State v. Reed , 138 N.M. 365 ( 2005 )

SERNA, Justice

(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, 113 N.M. 221, 230, 824 P.2d 1023, 1032 (1992). I also agree with the majority’s conclusion that, because we are affirming the child abuse resulting in death conviction and a conviction of second degree murder would violate the double jeopardy principle articulated in State v. Santulones, 2001-NMSC-018, ¶ 5, 130 N.M. 464, 27 P.3d 456, it is unnecessary to decide whether to remand for a new trial or remand for entry of judgment on second degree murder. In either event, a conviction of the lesser offense of second degree murder would have to be vacated in favor of the greater offense of child abuse resulting in death. See id. ¶¶ 29-30; State v. Pierce, 110 N.M. 76, 86-87, 792 P.2d 408, 418-19 (1990).

{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, 102 N.M. 274, 277, 694 P.2d 922, 925 (1985). The defendant must have actual knowledge that his or her act is greatly dangerous to the lives of others. See State v. Brown, 1996-NMSC-073, ¶ 25, 122 N.M. 724, 931 P.2d 69 (“The malice required for depraved mind murder is an intent to commit an act imminently dangerous to others or with the subjective knowledge that the act creates a very high degree of risk to the lives of others, indicating a depraved mind regardless of human life.”). We have further explained that “sufficient subjective knowledge exists if [the defendant’s] conduct was very risky, and under the circumstances known to [the defendant] [he or she] should have realized this very high degree of risk.” State v. McCrary, 100 N.M. 671, 673, 675 P.2d 120, 122 (1984). We apply this standard because “the element of intent is seldom susceptible to direct proof and accordingly may be proved by circumstantial evidence. Seldom will an accused admit at trial that he [or she] actually knew that his [or her] acts placed another’s life in great danger.” Id. (citation omitted).

{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, 100 N.M. at 673, 675 P.2d at 122. It would be sufficient for the jury to infer from the fact that Defendant knew that two other people were in the room that Defendant should have realized the very high degree of risk from absent-mindedly playing with a loaded gun and intentionally pulling the trigger. See id.

{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, 748 P.2d 1223, 1227 (Colo.1988) (en banc) (“Examples of the kinds of conduct which would demonstrate ‘depraved heart’ murder at common law include: the firing of a loaded gun, without provocation, into a moving train and the resultant death of an innocent bystander; the discharge of a firearm into a crowd of people};] operating a vehicle at high speed[;] placing obstructions on a railroad traek[;] throwing a heavy piece of timber from a roof onto a crowded street; pointing a revolver loaded with a single cartridge and firing it on the third pull of the trigger during a game of Russian Roulette; firing several shots into a home known to be occupied; intending to shoot over a victim’s head in order to scare [the victim], but hitting [the victim] by ‘mistake’; and throwing a heavy beer glass at a woman carrying a lighted oil lamp.”) (citations omitted). All three of these situations involve a risk to only one person, but the act that results in the killing is so extremely reckless, and indicates such indifference to human life, that legislatures have designated it as depraved mind murder. See, e.g., Neitzel v. State, 655 P.2d 325, 338 (Alaska Ct.App.1982) (stating that a game of Russian roulette is “so dangerous and so lacking in social utility ... that it demonstrates extreme indifference to human life and serves to distinguish murder from manslaughter”).

{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, 2001-NMSC-001, ¶ 16, 130 N.M. 6, 15 P.3d 1233. Although the majority also relies on Section 30-2-1 (A) as authority for requiring that multiple people be placed at risk, apparently deferring to the word “lives” rather than “life” in the statutory phrase “greatly dangerous to the lives of others,” I do not believe that the language in the statute supports this interpretation, particularly given its historical origin. The above examples involving risk to a single person represent the common law view of the crime of depraved mind murder. We have previously said that it is this common law view of the crime of murder that our Legislature intended to adopt in 1907 when it set out depraved mind murder in exactly the same terms as the current statute, including the use of the word “lives.” See Territory v. Montoya, 17 N.M. 122, 127, 125 P. 622, 623 (1912) (“[O]ur statute does not attempt to change the definition of the crime of murder as known to the common law.”); see also 1907 N.M. Laws ch. 36, § 1. Our Legislature certainly would have been aware of the famous 1883 example of the beer glass and the oil lamp, and its application to a single person being put at risk, but the Legislature did not indicate any intent to depart from this common-law understanding of the crime. See Sims v. Sims, 1996-NMSC-078, ¶22, 122 N.M. 618, 930 P.2d 153 (“[N]o innovation upon the common law that is not clearly expressed by the legislature will be presumed.”). While some jurisdictions have explicitly applied depraved mind murder to conduct that places only a single person at risk, other jurisdictions and the Model Penal Code have contemplated the application of the crime of depraved mind murder to such conduct even with a definition of the crime that includes a plural term substantially similar to our own statute’s use of the word “lives.” E.g., Model Penal Code § 210.2 cmt. 4, at 22-23 (1962). In addition, it is a basic rule of statutory construction that, absent any indication to the contrary, “[u]se of the singular number includes the plural, and use of the plural number includes the singular.” NMSA 1978, § 12-2A-5(A) (1997). Therefore, I believe that, consistent with the common law view of the crime, the Legislature did not intend to restrict depraved mind murder to conduct placing multiple individuals at risk.

{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. 100 N.M. at 672, 675 P.2d at 121. However, there is no indication that anyone else was in the trucks at the time of the shooting, and the defendants “waited until they thought all people had left the carnival [and] circled two or three times to make sure no one would get hurt.” Id. at 673, 675 P.2d at 122. Our holding in that case was not based on multiple people having been put at risk; instead, we stated that, “[i]n light of the surrounding circumstances, Defendants should have realized the risk of someone sleeping in the sleeper compartment.” Id. (emphasis added).

{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, 114 N.M. 269, 273, 837 P.2d 862, 866 (1992). While an intentional killing may be perceived as “depraved” in a certain sense under particular facts, it is not sufficient without more to qualify as first degree murder. See State v. DeSantos, 89 N.M. 458, 461, 553 P.2d 1265, 1268 (1976). A rash, intentional killing does not rise to the level of depraved mind murder unless the method of killing places multiple people at risk, whether the person killed is the intended victim or a bystander. See State v. Salazar, 1997-NMSC-044, ¶ 47, 123 N.M. 778, 945 P.2d 996; State v. Sena, 99 N.M. 272, 274, 657 P.2d 128, 130 (1983). This additional requirement in the context of an intent to kill stems from our understanding of depraved mind murder as being an unintentional killing. See State v. Baca, 1997-NMSC-059, ¶ 51, 124 N.M. 333, 950 P.2d 776 (holding that the crime of conspiracy to commit depraved mind murder does not exist in New Mexico law); State v. Rogers, 31 N.M. 485, 509, 247 P. 828, 838 (1926) (holding that assault with intent to commit murder cannot be based on reckless acts, even if those acts demonstrate a depraved mind, because the crime requires an intent to kill that is not found in depraved mind murder); State v. Johnson, 103 N.M. 364, 369, 707 P.2d 1174, 1179 (Ct.App.1985) (holding that attempt to commit depraved mind murder is not a crime in New Mexico). Indeed, the cases in which we have applied a requirement of danger to more than one person have involved an intentional killing in which only the life of the intended victim was placed at risk. State v. Haynie, 116 N.M. 746, 747, 867 P.2d 416, 417 (1994); DeSantos, 89 N.M. at 461, 553 P.2d at 1268. These cases are consistent with the Legislature’s definition of second degree murder and effectuate the Legislature’s intended scheme in its classification of intentional killings. However, for killings that occur as the result of outrageously reckless behavior, such as the classic examples mentioned above, I do not believe that the Legislature intended to diverge from the common law understanding of the crime as encompassing those acts that may be directed at only one person. For example, in one case, a defendant fired a gun numerous times in the direction of his girlfriend, who was sitting down, with the first several bullets striking the ground within an inch of the victim and the final bullet hitting the victim in the head and killing her. Neitzel, 655 P.2d at 326. The defendant did not intend to kill the victim, but “[e]yewitnesses were unsure of whether [the defendant] fired at [the victim] to discipline her for drinking vodka which belonged to him, to frighten her, to demonstrate his marksmanship by seeing how close he could come without hitting her, or to just have fun with his rifle.” Id. Whatever the defendant’s purpose, conduct of this nature, even though directed at one person, evidences such total indifference to the value of human life that it satisfies the definition of depraved mind murder. Id. at 338 (describing the conduct as “closely approximating] the examples frequently used in the common law and in the Model Penal Code to differentiate reckless murder from manslaughter”). I believe that the Legislature’s adoption of the common law form of depraved mind murder indicates an intent to encompass this type of egregious conduct. Further, by categorizing the common law form of depraved mind murder as first degree murder, the Legislature has deemed conduct of this nature so heinous and reprehensible that it is the functional equivalent of deliberate intent murder and receives greater punishment than a rash, albeit intentional, killing due to the increased culpability from the defendant’s extreme indifference to the value of human life. See Salazar, 1997-NMSC-044, ¶ 42 (“Depraved mind murder involves blameworthiness and culpability comparable to deliberate premeditated murder.”); Brown, 1996-NMSC-073, ¶27 (“In fact, the depraved mind or extreme indifference aspect required for first-degree depraved mind murder brings it more in line with the ‘specific intent’ or cool deliberation requirements of Section 30-2-1(A)(1) (first-degree premeditated or willful killing).”); see also Tison v. Arizona, 481 U.S. 137, 157, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (“[S]ome nonintentional murderers may be among the most dangerous and inhumane of all-the person who tortures another not caring whether the victim lives or dies____”).

{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.¹ Defendant’s flight and his brother’s lies after the killing is evidence of a consciousness of guilt that would support this view of the killing by a rational jury.² If the jury made this reasonable inference, then this case would mirror either a situation involving Russian roulette or one in which a gun was aimed above someone’s head, both of which are paradigmatic instances of depraved mind murder and both of which, fitting the common law definition of depraved mind murder, fall within the Legislature’s definition of depraved mind murder in Section 30-2-1(A). See State v. Robinson, 261 Kan. 865, 934 P.2d 38, 49 (1997) (“[T]he classic example of depraved heart murder [is] when a defendant unintentionally kills a friend through the game of Russian roulette. In such a case, the defendant demonstrated extreme indifference to the value of only one specific human life, the friend with which he [or she] was playing Russian roulette, but the defendant’s conduct still qualified as depraved heart murder .... ”).

{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, 238 N.Y. 188, 144 N.E. 497 (1924), these cases did not purport to limit depraved mind murder to such facts. In fact, cases have upheld depraved mind murder convictions under facts remarkably similar to the present case. See State v. Tanguay, 574 A.2d 1359, 1361 (Me.1990) (reviewing evidence that the defendant and the victim handed a gun back and forth and that the defendant rolled the cylinder in a gun that he knew could contain two bullets and observing, based on the defendant’s comments and actions having demonstrated that he was playing a type of Russian roulette immediately prior to the shooting, that the jury “made a discriminating assessment of the evidence by acquitting defendant of intentionally killing the victim” but convicting of depraved indifference murder); People v. Sanchez, 98 N.Y.2d 373, 748 N.Y.S.2d 312, 777 N.E.2d 204, 206 (2002) (stating in the context of a defendant recklessly firing a single bullet at his friend from twelve to eighteen inches away that the “defendant’s shooting into the victim’s torso at pointblank range presented such a transcendent risk of causing his death that it readily meets the level of manifested depravity needed to establish” depraved mind murder); People v. Roe, 74 N.Y.2d 20, 544 N.Y.S.2d 297, 542 N.E.2d 610, 613 (1989) (affirming a depraved mind murder conviction for a killing caused by pulling the trigger a single time, and consequently firing a single bullet, from ten feet away from the victim when evidence indicated that it occurred during a game of Polish roulette, despite the defendant’s testimony that the gun slipped and discharged accidentally); see also State v. Baker, No. COA01-710, 150 N.C.App. 717, 565 S.E.2d 112, 2002 WL 1312670, at *2-4 (N.C.Ct.App.2002) (unpublished) (upholding a depraved mind murder conviction based on the defendant’s conduct of pointing a gun believed to be unloaded at a friend after playing video games and pulling the trigger once while ‘“just playing around’ ” with the gun and stating that “[w]hether or not defendant realized that the gun was loaded, his conduct was extremely reckless and utterly without regard for [the victim’s] life”). Of particular note, the jurisdiction relied upon by the majority, New York, has indicated that the more times a defendant fires a gun, the more likely it is that the shooting was intentional and not depraved mind murder. People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116, 819 N.E.2d 634, 637 (2004). In any event, there is nothing in Section 30-2-1(A) that would suggest that the Legislature intended to require the repeated and indiscriminate firing of a weapon.

{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, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). The State is not required “to rule out every hypothesis except that of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “An appellate court does not evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence.” Sutphin, 107 N.M. at 130-31, 753 P.2d at 1318-19. Although I agree with the majority that this would be a close and difficult case for a fact-finder, I believe that there is ample evidence to support the verdict reached by the jury. I would not second-guess the jury’s verdict or substitute my view for that of the jury.

{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, 1996-NMSC-073, ¶ 15. Second, in order to further assure that the defendant acted with a depraved mind, we require subjective knowledge that the act was extremely dangerous to the lives of others. Id. ¶ 16 (“The required mens rea element of ‘subjective knowledge’ serves as proof that the defendant acted with a ‘depraved mind’ or ‘wicked or malignant heart’ and with utter disregard for human life.”); see State v. Primeaux, 328 N.W.2d 256, 258 (S.D.1982) (“[T]he ‘depraved mind’ requirement is a genuine additional element ....”). Neither of these elements are required for second degree murder. A strong probability of death or great bodily harm, which is required for second degree murder, is a lesser standard than extreme danger to the lives of others. See Neitzel, 655 P.2d at 337 (“[T]he significant distinction is in the likelihood that a death will result from the defendant’s act.”); People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704, 707 (1983) (distinguishing between the required “grave risk of death” for depraved mind murder and the “lesser” standard of substantial risk of death); see also Ibn Omar-Muhammad, 102 N.M. at 278, 694 P.2d at 926 (stating that the difference between the extreme recklessness requirement of depraved mind murder and ordinary recklessness “is one of degree, not of kind”). In addition, “[s]econd-degree murder ... contains a component involving an ‘objective knowledge’ of the risk, without the required showing that the risk-creating act was performed with a wicked and malignant heart.” Brown, 1996-NMSC-073, ¶ 16. “Unlike second-degree murder, the new ‘subjective knowledge element’ of depraved mind murder does not include the imputed knowledge that an ordinary person would be expected to have.” Id. ¶ 26. In fact, to emphasize the importance of this distinction in Brown, we overruled precedent that had held that second degree murder contains a subjective knowledge standard similar to depraved mind murder. Id. These two important and substantial distinguishing elements create a meaningful difference between depraved mind murder and second degree murder.

{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, 97 N.M., 76, 78, 636 P.2d 895, 897 (Ct.App.1981) (“The failure to instruct the jury on the definition or the amplification of the elements of an offense is not error when there has been a failure to request such an instruction.”). Nonetheless, as shown by the closing argument of both parties, as well as by the committee commentary to our UJIs, a misunderstanding of the crime of depraved mind murder persists. Defense counsel incorrectly argued reckless disregard as the mens rea for depraved mind murder, and the prosecutor inaccurately told the jury that an idiot combined with a loaded firearm equals depraved mind murder. As the majority indicates, a clearer definition of “depraved mind” could help juries better understand the crime of depraved mind murder. However, I believe that the changes to our UJIs must be more sweeping to fully communicate to juries the difference between depraved mind murder and second degree murder.

{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, 93 Wash.App. 553, 970 P.2d 324, 331 (1999) (“[T]he courts have not attempted to further define ‘extreme indifference’; rather, the particular facts of each case are what illustrate its meaning. There is no need for farther definition.”); see also Neitzel, 655 P.2d at 338.

{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, 1996-NMSC-073, ¶ 16 (“ ‘[S]ubjeetive knowledge’ serves as proof that the defendant acted with a ‘depraved mind’ ____”); Ibn Omar-Muhammad, 102 N.M. at 278-79, 694 P.2d at 926-27 (explaining that extremely reckless conduct serves as evidence of an extreme indifference to the value of human life). Our current instructions refer to the “depraved mind” aspect of the crime only in element three, describing the required act, and not in element four, describing the requirement of subjective knowledge. Cf. Barstad, 970 P.2d at 330 (discussing a jury instruction containing three separate elements requiring that the defendant “engage[] in conduct creating a grave risk of death to others,” that the defendant “know[] of and disregard[] the grave risk of death to others,” and that the “conduct and disregard of such grave risk occur}] under circumstances which manifest [the defendant’s] extreme indifference to human life”) (emphasis added).

{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, 1996-NMSC-073, ¶ 16. However, our UJIs do not implement this critical distinction. The jury instructions for both crimes, first degree depraved mind murder and second degree murder, contain an element of subjective knowledge. It does not seem unlikely that it is this oversight in our UJIs that has caused the majority so much difficulty in trying to distinguish the two crimes as described in the instructions given to the jury in this case. In fact, the commentary to UJI 14-203, while correctly stating that the instruction contains “a subjective test for ‘depraved mind murder,’ ” goes on to say that “[s]econd-degree murder provides an objective test/or depraved mind murder.” (Emphasis added.) The commentary to UJI 14-211 further obscures the distinction between the two crimes by stating that “[sjecond degree murder is committed when death results from acts which the defendant knew created a strong probability of death or great bodily harm. This was formerly known as ‘depraved heart’ murder, which is also murder in the first degree.” (Emphasis added.) Contrary to this view, there are not two forms of depraved mind murder in New Mexico; there is only one form of depraved mind murder, and the Legislature has classified it as first degree murder. The combination of the commentary and the incomplete description of the mens rea for second degree murder in the UJIs has resulted in the elements for depraved mind murder and second degree murder being far more similar than they should be under our cases. The current UJIs completely omit the “major distinction between the two degrees of murder” that we articulated in Brown, 1996-NMSC-073, ¶ 14. Based on the objective knowledge standard for second degree murder articulated in Broum and our other cases, the instruction for second degree murder should require that the defendant knew or should have known that his or her acts created a strong probability of death or great bodily harm. See id. ¶ 26 (“Unlike second-degree murder, the new ‘subjective knowledge element’ of depraved mind murder does not include the imputed knowledge that an ordinary person would be expected to have.”); see also Ibn Omar-Muhammad, 102 N.M. at 277, 694 P.2d at 925 (describing the “objective standard of knowledge of the risk” with the phrase “should have known” and rejecting this standard for depraved mind murder because “[t]he requisite knowledge is a subjective one”).

{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.

1 . 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, 90 N.M. 134, 137, 560 P.2d 925, 928 (1977). “[T]he test to determine the sufficiency of evidence in New Mexico ... is 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 essential element to a conviction.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (emphasis added).

2 . 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.