(dissenting).
{29} When I consider the reasonable inferences that support the trial court’s findings, I continue to believe that there was substantial evidence to support the finding that Defendant committed first-degree murder. Therefore, I must respectfully dissent.
{30} The State’s first witness was Ewell Glenn Hittson (Ewell), brother of the victim, Harold Hittson. At approximately 9:30 p.m., Ewell was watching television when he heard two shots near his door. He went outside and saw Defendant holding a revolver, saying something to the effect of “that will teach this guy a lesson not to park in my place no more[.]” Defendant then barricaded himself in his apartment, and after three hours, the SWAT team managed to talk him out.
{31} The State’s second witness was Officer Jeffrey Young. He received a call to investigate the shooting, and along with Officer George Vega and a third unnamed officer, arrived on the scene within sixty seconds after being dispatched. He was flagged down by Ewell and he saw the victim lying on the ground with his feet partially in a white car. Officer Young reported that the victim’s body had been moved by his brother, that the victim had suffered two apparent gunshot wounds, and described blood spatter evidence near the body and in the car. He also described a shallow bullet impact on the car that indicated the shooter’s location when he shot the victim. The victim had no defensive wounds on his body or gunshot residue on his body or clothing, which suggests that the shooter was at least four feet away when the shots were fired. Examination of the revolver used showed that four rounds had been fired from it; the crime scene accounted for three shots, including the shallow impact angle of the bullet that struck the car. The weight of the bullets recovered from the victim’s body showed that the projectiles were consistent with those fired from the weapon in question, a Smith & Wesson .38 special. The bullets were consistent with those remaining in the box of .38 caliber shells found in Defendant’s apartment and with ten loose live rounds found in Defendant’s backpack, which also contained the revolver.
{32} In my opinion, the trial court could draw reasonable inferences that would support a finding of first-degree murder by clear and convincing evidence. Defendant’s unsolicited remarks that he shot the victim to teach him not to park in his space seem adequate to support a reasonable inference that he had thought about what he did, or even planned it, and waited for the next person to park in what he considered to be his parking space, only to approach the unlucky victim and shoot him. “Lying in wait” might be an accurate description. The reasonable inference is that Defendant wanted to teach this victim not to park in his space and the lesson he planned was shooting the victim. Since Defendant shot at the victim not once but four times, striking the victim twice, the reasonable inference is that Defendant intended to kill the victim, not just frighten him. I believe it is also significant that the victim was in the ear at the time he was shot and that the officers did not find any evidence of defensive wounds. The trial court, having heard this testimony, could reasonably infer that the victim did not provoke Defendant, even if the provocation was insufficient, which distinguishes this case from State v. Taylor, 2000-NMCA-072, 129 N.M. 376, 8 P.3d 863. In Taylor, the defendant’s statements suggested the use of a gun in reaction to what he considered to be physical abuse by the victim, his wife, toward their eighteen-month-old daughter. In this ease, parking in a space that was not even assigned to Defendant can hardly be considered provocation. As was evident from the testimony, Defendant knew that people parked in that space all the time, and he did not complain about it to the landlord or anyone else. Yet, on this occasion, Defendant’s spontaneous remarks following the shooting illustrate that he weighed and considered the question of killing and his reasons for it. He was motivated to shoot and kill this victim for having parked in the parking space located in front of Defendant’s apartment. The trial court might have found, as does the majority, that this was a rash impulse, but the court as fact-finder did not. Looking at the evidence in the light most favorable to the finding, I find sufficient evidence to support the trial court.
{33} For the foregoing reasons, I respectfully dissent.