## Facts

- A firebomb was thrown into a mobile home occupied by Carolyn Sue Parker, her two children, a live-in babysitter, and two male friends (Cauffman and Shannon).
- The occupants extinguished the fire before anyone was injured.
- Evidence indicated Ray Wells threw the device and that Gary D. Johnson and his wife acted as accomplices.
- The apparent motive was retaliation after Johnson and his wife were recently evicted from Parker’s home.
- Johnson knew Parker, her children, and the babysitter would be present, but did not know the two male friends would be there.

## Issues

1. Whether New Mexico recognizes the crimes of attempted first-degree “depraved mind” murder and attempted second-degree murder of an unintentional (reckless/indifferent) variety.
2. Whether due process was violated when the jury was instructed on negligent arson although the charging document alleged willful and malicious arson.
3. Whether convictions and sentences for multiple attempted murders may be imposed for a single act endangering multiple victims, consistent with double jeopardy.
4. Whether refusing a requested mistake-of-fact instruction improperly denied the defendant the right to present a defense.

## Decision

- Reversed the four convictions labeled attempted first-degree “depraved mind” murder because New Mexico does not recognize attempted depraved-mind murder.
- Reversed the two convictions labeled attempted second-degree murder to the extent they rested on an unintentional (reckless/indifferent) theory, because “attempt” requires intent and is incompatible with unintentional homicide theories.
- Reversed the negligent arson conviction because instructing on negligent arson when the information charged willful and malicious arson deprived the defendant of notice and allowed conviction of an uncharged offense.
- Remanded for the trial court to determine whether the evidence warrants a new trial on attempted second-degree murder of the intentional variety as to all victims.

## Legal Principles

- Criminal attempt requires an overt act done with the intent to commit the completed felony; a defendant cannot “attempt” a crime defined by an unintentional mental state.
- “Depraved mind” murder and unintentional second-degree murder are defined by recklessness/indifference and consequences rather than a specific intent to kill; therefore, attempted forms of those theories are not cognizable offenses.
- Conviction of a legally nonexistent crime constitutes fundamental or jurisdictional error and warrants reversal even if not preserved by objection.
- Due process requires notice of the charged offense; a material variance between the charged mental state and the instructed mental state that permits conviction of a different offense requires reversal.
- Attempted second-degree murder premised on an intentional theory is a cognizable offense, and retrial may be permitted if supported by the evidence.

## Conclusion

The court vacated Johnson’s attempted murder convictions because New Mexico law does not recognize attempted depraved-mind murder or attempted unintentional second-degree murder, reversed the arson conviction due to a charging-and-instruction mismatch, and remanded for a determination whether the evidence supports retrying Johnson for attempted intentional second-degree murder as to all victims.


State v. Johnson, 707 P.2d 1174 (N.M. Ct. App. 1985)