State v. Salazar

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
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: May 7, 2026

No. S-1-SC-40696

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

DAVID SALAZAR,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
George P. Eichwald, District Judge

Bennett J. Baur, Chief Public Defender
Anne T. Amicarella, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Raúl Torrez, Attorney General
Santa Fe, NM
Serena R. Wheaton, Assistant Solicitor General
Albuquerque, NM

for Appellee

DECISION

THOMSON, Justice.

{1} Defendant David Salazar was convicted of willful and deliberate first degree
murder and tampering with evidence. See NMSA 1978, § 30-2-1(A)(1) (1994); NMSA
1978, § 30-22-5 (2003). Defendant argues his murder conviction should be reversed
and remanded for a new trial because the district court committed reversible error by
denying his request for jury instructions on mistake of fact and inability to form
deliberate intent based on mental disease or disorder.

{2} We conclude that the mistake-of-fact instruction was properly denied because (1)
the alleged mistake of fact would not negate the mental state for first degree murder
and the sufficient provocation instruction adequately instructed the jury on mistake
through the instruction on sufficient provocation, (2) the inability to form deliberate intent
instruction was properly denied because nothing in evidence indicated Defendant’s grief
affected his ability to form intent, and (3) there was no cumulative error. The legal
issues underlying this case have been previously decided by New Mexico appellate
courts, so we exercise our authority to affirm the conviction by nonprecedential decision.
See Rule 12-405(B)(1) NMRA.

I. BACKGROUND

{3} Defendant, whose ex-wife and oldest son had recently died, lived with his
younger son on property owned by Defendant’s uncle, who rented out cabins and other
residences on the property. Victim Joseph Keleher lived in a cabin on the property and
worked as a teacher in Jemez Valley schools, which Defendant’s son attended.
According to witness testimony, on the morning of the murder Defendant was driving
erratically up and down the gravel road running across the property. Around 10:30 that
morning, a neighbor reported hearing two “pops.” Deputy Valencia from the Sandoval
County Sheriff’s Office was dispatched to the property in response to a possible
shooting.

{4} Upon arrival, Deputy Valencia encountered Defendant and asked, “What’s going
on?” Defendant initially told her there was a man “laying down” in a nearby cabin, but he
eventually revealed that the man was a teacher from the local school and that he was
dead. He later told the Deputy that he shot Victim because he just found out that Victim
was sexually abusing his son.

{5} Defendant’s son was subsequently given a safehouse interview, where he
maintained that he had not been sexually abused by Victim and knew Victim was a
teacher but did not actually know him. The son testified that he did not know Victim
beyond seeing him around school or across the road. Other investigations likewise did
not indicate Victim had any history of committing sexual abuse.

{6} Defendant was charged with an open count of murder and tampering with
evidence. At trial, Defendant advanced the following theories: (1) that his grief over
losing two loved ones rendered him unable to form the deliberate intent required for first
degree murder, and (2) even if he was mistaken about his son being molested, the
mistake was sufficient provocation to reduce second degree murder to manslaughter.
Accordingly, Defendant requested jury instructions on inability to form specific intent due
to mental disease or disorder and mistake of fact. The district court denied both
requests for lack of evidence. The jury was instructed on first degree deliberate intent
murder, second degree murder, and voluntary manslaughter. Importantly, the jury was
instructed that circumstances that aroused sudden anger, rage, or other extreme
emotions could be sufficient provocation to reduce second degree murder to voluntary
manslaughter. The jury found Defendant guilty of first degree, willful and deliberate
murder.

{7} Defendant now appeals his murder conviction directly to this Court, arguing that
the denial of the requested jury instructions was reversible error. See N.M. Const. art.
VI, § 2 (providing that capital appeals shall be made directly to the Supreme Court). We
disagree and affirm the district court.

II. DISCUSSION

{8} “‘The propriety of denying a jury instruction is a mixed question of law and fact
that we review de novo.’” State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185
P.3d 355 (quoting State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438).
“‘When considering a defendant’s requested instructions, we view the evidence in the
light most favorable to the giving of the requested instruction[s].’” Id. (alteration in
original) (quoting State v. Contreras, 2007-NMCA-119, ¶ 8, 142 N.M. 518, 167 P.3d
966). “‘[A] defendant is entitled to an instruction as to any recognized defense for which
there exists evidence sufficient for a reasonable jury to find in [their] favor.’” Gaines,
2001-NMSC-036, ¶ 6 (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)).

A. Mistake-of-Fact Instruction

{9} “A defendant is entitled to have the jury instructed on [their] theory of the case if
that theory is supported by the evidence.” State v. Nieto, 2000-NMSC-031, ¶ 15, 129
N.M. 688, 12 P.3d 442. To warrant a mistake-of-fact instruction, there must be evidence
of a mistake of fact that, if true, would negate the required intent of the crime charged.
See State v. Apodaca, 2025-NMSC-015, ¶ 21, 572 P.3d 913.

{10} Defendant was charged with an open count of murder. Under New Mexico law,
the molestation of a family member does not negate deliberate intent or otherwise serve
as a defense to first degree murder. See generally NMSA 1978, §§ 30-2-1 to -7 (1963,
as amended through 2021). Therefore, Defendant’s mistake of fact, if true, would not
have negated the required intent for first degree murder, and the district court did not err
in rejecting the instruction as it pertains to first degree murder.

{11} Defendant argues that the instruction was still warranted because molestation of
a family member may serve as sufficient provocation to reduce second degree murder
to manslaughter. See State v. Munoz, 1992-NMCA-004, ¶¶ 12-14, 113 N.M. 489, 827
P.2d 1303 (holding a reasonable jury could find that the revelation that the defendant’s
wife had been repeatedly sexually abused by her step father was sufficient
provocation). While Defendant is correct that mistake of fact may serve as sufficient
provocation, a “trial court need not give a mistake of fact instruction where the intent
element of the crime is adequately defined by the other instructions given by the trial
court.” State v. Bunce, 1993-NMSC-057, ¶ 9, 116 N.M. 284, 861 P.2d 965. Where a
given instruction “allows and is consistent with mistaken belief,” a defendant is not
entitled to a mistake-of-fact instruction. See State v. Venegas, 1981-NMSC-047, ¶¶ 8-9,
96 N.M. 61, 628 P.2d 306.

{12} The jury was instructed that second degree murder could be reduced to voluntary
manslaughter if Defendant acted as a result of sufficient provocation. A separate
instruction defined “sufficient provocation” as “any action, conduct, or circumstances
which arouse anger, rage, fear, sudden resentment, terror, or other extreme emotions.”
The jury was therefore permitted to consider Defendant’s theory that his mistake of fact
caused extreme emotions resulting in a temporary loss of self-control during which
Defendant shot Victim. The mistake-of-fact theory was thus subsumed by the sufficient
provocation instruction.

{13} The given instructions allowed and were consistent with Defendant’s mistake-of-
fact theory. Defendant was not entitled to an additional, more-specific instruction. See
State v. Beal, 1974-NMCA-054, ¶ 6, 86 N.M. 335, 524 P.2d 198 (citing State v.
Rushing, 1973-NMSC-092, ¶¶ 18-19, 85 N.M. 540, 514 P.2d 297) (holding that “where
other instructions adequately cover the law refusal to give a separate instruction is not
error”). We note that the district court rejected the mistake-of-fact instruction based on
lack of evidence, but the end result of its ruling was correct, so we find no error. See
Boyett, 2008-NMSC-030, ¶ 25 (finding no error and affirming where, “[a]lthough the trial
court erred in its reasons for denying the instruction, the end result of its ruling was
correct”).

B. Inability to Form Deliberate Intent Due to Mental Disease or Disorder
Instruction

{14} When an inability to form specific intent defense is based on a mental disease or
disorder, an instruction “is proper only when there is evidence that reasonably tends to
show that the defendant’s claimed mental disease or disorder rendered the defendant
incapable of forming specific intent at the time of the offense.” State v. Balderama,
2004-NMSC-008, ¶ 38, 135 N.M. 329, 88 P.3d 845. The district court must determine
whether sufficient evidence exists to give the instruction, but it may not weigh the
evidence. State v. Privett, 1986-NMSC-025, ¶ 20, 104 N.M. 79, 717 P.2d 55.

{15} Evidence of a mental disease or disorder alone is insufficient to warrant the
instruction. See Boyett, 2008-NMSC-030, ¶ 30. Instead, the evidence must tie the
mental condition to an inability to form specific intent at the time of the crime. Id. Expert
testimony is not required to make this connection if “the alleged cause of the
defendant’s inability to form specific intent is within the realm of common knowledge
and experience.” Id. ¶ 28 (citing Privett, 1986-NMSC-025, ¶ 20 (holding that intoxication
was within the realm of common knowledge and experience)).

{16} At trial, the State opposed Defendant’s proposed instruction, arguing that there
was insufficient evidence to support an instruction on inability to form deliberate intent
due to mental disease or disorder. The parties also addressed whether expert testimony
was required to justify the proposed instruction. The district court denied the instruction,
citing insufficient evidence. On appeal, Defendant argues that no expert testimony is
required for this instruction because it is commonly understood that grief “may affect
one’s ability to process information and to exercise judgment.” The State argues that
“Defendant’s grief was never tied to an inability to form deliberate intent.” While we
agree with Defendant that expert testimony is not always required for this instruction, we
need not reach whether it was required in this instance because nothing in evidence ties
Defendant’s grief to an inability to form the requisite intent. On this point, State v.
Boyett, 2008-NMSC-030, is particularly instructive.

{17} In Boyett, the defendant requested an instruction on inability to form specific
intent due to mental disease or disorder, but the only evidence of the defendant’s
mental disorder was the defendant’s testimony describing his organic brain damage. Id.
¶ 30. The district court denied the instruction because no expert witness testified to the
brain damage. Id. ¶ 26. On appeal, this Court did not take issue with the absence of an
expert. Instead, the Court held the instruction was properly denied because “[n]either
[the d]efendant nor any other witness testified about how those facts showed [the
defendant] was unable to form the requisite intent at the time of the offense.” Id. ¶ 30.
Thus, mere evidence of brain damage was insufficient where the evidence did not
indicate an inability to form intent.

{18} Defendant points to the following as sufficient evidence to warrant the instruction:
(1) Defendant’s statement to Deputy Valencia that his son’s mother had just died, (2)
testimony that Defendant was driving erratically, (3) testimony that Defendant’s ex-wife
and eldest son had recently died, and (4) Defendant’s recorded statement that he was
“out of [his] mind” the day of the murder. None of this evidence links Defendant’s grief to
his ability to form a specific intent at the time of the murder.

{19} Defendant’s statement to Deputy Valencia that his ex-wife had just died was not
made as an explanation for his behavior—it was made in response to the Deputy’s
question about whether Defendant’s son could stay with his mother, given that
Defendant was under arrest. Defendant made no other statements to the Deputy about
his ex-wife nor did he indicate any feelings of loss or grief regarding her passing.

{20} Defendant’s neighbor testified that Defendant was driving in loops around the
area and revving his engine loudly on the morning of the murder. The witness testified
that Defendant always drove that way, but it was “more erratic than usual” so she called
the property owner to complain. No testimony tied the erratic driving to the deaths of
Defendant’s ex-wife and son.

{21} On cross-examination, defense counsel asked multiple witnesses if they knew
Defendant had recently lost his ex-wife and son. In all instances, defense counsel then
moved on to other topics after asking about the deaths—neither inquiring about whether
Defendant appeared to be grieving nor whether the losses led to a change in behavior.
Thus, to arrive at the conclusion that Defendant was grieving, the jury would have to
make an inference based on evidence of the recent deaths in his life. There was no
additional evidence from which to make an additional inference that any grief Defendant
was experiencing was so severe that he could not reason or formulate a specific intent
to kill someone. See State v. Slade, 2014-NMCA-088, ¶ 14, 331 P.3d 930 (noting that
“[a]n ultimate inference may not be based on a series of inferences”).

{22} Defendant’s statement that he was “out of [his] mind” also does not link any
inferred grief to an inability to form intent. He made the statement during a recorded
meeting with his mother and daughter as they discussed whether he had confessed to
murder. When they told him he had admitted to first degree murder, he responded that
he was “out of [his] mind” to have done that. At no point in this conversation did
Defendant, his mother, or his daughter mention the deaths of his ex-wife and oldest son
or discuss how Defendant felt the day of the killing. On cross examination, defense
counsel did not ask the daughter any questions about the statement or attempt to
connect it to Defendant’s grief.

{23} The evidence pointed to by Defendant in support of the instruction may permit an
inference of grief, but evidence of a mental condition alone is insufficient to warrant the
instruction. Defendant must also have provided evidence that “reasonably tends to
show” that his grief rendered him “incapable of forming specific intent at the time of the
offense.” Balderama, 2004-NMSC-008, ¶ 38. Defendant failed to do so. Accordingly,
there was insufficient evidence to grant the instruction, and the instruction was properly
denied.

C. Cumulative Error

{24} “The doctrine of cumulative error applies when multiple errors, which by
themselves do not constitute reversible error, are so serious in the aggregate that they
cumulatively deprive the defendant of a fair trial.” State v. Carrillo, 2017-NMSC-023, ¶
53, 399 P.3d 367. But where “the district court did not err, there can be no cumulative
error.” State v. Veleta, 2023-NMSC-024, ¶ 43, 538 P.3d 51. Having found the district
court did not err in denying either requested instruction, there can be no cumulative
error here.

III. CONCLUSION

{25} We therefore affirm Defendant’s conviction for willful and deliberate first degree
murder.

{26} IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

JULIE J. VARGAS, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice
BRIANA H. ZAMORA, Justice