State v. Candelaria

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:

3 Filing Date: December 13, 2018

4 NO. S-1-SC-35887

5 STATE OF NEW MEXICO

6 Plaintiff-Appellee,

7 v.

8 DAVID CANDELARIA,

9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Jacqueline Flores, District Judge

12 John A. McCall
13 Law Works, LLC
14 Albuquerque, NM

15 for Appellant

16 Hector H. Balderas, Attorney General
17 Maris Veidemanis, Assistant Attorney General
18 Santa Fe, NM

19 for Appellee
 1 OPINION

2 VIGIL, Justice.

3 {1} This case stems from the tragic death of an innocent eight-year-old child as a

4 result of a violent confrontation between two groups of men. Consequently, a jury

5 convicted David Candelaria (Defendant) of first-degree depraved mind murder, two

6 counts of shooting at or from a motor vehicle, and three counts of aggravated assault.

7 One count of shooting at or from a motor vehicle was later vacated on double

8 jeopardy grounds. The district court sentenced Defendant to life in prison plus nine

9 years. Defendant now appeals his convictions for depraved mind murder and

10 aggravated assault and asks this Court to vacate the convictions or order a new trial.

11 For the reasons set forth below, we affirm Defendant’s convictions and deny the relief

12 requested.

13 I. BACKGROUND

14 {2} On the morning of May 31, 2013, Defendant and his son, David Candelaria, Jr.

15 (David Jr.), went to the home of Richard Turrieta, Sr. (Richard Sr.) on the west side

16 of Albuquerque. Defendant and Richard Sr. had been close friends since high school.

17 Sometime later that afternoon, the group—Defendant, David Jr., Richard Sr., and

18 Richard Turrieta, Jr. (Richard Jr.)—left Richard Sr.’s house and drove to Nine Mile

19 Hill, west of Albuquerque, to take Defendant’s truck “four-wheeling.” Defendant’s
 1 truck got stuck in the sand and could not be freed, so the group started walking back

2 to town. A nearby resident gave them a ride to Coors Boulevard and Bridge

3 Boulevard, where the group began walking east of Coors toward the Alamosa

4 Community Center (community center). Richard Sr. testified that as the group was

5 walking north to Gonzales Road, a vehicle, later determined to be driven by Rudy

6 Chavez Montoya (Rudy), which was also traveling north towards Gonzales Road,

7 pulled close to the curb and stopped a few feet away from Defendant’s group.

8 According to Richard Sr., Richard Sr. asked Rudy for a ride and Rudy cursed at him,

9 made a quick u-turn, and tried to run the group down as the group was walking on

10 Airport Drive, the road that goes into the community center. Rudy, on the other hand,

11 testified that he was headed toward the community center on Airport Drive to pick

12 up some friends when he encountered the group “blocking the road.” He explained

13 that the group was walking in the middle of the road, away from the community

14 center. He said the group approached him and asked him for a ride, and Rudy

15 responded that he could not give the group a ride because he was picking up friends

16 and his vehicle was full. Rudy testified that Defendant’s group was “mad” when Rudy

17 refused to pick them up. David Jr. testified that Rudy spoke to the group saying, “You

18 guys look familiar,” to which Richard Jr. replied, “Don’t act hard.” Witness testimony

2
 1 differed as to the actual words exchanged by the parties and whether Rudy attempted

2 to run over Defendant’s group during this first encounter. According to Richard Sr.,

3 approximately twenty minutes passed before his group encountered Rudy again.

4 {3} Rudy proceeded to the community center where he picked up his friend, Troy

5 Fontanelle (Troy), Troy’s younger brother Logan Fontanelle (Logan), and Troy’s

6 eight-year-old daughter, Sunni Reza (Sunni). Rudy sat in the driver’s seat, Logan in

7 the front passenger seat, Troy in the back seat behind Logan, and Sunni in the back

8 middle seat beside Troy. Logan testified that Rudy told them about the incident with

9 Defendant’s group after Rudy picked up Logan and the others. Rudy and his

10 passengers then headed north on Airport Drive toward Gonzales Road to pick up

11 Rudy’s daughter at his sister’s house at 60th Street and Gonzales Road. Rudy testified

12 that when he turned right onto Gonzales Road, Defendant’s group jumped into the

13 road, causing Rudy to stop his vehicle. Logan testified that Defendant’s group was

14 about a half a block away, but was walking toward them. Richard Sr. testified that the

15 driver stopped on Gonzales Road; and according to Richard Jr., the vehicle was about

16 eighty to one hundred yards away from Defendant’s group. Logan testified that he

17 was seated in the front passenger seat of Rudy’s vehicle and could hear Defendant’s

18 group yelling at them. He testified that he got out of Rudy’s vehicle and said, “Why

3
 1 are you guys trying to jump my friend?” Rudy told the police that Logan had also

2 asked Defendant’s group if the group wanted to fight. Rudy testified that after Logan

3 got out of the vehicle someone in Defendant’s group started shooting. Logan testified

4 that he heard gunshots and then saw one bullet hit the ground in front of him when

5 he was standing outside Rudy’s vehicle. He said he then jumped in the vehicle and

6 at that point the next shot came through the windshield. This was the shot that hit

7 Sunni. Rudy testified that he tried to run over Defendant’s group with his vehicle

8 after the group started shooting, but the group ran into an alley. He said that during

9 the shooting he turned the vehicle around to avoid the bullets, headed towards Coors

10 Boulevard, and realized that Sunni had been shot. Rudy drove Sunni to a nearby fire

11 station for assistance and the fire department then took Sunni to the hospital. Sunni

12 died of a gunshot wound to the forehead.

13 {4} David Jr. testified that a person got out of Rudy’s vehicle on the passenger side

14 and he thought someone in the vehicle “possibly” had “a handgun or a rifle,” but they

15 were a “hundred yards out” and he “couldn’t get a clear description of what it was.”

16 When police asked David Jr. who fired the shots, however, he said, “I’m pretty sure

17 it was our party.” In a statement to police, Defendant said that a person jumped out

18 from what appeared to be the front passenger side of Rudy’s vehicle with a machine

4
 1 gun. Defendant also told police that the person was pointing a rifle straight at him.

2 Richard Sr. testified that it seemed like the driver, as well as a passenger, exited

3 Rudy’s vehicle but stayed behind the doors, and when they got out of the vehicle he

4 and Richard Jr. fled the scene. Richard Sr. indicated that he was too far from the

5 vehicle to be able to see if anyone in Rudy’s vehicle had a weapon. Rudy and Logan

6 testified that no one in Rudy’s vehicle had a weapon or a firearm.

7 {5} David Jr. testified that Defendant had a handgun on him that day that had been

8 retrieved from Defendant’s truck at Nine Mile Hill when Defendant’s group left the

9 truck to walk back into town. It is unclear from the testimony who retrieved the gun

10 from Defendant’s truck. David Jr. testified that during this second encounter with

11 Rudy’s vehicle, Defendant fired the gun twice in the air and twice at the vehicle. In

12 his statement to police, Defendant admitted firing the gun twice in the air and twice

13 at the vehicle. David Jr. testified that he and Defendant then ran. David Jr. further

14 testified that when Defendant dropped the gun, David Jr. picked it up and tried to hide

15 it under a building. Officers testified to finding the gun under a portable school

16 building. David Jr. later pled guilty to possession of a gun on school grounds and

17 tampering with evidence.

18 {6} The State introduced two witness statements given to police that indicated that

5
 1 one of the occupants in Rudy’s vehicle may have had a pistol and that one of the

2 occupants was possibly shooting from the vehicle. An officer testified that police

3 used those statements to obtain search warrants for locations where Rudy was

4 believed to have gone after the incident. Officers found a rifle in Rudy’s parents’

5 home, but Rudy’s parents testified that it did not work and Rudy’s mother said their

6 children did not even know about it.

7 {7} Detectives found five shell casings in the road that matched the cartridges in

8 Defendant’s gun that was hidden under the school building. No other shell casings

9 were found at the scene and no firearms or rifles were found in Rudy’s vehicle.

10 II. DISCUSSION

11 A. Depraved Mind Murder in New Mexico

12 {8} We begin our examination of Defendant’s convictions with an explanation of

13 depraved mind murder in New Mexico. In New Mexico, depraved mind murder is

14 classified as a first-degree offense. See NMSA 1978, § 30-2-1(A)(3) (1994). As such,

15 depraved mind murder is a capital felony, which carries a maximum penalty of life

16 in prison. See NMSA 1978, § 31-20A-2 (2009). Depraved mind murder is defined as

17 “the killing of one human being by another without lawful justification or excuse . . .

18 by any act greatly dangerous to the lives of others, indicating a depraved mind

6
 1 regardless of human life.” Section 30-2-1(A)(3).

2 {9} Our courts, receiving little guidance from our Legislature, have struggled to

3 distinguish first-degree depraved mind murder from second-degree murder. Although

4 the parties do not address the fine distinction between depraved mind murder and

5 second-degree murder in their briefing, we take this opportunity to define the

6 distinction between the two types of murder in an effort to assist parties and lower

7 courts in the future. Second-degree murder, which carries a basic penalty of fifteen

8 years in prison, is defined as follows:

9 Unless [the person] is acting upon sufficient provocation, upon a sudden
10 quarrel or in the heat of passion, a person who kills another human being
11 without lawful justification or excuse commits murder in the second
12 degree if in performing the acts which cause the death [the person]
13 knows that such acts create a strong probability of death or great bodily
14 harm to that individual or another.

15 Section 30-2-1(B). See NMSA 1978, § 31-18-15(A)(4) (2016). The knowledge

16 requirement of depraved mind murder—knowledge that an act is “greatly dangerous

17 to the lives of others, indicating a depraved mind regardless of human life,” as

18 distinguished from the knowledge requirement of second-degree murder—knowledge

19 that an act “create[s] a strong probability of death or great bodily harm to [an]

20 individual or another [person],” “has vexed New Mexico courts since 1980, when

7
 1 New Mexico’s current statutory definitions of the mens reas for murder in the first-

2 and second-degree were enacted.” Section 30-2-1(A)(3); Section 30-2-1(B); State v.

3 Suazo, 2017-NMSC-011, ¶ 18, 390 P.3d 674; see UJI 14-203 NMRA; UJI 14-210

4 NMRA. Recently, in Suazo, this Court clarified that first-degree depraved mind

5 murder and second-degree murder share the same subjective knowledge

6 requirement—that a defendant know “the probable consequences” of the defendant’s

7 act, as opposed to should have known of the probable consequences. 2017-NMSC-

8 011, ¶ 16. These requirements being equal, we turn to the defining characteristic of

9 depraved mind murder—that the defendant acted with a depraved mind—to better

10 understand the difference between the two crimes. See State v. Reed, 2005-NMSC-

11 031, ¶ 21, 138 N.M. 365, 120 P.3d 447.

12 {10} Prior to 2009, our depraved mind murder jury instruction provided the

13 following:

14 The defendant is charged with first degree murder by an act
15 greatly dangerous to the lives of others indicating a depraved mind
16 without regard for human life. For you to find the defendant guilty [as
17 charged in Count __________][ ], the state must prove to your
18 satisfaction beyond a reasonable doubt each of the following elements
19 of the crime:

20 1. The defendant __________ (describe act of defendant);

8
 1 2. The defendant’s act caused[ ] the death of __________ (name
2 of victim);

3 3. The act of the defendant was greatly dangerous to the lives of
4 others, indicating a depraved mind without regard for human life;

5 4. The defendant knew that his act was greatly dangerous to the
6 lives of others;

7 5. This happened in New Mexico on or about the __________
8 day of __________, __________.

9 UJI 14-203 NMRA (2008). To assist jurors in understanding what constitutes a

10 depraved mind, our jury instruction was amended in 2009 to add the following

11 explanation:

12 A person acts with a depraved mind by intentionally engaging in
13 outrageously reckless conduct with a depraved kind of wantonness or
14 total indifference for the value of human life. Mere negligence or
15 recklessness is not enough. In addition, the defendant must have a
16 corrupt, perverted, or malicious state of mind, such as when a person
17 acts with ill will, hatred, spite, or evil intent. Whether a person acted
18 with a depraved mind may be inferred from all the facts and
19 circumstances of the case.

20 UJI 14-203 NMRA (2009). No further modifications of the language of the

21 instruction have been made. As may be gleaned from the amended instruction, this

22 Court has established four primary indicators of a depraved mind that aid in

23 distinguishing first-degree depraved mind murder from second-degree murder. The

9
 1 four indicators of a depraved mind are as follows: (1) “more than one person [was]

2 endangered by the defendant’s act,” (2) the defendant’s act was “intentional” and

3 “extremely reckless,” (3) the defendant had “subjective knowledge that his act was

4 greatly dangerous to the lives of others,” and (4) the defendant’s act “encompass[ed]

5 an intensified malice or evil intent.” State v. Dowling, 2011-NMSC-016, ¶ 11, 150

6 N.M. 110, 257 P.3d 930 (internal quotation marks and citations omitted). We explain

7 each of these indicators, below.

8 {11} First, depraved mind murder is “limited to acts that are dangerous to more than

9 one person,” such as “shooting into a crowd” or “placing a bomb in a public place.”

10 Reed, 2005-NMSC-031, ¶ 22 (citations omitted). Other types of conduct evidencing

11 a high degree of risk include “starting a fire at the front door of an occupied dwelling,

12 shooting into the caboose of a passing train or into a moving automobile necessarily

13 occupied by human beings, and driving a car at very high speeds along a main street.”

14 UJI 14-203 committee commentary (internal quotation marks and citation omitted).

15 Thus, we have looked to the “number of persons exposed to danger by a defendant’s

16 extremely reckless behavior.” UJI 14-203 committee commentary (internal quotation

17 marks and citations omitted). This Court appeared to momentarily abandon the first

18 indicator in State v. Brown, when it announced that “the number of persons may be

10
 1 a factor in assessing the degree of the risk disregarded . . . [but] should not be

2 determinative of the degree of murder charged.” 1996-NMSC-073, ¶ 14, 122 N.M.

3 724, 931 P.2d 69 (omission in original) (internal quotation marks and citation

4 omitted). The Court subsequently clarified, however, that it was declining to depart

5 from prior precedent, and would continue to limit depraved mind murder to acts

6 dangerous to more than one person. Reed, 2005-NMSC-031, ¶ 37.

7 {12} Second, depraved mind murder requires an intentional act of “extremely

8 reckless character.” Dowling, 2011-NMSC-016, ¶ 11. The act must be “greatly

9 dangerous to the lives of others.” UJI 14-203. “[T]he accused must subjectively

10 intend to commit an act that has a great likelihood of resulting in death.” Dowling,

11 2011-NMSC-016, ¶ 11 (alteration in original) (internal quotation marks and citation

12 omitted). The act must be “outrageously reckless,” as “[m]ere negligence or

13 recklessness is not enough.” UJI 14-203.

14 {13} Third, depraved mind murder requires “proof that the defendant had subjective

15 knowledge that his act was greatly dangerous to the lives of others.” Reed, 2005-

16 NMSC-031, ¶ 23 (internal quotation marks and citation omitted). As noted above,

17 both first-degree depraved mind murder and second-degree murder require that a

18 defendant know the possible consequences of the defendant’s act. See Suazo, 2017-

11
 1 NMSC-011, ¶ 16. Subjective knowledge requires that a defendant know that his act

2 is greatly dangerous to the lives of others, but the “defendant does not have to

3 actually know that his victim will be injured by his act.” State v. Ibn Omar-

4 Muhammad, 1985-NMSC-006, ¶ 21, 102 N.M. 274, 694 P.2d 922, holding modified

5 on other grounds by State v. Cleve, 1999-NMSC-017, ¶ 22, 127 N.M. 240, 980 P.2d

6 23. “The required mens rea element of ‘subjective knowledge’ serves as proof that the

7 accused acted with ‘a depraved mind’ or ‘wicked or malignant heart’ and with utter

8 disregard for human life.” UJI 14-203 committee commentary (emphasis, internal

9 quotation marks, and citation omitted). Because the subjective knowledge

10 requirement is the same for first-degree depraved mind murder and second-degree

11 murder, the only distinguishing factor in this regard is a defendant’s knowledge that

12 the defendant’s act is greatly dangerous to the life of more than one person. Cf.

13 Section 30-2-1(B) (providing that second-degree murder encompasses acts that create

14 a strong probability of death or great bodily harm to an individual or another person).

15 {14} That leaves us with the fourth primary indicator our Court has used to

16 distinguish depraved mind murder—“an intensified malice or evil intent.” Reed,

17 2005-NMSC-031, ¶ 24 (internal quotation marks and citation omitted). As explained

18 in our depraved mind murder instruction, depraved mind murder requires that a

12
 1 defendant “intentionally engag[e] in outrageously reckless conduct with a depraved

2 kind of wantonness or total indifference for the value of human life.” UJI 14-203; see

3 Reed, 2005-NMSC-031, ¶ 24. “In addition, the defendant must have a corrupt,

4 perverted, or malicious state of mind, such as when a person acts with ill will, hatred,

5 spite, or evil intent.” UJI 14-203. “Whether a person acted with a depraved mind may

6 be inferred from all the facts and circumstances of the case.” Id. Today, as in the past,

7 the four primary indicators guide our analysis of Defendant’s conviction for depraved

8 mind murder.

9 B. The Evidence is Sufficient to Support Defendant’s Conviction for First-
10 degree Depraved Mind Murder

11 {15} Defendant claims there was insufficient evidence to support his conviction for

12 first-degree depraved mind murder. We exercise our jurisdiction to review

13 Defendant’s conviction under Article VI, Section 2 of the New Mexico Constitution

14 and Rule 12-102(A) NMRA (providing that this Court shall have jurisdiction over

15 appeals of district court judgments imposing a sentence of death or life

16 imprisonment).

17 Under a sufficiency of evidence analysis, we must determine “whether
18 substantial evidence of either a direct or circumstantial nature exists to
19 support a verdict of guilt beyond a reasonable doubt with respect to
20 every element essential to a conviction.” We must view the evidence in

13
 1 the light most favorable to the State, resolving all conflicts and
2 indulging all permissible inferences in favor of the verdict. It is this
3 Court’s duty on review to determine whether any rational jury could
4 have found the essential facts to establish each element of the crime
5 beyond a reasonable doubt.

6 Reed, 2005-NMSC-031, ¶ 14 (citations omitted).

7 {16} We have affirmed depraved mind murder convictions in many instances. See

8 State v. Sena, 1983-NMSC-005, ¶¶ 2, 9, 11, 99 N.M. 272, 657 P.2d 128 (affirming

9 depraved mind murder conviction where the defendant opened fire on the doorman

10 of a bar, hitting the doorman, but also hitting and killing an innocent bystander); State

11 v. McCrary, 1984-NMSC-005, ¶¶ 2-3, 5, 25, 100 N.M. 671, 675 P.2d 120 (affirming

12 depraved mind murder conviction where the defendant discharged about twenty-five

13 shots into tractor-trailers and cabs parked at a carnival site during the night); State v.

14 Trujillo, 2002-NMSC-005, ¶¶ 22, 28, 131 N.M. 709, 42 P.3d 814 (concluding the

15 evidence was sufficient to support a depraved mind murder conviction where the

16 defendant opened fire from a second floor balcony into a group of people below,

17 killing a rival gang member).

18 {17} We have also reversed convictions when it was appropriate to do so. See Ibn

19 Omar-Muhammad, 1985-NMSC-006, ¶¶ 15, 27 (reversing depraved mind murder

20 conviction where depraved mind jury instruction set forth an objective standard of

14
 1 knowledge rather than a subjective standard); State v. Hernandez, 1994-NMSC-045,

2 ¶¶ 8-9, 117 N.M. 497, 873 P.2d 243 (reversing depraved mind murder conviction

3 where the depraved mind act did not proximately cause the death of the victim);

4 Brown, 1996-NMSC-073, ¶¶ 34-35 (reversing depraved mind murder conviction

5 where the defendant was improperly denied jury instruction on intoxication); Reed,

6 2005-NMSC-031, ¶¶ 27, 44 (concluding the evidence was insufficient to support a

7 depraved mind murder conviction where the defendant was playing with a gun,

8 loaded it, and “absent-mindedly” fired in the direction of his friend); Dowling, 2011-

9 NMSC-016, ¶¶ 15, 17 (reversing depraved mind murder conviction where jury

10 instruction for depraved mind murder misstated extent of “recklessness” required for

11 conviction).

12 {18} We review the elements of depraved mind murder and determine whether the

13 evidence here supports such a conviction. For the reasons that follow, we conclude

14 that the facts of this case squarely fit within the contours of our clearly established

15 precedent as set forth in this opinion. That being the case, we will not disturb the

16 jury’s verdict. To convict Defendant of depraved mind murder, the jury was required

17 to find the following:

18 1. The defendant discharged a firearm at a car full of people;

15
 1 2. The defendant’s act caused the death of Sunni Reza;

2 3. The act of the defendant was greatly dangerous to the lives of
3 others, indicating a depraved mind without regard for human life;

4 4. The defendant knew that his act was greatly dangerous to the
5 lives of others;

6 5. The defendant did not act in self-defense or defense of another;

7 6. This happened in New Mexico on or about the 31[st] day of
8 May, 2013.
9
10 A person acts with a depraved mind by intentionally engaging in
11 outrageously reckless conduct with a depraved kind of wantonness or
12 total indifference for the value of human life. Mere negligence or
13 recklessness is not enough. In addition, the defendant must have a
14 corrupt, perverted, or malicious state of mind, such as when a person
15 acts with ill will, hatred, spite, or evil intent. Whether a person acted
16 with a depraved mind may be inferred from all the facts and
17 circumstances of the case.

18 See UJI 14-203.

19 {19} Defendant does not deny that he discharged his weapon. In fact, he admitted

20 to police that he fired two shots in the air and two shots at Rudy’s vehicle, knowing

21 that there were multiple people in the vehicle. Also, Richard Sr. testified that

22 Defendant told Richard Sr. he fired the gun. Defendant claims, however, that he did

23 so in self-defense and the defense of others in his group. Defendant argues that due

24 to Rudy’s actions towards Defendant and those in his group in the first encounter he

16
 1 believed Rudy had returned to fight and they were prepared to defend themselves in

2 the second encounter.

3 {20} Defendant stated to police that during the second encounter he saw a “guy”

4 jump out of the vehicle from the front passenger seat with a machine gun. He also

5 told police that this person was pointing a rifle straight at him. He said he heard

6 someone saying “shoot” and that he believed he was under assault from a rifle. David

7 Jr. corroborated Defendant’s testimony in testifying that he saw someone from

8 Rudy’s group pointing what he thought looked like a handgun or rifle at them, and

9 that Defendant returned fire. David Jr. claims Defendant did so to protect him and the

10 others in Defendant’s group. Also, witness statements were admitted into evidence

11 that someone from Rudy’s vehicle may have had a weapon and perhaps fired shots

12 at Defendant’s group. Defendant argues that because he was attempting to defend

13 himself and others, he could not have had the necessary “intensified malice or evil

14 intent,” to prove depraved mind murder. Suazo, 2017-NMSC-011, ¶ 22 (internal

15 quotation marks and citation omitted). We reject this argument. There was sufficient

16 evidence for the jury to find Defendant acted with a depraved mind, despite

17 Defendant’s self-defense theory. See UJI 14-203 (“Whether a person acted with a

18 depraved mind may be inferred from all the facts and circumstances of the case.”)

17
 1 When reviewing the sufficiency of the evidence to support Defendant’s conviction,

2 we must resolve all disputed facts in favor of the State. Reed, 2005-NMSC-031, ¶ 14.

3 1. Defendant’s act was greatly dangerous to the life of more than one person

4 {21} Rudy testified that he picked up three passengers at the community

5 center—Troy, Logan, and Sunni—and that they were occupying the vehicle when

6 Defendant began shooting at them. Clearly, Defendant’s act of shooting at Rudy’s

7 vehicle was greatly dangerous to the life of more than one person.

8 2. Defendant’s act was outrageously reckless

9 {22} The jury heard testimony from David Jr. that Defendant fired his handgun twice

10 into the air and twice at Rudy’s vehicle. One of the shots went through the

11 windshield, killing Sunni. As we acknowledged in Reed, in the few cases “in which

12 we have affirmed depraved mind murder convictions involving the discharge of

13 firearms, the defendant either admitted, or witnesses testified, that the defendant

14 intentionally fired a weapon under circumstances showing an extreme degree of

15 recklessness.” 2005-NMSC-031, ¶ 33. Such examples include “shooting several times

16 from a balcony of an apartment building into a crowd, killing a rival gang member”;

17 “moving slowly around tractor-trailers parked overnight at a fairground with multiple

18 firearms, shooting twenty-five times into the cabs, and killing a woman in a sleeping

18
 1 compartment”; and “firing four or five times into a crowded bar, killing a bystander.”

2 Id. (citations omitted). “In each instance, there was no question that the defendant

3 acted intentionally in firing the weapon.” Id. From the evidence presented, the jury

4 could have reasonably come to the same conclusion in the instant case. “[D]epraved

5 mind murder involves an intentional act without regard for consequences.” Id. ¶ 25.

6 Shooting at a vehicle full of people qualifies as “outrageously reckless conduct with

7 a depraved kind of wantonness or total indifference for the value of human life.” UJI

8 14-203.

9 3. Defendant knew that his act was greatly dangerous to the lives of others

10 {23} Although Defendant may not have known a child was in Rudy’s vehicle, the

11 State presented evidence that Defendant knew there were multiple passengers. See

12 Ibn Omar-Muhammad, 1985-NMSC-006, ¶ 21 (“A defendant does not have to

13 actually know that his victim will be injured by his act.”). Rudy testified that he told

14 Defendant’s group he was going to pick up friends and his vehicle was full. Richard

15 Sr. and Richard Jr. said the group watched Rudy pick up more than one person at the

16 community center.

17 {24} Defendant’s statements to the police provide additional bases for the jury to

18 find Defendant had subjective knowledge of the risk he posed to the lives of those in

19
 1 Rudy’s vehicle. Defendant told police that he saw Rudy pick up a “carload of dudes”

2 at the community center, so he knew the vehicle contained multiple passengers. In

3 explaining the second encounter, Defendant admitted that he gave Rudy’s group a

4 warning shot and then “tried to shoot the car in the front headlight to scare him.”

5 These statements arguably “confirm[] . . . [D]efendant’s personal desire to undertake

6 acts that gave rise to dangerous circumstances.” Dowling, 2011-NMSC-016, ¶ 25. “In

7 such situations, it is evident that the very design of . . . [D]efendant’s conduct [was]

8 to frighten or injure someone by exposing others to dangerous acts, thereby

9 permitting a clear inference of subjective knowledge.” Id.

10 4. Defendant acted with a depraved mind

11 {25} The circumstances of the depraved mind act alone, may, in some cases, be

12 sufficient to support the inference that a defendant acted with a depraved mind. See

13 Dowling, 2011-NMSC-016, ¶ 45. Although there may have been no “external indicia

14 of . . . [D]efendant’s depravity, such as personal animus, the absence of such factors

15 does not preclude the finding of a depraved mind.” Id. The jury did, however, hear

16 testimony from Rudy that Defendant’s group was “mad” that Rudy refused to give

17 them a ride. Additionally, Defendant admitted to police that he “tried to shoot the car

18 in the front headlight to scare [Rudy’s group].” Jurors reasonably could have accepted

20
 1 these statements as evidence of depravity.

2 {26} As far as Defendant’s argument that he could not have been acting with a

3 depraved mind because he was acting in self-defense, the jury was free to reject

4 Defendant’s self-defense theory. Defendant’s statements to police and David Jr.’s

5 testimony were countered by additional evidence and testimony that no one in Rudy’s

6 vehicle had a weapon of any kind. Additionally, detectives testified that apart from

7 Defendant’s gun and casings, no other weapons or casings were found. Further, no

8 gun residue was found in Rudy’s vehicle. As the State points out, “the jury was

9 entitled to believe the great weight of the evidence—that no one in [the] car had a

10 gun—and to disbelieve any evidence to the contrary.” See State v. Rojo, 1999-NMSC-

11 001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“[T]he jury is free to reject Defendant’s

12 version of the facts.”). Furthermore, even if the jury believed Defendant was put in

13 fear by the apparent danger presented by Rudy’s group, the jury could have found that

14 Defendant’s act of firing his handgun into a vehicle occupied by unarmed people was

15 excessive and unreasonable under the circumstances. See UJI 14-5171 NMRA

16 (providing that self-defense requires a finding that a “reasonable person in the same

17 circumstances as the defendant would have acted as the defendant did”). Accordingly,

18 the evidence supports Defendant’s conviction for depraved mind murder and we

21
 1 affirm.

2 C. The Evidence is Sufficient to Support Defendant’s Aggravated Assault
3 Convictions

4 {27} We now turn to Defendant’s three aggravated assault convictions. Defendant

5 was convicted under NMSA 1978, Section 30-3-2(A) (1963) for “unlawfully

6 assaulting or striking at another with a deadly weapon.” To convict Defendant of

7 aggravated assault, the jury was required to find the following:

8 1. The defendant discharged a firearm;

9 2. The defendant’s conduct caused Rudy Chavez-Montoya [Logan
10 Fontenelle] [Troy Fontenelle] to believe the defendant was about to
11 intrude on Rudy Chavez-Montoya’s [Logan Fontenelle’s] [Troy
12 Fontenelle’s] bodily integrity or personal safety by touching or applying
13 force to Rudy Chavez-Montoya [Logan Fontenelle] [Troy Fontenelle]
14 in a rude, insolent or angry manner;

15 3. A reasonable person in the same circumstances as Rudy Chavez-
16 Montoya [Logan Fontenelle] [Troy Fontenelle] would have had the same
17 belief;

18 4. The defendant used a firearm;

19 5. The defendant did not act in self-defense or defense of another;

20 6. This happened in New Mexico on or about the 31[st] day of May,
21 2013.

22 See UJI 14-305 NMRA. Defendant admitted to police that he discharged his

22
 1 firearm—twice in the air and twice at Rudy’s vehicle. At trial, David Jr. testified that

2 Defendant fired twice in the air and twice at Rudy’s vehicle. Rudy testified that he,

3 Logan, Troy, and Sunni were occupying the vehicle when Defendant began shooting

4 at them. The evidence was such that the jury could have concluded that Defendant’s

5 act of shooting at Rudy’s vehicle caused the occupants of the vehicle to believe

6 Defendant was about to intrude on their “bodily integrity or personal safety.” UJI 14-

7 305. As with depraved mind murder, the jury was free to reject Defendant’s self-

8 defense theory. See State v. Fox, 2017-NMCA-029, ¶ 12, 390 P.3d 230. We conclude

9 there was sufficient evidence to support the aggravated assault convictions.

10 D. The District Court’s Failure to Give the Jury the No-Retreat Instruction
11 Was Not Fundamental Error

12 {28} At trial, the district court determined that Defendant was entitled to jury

13 instructions on self-defense and defense of another. See UJI 14-5171; UJI 14-5172

14 NMRA (containing elements of self-defense and defense of another as set forth in

15 NMSA 1978, Section 30-2-7(A)-(B) (1963)); State v. Ellis, 2008-NMSC-032, ¶ 15,

16 144 N.M. 253, 186 P.3d 245 (“When asserting self-defense against a private citizen

17 . . . a defendant has an unqualified right to a self-defense instruction in a criminal case

18 when there is evidence which supports the instruction.” (internal quotation marks and

23
 1 citation omitted)); State v. Sandoval, 2011-NMSC-022, ¶ 16, 150 N.M. 224, 258 P.3d

2 1016 (“[C]ase law and commentary treat ‘defense of another’ and ‘self-defense’ as

3 virtually identical for purposes of analysis. . . . [A]ssertions made regarding self-

4 defense instructions are also assumed to apply to defense of another instructions.”

5 (first alteration in original) (internal quotation marks and citations omitted)).

6 {29} At the charging conference, the district court, counsel for Defendant, and

7 counsel for the State discussed the jury instructions to be proffered. The district court

8 concluded that the “appearance of immediate danger of death or great bodily harm,”

9 contained in the first element of the self-defense and defense of another instructions

10 would be Logan’s act of pointing/shooting at Defendant’s group during the second

11 encounter. UJI 14-5171; UJI 14-5172. The jury was not given a self-defense

12 instruction citing Rudy’s alleged act of attempting to run over Defendant’s group in

13 the first encounter as the cause of the “appearance of immediate danger of death or

14 great bodily harm,” because Defendant’s shooting was too removed in time from the

15 first encounter with Rudy to cause “immediate” danger. UJI 14-5171; UJI 14-5172.

16 The State argued, and the district court agreed, that too much time had passed

17 between the first encounter and the second encounter to warrant such an instruction.

18 {30} The State introduced witness statements to the police that during the second

24
 1 encounter, when the shooting occurred, Rudy or someone in Rudy’s vehicle may have

2 had a weapon and may have been shooting from the vehicle. Richard Sr. testified that

3 it looked like the driver and passenger were hiding behind their vehicle doors at some

4 point. Defendant told the police that the front passenger exited the vehicle with a

5 machine gun and also said that the passenger pointed a rifle straight at him. David Jr.

6 testified that the front passenger exited the vehicle and had something in his hands,

7 possibly a handgun or rifle. The following instructions were given to the jury:

8 Evidence has been presented that the defendant killed Sunni Reza
9 in self-defense.

10 The killing is in self-defense if:

11 1. There was an appearance of immediate danger of death or great
12 bodily harm to the defendant as a result of Logan Fontenelle pointing
13 and/or shooting a firearm at the defendant; and

14 2. The defendant was in fact put in fear by the apparent danger of
15 immediate death or great bodily harm and shot at the vehicle which
16 caused the death of Sunni Reza because of that fear;

17 3. A reasonable person in the same circumstances as the defendant
18 would have acted as the defendant did.

19 The burden is on the state to prove beyond a reasonable doubt that
20 the defendant did not act in self defense [sic]. If you have a reasonable
21 doubt as to whether the defendant acted in self-defense you must find
22 the defendant not guilty.

25
 1 See UJI 14-5171.

2 Evidence has been presented that the defendant killed Sunni Reza
3 while defending another.

4 The killing was in defense of another if:

5 1. There was an appearance of immediate danger of death or great
6 bodily harm to Richard Turrieta Sr., Richard Turrieta Jr., and David
7 Candelaria Jr. as a result of Logan Fontenelle pointing and/or shooting
8 a firearm at Richard Turrieta Sr., Richard Turrieta Jr., and David
9 Candelaria Jr.; and

10 2. The defendant believed Richard Turrieta Sr., Richard Turrieta
11 Jr., and David Candelaria Jr. were in immediate danger of death or great
12 bodily harm from Logan Fontenelle, and shot at the vehicle which
13 caused the death of Sunni Reza to prevent the death or great bodily
14 harm; and

15 3. The apparent danger to Richard Turrieta Sr., Richard Turrieta
16 Jr., and David Candelaria Jr. would have caused a reasonable person in
17 the same circumstances to act as the defendant did.

18 The burden is on the state to prove beyond a reasonable doubt that
19 the defendant did not act in defense of another. If you have a reasonable
20 doubt as to whether the defendant acted in defense of another, you must
21 find the defendant not guilty.

22 See UJI 14-5172.

23 {31} Defendant argues that in addition to the instructions given above, the district

24 court should have also provided the jury with UJI 14-5190 NMRA— the “stand-your-

25 ground” (no-retreat) instruction: “A person who is threatened with an attack need not

26
 1 retreat. In the exercise of his right of self defense, he may stand his ground and

2 defend himself.” The propriety of the jury instructions given by the district court is

3 a mixed question of law and fact requiring de novo review. See State v. Lucero, 2010-

4 NMSC-011, ¶ 11, 147 N.M. 747, 228 P.3d 1167. Because this issue was not raised

5 at trial, we review for fundamental error. See Rule 12-321(B)(2)(c) NMRA (2016).

6 Error that is fundamental must be such error as goes to the foundation
7 or basis of a defendant’s rights or must go to the foundation of the case
8 or take from the defendant a right which was essential to his defense and
9 which no court could or ought to permit him to waive. Fundamental
10 error only applies in exceptional circumstances when guilt is so doubtful
11 that it would shock the judicial conscience to allow the conviction to
12 stand.

13 State v. Johnson, 2010-NMSC-016, ¶ 25, 148 N.M. 50, 229 P.3d 523 (citation

14 omitted).

15 In reviewing the self-defense and defense of another jury instructions for
16 fundamental error, we first determine “whether a reasonable juror would
17 have been confused or misdirected by the jury instructions.” If we
18 conclude that a reasonable juror would have been confused or
19 misdirected, then we “review the entire record, placing the jury
20 instructions in the context of the individual facts and circumstances of
21 the case, to determine whether the defendant’s conviction was the result
22 of a plain miscarriage of justice.”

23 Sandoval, 2011-NMSC-022, ¶ 20 (alterations and citations omitted). “For

24 fundamental error to exist, the instruction given must differ materially from the

27
 1 uniform jury instruction, omit essential elements, or be so confusing and

2 incomprehensible that a court cannot be certain that the jury found the essential

3 elements under the facts of the case.” State v. Caldwell, 2008-NMCA-049, ¶ 24, 143

4 N.M. 792, 182 P.3d 775 (internal quotation marks and citations omitted). “[J]uror

5 confusion or misdirection may stem not only from instructions that are facially

6 contradictory or ambiguous, but from instructions which, through omission or

7 misstatement, fail to provide the juror with an accurate rendition of the relevant law.”

8 State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134.

9 {32} Defendant relies on State v. Anderson, 2016-NMCA-007, 364 P.3d 306 to

10 argue that the district court’s failure to provide the jury with the no-retreat instruction

11 mandates reversal of Defendant’s conviction for depraved mind murder. In Anderson,

12 the victim and the defendant were at a party and began arguing. 2016-NMCA-007,

13 ¶ 3. The victim’s girlfriend attempted to intervene and the defendant moved her out

14 of the way. Id. The victim punched the defendant, causing the defendant to fall

15 backward into another room. Id. A brawl then began between others at the party. Id.

16 The victim’s girlfriend, having retrieved a handgun from the victim, then brandished

17 it and brought the brawl to a standstill. Id. While the brawl had ceased, the defendant

18 “removed himself and hid behind the doorway of the room into which he fell where

28
 1 he, too, drew a handgun.” Id. The defendant, believing the victim had taken the gun

2 from his girlfriend, came out from the doorway “with his gun raised and fired six

3 shots from a distance of approximately two to three feet, four of which hit [the

4 victim].” Id. The victim died and the defendant was charged with his murder. Id.

5 {33} In that case, the defendant requested a self-defense instruction and the no-

6 retreat instruction, and the district court agreed they should be given. Id. ¶ 5. See UJI

7 14-5171; UJI 14-5190. Due to an oversight on the part of the district court and

8 counsel, the no-retreat instruction was not given to the jury. See Anderson, 2016-

9 NMCA-007, ¶ 6. During deliberations, the jury asked if there was a “stand-your-

10 ground” law in New Mexico, but ultimately withdrew the question. Id.

11 {34} Our Court of Appeals concluded in Anderson that the no-retreat instruction was

12 critical to the jury’s self-defense determination, and the district court’s failure to

13 provide the instruction was fundamental error requiring the reversal of the

14 defendant’s murder conviction. Id. ¶¶ 14, 19. The Court likened the no-retreat

15 instruction to a missing elements instruction, necessarily informing jurors of the

16 meaning of “reasonable” under the third prong of the self-defense instruction. Id. ¶

17 15. See UJI 14-5171 (“A reasonable person in the same circumstances as the

18 defendant would have acted as the defendant did.”). The Court explained that

29
 1 “ ‘reasonable’ . . . carries a different meaning when read in conjunction with the no-

2 retreat instruction than it does alone.” Anderson, 2016-NMCA-007, ¶ 15 (“Read

3 alone, a person exercising the ‘degree of attention, knowledge, intelligence, and

4 judgment that society requires of its members’ is acting reasonably. . . . When read

5 together with the no-retreat instruction, however, a person who, when threatened with

6 an attack, does not retreat and stands his ground when exercising his right of self-

7 defense is acting reasonably.” (citations omitted)). Accordingly, the Court determined

8 that “the jury’s understanding of all of the elements of the law governing self-defense

9 was deficient.” Id. ¶ 12. The Court further concluded “not only that a reasonable juror

10 would have been misdirected by the jury instructions given, but also that the jury in

11 [the d]efendant’s case was misdirected.” Id.

12 {35} Before we consider the question of whether the omission of the no-retreat

13 instruction in Defendant’s case was fundamental error, we must first apply the

14 standard for reversible error. Anderson, 2016-NMCA-007, ¶ 9. We determine if “a

15 reasonable juror would have been confused or misdirected by the jury instructions

16 that were given.” Id. (internal quotation marks and citation omitted). In Defendant’s

17 case, the jury was properly instructed on self-defense and defense of another, and we

18 conclude that a reasonable juror would not have been “confused or misdirected” by

30
 1 the omission of the no-retreat instruction. Sandoval, 2011-NMSC-022, ¶ 20; see State

2 v. Cunningham, 2000-NMSC-009, ¶ 14, 128 N.M. 711, 998 P.2d 176.We agree with

3 our Court of Appeals that “[w]here the evidentiary basis for the [no-retreat]

4 instruction has been laid,” the instruction “alters what ‘reasonable’ means” under the

5 third prong of the self-defense instruction. Anderson, 2016-NMCA-007, ¶ 14. Here,

6 however, the evidentiary basis for the no-retreat instruction was not laid. That being

7 the case, the district court did not err by failing to provide the jury with the no-retreat

8 instruction even though it determined that the self-defense and defense of another

9 instructions were warranted. See State v. Heisler, 1954-NMSC-032, ¶ 23, 58 N.M.

10 446, 272 P.2d 660 (“[W]here self-defense is involved in a criminal case and there is

11 any evidence, although slight, to establish the same, it is not only proper for the court,

12 but its duty as well, to instruct the jury fully and clearly on all phases of the law on

13 the issue that are warranted by the evidence . . . .” (emphasis added)); Benally, 2001-

14 NMSC-033, ¶ 12 (emphasizing the importance of providing jurors with “an accurate

15 rendition of the relevant law”).

16 {36} Unlike Anderson, there is absolutely no indication of juror confusion in

17 Defendant’s case. Additionally, the district court in Anderson determined that there

18 was sufficient evidence to support the issuance of the instruction, but by oversight,

31
 1 did not give it. 2016-NMCA-007, ¶ 10; see also id. ¶ 19 (“[I]n light of the importance

2 that self-defense and no-retreat had in [the d]efendant’s case, allowing his conviction

3 to stand without adequate jury instructions would undermine judicial integrity and the

4 legitimacy of the jury’s verdict.”). Importantly, the defendant’s self-defense theory

5 in Anderson rested “on the argument that . . . he had no duty to retreat from the

6 confrontation with [the victim]” in the case. Id. ¶ 14. Here, Defendant did not argue

7 he had no duty to retreat from Rudy or Rudy’s group, and the district court made no

8 determination that the no-retreat instruction was warranted.

9 {37} Defendant argues the no-retreat instruction was required because the prosecutor

10 in closing told the jury that “it was not reasonable [for Defendant] to stand ones’ [sic]

11 ground because the Turrieta’s [sic] were running in fear of being shot. Defendant

12 argues this statement “almost forced the jury to find . . . Defendant’s decision was not

13 reasonable because there was nothing in the Self Defense Instruction stating . . .

14 Defendant could lawfully choose to stand his ground and shoot back or shoot at the

15 vehicle that had almost killed him, his son and their companions.” As the State points

16 out, Defendant’s characterization of the prosecutor’s statement in closing is

17 misleading. The transcript reveals that the prosecutor said the following: “You heard

18 how the Turrietas responded; they booked it. Does a reasonable person, even thinking

32
 1 there’s an appearance of immediate danger, fire at the vehicle? They do not. They do

2 not.” We agree with the State that the prosecutor’s statement does not appear to be

3 a comment on Defendant’s duty to retreat, but rather, the reasonableness of

4 Defendant’s act of shooting at the vehicle. As the State correctly identifies,

5 “Defendant has not pointed to anything in the record to show that a no-duty-to-retreat

6 argument formed any part of his theory of the case.”

7 {38} Had we determined that it was error for the district court to fail to provide the

8 no-retreat instruction, Anderson instructs us that the next step in the fundamental

9 error analysis is to “consider all the facts and circumstances and decide whether the

10 missing instruction caused such confusion that the jury could have convicted

11 Defendant based upon a deficient understanding of the law regarding self-defense.”

12 Id. ¶ 13 (alteration, internal quotation marks, and citation omitted). Although we need

13 not reach the second prong of the analysis, we note that based on the proffered self-

14 defense and defense of another instructions and the evidence presented, it would not

15 “shock the judicial conscience” to allow Defendant’s conviction to stand, Johnson,

16 2010-NMSC-016, ¶ 25, nor would it constitute a “miscarriage of justice.” Sandoval,

17 2011-NMSC-022, ¶ 20.

18 {39} Although there was an evidentiary basis to support the district court’s

33
 1 proffering of the self-defense and defense of another instructions, there was sufficient

2 evidence to contradict those theories. Because there was not an evidentiary basis to

3 support giving a self-defense instruction regarding Rudy’s attempt to run over

4 Defendant’s group in the first encounter, the jury only had to decide whether Logan’s

5 act of pointing and/or shooting at Defendant’s group, if the jury believed those acts

6 occurred, warranted Defendant’s gunfire in response. The State introduced a great

7 deal of evidence, including corroborating testimony, that no one in Rudy’s vehicle

8 had a weapon and that no shots were fired at Defendant’s group. To warrant the no-

9 retreat instruction, one must be “threatened with an attack” and must be

10 “exercis[ing] . . . his right of self-defense.” UJI 14-5190. The jury was free to reject

11 Defendant’s self-defense theory and find that Defendant’s firing shots at Rudy’s

12 vehicle and killing Sunni was unreasonable—that “[a] reasonable person in the same

13 circumstances as the defendant would [not] have acted as the defendant did.” UJI 14-

14 5171. The jury instructions provided by the district court were accurate and clear. We

15 therefore conclude, after reviewing the instructions in the context of the individual

16 facts and circumstances of this case, that the missing instruction did not cause juror

17 confusion such “that the jury could have convicted Defendant based upon a deficient

18 understanding of the law regarding self-defense.” Anderson, 2016-NMCA-007, ¶ 13

34
 1 (alteration, internal quotation marks, and citation omitted). The district court’s

2 omission of the no-retreat instruction in this case does not rise to fundamental error.

3 See Anderson, 2016-NMCA-007, ¶ 9; Cunningham, 2000-NMSC-009, ¶ 18

4 (distinguishing reversible error from fundamental error and noting that fundamental

5 error requires heightened scrutiny). No-retreat was simply not at issue in this case and

6 thus, no further clarification of reasonable under UJI 14-5190 was warranted. See

7 State v. Barber, 2004-NMSC-019, ¶ 26, 135 N.M. 621, 92 P.3d 633 (concluding that

8 “missing definition of possession” did not “implicate a critical determination akin to

9 a missing elements instruction,” and “no distinct possibility exist[ed] from the

10 evidence that the jury convicted [the d]efendant without finding all the elements

11 beyond a reasonable doubt” (internal quotation marks and citation omitted)).

12 E. The District Court Did Not Abuse Its Discretion in Admitting the
13 Testimony of Richard Turrieta, Sr.

14 {40} Defendant claims the district court erred in allowing Richard Sr. to testify while

15 he was under the influence of pain medication. The State called Richard Sr. to the

16 stand on the fourth day of the trial and proceeded with its direct examination. At the

17 end of the direct examination, the State asked Richard Sr. if he was on any

18 medications. Richard Sr. responded that he was. In beginning his cross-examination,

35
 1 counsel for Defendant asked Richard Sr. to provide further explanation about his

2 medications. Richard Sr. testified he was taking hydrocodone for pain. Counsel for

3 Defendant approached the bench, questioning Richard Sr.’s competency to testify.

4 Because a full direct examination had already taken place, the district court instructed

5 counsel to address his concerns in his cross-examination. On cross, Richard Sr.

6 testified that the medication caused memory loss, drowsiness, and tiredness, but that

7 he was “okay” and remembered the incident clearly.

8 {41} Defendant represents to the Court that after the direct examination of Richard

9 Sr., defense counsel requested a mistrial or the suppression of Richard Sr.’s

10 testimony. Defendant’s assertion is not supported by the record or transcripts.

11 Although counsel for Defendant questioned Richard Sr.’s competency before the

12 district court, counsel made no motion to exclude Richard Sr.’s testimony, nor did

13 counsel move for a mistrial. Defense counsel simply continued with his cross-

14 examination, appearing satisfied by the judge’s decision and Richard Sr.’s answers

15 to the questions about his medication.

16 {42} We review a district court’s determination as to the competency of a witness

17 to testify under an abuse of discretion standard. See State v. Perez, 2016-NMCA-033,

18 ¶ 11, 367 P.3d 909. “An abuse of discretion occurs when the ruling is clearly against

36
 1 the logic and effect of the facts and circumstances of the case. We cannot say the trial

2 court abused its discretion by its ruling unless we can characterize it as clearly

3 untenable or not justified by reason.” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation

4 marks and citations omitted). After reviewing the transcripts of the proceedings, we

5 conclude that the district court did not abuse its discretion in admitting Richard Sr.’s

6 testimony.

7 {43} There is a general presumption that all persons are competent to be witnesses.

8 See State v. Ruiz, 2007-NMCA-014, ¶ 23, 141 N.M. 53, 150 P.3d 1003; Rule 11-601

9 NMRA. “Trial courts have broad discretion to determine the competency of a witness

10 . . . .” Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 60, 134 N.M. 77, 73 P.3d 215.

11 The district court must only ensure that a witness “meets a minimum standard, such

12 that a reasonable person could put any credence in their testimony.” Ruiz, 2007-

13 NMCA-014, ¶ 23 (internal quotation marks and citation omitted). This determination

14 includes an inquiry into the “witness’s capacities to observe, recollect, and

15 communicate, as well as appreciate a duty to speak the truth at the meaningful time.”

16 Apodaca, 2003-NMCA-085, ¶ 62.

17 {44} Defendant claims he was prejudiced by Richard Sr.’s inaccurate recollection

18 of the events that took place on the date of the incident due to the pain medication

37
 1 Richard Sr. was taking when he testified. As a result, Defendant argues, the jury

2 received “incompetent and misleading facts.” Defendant also argues that the fact

3 Richard Sr. admitted to smoking marijuana on the day of the incident in question

4 makes him incompetent as a witness. We reject these arguments.

5 {45} Reviewing the transcript of Richard Sr.’s testimony, he did not appear to have

6 any difficulty answering questions. Clearly, Richard Sr. met the threshold

7 requirements to testify as a witness. See Apodaca, 2003-NMCA-085, ¶ 62.

8 Furthermore, counsel for Defendant waited until the entire direct examination was

9 complete before inquiring about Richard Sr.’s competency, and then made no motion

10 to exclude it. See id. (“[T]he party challenging competency bears the burden to show

11 the witness is incompetent.” (citation omitted)). Finally, Defendant’s arguments that

12 the district court should have excluded Richard Sr.’s testimony suggest that the

13 district court must make a credibility analysis of each witness before allowing the

14 witness to testify. This simply is not the case. “The jury alone is the judge of the

15 credibility of the witnesses and determines the weight afforded to testimony.” Ruiz,

16 2007-NMCA-014, ¶ 23 (internal quotation marks and citation omitted). The district

17 court must only ensure that the witness appreciates the duty to speak the truth. See

18 Apodaca, 2003-NMCA-085, ¶ 62. The district court did not abuse its discretion when

38
 1 it admitted Richard Sr.’s testimony.

2 F. Defendant’s Claim of Ineffective Assistance of Counsel Was Not
3 Adequately Developed and Will Not Be Considered on Direct Appeal

4 {46} Defendant claims his trial counsel was ineffective for not requesting a mistrial

5 on multiple occasions during the proceedings. For example, Defendant cites to

6 several instances of misconduct by the State’s witnesses in his statement of issues to

7 this Court, which he claims support a mistrial, but he does not address those in his

8 briefs. Defendant also directs the Court to other instances where a mistrial may have

9 been pursued, but does not clearly articulate these instances or make any arguments

10 to support these claims. That being the case, we decline to consider them here. See

11 Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“This

12 Court requires that the parties adequately brief all appellate issues to include an

13 argument, the standard of review, and citations to authorities for each issue

14 presented. . . . We will not review unclear arguments, or guess at what a party’s

15 arguments might be. . . . To rule on an inadequately briefed issue, this Court would

16 have to develop the arguments itself, effectively performing the parties’ work for

17 them. . . . This creates a strain on judicial resources and a substantial risk of error. It

18 is of no benefit either to the parties or to future litigants for this Court to promulgate

39
1 case law based on our own speculation rather than the parties’ carefully considered

2 arguments.” (alteration, internal quotation marks, and citations omitted)).

3 III. CONCLUSION

4 {47} For the foregoing reasons, Defendant’s convictions are affirmed.

5 {48} IT IS SO ORDERED.

6 ______________________________
7 BARBARA J. VIGIL, Justice

8 WE CONCUR:

9 ___________________________________
10 JUDITH K. NAKAMURA, Chief Justice

11 ___________________________________
12 PETRA JIMENEZ MAES, Justice

13 ___________________________________
14 CHARLES W. DANIELS, Justice

15 ___________________________________
16 GARY L. CLINGMAN, Justice

40