Cunningham, 2000–NMSC–009, ¶ 13, 128 N.M. 711, 998 P.2d 176 (quoting State v. Garcia, 1942–NMSC–030, ¶ 25, 46 N.M. 302, 128 P.2d 459). “We will not ‘uphold a conviction if an error implicated a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.’ ” State v. Rodarte, 2011–NMCA–067, ¶ 10, 149 N.M. 819, 255 P.3d 397 (quoting State v. Barber, 2004–NMSC–019, ¶ 18, 135 N.M. 621, 92 P.3d 633). {9} When reviewing jury instruction issues for fundamental error, we first apply the standard for reversible error by determining if a reasonable juror would have been “confused or misdirected” by the jury instructions that were given.

{7} We review for fundamental error because Defendant did not preserve his argument by objecting to the jury instruction at trial. State v. Barber , 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. Our review involves two basic steps.

We agree for the reasons that follow. {9} Fundamental error exists if it would "shock the [court's] conscience" to affirm the conviction, State v. Barber , 2004-NMSC-019, ¶ 14, 135 N.M. 621, 92 P.3d 633, either because of "the obvious innocence of the defendant," id. ¶ 16, or because "a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused." Id. ¶ 17. As our Supreme Court recognized over a century ago, the fundamental error doctrine requires an appellate court to perform a difficult and often high-stakes inquiry.

{27} "The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice." State v. Barber , 2004–NMSC–019, ¶ 8, 135 N.M. 621, 92 P.3d 633 (quoting State v. Jett , 1991–NMSC–011, 111 N.M. 309, ¶ 19, 805 P.2d 78 ). With regard to jury instructions, "[t]he general rule is that fundamental error occurs when the trial court fails to instruct the jury on an essential element."

{23} Whether this improper questioning rises to the level of fundamental error is the controlling inquiry. Although many of our cases regarding fundamental error "turn on the obvious innocence of the defendant," State v. Barber, 2004-NMSC-019, ¶ 16, 135 N.M. 621, 92 P.3d 633, "we also recognize that another strand runs through the fundamental error doctrine that focuses less on guilt and innocence and more on process and the underlying integrity of our judicial system." Id. at ¶ 17.

UJI 14-2227 use note 2; Assault , Merriam-Webster Dictionary , http://www.merriam-webster.com/dictionary/assault (last visited Feb. 19, 2021); see also State v. Barber , 2004-NMSC-019, ¶ 10 n.1, 135 N.M. 621, 92 P.3d 633 (stating that use notes promulgated by the New Mexico Supreme Court are binding authority). Applying this evaluative threshold, we conclude that a person of ordinary intelligence using common sense would understand that Section 30-22-19 prohibits a violent attack on a jail's facilities or operations, regardless of whether the attack originates inside or outside of the jail.

The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice." State v. Barber , 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. "An error is fundamental when it goes to the foundation or basis of a defendant's rights.

We therefore review for fundamental error only. See State v. Barber , 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633 (holding that appellate courts review unpreserved questions for fundamental error); see also Cunningham , 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176(describing the burden placed on parties alleging fundamental error). {36} The use of a shotgun jury instruction is prohibited due to the "potentially coercive effect it has on holdout jurors to abandon their convictions to arrive at a verdict with the majority."

{58} We begin our review by noting that in State v. Barber , our Supreme Court held that it was not fundamental error to fail to give any part of the definitional instruction for possession. 2004-NMSC-019, ¶ 1, 135 N.M. 621, 92 P.3d 633. In Barber , like in this case, the defendant's trial counsel failed to request a jury instruction defining possession.

“The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice.” State v. Barber, 2004–NMSC–019, ¶ 8, 135 N.M. 621, 92 P.3d 633. Fundamental error review serves to safeguard a defendant's substantive rights under two circumstances: (1) “where a defendant has been convicted of a crime despite undisputable innocence” and (2) “when a mistake in process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused.”