State v. Calhoun

STATE OF NEW MEXICO, Plaintiff-Appellee, v. MCCLELLAN CALHOUN, JR., Defendant-Appellant.

No. A-1-CA-36559

COURT OF APPEALS OF THE STATE OF NEW MEXICO

November 22, 2019

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY

Gary L. Clingman, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Meryl E. Francolini, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

IVES, Judge.

{1} Defendant McClellan Calhoun appeals his conviction for involuntary manslaughter. On appeal, Defendant challenges the jury instructions and the sufficiency of the evidence. With respect to the jury instructions, Defendant argues that: (1) the district court committed fundamental error when it failed to give the jury a "no retreat" instruction, (2) the district court committed fundamental error when it failed to instruct the jury on defense of another, and (3) cumulative error in the instructions requires reversal. Defendant also challenges the sufficiency of the evidence, arguing that the State failed to prove beyond a reasonable doubt that his actions were the cause of death and that he should have known of the danger involved in his actions. We affirm.

BACKGROUND

{2} Defendant was charged with involuntary manslaughter based on his participation in an altercation at an Allsups in Hobbs in which seventy-four-year-old Marvin Scarber died. The evidence was undisputed that Mr. Scarber had been shoveling snow to clear the parking lot of the Allsups, when Defendant arrived with his wife, and a friend, Cleve McKenzie, and parked his vehicle near one of the pumps.

{3} Rosalinda Quarles testified that she was working inside the Allsups, when Defendant came in and said that someone needed to come out to deal with Mr. Scarber because he was acting angry and agitated and was throwing snow at Defendant's car. Ms. Quarles sent out another employee, while she continued dealing with customers inside the store. A different customer then came in and said that someone needed to call the police, and Ms. Quarles called 911. She then went outside and saw Mr. Scarber lying on the ground by a gas pump.

{4} Jeremy Rusk testified that he was pumping gas at the Allsups and heard the sound of a woman shrieking. Mr. Rusk testified that he saw a man kick Mr. Scarber in the chest as Mr. Scarber was falling to the ground. Mr. Rusk testified that he then saw a woman throw a snow shovel, and that the man who had kicked Mr. Scarber walked off. Mr. Rusk testified that Mr. Scarber then attempted to get to his feet, staggered for a few steps, and fell once more to the ground. Mr. Rusk went to Mr. Scarber and saw that he was unresponsive and had blood on his face. Mr. Rusk administered Cardiopulmonary Resuscitation (CPR) to Mr. Scarber, which he continued until emergency personnel arrived.

{5} Uryel Hernandez was ten years old at the time of the incident. Uryel testified that he arrived at the Allsups with his family, and saw a person whom he believed to be Geneva's grandfather shoveling snow away from the gas pumps. Uryel testified that he heard a man start yelling at the grandfather, and he then saw the man kick the grandfather in the back. The grandfather fell to the ground, got back up, and then some time after fell to the ground again.

{6} Dr. Cline-Parhamovich, a forensic pathologist with the Office of the Medical Examiner, testified regarding Mr. Scarber's injuries and the manner of death. She also testified that Mr. Scarber had bruising to his head and face due to blunt force trauma, which was consistent with being punched. Dr. Cline-Parhamovich testified that the blunt force trauma itself was not lethal, but that the cause of death was a lethal cardiac arrhythmia brought about by intense emotional and physical trauma. Dr. Cline-Parhamovich's autopsy revealed that Mr. Scarber had a significantly enlarged heart, and that he had undergone a prior heart surgery. Mr. Scarber had scar tissue around his heart and two coronary artery bypass grafts. Dr. Cline-Parhamovich testified that Mr.Scarber had severe disease in both his native arteries and the grafts, and his heart muscles showed evidence of a prior heart attack that had gone through the healing process. Mr. Scarber had mild to significant levels of blockage in his coronary arteries and the grafts. Dr. Cline-Parhamovich testified that, due to the condition of his heart, Mr. Scarber was predisposed to developing a lethal arrhythmia. Wayne Scarber, Mr. Scarber's son, also testified that his father had undergone a quadruple bypass surgery over a year prior to the incident, in November of 2014.

{7} Defendant testified that he arrived at the Allsups with his wife and Mr. McKenzie, and Mr. Scarber immediately began shoveling ice and snow at his car. Defendant went into the Allsups to ask the manager to have someone deal with Mr. Scarber because Defendant believed he was "talking crazy." Defendant testified that from inside the store, he saw Mr. Scarber hold up a shovel to Mr. McKenzie, and he again asked for someone to go outside. Defendant then saw Mr. Scarber standing in front of his wife. Defendant went back outside at that point and stood next to his wife, while Mr. Scarber and his wife continued to argue. Defendant testified that he and Mr. McKenzie asked the Allsup's employee who they could call about Mr. Scarber.

{8} Defendant testified that, at that point, Mr. Scarber began shoveling snow again and hit him twice in the shin with the shovel. Although Defendant told him not to do that again, Mr. Scarber hit Defendant several more times with the shovel and threatened him. Defendant testified that when Mr. Scarber stood in an offensive position and tried to bring the shovel up. Defendant testified that he hit Mr. Scarber once, and then when Mr. Scarber tried to do something else, Defendant hit him again. Mr. Scarber then dropped the shovel and stumbled into the trash can. Defendant testified that Mr. Scarber got up and came towards him again and then walked away. Defendant and his group then got in their vehicle and left.

{9} Defendant was ultimately convicted by the jury of involuntary manslaughter, and this appeal follows. Additional facts are included in the discussion below.

DISCUSSION

I. The State Presented Sufficient Evidence to Convict Defendant of Involuntary Manslaughter

{10} We begin by considering Defendant's challenge to the sufficiency of the evidence because resolution of this issue in Defendant's favor would dispense with the need to consider Defendant's arguments relating to the jury instructions. See State v. Zamora, 2005-NMCA-039, ¶ 22, 137 N.M. 301, 110 P.3d 517 (recognizing that a defendant is entitled to dismissal of the charges if the evidence at trial was insufficient to sustain the conviction). However, as a preliminary matter, we must reject the State's argument that Defendant waived his right to challenge the sufficiency of the evidence on appeal by testifying at trial and presenting evidence after the close of the State's case in chief. In support of this contention, the State relies on State v. Baldwin, 2001-NMCA-063, ¶ 30, 130 N.M. 705, 30 P.3d 394, which states, "[i]t is well-settled that a defendant whopresents evidence waives his claim that the evidence at the close of the State's case was insufficient for submission to the jury." (internal quotation marks and citation omitted).

{11} The State's argument is based on a misapprehension of the law. The rule stated in Baldwin applies to a defendant's argument that the district court erred by denying a motion for directed verdict and submitting the case to the jury. Id. However, this rule does not impact a defendant's right to seek review of the sufficiency of the evidence on appeal. See State v. Hornbeck, 2008-NMCA-039, ¶ 25, 143 N.M. 562, 178 P.3d 847 (recognizing that "although testifying defendants waive their claims that the evidence is insufficient to submit to the jury, they are afforded an opportunity to present their sufficiency arguments on appeal").

{12} The State also relies on State v. Dutchover, 1973-NMCA-052, ¶ 13, 85 N.M. 72, 509 P.2d 264, in which we noted that the defendant had not preserved his argument that the evidence was insufficient to establish proximate causation by motion for a directed verdict, and therefore, could not raise the issue for the first time on appeal. Citing Dutchover, the State argues that Defendant did not preserve the issue of proximate causation for appeal because the issue was not raised by motion below. We disagree. When Dutchover was decided, this was an apparently correct statement of the law. See State v. Lard, 1974-NMCA-004, ¶ 6, 86 N.M. 71, 519 P.2d 307. However, the Rules of Criminal Procedure, adopted in 1972, provide that "out of the presence of the jury, the court shall determine the sufficiency of the evidence, whether or not a motion for directed verdict is made." Rule 5-607(K) NMRA; see also State v. DeBaca, 1977-NMCA-089, ¶ 24, 90 N.M. 806, 568 P.2d 1252 (recognizing that the Rules of Criminal Procedure were effective July 1, 1972). In Lard, we clarified that, because of the adoption of this rule of procedure, "[t]he absence of a motion for a directed verdict at the close of all the evidence [does] not waive the claim that the evidence was insufficient at that point because the [district] court was required to make that determination in the absence of a motion." 1974-NMCA-004, ¶ 6; see also Rule 5-607 comm. cmt.

{13} Moreover, we have repeatedly recognized since Dutchover that a challenge to the sufficiency of the evidence in a criminal...