Id. ¶ 12 (quoting State v.
Gonzales, 2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162). The elements of
defense of habitation require a showing that (1) the place where the killing occurred
“was being used as the defendant’s dwelling,” (2) “[i]t appeared to the defendant that
the commission of [a violent felony] was immediately at hand and that it was necessary
to kill the intruder to prevent the commission of [a violent felony],” and (3) “[a]
reasonable person in the same circumstances as the defendant would have acted as
the defendant did.” UJI 14-5170 NMRA.

{29} It is uncontested that Defendant was using the home where the killing occurred
as a dwelling. Therefore, we limit our review to the second and third elements. Under
the second element, Defendant argues there was sufficient evidence for the jury to find
that “it appeared to [Defendant] that the commission of an aggravated battery was
immediately at hand,” specifically that Victim intended to batter Defendant and cause
great bodily harm.1 Defendant again bases his argument on the evidence showing that
Victim exited his vehicle with something in his hands, advanced towards Defendant, and
was ten to thirty feet away when Defendant shot and killed him. Based on Defendant’s
statements of his own subjective fear, a reasonable juror could find that Defendant
believed Victim would commit an act of violence against him as he stood on his porch.
However, this alone does not satisfy the second element. While defense of habitation
does not require that the intruder has actually entered the home, our caselaw
recognizes that an assault upon the home with the intent of entry is necessary. See
Boyett, 2008-NMSC-030, ¶¶ 16-17, 19. Defendant does not argue nor point to any
evidence in the record to establish he believed Victim intended to enter or intrude upon
the home. Additionally, Defendant points to no evidence in the record to support the
subjective belief that Victim intended to harm Victim’s mother or Defendant’s daughter
who were both still inside the home.

{30} Because there is no evidence to support Defendant’s subjective view that Victim
intended to enter the home and commit a violent felony therein, no objectively
reasonable person could infer that Victim intended to do so and, therefore, would not

1Defendant points to evidence that, prior to exiting the vehicle, Victim told his child that he was going to
“beat up” Defendant. However, Defendant does not argue nor point to evidence establishing that
Defendant was aware of this statement at the time he shot and killed Victim. Therefore, this evidence
does not assist Defendant in his claim. See UJI 14-5170 (“It appeared to the defendant that the
commission of [a violent felony] was immediately at hand . . . .” (emphasis added)).
act as Defendant did under the circumstances of this case. See id. ¶ 23 (holding the
defendant was not entitled to a defense of habitation instruction when there was “no
evidence reasonably tending to support the theory that [the v]ictim was attempting to
force entry at the time [the d]efendant killed her”). Here, Victim was not an intruder
because he was legally authorized to be on the property, made no attempt to enter the
home, only exited the vehicle after multiple shots had been fired, had his hands raised,
told Defendant that he was leaving, and was not armed with any weapons or tools to aid
in perpetrating violence or entering the home. Even when viewed in the light most
favorable to giving the instruction, it was unreasonable for Defendant to shoot Victim
multiple times when there was no evidence to support a subjective or objective
inference that Victim intended to intrude upon the home and commit a violent felony
therein. Therefore, the district court did not err in not instructing the jury on defense of
habitation.

{31} We hold the district court did not err in failing to instruct the jury on self-defense,
voluntary manslaughter, or defense of habitation. Because we hold Defendant’s
challenges to the jury instructions are without merit, there is no cumulative error. See
State v. Saiz, 2008-NMSC-048, ¶ 66, 144 N.M. 663, 191 P.3d 521 (“[W]here there is no
error to accumulate, there can be no cumulative error.”), overruled on other grounds by
State v. Belanger, 2009-NMSC-025, ¶ 36 & n.1, 146 N.M. 357, 210 P.3d 783.

C. Ineffective Assistance of Counsel

{32} Defendant argues his counsel was ineffective because counsel failed to request
an instruction on defense of habitation. To establish ineffective assistance of counsel,
Defendant must demonstrate that “‘counsel’s performance was deficient’” and that “‘the
deficient performance prejudiced the defense.’” State v. Paredez, 2004-NMSC-036, ¶
13, 136 N.M. 533, 101 P.3d 799 (quoting Strickland v. Washington, 466 U.S. 668, 687
(1984)). To establish deficient performance, Defendant must prove counsel “did not
exercise the skill of a reasonably competent attorney.” Duncan v. Kerby, 1993-NMSC-
011, ¶ 10, 115 N.M. 344, 851 P.2d 466. To prove he was prejudiced by counsel’s
deficient performance, Defendant must show that “‘there is a reasonable probability
that, but for counsel’s professional errors, the result of the proceeding would have been
different.’” State v. Trammell, 2016-NMSC-030, ¶ 23, 387 P.3d 220 (quoting Strickland,
466 U.S. at 694). “‘Failure to prove either prong of the test defeats a claim of ineffective
assistance of counsel.’” Guerra, 2012-NMSC-027, ¶ 23 (quoting State v. Reyes, 2002-
NMSC-024, ¶ 48, 132 N.M. 576, 52 P.3d 948).

{33} As explained above, the district court did not err in not instructing the jury on
defense of habitation. Accordingly, counsel did not fail to “exercise the skill of a
reasonably competent attorney” in not suggesting an instruction that was not supported
by the evidence. See Kerby, 1993-NMSC-011, ¶ 10. Therefore, Defendant’s claim
asserting ineffective assistance of counsel fails.

IV. CONCLUSION

{34} For the reasons stated above, we affirm Defendant’s conviction.
{35} IT IS SO ORDERED.

BRIANA H. ZAMORA, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

JULIE J. VARGAS, Justice

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: November 10, 2025

No. S-1-SC-40471

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

EZEQUIEL PROFETA RICOY,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Jennifer E. DeLaney, District Judge

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

for Appellant

Raúl Torrez, Attorney General
Benjamin L. Lammons, Assistant Solicitor General
Santa Fe, NM

for Appellee

DECISION

ZAMORA, Justice.

I. INTRODUCTION

{1} Defendant, Ezequiel Ricoy, appeals his conviction for first-degree willful and
deliberate murder, contrary to NMSA 1978, Section 30-2-1(A)(1) (1994), arising from
the fatal shooting of his stepson, Brendan Kern (Victim). Defendant argues that this
Court must vacate his conviction because (1) there was insufficient evidence of
deliberate intent; (2) the district court failed to instruct the jury on self-defense, voluntary
manslaughter, and defense of habitation; and (3) he received ineffective assistance of
counsel. We affirm Defendant’s convictions and exercise our discretion to decide this
appeal by nonprecedential decision because the issues have been previously decided
by this Court. See Rule 12-405(B)(1) NMRA.

II. BACKGROUND

{2} Defendant was Victim’s stepfather, having recently married Victim’s mother, Kelly
Kern. Defendant and Kelly resided together in Victim’s childhood home. Kelly had
multiple sclerosis, was unable to walk, and used a wheelchair. About a week before
Defendant killed Victim, Defendant hired Victim to help him renovate a trailer and the
two traveled to the worksite together with Kelly. However, a few days after beginning
work, Defendant fired Victim after the two got into an argument because Victim wanted
to take his own vehicle and a television to the worksite. Prior to being fired, Victim
anticipated that the two would continue to work together and left his cooler in
Defendant’s truck. After firing Victim, Defendant expressed a dislike for Victim, stating
that Victim and his siblings were “useless” and that Defendant did not like how they
treated Kelly.

{3} On the day Victim was fatally shot, Kelly was at home with Defendant and
Defendant’s daughter, Katrina Ricoy. Kelly spoke to Victim’s fiancée, Emili Jones, and
told Emili that she and Victim could come over to pick up the cooler that was left behind
in Defendant’s truck and that the cooler would be placed outside. Only after Victim had
almost arrived did Defendant express his disagreement with the arrangement.

{4} Shortly after her phone call with Kelly, Emili arrived with Victim, their two minor
children, and Victim’s friend Jaime. Not knowing anything was amiss, Emili exited the
vehicle and approached the home in search of the cooler, calling Kelly again after
arriving. Victim stayed in the vehicle with Jaime and the two children.

{5} At some point between Kelly’s and Emili’s first and second phone calls,
Defendant went outside. Upon reentering the home, Defendant continued to protest
Victim coming to the property, telling Kelly that he did not want her son there and that
he did not want “any Kerns,” meaning any of her children, on the property. Emili was on
the phone with Kelly and overheard Defendant’s statements. Defendant then began
screaming into the phone and told Emili that she would “regret ever coming” to the
home. Recognizing Defendant was angry, Emili began walking away from the home
towards her vehicle, intending to leave. She ended the call with Kelly.

{6} Back inside the home, Defendant retrieved an AR-15 assault rifle. When Kelly
reached for his arm in an attempt to stop him from going outside, Defendant “shrugged
[her] off.” Defendant returned to the porch and opened fire as Emili continued to move
towards her vehicle. Victim only exited the vehicle after Defendant had fired several
shots. Victim crossed paths with Emili as she ran back to the vehicle, and Victim pushed
her behind him. Emili continued running to the vehicle. Victim then raised both of his
hands and said to Defendant, “We’re leaving.”

{7} Defendant continued to fire additional shots and, while Victim was ten to thirty
feet away from Defendant, two bullets fatally struck Victim in the chest and neck. In
total, Defendant fired nine shots, several of which also struck the front of Victim’s
vehicle. While on the phone with a 911 dispatcher, Emili asked Defendant what size
caliber the bullets were. Defendant responded “that’s none of your f***ing business” and
laughed. Later, while speaking to an officer on the scene, Defendant referred to Victim
and his family as “arrogant pricks” for coming onto the property despite his warnings.

{8} Defendant told police Victim had two things in his hands that Defendant was
unable to identify. It was later determined that Victim had an aluminum energy drink can
in one hand and a cell phone in the other. According to Defendant, Victim charged at
him. Defendant stated he was scared of being beaten up by Victim, who was taller and
younger than him.

{9} Defendant was arrested and charged with first-degree willful and deliberate
murder, two counts of abuse of a child, aggravated assault, and shooting at or from a
motor vehicle. During trial, Defendant requested that the jury be instructed on the lesser
included offenses of second-degree murder and voluntary manslaughter, as well as on
self-defense. The district court granted Defendant’s requested second-degree murder
instruction but denied Defendant’s requests for voluntary manslaughter and self-
defense instructions, concluding that there was insufficient evidence to support giving
either instruction. The jury convicted Defendant of first-degree murder, two counts of
child abuse not resulting in death or great bodily harm, aggravated assault, and
shooting at or from a motor vehicle. Defendant was sentenced to life in prison plus nine
years. Defendant timely appealed to this Court.

III. DISCUSSION

A. Sufficiency of the Evidence

{10} Defendant argues that there was insufficient evidence to establish the deliberate
intent necessary to sustain his first-degree murder conviction. Based on the evidence at
trial, the State argues a rational jury could reasonably find Defendant deliberately killed
Victim. We agree with the State.

1. Standard of review

{11} The sufficiency of the evidence is measured against the jury instructions, which
“become the law of the case.” State v. Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d
517 (internal quotation marks and citation omitted). Evidence is sufficient when
substantial evidence “‘exists to support a verdict of guilt beyond a reasonable doubt with
respect to every element essential to a conviction.’” State v. Duran, 2006-NMSC-035, ¶
5, 140 N.M. 94, 140 P.3d 515 (quoting State v. Sutphin, 1988-NMSC-031, ¶ 21, 107
N.M. 126, 753 P.2d 1314). “We view the evidence as a whole and indulge all
reasonable inferences in favor of the jury’s verdict.” State v. Graham, 2005-NMSC-004,
¶ 13, 137 N.M. 197, 109 P.3d 285. “Contrary evidence supporting acquittal does not
provide a basis for reversal because the jury is free to reject Defendant’s version of the
facts.” Duran, 2006-NMSC-035, ¶ 5 (internal quotation marks and citation omitted).
2. There was sufficient evidence to support the jury’s verdict

{12} To establish first-degree willful and deliberate murder under Section 30-2-1(A)(1),
the state must prove that the defendant killed another person and that the killing was
committed with deliberate intent. See UJI 14-201 NMRA. Deliberate means “arrived at
or determined upon as a result of careful thought and the weighing of the consideration
for and against the proposed course of action.” Id. For a killing to be deliberate, a
defendant “must weigh and consider the question of killing and his reasons for and
against such a choice.” Id. Although deliberate intent “may be arrived at in a short
period of time[, a] mere unconsidered and rash impulse, even though it includes an
intent to kill, is not a deliberate intention to kill.” Id.

{13} Taken together, the State presented sufficient evidence of deliberate intent
through evidence that Defendant (1) held animus towards Victim, (2) resisted Kelly’s
attempts to stop him from going outside with a gun, (3) fired warning shots toward Emili
and the vehicle, but specifically targeted Victim, and (4) expressed a lack of remorse
after killing Victim.

{14} Deliberate intent may be inferred from “the animus of the accused toward the
deceased.” State v. Smith, 1966-NMSC-128, ¶ 13, 76 N.M. 477, 416 P.2d 146; accord
State v. Guerra, 2012-NMSC-027, ¶ 29, 284 P.3d 1076 (quoting Smith to support its
reasoning that the defendant’s animus towards the victim was relevant to deliberate
intent). Animus may be evidenced by “circumstantial evidence of earlier confrontation,
threats, . . . or other common areas of friction leading to violence.” State v. Tafoya,
2012-NMSC-030, ¶ 52, 285 P.3d 604. Here, the State presented evidence of
Defendant’s animus towards Victim, showing that Defendant fired Victim after a
disagreement, spoke poorly about Victim to others, was irate that Kelly gave Victim
permission to pick up the cooler, and made a direct threat to Victim’s fiancée, Emili.

{15} Further evidence of deliberation may be inferred because Defendant ignored
Kelly’s attempts to stop him from going outside and shrugged her off when she reached
for his arm. Additionally, when Defendant exited the home, Defendant only shot Victim
and shot him multiple times despite firing a total of nine shots with multiple people in the
line of fire. See State v. Chavez, 2024-NMSC-023, ¶ 46, 562 P.3d 521. Lastly, the
evidence demonstrated deliberate intent because Defendant lacked remorse towards
Victim after the shooting based on his responses to Emili as she attempted to render aid
and his characterization of Victim as an “arrogant prick” to law enforcement. See
Guerra, 2012-NMSC-027, ¶ 29, 284 P.3d 1076 (inferring deliberate intent based on the
defendant’s lack of remorse evidenced by his statement, “I think I stabbed that fool
seven or eight times”); Duran, 2006-NMSC-035, ¶ 9 (recognizing a jury could infer
deliberate intent where the defendant stated that he “murdered some b*tch”).

{16} Based on the substantial evidence presented in this case showing that
Defendant deliberately intended to shoot Victim, we hold that sufficient evidence
supported the jury’s finding that Defendant was guilty of first-degree willful and
deliberate murder.
B. Challenges to the Jury Instructions

{17} Defendant argues that the district court erred in failing to instruct the jury on self-
defense, voluntary manslaughter, and defense of habitation. Whether a jury instruction
was properly denied is a mixed question of law and fact that this Court reviews de novo.
State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438. “‘When considering
a defendant’s requested instruction[], we view the evidence in the light most favorable to
the giving of the requested instruction[].’” State v. Boyett, 2008-NMSC-030, ¶ 12, 144
N.M. 184, 185 P.3d 355 (quoting State v. Contreras, 2007-NMCA-119, ¶ 8, 142 N.M.
518, 167 P.3d 966). The applicable standard of review depends on whether the issue
was preserved below. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d
1134. We review preserved challenges for reversible error and unpreserved challenges
for fundamental error. Id. “Under both standards we seek to determine whether a
reasonable juror would have been confused or misdirected by the jury instruction.” Id.
(internal quotation marks and citation omitted).

1. Preserved claims

{18} Defendant argues that the district court erred by not instructing the jury on self-
defense or on voluntary manslaughter. Defendant preserved this issue by requesting
jury instructions on self-defense and voluntary manslaughter. See State v. Jernigan,
2006-NMSC-003, ¶ 10, 139 N.M. 1, 127 P.3d 537. We therefore review these claims for
reversible error. Benally, 2001-NMSC-033, ¶ 12. Failure to give a requested instruction
amounts to reversible error when “a reasonable juror would have been confused or
misdirected” by the instruction actually given. State v. Parish, 1994-NMSC-073, ¶ 4, 118
N.M. 39, 878 P.2d 988. However, “[f]ailure to instruct the jury on a defendant's theory of
the case is reversible error only if the evidence at trial supported giving the instruction.”
Boyett, 2008-NMSC-030, ¶ 12.

a. Defendant was not entitled to a self-defense instruction

{19} Defendant asserts that the district court’s failure to instruct the jury on self-
defense amounted to reversible error because there was sufficient evidence to support
the instruction. The State argues that the “evidence presented at trial was insufficient to
merit a self-defense instruction.” We agree with the State and hold Defendant was not
entitled to an instruction on self-defense.

{20} A defendant is entitled to a self-defense instruction when there is sufficient
evidence “to allow reasonable minds to differ” as to each of the following elements: (1)
“the defendant was put in fear by an apparent danger of immediate death or great bodily
harm,” (2) “the killing resulted from that fear,” and (3) “the defendant acted as a
reasonable person would act under those circumstances.” State v. Lopez, 2000-NMSC-
003, ¶ 23, 128 N.M. 410, 993 P.2d 727 (internal quotation marks and citations omitted).
The first and second elements are subjective, requiring evidence that the defendant
feared immediate death or great bodily harm and acted out of that fear; the third
element is objective, requiring that the defendant’s fear and action were reasonable.
State v. Coffin, 1999-NMSC-038, ¶ 15, 128 N.M. 192, 991 P.2d 477.
{21} The evidence presented at trial was insufficient to establish that Defendant
subjectively feared death or great bodily harm or that the killing resulted from that fear.
To argue such fear existed, Defendant points to his statements to police that he did not
want Victim—who was younger and larger—to beat him up, that he saw Victim with
something in his hands, and that Victim “continued to charge him even after he fired
warning shots.” Our case law recognizes that the fear of a simple battery, such as
getting punched in the face or being beaten up, is not force that ordinarily results in
death or great bodily harm. See State v. Lucero, 2010-NMSC-011, ¶ 15, 147 N.M. 747,
228 P.3d 1167. Here, Defendant does not point to any evidence in the record to
establish that he feared anything beyond a simple battery. Additionally, a difference in
size, alone, cannot subjectively establish a fear of death or great bodily harm. See State
v. Duarte, 1996-NMCA-038, ¶ 10, 121 N.M. 553, 915 P.2d 309. Lastly, while Defendant
stated that Victim had “something” in his hands, there is no evidence that Defendant
believed the items were weapons or items capable of causing death or great bodily
harm. Therefore, when Victim “charged” at Defendant, there is no indication that
Defendant had the subjective belief that Victim posed a threat of death or great bodily
harm. Because there is insufficient evidence to support Defendant’s subjective fear,
there is similarly insufficient evidence to establish that the killing resulted from such fear.

{22} Further, there was insufficient evidence for a jury to find that Defendant acted as
a reasonable person would act under the circumstances. A defendant’s conduct is
objectively unreasonable when “the evidence was insufficient for the jury reasonably to
find that [the v]ictim threatened [the d]efendant with death or great bodily harm.” Lucero,
2010-NMSC-011, ¶¶ 15, 18; see also State v. Baroz, 2017-NMSC-030, ¶ 18, 404 P.3d
769 (holding the defendant did not act reasonably, in part, because there was no
evidence indicating the victim had any weapons). While we view the facts in the light
most favorable to giving the instruction, the undisputed facts reveal that Defendant
initiated the deadly confrontation and used deadly force when he faced no threat of
death or great bodily harm. Under the circumstances, no reasonable jury could find that
Defendant acted reasonably. Here, Defendant initially made a showing of deadly force
when he fired multiple “warning shots” while Victim was seated in his vehicle and
presented no threat to Defendant. When Victim did exit the vehicle, he was unarmed,
had his hands raised, and told Defendant, “We’re leaving.” Deadly force may only be
used if the defendant is threatened with death or great bodily harm. See Lucero, 2010-
NMSC-011, ¶ 15. Under these circumstances, no jury could find that Defendant
reasonably believed Victim had the opportunity or intent to use deadly force against
him. As a result, Defendant did not act reasonably in using an assault rifle to shoot and
kill Victim. Therefore, Defendant was not entitled to a self-defense instruction, and the
district court did not err in refusing to give the requested instruction.

b. Defendant was not entitled to a voluntary manslaughter instruction

{23} Defendant argues the district court committed reversible error by failing to
instruct the jury on voluntary manslaughter because Victim provoked Defendant by
“charging at [Defendant] after shots had been fired” and because Victim and Defendant
had previously been in an argument. The State argues that the evidence presented at
trial did not merit instruction on voluntary manslaughter because Defendant failed to
demonstrate adequate provocation. We agree with the State and hold there was
insufficient evidence to allow a reasonable jury to find Victim provoked Defendant.

{24} To convict on voluntary manslaughter, there must be “evidence that there was a
sudden quarrel [or] heat of passion at the time of the commission of the crime, to show
that the killing was the result of provocation sufficient to negate the presumption of
malice.” State v. Reynolds, 1982-NMSC-091, ¶ 8, 98 N.M. 527, 650 P.2d 811; see also
NMSA 1978, § 30-2-3(A) (1994) (defining voluntary manslaughter). “The general rule is
that, in order to reduce murder to manslaughter, the victim must have been the source
of the defendant’s provocation.” State v. Manus, 1979-NMSC-035, ¶ 16, 93 N.M. 95,
597 P.2d 280, overruled on other grounds by Sells v. State, 1982-NMSC-125, ¶ 9, 98
N.M. 786, 653 P.2d 162. Sufficient provocation is defined as “any action, conduct or
circumstances which arouse anger, rage, fear, sudden resentment, terror or other
extreme emotions.” UJI 14-222 NMRA. “The provocation must be such as would affect
the ability to reason and to cause a temporary loss of self control in an ordinary person
of average disposition.” Id. However, the provocation “is not sufficient if an ordinary
person would have cooled off before acting.” Id.

{25} Defendant fails to direct this Court to any evidence in the record establishing
Victim sufficiently provoked Defendant. “[T]he law does not permit one who intentionally
instigates an assault on another to then rely on the victim’s reasonable response to that
assault as evidence of provocation sufficient to mitigate the subsequent killing of the
victim from murder to manslaughter.” See State v. Gaitan, 2002-NMSC-007, ¶ 13, 131
N.M. 758, 42 P.3d 1207. Here, the evidence in the record reveals Defendant provoked
Victim to exit the vehicle when Defendant stood on his porch and fired a series of shots
from an assault rifle in the general direction of Victim’s fiancée. When Victim exited the
vehicle, Victim was unarmed, had his hands raised, and told Defendant that he and his
family were leaving. As Defendant fails to direct this Court to any evidence in the record
to establish Victim sufficiently provoked him, the district court did not err in refusing to
instruct the jury on voluntary manslaughter.

2. Unpreserved claim

{26} Defendant argues the district court erred by failing to instruct the jury on defense
of habitation. Defendant did not request an instruction on defense of habitation, so we
review his claim for fundamental error. Benally, 2001-NMSC-033, ¶ 12. Under this
standard, our inquiry remains “‘whether a reasonable juror would have been confused
or misdirected by the jury instruction.’” Id. ¶ 12 (quoting State v. Cunningham, 2000-
NMSC-009, ¶ 14, 128 N.M. 711, 998 P.2d 176). We first determine “whether an error
occurred” and, if so, “whether the error was fundamental.” State v. Silva, 2008-NMSC-
051, ¶ 11, 144 N.M. 815, 192 P.3d 1192. Error occurs only when there is sufficient
evidence at trial to support giving the instruction. Boyett, 2008-NMSC-030, ¶ 12.
“Fundamental error only applies in exceptional circumstances when guilt is so doubtful
that it would shock the judicial conscience to allow the conviction to stand.”
Cunningham, 2000-NMSC-009, ¶ 13 (internal quotation marks and citation omitted).

{27} Defendant argues that he was entitled to an instruction on defense of habitation
because he “reasonably could have believed [Victim] intended to commit a felony inside
[Defendant’s home].” The State disagrees and asserts that the evidence presented at
trial would not have entitled Defendant to a defense of habitation instruction, even if the
instruction had been requested. We agree with the State.

{28} “New Mexico caselaw is clear that an inhabitant of a dwelling is entitled to
significant latitude in the use of force in defense of habitation.” State v. Galindo, 2024-
NMSC-004, ¶ 22, 547 P.3d 112. But, “in every purported defense of habitation, the use
of deadly force is justified only if the defendant reasonably believed that the commission
of a felony in his or her home was immediately at hand and that it was necessary to kill
the intruder to prevent that occurrence.” Boyett, 2008-NMSC-030, ¶ 15. In this context,
a “felony” is “properly limited to those felonies involving violence.” Id. ¶ 21. A defendant
is entitled to a defense of habitation instruction if the evidence “is ‘sufficient to allow
reasonable minds to differ as to all elements of the offense.’” Id. ¶ 12 (quoting State v.
Gonzales, 2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162). The elements of
defense of habitation require a showing that (1) the place where the killing occurred
“was being used as the defendant’s dwelling,” (2) “[i]t appeared to the defendant that
the commission of [a violent felony] was immediately at hand and that it was necessary
to kill the intruder to prevent the commission of [a violent felony],” and (3) “[a]
reasonable person in the same circumstances as the defendant would have acted as
the defendant did.” UJI 14-5170 NMRA.

{29} It is uncontested that Defendant was using the home where the killing occurred
as a dwelling. Therefore, we limit our review to the second and third elements. Under
the second element, Defendant argues there was sufficient evidence for the jury to find
that “it appeared to [Defendant] that the commission of an aggravated battery was
immediately at hand,” specifically that Victim intended to batter Defendant and cause
great bodily harm.1 Defendant again bases his argument on the evidence showing that
Victim exited his vehicle with something in his hands, advanced towards Defendant, and
was ten to thirty feet away when Defendant shot and killed him. Based on Defendant’s
statements of his own subjective fear, a reasonable juror could find that Defendant
believed Victim would commit an act of violence against him as he stood on his porch.
However, this alone does not satisfy the second element. While defense of habitation
does not require that the intruder has actually entered the home, our caselaw
recognizes that an assault upon the home with the intent of entry is necessary. See
Boyett, 2008-NMSC-030, ¶¶ 16-17, 19. Defendant does not argue nor point to any
evidence in the record to establish he believed Victim intended to enter or intrude upon
the home. Additionally, Defendant points to no evidence in the record to support the
subjective belief that Victim intended to harm Victim’s mother or Defendant’s daughter
who were both still inside the home.

{30} Because there is no evidence to support Defendant’s subjective view that Victim
intended to enter the home and commit a violent felony therein, no objectively
reasonable person could infer that Victim intended to do so and, therefore, would not
act as Defendant did under the circumstances of this case. See id. ¶ 23 (holding the

1Defendant points to evidence that, prior to exiting the vehicle, Victim told his child that he was going to
“beat up” Defendant. However, Defendant does not argue nor point to evidence establishing that
Defendant was aware of this statement at the time he shot and killed Victim. Therefore, this evidence
does not assist Defendant in his claim. See UJI 14-5170 (“It appeared to the defendant that the
commission of [a violent felony] was immediately at hand . . . .” (emphasis added)).
defendant was not entitled to a defense of habitation instruction when there was “no
evidence reasonably tending to support the theory that [the v]ictim was attempting to
force entry at the time [the d]efendant killed her”). Here, Victim was not an intruder
because he was legally authorized to be on the property, made no attempt to enter the
home, only exited the vehicle after multiple shots had been fired, had his hands raised,
told Defendant that he was leaving, and was not armed with any weapons or tools to aid
in perpetrating violence or entering the home. Even when viewed in the light most
favorable to giving the instruction, it was unreasonable for Defendant to shoot Victim
multiple times when there was no evidence to support a subjective or objective
inference that Victim intended to intrude upon the home and commit a violent felony
therein. Therefore, the district court did not err in not instructing the jury on defense of
habitation.

{31} We hold the district court did not err in failing to instruct the jury on self-defense,
voluntary manslaughter, or defense of habitation. Because we hold Defendant’s
challenges to the jury instructions are without merit, there is no cumulative error. See
State v. Saiz, 2008-NMSC-048, ¶ 66, 144 N.M. 663, 191 P.3d 521 (“[W]here there is no
error to accumulate, there can be no cumulative error.”), overruled on other grounds by
State v. Belanger, 2009-NMSC-025, ¶ 36 & n.1, 146 N.M. 357, 210 P.3d 783.

C. Ineffective Assistance of Counsel

{32} Defendant argues his counsel was ineffective because counsel failed to request
an instruction on defense of habitation. To establish ineffective assistance of counsel,
Defendant must demonstrate that “‘counsel’s performance was deficient’” and that “‘the
deficient performance prejudiced the defense.’” State v. Paredez, 2004-NMSC-036, ¶
13, 136 N.M. 533, 101 P.3d 799 (quoting Strickland v. Washington, 466 U.S. 668, 687
(1984)). To establish deficient performance, Defendant must prove counsel “did not
exercise the skill of a reasonably competent attorney.” Duncan v. Kerby, 1993-NMSC-
011, ¶ 10, 115 N.M. 344, 851 P.2d 466. To prove he was prejudiced by counsel’s
deficient performance, Defendant must show that “‘there is a reasonable probability
that, but for counsel’s professional errors, the result of the proceeding would have been
different.’” State v. Trammell, 2016-NMSC-030, ¶ 23, 387 P.3d 220 (quoting Strickland,
466 U.S. at 694). “‘Failure to prove either prong of the test defeats a claim of ineffective
assistance of counsel.’” Guerra, 2012-NMSC-027, ¶ 23 (quoting State v. Reyes, 2002-
NMSC-024, ¶ 48, 132 N.M. 576, 52 P.3d 948).

{33} As explained above, the district court did not err in not instructing the jury on
defense of habitation. Accordingly, counsel did not fail to “exercise the skill of a
reasonably competent attorney” in not suggesting an instruction that was not supported
by the evidence. See Kerby, 1993-NMSC-011, ¶ 10. Therefore, Defendant’s claim
asserting ineffective assistance of counsel fails.

IV. CONCLUSION

{34} For the reasons stated above, we affirm Defendant’s conviction.

{35} IT IS SO ORDERED.
BRIANA H. ZAMORA, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

JULIE J. VARGAS, Justice