{ "id": 3783861, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jerry CARRASCO, Defendant-Appellant", "name_abbreviation": "State v. Carrasco", "decision_date": "2007-10-03", "docket_number": "No. 25,669", "first_page": "62", "last_page": "66", "citations": [ { "type": "official", "cite": "143 N.M. 62" }, { "type": "parallel", "cite": "172 P.3d 611" }, { "type": "parallel", "cite": "2007-NMCA-152" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1998-NMCA-167", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827359 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/126/0377-01" ] }, { "cite": "2004-NMCA-042", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428010 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0408-01" ] }, { "cite": "2004-NMCA-104", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224649 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0240-01" ] }, { "cite": "1999-NMCA-138", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106479 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 11-13" }, { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0263-01" ] }, { "cite": "2006-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2545160 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0001-01" ] }, { "cite": "103 N.M. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711354 ], "weight": 6, "pin_cites": [ { "page": "370" }, { "page": "1180" }, { "page": "370" }, { "page": "1180" }, { "page": "368-70" }, { "page": "1178-80" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0364-01" ] } ], "analysis": { "cardinality": 599, "char_count": 13478, "ocr_confidence": 0.686, "pagerank": { "raw": 4.292217809909693e-08, "percentile": 0.27076346922156463 }, "sha256": "558485957c1bb007879576898299b02e1d13303ae5b8017ae1bf185784508063", "simhash": "1:a9b06a0f5a866cf3", "word_count": 2268 }, "last_updated": "2023-07-14T16:34:50.796486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and IRA ROBINSON, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Jerry CARRASCO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} Defendant Jerry Carrasco appeals his conviction of attempted second degree murder. He argues that fundamental error occurred because the jury convicted him on the theory that he intended to cause an unintended result, resulting in his conviction of the legally inadequate charge of attempted second degree reckless, unintentional murder. We conclude that the instruction to the jury that Defendant must have intended to commit the crime of second degree murder to be guilty of attempted second degree murder enabled the jury to properly reach its verdict in this case. We therefore affirm.\nBACKGROUND\n{2} On March 13, 2004, Defendant telephoned his ex-wife at her employment at a car dealership. She was busy. When he later came to the dealership, she was again busy and would not talk to him. He followed her inside, and she still would not talk to him. Someone at the dealership called the police, who arrived after Defendant had left. Later that day, when Defendant\u2019s ex-wife was driving home from work, she saw Defendant on the road as a passenger in a friend\u2019s car, a Nissan Maxima. She was driving a four-door Lincoln LS. She was stopped at a traffic light when the other car approached. Defendant got out of the Nissan and approached the passenger side of the Lincoln. Defendant\u2019s ex-wife testified that he wanted her to open the passenger door, but she would not. He went around to the driver\u2019s side, the light turned green, and she left.\n{3} When Defendant\u2019s ex-wife next saw the Nissan, it was behind her on Texas Street. Defendant was driving. She saw the Nissan in her rear-view mirror. It hit the rear of her Lincoln three times. After the first time, Defendant\u2019s ex-wife dialed 9-1-1 on her cell phone. Defendant\u2019s ex-wife testified that the third time she was hit, she lost control of the ear, went onto some gravel, and lost consciousness.\n{4} A witness testified that he observed a Lincoln speed past him while he was stopped for a stop sign on Texas Street. He saw a Nissan behind the Lincoln push the Lincoln into a wall. The Lincoln hit the wall on its passenger side, rolled into the middle of the street, and came to a complete stop. At that time, the driver of the Nissan also came to a complete stop, turned around, drove around the witness\u2019s car at the stop sign, and accelerated into the driver\u2019s side of the Lincoln. The witness then observed the driver of the Nissan go to the Lincoln, open the passenger door, and flee the scene. The witness assisted Defendant\u2019s ex-wife, who, after the police were called, was transported to the hospital, where she remained for about two hours. She did not sustain any serious injury.\n{5} Defendant testified that he loved his ex-wife, with whom he was reunited at the time of trial. He stated that he bumped the rear of the Lincoln so that his ex-wife would stop. He testified that he hit the Lincoln in order to tear up the car so that \u201cwe wouldn\u2019t have to mess with the ear no more.\u201d He claimed that he did not try to kill her.\nATTEMPTED SECOND DEGREE MURDER\n{6} Second degree murder is the killing of a person, without sufficient provocation, lawful justification or excuse, and in the absence of a sudden quarrel or the heat of passion, with the knowledge that one\u2019s acts created \u201ca strong probability of death or great bodily harm\u201d to the person killed or another. NMSA 1978, \u00a7 30-2-KB) (1994); see also UJI 14-211 NMRA. It can be committed either intentionally or unintentionally. See State v. Johnson, 103 N.M. 364, 370, 707 P.2d 1174, 1180 (Ct.App.1985) (stating that the definition of second degree murder does not exclude intentional killing). Although it is generally considered a general intent crime, in limited circumstances it can be treated as a specific intent crime. See State v. Jernigan, 2006-NMSC-003, \u00b6 18, 139 N.M. 1, 127 P.3d 537; see also Johnson, 103 N.M. at 370, 707 P.2d at 1180.\n{7} Attempt to commit a felony is the commission of \u201can overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission.\u201d NMSA 1978, \u00a7 30-28-1 (1963). It is a specific intent crime. Jernigan, 2006-NMSC-003, \u00b6 18, 139 N.M. 1, 127 P.3d 537. Attempted second degree murder, however, is not a valid crime in all circumstances because second degree murder can be committed either intentionally or unintentionally. See Johnson, 103 N.M. at 368-70, 707 P.2d at 1178-80. When second degree murder is committed as a general intent crime, it requires that the defendant kill the victim with the knowledge that the defendant\u2019s acts \u201ccreate a strong probability of death or great bodily harm.\u201d Section 30-2-l(B). As a general intent crime, it does not require an intent to kill; a reckless killing satisfies the statutory requirements. Defendant contends that the prospect that the jury could have convicted him of attempted second degree murder without determining that he acted with an intent to kill requires reversal of his conviction. We agree with Defendant that if the jury could have found him guilty of attempted second degree murder without determining that he intended to kill his ex-wife, it could have convicted him of an attempt to commit reckless or unintentional second degree murder, a crime that does not exist.\nJURY INSTRUCTIONS ON ATTEMPTED SECOND DEGREE MURDER\n{8} To determine whether the jury could have convicted Defendant of a legally inadequate crime, we look to the manner in which the district court instructed the jury. See State v. Perea, 1999-NMCA-138, \u00b6\u00b6 11-13, 128 N.M. 263, 992 P.2d 276 (examining jury instructions to determine whether the defendant could have been convicted \u201con a legally inadequate basis\u201d). Defendant contends that the district court did not properly instruct the jury because it did not instruct that the jury had to find that Defendant intended to kill his ex-wife in order to return a guilty verdict on the attempted second degree murder charge. Because Defendant did not request such an instruction, we review for fundamental error. We conduct such review under a de novo standard. State v. Marshall, 2004-NMCA-104, \u00b6 6, 136 N.M. 240, 96 P.3d 801. Fundamental error can result from an omission in jury instructions if the omission confuses or misdirects a reasonable juror. State v. Gee, 2004-NMCA-042, \u00b6 8, 135 N.M. 408, 89 P.3d 80. Confusion that could cause a jury to convict a defendant of a legally inadequate crime constitutes fundamental error. Perea, 1999-NMCA-138, \u00b6 13, 128 N.M. 263, 992 P.2d 276.\n{9} The district court instructed the jury on attempted second degree murder using the uniform jury instructions as follows:\nINSTRUCTION NO. 6\nFor you to find the defendant guilty of an attempt to commit the crime of second degree murder the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n1. The defendant intended to commit the crime of second degree murder;\n2. The defendant began to do an act which constituted a substantial part of second degree murder but failed to commit second degree murder;\n3. This happened in New Mexico on or about the 13th day of March, 2004.\nINSTRUCTION NO. 7\nIn New Mexico, the elements of the crime of second degree murder are as follows:\n1. The defendant killed Rebecca Carrasco;\n2. The defendant knew that his acts created a strong probability of death or great bodily harm to Rebecca Carrasco[.]\n{10} Under the facts of this case, we do not believe that the jury could have been confused to the point of fundamental error based on these instructions. Instruction No. 6 required the jury to find that Defendant intended to commit the crime of second degree murder in order to return a guilty verdict. Under Instruction No. 7, the district court instructed the jury on the elements of second degree murder. Thus, the jury was required to address the elements of second degree murder and determine whether Defendant intended to commit them. The first element listed in Instruction No. 7 is that \u201c[t]he defendant killed\u201d his ex-wife. Although it would not have been necessary for the jury to find that Defendant intended to kill his ex-wife to convict him of second degree murder, Instruction Nos. 6 and 7, when read together, required such a finding to convict him of the attempt charge. Because Defendant had to intend to commit the crime of second degree murder, he had to intend to kill his ex-wife in order to be convicted of the attempt. The second element of second degree murder in Instruction No. 7 concerns Defendant\u2019s knowledge of the consequences of his acts. Thus, when we read Instruction Nos. 6 and 7 together, the jury could have found Defendant guilty of the attempt charge only if he intended to kill his ex-wife, acted with the requisite knowledge, and began to do the acts, but failed to commit the crime. The basis for the attempt charge, and the reason he would have failed to complete the crime, is that he failed to kill his ex-wife.\n{11} Defendant makes various arguments to undermine the effect of these instructions. In his brief in chief, Defendant contends that at trial the State relied exclusively on a theory of an attempt to commit reckless unintentional murder.\n{12} In closing, the prosecutor argued specifically that Defendant \u201cattempted to kill his ex-wife. He failed in the commission, but he intended to commit that act, and I would ask you to find him guilty of that crime.\u201d Defense counsel, in closing, characterized the State\u2019s argument.\nThis case is a simple question. What was in that man\u2019s mind right there? What was he \u2014 what was in his mind? [The State] want[s] you to bite the apple that he was intending to kill Rebecca Carrasco. That\u2019s the issue. He was intending to take this woman\u2019s life on that night. That was his intent.\nDefense counsel argued that Defendant did not intend to kill his ex-wife. In rebuttal, the prosecutor restated Defendant\u2019s acts and again argued, \u2018What does he intend? Intends to kill her. That\u2019s what he tried to do, and he missed.\u201d\n{13} Although the State was seeking to convict Defendant of alternative charges of attempted first degree and second degree murder, it consistently maintained to the jury that Defendant intended to kill his ex-wife, regardless of the charge it discussed. As Defendant indicates, the prosecutor specifically asked the jury in closing \u201cto take a careful look at the jury instructions. Make certain you understand them.\u201d But we do not read into this argument, as Defendant suggests, that the jury could convict Defendant without finding an intent to Mil. Nor do we believe that the prosecutor\u2019s argument to the district court out of the jury\u2019s presence in response to Defendant\u2019s motion for directed verdict indicates jury confusion. At no time did the prosecutor argue, or intimate, to the jury that the jury could convict Defendant of attempted second degree murder based on a reckless or unintentional standard.\n{14} In his reply brief, Defendant points to the difference in the intent requirements of first and second degree murder to contend that the State never distinguished between the deliberate intent required for first degree and the specific intent required for second degree. However, the jury instruction explaining the elements of first degree murder, in conformance with the uniform jury instructions, specifically addresses this distinction. UJI 14-201 NMRA. The prosecutor did not have a particular responsibility to explain the distinction in closing.\n{15} We lastly address Defendant\u2019s reliance on State v. Hernandez, 1998-NMCA-167, 126 N.M. 377, 970 P.2d 149. In Hernandez, we reversed convictions of attempted first degree murder and remanded for a new trial. Id. \u00b6 20. We noted that, on remand, a conviction could not be sustained if it were based only on a finding that the defendant \u201cknew that his acts created a strong probability of death or great bodily harm.\u201d Id. \u00b6 16 (internal quotation marks and citation omitted). We stated that a modification of the UJI for second degree murder would be necessary to state the requirement of specific intent. Id. In that dicta, we sought to give guidance to the district court for a new trial. We were not, as we are in this case, reviewing a conviction after a jury verdict for fundamental error. Indeed, the district court in this case could have given an instruction as contemplated in Hernandez. If such an instruction had been requested and denied, we would be viewing this case under a different standard. However, under fundamental error review, we conclude that the jury instructions adequately informed the jury of the issue of intent before it. We believe that, given the way in which the issue was framed in this case, a reasonable juror could have followed the jury instructions and would not have been confused or misdirected as to the instructions. See Gee, 2004-NMCA-042, \u00b6 8, 135 N.M. 408, 89 P.3d 80.\nCONCLUSION\n{16} We affirm the judgment and sentence of the district court.\n{17} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and IRA ROBINSON, Judges.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.", "John Bigelow, Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2007-NMCA-152\n172 P.3d 611\nSTATE of New Mexico, Plaintiff-Appellee, v. Jerry CARRASCO, Defendant-Appellant.\nNo. 25,669.\nCourt of Appeals of New Mexico.\nOct. 3, 2007.\nCertiorari Granted, No. 30,723, Nov. 20, 2007.\nGary K. King, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.\nJohn Bigelow, Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0062-01", "first_page_order": 98, "last_page_order": 102 }