(dissenting).
{33} I respectfully dissent. I agree with the majority that there is sufficient evidence to support Defendant’s felony murder conviction. However, I believe that the trial judge’s instructions as a whole adequately informed the jury of the requirements of factual and legal causation. I would therefore affirm.
{34} Based on UJI 14-251, the trial court initially instructed the jury that “[t]he cause' of death is an act which, in a natural and continuous chain of events, produces the death and without which the death would not have occurred.” There is no doubt that the language, “without which the death would not have occurred,” conveys the requirement of but-for causation. As a result, I agree with the majority that the trial judge improperly gave a verbal instruction to the jury that the State is not required to show but-for causation. This additional instruction created the potential for ambiguity on the issue of causation. However, I believe that the instructions as a whole satisfactorily cured any potential ambiguity, see State v. Parish, 118 N.M. 39, 42, 878 P.2d 988, 991 (1994) (stating that “if a jury instruction is capable of more than one interpretation, then the court must next evaluate whether another part of the jury instructions satisfactorily cures the ambiguity”), and I do not believe that the trial judge’s misstatement caused any prejudice to Defendant. The trial judge emphasized to the jury that “there are [two] parts” to the causation instruction and that the jury “must consider the instructions as a whole.” The trial judge also re-read the entire written standard for causation.
{35} UJI 14-251 provided at that time that “there may be more than one cause of death” and that “[i]f the acts of two or more persons contribute to the cause of death, each act is a cause of death.” In this case, the State argued that there were multiple causes of death, that Defendants’ acts contributed to the cause of death, and that, in combination, the shooting and Defendant’s acts caused the victim’s death. This argument is wholly consistent with the former version of UJI 14-251. It is also consistent with the present version of this instruction. Under the revised instruction, the State must demonstrate beyond a reasonable doubt that “[t]he act of the defendant was a significant cause of the death.” UJI 14-251. A significant cause of death is defined as “an act which, in a natural and continuous chain of events, uninterrupted by an outside event, resulted in the death and without which the death would not have occurred.” Id. In the case of multiple causes of death, however, this definition is further refined: “There may be more than one significant cause of death. If the acts of two or more persons significantly contribute to the cause of death, each act is a significant cause of death.” Id. (emphasis added).
{36} In other words, the State can satisfy the requirement of but-for causation by showing that the defendant’s acts significantly contributed to the cause of death. See State v. Muñoz, 1998-NMSC-041, ¶ 23, 126 N.M. 371, 970 P.2d 143 (stating that for causation “there must be a significant link between the victim’s death and the defendant’s act”). The language in paragraph three is “merely elaborative of the primary instruction. Indeed, it expands, rather than contracts, the range of possible acts constituting the crime____” State v. Muñoz, 1998-NMSC-048, ¶ 47, 126 N.M. 535, 972 P.2d 847 (citation omitted). Thus, the language in paragraph three explains but-for causation in the context of multiple causes and provides that a contribution to the cause of death is itself a factual cause of death. For example, in State v. Brown, 100 N.M. 726, 728, 676 P.2d 253, 255 (1984), this Court held that a murder conviction was adequately supported by evidence “that the defendant contributed to the victim’s death by abandoning her injured, helpless and unconscious on a winter night.” The Court concluded that “[t]he jury had substantial evidence from which it could conclude that the defendant’s actions caused or contributed to the victim’s death.” Id. (emphasis added).
{37} New Mexico’s significant contribution test is similar to what is known as the substantial factor test.
[T]he test for causation-in-fact is more accurately worded, not in terms of but-for cause, but rather: Was the defendant’s conduct a substantial factor in bringing about the forbidden result? Of course, if the result would not have occurred but for his [or her] conduct, his [or her] conduct is a substantial factor in bringing about the result; but his [or her] conduct will sometimes be a substantial factor even though not a but-for cause.
1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.12(b), at 394-95 (1986) (footnote omitted). See generally State v. Stone, 758 So.2d 997, 1001 (La.Ct.App.2000) (“Whether the terms ‘substantial factor’ or ‘clearly contributing cause’ are used, these standards are used interchangeably and therefore, the basic determination is whether the defendant’s act was a proximate cause of the victim’s death.”). Although this treatise appears to limit the application of the substantial factor test to independent sufficient causes of death, I believe that this limited view is inconsistent with paragraph three of UJI 14-251 and with Brown. Other jurisdictions have similarly applied the substantial factor test more broadly. See, e.g., State v. Kalathakis, 563 So.2d 228, 232 (La.1990) (“[L]egal cause in criminal cases requires that the defendant’s act was a substantial factor in bringing about the forbidden result.”) (quotation marks and quoted authority omitted). I would apply the substantial factor test outside of the limited context of independent sufficient causes because the test “serves to emphasize common sense,” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 780 (3d ed.1982), and “[i]n the determination of proximate cause common sense is not to be eliminated,” State v. Landgraf, 1996-NMCA-024, ¶ 31, 121 N.M. 445, 913 P.2d 252 (quoted authority and quotation marks omitted) (alteration in original). Ultimately, the application of this test is a matter of statutory construction, and as this Court has stated, “there is not the slightest suggestion [in Section 30-2-1] that if there are multiple individuals responsible for the death that any of them is less guilty of the crime of murder.” Muñoz, 1998-NMSC-048, ¶ 47, 126 N.M. 535, 972 P.2d 847. By establishing a significant contribution, in combination with another’s acts, the State has proved but-for causation under UJI 14-251. See Simpson, 116 N.M. at 772, 867 P.2d at 1154 (“General principles of criminal law do not require that a defendant’s conduct be the sole cause of the crime.”).
{38} The trial judge gave the verbal instruction because defense counsel improperly argued that the State had to prove beyond a reasonable doubt that the victim would have lived but for Defendant’s acts. As the majority states, to establish but-for causation, the State was required to show only that without Defendant’s actions the victim would not have died in the same manner and at the same time as he did; the State did not have to prove that the victim would have survived the gunshot wound without Defendant’s acts.
{39} The evidence in this case established that the victim was alive immediately after the shooting and, in fact, asked Sherrilyn Brown to take him home. The victim was still alive during the time Defendant drove him to the isolated location and resisted the kidnaping enough to prompt Defendant to beat him in order to keep him on the floor of the vehicle. Finally, the victim was alive even after Defendant abandoned him, partially crawling out of the vehicle. The medical examiner testified that the victim bled to death. It is reasonable to infer from these facts that Defendant’s act of isolating the victim and preventing medical treatment hastened or accelerated the victim’s death and that the victim would have lived longer than he did, even if by a matter of hours, had he received medical treatment. Defendant, who the jury found acted with an intent to kill or with the knowledge that his acts created a strong probability of death or great bodily harm, is still guilty of murder even if he merely hastened the victim’s death. See Holsemback v. State, 443 So.2d 1371, 1382 (Ala.Crim.App.1983) (“To render a defendant guilty, it is not necessary that the blow given by him [or her], or his [or her] wrongful act, was the sole cause of death. Even if the blow or act was only a partial cause accelerating death, the defendant is nevertheless guilty.”); Lawson v. State, 274 Ga. 866, 561 S.E.2d 72, 73 (2002) (similar); Williams v. State, 669 N.E.2d 1372, 1387 (Ind.1996) (affirming a murder conviction even though the victim was fatally wounded when the defendant shot her because the defendant’s act hastened death “ ‘by minutes’ ”); Adcock v. Commonwealth, 702 S.W.2d 440, 444 (Ky.1986) (“[T]he hastening of a death which would not otherwise have occurred at that time is a cause of the death.”); State v. Matthews, 450 So.2d 644, 646 (La.1984) (stating that “[i]t is not essential that the act of the defendant should have been the sole cause of the death; if it hastened the termination of life, or contributed, mediately or immediately, to the death, in a degree sufficient to be a clearly contributing cause, that is sufficient”) (alteration in original) (quotation marks and quoted authority omitted); see also 1 LaFave & Scott, supra, § 3.12(b), at 395 (“[0]ne who hastens the victim’s death is a cause of [the] death.”).
{40} In response to defense counsel’s legally incorrect argument that the State had to prove that the victim would have survived but for Defendant’s acts, the trial court should have instructed the jury that but-for causation can be established by showing a significant contribution to the cause of death, instead of instructing the jury that but-for causation need not be proved. Nonetheless, the instructions as a whole, and the trial court’s particular direction to the last paragraph of the uniform jury instruction, adequately informed the jury of the cause-in-fact aspect of the causation element. I do not believe that the trial court’s incorrect remark affected the jury’s understanding of the basic requirement of causation. Cf. State v. Coffin, 1999-NMSC-038, ¶ 29, 128 N.M. 192, 991 P.2d 477 (“Viewing the response to the jury in context with the jury instruction itself, we determine that the response could not have caused confusion or created ambiguity concerning the requisite mens rea____Thus, we conclude that the trial court’s response to the jury, though deficient, did not constitute error____”). Because the trial court properly instructed the jury on paragraph three and the State satisfied this standard of causation, I believe “it is proper and just to hold the defendant criminally responsible for the consequences of his ... unlawful behavior.” Muñoz, 1998-NMSC-041, ¶ 22, 126 N.M. 371, 970 P.2d 143.
{41} I agree with the majority that paragraph three should not be given in isolation, that the substantial factor test is “one of exclusion only,” Perkins & Boyce, supra, at 780, and that the jury must also be informed of the requirement of proximate causation. However, I do not believe that the trial judge’s verbal instruction eliminated this aspect of causation. In fact, the trial judge specifically told the jury that “as [she] read[s] the instructions, it is a proximate causation instruction,” and she included the proximate cause language of the instruction when she re-read it to the jury. The judge was particularly concerned that defense counsel singled out the “without which” language and omitted the proximate cause context of a natural and continuous chain of events. Following the second bench conference, defense counsel, without objection by the prosecutor or comment by the judge, argued to the jury that it had to find that
in this string of things that happened from the time Claudia Moreno shot [the victim], that through that whole thing up until the time [the victim] died, [Defendant] did things which were a cause of the death, beyond a reasonable doubt. But in the natural and continuous chain of events which [produced] the death, the actions of [Defendant] were something without which death would not have occurred.
With respect to the judge’s admonition to the jury that argument of counsel is not evidence, this instruction was proper. See UJI 14-104 NMRA 2002. In addition, the judge explained,
I don’t think I’ve told them to disregard what you have said[;] I’ve told them to listen very carefully. I’ve told them they can disregard a misstatement of the law, and they’re going to have to determine for themselves how this law applies to the facts as you have argued them.
The trial judge’s verbal instruction was based on her legitimate concern about defense counsel’s distortion of but-for causation and, in my view, had no impact on the jury’s understanding of proximate causation.
{42} The majority relies on the rule that an erroneous instruction cannot be cured by a subsequent correct one. While I agree that the judge erroneously instructed the jury that the State did not have to prove but-for causation, I disagree with the application of this rule to the present case. As this Court has previously held, this rule applies only if the impugned instruction is “complete, unambiguous, and certain.” State v. Crosby, 26 N.M. 318, 325, 191 P. 1079, 1081 (1920); accord Parish, 118 N.M. at 41-42, 878 P.2d at 990-91. On the other hand, “[i]f this instruction were ambiguous and incomplete, and also capable of another, different, and correct interpretation ..., it might then be cured by [a] subsequent instruction.” Crosby, 26 N.M. at 324, 191 P. at 1081. The trial court’s verbal instruction that the State was not required to demonstrate that but for Defendant’s acts the victim would have survived was neither complete nor unambiguous. It was incomplete because it told the jury what the State did not need to prove without telling the jury what the State did need to prove. The trial judge referred the jury to the written instructions for this latter piece of information. The verbal instruction was also ambiguous because it was capable of different interpretations. The instruction could be viewed as simply informing the jury of the legally accurate fact that, as discussed above, the State need not prove that the victim would have survived the gunshot wound. In contrast, it could also be viewed as improperly eliminating the but-for causation requirement. As a result, the verbal instruction does not represent an incurable error, and it is necessary to view the instructions as a whole in order to determine whether a reasonable juror would have been confused by the verbal instruction. Cf. State v. Lucero, 110 N.M. 50, 52, 791 P.2d 804, 806 (Ct.App.1990) (“The trial court’s statement that there were two sides to every lawsuit was capable of different interpretations____ Because the statement was ambiguous, we examine the instructions as a whole.”). In my view, the trial judge’s second reading of the written jury instruction providing the correct standard for causation satisfactorily cured any ambiguity in the verbal instruction.
{43} To me, the prosecutor’s closing argument is much more troubling than the court’s verbal instruction to the jury. The prosecutor argued that a contributing cause can be the equivalent of a $50 donation to a $1.2 million campaign or a single vote in a statewide election. This argument comes dangerously close to advocating the legally incorrect standard of “fault to an insignificant extent,” State v. Simpson, 116 N.M. 768, 772, 867 P.2d 1150, 1154 (1993). Nonetheless, Defendant did not object to this argument or raise this issue on appeal, and in any event, I presume that the addition of the words “significant” and “significantly” to the revised instruction will clarify this matter on remand.
{44} It appears to me that the real difficulty in the present case is the prosecutor’s decision to proceed only on a theory of principal liability for felony murder. The discussion of but-for causation in the context of multiple causes almost always distinguishes between completely independent acts and those done in concert. See, e.g., 1 LaFave & Scott, supra, § 3.12(b), at 394.
When assailants act in concert each is, of course, liable for his [or her] own actions, and also vicariously liable for the acts of the others____Since these acts are, taken together, a but-for cause of death, the liability of each participant is clear. The only difficult case is one that arises most infrequently, when the conduct of two actors is completely independent____
Model Penal Code § 2.03 cmt. 2 (1962) (emphasis added). Indeed, under UJI 14-2821 NMRA 2002, liability for felony murder under an accomplice theory can be based on the defendant having “helped, encouraged or caused the killing to be committed.” See State v. Harrison, 90 N.M. 439, 441-42, 564 P.2d 1321, 1323-24 (1977) (stating that “causation consists of those acts of defendant or his [or her] accomplice initiating and leading to the homicide”) (emphasis added). For multiple perpetrators acting in concert, the subtleties surrounding causation disappear. See People v. Caldwell, 36 Cal.3d 210, 203 Cal.Rptr. 433, 681 P.2d 274, 280 (1984) (“Decisions in cases involving conduct of more than one co-felon acting in concert reflect the settled view that the extent of an individual’s contribution to the resulting death need not be minutely determined.”); 1 LaFave & Scott, supra, § 3.12(b), at 396 (“Of course, in all these eases involving two assailants, if A and X are not acting independently, but are working together to cause B’s death, one is as guilty as the other on general principles concerning accomplices in crime, no matter which one actually applies the coup de grace.”).
{45} In this case, Defendant’s acts are not completely independent of the acts of Toney and Moreno. The jury convicted Defendant of conspiring with Toney to commit false imprisonment and kidnaping, and the evidence supports a reasonable inference that Toney’s orders, Moreno’s shooting, and Defendant’s false imprisonment and kidnaping combined to accomplish the common design of killing the victim. Under these circumstances, the question of causation in this case should not be as difficult as it has become under its current posture. Of course, because accomplice liability is not a separate offense, see State v. Nance, 77 N.M. 39, 45-47, 419 P.2d 242, 246-47 (1966), the principle of double jeopardy does not preclude the State from proceeding on a theory of accomplice liability on remand, nor would the trial court be precluded from instructing the jury on this theory if it is supported by the evidence, see State v. Wall, 94 N.M. 169, 171-72, 608 P.2d 145, 147-48 (1980).
{46} For the reasons articulated above, I would affirm Defendant’s felony murder conviction. The majority holding otherwise, I respectfully dissent.