dissenting.
(24) I respectfully dissent.
(25) The jury was properly instructed on the elements of the offense. In particular, it was told that it could not convict Defendant if he had acted in self-defense or defense of another. The sole problem with the instructions is that they did not explicitly inform the jury regarding the burden of persuasion on those defenses. If the district court had refused an instruction tendered by Defendant to clarify the burden of persuasion, such refusal would have been reversible error. See State v. Parish, 118 N.M. 39, 878 P.2d 988 (1994). Here, however, the instructions given by the court regarding self-defense and defense of another were the instructions tendered by Defendant. Because the error alleged on appeal was not preserved in the district court, the question before this Court is whether the challenged instructions created fundamental error — that is, whether the instructions caused a miscarriage of justice. In the specific circumstances of this case, particularly given that self-defense was such a minor, almost inconsequential, component of the Defendant’s theory of the case, I do not believe that the error here was fundamental.
(26)The irony of this case is that the challenged instructions were Uniform Jury Instructions (UJIs) that had been promulgated by our Supreme Court. Three instructions are pertinent. First, the elements instruction, taken from SCRA 1986, 14-322:
For you to find the defendant guilty of Aggravated Battery With a Deadly Weapon, the State must prove to your satisfaction beyond a reasonable doubt each of thé following elements of the crime:
1. The defendant shot Joe Leal with a shotgun;
2. The defendant intended to injure Joe Leal, or another;
3. This happened in New Mexico on or about the 29th day of August, 1993.
Then, the self-defense instruction, taken from SCRA 1986,14-5181:
Evidence has been presented that the defendant acted while defending himself.
The defendant acted in self-defense if:
1. There was an appearance of immediate danger of bodily harm to the defendant as a result of the aggressive behavior of the crowd gathering around the defendant; and
2. The defendant was in fact put in fear, by the apparent danger, of immediate bodily harm and fired a shotgun at the ground because of that fear; and
3. The defendant used an amount of force which he believed was reasonable and necessary to prevent the bodily harm; and
4. The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did.
In considering this defense, and after considering all the evidence in the case, if you have a reasonable doubt as to the defendant’s guilt, you must find him not guilty.
Finally; the defense-of-another instruction, taken from SCRA1986,14-5182:
Evidence has been presented that the defendant acted while defending another person.
The defendant acted in defense of another if:
1. There was an appearance of immediate danger of bodily harm to Elias Acosta as a result of the aggressive behavior of the. crowd gathering around the defendant; and
2. The defendant believed that Elias Acosta was in immediate danger of bodily harm from that aggressive crowd and fired the shotgun to prevent the bodily harm; and
3. The defendant used an amount of force which he believed was reasonable and necessary to prevent the bodily harm; and
4. The apparent danger to Elias Acosta would have caused a reasonable person in the same circumstances to act as defendant did.
In considering this defense, and after considering all the evidence in the ease, if you have a reasonable doubt as to the defendant’s guilt, you must find him not guilty.
(27)The first instruction is deficient in one respect. The pertinent statute defines “aggravated battery” as “the unlawful touching or application of force to the person of another with intent to injure that person or another.” NMSA 1978, § 30-3-5(A) (Repl. Pamp.1994) (emphasis added). The instruction, however, says nothing about the requirement that the touching or application of force be “unlawful.” Our Supreme Court has held that the jury must be instructed on the element of unlawfulness if the evidence at trial would support a reasonable doubt concerning whether the defendant had acted lawfully. See State v. Orosco, 113 N.M. 780, 783, 833 P.2d 1146, 1149 (1992); cf State v. Livemois, 123 N.M. 128, ¶ 15, 934 P.2d 1057 (1997) (no fundamental error in failing to instruct on element of crime when there could be no dispute that element was established).
(28) Yet, even when the lawfulness of the defendant’s actions is factually at issue, the jury instruction need not use a form of the word “unlawful.” It is sufficient if the instruction refers only to the defendant’s specific theory of why the alleged misconduct was lawful. For example, in State v. Loera, 122 N.M. 641, 644-45, 930 P.2d 176, 179-80 (1996), our Supreme Court held that the trial court adequately instructed on the element of unlawfulness by including as an element of the crime that the defendant “did not act in defense of himself or others.”
(29) In this case the elements instruction referred to neither “unlawfulness” nor “self-defense.” Nevertheless, “instructions must be considered as a whole, and not singly.” Parish, 118 N.M. at 41, 878 P.2d at 990 (citation omitted). In Clarke v. United States, 132 F.2d 538 (9th Cir.1942), cert. denied, 318 U.S. 789, 63 S.Ct. 992, 87 L.Ed. 1155 (1943), a federal appellate court held that there was no error when an element missing from the instruction on mail fraud was contained in a separate instruction. Likewise, so long as the jury is instructed that it cannot convict a defendant who acted in self-defense, it is not necessary that the instruction on this point be contained in the general elements instruction.
(30) I recognize that our Supreme Court wrote the following in State v. Clifford, 117 N.M. 508, 511, 873 P.2d 254, 257 (1994): “We reiterate our holding in [State v.] Bunce [116 N.M. 284, 861 P.2d 965 (1993)] that the failure to include an essential element in the elements instruction can never be corrected by including the concept elsewhere in the instructions.” But the sentence is dictum, and I question whether the Court intended what the sentence appears to say. After all, in Clifford itself the Court found that none of the instructions adequately told the jury that the prosecution needed to prove fraudulent intent. It did not need to consider what would result if a separate instruction supplied an omission in the elements instruction. Moreover, I can find nothing in Bunce to support the proposition for which it is cited in the above-quoted sentence in Clifford. On the contrary, Bunce stated that if “the embezzlement and intent instructions do not adequately define the requisite intent, Defendant was entitled to an instruction on mistake of fact.” 116 N.M. 284, 288, 861 P.2d 965, 969 (1993). This language suggests that an omission in the elements instruction for embezzlement or in the instructions regarding intent could be cured by a separate instruction on the defense of mistake of fact. I am confident that the Supreme Court would not find error in the omission of an element from the elements instruction if the jury receives a separate correct instruction regarding the omitted element.
(31) In Defendant’s trial the jury was instructed on self-defense and defense of another. These instructions supplied the element of unlawfulness missing from the elements instruction. Thus, the issue on appeal is not the failure to instruct on all essential elements. Rather, the concern is whether the jury was informed regarding the burden of persuasion. As pointed out in Parish, in which the jury instructions were essentially the same as in this case, the former UJIs are ambiguous. See 118 N.M. at 44, 878 P.2d at 993. The instruction tendered by the defendant in Parish, and the present UJIs promulgated by our Supreme Court, are clearly superior in communicating the State’s burden to negate self-defense and defense of another beyond a reasonable doubt.
(32) It must be emphasized, however, that the problem with the former UJIs — the ones used in Parish and in this case — is that they are imprecise, not that they affirmatively misstate the burden of persuasion. The former UJIs were not predicated on a misunderstanding of the pertinent law. Parish noted that New Mexico law has long been settled that the State must negate self-defense beyond a reasonable doubt, and the committee that drafted the challenged UJI on self-defense understood the State’s burden. See id. at 44-45, 878 P.2d at 993-94. Consequently, I find it significant that the UJIs challenged in Parish were promulgated in 1986, yet no complaint was reviewed by our Supreme Court until 1994. See id. at 45, 878 P.2d at 994. At the least, the weakness in the former UJIs, although clear when one’s attention is directed to the problem, was not glaring to practitioners or to the members of the UJI committee. This fact may not be pertinent to whether error occurred, but it is suggestive of the absence of fundamental error. “The doctrine of fundamental error is invoked when a court considers it necessary to avoid a miscarriage of justice.” State v. Alingog, 117 N.M. 756, 760, 877 P.2d 562, 566 (1994). I question whether instructing a jury in accordance with the former UJIs would, in itself, necessarily create a miscarriage of justice. Cf. State v. Kendall, 90 N.M. 236, 242-43, 561 P.2d 935, 941-42 (Ct.App.) (failure to instruct on burden of proof was not fundamental error), rev’d in part on other grounds, 90 N.M. 191, 561 P.2d 464 (1977).
(33)I am not suggesting that the instructions in this case could never create fundamental error. Whether or not they did depends upon the specific circumstances of the trial. For example, if the prosecutor had argued that the defendant had the burden of establishing self-defense, then the ambiguity in the instructions would ordinarily result in fundamental error. But that is not what happened here. On the contrary, the State’s final argument suggested that the jury needed to find beyond a reasonable doubt that Defendant did not act in self-defense. The prosecutor said:
Well, again, proof beyond a reasonable doubt is not proof beyond a shadow of a doubt, it’s not proof beyond all doubt, it’s proof beyond a reasonable doubt. The analogy that is favored that I use with juries as far as a reasonable doubt in a tough situation, is where you have your tax, you’re about to send into Uncle Sam, you’re about to sign off on it, and you’re about to sign that little line that says I hereby certify that everything is true and correct to the best of my knowledge and ability. Well, ladies and gentlemen, if you can say to your best of knowledge and ability that the defendant did these crimes and he didn’t act in self-defense, which clearly that he, it was clear that he didn’t, then you must find the defendant guilty.
(34) Moreover, in sharp contrast to Parish, where self-defense was apparently the chief issue at trial, self-defense and defense of another were, at most, side issues in this trial. Defendant’s principal defense was that he did not intend to shoot the victim. The following passage indicates the thrust of Defendant’s final argument and reveals how peripheral the challenged instructions were:
So did he intend to shoot Joe Leal? No. Did he intend to shoot another? No. Did he intend to shoot? I guess he intended to pull the trigger and scare them away. Had he wanted to shoot Joe Leal or another, I suspect he could have done a pretty good job of it. No, it was not his intention to hurt anyone, ladies and gentlemen, and that is what is the basis of this trial. Instruction number 3, element number 2. This is what we call the specific intent element. The defendant intended to injure Joe Leal or another.
The next instruction is a general intent instruction. And we got this defense-of-another instruction. Self-defense instruction. You can all read those [several words inaudible].
And you probably all have children. And you probably have a good idea as to when people are being level with you, trying to be level with you, when people are being evasive---- (Emphasis added.)
Defendant’s final argument contained no other reference to the instructions on self-defense or defense of another.
(35) I agree with the majority that it was unfortunate that the UJIs were ambiguous. But I disagree that they caused a miscarriage of justice in this case. The prosecutor’s final argument properly resolved any ambiguity in the instruction by indicating to the jury that they could not convict unless they were convinced beyond a reasonable doubt that Defendant did not act in self-defense. In addition, Defendant’s own final argument suggested that self-defense and defense of another were not being pressed by Defendant as grounds for acquittal. I would affirm the conviction below.