Lead Opinion
OPINION
{1} After a jury trial, Defendant Scott Reed was convicted of first-degree depraved mind murder, in violation of NMSA 1978, Section 30 — 2—1(A)(3) (1994), and sentenced to life in prison. In addition to two other charges not relevant to this appeal, Defendant was also convicted of negligent child abuse resulting in death contrary to NMSA 1978, Section 30-6-1 (2001, prior to 2004 amendment). Finding insufficient evidence, we reverse the conviction for first-degree depraved mind murder, but we affirm the conviction for child abuse resulting in death. Accordingly, we remand to the district court to vacate the conviction for depraved mind murder and adjust Defendant’s sentence accordingly.
BACKGROUND
{2} By all accounts, Defendant, who was 18 years old at the time, was good friends with David O’Brien, who was four years younger. Even though David’s parents did not approve of Defendant or his 16-year-old brother, Jeff, David continued to spend time with them.
{3} On the morning of December 24, 2001, David went shopping with the two Reed brothers and their mother. After returning to the Reed residence, Jeff went to his bedroom to take a nap, while Defendant and David drove to the video store. Around 1 p.m., David called his mother and asked her not to come home because he was studying. She testified that she thought David was home when he called. When the two friends returned to the Reed residence, Defendant’s parents were gone. Besides the three teenagers, the only other person home at the time was Defendant’s grandmother, who was in a far corner bedroom. Suffering from dementia, the grandmother was unaware of the events that followed.
{4} Defendant testified that when he realized that his parents were not home, he retrieved a .38-ealiber revolver from the trunk of his car and brought it into the house. He had purchased the revolver a couple of weeks earlier from a friend, but kept it hidden from his parents because guns were forbidden in the Reed residence. Defendant said that even though David knew he should be returning home, he decided to stay to watch a video in the living room. After the movie started, Defendant placed the unloaded revolver on the coffee table in front of the sofa.
{5} Jeff testified that he saw the gun on the coffee table when he joined David and his brother to watch the movie. Defendant was sitting in the middle of the sofa, with David sitting to his right in a recliner. Jeff lay down on the love seat to Defendant’s left. Defendant testified that while watching the video he began playing with the unloaded revolver. He told the jury he pulled the trigger once and the hammer once. Jeff testified that he saw Defendant click the hammer back and let it go once or twice and heard the revolver click once or twice. Then he did not hear any clicking for a few minutes.
{6} According to Defendant, David got up to go into the kitchen for a snack. Meanwhile, Defendant removed a single bullet from his pocket and placed it in the revolver. Defendant testified that he looked down the barrel of the gun to make sure the bullet was not in the chamber. Viewed from the back of the gun, the bullet was immediately to the right of the top cylinder in line with the firing pin, at a one o’clock position. Defendant told the jury he thought the gun was safe, and would not fire. He pointed the gun off to his side and pulled the trigger once. Defendant testified that he only meant to click the gun, and did not think it could fire. He claimed that because he was watching the television, he was not looking in the direction the gun was pointed, and did not know David had returned to the room. The gun discharged. As it turned out, the bullet had been placed in the exact position from which it would rotate into a firing position upon pulling the trigger. According to the autopsy, the bullet passed at a slight upward trajectory underneath David’s left arm and struck him in the left side of his chest just below his nipple. It traveled through his body and lodged beneath his right arm without exiting.
{7} Jeff testified that he did not see Defendant shoot David, but was surprised when he heard the gunshot and covered himself with his arms. When Jeff looked up, he saw David crouching by the reeliner before falling to the floor. Defendant testified that he was shocked that the gun went off, and that he panicked when he realized David had been shot. Defendant said he and Jeff tried to help David, and immediately called 911. Both spoke to the operator, but lied about what happened. Jeff claimed David was the victim of a drive-by shooting. Defendant said, “Somebody shot my friend.” After hearing sirens, Defendant fled to his older brother’s house with the gun. Crying and distraught, Defendant told his brother he accidentally shot David. Defendant then drove around trying to figure out what to do. He called his father on David’s cell phone, which was in his jacket pocket, and told him the shooting was an accident. He also spoke on the phone with a police detective and admitted shooting David, but said it was an accident. Defendant drove to Springer, then returned to Albuquerque to go to the police. Even after the police told Jeff that Defendant had admitted shooting David, Jeff was hostile and continued to lie about the drive-by shooting. Meanwhile, David died from the gunshot wound.
{8} The State charged Defendant with an open count of murder. A jury trial began in October 2002. According to the State’s main theory at trial, Defendant intentionally shot David after some sort of struggle. The State introduced evidence that David was shot one time in the chest, but that the shirt David was wearing had three holes at the back shoulder that did not line up with where the bullet entered his body. The State’s attorney speculated that the shirt was bunched up because someone was holding David against his will. The State also pointed out that the reeliner in which David had been sitting was found on its side in front of the television about ten feet from its original position, as if thrown in a fight.
{9} To contradict Defendant’s claim that the shooting was an accident, the State introduced evidence to indicate Defendant was familiar with the revolver, and with guns in general. According to Defendant’s own testimony, he had tested the revolver a couple of days earlier at a shooting range. Despite Defendant’s claim that the revolver was sticking, and would not fire when a bullet was in the top chamber, the gun did discharge a couple of times. The State’s tests revealed the revolver was working properly. Detective Zamora, the lead investigator, testified that the trigger on the revolver required a lot of pressure, making it difficult to pull unintentionally. In addition, Defendant’s mother told police officers after the shooting that her sons liked guns. Cartridges from two different caliber weapons, not matching the revolver, were found in Jeffs bedroom.
{10} Much of the State’s evidence, presented to support its theory of an intentional shooting, was ambiguous. Tests conducted on David’s shirt indicated the shooting took place from four to ten feet away, and not at close range. Thus, if the shirt was bunched up, it was not from Defendant grabbing it. Detective Zamora testified that rescue personnel may have moved the reeliner in order to attend to David. Testimony by the State’s own witnesses tended to support Defendant’s claim that he did not intend to shoot David. A detective testified that a lay person is easily confused about the direction a particular revolver rotates. The detective said he had investigated a lot of accidental shootings in which individuals mistakenly believed a revolver would not fire unless a cartridge was in the top position. On cross-examination, Detective Zamora said that he did not believe Defendant meant to shoot David, and that he had no evidence that the shooting was a willful and deliberate murder. He did testify, however, that he believed Defendant pointed the gun at David.
{11} At the close of the State’s ease, defense counsel asked for a directed verdict dismissing the first-degree murder charge because there was no evidence of deliberation. The State countered that it was for the jury to decide if the shooting was accidental. Then the State turned to the alternative theory of first-degree depraved mind murder.
{12} The jury convicted Defendant on all counts, including first-degree murder and negligent child abuse resulting in death. The jury was told to consider both alternative theories of first-degree murder, but only returned a guilty verdict on depraved mind murder. Defendant was sentenced to life in prison.
DISCUSSION
{13} On appeal, Defendant challenges his conviction for depraved mind murder based on insufficient evidence and fundamental error in the jury instructions. In addition, Defendant challenges his conviction for negligent child abuse resulting in death, arguing that the Legislature only intended the crime to apply to persons in a position of authority over a child, and not to a child’s friend. He argues in the alternative that the jury instructions for child abuse caused fundamental error. Finally, Defendant contends, and the State concedes, that if we affirm his first-degree depraved mind murder conviction, his conviction for child abuse would constitute double jeopardy and must be vacated.
Sufficiency of the Evidence
{14} We first address Defendant’s claim that there was insufficient evidence to support his conviction for depraved mind murder. Under a sufficiency of evidence analysis, we must determine “whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin,
Elements of Depraved Mind Murder
{15} In New Mexico, first-degree murder is defined in three ways: (1) as a “willful, deliberate and premeditated killing”; (2) as a death caused “in the commission of or attempt to commit any felony”; and (3) as depraved mind murder. Section 30-2-l(A). Defendant was charged with an open count of murder and indicted for deliberate murder. The court submitted jury instructions on deliberate murder, and in the alternative, depraved mind murder. The court also submitted second-degree murder and involuntary manslaughter instructions as lesser included offenses. The jury did not convict Defendant of deliberate murder, but found him guilty of depraved mind murder. We focus, therefore, on whether the evidence is sufficient to establish that conviction.
{16} New Mexico is one of only a handful of states to classify depraved mind murder as first-degree murder. 2 Wayne R. LaFave, Substantive Criminal Law § 14.7, at 486 & n. 71 (2d ed.2003).
{17} Given the extreme differences in punishment, this Court has previously underscored the importance of distinguishing first-degree depraved mind murder from second-degree murder in New Mexico. State v. Brown,
{18} Despite the importance of construing the first-degree murder statute to punish only the most reprehensible homicides, our courts continue to struggle with making clear distinctions concerning depraved mind murder. See Brown,
{19} A comparison of the jury instructions in Defendant’s case illustrates those “thinnest of distinctions” between depraved mind murder and second-degree murder. To convict Defendant of depraved mind murder, the State was required to show, either through direct or circumstantial evidence, that Defendant killed David without justification or excuse “by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.” See § 30-2-1(A)(3). The statute itself does not define the mens rea, or state of mind, required for depraved mind murder. See § 30-2-l(A). However, the jury instruction for depraved mind murder required the jury to find:
1. The defendant shot and killed David O’Brien;
2. The defendant’s act caused the death of David O’Brien;
3. The act of the defendant was greatly dangerous to the lives of others, indicating a depraved mind without regard for human life;
4. The defendant knew that defendant’s act was greatly dangerous to the lives of others;
5. This happened in New Mexico on or about the 24th day of December 2001.
See UJI 14-203 NMRA 2005 (emphasis added).
{20} In contrast, a person who kills another commits murder in the second degree, “if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.” See § 30-2-l(B). The second-degree murder instruction directed the jury to find:
1. The defendant killed David O’Brien;
2. The defendant knew that his acts created a strong probability of death or great bodily harm to David O’Brien or any other human being;
3. This happened in New Mexico on or about the 24th day of December 2001.
See UJI 14-210 NMRA 2005 (emphasis added).
{21} As can readily be seen by comparing the two instructions, the elements describing knowledge and degree of risk are almost indistinguishable. Both require “an intent to kill or an intent to do an act greatly dangerous to the lives of others or with knowledge that the act creates a strong probability of death or great bodily harm.” State v. Ortega,
{22} The lack of clear-cut distinctions between varying degrees of homicide has been problematic. Section 30-2-l(A)(3) requires “an act greatly dangerous to the lives of others.” Without more specific guidance from the Legislature, one way our courts have distinguished depraved mind murder is by the number of persons exposed to danger by a defendant’s extremely reckless behavior. See Brown,
{23} In addition to the number of people endangered, this Court has construed depraved mind murder as requiring proof that the defendant had “subjective knowledge” that his act was greatly dangerous to the lives of others. See State v. McCrary,
{24} To further narrow the class of killings eligible for depraved mind murder, this Court has concluded “that the legislature intended the offense of depraved mind murder to encompass an intensified malice or evil intent.” Brown,
In Light of these Qualifiers the Evidence Does Not Support Conviction for Depraved Mind Murder
{25} We now inquire whether the State produced sufficient evidence to enable a rational juror to find the facts necessary to support Defendant’s conviction for depraved mind murder. Before doing so, we observe that depraved mind murder is not a substitute for deliberate intent murder; it is not a fallback position available whenever the State fails to prove deliberation. See People v. Roe,
{26} The jury did not find Defendant guilty of deliberate murder but found Defendant guilty of depraved mind murder. We may conclude from the verdict that the jury determined Defendant did not act deliberately but rather acted recklessly. To affirm the first-degree murder conviction, we must be assured that the jury understood that depraved mind murder was not a default charge requiring less evidence. Depraved mind murder carries a heavy but different evidentiary burden. The State must prove beyond a reasonable doubt that Defendant knew his act was greatly dangerous to the lives of others, and that Defendant’s act was greatly dangerous to the lives of others indicating a depraved mind without regard for human life. See UJI 14-203.
{27} Defendant argues that he did not have the requisite knowledge for either depraved mind murder or second-degree murder because he did not think the gun would fire when he pulled the trigger. Defendant testified that when he put a bullet in the revolver, he checked to make sure it was not in the firing position. He claims he did not think the gun would fire without a bullet in the top chamber and was absent-mindedly playing with the gun when he pulled the trigger. He further contends that he was not looking in David’s direction, and did not know David or anyone else was in the line of fire. If Defendant’s story is to be believed, he did not know his act was greatly dangerous to the lives of others, and he did not act under circumstances indicating a depraved mind.
{28} However, the State introduced evidence that Defendant was familiar with firearms in general, and with this one in particular, because he had recently tested it. Even though Defendant claimed that he did not understand the way the gun worked, and that he only thought it could fire with a bullet in the top chamber, at the very least he knew the gun could fire. Thus, in the State’s view, Defendant took an extremely dangerous risk putting a bullet in a revolver, which Defendant thought was misfiring, and pointing that revolver at David and pulling the trigger.
{29} We do not disagree with the State that putting a bullet in a gun and pulling the trigger is extremely, even outrageously, reckless when other people are in the vicinity. If recklessness were all the State had to prove, though, to obtain a conviction for first-degree murder, there would be little principled distinction between depraved mind murder and second-degree murder. See Brown,
{30} In fact, the State argued a theory of depraved mind murder before the jury that was inadequate as a matter of law. At the close of the case, the prosecutor argued that any idiot and a loaded gun was depraved mind murder and that “stupidity is reckless disregard per se.” Thus, the State improperly argued that reckless disregard would be sufficient to prove depraved mind murder. As we have seen, depraved mind murder requires proof beyond a reasonable doubt of additional elements, that Defendant knew his act was greatly dangerous to the lives of others, and that he performed his act under circumstances indicating a depraved mind.
{31} In most depraved mind murder eases, the facts make it obvious that those accused knew their acts were greatly dangerous to the lives of others, and that they consciously disregarded that risk in a way that manifested extreme indifference. See LaFave, supra, § 14.4(b), at 443. Acts of terrorism and drive-by shootings provide clear examples of the type of gravity and depravity required. Planting a bomb in an airport, for example, is murder when death results, even if the intention is only to destroy property. See Perkins & Boyce, supra, at 60.
{32} Unlike these paradigms of depraved mind murder, the circumstances in which Defendant fired a bullet and killed David do not lend themselves to one obvious conclusion, that Defendant knew he was taking a grave risk with respect to everyone in the living room and therefore committed a depraved act. As we have noted, discharging a firearm in an occupied room is certainly reckless behavior. But an unintentional killing that results from such behavior has the potential to be any one of first-degree murder, second-degree murder, or involuntary manslaughter.
{33} In the few New Mexico cases in which we have affirmed depraved mind murder convictions involving the discharge of firearms, the defendant either admitted, or witnesses testified, that the defendant intentionally fired a weapon under circumstances showing an extreme degree of recklessness. See, e.g., State v. Trujillo,
{34} In addition, the defendants in these cases acted with a degree of animosity, which gave the jury additional facts to support findings that the defendants’ actions indicated a depraved mind and that the defendants knew that their acts were greatly dangerous to the lives of others. In Trujillo, the killing took place during an argument with rival gang members.
{35} In these previous cases, even when a defendant claimed to have been unaware that his outrageous conduct exposed others to the extreme risk of death, substantial evidence existed to contradict that claim. In McCrary, for example, the defendant said that he did not know anyone was in the sleeper compartments of the trucks, and thus he was not subjectively aware that his conduct was greatly dangerous to the lives of others.
{36} The case before us stands in contrast. The State contended at trial that Defendant loaded his revolver and intentionally pointed it at David from a distance of a few feet away. Even if we accept that the jury could infer from the evidence that Defendant intentionally pointed his gun at David with the knowledge that the gun could fire, these circumstances without other evidence could only support a charge that Defendant intended to kill David (deliberate intent murder) or intended to commit an act that created a strong probability of death or great bodily harm to David (second-degree murder) but not to others as well. We know that the jury did not find an express intent to kill. But if Defendant’s actions were intentionally directed at David alone, then absent good reason for departing from our previous interpretation of the statute, he cannot be convicted of depraved mind murder. Thus far, we have limited depraved mind murder convictions to acts that are dangerous to more than one person. See DeSantos,
{37} We acknowledge, as the dissent points out, that other jurisdictions allow convictions for depraved mind murder when only one individual is put at risk. See 2 LaFave, supra, § 14.4(a), at 440. In some of those jurisdictions, we note, the legislature clearly indicated the statute applies to individuals. See, e.g., Colo.Rev.Stat. Ann. § 18-3-102(1)(d) (requiring defendant to knowingly engage “in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another”) (emphasis added); Wash. Rev. Code Ann. § 9A.32.030(l)(b) (requiring “conduct which creates a grave risk of death to any person, and thereby causes the death of a person” (emphasis added)). Absent a specific indication from the Legislature, we will not broaden our construction of the statute to expand the crime of depraved mind murder and further blur the lines between first- and second-degree murder.
{38} The State argues that the presence of Defendant’s brother and grandmother make Defendant’s conduct eligible for depraved mind murder because more than one person was placed in peril. However, if we accept the State’s position that Defendant intentionally pointed the revolver at David, no evidence supports the contention that more than one person was placed in danger. No facts support the inference that Defendant loaded his revolver with more than one bullet or pulled the trigger more than once while the bullet was in the revolver. Neither is there evidence that Defendant pointed the gun around the room with reckless abandon, in a threatening manner, or as part of some game of chance with the occupants of the room. Defendant’s brother was lying 180 degrees from where the gun was pointed. There is no dispute in the evidence on this point. Defendant’s grandmother was in a bedroom on the other side of the house, some distance behind Defendant, and not in the direction the gun was pointed. The evidence is undisputed on this point as well. As a result, Defendant’s conviction lacks the evidence needed to establish extreme indifference to human life in general.
{39} Notably, the circumstances of this case differ from the situation in Sena, in which the defendant’s actions of firing several times into a crowded bar, though directed at one individual, placed everyone in the bar directly in danger.
{40} For example, in People v. Jematowski,
{41} As cases like Jematowski indicate, in most convictions for depraved mind murder, the jury can account for the high level of culpability required for first-degree murder by looking at a defendant’s conduct in light of the external facts known to the defendant. If a defendant’s conduct is egregious enough, the jury can infer an element of wantonness and a subjective awareness of a high degree of risk. See Perkins & Boyce, supra, at 60.
{42} Under the right circumstances, a jury might reasonably find that firing a bullet into a room the defendant knows to be occupied would be depraved mind murder. In this case, however, the facts do not speak of these elements. In Defendant’s case, pointing a gun at David without justification and discharging it from four to ten feet away might permit a jury to conclude Defendant committed a “depraved” act; this is virtually a knowing homicide. But without expanding our statutory construction of depraved mind murder, this act directed at David alone can only be deliberate murder or second-degree murder according to Section 30-2-1 (A)(3) and our case law. See DeSantos,
{43} In a case like this, in which the circumstances alone do not manifest a depraved indifference to human life, there must be some circumstances showing malevolence or indifference other than the doing of a wrongful act. See People v. Goecke,
{44} We are not persuaded that the State carried its evidentiary burden beyond a reasonable doubt that Defendant’s conduct rose to the extreme level of depravity reserved for first-degree murder. We hold, therefore, that there is insufficient evidence to support the verdict that Defendant committed an act greatly dangerous to the lives of others, indicating a depraved mind in disregard of human life.
Jury Instructions
{45} Even though it is unnecessary to the disposition of his case, Defendant raises a valid concern with respect to the uniform jury instructions. Defendant argues that “depraved mind” needs to be defined for the jury. The State responds that the term is easily understood, and “clearly indicates a state of mind beyond thoughtlessness or stupidity, a state of mind that encompasses a total disregard of human life.” The opinions of this Court tend to disprove the State’s position. In reviewing depraved mind murder convictions, we constantly provide various detailed definitions of depraved mind. See, e.g., Brown,
{46} We direct the UJI Criminal Committee to consider whether an instruction can be formulated that helps the jury understand the function of the phrase “depraved mind.” Such consideration should address whether the term requires further definition. Cf. State v. Magby,
Child Abuse
{47} Having reversed the conviction for first-degree depraved mind murder, we could remand this case to the district court for a new trial on the lesser included offenses of first-degree murder: second-degree murder and involuntary manslaughter. However, in order to determine whether retrial is legally possible, we must first consider the viability of the child abuse conviction.
Statute Does Not Require a Special Relationship
{48} Defendant contends that our child abuse statute only applies to situations in which an adult, such as a parent or guardian, has a special relationship with a child. Because Defendant and the victim were only friends and contemporaries, Defendant argues that there is insufficient evidence to support his conviction for child abuse.
{49} Defendant is correct that three subsections of the child abuse statute include the specific language of parent, guardian or custodian. See § 30-6-l(A), - 1(B), and -1(C). However, the Legislature does not use those terms in Subsection D, which states that child abuse “consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be: (1) placed in a situation that may endanger the child’s life or health.” Section 30-6-l(D) (emphasis added). “[W]hen a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.” State v. Rivera,
{50} The Legislature has not indicated that the statute for negligent child abuse resulting in death is restricted to persons having a special relationship with the child, such as a parent or guardian. See § 30-6-1(D). Our courts have held that the statute applies to any person who causes or permits a child to be placed in a situation that endangers the child’s life. See State v. Lujan,
{51} Defendant was an 18-year-old adult who shot a 14-year-old child. Unless the Legislature expressly states otherwise, Defendant’s friendship with the victim does not excuse his conduct. We acknowledge Defendant’s argument that a strict application of this statute can lead to absurd results, such as when two friends are separated in age by only a couple of days. However, those facts are not before us. Therefore, we reject Defendant’s argument that the child abuse statute does not apply to him.
Child Abuse Jury Instructions
{52} Defendant also challenges the jury instructions for child abuse. Even though an outdated instruction was given, Defendant did not object or tender different instructions. Therefore, we review for fundamental error. See Rule 12-216(B)(2) NMRA 2005; State v. Sosa,
{53} Defendant argues and the State concedes that the district court gave the jury the former elements instruction for child abuse, rather than the new one. Under the old instruction, the jury was required to find that Defendant knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child. See UJI 14-602 NMRA 1999. Under the new instruction, the jury is required to find that Defendant acted with reckless disregard, which means the jury must find that Defendant knew or should have known his actions created a substantial and foreseeable risk, that Defendant disregarded that risk and was wholly indifferent to the consequences and to the welfare and safety of the child. See UJI 14-602 NMRA 2005.
{54} In Mascareñas, this Court was concerned that the jury could have applied an ordinary negligence standard rather than a criminal negligence standard because the terms “negligence” and “reckless disregard” were used in the same element without clarifying the difference.
{55} Under a fundamental error analysis, however, we consider any possible confusion in the context of jury instructions as a whole. See State v. Cunningham,
{56} Ordinarily, we would agree with the State and conclude that the definition corrected any potential for juror confusion. Only the child abuse instruction referred to “reckless disregard,” and we would presume that the jury would understand the connection regardless of the order in which the jury instructions were read. However, because the possibility exists that the jury read the reckless disregard instruction in the context of the other instructions for homicide, we cannot assume that the misplaced definition corrected any potential for juror confusion. Thus, we conclude that the existence of the jury instruction for reckless disregard did not correct any shortcomings in the child abuse instruction.
{57} However, even assuming that the reckless disregard instruction did not correct the improper child abuse instruction, and that juror confusion persisted due to the order the instructions were given, any error in the child abuse instruction was harmless and not fundamental error. A definitional instruction is not necessary if, as matter of law, no rational juror could find that a defendant acted with less than criminal negligence. See Magby,
Double Jeopardy
{58} Having reversed the depraved mind murder conviction, and affirmed the child abuse resulting in death conviction, we now consider whether it would be in the interests of justice to remand for a new trial on the lesser-included offenses of first-degree murder, for which the jury received instructions, or to remand for entry of judgment on a lesser-included offense. See State v. Villa,
{59} Defendant can only be convicted of one crime for David’s death. See Santillanes,
{60} Because we affirm the conviction for child abuse resulting in death, Defendant cannot be convicted twice for the lesser includes offenses of depraved mind murder. Thus, it would not be in the interests of justice to remand for a new trial or for entry of judgment on the lesser included offenses.
CONCLUSION
{61} We reverse Defendant’s conviction for depraved mind murder, and affirm the conviction for child abuse resulting in death. On remand, we instruct the district court to vacate Defendant’s conviction for depraved mind murder and adjust Defendant’s sentence accordingly.
{62} IT IS SO ORDERED.
Notes
. The State charged Defendant with an open count of murder. A few weeks later, the grand jury indicted Defendant for first-degree murder (willful and deliberate), contrary to Section 30-2 — 1(A)(1), as well as the lesser included offenses, which were second-degree murder, contrary to Section 30-2-1 (B), and manslaughter, contrary to Section 30-2-3. According to the record, Defendant was never indicted for depraved mind murder, but did not object to the jury being instructed on depraved mind murder.
. See Colo.Rev.Stat. Ann. § 18-3-102(1)(d) (West 2004) (providing that a person commits the crime of murder in the first degree if: "[u]nder circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another"); Me. Rev.Stat. Ann. 17-A, § 201(1)(B) (West 2004) (providing that a person is guilty of murder if the person "[e]ngages in conduct that manifests a depraved indifference to the value of human life and that in fact causes the death of another human being”); Wash. Rev.Code Ann. § 9A.32.030(1)(b) (West 2005) (providing that a person is guilty of murder in the first degree when: "[u]nder circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the' death of a person”).
. We note in this case that the jury instruction describing the act required for depraved mind murder was flawed. The instruction simply required the jury to find "defendant shot and killed David O'Brien.” Not much distinguishes this phrase from the act described in the jury instruction for second-degree murder: "defendant killed David O’Brien.” In other attempts to convict a defendant for depraved mind murder in New Mexico, the act was described in more detail. See, e.g., State v. Hernandez,
. Even if we ignored the general rule in New Mexico that depraved mind murder involves an act endangering more than one person, we do not agree with the dissent that the jury could properly infer from the evidence that Defendant was playing some form of Russian roulette. While playing a macabre game of chance with a firearm may be a classic example of an act indicating a depraved mind, other jurisdictions have required more evidence in affirming murder convictions where it appeared the defendants were playing Russian roulette. See, e.g., State v. Boyce,
. See also State v. Michaud,
. We agree with the dissent that changes to our juty instructions should be more sweeping in order to clarify the distinctions between the various degrees of murder. Adopting the language of the Model Penal Code may offer a promising start, but we decline to suggest such a change primarily because we are constrained by the language of the statute. In addition, replacing "depraved mind" with the phrase "indicating an extreme indifference to the value of human life” would fail to clarify the differences between first-degree murder and manslaughter, for example, unless the jury instructions for manslaughter were changed. See Romero, supra, at 80-86 (suggesting comprehensive changes to the statutes and uniform jury instructions for all degrees of unintentional homicide). As the drafters of the Model Penal Code made clear in refusing to further define the extreme indifference required for murder: "It must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter.” Model Penal Code § 210.2 cmt. 4, at 21-22 (1980). Without changes throughout our jury instructions, the distinction between murder and manslaughter would remain unclear.
Concurrence Opinion
(concurring in part and dissenting in part).
{63} I concur in the majority’s affirmance of the child abuse resulting in death conviction, but I respectfully dissent from the majority’s reversal of the depraved mind murder conviction. I would affirm Defendant’s conviction of first degree murder.
{64} Regarding the child abuse conviction, I agree with the majority that the Legislature has not restricted child abuse in Section 30-6-1(D) to persons having a custodial relationship with the child, and I agree that the jury instructions did not create fundamental error. The jury was given an instruction defining “reckless disregard,” and child abuse resulting in death was the only crime requiring this mental state. “The jury is presumed to follow the court’s instructions.” State v. Gonzales,
{65} With respect to the majority’s reversal of the depraved mind murder conviction, I believe that application of the appropriate standard of review shows that there was sufficient evidence to support this crime as it has been defined by the Legislature. Section 30-2-l(A) defines as first degree murder “the killing of one human being by another without lawful justification or excuse ... by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.” We have interpreted this provision to require subjective knowledge on the part of the defendant. State v. Ibn Omar-Muhammad,
{66} The majority recognizes that the evidence in this case, viewed in a light most favorable to the verdict, supports an inference that Defendant’s conduct of pulling the trigger of a loaded gun with others in the vicinity was outrageously reckless and supports a finding that the circumstances known to Defendant included the following: (1) the gun was functioning properly; (2) Defendant was aware of how the gun operated; (3) multiple people were in close proximity; and (4) Defendant loaded the gun himself. The majority also views Defendant’s actions as a knowing homicide. In my view, these facts satisfy the definition of depraved mind murder set out by the Legislature and clarified by this Court in Brown, McCrary, and Ibn Omar-Muhammad. From these facts, I believe a rational trier fact could find beyond a reasonable doubt that Defendant’s conduct was very risky, that is, greatly dangerous to the lives of others, and that, based on the circumstances known to him, Defendant knew of the very high degree of risk to the lives of others from his actions. By holding this evidence insufficient, I believe that the majority alters the crime of depraved mind murder from how it was conceived by the Legislature.
{67} It seems that the primary reason that the majority believes the evidence in this case to be insufficient is because Defendant’s actions did not place more than one person at risk. However, I respectfully disagree with the majority on this point both factually and legally. From a factual standpoint, the majority assesses the risk to others based on the State’s argument that Defendant intentionally pointed a loaded gun at the victim with knowledge that it could fire. I believe that this overlooks Defendant’s testimony that he pointed the gun at himself and to his side and pulled the trigger of a gun he knew he had loaded without paying any attention to what the other two individuals in the room were doing or where they were located. Under this testimony, a rational jury could conclude that Defendant’s outrageously reckless conduct placed more than one life in danger. Again, the jury was not required to find that Defendant actually knew that the victim or Defendant’s brother was in the line of fire. See McCrary,
{68} Even under the factual scenario of Defendant pointing the gun at the victim, I respectfully disagree with the majority’s legal conclusion that Defendant was required to place more than one life in danger. I do not believe this conclusion is supported by Section 30-2-1 (A) or compelled by our case law. The majority relies on the committee commentary to UJI 14-203. However, this commentary says only that “[i]t is generally believed that this murder occurs when the accused does an act which is dangerous to more than one person.” UJI 14-203 committee cmt. On the contrary, however, it is generally understood that “[f]or murder of the depraved-heart type ... the required risk may be risk to a group of persons ... or it may be risk only to a single person.” 2 Wayne R. LaFave, Substantive Criminal Law § 14.4(a), at 441 (2d ed.2003). In fact, three of the paradigmatic instances of depraved mind murder, cited in jurisdictions analogous to our own as well as in jurisdictions where it is a lesser crime, are a game of Russian roulette between two people, firing a gun with the intent to aim above someone’s head but killing that person instead, and throwing a full beer mug at a person carrying a lighted oil lamp. E.g., 2 LaFave, supra, § 14.4(a), at 440; People v. Jefferson,
{69} Committee commentary to a uniform jury instruction can be persuasive only to the extent that it is not inconsistent with existing law. See State v. Johnson,
{70} In McCrary, for example, in which the defendants fired at tractor-trailers and cabs, the individual who was killed was in a sleeping compartment in one of the cabs.
{71} Under our current statutory scheme, I would agree that when an intent to kill exists, then there should be a requirement that multiple people be put at risk in order to constitute depraved mind murder. The Legislature has indicated that an intentional killing unaccompanied by deliberation and not committed in the course of a felony, such as a rash or impulsive killing, should be second degree murder. See State v. Garcia,
{72} As the majority indicates, the jury could reasonably have found from the facts in this case that Defendant intentionally pointed the gun at David and even, based on Defendant’s prior knowledge of the functioning of the gun, the evidence that the gun functioned properly, and his intentional loading of the gun, that he intended for the gun to fire but that he did not intend to kill David. The jury could have believed that Defendant was attempting to play a practical joke on the victim or trying to scare him. Otherwise, why would Defendant have intentionally loaded the gun? Defendant testified that there was no real reason that he loaded the gun and that he was just playing with it. However, if his only intent was to play with the gun or “click” it, he could have, and in fact did, accomplish this without the gun being loaded. From the jury’s perspective, Defendant must have had a reason to take the extraordinary step, beyond the already reckless act of pulling out a gun in the presence of others and pulling the trigger, of intentionally putting a bullet in the gun and then intentionally pulling the trigger knowing that it was loaded.
{73} While the eases cited by the majority may have been based on “particularly egregious facts,” such as “repeated and indiscriminate firing of a weapon,” e.g., People v. Jematowski,
{74} The majority states that the facts in this case “do not lend themselves to one obvious conclusion” and that in our other eases “there was no question that the defendant acted intentionally in fixing the weapon.” In my view, these statements overlook the appropriate standard of review. The question in this ease is not whether this Court agrees with the jury’s verdict or whether the verdict reached by the jury was inescapable; it is whether, after viewing the evidence in a light most favorable to the verdict and indulging all reasonable inferences in support thereof, any rational jury could have found the elements of the crime beyond a reasonable doubt. See State v. Sanders,
{75} The majority also contends that affirming Defendant’s conviction would transform all accidental shootings into depraved mind murder. I respectfully disagree. The facts in this case, viewed in a light most favorable to the verdict, do not support an “accidental” shooting. A rational jury could have found beyond a reasonable doubt that Defendant intentionally loaded the gun, intentionally pointed the gun at the victim, and intentionally pulled the trigger. These facts demonstrate outrageous recklessness on the part of Defendant and unquestionably distinguish this case from one involving mere negligence, or even recklessness, with a tragic result.
{76} The majority believes that only the “thinnest of distinctions” can be made between depraved mind murder and second degree murder. However, as we explained in Brown, depraved mind murder consists of two significant distinguishing elements. First, depraved mind murder requires outrageous recklessness, which serves as evidence of a depraved mind regardless of human life. See Brown,
{77} Although I believe that we sufficiently distinguished depraved mind murder from second degree murder in Browm, I agree with the majority that our jury instructions should be clarified. The depraved mind murder instruction the jury received in this case reproduces the Legislature’s definition of the crime practically verbatim and is, I believe, a correct statement of the law. If Defendant wanted any further definition of depraved mind, it was incumbent upon him to request it. See State v. Carnes,
{78} Initially, I am concerned that a definition of “depraved mind” might still leave the element unclear. For example, many of the descriptions of “depraved mind” in our cases contain arcane language, such as “depraved kind of wantonness” and “wicked and malignant heart,” that may not assist juries in truly understanding the Legislature’s intent any more than the statutory phrase itself. In fact, the drafters of the Model Penal Code addressed this very problem and concluded that definitional instructions or expansive descriptions of the requisite mental state may actually impede jury deliberations. Instead, Model Penal Code replaced the common law language of depraved mind or depraved heart with the phrase “extreme indifference to the value of human life.” Model Penal Code § 210.2. The commentary explains as follows:
[I]t seems undesirable to suggest a more specific formulation. The variations [in terminology used in different jurisdictions] retain in some instances greater fidelity to the common-law phrasing but they do so at great cost in clarity. Equally obscure are the several attempts to depart from the common law .... The result of these formulations is that the method of defining reckless murder is impaired in its primary purpose of communicating to jurors in ordinary language the task expected of them. The virtue of the Model Penal Code language is that it is a simpler and more direct method by which this function can be performed.
Model Penal Code § 210.2 cmt. 4, at 25-26.
{79} Instead of defining the term “depraved mind,” the committee might find it more appropriate to change the phrasing of the element itself to make it “simpler and more direct.” As noted previously, the language in the present UJI follows the language of the statute, but perhaps the incorporation of the language in the Model Penal Code, with the phrase “indicating an extreme indifference to the value of human life,” would be clearer to juries than “indicating a depraved mind without regard for human life.” An instruction of this nature would not require further amplification and would effectively communicate the meaning of the crime intended by the Legislature. See State v. Barstad,
{80} I also believe it would be useful to explain to the jury, as we explained in Brown, that it is both the outrageously reckless conduct and the defendant’s subjective knowledge of the extreme danger to the lives of others that demonstrates a depraved mind. See Browm,
{81} To me, however, the primary lack of clarity in our jury instructions does not come from the elements of depraved mind murder in UJI 14-203. This instruction follows the language of the statute and, while certainly subject to improvement, correctly states the law. Instead, the primary problem lies in the elements of second degree murder in UJI 14-210 and UJI 14-211. As explained above, we have held that depraved mind murder differs from second degree murder because it requires a “subjective knowledge” on the part of the defendant, whereas second degree murder requires only “objective knowledge.” Brown,
{82} Because I believe that there is sufficient evidence to support the jury’s verdict under the appropriate standard of review, I would affirm Defendant’s depraved mind murder conviction. The majority holding otherwise, I respectfully dissent from this portion of the majority opinion.
. These facts, coupled with the location of the wound, make the likelihood of a game of chance or similar outrageously reckless conduct far more likely than a mere accidental shooting and is not, in my view, evidence equally consistent with two inferences. The fact that there was no eyewitness testimony or other direct evidence supporting an inference of this nature is not determinative in a review for sufficient evidence. See State v. Bell,
. In fact, if the juiy believed that Defendant was trying to scare the victim or play a practical joke on him, then the jury might reasonably have inferred from the brother’s lies and the multiple bullet holes in the victim's shirt, combined with the forensic testimony that the bullet was fired from four to ten feet away, that Defendant’s brother could have been holding the victim as part of the prank. If the jury made this inference, then Defendant's act of pointing the gun at the victim would have been greatly dangerous to the life of his brother in addition to the life of the victim.