given instruction in New Mexico

2010Budagher v. Amrep Corp., 97 N.M. 116, 119 , 637 P.2d 547, 550 (1981) (noting that “mere assertion that the given instruction is not an accurate statement of the law is insufficient to alert the mind of the trial judge to the claimed vice of the instruction”). {37} Nothing the Hospital argued below can fairly be said to have alerted the district court’s mind to the argument made on appeal.

2010Budagher v. Amrep Corp., 97 N.M. 116, 119 , 637 P.2d 547, 550 (1981) (noting that “mere assertion that the given instruction is not an accurate statement of the law is insufficient to alert the mind of the trial judge to the claimed vice of the instruction”). {37} Nothing the Hospital argued below can fairly be said to have alerted the district court’s mind to the argument made on appeal.

2024To determine whether the instructional error amounted to fundamental error, we evaluate whether the given instruction “would confuse or misdirect a reasonable juror due to contradiction, ambiguity, omission, or misstatement.” Id. (internal quotation marks and citation omitted).

2024See State v. Benally, 2001- NMSC-033, ¶ 12, 131 N.M. 258 , 34 P.3d 1134 . {5} “Fundamental error only exists if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or if substantial justice has not been done.” State v. Caldwell, 2008- NMCA-049, ¶ 22, 143 N.M. 792 , 182 P.3d 775 (internal quotation marks and citation omitted).

2019Therefore, those instructions became the law of the case.”); Lewis v. Rodriguez, 1988-NMCA-062 , ¶ 20, 107 N.M. 430 , 759 P.2d 1012 (holding that error was not preserved where the party failed to alert the court to error in a given instruction that was constructed from both parties’ tendered instructions); Harrison v. ICX, Ill.-Cal. Exp., Inc., 1982-NMCA-089 , ¶¶ 18- 19 N.M. 247 , 647 P.2d 880 (“The plaintiffs concurred in instruction No. 37 and on the submission of the Special Interrogatories to the jury.

2019Therefore, those instructions became the law of the case.”); Lewis v. Rodriguez, 1988-NMCA-062 , ¶ 20, 107 N.M. 430 , 759 P.2d 1012 (holding that error was not preserved where the party failed to alert the court to error in a given instruction that was constructed from both parties’ tendered instructions); Harrison v. ICX, Ill.-Cal. Exp., Inc., 1982-NMCA-089 , ¶¶ 18- 19 N.M. 247 , 647 P.2d 880 (“The plaintiffs concurred in instruction No. 37 and on the submission of the Special Interrogatories to the jury.

2025As Plaintiffs point out, no prejudice 18 arose from the absence of such an instruction because the district court issued the 19 standard ordinary care instruction and because the jury assigned a percentage of 1 responsibility to one of the pedestrian Plaintiffs—showing that the jury did have the 2 opportunity to consider pedestrians’ comparative fault when crafting the verdict. 3 {32} For Defendant to have prevailed on this contention, it must have shown 4 substantial evidence supporting a jury instruction on the duty of pedestrians, see id., 5 that the given instruction was insufficient, see

2019In a long line of cases, our courts have enforced this preservation rule in circumstances where a party (1) fails to assert an objection altogether,2 (2) asserts an objection that is not sufficiently specific,3 or (3) participates in submitting an incorrect instruction.4 Similarly, a failure to 2 See, e.g., Sonntag v. Shaw, 2001-NMSC-015, ¶ 17 , 130 N.M. 238 , 22 P.3d 1188 (“If a party wishes to preserve for appellate review the trial court’s decision to provide the jury with one instruction rather than another, that party must draw the court’s attention to a specific flaw in the given instruc

2024See State v. Benally, 2001- NMSC-033, ¶ 12, 131 N.M. 258 , 34 P.3d 1134 . {5} “Fundamental error only exists if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or if substantial justice has not been done.” State v. Caldwell, 2008- NMCA-049, ¶ 22, 143 N.M. 792 , 182 P.3d 775 (internal quotation marks and citation omitted).

2016“For fundamental error to exist, the 9 1 instruction given must differ materially from the uniform jury instruction, omit 2 essential elements, or be so confusing and incomprehensible that a court cannot be 3 certain that the jury found the essential elements under the facts of the case.” 4 Caldwell, 2008-NMCA-049, ¶ 24 (internal quotation marks and citations omitted). 5 {16} In the present case, the given instruction fairly represents the elements of 6 aggravated DWI by refusing a chemical test; that on February 26, 2011, Defendant 7 was driving in the State of New Mexico, under the influence

2018See State v. Traeger, 2001-NMSC-022, ¶ 18 , 29 P.3d 518 .

2018See State v. Traeger, 2001-NMSC-022, ¶ 18 , 29 P.3d 518 .

2016Defendant’s constitutional argument is also without merit. {19} The Fourteenth Amendment requires due process in criminal proceedings involving state statutes, and together with the Sixth Amendment right to a trial by jury, entitles “a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (alteration, internal quotation marks, and citation omitted). {20} Thus, if a jury is instructed on the elements of the crime with which the defendant is charged, and the

2016Defendant’s constitutional argument is also without merit. {19} The Fourteenth Amendment requires due process in criminal proceedings involving state statutes, and together with the Sixth Amendment right to a trial by jury, entitles “a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (alteration, internal quotation marks, and citation omitted). {20} Thus, if a jury is instructed on the elements of the crime with which the defendant is charged, and the

2016Defendant’s constitutional argument is also without merit. {19} The Fourteenth Amendment requires due process in criminal proceedings involving state statutes, and together with the Sixth Amendment right to a trial by jury, entitles “a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (alteration, internal quotation marks, and citation omitted). {20} Thus, if a jury is instructed on the elements of the crime with which the defendant is charged, and the

2016See id.

2015In relevant part, the jury was instructed that to prove her hostile work environment theory, Plaintiff was required to establish that Defendant’s “alleged conduct, after it learned of Plaintiff[’s] allegations of rape, was based on her sex and was severe and pervasive.” Plaintiff argues that because the given instruction included the phrase “severe and pervasive” instead of the phrase “severe or pervasive},]” as stated in Plaintiffs proffered instruction on this issue, the jury was provided with a misstatement of the law. {53} Plaintiff’s argument regarding the hostile work environment instruc

2015In relevant part, the jury was instructed that to prove her hostile work environment theory, Plaintiff was required to establish that Defendant’s “alleged conduct, after it learned of Plaintiff[’s] allegations of rape, was based on her sex and was severe and pervasive.” Plaintiff argues that because the given instruction included the phrase “severe and pervasive” instead of the phrase “severe or pervasive},]” as stated in Plaintiffs proffered instruction on this issue, the jury was provided with a misstatement of the law. {53} Plaintiff’s argument regarding the hostile work environment instruc

2021The given instruction deviated from UJI 14-2202 NMRA 4 by omitting the deadly 3 Our Supreme Court’s cases demonstrate that an element may be “undisputed” if by “concession it is not at issue.” Padilla, 1997-NMSC-022, ¶ 8 ; see Lopez, 1996- NMSC-036, ¶ 18 (holding that the defendant’s testimony that he shot at a person while “knowing that his acts created a strong probability of death or great bodily harm” “conclusively established the mens rea requirement for second-degree murder”).

2021See generally § 30-22-22(A)(1) (proscribing, in pertinent part, “unlawfully 3Our Supreme Court’s cases demonstrate that an element may be “undisputed” if by “concession it is not at issue.” Padilla, 1997-NMSC-022, ¶ 8 ; see Lopez, 1996-NMSC-036 , ¶ 18 (holding that the defendant’s testimony that he shot at a person while “knowing that his acts created a strong probability of death or great bodily harm” “conclusively established the mens rea requirement for second-degree murder”).

2019We therefore cannot review the correctness of the instructions, which became the law of the case.”); City of Albuquerque v. Ackerman, 1971-NMSC-032 , ¶ 17, 82 N.M. 360 , 482 P.2d 63 (“We hold, in accordance with long settled practice in New Mexico, that error in failure to give incidental instructions, even from UJI, and even though mandatory, must be brought to the attention of the court in timely fashion if it is to be preserved as error[.]”); Lovato v. Hicks, 1965-NMSC-004 , ¶ 11, 74 N.M. 733 , 398 P.2d 59 (“It follows that the form of the [special] interrogatory cannot be reviewed for an e

2018See Sonntag v. Shaw, 2001-NMSC-015, ¶ 17 , 130 N.M. 238 , 22 P.3d 1188 17 (noting that if the district court chooses to give one instruction over another, the party 18 must draw that court’s attention to the specific flaw in the given instruction to 19 preserve the matter for review); Diversey Corp., 1998-NMCA-112, ¶ 16 (noting that 20 jury instructions are to be read as a whole and when they fairly present the issues and 21 1 the applicable law in light of the evidence presented at trial, they are sufficient); see 2 also Headley, 2005-NMCA-045, ¶ 15 (noting that we do not review undeveloped 3

2026See State v. Venegas, 1981-NMSC-047 , ¶¶ 8-9, 96 N.M. 61 , 628 P.2d 306 . {12} The jury was instructed that second degree murder could be reduced to voluntary manslaughter if Defendant acted as a result of sufficient provocation.

2026See State v. Venegas, 1981-NMSC-047 , ¶¶ 8-9, 96 N.M. 61 , 628 P.2d 306 . {12} The jury was instructed that second degree murder could be reduced to voluntary manslaughter if Defendant acted as a result of sufficient provocation.

2025See State v. Lopez, 1986-NMCA-094 , ¶ 40, 105 N.M. 538 , 734 P.2d 778 (“Defendants cannot complain on appeal of claimed errors which were not objected to below.”). {9} Additionally, we agree with the State that Defendant, not the State, was the source of Officer Murillo’s testimony.

2025See State v. Lopez, 1986-NMCA-094 , ¶ 40, 105 N.M. 538 , 734 P.2d 778 (“Defendants cannot complain on appeal of claimed errors which were not objected to below.”). {9} Additionally, we agree with the State that Defendant, not the State, was the source of Officer Murillo’s testimony.

2023See State v. Wilson, 1994-NMSC-009 , ¶ 5, 116 N.M. 793 , 867 P.2d 1175 .

2023See State v. Wilson, 1994-NMSC-009 , ¶ 5, 116 N.M. 793 , 867 P.2d 1175 .

2023See Sandoval, 2022-NMCA-004, ¶ 11 .

2023See Corona, 2014-NMCA-071, ¶ 26 (“The appellate court presumes that the district court is correct, and the burden is on the appellant to clearly demonstrate that the district court erred.”).

2021See State v. Casares, 2014-NMCA-024, ¶ 18 , 318 P.3d 200 (“[A]bsent cited authority to support an argument, we assume no [supporting] authority exists.”); see also State v. Javier M., 2001-NMSC-030, ¶ 32 , 131 N.M. 1 , 33 P.3d 1 (“[A] statute must be construed so that no part of the statute is rendered surplusage or superfluous.” (internal quotation marks and citation omitted)).

2021See State v. Casares, 2014-NMCA-024, ¶ 18 , 318 P.3d 200 (“[A]bsent cited authority to support an argument, we assume no [supporting] authority exists.”); see also State v. Javier M., 2001-NMSC-030, ¶ 32 , 131 N.M. 1 , 33 P.3d 1 (“[A] statute must be construed so that no part of the statute is rendered surplusage or superfluous.” (internal quotation marks and citation omitted)).

2021See State v. Casares, 2014-NMCA-024, ¶ 18 , 318 P.3d 200 (“[A]bsent cited authority to support an argument, we assume no [supporting] authority exists.”); see also State v. Javier M., 2001-NMSC-030, ¶ 32 , 131 N.M. 1 , 33 P.3d 1 (“[A] statute must be construed so that no part of the statute is rendered surplusage or superfluous.” (internal quotation marks and citation omitted)).