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March 16, 2026 Get Citation Alerts Download PDF Add Note

State v. Ward

New Mexico Supreme Court

• Citations: None known
• Docket Number: Unknown

• Precedential Status: Non-Precedential

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Combined Opinion

The slip opinion is the first version of an opinion released by the Chief Clerk of the
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contain deviations from the formal authenticated opinion.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:

3 Filing Date: March 16, 2026

4 NO. S-1-SC-40503

5 STATE OF NEW MEXICO,

6 Plaintiff-Appellee,

7 v.

8 MARC WARD,

9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 David A. Murphy, District Judge

12 Bennett J. Baur, Chief Public Defender
13 Kimberly Chavez Cook, Appellate Defender
14 Joelle N. Gonzales, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17 Raúl Torrez, Attorney General
18 Walter M. Hart, III, Assistant Attorney General
19 Santa Fe, NM

20 for Appellee
1 OPINION

2 BACON, Justice.

3 {1} A jury convicted Defendant Marc Ward of willful and deliberate first-degree

4 murder for causing the death of Daniel Bourne (Victim), a church security guard, by

5 striking him with a Ford F-150 pickup truck in the parking lot where Victim was

6 working. There was no question Defendant struck Victim with the pickup truck and

7 drove away without reporting the incident or rendering aid; the only question at trial

8 was Defendant’s state of mind when he did so.

9 {2} Defendant testified in his own defense, asserting he struck Victim accidentally

10 and only in response to Victim’s actions of startling him with a flashlight and firing

11 a gun toward Defendant’s truck. Defendant claimed that when he saw Victim’s gun,

12 he instinctively covered his eyes and drove out of the parking lot. He further claimed

13 he did not realize he had hit Victim on the way out.

14 {3} The State presented evidence indicating Defendant circled back after striking

15 Victim and ran him over a second time: the presence of two distinct fluid trails

16 supported this theory, as well as audio from the incident—recorded on Victim’s cell

17 phone—on which two distinct impacts can be heard. The State presented further

18 evidence that after hitting Victim, Defendant got out of the truck and dragged
1 Victim’s body off the church property: Victim’s body was found at the bank of a

2 nearby arroyo, and Defendant’s jeans had Victim’s blood on them.

3 {4} On appeal, Defendant raises three issues. Defendant challenges the

4 sufficiency of the evidence for his first-degree willful and deliberate murder

5 conviction; the district court’s denial of his requested jury instruction on involuntary

6 manslaughter; and the admission of evidence of a specific incident of Victim’s

7 character for peacefulness to rebut Defendant’s characterization of Victim as the first

8 aggressor. As to the first issue, we hold the State presented sufficient evidence of

9 deliberation to support Defendant’s first-degree murder conviction.

10 {5} We also hold the district court properly denied Defendant’s requested

11 instruction on involuntary manslaughter. Defendant testified that he acted

12 reflexively when he accidentally struck Victim, which does not satisfy the mens rea

13 requirement of involuntary manslaughter. State v. Yarborough, 1996-NMSC-068, ¶¶

14 12-19, 122 N.M. 596, 930 P.2d 131. In this opinion, we clarify that the requisite

15 mens rea for involuntary manslaughter is recklessness, overruling our previous use

16 of the term criminal negligence, and we accordingly direct the Uniform Jury

17 Instructions-Criminal Committee (UJI-Criminal Committee) to draft new

18 instructions reflecting the correct mens rea standard.

2
1 {6} Finally, we hold the district court did not abuse its discretion in admitting

2 evidence of a specific incident demonstrating Victim’s character for peacefulness

3 because, in the absence of case law construing the relevant rules, it was reasonable

4 but erroneous for the district court to determine that Victim’s “character or character

5 trait” for peacefulness was “an essential element of a charge, claim, or defense,”

6 which the State could then prove “by relevant specific instances of conduct.” Rule

7 11-405 NMRA. Even though the district court erred, there is no reasonable

8 probability the admission of this testimony affected the verdict. As such, the error

9 was harmless.

10 {7} Finding no merit in Defendant’s contentions, we affirm his conviction for

11 first-degree willful and deliberate murder.

12 I. BACKGROUND

13 A. Defendant’s Testimony

14 {8} Defendant testified that on the night of September 23, 2022, he was sitting in

15 his truck in the parking lot of Calvary Church, watching a movie on his iPad, when

16 he was startled by a flashlight in his mirror. He did not see who had shined the light

17 in his mirror, and he did not have his glasses on at the time. He pulled his truck

18 around in a U-turn to look for the person who had “snuck up on” him with the

19 flashlight. When he parked, he noticed a man wearing a dark shirt in his blind spot.

3
1 He looked down to find his glasses, which caused him to lose track of the man, and

2 he began driving toward the exit. As he was leaving, he noticed the man reappear on

3 his left. He saw the man draw a gun from his pocket. Defendant testified:

4 I got panicked. I never had anyone draw a weapon on me. So I panicked.
5 I see him raise the gun, I close my eyes, put my arm up—I know this is
6 not gonna stop a bullet, but it was just instinct. I heard a gunshot.

7 I didn’t instantly feel any pain, like I still had my eyes closed, I didn’t
8 feel any pain. So I kinda open my eyes. I see that I overshot the turn. I
9 slam on the brakes as I’m trying to hit the turn. Pop the curb.

10 Uh, I was a bit dazed for a minute. I don’t know how long I was on the
11 curb, but what I remember next is getting off there, and getting out of
12 there, feeling to see if I felt any blood. I didn’t feel any pain or anything,
13 but maybe I just hadn’t felt it yet. I was checking myself to see if there
14 was blood. And I remember getting out of the parking lot, thinking I
15 might get shot at again.

16 Defendant emphasized he could not see anything when he heard the gunshot because

17 his eyes were closed, and the only thing on his mind was whether he had been shot.

18 He described his mental state as “freaked out,” “completely bewildered,” and

19 “panicking.”

20 {9} After leaving the parking lot, Defendant testified that he drove to a nearby

21 business to check whether his truck had been damaged by the bullet, but he did not

22 see any damage. He drove to another parking lot and contemplated whether he

23 should go to the emergency room because his heart was still racing from the incident.

24 Instead, he decided to go into downtown Albuquerque as he had originally planned

4
1 so he could “maybe have some sort of normalcy in the evening, . . . calm down, and

2 . . . process,” and he stayed downtown until approximately midnight, after which he

3 returned home.

4 {10} Defendant denied ever touching or moving Victim’s body, taking any of his

5 property, or having any intention to run over Victim.

6 B. The State’s Evidence

7 {11} The State introduced evidence that Victim approached Defendant’s truck to

8 serve him a trespass notice. Victim sent a text message to his security team at 9:16

9 p.m. with a photograph of the back of Defendant’s truck and license plate, stating

10 “Checking veh west 16.” Two minutes later, Victim sent another text message

11 stating “Pulled away and stopped,” with another photograph of Defendant’s truck.

12 The second photograph shows the side of Defendant’s truck, with eight parking

13 spaces between the truck and the position of the camera.

14 {12} At 9:19 p.m., Victim began recording a video on his cell phone, but the camera

15 was covered for most of the interaction. The first minute of that ten-minute audio

16 captured an engine revving up, followed by two gunshots plus an impact with

17 screeching tires in quick succession and two more impacts; Victim’s agonal

18 breathing persisted through the remaining audio. The State argued that the first

19 impact was caused by the truck hitting Victim, the second by Defendant hitting the

5
1 curb, and the third—thirty seconds later—by Defendant hitting Victim a second time

2 with his truck.

3 {13} The State introduced evidence that Defendant’s radiator was pierced by

4 Victim’s bullet and began leaking fluid. Two distinct fluid trails are visible in crime

5 scene photographs. These fluid trails appear separately from tire acceleration marks,

6 which indicated, according to the State’s expert, that the truck “would have come

7 back two more times after the acceleration marks were created,” for “a total of three

8 passes.”

9 {14} The medical examiner testified for the State that Victim died of blunt trauma

10 consistent with being struck by a vehicle, and it was possible Victim was struck more

11 than once. The forensic pathologist who testified for Defendant reached the same

12 conclusions, agreeing it was possible Victim was struck more than once. Both

13 experts agreed the marks on Victim’s body indicated he was dragged, prone, away

14 from the scene of impact. The medical examiner testified that it was possible Victim

15 was still alive at the time he was dragged: it would have taken Victim “multiple

16 minutes” to die of his injuries, and if he had received prompt medical treatment, she

17 opined that he possibly could have survived.

18 {15} The State also introduced evidence that Defendant stopped his truck for some

19 period of time near where Victim was bleeding; photographs and testimony

6
1 demonstrated there was a puddle of fluid near a pool of Victim’s blood, indicating

2 the truck was stationary at that location while it continued to leak fluid. A trail of

3 blood led from the parking lot down a concrete walkway and to the bank of the

4 arroyo where Victim’s body was found. Victim’s gun and other belongings were

5 taken from his person. Victim’s wallet, however, appeared to be intact—it contained

6 his driver’s license, various credit and other cards, and over ninety dollars in cash.

7 A bloodstain on the right front pocket of Defendant’s blue jeans and another

8 bloodstain on the front left leg of Defendant’s blue jeans contained Victim’s DNA.

9 Defendant testified he was a bodybuilder who weighed 230 pounds and could bench

10 press 440 pounds at the time of the incident.

11 {16} Over defense objection, the district court also allowed the jury to hear

12 testimony from one of Victim’s colleagues about a previous instance of Victim

13 peacefully de-escalating a conflict in the course of his duties dealing with trespassers

14 on church property.

15 C. The Conviction and Sentence

16 {17} The jury was instructed on first-degree willful and deliberate murder, second-

17 degree murder, voluntary manslaughter, and self-defense. The jury returned a verdict

18 of guilty of first-degree willful and deliberate murder. The district court sentenced

19 Defendant to life in prison. Defendant filed his direct appeal in this Court.

7
1 II. DISCUSSION

2 A. Sufficient Evidence Supports Defendant’s Conviction for Willful and
3 Deliberate Murder

4 {18} Defendant challenges the sufficiency of the evidence for the jury’s finding

5 that he killed Victim willfully and deliberately. We review claims of insufficient

6 evidence with deference to the jury’s verdict, “view[ing] the evidence in the light

7 most favorable to the guilty verdict, indulging all reasonable inferences and

8 resolving all conflicts in the evidence in favor of the verdict.” State v. Revels, 2025-

9 NMSC-021, ¶ 57, 572 P.3d 974 (quoting State v. Montoya, 2015-NMSC-010, ¶ 52,

10 345 P.3d 1056 (internal quotation marks omitted)). “Contrary evidence supporting

11 acquittal does not provide a basis for reversal because the jury is free to reject

12 Defendant’s version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.

13 438, 971 P.2d 829. This Court “does not evaluate the evidence to determine whether

14 some hypothesis could be designed which is consistent with a finding of innocence.”

15 State v. Garcia, 1992-NMSC-048, ¶ 25, 114 N.M. 269, 837 P.2d 862 (internal

16 quotation marks and citation omitted). Instead, we ask, “whether substantial

17 evidence of either a direct or circumstantial nature exists to support a verdict of guilt

18 beyond a reasonable doubt with respect to every element essential to a conviction.”

19 Id. (internal quotation marks and citation omitted). “Deliberate intent may be

20 inferred from the particular circumstances of the killing as proved by the State

8
1 through the presentation of physical evidence.” State v. Duran, 2006-NMSC-035, ¶

2 8, 140 N.M. 94, 140 P.3d 515. “So long as a rational jury could have found beyond

3 a reasonable doubt the essential facts required for a conviction, we will not upset a

4 jury’s conclusions.” State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d

5 1057 (text only) (citation omitted).1

6 {19} Defendant argues that the “circumstantial evidence from oil trails is too

7 speculative to establish a second attack, as it was not proven when those oil trails

8 occurred, and if caused by [Defendant’s] truck, they are also consistent with

9 [Defendant’s] description of a desperate flight from an active shooter.” Defendant

10 also argues the lack of “crush injuries” render the State’s second attack theory “pure

11 speculation.” He further argues that any actions he may have taken after striking

12 Victim are “irrelevant to intent” and therefore that the jury “improperly relied on

13 post-collision conduct to find deliberate intent.” Notably, Defendant does not

14 address the contemporaneous audio of the incident that recorded the sound of

15 multiple impacts.

16 {20} “Intent is subjective and is almost always inferred from other facts in the case,

17 as it is rarely established by direct evidence.” State v. Sosa, 2000-NMSC-036, ¶ 9,

1
“(Text only)” indicates the omission of nonessential punctuation marks—
including internal quotation marks, ellipses, and brackets—that are present in the
text of the quoted source, leaving the quoted text otherwise unchanged.

9
1 129 N.M. 767, 14 P.3d 32 (internal quotation marks and citation omitted); see also

2 UJI 14-201 NMRA (“A deliberate intention may be inferred from all of the facts and

3 circumstances of the killing.”). The presence of two distinct fluid trails separate from

4 the tire acceleration marks permits a rational inference that Defendant circled back,

5 after his truck’s radiator was damaged by Victim’s bullet, as the State’s expert

6 testified, to strike Victim a second time. Additionally, the jury listened to the audio

7 from the incident, which recorded two distinct impacts, thirty seconds apart. Medical

8 testimony could neither confirm nor rule out a second strike.

9 {21} From this circumstantial evidence, the jury could have reasonably concluded

10 that after striking Victim the first time, Defendant purposefully circled around in his

11 truck for the purpose of killing an already-incapacitated Victim. This evidence of a

12 second, purposeful strike is sufficient to support the jury’s finding that Defendant

13 killed Victim with deliberate intent. See, e.g., Sosa, 2000-NMSC-036, ¶ 14

14 (concluding there was sufficient evidence of deliberate intent where the defendant

15 shot the victim on his porch, then “pursu[ed] the wounded and defenseless victim

16 into the street and [shot] him from behind”); State v. Cunningham, 2000-NMSC-

17 009, ¶¶ 25, 28, 128 N.M. 711, 998 P.2d 176 (concluding there was sufficient

18 evidence of deliberate intent where the defendant returned to the “incapacitated and

19 defenseless” victim and fired a fatal shot from a second gun). “Just because the

10
1 evidence supporting the conviction was circumstantial does not mean it was not

2 substantial evidence.” Montoya, 2015-NMSC-010, ¶ 53 (internal quotation marks

3 and citation omitted).

4 {22} The State presented additional evidence that after striking Victim, Defendant

5 stopped his truck near Victim’s body and dragged him to an arroyo. The presence of

6 a puddle of fluid near a pool of Victim’s blood supports this inference, as does the

7 presence of Victim’s blood on Defendant’s jeans. Defendant then left the scene

8 without reporting the incident or rendering aid. The medical examiner and the

9 forensic pathologist testified that Victim may have been alive at the time, and

10 Victim’s life may have been saved had he received timely medical treatment.

11 Victim’s agonal breathing can be heard for the duration of the video he recorded on

12 his cell phone, which was a total of ten minutes long. Even though the foregoing is

13 evidence of Defendant’s specific behavior after he struck the fatal blow, it is not

14 irrelevant to intent as Defendant claims.

15 {23} Evidence of Defendant’s behavior after dealing the fatal blow, “while perhaps

16 not establishing deliberation by itself, can show consciousness of guilt which could

17 be considered in tandem with the evidence of deliberation prior to and during the

18 killing.” State v. Chavez, 2024-NMSC-023, ¶ 48, 562 P.3d 521. While these actions,

19 “standing alone, might have been insufficient to prove Defendant’s deliberate

11
1 intention, they were probative of deliberation in the context of all of the evidence

2 introduced on that element of first-degree murder.” State v. Astorga, 2015-NMSC-

3 007, ¶ 65, 343 P.3d 1245 (holding the defendant’s statements and flight to Mexico

4 after the homicide were probative of deliberation); see also, e.g., State v. Flores,

5 2010-NMSC-002, ¶ 23, 147 N.M. 542, 226 P.3d 641 (“Not only may [the]

6 [d]efendant’s acts before and during the crime provide evidence of intent, evidence

7 of flight or ‘an attempt to deceive the police’ may prove consciousness of guilt.”

8 (citation omitted)), overruled on other grounds by, State v. Martinez, 2021-NMSC-

9 002, ¶ 87, 478 P.3d 880.

10 {24} We conclude the State presented sufficient evidence of deliberation to support

11 Defendant’s conviction for first-degree willful and deliberate murder.

12 B. Defendant Was Not Entitled to an Involuntary Manslaughter Instruction

13 {25} Whether the trial court erroneously denied a defendant’s requested jury

14 instruction is a mixed question of law and fact that we review de novo. State v.

15 Henley, 2010-NMSC-039, ¶ 12, 148 N.M. 359, 237 P.3d 103. As to the question of

16 law presented here, “An involuntary manslaughter jury instruction is proper only

17 when the evidence presented at trial permits the jury to find the defendant had a

18 mental state of criminal negligence.” Id. ¶ 3. As to “a defendant’s requested

19 instructions,” this Court “view[s] the evidence in the light most favorable to the

12
1 giving of the requested instruction.” State v. Skippings, 2011-NMSC-021, ¶ 10, 150

2 N.M. 216, 258 P.3d 1008 (internal quotation marks and citation omitted). “[A]

3 defendant is entitled to an instruction on a lesser-included offense when there is

4 evidence tending to establish the lesser offense.” Id. ¶ 8 (text only) (citation omitted).

5 {26} Involuntary manslaughter—the lowest degree of criminal homicide—is

6 defined as, “the unlawful killing of a human being without malice . . . in the

7 commission of an unlawful act not amounting to felony, or in the commission of a

8 lawful act which might produce death in an unlawful manner or without due caution

9 or circumspection.” NMSA 1978, § 30-2-3(B) (1994). Other than requiring an

10 absence of malice, the Legislature left the mens rea level for involuntary

11 manslaughter unstated. See Yarborough, 1996-NMSC-068, ¶ 11 (“[T]he

12 involuntary-manslaughter statute does not contain any mention of a culpable state of

13 mind or culpable degree of conduct.”). Thus, the mens rea for involuntary

14 manslaughter has been set entirely by case law; we have labeled the mens rea

15 “criminal negligence,” id. ¶ 20, but we have defined that term to require the

16 defendant’s subjective awareness of risk, Henley, 2010-NMSC-039, ¶¶ 16-17.

17 {27} We affirm the district court’s denial of Defendant’s requested involuntary

18 manslaughter instruction because Defendant’s testimony indicated he killed Victim

19 purely by accident: that is, Defendant asserted he was unaware his actions put Victim

13
1 at risk. As we explain below, unless there is evidence indicating that a defendant was

2 subjectively aware of the risk, an involuntary manslaughter instruction should not

3 be given.

4 1. Defendant’s testimony that he killed Victim by accident did not warrant
5 an involuntary manslaughter instruction; if believed, his testimony would
6 be a complete defense that would result in acquittal

7 {28} It is not a crime in New Mexico to cause a person’s death accidentally. The

8 Legislature made this clear in our excusable homicide statute, which provides a

9 homicide “committed by accident or misfortune in doing any lawful act, by lawful

10 means, with usual and ordinary caution and without any unlawful intent,” is

11 excusable, i.e., noncriminal. NMSA 1978, § 30-2-5(A) (1963); see also NMSA

12 1978, § 30-2-8 (1963) (requiring a finding of excusable homicide to result in full

13 acquittal). The principle that an accidental death resulting from a car collision does

14
1 not amount to involuntary manslaughter has been established in our case law since

2 at least the 1930s.2

3 {29} Thus, even though involuntary manslaughter is an unintentional killing, it

4 does require a culpable mental state that is distinguishable from mere accident. An

5 unintentional killing means simply the actor did not intend their action to result in

6 death; nevertheless, the actor could still have a culpable mental state that results in

7 criminal liability. See Leo M. Romero, Unintentional Homicides Caused by Risk-

8 Creating Conduct: Problems in Distinguishing Between Depraved Mind Murder,

9 Second Degree Murder, Involuntary Manslaughter, and Noncriminal Homicide in

10 New Mexico, 20 N.M. L. Rev. 55, 75 (1990). In contrast, “[i]f a homicide is

11 accidental, the defendant acted without a criminally culpable state of mind in

12 performing a lawful act, unintentionally killing the victim.” Henley, 2010-NMSC-

13 039, ¶ 22 (emphasis added); see also State v. Lucero, 2010-NMSC-011, ¶ 13, 147

2
See, e.g., State v. Harris, 1937-NMSC-046, ¶ 6, 41 N.M. 426, 70 P.2d 757
(“[I]n the case of an accidental death of a pedestrian struck by an automobile, . . .
injury caused by mere negligence . . . cannot be made the basis of a criminal
action.”); State v. Sisneros, 1938-NMSC-049, ¶ 30, 42 N.M. 500, 82 P.2d 274
(holding involuntary manslaughter in the context of a car accident requires “the
conduct of the driver of the [vehicle to be] so reckless, wanton, and willful as to
show an utter disregard for the safety of pedestrians”); City of Raton v. Rice, 1948-
NMSC-054, ¶ 6, 52 N.M. 363, 199 P.2d 986 (similar); State v. Hayes, 1966-NMSC-
260, ¶ 3, 77 N.M 225, 421 P.2d 439 (similar); Yarborough, 1996-NMSC-068, ¶ 20
(similar).

15
1 N.M. 747, 228 P.3d 1167 (“[A]n accidental killing is excusable because it is an

2 unintended homicide which occurs in the course of performing a lawful act, without

3 criminal negligence. As in other cases of excusable homicide, the slayer is not

4 criminally responsible therefor, as an act that is committed accidentally does not

5 involve a mental state cognizable to the criminal offenses of murder and involuntary

6 manslaughter.” (internal quotation marks and citations omitted)).

7 {30} Accordingly, this Court held in Henley that a defendant was not entitled to an

8 involuntary manslaughter instruction where the defendant testified that he

9 accidentally fired the gun and killed the victim. 2010-NMSC-039, ¶¶ 3, 7, 26. We

10 explained that even though “both involuntary manslaughter and accident relate to

11 unintentional killings, . . . the mens rea of accident and involuntary manslaughter are

12 irreconcilably distinct, and the evidence of one does not support instructing the jury

13 on the other.” Id. ¶ 19 (emphasis added). “An involuntary manslaughter instruction

14 is proper only where there is evidence of an unintentional killing and a mens rea of

15 criminal negligence; evidence supporting alternative, and incompatible, theories”—

16 such as a theory that the death was caused by accident—“may not be substituted for

17 the act and mental state requirements of the involuntary manslaughter statute.” Id. ¶

18 22.

16
1 {31} The district court in this case correctly relied on Henley and these underlying

2 principles to determine Defendant was not entitled to an instruction on involuntary

3 manslaughter because his defense was that he accidentally struck Victim with his

4 truck, which would be an excusable and therefore noncriminal act.

5 {32} On appeal, Defendant continues to argue as he did before the district court

6 that State v. Gallegos, 2001-NMCA-021, 130 N.M. 221, 22 P.3d 689, provides

7 authority contrary to Henley that should allow him to receive instructions on both

8 involuntary manslaughter and self-defense. However, Gallegos is distinguishable.

9 In that case, the issue was not whether the defendant was entitled to an instruction

10 on involuntary manslaughter, but whether a defendant who was charged with

11 involuntary manslaughter could also receive an instruction on self-defense. Id. ¶ 16.

12 In this case, in contrast, Defendant received a self-defense instruction, so the

13 question presented in Gallegos is not present here. Gallegos, therefore, is not

14 controlling; Henley is controlling.

15 {33} Defendant’s testimony that he had no idea Victim was there and he ran Victim

16 over accidentally, if believed, would have established that Defendant committed no

17 crime. Therefore, it did not support the giving of an instruction on involuntary

17
1 manslaughter.3 See Lucero, 2010-NMSC-011, ¶ 14 (“[J]uries are not given an

2 instruction on the defense of accident because, in the absence of criminal negligence,

3 the defendant cannot be found guilty of involuntary manslaughter.”); see also UJI

4 14-5140 NMRA, use note 1 (noting no instruction shall be given on the subject of

5 excusable homicide). Because Defendant’s testimony did not establish the elements

6 of involuntary manslaughter, the district court correctly refused to instruct the jury

7 on that crime. See Henley, 2010-NMSC-039, ¶ 3.

8 2. UJI 14-231 NMRA incorrectly uses language reflecting a civil negligence
9 standard and must be revised to reflect that involuntary manslaughter
10 requires a mens rea of recklessness

11 {34} In Yarborough, this Court established the mens rea standard for involuntary

12 manslaughter by carefully distinguishing ordinary civil negligence from criminal

13 negligence. 1996-NMSC-068, ¶¶ 10-20. Ultimately, the Yarborough Court

14 concluded “that the law in this area mandates that a felony conviction be based upon

As an alternative basis for his claim of entitlement to an involuntary
3

manslaughter instruction, Defendant makes a cursory argument that he “could have
been violating the reckless driving statute” when he put his arm over his eyes while
driving. However, homicide caused by reckless driving, or any other violation of the
Motor Vehicle Code, must be charged as vehicular homicide rather than involuntary
manslaughter. Yarborough, 1996-NMSC-068, ¶¶ 26-30; see also UJI 14-231 NMRA
comm. cmt. (noting that, pursuant to Yarborough, a “[v]ehicular homicide caused
by reckless driving must be charged under the vehicular homicide statute”).
Therefore, Defendant was not entitled to an involuntary manslaughter instruction
based on reckless driving.

18
1 more than ordinary negligence,” i.e., civil negligence. Id. ¶ 20. Instead, “the State

2 must show at least criminal negligence to convict a criminal defendant of involuntary

3 manslaughter.” Id.

4 {35} However, even though Yarborough explicitly rejected an ordinary, civil

5 negligence standard for involuntary manslaughter, id. ¶ 20, the Court did not

6 examine the corresponding uniform jury instruction, UJI 14-231, setting forth the

7 elements of involuntary manslaughter. An involuntary manslaughter conviction

8 under UJI 14-231 requires a jury to find that the defendant “should have known of

9 the danger involved” by the defendant’s actions and “acted with a willful disregard

10 for the safety of others.” The term should have known corresponds to an ordinary,

11 civil negligence standard. See, e.g., State v. Consaul, 2014-NMSC-030, ¶ 39, 332

12 P.3d 850 (discussing the “close association” between a “knew or should have

13 known” standard and “principles of civil negligence and ordinary care”); State v.

14 Taylor, 2024 -NMSC-011, ¶ 25, 548 P.3d 82; State v. Mascarenas, 2000-NMSC-

15 017, ¶ 13, 129 N.M. 230, 4 P.3d 1221; State v. Suazo, 2017-NMSC-011, ¶ 23, 390

16 P.3d 674.

17 {36} Defendant relies on the ordinary civil negligence language in UJI 14-231 to

18 support his claim of entitlement to an involuntary manslaughter instruction in this

19 case: he argues that he “‘should have known’ of the danger involved in speedily

19
1 driving with his eyes closed and his hands not on the wheel,” even though he was

2 entirely unaware that Victim was in danger. This argument highlights the disjuncture

3 between the criminal negligence standard announced in Yarborough and the “should

4 have known,” civil negligence, standard contained in UJI 14-231.

5 {37} The use of the term “should have known” in UJI 14-231 allows a jury to

6 convict even if the jury believes the defendant was entirely unaware of the risk. As

7 Professor Romero discussed several decades ago, the “should have known” language

8 in this instruction conflicts with the UJI’s other requirement of “willful disregard,”

9 because “[o]ne does not disregard a risk of which one is unaware.” Romero, supra,

10 at 75-76. Because UJI 14-231 contains both an objective “should have known” and

11 a subjective “willful disregard” element, a jury might conclude “that either

12 recklessness, based upon subjective realization of the risk, or negligence, based on

13 the objective standard of what the defendant should have known, will satisfy the

14 culpability requirements for involuntary manslaughter.” Romero, supra, at 76. That

15 conclusion would be erroneous: “[I]nvoluntary manslaughter requires subjective

16 knowledge by the defendant of the danger or risk to others posed by his or her

17 actions.” Henley, 2010-NMSC-039, ¶ 17.

18 {38} We conclude the “should have known” language contained in UJI 14-231

19 misstates the mens rea requirement of involuntary manslaughter and could mislead

20
1 a jury. The use of “should have known” is inconsistent with Yarborough’s holding

2 that involuntary manslaughter requires more than ordinary negligence and Henley’s

3 holding that involuntary manslaughter requires subjective knowledge of the risk.

4 Accordingly, we direct the UJI-Criminal Committee to recommend changes to UJI

5 14-231 to omit the “should have known” language. Although the parties did not brief

6 this issue, this Court can correct a problem with its own UJIs sua sponte. See, e.g.,

7 Consaul, 2014-NMSC-030, ¶ 27 (“[W]e discuss whether the language currently used

8 in our uniform jury instructions adequately captures the true nature of the crime and

9 the legislative intent behind the statute. We raise this issue sua sponte as a matter of

10 public importance.”); State v. Lewis, 2019-NMSC-001, ¶ 21, 433 P.3d 276 (raising

11 sua sponte the issue of how the trial court must instruct the jury on lesser included

12 offenses).

13 {39} We take note of a second disjuncture between the terminology used to

14 describe the mens rea of involuntary manslaughter—the “criminal negligence”

15 terminology first adopted in Yarborough—and the substantive requirement that a

16 defendant have subjective knowledge of the risk. See, e.g., Henley, 2010-NMSC-

17 039, ¶ 16 (“To be convicted of involuntary manslaughter, a defendant must have

18 been aware of the risk caused by his or her conduct and continued to act.” (emphasis

19 added)). Generally, to distinguish between ordinary civil negligence and the

21
1 heightened mens rea (either criminal negligence or recklessness) that gives rise to

2 criminal liability, the criminal law looks to “either one or both of two things: (1)

3 Perhaps the defendant’s conduct must involve a greater risk of harm to others than

4 tort negligence requires,” or “(2) Perhaps . . . the criminal law might require that the

5 defendant consciously realize, in his own mind, the risk he is creating.” 1 Wayne R.

6 LaFave, Substantive Criminal Law, § 5.4 at 492 (3d ed. 2018) (emphasis added).

7 When the criminal law requires both a heightened magnitude of risk and subjective

8 awareness of the risk, the term recklessness is generally used. Id.

9 {40} We conclude the term criminal negligence is not an accurate reflection of the

10 mens rea required for involuntary manslaughter. Yarborough adopted the term when

11 the legal landscape was quite different: it relied in part on the Court’s interpretation

12 of the minimum mens rea for child abuse adopted in Santillanes v. State, 1993-

13 NMSC-012, ¶ 31, 115 N.M. 215, 849 P.2d 358, modified by, Consaul, 2014-NMSC-

14 030, ¶ 38. Yarborough, 1996-NMSC-068, ¶ 18. Because Santillanes had determined

15 the civil negligence standard could not be used to support a child abuse conviction,

16 Yarborough reasoned that criminal negligence was the minimum mens rea that may

17 be punished by the criminal law. 1996-NMSC-068, ¶ 18 (holding Santillanes “stands

18 for the proposition, well-established in New Mexico, that only criminal negligence

22
1 may be a predicate for a felony unless another intention is clearly expressed by the

2 [L]egislature”).

3 {41} Since then, that proposition has been eclipsed by this Court’s holding in

4 Consaul that “what has long been called ‘criminally negligent child abuse’ should

5 hereafter be labeled ‘reckless child abuse’ without any reference to negligence.”

6 2014-NMSC-030, ¶ 37. We adopted the term recklessness in Consaul because the

7 criminal negligence standard proved to be unworkable, as its definition was

8 hopelessly confusing to jurors. Id. ¶¶ 28-37. In Consaul, we rejected the terminology

9 of criminal negligence entirely, instead concluding that even though the child abuse

10 statute used the term negligence, “The Legislature intended to punish acts done with

11 a reckless state of mind.” Id. ¶ 36.

12 {42} Additionally, Yarborough adopted the term criminal negligence without

13 analyzing whether recklessness would be a more appropriate standard. Even though

14 Yarborough relied on precedent in cases that employ a recklessness standard, using

15 terms such as “‘reckless, willful and wanton disregard of consequences,’” 1996-

16 NMSC-068, ¶ 12 (quoting State v. Harris, 1937-NMSC-046, ¶ 6, 41 N.M. 426, 70

17 P.2d 757), “‘conscious abandonment of any consideration for . . . safety,’” id. ¶ 13

18 (quoting State v. Hayes, 1966-NMSC-260, ¶ 3, 77 N.M. 225, 421 P.2d 439), and

19 “‘wanton and reckless’” action, id. (quoting State v. Clarkson, 1954-NMSC-007, ¶

23
1 11, 58 N.M. 56, 265 P.2d 670), Yarborough used the term criminal negligence to

2 comport with the now-overruled terminology from Santillanes.

3 {43} However, in substance, the standard for involuntary manslaughter has always

4 been one of recklessness. “Our case law has long integrated the requirement of

5 subjective knowledge into the showing of criminal negligence required by our

6 involuntary manslaughter statute.” Henley, 2010-NMSC-039, ¶ 17. This

7 requirement of subjective knowledge raises the mens rea of involuntary

8 manslaughter from criminal negligence to recklessness. See, e.g., 1 Model Penal

9 Code § 2.02(2)(c)-(d) (A.L.I. 1985) (stating criminal negligence involves a risk of

10 which the defendant “should be aware,” whereas recklessness involves “conscious[]

11 disregard” of “a substantial and unjustifiable risk”); see also LaFave, supra, § 5.4 at

12 492 (noting recklessness requires the defendant to “consciously realize, in his own

13 mind, the risk he is creating”); Consaul, 2014-NMSC-030, ¶ 37 (adopting the Model

14 Penal Code definition of recklessly).

15 {44} We also conclude that recklessness is the appropriate standard for involuntary

16 manslaughter because the Legislature did not define a mens rea level for involuntary

17 manslaughter but instead left the mens rea unstated. See, e.g., State v. Schoonmaker,

18 2008-NMSC-010, ¶ 44, 143 N.M. 373, 176 P.3d 1105 (noting “a recklessness

19 standard may be more appropriate” for involuntary manslaughter than child abuse

24
1 because “there is no indication of legislative intent to require a lower mens rea

2 standard” for involuntary manslaughter), overruled on other grounds by, Consaul,

3 2014-NMSC-030, ¶ 38; see also 1 Model Penal Code § 2.02(3) (A.L.I. 1985) (setting

4 recklessness as the minimum mens rea for criminal liability when a statute is silent

5 on mens rea).

6 {45} We therefore hold the mens rea of involuntary manslaughter is recklessness.

7 In line with the standard definition of recklessness, “involuntary manslaughter

8 requires subjective knowledge by the defendant of the danger or risk to others posed

9 by his or her actions.” Henley, 2010-NMSC-039, ¶ 17 (emphasis added). As we did

10 in Consaul, we conclude that “[t]he jury should be instructed with this terminology

11 alone,” 2014-NMSC-030, ¶ 37, and we hereby overrule prior cases that use the term

12 criminal negligence to describe the mens rea of involuntary manslaughter, id. ¶ 38.

13 We direct the UJI-Criminal Committee to draft uniform jury instructions consistent

14 with this holding.

15 C. Any Error in the Admission of Evidence of Victim’s Character for
16 Peacefulness Was Harmless

17 {46} A trial court’s evidentiary rulings are reviewed on appeal for abuse of

18 discretion. State v. Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526,

19 overruled on other grounds by, State v. Swick, 2012-NMSC-018, ¶ 19, 279 P.3d 747.

20 “An abuse of discretion arises when the evidentiary ruling is clearly contrary to logic

25
1 and the facts and circumstances of the case.” Id. “We cannot say the trial court

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

3 or not justified by reason.” Flores, 2010-NMSC-002, ¶ 25 (internal quotation marks

4 and citation omitted). Even if a trial court erred in admitting evidence, we review the

5 error for nonconstitutional harmless error. State v. Serna, 2013-NMSC-033, ¶ 22,

6 305 P.3d 936. “‘[N]on-constitutional error is harmless when there is no reasonable

7 probability the error affected the verdict.’” Id. (alteration in original) (quoting State

8 v. Tollardo, 2012-NMSC-008, ¶ 36, 275 P.3d 110).

9 {47} At trial, the district court permitted the State to introduce evidence that on one

10 prior occasion while working as a security guard, Victim had been physically

11 threatened on church property and did not pull out his weapon. At issue is

12 Defendant’s contention that “[t]he State should not have been allowed to rebut first

13 aggressor evidence with a specific incident of peacefulness” because such evidence

14 should only be allowed “if [D]efendant opens the door.”

15 {48} As a general rule, “[e]vidence of person’s character or character trait is not

16 admissible to prove that on a particular occasion the person acted in accordance with

17 the character or trait.” Rule 11-404(A)(1) NMRA. However, Rule 11-404(A)(2)(c)

18 provides that “in a homicide case, the prosecutor may offer evidence of the victim’s

19 trait of peacefulness to rebut evidence that the victim was the first aggressor.”

26
1 Additionally, Rule 11-405(B) provides, “When a person’s character or character trait

2 is an essential element of a charge, claim, or defense, the character or trait may also

3 be proved by relevant specific instances of conduct.”

4 {49} Thus, the correctness of the district court’s ruling hinges on whether Victim’s

5 character for peacefulness was “an essential element of a charge, claim, or defense”

6 in this case. Id. If it was, then the evidence was properly admitted. If not, then the

7 admission was error. For the reasons given below, we conclude that the district court

8 erred but that error did not rise to the level of abuse of discretion. Additionally, any

9 error in the admission of this testimony was harmless under the totality of the

10 circumstances.

11 1. The district court erred when it determined Victim’s character for
12 peacefulness was an essential element of a charge, claim, or defense, but
13 the error was harmless

14 {50} Defendant concedes that his “self-defense claim made first aggressor status

15 an element of his defense.” But he argues the claim “did not make [Victim’s]

16 character an element of the offense” because he “did not assert or present evidence

17 that [Victim] had an aggressive nature or a reputation for starting conflicts.” The

18 State found no New Mexico authority “addressing the issue whether the prosecution

19 may offer evidence of specific instances of a deceased victim’s character trait of

20 peacefulness in a homicide case involving a claim of self-defense to address the issue

27
1 of who was the first aggressor,” and Defendant also asserts this is an issue of first

2 impression in New Mexico.

3 {51} We agree with the parties that no New Mexico case has directly addressed the

4 method by which the prosecution may introduce evidence of the deceased victim’s

5 character for peacefulness under Rule 11-404(A)(2)(c). However, we have

6 analogous case law arising in the context of a defendant seeking to admit specific

7 acts evidence to prove the victim’s violent character made it more likely that the

8 victim was the first aggressor. See, e.g., Armendariz, 2006-NMSC-036, ¶ 6-10; State

9 v. Baca, 1992-NMSC-055, ¶¶ 2, 11, 114 N.M. 668, 845 P.2d 762; State v. McCarter,

10 1980-NMSC-003, ¶¶ 12-17, 93 N.M. 708, 604 P.2d 1242; State v. Gallegos, 1986-

11 NMCA-004, ¶¶ 29-31, 104 N.M. 247, 719 P.2d 1268; State v. Montoya, 1981-

12 NMCA-021, ¶ 9, 95 N.M. 433, 622 P.2d 1053; State v. Bazan, 1977-NMCA-011, ¶

13 21, 90 N.M. 209, 561 P.2d 482. Although those cases arose in an inverse posture

14 (addressing each victim’s character for violence), they are relevant to the

15 determinative issue here, which is whether a victim’s character for peacefulness can

16 be considered “an essential element of a charge, claim, or defense” when the

17 defendant claims the victim was the first aggressor under Rule 11-404(A)(2)(c) and

18 Rule 11-405(B).

28
1 {52} As a whole, those cases have been inconsistent in their analyses and

2 conclusions. Compare, e.g., Baca, 1992-NMSC-055, ¶ 6 (holding “specific

3 instances of the victim’s conduct may be admitted when the defendant claims self-

4 defense and when those instances would reflect on . . . who was the first aggressor”),

5 and Gallegos, 1986-NMCA-004, ¶ 32 (“In issues of self-defense, the victim’s

6 character constitutes an element of the defense which properly can be proven by

7 specific instances of conduct.”), with Armendariz, 2006-NMSC-036, ¶ 17 (holding

8 the opposite).

9 {53} However, in our most recent precedent, Armendariz, we held that “specific

10 instances of a victim’s prior violent conduct may not be admitted to show that the

11 victim was the first aggressor when the defendant is claiming self-defense” because

12 “a victim’s violent character is not an essential element of a defendant’s claim of

13 self-defense.” 2006-NMSC-036, ¶ 17. Instead, a victim’s violent character provides

14 “circumstantial evidence that tends to show that the victim acted in conformity with

15 his or her character on a particular occasion. Thus, under Rule 11-405(B) NMRA,

16 only reputation or opinion evidence should be admitted to show that the victim was

17 the first aggressor,” Armendariz, 2006-NMSC-036, ¶ 17, when character is an

18 essential element of the claim of self-defense.

29
1 {54} If “a victim’s violent character is not an essential element of a defendant’s

2 claim of self-defense,” id., then it stands to reason that a victim’s peaceful character

3 likewise should not be an essential element of disproving that defense. Just like a

4 victim’s violent character does not directly prove the victim was the first aggressor,

5 a victim’s peaceful character only provides “circumstantial evidence that tends to

6 show that the victim acted in conformity” with that peaceful character. Id. Thus, we

7 hold Armendariz’s reasoning applies equally to the prosecution’s introduction of

8 peaceful character evidence, and conclude that a victim’s character for peacefulness

9 is not an essential element of a defendant’s claim of self-defense and therefore can

10 only be proven with reputation or opinion evidence. Under this holding, it was error

11 to allow the prosecution to introduce specific act evidence to demonstrate Victim’s

12 peaceful character.

13 2. The error did not rise to the level of abuse of discretion

14 {55} Prior to our holding today, there was no case law directly addressing the issue

15 of the method by which a prosecutor may prove a victim’s peaceful character in a

16 homicide case under Rule 11-404(A)(2)(c). In the absence of controlling law, the

17 district court was not acting contrary to law when it ruled the specific acts testimony

18 was admissible in this case. A district court only abuses its discretion “when the

19 evidentiary ruling is clearly contrary to logic and the facts and circumstances of the

30
1 case.” Armendariz, 2006-NMSC-036, ¶ 6. It was not “clearly contrary to logic” for

2 the district court to determine that Victim’s character for peacefulness constituted an

3 “essential element of a charge, claim, or defense” within the meaning of Rule 11-

4 405(B), given that the State had the burden of affirmatively disproving Victim was

5 the first aggressor.

6 3. The admission of the evidence was harmless error

7 {56} “‘[N]on-constitutional error,’” such as evidentiary error, “‘is harmless when

8 there is no reasonable probability the error affected the verdict.’” Serna, 2013-

9 NMSC-033, ¶ 22 (alteration in original) (quoting Tollardo, 2012-NMSC-008, ¶ 36).

10 We analyze this question using a totality of the circumstances test. Id. ¶ 23. Relevant

11 factors include “the source of the error, the emphasis placed on the error, evidence

12 of a defendant’s guilt apart from the error, the importance of the erroneously

13 admitted evidence to the prosecution’s case, and whether the erroneously admitted

14 evidence was merely cumulative.” Id.

15 {57} Defendant argues the admission of the contested evidence was not harmless

16 because “this was the only evidence that went directly to whether the victim in this

17 case could have been the first aggressor.” That assertion is belied by the

18 contemporaneous audio of the incident, as well as forensic evidence, which

19 reasonably demonstrated that Victim fired his gun in response to Defendant revving

31
1 his engine and driving towards Victim. Furthermore, the testimony in question was

2 brief, lasting a little more than two minutes, and was unlikely to have affected the

3 verdict in light of the direct physical and recorded evidence from the incident.

4 III. CONCLUSION

5 {58} For the foregoing reasons, we affirm Defendant’s conviction for first-degree

6 willful and deliberate murder.

7 {59} IT IS SO ORDERED.

8
9 C. SHANNON BACON, Justice

10 WE CONCUR:

11
12 DAVID K. THOMSON, Chief Justice

13
14 MICHAEL E. VIGIL, Justice

15
16 JULIE J. VARGAS, Justice

17
18 BRIANA H. ZAMORA, Justice

32