State v. Percival, 2017 NMCA 42

Background

In the early morning of Feb. 16, 2012, APD officers stopped Raquel Percival after observing erratic driving and a nonworking license plate lamp; officers detected alcohol and arrested her for aggravated DWI, careless driving, and an equipment violation.
Percival admitted driving and drinking but asserted duress: she left a friend’s apartment because a newly introduced man made her feel unsafe, and she drove away fearing for her safety.
Percival tendered jury instructions that would have added the absence of duress as an essential element to the charged offenses; the metropolitan court refused those and instead gave UJI 14-4506 (aggravated DWI), UJI 14-4505 (careless driving), and UJI 14-5130 (duress).
While orally charging the jury, the court misstated UJI 14-5130, reversing the State’s burden (saying the State must prove Percival acted under reasonable fear), but the written instructions provided to the jury correctly stated the burden. Percival did not object at trial to the misstatement.
Percival was convicted; the district court affirmed. On appeal she argued (1) the court erred in refusing to make absence of duress an essential-element instruction, and (2) the oral misreading of UJI 14-5130 constituted fundamental error. The Court of Appeals affirmed.

Issues

Issue	State's Argument	Defendant's Argument	Held
Whether the trial court erred by refusing to add absence of duress as an essential element to the aggravated DWI and careless driving instructions	The uniform instructions given (UJI 14-4506 and UJI 14-4505) combined with UJI 14-5130 properly cover essential elements; duress is an excuse, not an element-negating defense	Duress put unlawfulness/essential elements at issue, so the absence of duress should be added as an essential element instruction	No reversible error: duress excuses conduct and does not negate essential elements; the instructions as given, taken together, adequately instructed the jury
Whether UJI 14-5130 conflicts with or renders the elements instructions vague/contradictory	The duress instruction complements the element instructions; considered as a whole the instructions are neither facially erroneous nor contradictory	The combination could confuse jurors or leave out an essential issue and thus be reversible	No reversible error: instructions are not facially erroneous, vague, or contradictory when read together; a duress inquiry is a second-step only if elements are proved
Whether the court’s oral misstatement of the State’s burden in UJI 14-5130 was fundamental error	Any misstatement was cured by providing correct written instructions to the jury and thus did not remain uncorrected	The misstatement reversed the burden and, unobjected to, constituted fundamental error that could have confused jurors	No fundamental error: jurors received correct written instructions and are presumed to follow them, so the misstatement was not prejudicial
Preservation standard for instruction error review	Preserved errors are reviewed for reversible error; unpreserved for fundamental error; tendered-but-refused instructions preserve the issue	Argued that tendered instruction was wrongly rejected and that oral misstatement was unpreserved but fundamental	Court applied de novo review for instruction rejection (preserved) and fundamental-error review for the unobjected oral misstatement and affirmed

Key Cases Cited

State v. Ellis, 144 N.M. 253, 186 P.3d 245 (instruction rejection reviewed de novo; failure to instruct on all essential elements is reversible error)
State v. Benally, 131 N.M. 258, 34 P.3d 1134 (distinguishes reversible vs. fundamental error; unpreserved instruction error reviewed for fundamental error)
State v. Parish, 118 N.M. 39, 878 P.2d 988 (an instruction omitting an essential element—unlawfulness—was reversible; erroneous instruction cannot be cured by a later correct one)
State v. Rios, 127 N.M. 334, 980 P.2d 1068 (duress is an excuse and does not negate an element of the offense)
State v. Armijo, 127 N.M. 594, 985 P.2d 764 (self-defense negates unlawfulness element)
State v. Contreras, 142 N.M. 518, 167 P.3d 966 (mistake of fact may negate required mental state)
State v. Brown, 122 N.M. 724, 931 P.2d 69 (intoxication may negate required intent)
State v. Gurule, 149 N.M. 599, 252 P.3d 823 (aggravated DWI is a strict liability offense not requiring criminal intent)
State v. Armendarez, 113 N.M. 335, 825 P.2d 1245 (written jury instructions can cure an oral misstatement; jurors presumed to follow written instructions)