State v. Branch

• Decision Date: 23 January 2018
• Docket Number: NO. A-1-CA-33064,A-1-CA-33064
• Citation: 417 P.3d 1141
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Lawrence BRANCH, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

417 P.3d 1141

STATE of New Mexico, Plaintiff-Appellee,

v.Lawrence BRANCH, Defendant-Appellant.

NO. A-1-CA-33064

Court of Appeals of New Mexico.

Filing Date: January 23, 2018

Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee.

Bennett J. Bauer, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

VANZI, Judge.

{1} Defendant appeals his convictions for aggravated battery with a deadly weapon, negligent use of a deadly weapon, and aggravated assault with a deadly weapon. On May 23, 2016, we issued an opinion affirming in part, reversing in part, and remanding for the district court to document its findings related to the serious violent offense designation. State v. Branch , 2016-NMCA-071, 387 P.3d 250. The Supreme Court granted a writ of certiorari and conditional cross-petition on July 28, 2016. Order at 1, State v. Branch , No. S-1-SC-35951 (July 28, 2016). The Court subsequently quashed the writ of certiorari on Defendant's petition, and quashed and remanded this case to this Court on the State's conditional cross-petition after deciding issues related to whether the firearm enhancements on sentences for aggravated assault with a deadly weapon violated double jeopardy in State v. Baroz , 2017-NMSC-030, ¶¶ 20-27, 404 P.3d 769. In that case, our Supreme Court noted that "[t]he legislative policy behind the firearm sentence enhancement is that a noncapital felony, committed with a firearm, should be subject to greater punishment than a noncapital felony committed without a firearm because it is more reprehensible." Id. ¶ 27. Consequently, because the Legislature intended to authorize an enhanced punishment when a firearm is used in the commission of aggravated assault, the Court held that "[t]he sentence enhancement does not run afoul of double jeopardy." Id.

{2} On remand, we withdraw the opinion issued on May 23, 2016, and substitute this opinion in its stead.

{3} As we noted in our original opinion, there is no question that Defendant Lawrence Branch shot and injured his adult son, Joshua Branch, with a .44 caliber revolver. Defendant confessed to the shooting and was charged with aggravated battery with a deadly weapon and negligent use of a deadly weapon. He was also charged with aggravated assault with a deadly weapon for allegedly assaulting his wife, Patricia Branch, on the theory that Defendant's conduct caused Patricia to reasonably believe that he was about to batter her as well. The key issue at trial was whether the shooting, which was the basis for all three charges, was in self defense.

{4} The jury ultimately convicted Defendant on all counts. Penalties for aggravated battery and aggravated assault were each increased by one year pursuant to the statutory firearm enhancement. NMSA 1978, § 31-18-16(A) (1993). The district court then adjudged the aggravated assault conviction to be a "serious violent offense," which limits Defendant's eligibility for good time credit for time served in a state prison. See NMSA 1978, § 33-2-34(A)(1) (2006, amended 2015).

{5} On appeal, Defendant argues that (1) insufficient evidence and instructional error require reversal of the aggravated assault conviction, (2) multiple punishments violate Defendant's right to be free from double jeopardy, (3) discovery and evidentiary rulings undermined Defendant's ability to present a defense and to confront the State's evidence with respect to all charges, and (4) the serious violent offense designation to the aggravated assault conviction lacks necessary findings. In our original opinion, we affirmed Defendant's convictions for aggravated assault and aggravated battery, vacated his conviction for negligent use of a deadly weapon, and remanded for the district court to document its findings related to the serious violent offense designation. The Supreme Court order quashed the writ of certiorari on the questions presented in Defendant's petition on the above issues, and they are no longer subject to further consideration. See Order at 2, State v. Branch , No. S-1-SC-35951 (Dec. 18, 2017). On remand, and in light of Baroz , however, we hold that Defendant's firearm enhancements for aggravated assault and aggravated battery do not violate double jeopardy and that the district court's decision in this regard is affirmed.

BACKGROUND

{6} By all accounts, Joshua and Defendant spent the morning of May 7, 2012, arguing in the front yard, as they often did, about how best to care for the property they occupied in separate trailers. Joshua, who was a college student in the spring of 2012, left in the middle of the argument to take an exam. The argument resumed upon his return and ended when Defendant fired a single shot, striking Joshua in the thigh. Joshua's injuries resulted in five surgeries and ongoing issues with circulation and limb function. He was on crutches when he testified for the State at trial a year later.

{7} The specific circumstances surrounding the shooting were contested below. The State's witnesses testified that Defendant was visibly upset—"aggravated, agitated"—that morning. When Joshua finished his exam and returned to his parents' trailer, Defendant, with "hatred in his voice," told him to "get ... off the property." The two then shouted back and forth before Joshua attempted to leave. Joshua and Patricia walked toward the concrete slab that surrounded the steps to the porch. He had plans to meet his girlfriend for lunch, and Patricia, attempting to ease the tension, told him to do that. But as Joshua and Patricia talked near the front steps, Defendant walked past them into the house.

{8} At some point prior, two guns—including a .44 caliber super blackhawk (described as a "hand cannon" by one witness)—were moved from their usual spot in a closet at the back of the trailer and stashed in Defendant's recliner, which faced the trailer's front entrance. Defendant armed himself with the .44 within seconds of entering the trailer and then walked back to the front door. Steven Hickman, a family friend who was visiting the Branch home that day, testified that Defendant "went to the door and then [said] ‘get ... out of here’ and then bang, just like that, that quick, the gun was fired."

{9} Patricia testified that she had her hand on Joshua's shoulder when he was shot. The two were facing one another when she looked up and saw Defendant standing in the doorway with the .44. She hollered, "No!" And Defendant fired. She saw the "fire come out" of the gun, felt something hit her leg, and saw Joshua fall. She testified that she "thought he was going to shoot all of us."

{10} While Joshua lay bleeding on the pavement, Defendant came out of the trailer and placed a set of keys on the dash of a car that was parked under the carport. He then looked over to Patricia, turned, and walked up the road, stopping only to dispose of his pocket knife in a flower pot on the way out. Patricia did not see Defendant again that day.

{11} Defendant's version of events differed in some respects. He testified that he was sitting with Patricia on a swing in the yard when Joshua returned from school. Defendant, who no longer wanted to argue, told Joshua that he would leave. When Defendant stood to do so, he saw that Joshua was furious. As Defendant walked toward the trailer, he saw Joshua and Patricia coming toward him. He entered the house and saw Joshua outside, nearing the porch and then reaching for the rail by the door. Defendant was frightened because he knew that Joshua was a "violent kid" with post traumatic stress disorder

(PTSD) who had been in several fights before, including a fight in the military. He armed himself with the .44 and shot Joshua, who then released the rail and fell to the concrete. Additional facts will be included as needed in the analysis that follows.

DISCUSSION

A. Instructional Error and Sufficiency of the Evidence

{12} Assault consists of "any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery[.]" NMSA 1978, § 30-3-1(B) (1963). The offense is aggravated when, as in this case, it is committed with a deadly weapon. NMSA 1978, § 30-3-2(A) (1963). Defendant argues that Section 30-3-1(B) required the State to prove something more than general criminal intent, which was the instruction given to the jury. Specifically, Defendant argues that the State had to prove "specific intent to frighten or put someone in fear of an imminent battery[,]" or at the very least, that one charged with violating Section 30-3-1(B) did so recklessly. Reading limiting principles of this sort into the statute would theoretically ensure some nexus between a defendant and his victim, thereby preventing what might otherwise amount to a construction of the assault statute that criminalizes the infliction of emotional distress for every bystander that is reasonably put in fear by the commission of a nearby crime.

{13} Defendant's argument is characterized as a sufficiency of the evidence challenge, as a challenge to the jury instructions themselves, and as an assertion of ineffective assistance of trial counsel in failing to request more demanding jury instructions. "Our review for sufficiency of the evidence is deferential to the jury's findings. We review direct and circumstantial evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Webb , 2013-NMCA-027, ¶ 14, 296 P.3d 1247 (alteration, internal quotation marks, and citations omitted). With respect to jury instructions, we review for reversible error when an instruction is preserved and for fundamental error when not. State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. Whether preserved or not, however, Defendant's contention ultimately raises an issue of statutory...