Notes to Decisions

Assault.

Definition of assault found in former 40A-3-1, 1953 Comp. (now 30-3-1 NMSA 1978) contains essential elements of the crime of assault with intent to commit a violent felony, to wit: rape, contrary to former 40A-3-3, 1953 Comp. (now 30-3-3 NMSA 1978). State v. Jones, 1973-NMCA-107, 85 N.M. 426, 512 P.2d 1262, 1973 N.M. App. LEXIS 761 (N.M. Ct. App. 1973).

Damages.

There was no evidence that a plaintiff who sought damages for an alleged assault felt scared before an alleged touching by the defendant took place and there was no genuine issue of material fact as to whether an assault actually occurred; for there to be an assault, there must have been an act, threat, or menacing conduct that caused a person to reasonably believe that he was in danger of receiving an immediate battery 30-3-1 NMSA 1978. Baca v. Velez, 1992-NMCA-053, 114 N.M. 13, 833 P.2d 1194, 1992 N.M. App. LEXIS 43 (N.M. Ct. App.), cert. denied, 114 N.M. 82, 835 P.2d 80, 1992 N.M. LEXIS 189 (N.M. 1992).

Double jeopardy.

Defendant's aggravated assault and aggravated battery convictions did not offend double jeopardy because (1) one crime was not subsumed within the other, and (2) the convictions involved distinct social harms to multiple victims. State v. Branch, 2016-NMCA-071, 2016 N.M. App. LEXIS 36 (N.M. Ct. App. 2016).

Firearm enhancements of defendant's sentences for aggravated assault and aggravated battery violated double jeopardy because the State was not required to prove any additional facts. State v. Branch, 2016-NMCA-071, 2016 N.M. App. LEXIS 36 (N.M. Ct. App. 2016).

Elements.

Defendant was properly convicted of both assault with intent to commit a violent felony and aggravated battery because each crime contained an element that the other did not, thus the legislature intended to punish the offenses separately. State v. Cowden, 1996-NMCA-051, 121 N.M. 703, 917 P.2d 972, 1996 N.M. App. LEXIS 28 (N.M. Ct. App. 1996).

Evidence.

Where a rancher exited a jeep with a rifle in his hand, while telling hunters that they were trespassing and that he was making a citizens arrest, probable cause existed for the rancher’s arrest under 30-3-1, 2 NMSA 1978; the fact that the rancher did not point the gun did not negate the existence of probable cause because aggravated assault required only the use of a deadly weapon to instill in a victim a reasonable belief that he or she was in danger of receiving an immediate battery. Jennings v. Hinkle, 1993-NMCA-044, 115 N.M. 387, 851 P.2d 509, 1993 N.M. App. LEXIS 33 (N.M. Ct. App. 1993).

—Admissible.

Defendant’s convictions for sodomy and aggravated assault were proper because the elapsed time from defendant’s arrest to giving his statement three and one-half hours later and the absence of counsel during that time did not compel a conclusion that defendant’s statement was involuntary; the uncontradicted record was that defendant was advised of his right to have an attorney present and that if he didn’t have the money to pay for an attorney one would be furnished him free of charge, and testimony showed defendant indicated he understood the advice given to him. State v. Rael, 1970-NMCA-101, 81 N.M. 791, 474 P.2d 83, 1970 N.M. App. LEXIS 634 (N.M. Ct. App. 1970).

—Sufficient.

Where supervisors and police officers staged an arrest of an employee, the officers were not entitled to summary judgment as to the employee’s assault and battery claim, because the officers allegedly intended to cause an offensive contact with the employee’s person and did cause an offensive contact. Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 2006 U.S. App. LEXIS 5108 (10th Cir. N.M. 2006).

Sufficient evidence existed to support a jury’s separate findings of assault and battery, and not a double recovery, in a former employee’s discrimination and hostile work environment claim where a supervisor pulled open the employee’s pants so that the jury could have concluded that it was an unlawful touching of something intimately connected to the employee, in violation of 30-3-4 NMSA 1978. Further, when the supervisor stated that the employee’s bra was probably prettier than hers before reaching over and opening the employee’s shirt, a jury could have inferred that the supervisor’s comments caused the employee to fear an imminent battery, constituting a separate assault in violation of 30-3-1 NMSA 1978. Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 2005 U.S. App. LEXIS 1167 (10th Cir. N.M. 2005), overruled in part as stated in Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 2006 U.S. App. LEXIS 24268 (10th Cir. Kan. 2006).

Evidence that defendant ran the prosecuting witness down a stairway and tried to kick him was sufficient to support defendant’s conviction for assault under former 40A-3-1, 1953 Comp. (now 30-3-1 NMSA 1978). State v. Mottola, 1972-NMCA-161, 84 N.M. 414, 504 P.2d 22, 1972 N.M. App. LEXIS 881 (N.M. Ct. App. 1972).

Governmental powers.

Action against a city under § 14-1611, 1941 Comp. (now 30-3-1 NMSA 1978) for unlawful assault by a police officer was properly dismissed because the fact that the assault occurred in the presence and with the approval of one member of the city council did not mean it was authorized by the city, where the city acted by authority of its governing board, not through any one member, and there was nothing to show that in this case the council was itself acting or authorizing any such act. Taylor v. Roswell, 1944-NMSC-028, 48 N.M. 209, 147 P.2d 814, 1944 N.M. LEXIS 42 (N.M. 1944).

Harmless error.

Where defendant was not prejudiced by the admittance of collateral offenses because he specifically opened up the trial court’s inquiry into the outcome of his former wife’s previous complaints against him, his assault conviction under 30-3-1C NMSA 1978 was properly upheld. State v. Parrillo, 1979-NMCA-135, 94 N.M. 98, 607 P.2d 636, 1979 N.M. App. LEXIS 741 (N.M. Ct. App.), cert. denied, 94 N.M. 629, 614 P.2d 546, 1979 N.M. LEXIS 1317 (N.M. 1979).

Indictment.

Where defendant was indicted and tried for a felonious assault with a loaded pistol and was convicted of a simple assault and battery, an indictment that included the elements of common law assault and battery, but not the statutory elements, was sufficient. The prosecutor’s zealous arguments did not overstep the bounds of proper comment on the evidence. Chacon v. Territory, 1893-NMSC-024, 7 N.M. 241, 34 P. 448, 1893 N.M. LEXIS 25 (N.M. 1893).

Instructions.

Defendant’s conviction for assault with intent to commit a violent felony (rape), was reversed and remanded for a new trial because the trial court failed to define the word “assault” in the jury instructions which was regarded as jurisdictional error. State v. Jones, 1973-NMCA-107, 85 N.M. 426, 512 P.2d 1262, 1973 N.M. App. LEXIS 761 (N.M. Ct. App. 1973).

Following the trial court’s jury instruction on assault as defined under former 40A-3-1, 1953 Comp. (now 30-3-1 NMSA 1978), the jury properly convicted defendant of aggravated assault because he pulled a loaded gun on a victim and threatened him after the victim told defendant to stop fondling his girlfriend, and substantial evidence of an attempt to apply force in an angry manner existed to support his conviction. State v. Woods, 1971-NMCA-026, 82 N.M. 449, 483 P.2d 504, 1971 N.M. App. LEXIS 674 (N.M. Ct. App. 1971).

Jury instructions.

In a prosecution for aggravated assault, a trial court’s instruction in the language of the applicable statutes, 40A-3-2A, 40A-3-1, 40A-3-4, 1953, Comp., which informed the jury that defendant’s conduct must have been unlawful did not inform the jury that conscious wrongdoing was an element of the crime of aggravated assault under 40A-3-2A, 1953 Comp.; the failure to instruct on criminal intent required reversal of defendant’s conviction. State v. Mascarenas, 1974-NMCA-100, 86 N.M. 692, 526 P.2d 1285, 1974 N.M. App. LEXIS 717 (N.M. Ct. App. 1974).

Jury selection.

With respect to a defendant’s conviction for assault in alleged violation of 40A-3-1, 1953 Comp. (now 30-3-1 NMSA 1978), the trial court did not abuse its discretion when it dismissed a prospective juror who indicated that he would be prejudiced in the defendant’s favor by the fact that the defendant was a member of the American Indian Movement. State v. Cutnose, 1975-NMCA-021, 87 N.M. 300, 532 P.2d 889, 1975 N.M. App. LEXIS 626 (N.M. Ct. App. 1975), overruled, State v. McCormack, 1984-NMSC-006, 100 N.M. 657, 674 P.2d 1117, 1984 N.M. LEXIS 1605 (N.M. 1984), disapproved as stated in TBCH, Inc. v. City of Albuquerque, 1994-NMCA-048, 117 N.M. 569, 874 P.2d 30, 1994 N.M. App. LEXIS 42 (N.M. Ct. App. 1994).

Probable cause.

In a case in which plaintiff alleged violations of both the United States and New Mexico Constitutions as well as common law tort claims, an assault charge against plaintiff was not supported by probable cause, and the district court erred in granting summary judgment for defendants on this issue. Benavidez v. Shutiva, 2015-NMCA-065, 350 P.3d 1234, 2015 N.M. App. LEXIS 40 (N.M. Ct. App. 2015).

That a rancher exited a jeep with a rifle in hand and confronted hunters, telling them that they were trespassing and that he was making a citizen’s arrest, sufficed to establish probable cause for an arrest warrant for aggravated assault; police officer was not required to include in the affidavit a hunter’s statement that the rancher did not point the gun because that fact did not negate the existence of probable cause. Jennings v. Hinkle, 1993-NMCA-044, 115 N.M. 387, 851 P.2d 509, 1993 N.M. App. LEXIS 33 (N.M. Ct. App. 1993).

Question of law or fact.

Fear of arrest is not the same as fear of an imminent battery, so officer did not commit assault, as a matter of law. Romero v. Sanchez, 1995-NMSC-028, 119 N.M. 690, 895 P.2d 212, 1995 N.M. LEXIS 176 (N.M. 1995).

Sentence.

Trial court's findings that defendant's aggravated assault conviction was for a serious violent offense, for purposes of good time credit, were insufficient because the court merely recited boilerplate language without explaining the findings. State v. Branch, 2016-NMCA-071, 2016 N.M. App. LEXIS 36 (N.M. Ct. App. 2016).

Upon defendant’s plea of guilty to petty misdemeanor assault, he was placed on supervised probation for six months; he was prohibited from possessing unlawful drugs and firearms, and he was subject to warrantless searches. These conditions were deemed valid, because they were reasonably related to defendant’s rehabilitation in connection with his misdemeanor assault offense. State v. Baca, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509, 2004 N.M. App. LEXIS 23 (N.M. Ct. App. 2004).

—Generally.

An individual convicted of both robbery and aggravated assault with intent to commit robbery was only permitted to be punished for one crime because the crimes merged. State v. Maes, 1983-NMCA-073, 100 N.M. 78, 665 P.2d 1169, 1983 N.M. App. LEXIS 732 (N.M. Ct. App. 1983).

Words.

Defendant in a civil assault and battery case was not entitled to a jury instruction based on former § 41-613, 1941 Comp., a criminal statute covering assault with words, because he offered no rationale for why the instruction was required and, to the extent that it related to another instruction he submitted on self-defense, it was not justified because the evidence failed to support any self-defense theory. Faubion v. Tucker, 1954-NMSC-047, 58 N.M. 303, 270 P.2d 713, 1954 N.M. LEXIS 1125 (N.M. 1954).

—Sufficient.

Sufficient evidence supported defendant's aggravated assault conviction because (1) the State was only required to show general intent and made such a showing, and (2) the State proved defendant's threatening conduct which allowed a jury to find defendant's unlawful act caused a victim to reasonably fear the victim would be shot. State v. Branch, 2016-NMCA-071, 2016 N.M. App. LEXIS 36 (N.M. Ct. App. 2016).

Research References and Practice Aids

Cross references.

Aggravated indecent exposure, 30-9-14.3 NMSA 1978.

30-3-1. Assault.

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History

Annotations