FROM THE DISTRICT COURT OF BERNALILLO COUNTY Stan Whitaker,
H. Balderas, Attorney General Santa Fe, NM Walter Hart,
Assistant Attorney General Albuquerque, NM for Appellee
Bennett J. Baur, Chief Public Defender Kathleen T. Baldridge,
Assistant Appellate Defender Santa Fe, NM for Appellant
STEPHEN G. FRENCH, Judge.
Defendant Crystal Ortiz appeals her convictions for great
bodily harm by vehicle (driving while intoxicated (DWI)),
contrary to NMSA 1978, Section 66-8-101(B), (C) (2004,
amended 2016); aggravated battery (deadly weapon-vehicle),
contrary to NMSA 1978, Section 30-3-5(C) (1969); and
aggravated DWI, contrary to NMSA 1978, Section 66-8-102(A),
(B) (2010, amended 2016). Defendant did not appeal her
conviction for leaving the scene of an accident (great bodily
harm). On appeal, Defendant argues that: (1) her convictions
violate her right to be free from double jeopardy, and (2)
the district court erred in refusing to grant her duress
defense instructions. This case requires this Court to decide
whether Defendant was entitled to a duress instruction on
great bodily harm by vehicle, aggravated battery, and the
strict liability crime of aggravated DWI. We hold that the
duress instruction was applicable to the facts of the case
and should have been given for aggravated battery (deadly
weapon-vehicle) and great bodily harm by vehicle (DWI) based
on Defendant's prima facie evidence. We affirm
Defendant's conviction for the strict liability crime of
aggravated DWI. Because we reverse Defendant's appealed
convictions for aggravated battery (deadly weapon-vehicle)
and great bodily harm by vehicle (DWI) based on instructional
error, we do not address Defendant's double jeopardy
Prior to trial, Defendant alerted the district court that she
intended to present the affirmative defense of duress as she
was forced to flee from Mr. Hughes (Victim) fearing great
bodily harm. Again, after the defense rested, Defendant and
the State discussed the duress defense with the district
court. The district court denied Defendant's duress
instructions the next day before closing arguments.
On appeal, Defendant challenges the district court's
denial of the duress instruction for three of her
convictions: great bodily harm by vehicle, aggravated
battery, and aggravated DWI. Defendant argues that the
district court erred in denying the duress instructions,
claiming that she had presented a prima facie case for the
giving of the duress instructions and that a reasonable view
of the evidence supported her defense.
"The propriety of jury instructions given or denied is a
mixed question of law and fact" and is "reviewed de
novo." State v. Munoz, 1998-NMSC-041, ¶ 8,
126 N.M. 371, 970 P.2d 143 (internal quotation marks and
citations omitted). "When considering a defendant's
requested instructions, we view the evidence in the light
most favorable to the giving of the requested
instruction." State v. Wyatt B., 2015-NMCA-110,
¶ 33, 359 P.3d 165, citing State v. Romero,
2005-NMCA-060, ¶ 8, 137 N.M. 456, 112 P.3d 1113; see
State v. Hill, 2001-NMCA-094, ¶ 5, 131 N.M. 195, 34
P.3d 139. Our Supreme Court has recognized that "[t]he
duress defense is similar, in this context, to other
justification defenses, " such as necessity, coercion,
or self-defense. State v. Castrillo, 1991-NMSC-096,
¶ 6, 112 N.M. 766, 819 P.2d 1324.
"The defense of duress is a question for the jury."
Esquibel v. State, 1978-NMSC-024, ¶ 9, 91 N.M.
498, 576 P.2d 1129, overruled on other grounds by State
v. Wilson, 1994-NMSC-009, ¶ 6, 116 N.M. 793, 867
P.2d 1175. "To warrant submission to the jury of the
defense of duress, a defendant must make a prima
facie showing that [she] was in fear of immediate and great
bodily harm to [herself] . . . and that a reasonable person
in [her] position would have acted the same way under the
circumstances." Castrillo, 1991-NMSC-096,
¶ 4 (emphasis added); see also State v. Rios,
1999-NMCA-069, ¶ 7, 127 N.M. 334, 980 P.2d 1068. New
Mexico courts have "required the state to disprove such
defenses beyond a reasonable doubt." State v.
Lopez, 1990-NMCA-016, ¶ 9, 109 N.M. 578, 787 P.2d
1261."[T]he district court must instruct on the defense
[of duress] only if it is raised by the defendant and only
if, on the basis of the evidence at trial (whether offered by
the state or by the defendant), a reasonable juror could have
a reasonable doubt arising from the defense."
Id. "The test is not how the judge would weigh
the [duress] evidence as a fact[-]finder; the true test is
whether any juror could be justified in having a reasonable
doubt about whether the accused acted [under duress]."
State v. Guerra, 2012-NMSC-014, ¶ 14, 278 P.3d
1031. "If any reasonable minds could differ, the
instruction should be given." State v. Rudolfo,
2008-NMSC-036, ¶ 27, 144 N.M. 305, 187 P.3d 170.
Defendant argues that her trial testimony and evidence, when
viewed in the light most favorable to the giving of the
requested instruction, was sufficient to satisfy her burden
in her prima facie case and create a reasonable doubt in the
mind of a juror, and therefore the duress instruction should
have been given. We begin by examining Defendant's
testimony at trial.
Defendant testified that she had a relationship with Victim
several years before the instant events. Victim had become a
good friend of her father's. Victim became aggressive
when he drank and ultimately, according to Defendant's
testimony, he raped her three years earlier. Approximately
three years later, she again became friendly with Victim.
During this three year hiatus in their relationship,
Defendant's father and Victim remained good friends. On
the night in question, Defendant and Victim had been out
drinking, along with Defendant's father, and eventually
ended up at Victim's house. Defendant stated that she was
intoxicated, and Victim drove her car to his house.
Once at Victim's house and without invitation, Victim
stood over Defendant and tried to kiss her and touch her
face. Defendant repeatedly told him to stop. Defendant did
not slap or push Victim. Before Defendant attempted to flee
from the house, the first time, Victim continued to
physically touch Defendant and was "trying to pull [her]
into him." Victim pulled a button off Defendant's
clothing and ripped her shirt. When Defendant tried to leave
Victim's house, Victim got angry and threw a pillow,
knocking over a tower of CDs.
At this time, Defendant realized that Victim still had her
car keys. Victim would not allow Defendant to call her
father, grabbed Defendant's phone from her, and when
Defendant tried to leave, Victim physically blocked the door.
Once Defendant was able to regain control of her keys and
phone, Defendant made it out the door and into her car.
Defendant testified, "Well, my thought was to drive away
first and then to call [my father]." Defendant had
started her vehicle before Victim jumped in.
After Victim jumped into the vehicle, Defendant repeatedly
ordered Victim out of the vehicle but he would not leave. As
Defendant started to drive home, Victim was yelling and
screaming at Defendant. At which point, Defendant again tried
to call her father. When Victim grabbed the phone from
Defendant, Victim also grabbed Defendant's hair, causing
the car to jerk. As Victim grabbed Defendant's hair and
the phone, Victim jumped out of the car and started to run
around to the front of the car. It was then that the car
jumped the curb and hit a fence. Defendant believed that
Victim had jumped out of the car before Defendant's car
hit the fence. During Defendant's ...