 1       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Opinion Number:

 3 Filing Date: January 26, 2017

 4 NO. S-1-SC-35508

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 MARCOS SUAZO,

 9       Defendant-Appellant.


10 CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS
11 Jeff F. McElroy, District Judge


12 Bennett J. Baur, Chief Public Defender
13 William A. O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16 Hector H. Balderas, Attorney General
17 John Kloss, Assistant Attorney General
18 Santa Fe, NM

19 for Appellee
 1                                       OPINION

 2 CHÁVEZ, Justice.

 3   {1}   Defendant Marcos Suazo became agitated while roughhousing with his friend

 4 Matthew Vigil. Suazo retrieved his shotgun and pointed it at Vigil. Vigil grabbed

 5 the shotgun and placed the barrel in his mouth. Suazo pulled the trigger, killing Vigil

 6 and severely injuring his friend Roger Gage, who was standing behind Vigil. A key

 7 contested issue in this case was whether Suazo knew the shotgun was loaded when

 8 he pulled the trigger.

 9   {2}   Two potentially reversible errors occurred during trial. First, at trial Suazo

10 sought to introduce testimony from two witnesses who saw him approximately one

11 hour after the shooting and heard him claim that he did not know the shotgun was

12 loaded. The district court excluded the testimony as inadmissible hearsay. Second,

13 over Suazo’s objection, the prosecution persuaded the court to depart from the

14 uniform jury instruction regarding second-degree murder, which has existed since

15 1981,1 by modifying the mens rea element. Instead of requiring the jury to find

16 beyond a reasonable doubt that “[Suazo] knew that his acts created a strong

17 probability of death or great bodily harm,” the modified instruction changed the mens


         1
18         NMSA 1978, UJI Crim. 2.11 (1981), committee commentary (“Element 2 of
19 UJI 2.10 and of UJI 2.11 were . . . revised in 1981 to be consistent with the 1980
20 amendment to Section 30-2-1 NMSA 1978.”); see also UJI 14-211 NMRA (1989).
 1 rea element to “knew or should have known.” See UJI 14-210 NMRA.

 2   {3}   Among other crimes, Suazo was convicted of second-degree murder and

 3 aggravated battery with a deadly weapon. He appealed his second-degree murder

 4 conviction to the Court of Appeals, contending that the district court erred by

 5 excluding the witness testimony and by modifying the uniform jury instruction for

 6 second-degree murder. The Court of Appeals certified his case to this Court pursuant

 7 to Rule 12-606 NMRA and NMSA 1978, Section 34-5-14(C) (1996) due to the

 8 significant public importance of the jury instruction issue. State v. Suazo, order at 3

 9 (N.M. Ct. App. Sept. 4, 2015) (non-precedential). We accepted certification and

10 address both issues.

11   {4}   First, we affirm the district court’s exclusion of the hearsay evidence because

12 the district court did not abuse its discretion in finding that Suazo’s statements, which

13 were overheard one hour after the shooting, were neither excited utterances nor

14 present sense impressions. Second, we hold that the district court erred by modifying

15 the uniform jury instruction for second-degree murder because in 1980 the

16 Legislature amended the definition of second-degree murder to specifically require

17 proof that the accused knew that his or her acts created a strong probability of death

18 or great bodily harm. 1980 N.M. Laws, ch. 21; see NMSA 1978, § 30-2-1(B) (1980).



                                               2
 1 Because the modified instruction misstated an essential element, we reverse Suazo’s

 2 conviction for second-degree murder and remand for a new trial. See State v.

 3 Dowling, 2011-NMSC-016, ¶ 17, 150 N.M. 110, 257 P.3d 930 (“When a jury

 4 instruction is facially erroneous, as when it directs the jury to find guilt based upon

 5 a misstatement of the law, a finding of juror misdirection is unavoidable.”).

 6 I.      BACKGROUND

 7   {5}   Suazo had spent most of the day drinking and visiting with his longtime

 8 friends, Vigil and Gage, at the trailer where he lived and in other locations in and

 9 around Talpa, New Mexico. Vigil and Suazo were roughhousing throughout most of

10 the day. The two friends often wrestled this way when they were together.

11   {6}   Sometime in the early afternoon, Vigil remarked that Suazo had a nice shotgun,

12 and Gage asked to see it. When Suazo brought out the shotgun, Gage opened it to

13 make sure that it was not loaded. At Gage’s request, Suazo disassembled and

14 reassembled the gun. When they finished with the gun, Gage saw Suazo place it

15 against the wall near the back door of the trailer. Gage was certain that the gun was

16 not loaded at that point.

17   {7}   Later that afternoon, Suazo and Vigil were wrestling outside again. Suazo told

18 Vigil not to mess with him because he had just lost his brother. The roughhousing



                                              3
 1 continued. Vigil tried to push Suazo against a car, and then Suazo rushed into the

 2 trailer. Suazo’s girlfriend, Shania Lujan, heard him cock the shotgun. At trial she

 3 testified that she told Suazo to be careful with the gun and that he responded “Don’t

 4 worry, it’s not loaded.” However, she had previously given a statement that Suazo

 5 had only responded “Leave me alone.” She testified that Suazo then held the shotgun

 6 with one hand and pointed it at Vigil while standing in the doorway of the trailer. She

 7 said that Vigil laughed and then grabbed the barrel of the gun and stuck it into his

 8 own mouth. At this point, Gage was standing almost directly behind Vigil. Suazo

 9 pulled the trigger and the gun fired. Vigil was killed and Gage was seriously injured.

10 It is not clear when the gun was loaded and who loaded it.

11 II.     DISCUSSION

12 A.      The district court did not abuse its discretion by excluding certain
13         statements by Suazo as hearsay

14   {8}   Suazo sought to elicit testimony from two witnesses at trial regarding

15 statements he made approximately an hour after the shooting, between 4:40 and 5:00

16 p.m. Elaine Medina and Rosemary Cruz, Suazo’s stepmother, testified that Suazo

17 told them he had killed his best friend, he did not know the gun was loaded, and he

18 did not understand what had happened. Medina testified that when Suazo made these

19 statements he was curled up in a ball and crying hard, and she had never seen him cry

                                              4
 1 like that. Similarly, Cruz testified that he appeared drunk, he seemed “very upset,”

 2 and he was crying “a lot” when he made the statements. The State objected to the

 3 witnesses’ statements as hearsay, but defense counsel argued that the statements

 4 should be admitted under the excited utterance and present sense impression

 5 exceptions to the hearsay rule. See Rule 11-803(1)-(2) NMRA. The district court

 6 sustained the State’s objections and excluded the evidence.

 7   {9}   Although the Court of Appeals only certified the jury instruction issue to this

 8 Court, we take this opportunity to resolve Suazo’s claim that the district court

 9 erroneously excluded the witness testimony about statements that he made after the

10 shooting. See State v. Orosco, 1992-NMSC-006, ¶ 2 n.2, 113 N.M. 780, 833 P.2d

11 1146 (stating that this Court has jurisdiction over the entire case following acceptance

12 of certification). “We examine the admission or exclusion of evidence for abuse of

13 discretion, and the trial court’s determination will not be disturbed absent a clear

14 abuse of that discretion.” State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37

15 P.3d 85. “An abuse of discretion occurs when the ruling is clearly against the logic

16 and effect of the facts and circumstances of the case. We cannot say the trial court

17 abused its discretion by its ruling unless we can characterize [the ruling] as clearly

18 untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M.



                                              5
 1 438, 971 P.2d 829 (internal quotation marks and citations omitted). We conclude that

 2 there was no abuse of discretion in this case.

 3   {10}   There is no doubt that Suazo’s anguished statements to Medina and Cruz were

 4 hearsay because they were out-of-court statements offered to prove what they

 5 asserted—that Suazo did not realize the shotgun was loaded and he did not mean to

 6 kill Vigil. See Rule 11-801 NMRA (defining as hearsay out-of-court statements

 7 offered to prove the truth of what they assert). Such statements are inadmissible

 8 unless an exception applies. Rule 11-802 NMRA.

 9   {11}   A statement that would otherwise be hearsay can be admitted under the excited

10 utterance exception when it “relat[es] to a startling event or condition” and is “made

11 while . . . under the stress or excitement” caused by that event or condition. Rule 11-

12 803(2). “[T]he theory underlying the excited utterance exception is that the exciting

13 event induced the declarant’s surprise, shock, or nervous excitement which

14 temporarily stills capacity for conscious fabrication and makes it unlikely that the

15 speaker would relate other than the truth.” State v. Flores, 2010-NMSC-002, ¶ 47,

16 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citations omitted). Thus,

17 “to constitute an excited utterance, the declaration should be spontaneous, made

18 before there is time for fabrication, and made under the stress of the moment.” Id.



                                              6
 1 (internal quotation marks and citations omitted). In determining whether to admit a

 2 statement under the excited utterance exception, the district court should consider the

 3 totality of the circumstances and

 4          consider a variety of factors in order to assess the degree of reflection or
 5          spontaneity underlying the statement. These factors include, but are not
 6          limited to, how much time passed between the startling event and the
 7          statement, and whether, in that time, the declarant had an opportunity for
 8          reflection and fabrication; how much pain, confusion, nervousness, or
 9          emotional strife the declarant was experiencing at the time of the
10          statement; whether the statement was self-serving[; and whether the
11          statement was] made in response to an inquiry[.]

12 State v. Balderama, 2004-NMSC-008, ¶ 51, 135 N.M. 329, 88 P.3d 845 (alterations

13 in original) (internal quotation marks and citations omitted).

14   {12}   Under the totality of the circumstances, in this case the district court did not

15 abuse its discretion by excluding testimony regarding Suazo’s statements to Medina

16 and Cruz after the shooting. Prior to making the statements, Suazo drove away from

17 the crime scene with his girlfriend and asked her to take the batteries out of his phone.

18 He told her during the drive that he was “gonna go away for a long time.” He made

19 several stops, including at his stepmother’s house, where he hid the shotgun. The

20 approximately one hour that elapsed between the shooting and the statements,

21 coupled with Suazo’s intervening actions and statements, could reasonably be

22 interpreted to indicate that he reflected on what had happened and the gravity of his


                                                 7
 1 situation, and therefore his later statements were not sufficiently spontaneous so as

 2 to assure their reliability and qualify them as excited utterances.

 3   {13}   We likewise reject Suazo’s claim that it was error for the district court not to

 4 admit the statements under the present sense impression hearsay exception. The

 5 present sense impression exception applies to statements “describing or explaining

 6 an event or condition, made while or immediately after the declarant perceived it.”

 7 Rule 11-803(1). Again, given the length of time and Suazo’s intervening actions

 8 between the shooting and the statements, the district court properly exercised its

 9 discretion to refuse to apply this exception and exclude the testimony as hearsay. See

10 Flores, 2010-NMSC-002, ¶¶ 51-53 (explaining that the contemporaneity of the event

11 with the timing of the statement is the critical consideration in analyzing whether a

12 hearsay statement qualifies as a present sense impression).

13 B.       The district court erred by including “should have known” in the jury
14          instruction for second-degree murder

15   {14}   At the conclusion of Suazo’s trial, the State tendered a modified jury

16 instruction for second-degree murder. New Mexico’s uniform jury instruction for

17 second-degree murder would require the jury to find beyond a reasonable doubt that

18 Suazo “knew that his acts created a strong probability of death or great bodily harm”

19 to Vigil or another. UJI 14-210. The State’s modified jury instruction in this case

                                                8
 1 inserted “knew or should have known” in place of the word “knew,” but was

 2 otherwise consistent with the model instruction. The distinction between “knew” and

 3 “should have known” was central to this case because if the jurors believed that

 4 Suazo did not realize that the shotgun was loaded and the shooting was therefore an

 5 accident, as he claimed, they could have reasonably found that he should have known

 6 of the probability of death or great bodily harm to Vigil because he obviously did not

 7 inspect the gun to determine if it was loaded. The district court gave the State’s

 8 proposed jury instruction over defense counsel’s objection. Suazo contends that the

 9 district court erred by adding the phrase “or should have known” in instructing the

10 jury on the mens rea required for second-degree murder.

11   {15}   We review the jury instruction in this case for reversible error because Suazo

12 preserved his objection at trial. State v. Cabezuela, 2011-NMSC-041, ¶ 21, 150 N.M.

13 654, 265 P.3d 705. We conclude that there is reversible error when the jury

14 instructions, taken as a whole, cause juror confusion by “fail[ing] to provide the

15 juror[s] with an accurate rendition of the relevant law.” Id. ¶ 22 (internal quotation

16 marks and citation omitted); see also Rule 5-608(A) NMRA (“The court must instruct

17 the jury upon all questions of law essential for a conviction of any crime submitted

18 to the jury.”). “When a jury instruction is facially erroneous, as when it directs the



                                               9
 1 jury to find guilt based upon a misstatement of the law, a finding of juror misdirection

 2 is unavoidable.” Dowling, 2011-NMSC-016, ¶ 17.              To ascertain whether the

 3 challenged instruction in this case accurately stated the law, we must determine

 4 whether the requisite mens rea for second-degree murder is satisfied by a jury finding

 5 that Suazo should have known that his acts created a strong probability of death or

 6 great bodily harm to Vigil. This inquiry requires us to interpret the mens rea

 7 component of our second-degree murder statute.              “Our primary goal when

 8 interpreting a statute is to determine and give effect to the Legislature’s intent.” Cook

 9 v. Anding, 2008-NMSC-035, ¶ 7, 144 N.M. 400, 188 P.3d 1151.

10   {16}   We begin with the plain language of the statute, which is “[t]he primary

11 indicator of legislative intent.” State v. Johnson, 2009-NMSC-049, ¶ 10, 147 N.M.

12 177, 218 P.3d 863. Pursuant to Section 30-2-1(B),

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

19 (Emphasis added.) Under the statute, a defendant must know that his or her acts

20 create a strong probability of death or great bodily harm; there is no express

21 requirement that a defendant “should have known.” Id.; see also UJI 14-210


                                              10
 1 (instructing jurors that they must find that “[t]he defendant knew that his [or her] acts

 2 created a strong probability of death or bodily harm” to convict for second-degree

 3 murder). The statute’s plain language and New Mexico’s uniform jury instruction

 4 require that the defendant possess knowledge of the probable consequences of his or

 5 her acts. See § 30-2-1(B); UJI 14-210. By contrast, neither the statute nor the jury

 6 instruction explicitly mentions whether a reasonable person “should have known” of

 7 the probable consequences as a mens rea standard. We must give effect to this plain

 8 language unless we detect some ambiguity in the statute that requires a different

 9 interpretation. State v. Maestas, 2007-NMSC-001, ¶ 14, 140 N.M. 836, 149 P.3d

10 933.

11   {17}   We are not persuaded by the State’s reliance on State v. Brown as a source of

12 ambiguity in the statute that requires us to read the statutory term “knows” to

13 encompass an objective knowledge of the risk through a “should have known”

14 standard. 1996-NMSC-073, ¶ 16, 122 N.M. 724, 931 P.2d 69. In Brown, this Court

15 determined that a jury may consider evidence of intoxication when a defendant has

16 been charged with first-degree depraved mind murder because the defendant’s

17 “subjective or actual knowledge of the high degree of risk involved in his conduct”

18 is an essential element of that offense. Id. ¶¶ 13, 19, 35. As part of our analysis in



                                              11
 1 Brown, we distinguished between the culpable mental states required by first- and

 2 second-degree murder. Id. ¶¶ 14, 16. To that end, we opined that a defendant’s

 3 “subjective knowledge” of the risk under depraved mind murder constituted proof of

 4 a “wicked or malignant heart” and “utter disregard for human life,” while second-

 5 degree murder only required an “objective knowledge of the risk” without any

 6 showing that the act was performed with a wicked or malignant heart. Id. ¶ 16

 7 (internal quotation marks omitted).       Our Court’s discussion of the mens rea

 8 requirement for second-degree murder in Brown was unnecessary to the resolution

 9 of that case and was therefore dicta.

10   {18}   Our differentiation between a defendant’s subjective and objective knowledge

11 of the risk was intended to draw a principled distinction between first-degree

12 depraved mind murder and second-degree murder. See id. ¶ 16. This issue has vexed

13 New Mexico courts since 1980, when New Mexico’s current statutory definitions of

14 the mens reas for murder in the first- and second-degree were enacted. 1980 N.M.

15 Laws, ch. 21. The amended statute changed the mens rea for second-degree murder

16 from “malice aforethought” to knowledge that a defendant’s acts created a strong

17 probability of death or great bodily harm. Compare id. with NMSA 1953, § 40A-2-1

18 (1963). After this new language was enacted, courts and commentators alike noted



                                             12
 1 the difficulty in distinguishing between the knowledge requirements for first-degree

 2 depraved mind murder (knowledge that an act is greatly dangerous to the lives of

 3 others, indicating a depraved mind without regard for human life) and second-degree

 4 murder (knowledge that an act creates a strong probability of death or great bodily

 5 harm to the victim or another person). See Leo M. Romero, Unintentional Homicides

 6 Caused by Risk-Creating Conduct: Problems in Distinguishing Between Depraved

 7 Mind Murder, Second Degree Murder, Involuntary Manslaughter, and Noncriminal

 8 Homicide in New Mexico, 20 N.M. L. Rev. 55, 61-69 (1990) (identifying potential

 9 distinctions between depraved mind murder and second-degree murder and

10 discussing the efforts of New Mexico courts to differentiate between the two).

11   {19}   This Court first grappled with this thorny distinction in State v. McCrary,

12 which was decided more than a decade prior to Brown. McCrary, 1984-NMSC-005,

13 100 N.M. 671, 675 P.2d 120. In McCrary we determined that first-degree depraved

14 mind murder required proof of the defendant’s subjective knowledge that his or her

15 act was greatly dangerous to the lives of others. Id. ¶¶ 8-10. We relied on the

16 committee commentary to the uniform jury instruction on first-degree depraved mind

17 murder which existed at that time, which asserted that second-degree murder required

18 an objective test of a defendant’s knowledge, presumably implying that a “should



                                             13
 1 have known” standard would satisfy the mens rea requirement for second-degree

 2 murder. Id. ¶ 8, referring to NMSA 1978, UJI Crim. 2.05, committee commentary

 3 (Repl. Pamp. 1982).

 4   {20}   However, the committee commentary to a jury instruction is only persuasive

 5 to the extent that it correctly states the law. See State v. Johnson, 2001-NMSC-001,

 6 ¶ 16, 130 N.M. 6, 15 P.3d 1233 (disapproving of a uniform jury instruction and its

 7 commentary because it was a “misstatement of [the] law”), holding limited on other

 8 grounds by State v. Sims, 2010-NMSC-027, ¶¶ 31-32, 148 N.M. 330, 236 P.2d 642.

 9 The passage in the commentary relied on by the McCrary Court is “doubtful

10 authority” that objective knowledge is sufficient for second-degree murder. Romero,

11 supra, at 65; see UJI Crim. 2.05, committee commentary (Repl. Pamp. 1982) (citing

12 Wayne R. LaFave & Austin W. Scott, Handbook On Criminal Law 544 (1972)). As

13 Professor Romero has noted, it appears that the drafters of the committee commentary

14 “lifted a sentence out of context and mistakenly assumed that the treatise supports an

15 objective standard for second degree murder.” Romero, supra, at 65-67. Instead, the

16 quoted portion of LaFave and Scott states that under first-degree depraved mind

17 murder, it is “unusual” that a defendant’s subjective realization of the risk will be at

18 issue, and argues that attendant circumstances known to a reasonable person will



                                              14
 1 often be sufficient to establish that the defendant knew that his or her acts were

 2 greatly dangerous to the lives of others. Id.; see also UJI Crim. 2.05, committee

 3 commentary (quoting LaFave & Scott at 544). Indeed, in the next paragraph the

 4 treatise argues that a subjective realization of the risk should be required to convict

 5 for any degree of murder due to the drastic penal consequences of a murder

 6 conviction. LaFave & Scott, supra, at 544.

 7   {21}   To further confuse matters, a little over a year after McCrary was decided, we

 8 held in State v. Beach that second-degree murder contained a specific “element of

 9 subjective knowledge.” 1985-NMSC-043, ¶ 12, 102 N.M. 642, 699 P.2d 115. Beach

10 was later overruled in Brown “[t]o the extent that . . . Beach . . . holds that second-

11 degree murder contains the same ‘subjective knowledge’ element as [first-degree]

12 depraved mind murder.” Brown, 1996-NMSC-073, ¶ 16.

13   {22}   The Brown Court overruled Beach in dicta, which likely explains why since

14 Brown was decided, neither our case law nor our uniform jury instructions have

15 applied the Brown dicta to second-degree murder cases. But cf. State v. Reed,

16 2005-NMSC-031, ¶ 81, 138 N.M. 365, 120 P.3d 447 (Serna, J., concurring in part and

17 dissenting in part) (advocating for a “should have known” standard to be incorporated

18 into the uniform jury instruction for second-degree murder based on Brown in a case



                                              15
 1 discussing first-degree depraved mind murder); State v. Baca, 1997-NMSC-059, ¶ 35,

 2 124 N.M. 333, 950 P.2d 776 (referring to the objective test for second-degree murder

 3 in analyzing an ineffective assistance of counsel claim in the context of a conviction

 4 for aiding and abetting first-degree depraved mind murder). Reed clarified that first-

 5 degree depraved mind murder can be differentiated from second-degree murder

 6 because depraved mind murder requires a jury finding that the defendant’s act

 7 “indicated a depraved mind without regard for human life.” 2005-NMSC-031, ¶ 21.

 8 We laid out several indicators of a depraved mind in Reed, including (1) the number

 9 of persons subjected to the risk, (2) subjective knowledge that the defendant’s act was

10 greatly dangerous to human life, and (3) an element of “intensified malice or evil

11 intent.” Id. ¶¶ 22-24 (internal quotation marks and citation omitted). Notably, the

12 majority opinion in Reed did not adopt the subjective-objective dichotomy urged by

13 the dissent in that case and the Brown dicta. See Reed, 2005-NMSC-031, ¶ 81 (Serna,

14 J., concurring in part and dissenting in part). However, the Reed majority stayed true

15 to Brown by clarifying how the knowledge standard for first-degree depraved mind

16 murder was distinct from the knowledge standard for second-degree murder. Reed,

17 2005-NMSC-031, ¶ 21; see Brown, 1996-NMSC-073, ¶ 16. The uniform jury

18 instructions have since been revised to elaborate upon the meaning of a “depraved



                                             16
 1 mind” and further distinguish first-degree depraved mind murder from second-degree

 2 murder; however, the second-degree murder instruction has never been revised to

 3 incorporate an objective “should have known” knowledge standard. See UJI 14-203,

 4 14-210 to -213 NMRA.

 5   {23}   This Court’s hesitancy to adopt the mens rea for second-degree murder

 6 advocated by the Brown dicta is commensurate with our consistent statements that a

 7 negligent or accidental killing could not satisfy the elements of second-degree

 8 murder. See, e.g., State v. Ortega, 1991-NMSC-084, ¶ 25, 112 N.M. 554, 817 P.2d

 9 1196 (holding that an “unintentional or accidental killing will not suffice” to establish

10 the mens rea element of second-degree murder), abrogation recognized on other

11 grounds by State v. Marquez, 2016-NMSC-025, ¶ 14, 376 P.3d 815; State v. Campos,

12 1996-NMSC-043, ¶ 18, 122 N.M. 148, 921 P.2d 1266 (“[A] negligent or accidental

13 killing would not constitute second-degree murder . . . .”); see also State v.

14 McGruder, 1997-NMSC-023, ¶ 21, 123 N.M. 302, 940 P.2d 150 (same), abrogated

15 on other grounds by State v. Chavez, 2009-NMSC-035, ¶ 26, 146 N.M. 434, 211 P.3d

16 891. Our longstanding refusal to endorse a theory of negligent murder forecloses the

17 implication in Brown that to convict of second-degree murder it would be sufficient

18 for the jury to find that a defendant should have known of the risk of his or her



                                              17
 1 conduct without anything more, because that is essentially a civil negligence

 2 standard. See State v. Consaul, 2014-NMSC-030, ¶ 39, 332 P.3d 850 (noting the

 3 close association between the phrase “knew or should have known” and principles

 4 of civil negligence (internal quotation marks omitted)); see also Romero, supra, at 65

 5 (“To say that a person should have known of the risk imposes a negligence standard

 6 based on an objective test of what the reasonable person would have known under the

 7 circumstances.”). Indeed, it is a “concept firmly rooted in our jurisprudence [that

 8 w]hen a crime is punishable as a felony, civil negligence ordinarily is an

 9 inappropriate predicate by which to define such criminal conduct” in the absence of

10 some contrary indication from the Legislature. Santillanes v. State, 1993-NMSC-012,

11 ¶¶ 30-31, 115 N.M. 215, 849 P.2d 358.

12   {24}   Further, if we were to adopt a “should have known” standard for second-degree

13 murder, we would render inconsistent the culpability requirements under New

14 Mexico’s various homicide statutes. For example, the lesser offense of involuntary

15 manslaughter requires that a defendant have acted “without due caution and

16 circumspection.” NMSA 1978, § 30-2-3(B) (1994). In State v. Yarborough, we

17 clarified that “the State must show at least criminal negligence to convict . . . of

18 involuntary manslaughter.” 1996-NMSC-068, ¶ 20, 122 N.M. 596, 930 P.2d 131.



                                              18
 1 The uniform jury instruction for involuntary manslaughter requires proof that a

 2 defendant “should have known of the danger involved” in his or her actions and also

 3 “acted with a willful disregard for the safety of others.” UJI 14-231 NMRA. It would

 4 be incongruent to interpret our second-degree murder statute to require a less culpable

 5 mental state (ordinary negligence) than the minimum level of culpability required by

 6 involuntary manslaughter (criminal negligence).             See State v. Nick R.,

 7 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (“We must take care to avoid

 8 adoption of a construction that would render the statute’s application absurd or

 9 unreasonable or lead to injustice or contradiction.” (internal quotation marks and

10 citation omitted)).

11   {25}   We detect no ambiguity in Section 30-2-1(B) that would require us to interpret

12 the knowledge requirement to extend to situations where a defendant did not know

13 of the risk created by his or her act, but instead merely should have known of that

14 risk. Despite some confusing language in our case law regarding first-degree

15 depraved mind murder, we have never incorporated an objective “should have

16 known” standard into our cases analyzing second-degree murder, or otherwise

17 implied that ordinary negligence could be a sufficiently culpable mental state to

18 support any kind of murder conviction. Our uniform jury instructions, to which the



                                              19
 1 State’s tendered instruction added a “should have known” component, have also

 2 never incorporated an ordinary negligence standard for second-degree murder.

 3 Accordingly, the instruction in this case misstated the mens rea element of second-

 4 degree murder, and it was therefore error for the district court to provide this

 5 instruction to the jury.2

 6 C.       The district court’s misstatement of the essential mens rea element is
 7          reversible error requiring a new trial

 8   {26}   “[I]f an instruction is facially erroneous it presents an incurable problem and

 9 mandates reversal.” State v. Parish, 1994-NMSC-073, ¶ 4, 118 N.M. 39, 878 P.2d

10 988; see also State v. Ellis, 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186 P.3d 245 (“A

11 jury instruction which does not instruct the jury upon all questions of law essential

12 for a conviction of any crime submitted to the jury is reversible error.” (internal

13 quotation marks and citations omitted)).

14   {27}   Our rules require lawyers to object to erroneous instructions, as defense

15 counsel did in this case. Rule 5-608(D). The purpose of this requirement is to alert

16 the trial court to the problem with the instruction and to allow the court an

17 opportunity to correct the error. Id. In this case, a uniform jury instruction has been

         2
18         We note that the current committee commentary to UJI 14-203 states that
19 second-degree murder requires proof of objective knowledge, citing Reed and Brown.
20 The committee should revisit this commentary in light of our opinion in this case.

                                              20
 1 available for second-degree murder since 1981. NMSA 1978, UJI Crim. 2.10 (1981)

 2 (“Second Degree Murder: voluntary manslaughter lesser included offense; essential

 3 elements”); UJI Crim. 2.11 (1981) (“Second Degree Murder: voluntary manslaughter

 4 not lesser included offense; essential elements”). “[W]hen a uniform instruction is

 5 provided for the elements of a crime, . . . the uniform instruction should be used

 6 without substantive modification . . . [unless] alteration is adequately supported by

 7 binding precedent . . . and where the alteration is necessary in order to accurately

 8 convey the law to the jury.” Uniform Jury Instructions—Criminal, Contents, General

 9 Use Note (2015). For the essential elements of crimes not contained in a uniform jury

10 instruction, the court must draft an instruction, and ordinarily that instruction is

11 adequate if it substantially follows the language of the statute. See State v. Doe,

12 1983-NMSC-096, ¶ 8, 100 N.M. 481, 672 P.2d 654 (“[I]f the jury instructions

13 substantially follow the language of the statute or use equivalent language, then they

14 are sufficient.”), holding modified by Beach, 1985-NMSC-043, ¶ 12.                The

15 modification of the uniform jury instruction in this case was not supported by binding

16 precedent, and it neither accurately conveyed the law to the jury nor substantially

17 followed the language of Section 30-2-1(B). This was not a case where the mens rea

18 element was not at issue or where the evidence was undisputed and indisputable.



                                             21
 1 Instructing the jury with a non-uniform jury instruction compromised Suazo’s

 2 “fundamental right . . . to have the jury determine whether each element of the

 3 charged offense has been proved by the state beyond a reasonable doubt,” and it was

 4 therefore reversible error. Cabezuela, 2011-NMSC-041, ¶ 39 (internal quotation

 5 marks and citations omitted).

 6   {28}   The State argues that we should not reverse because the jury found beyond a

 7 reasonable doubt that Suazo “intended to injure Roger Gage or another,” which the

 8 State contends no reasonable juror would have found while also finding that Suazo

 9 did not know of the strong probability of death or great bodily harm to Vigil. Indeed,

10 in a prior case we held that a failure to instruct on an essential element of an offense

11 does not warrant reversal under a reversible error standard “[w]hen there can be no

12 dispute that the essential element was established.” Santillanes, 1993-NMSC-012,

13 ¶ 32 (concluding that in conducting its analysis, a court must consider whether there

14 is some evidence, no matter how slight, or a reasonable inference from such evidence,

15 that proves the element in issue) (citing Orosco, 1992-NMSC-006, ¶¶ 10-12)).

16   {29}   In Santillanes we upheld the defendant’s conviction for child abuse under a

17 reversible error standard despite a jury instruction erroneously requiring the jurors to

18 find a civil negligence mens rea rather than the requisite statutory mens rea of



                                              22
 1 criminal negligence. 1993-NMSC-012, ¶¶ 32-34. In that case, the defendant was

 2 accused of cutting his seven-year-old nephew’s throat with a knife during a scuffle,

 3 but he claimed that his nephew had injured himself by jumping into a fishing line

 4 strung between two trees, and notably did not argue that he had inadvertently caused

 5 the boy’s throat to be cut. Id. ¶¶ 2, 33. The contested issue was whether the

 6 defendant cut his nephew’s throat, not whether he cut his nephew’s throat with

 7 criminal or civil negligence. We relied on the jury’s finding that the defendant had

 8 cut his nephew’s throat with a knife, and concluded that under those facts “no rational

 9 jury” could have determined that the nephew’s throat had been cut “without satisfying

10 the standard of criminal negligence” that should have been applied in that case. Id.

11 ¶ 34. Put another way, the element at issue in Santillanes was whether the defendant

12 had committed a specific act, not his mens rea. Thus, the jury’s finding beyond a

13 reasonable doubt that the defendant cut his nephew’s throat with a knife was also

14 necessarily a finding beyond a reasonable doubt that the defendant acted with at least

15 a mental state of criminal negligence in so doing.

16   {30}   According to the dissent and the State, we should view this case similarly

17 because the jury found beyond a reasonable doubt that Suazo intended to injure Gage

18 or another by shooting a shotgun in Vigil’s mouth, which the State contends was



                                             23
 1 effectively a finding beyond a reasonable doubt that Suazo knew the gun was loaded

 2 and that shooting it would create a strong probability of death or great bodily harm

 3 to Vigil. That Suazo pulled the trigger of the shotgun was not at issue in the case.

 4 Instead, the issue was whether he pulled the trigger of a shotgun that he knew was

 5 loaded. Therefore, unlike in Santillanes, where the instructional error related to what

 6 was essentially an uncontested issue, the mens rea element was a central aspect of this

 7 case. We cannot say with certainty whether the jury found that Suazo knew the

 8 shotgun was loaded, or whether jurors merely found that he should have known

 9 because a simple inspection of the shotgun would have revealed whether it was

10 loaded. The latter finding cannot support a second-degree murder conviction

11 because, as we have previously discussed, mere negligence is not enough to prove

12 second-degree murder. The misstatement of the mens rea element misdirected the

13 jury, potentially allowing the jurors to convict Suazo based upon a finding that could

14 not support a second-degree murder conviction under the appropriate legal standard.

15   {31}   It is tempting to agree with the dissent and the State that the intent to injure

16 element of aggravated battery satisfies the mens rea requirement for second-degree

17 murder because New Mexico criminalizes intent-to-injure battery, see State v.

18 Vasquez, 1971-NMCA-182, ¶ 12, 83 N.M. 388, 492 P.2d 1005 (recognizing that



                                               24
 1 aggravated battery requires proof of an intent to injure). If a jury finds that a

 2 defendant intended to injure a person by pulling the trigger of a firearm, it is

 3 reasonable to conclude that the jury found that the defendant knew that the firearm

 4 was loaded, that it would discharge, and that pulling the trigger created a strong

 5 probability of great bodily harm or death. Alternatively, if the jury was misled into

 6 believing that the intent to injure element of aggravated battery is satisfied if the jury

 7 finds that the defendant should have known that pulling the trigger created a strong

 8 probability of great bodily harm or death, then it cannot be indisputable that the jury

 9 found that the defendant knew the firearm was loaded and would discharge. The

10 latter situation is what occurred in this case. When discussing the instruction for

11 aggravated battery, the prosecutor told the jurors,

12        If you believe that [Suazo] committed second-degree murder, and that
13        he knew or should have known that his actions created great bodily harm
14        or death, towards Matthew Vigil, injuring Matthew Vigil, and as a result
15        he injures Roger Gage, that’s transferred intent. That’s where we get to
16        that element on Roger Gage.

17 (Emphasis added.) Thus, not only did the prosecution—perhaps negligently—

18 mislead the district court into issuing an erroneous instruction, the prosecution also

19 misled the jury into believing that the erroneous mens rea element for second-degree

20 murder—negligence—was sufficient to support a finding of aggravated battery. We



                                              25
 1 need not decide whether New Mexico recognizes the crime of criminal-negligence

 2 battery because in this case the prosecution did not try to make a case for criminal-

 3 negligence battery; instead, the prosecution argued a case for negligence battery. The

 4 prosecution’s errant statement to the jury further undermines the State’s premise that

 5 the jurors must have believed that Suazo knew that the gun was loaded to convict him

 6 of aggravated battery against Gage. Despite the State’s contentions in this case, the

 7 jury’s intent finding under aggravated battery is simply not enough for us to say with

 8 certainty that the jury necessarily found a different, and highly contested, mens rea

 9 for the offense of second-degree murder.3

10   {32}   Having concluded that the error in this case mandates reversal, to avoid double

11 jeopardy concerns, we must examine whether sufficient evidence in this case supports

12 retrying Suazo. Dowling, 2011-NMSC-016, ¶ 18. Under a sufficiency of the

13 evidence test, we view the evidence in the light most favorable to the verdict and

14 draw all inferences in favor of the verdict to determine “whether substantial evidence



            3
15          Although we cannot state with certainty how the jurors deliberated with
16   respect to each offense, there is at least a possibility that the jurors first considered
17   the second-degree murder charge, and determined Suazo’s guilt prior to considering
18   the battery charge. Therefore, the erroneous instruction may have influenced their
19   thinking with respect to battery. After all, once the jurors concluded that Suazo
20   committed second-degree murder, how could they not convict him of the lesser
21   offense of injuring Gage with the same shot?

                                                26
 1 of either a direct or circumstantial nature exists to support a verdict of guilty beyond

 2 a reasonable doubt with respect to every element essential to a conviction.” State v.

 3 Samora, 2016-NMSC-031, ¶ 34, ___ P.3d ___ (internal quotation marks and citations

 4 omitted). In this case, to retry Suazo for second-degree murder with manslaughter as

 5 a lesser-included offense, substantial evidence must exist to support the following

 6 elements: (1) Suazo killed Vigil, (2) Suazo knew that his acts created a strong

 7 probability of death or great bodily harm to Vigil or any other human being, (3) Suazo

 8 did not act as a result of sufficient provocation, and (4) this happened in New Mexico.

 9 Section 30-2-1(B); UJI 14-210. The first and fourth elements were undisputed in this

10 case, so the only issue is whether the mens rea and lack of sufficient provocation

11 components of the State’s case were met.

12   {33}   Viewing the evidence in the light most favorable to a guilty verdict, we

13 conclude that there was sufficient evidence to support a reasonable jury’s conclusion

14 that the mens rea and lack of sufficient provocation elements were met in this case.

15 First, the jury could have reasonably inferred from Suazo’s statements, the ambiguous

16 evidence regarding who loaded the gun and when it was loaded, and the steps Suazo

17 took after the crime to conceal evidence, that Suazo knew the gun was loaded and

18 knew that pulling the trigger would cause great bodily harm or death to Vigil.



                                              27
 1 Second, the jurors could have reasonably concluded that the roughhousing between

 2 Suazo and Vigil, an activity in which they frequently engaged and had been engaged

 3 in throughout that day, was not enough to constitute sufficient provocation to reduce

 4 the crime to manslaughter. See UJI 14-222 NMRA (“ ‘Sufficient provocation’ can

 5 be any action, conduct or circumstances which arouse anger, rage, fear, sudden

 6 resentment, terror or other extreme emotions. The provocation must be such as would

 7 affect the ability to reason and to cause a temporary loss of self control in an ordinary

 8 person of average disposition. The ‘provocation’ is not sufficient if an ordinary

 9 person would have cooled off before acting.”).

10 III.     CONCLUSION

11   {34}   Suazo’s evidentiary arguments lack merit.        The second-degree murder

12 instruction misstated the mens rea element for second-degree murder, and it therefore

13 requires reversal. We reverse Suazo’s conviction for second-degree murder and

14 remand for a new trial.

15   {35}   IT IS SO ORDERED.



16                                                 _____________________________
17                                                 EDWARD L. CHÁVEZ, Justice




                                              28
1 WE CONCUR:



2 ___________________________________
3 CHARLES W. DANIELS, Chief Justice



4 ___________________________________
5 PETRA JIMENEZ MAES, Justice



6 ___________________________________
7 BARBARA J. VIGIL, Justice


8 JUDITH K. NAKAMURA, Justice, concurring in part and dissenting in part




                                    29
 1 NAKAMURA, Justice (concurring in part; dissenting in part).

 2   {36}   This case is destined for the criminal law treatises. A shoots C. B is standing

 3 between A and C. In order for A to shoot C, A must fire through B’s head. If we

 4 accept these facts as true, what must A have known were the likely consequences for

 5 B of A’s shooting C? There can be only one conclusion: A must have known that

 6 there was a strong probability B would die. These, of course, are the facts of this

 7 case.

 8   {37}   Suazo pointed the shotgun at Vigil, and Vigil inexplicably placed the barrel of

 9 the shotgun into his mouth. Gage was standing behind Vigil. When Suazo pulled the

10 trigger and fired the shotgun, the shotgun pellets exploded from the cartridge, fired

11 out of the barrel of the shotgun, traveled into Vigil’s mouth, passed through Vigil’s

12 head killing him, and entered Gage’s body causing Gage serious injuries. For

13 perpetrating this act against Gage, Suazo was convicted of aggravated battery with

14 a deadly weapon. Suazo did not challenge the propriety of either the aggravated-

15 battery instruction or his conviction for aggravated battery.

16   {38}   At trial, the jury was instructed that

17                For you to find [Suazo] guilty of aggravated battery with a deadly
18          weapon . . . the [S]tate must prove to your satisfaction beyond a
19          reasonable doubt each of the following elements of the crime:



                                                30
 1          1.    [Suazo] touched or applied force to Roger Gage by shooting at
 2                him with a firearm.

 3                [Suazo] used a 12 gauge shotgun.

 4          2.    [Suazo] intended to injure Roger Gage or another;

 5       3.     This happened in New Mexico on or about the 21st day of May,
 6              2013.
 7 This instruction mirrors the uniform instruction. See UJI 14-322 NMRA.

 8   {39}   Aggravated battery is a specific intent crime.            State v. Crespin,

 9 1974-NMCA-104, ¶ 8, 86 N.M. 689, 526 P.2d 1282. “Specific intent to injure a

10 person is an essential element of the crime. The state must prove beyond a reasonable

11 doubt that the defendant knowingly committed an aggravated battery, purposely

12 intending to violate the law.” Id. (citation omitted). A firearm is a deadly weapon.

13 NMSA 1978, § 30-1-12(B) (1963) (“‘deadly weapon’ means any firearm . . . .”).

14 When, as in this case, aggravated battery is committed with a deadly weapon, the jury

15 need not be instructed that the weapon used was likely to cause death or great bodily

16 harm. See State v. Murillo, 2015-NMCA-046, ¶ 21, 347 P.3d 284 (explaining that the

17 jury need not find that a switchblade could cause death or great bodily harm because

18 a switchblade is per se a deadly weapon). Deadly weapons necessarily inflict great

19 bodily harm or fatal wounds.

20   {40}   I agree with the majority that the instruction submitted to Suazo’s jury on


                                             31
 1 second-degree murder was incorrect. Maj. Op. ¶ 25. But we have previously

 2 recognized that requiring reversal in every circumstance where a jury is misinstructed

 3 would not only be unwise but would lead to undesirable results. See State v. Orosco,

 4 1992-NMSC-006, ¶ 13, 113 N.M. 780, 833 P.2d 1146 (“Applying a rule of automatic

 5 reversal is not required by the relevant constitutional principles and fails to take into

 6 account our role as an appellate tribunal.”). Accordingly, we have held that, even

 7 where a jury is misinstructed, the conviction may be affirmed so long as the omitted

 8 or misstated element was properly and indisputably established. Id. ¶ 12; see also

 9 Santillanes v. State, 1993-NMSC-012, ¶ 32, 115 N.M. 215, 849 P.2d 358.

10   {41}   The jury’s decision to convict Suazo of aggravated battery against Gage

11 indisputably establishes that the jury must also have found that Suazo acted with the

12 required mens rea for second-degree murder. Suazo necessarily knew that, if he

13 committed aggravated battery against Gage with the shotgun, then Vigil would almost

14 certainly die. This must be true because, in order to commit aggravated battery

15 against Gage, Suazo had to fire the shotgun into Vigil’s mouth and through his head.

16 Because Suazo necessarily acted with the mens rea required to convict him of second

17 degree murder, the error in the second-degree murder instruction was not reversible.

18 Santillanes does not compel a different result.



                                              32
 1   {42}   In Santillanes, the jury was misinstructed on the mens rea requirement for child

 2 abuse, id. ¶¶ 29, 32, but we concluded that the error was not reversible. Id. ¶ 34. We

 3 noted that “the defendant cut his nephew’s throat with a knife” from “just below his

 4 right ear across to the left side of his neck below his jaw,” and that the jury found the

 5 defendant cut the boy during a scuffle. Id. ¶¶ 33-34. We concluded that “no rational

 6 jury” could have concluded that the defendant perpetrated these acts without also

 7 necessarily concluding that the defendant acted with criminal negligence, the mens

 8 rea requirement that the state was required to establish. Id.

 9   {43}   As the majority observes, Maj. op. ¶ 29, we expressly noted in Santillanes that

10 the defendant “did not argue that he inadvertently caused the boy’s throat to be cut.”

11 1993-NMSC-012 ¶ 33. According to the majority, this indicates that the mens rea

12 element of the offense for which the defendant in Santillanes was convicted was not

13 contested. Maj. op. ¶¶ 29-30. By contrast, Suazo maintained at trial that he did not

14 know the gun he fired into Vigil’s mouth and through his head was loaded, which was

15 an attempt to show he did not possess the necessary mens rea for second-degree

16 murder. For the majority, this distinction is crucial. Id. ¶ 29. The majority contends

17 that Suazo’s trial theory sufficiently distinguishes his case from Santillanes and

18 precludes this Court from resolving “whether the jury found that Suazo knew the



                                               33
 1 shotgun was loaded, or whether jurors merely found that he should have known

 2 because a simple inspection of the shotgun would have revealed whether it was

 3 loaded.” Id. ¶ 30. I do not concur.

 4   {44}   Unlike in Santillanes, Suazo was convicted of multiple offenses. Suazo’s jury

 5 was correctly instructed that it had to find that the aggravated battery was

 6 intentionally committed, and it so found. Therefore, the jury necessarily rejected

 7 Suazo’s theory of the case. Only one shot was fired; it killed Vigil and grievously

 8 injured Gage. That single shot could not be both intentional and accidental. Thus,

 9 if Suazo intentionally fired the shot which injured Gage, he could not have

10 accidentally shot Vigil. Because Suazo’s jury found that Suazo intentionally fired the

11 shot that injured Gage, the jury necessarily rejected Suazo’s claim that he accidentally

12 killed Vigil.

13   {45}   Lastly, I see no reason to conclude that the erroneous second-degree murder

14 instruction somehow infected the jury’s deliberation with respect to aggravated

15 battery. Maj op. ¶ 31 n.3. The district court properly instructed the jury on

16 aggravated battery. See State v. Privett, 1986-NMSC-025, ¶ 9, 104 N.M. 79, 717

17 P.2d 55 (instructing district courts to use uniform instructions when they exist). “The

18 jury is presumed to follow the court’s instructions.”             State v. Gonzales,



                                              34
 1 1992-NMSC-003, ¶ 35, 113 N.M. 221, 824 P.2d 1023, overruled on other grounds

 2 by State v. Montoya, 2013-NMSC-020, 306 P.3d 426. And as noted, Suazo did not

 3 challenge the propriety of the aggravated-battery instruction or his conviction for that

 4 offense. Nor am I persuaded that the prosecution’s statement about transferred intent

 5 misled the jury. Maj op. ¶ 31. Suazo did not object to the prosecutor’s statement and

 6 the issue was not argued on appeal. Moreover, instruction number one informed

 7 Suazo’s jury that “[t]he law governing this case is contained in instructions that I am

 8 about to give you.      It is your duty to follow the law as contained in these

 9 instructions.” If misdirection occurred, it was cured by proper instructions.

10   {46}   For the reasons set out above, I would affirm Suazo’s second-degree murder

11 conviction. I concur that the district court did not abuse its discretion in excluding

12 the statements Suazo made after the shooting.



13                                                 _____________________________
14                                                 JUDITH K. NAKAMURA, Justice




                                              35
