Character of the weapon was not an issue because defendant was neither charged nor tried by the State for a crime that specifically included a “deadly weapon” as an element, and it was only after the close of evidence that the district court acted sua sponte to change the charge from assault with the intent to commit murder to aggravated assault with a deadly weapon; thus, defendant was deprived of his right to have the jury determine whether each element had been proved by the State. State v. Radosevich, 2016-NMCA-060, 376 P.3d 871, 2016 N.M. App. LEXIS 22 (N.M. Ct. App. 2016).

Defendant was improperly convicted of aggravated assault with a deadly weapon because it was not a lesser included offense of the originally charged offense of assault with intent to commit murder; defendant was not on notice that he would need to defend against the “deadly weapon” element because neither the assault with the intent to commit murder statute nor the charging document required the use of a deadly weapon, and the charging document did not describe the knife used as a deadly weapon. State v. Radosevich, 2016-NMCA-060, 376 P.3d 871, 2016 N.M. App. LEXIS 22 (N.M. Ct. App. 2016).

Defendant, who pleaded guilty to distribution of cocaine, was properly subjected to an enhanced sentence under U.S.S.G. § 4B1.2 because a prior conviction for aggravated assault with a deadly weapon under New Mexico’s Aggravated Assault statute was a crime of violence and violent felony under the ACCA. United States v. Miera, No. CR 12-3111 JB, 2013 U.S. Dist. LEXIS 173616 (D.N.M. Nov. 22, 2013).

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).

Although 40A-3-2A, 1953 Comp., did not refer to intent, intent was an element of the offense of aggravated assault under former 40A-3-2A, 1953 Comp., because there was no showing that the legislature intended former 40A-3-2A, 1953 Comp. to be a no-intent crime; the intent involved was that of conscious wrongdoing. 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).

Compulsory joinder.

State could not retry defendant on the charge of aggravated assault with a deadly weapon because the charge arose from the same conduct the State unsuccessfully prosecuted during the first trial and was barred under the rule of compulsory joinder; the charged offense failed for insufficient evidence when the district court directed a verdict on assault with the intent to commit murder, and the charging document was not amended to add aggravated assault with a deadly weapon. State v. Radosevich, 2016-NMCA-060, 376 P.3d 871, 2016 N.M. App. LEXIS 22 (N.M. Ct. App. 2016).

Construction with other law.

District court properly held that a defendant’s convictions for burglary under 30-16-3B NMSA 1978 and aggravated assault under Subsection A of this section qualified as violent felonies under the Armed Career Criminal Act (ACCA), 18 USCS § 924(e) because the burglary of the shed the defendant had engaged in fit the generic definition of a structure under the ACCA. Further, apprehension causing aggravated assault under Subsection A created a commensurate threat of physical force such that the crime qualified as a violent felony under the ACCA. United States v. Silva, 608 F.3d 663, 2010 U.S. App. LEXIS 12059 (10th Cir. N.M. 2010), cert. denied, 562 U.S. 1224, 131 S. Ct. 1473, 179 L. Ed. 2d 313, 2011 U.S. LEXIS 1419 (U.S. 2011).

31-18-16A and 30-3-2A NMSA 1978 each contain an element or elements not included in the other, and one is not subsumed by the other because, although aggravated assault is a noncapital felony, none of its elements require a finding that a noncapital felony was committed; in addition, the aggravated assault statute prohibits specific conduct, while the firearm enhancement statute mandates an increase in the basic sentence imposed. State v. Charlton, 1992-NMCA-124, 115 N.M. 35, 846 P.2d 341, 1992 N.M. App. LEXIS 133 (N.M. Ct. App. 1992), cert. denied, 114 N.M. 577, 844 P.2d 827, 1993 N.M. LEXIS 6 (N.M. 1993).

18 U.S.C.S. § 13 in the Assimilative Crimes Act was properly applied in convicting defendant of aggravated assault under 30-3-2 NMSA 1978 as a lesser-included offense of a charge of assault with a dangerous weapon in violation of 18 USCS § 113(a)(3); the act allowed for conviction under the state statute due to the gap in the federal law in the form of the lesser-included offense of simple assault under 18 USCS § 113(a)(5) requiring proof of an intent to commit bodily harm, and 30-3-2 NMSA 1978 does not require that intent. United States v. Johnson, 967 F.2d 1431, 1992 U.S. App. LEXIS 13898 (10th Cir. N.M. 1992), cert. denied, 506 U.S. 1082, 113 S. Ct. 1053, 122 L. Ed. 2d 360, 1993 U.S. LEXIS 938 (U.S. 1993).

Defendant’s throwing of a Molotov cocktail into a home occupied by 12 people violated the arson statute, 30-17-5A NMSA 1978, the dangerous use of explosives statute, 30-7-5 NMSA 1978, and the aggravated assault statute, 30-3-2 NMSA 1978; because the statutes were written with many alternatives, and a jury was instructed in the alternatives, in applying the Blockburger test, it was necessary for a court to look to the legal theory of the case, or to the elements of the crime, for double jeopardy purposes. State v. Rodriguez, 1992-NMCA-035, 113 N.M. 767, 833 P.2d 244, 1992 N.M. App. LEXIS 96 (N.M. Ct. App.), cert. denied, 113 N.M. 636, 830 P.2d 553, 1992 N.M. LEXIS 130 (N.M. 1992).

Convictions of arson under 30-17-5 NMSA 1978 and aggravated assault under 30-3-2 NMSA 1978 did not merge because the conviction of arson required proof of intent to damage property, while conviction of aggravated assault required proof of use of a deadly weapon to assault or strike at another; moreover, the legislature intended separate punishment for unitary conduct violating both statutes. State v. Rodriguez, 1992-NMCA-035, 113 N.M. 767, 833 P.2d 244, 1992 N.M. App. LEXIS 96 (N.M. Ct. App.), cert. denied, 113 N.M. 636, 830 P.2d 553, 1992 N.M. LEXIS 130 (N.M. 1992).

Even though defendant’s basic sentence for aggravated assault, in violation of 30-3-2 NMSA 1978, was enhanced by one year pursuant to 31-18-16A NMSA 1978 because he used a firearm in the commission of the crime, it was proper to enhance the sentence by another year in accordance with the habitual offender statute, 31-18-17B NMSA 1978; the alterations of the basic sentence provided by 31-18-16A, 31-18-17B NMSA 1978, were for different reasons, were mandatory, and there was no indication that the alterations were to be applied only as alternatives and not cumulatively. State v. Reaves, 1982-NMCA-169, 99 N.M. 73, 653 P.2d 904, 1982 N.M. App. LEXIS 945 (N.M. Ct. App. 1982).

Defendant was improperly sentenced to not less than seven years and not more than 15 years and to not less than two years and not more than three years after conviction for assault with intent to kill and assault with a deadly weapon; the indeterminate-sentence law under former 41-17-1, 1953 Comp. required that the trial court, under former 40A-24-3, 1953 Comp. sentence defendant to the minimum and maximum provided by statute for the offense, which was not more than 25 years and not less than one year under former 40-6-6, 1953 Comp. State v. Romero, 1963-NMSC-168, 73 N.M. 109, 385 P.2d 967, 1963 N.M. LEXIS 2041 (N.M. 1963).

Criminal intent.

The rule that when an act is prohibited and made punishable by statute only, the existence of criminal intent is to be regarded as essential, although the terms of the statute do not require it, applies to aggravated assault under former 40A-3-2A, 1953 Comp. (now 30-3-2 NMSA 1978). However, no New Mexico case has ever interpreted former 40A-3-2, 1953 Comp. as requiring proof of specific intent to do bodily harm. United States v. Boone, 347 F. Supp. 1031, 1972 U.S. Dist. LEXIS 12773 (D.N.M. 1972).

Deadly weapon.

Knife at issue did not fall within the per se statutory definition for “deadly weapons” because it was not specifically designated as the type of knife considered to be a deadly weapon, and the small kitchen knife was not contemplated in the catchall phrases referring to inherently dangerous items that either were carried for use or were actually used to inflict injuries on or kill people. State v. Radosevich, 2016-NMCA-060, 376 P.3d 871, 2016 N.M. App. LEXIS 22 (N.M. Ct. App. 2016).

Whether a weapon is deadly is normally a question for the jury, but where an alleged weapon has an ordinary harmless character, a court may determine as a matter of law whether the weapon is deadly. State v. Conwell, 1932-NMSC-042, 36 N.M. 253, 13 P.2d 554, 1932 N.M. LEXIS 46 (N.M. 1932).

Defenses.

Conviction of aggravated assault with a deadly weapon, was reversed, because it was unnecessary for defendant to have presented evidence that he gave notice to the victim of his intent to make a citizen’s arrest in order to raise the defense of a citizen’s arrest, and defendant should have been allowed to establish that he had a good-faith, reasonable belief that a felony was being committed. State v. Johnson, 1996-NMSC-075, 122 N.M. 696, 930 P.2d 1148, 1996 N.M. LEXIS 463 (N.M. 1996).

Discretion.

Defendant’s conviction for aggravated assault, a violation of former 40A-3-2, 1953 Comp. was affirmed because a trial court did not abuse its discretion in refusing to allow defense counsel to cross-examine the complaining witness about his drinking habits. The witness testified on both direct and cross-examination that on the day of the assault he had been drinking wine and beer since shortly after noon, and the assault occurred sometime between 9:00 p.m. and 11:00 p.m. State v. Apodaco, 1970-NMCA-065, 81 N.M. 580, 469 P.2d 729, 1970 N.M. App. LEXIS 599 (N.M. Ct. App. 1970).

Double jeopardy.

Defendant two yelled at the victims and closed the door when they tried to leave, conduct that was independent of defendant one's wielding of the knife; since the conduct underlying the two charges, kidnapping and aggravated assault, was not unitary, there was no double jeopardy violation. State v. Herrera, 2015-NMCA-116, 362 P.3d 167, 2015 N.M. App. LEXIS 99 (N.M. Ct. App.), cert. denied, 369 P.3d 372, 2015 N.M. LEXIS 350 (N.M. 2015), cert. denied, 369 P.3d 372, 2015 N.M. LEXIS 374 (N.M. 2015).

Defendant’s right to be free from double jeopardy was not violated by his convictions for armed robbery and aggravated assault because, under the alternatives presented to the jury, the central element of armed robbery did not subsume the element of aggravated assault — the striking at the victim. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114, 2004 N.M. App. LEXIS 129 (N.M. Ct. App. 2004).

Where a petitioner was jailed, and fined for assault pursuant to a municipal ordinance, he was entitled to an evidentiary hearing on his motion for post-conviction relief, filed pursuant to former 21-1-1(93), 1953 Comp., from his conviction for aggravated assault in violation of former 40A-3-2(A), 1953 Comp. (now 30-3-2 NMSA 1978) on the basis of double jeopardy. Woods v. State, 1972-NMCA-128, 84 N.M. 248, 501 P.2d 692, 1972 N.M. App. LEXIS 849 (N.M. Ct. App. 1972).

Where a petitioner was jailed, and fined for assault pursuant to a municipal ordinance, he was entitled to an evidentiary hearing u on his motion for post-conviction relief from his conviction for aggravated assault, in violation of former 40A-3-2A, 1953 Comp. (now 30-3-2 NMSA 1978), on the basis of double jeopardy because a hearing was necessary to determine whether the municipal violation was a lesser included offense. Woods v. State, 1972-NMCA-128, 84 N.M. 248, 501 P.2d 692, 1972 N.M. App. LEXIS 849 (N.M. Ct. App. 1972).

Draw.

Trial court erred by instructing a jury to find a defendant guilty of violating former 1915 Code, § 1703, which prohibited the drawing of a weapon, if it found that defendant drew or flourished a weapon; the term flourish should not have been used because it had a separate and distinct meaning and could have led the jury to believe that they should convict defendant if the evidence showed he merely flourished or waved the weapon. State v. Boyles, 1918-NMSC-098, 24 N.M. 464, 174 P. 423, 1918 N.M. LEXIS 62 (N.M. 1918).

Elements.

Defendant’s convictions for robbery in violation of 30-16-2 NMSA 1978 and aggravated assault in violation of 30-3-2 NMSA 1978 merged and defendant could only be punished for one crime because the operative elements of the crimes were the same in that robbery required proof of theft by use or threatened use of force and assault required proof of an attempted battery of which the victim was reasonably in fear of receiving. 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).

Proof of intent under the aggravated assault statute, former 40A-3-2A, 1953 Comp. (now 30-3-2 NMSA 1978) is achieved by showing the defendant intended to commit a simple assault and did so with a deadly weapon. Because the simple assault definition does not contain the element of specific intent to do bodily harm, the conclusion follows that such intent is not a necessary element of aggravated assault under New Mexico law. United States v. Boone, 347 F. Supp. 1031, 1972 U.S. Dist. LEXIS 12773 (D.N.M. 1972).

In defendant’s trial, the state adduced evidence that defendant’s gun went off while his estranged wife attempted to prevent him from pointing the gun at the victim’s wife; thus, the trial court correctly instructed the jury that, under the circumstances, the accidental discharge of the gun would in no way reduce the homicide below the grade of first degree murder, former § 41-2404, 1941 Comp., because defendant was in the act of committing a felony at the time of the homicide in violation of former § 41-1703, 1941 Comp. State v. Smith, 1947-NMSC-035, 51 N.M. 184, 181 P.2d 800, 1947 N.M. LEXIS 734 (N.M. 1947).

Indictment charging assault with a deadly weapon in violation of former 1379, 1897 Comp., was not fatally defective because it failed to allege that the gun was loaded because all guns were deadly weapons and there was no requirement that the gun had to be loaded. Territory v. Gonzales, 1907-NMSC-007, 14 N.M. 31, 89 P. 250, 1907 N.M. LEXIS 7 (N.M. 1907).

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).

Sufficient evidence existed to support defendant’s conviction for aggravated assault in violation of 30-3-2 NMSA 1978 where the State established that when defendant grabbed the victim’s purse, the victim struggled and was pushed to the ground by defendant, and that defendant jerked the victim’s purse away and struck her after she was pushed to the ground. 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).

Where defendant pulled a gun, pointed it at a victim while asking for money, and then another person took the gun and shot the victim, the evidence was sufficient to sustain defendant’s conviction for aggravated assault as a principal; it was unnecessary to pass upon the sufficiency of the evidence to sustain a theory that defendant aided and abetted another in the shooting of the victim. State v. Anaya, 1968-NMCA-014, 79 N.M. 43, 439 P.2d 561, 1968 N.M. App. LEXIS 439 (N.M. Ct. App. 1968).

—Admissible.

Trial court did not err in admitting into evidence testimony of a police officer that, in response to a reported shooting, the officer found defendant’s wife lying bleeding on the floor of her home and that the wife told the officer defendant shot her; the wife’s statement was a spontaneous utterance admissible under the res gestae doctrine. State v. Gunthorpe, 1970-NMCA-027, 81 N.M. 515, 469 P.2d 160, 1970 N.M. App. LEXIS 558 (N.M. Ct. App. 1970), cert. denied, 81 N.M. 588, 470 P.2d 309, 1970 N.M. LEXIS 1521 (N.M. 1970), cert. denied, 401 U.S. 941, 91 S. Ct. 943, 28 L. Ed. 2d 221, 1971 U.S. LEXIS 2977 (U.S. 1971).

—Sufficient.

Defendants were yelling back and forth at each other and continued arguing while defendant one held a knife to one victim's throat, while defendant two punched the other victim repeatedly in the face, and thus a reasonable person in either victim's position would have believed that his bodily integrity was threatened, and thus the evidence supported defendants' aggravated assault convictions. State v. Herrera, 2015-NMCA-116, 362 P.3d 167, 2015 N.M. App. LEXIS 99 (N.M. Ct. App.), cert. denied, 369 P.3d 372, 2015 N.M. LEXIS 350 (N.M. 2015), cert. denied, 369 P.3d 372, 2015 N.M. LEXIS 374 (N.M. 2015).

Evidence was sufficient to support defendants' convictions of aggravated assault where one victim testified that one defendant held a knife to the other victim's throat and the other defendant punched the other victim repeatedly in the face. State v. Herrera, No. 33255 & 33078, 2015 N.M. App. LEXIS 88 (N.M. Ct. App. Aug. 13, 2015), op. withdrawn, sub. op., 2015-NMCA-116, 362 P.3d 167, 2015 N.M. App. LEXIS 99 (N.M. Ct. App. 2015).

Substantial evidence supported defendant’s conviction for aggravated burglary, in violation of 30-16-4B NMSA 1978, where the testimony of a single witness could legally suffice as evidence to support a jury’s verdict and where the victim testified that after defendant entered her home, he reached behind his back and threatened to slash her throat if she tried to run, that defendant told her that he wanted weapons and money, that she responded that she had neither, but that defendant began to search the home anyway, that after defendant found a handgun belonging to her boyfriend, he told her to give him all of her money, that defendant reached in her purse and found a twenty dollar bill, which he took, that defendant pointed the gun at her abdomen then moved the gun quickly to one side and fired, narrowly missing her but putting a hole in the couch, and that before leaving, defendant threatened to return. State v. Hamilton, 2000-NMCA-063, 2000-NMCA-063, 129 N.M. 321, 6 P.3d 1043, 2000 N.M. App. LEXIS 49 (N.M. Ct. App.), cert. denied, 129 N.M. 249, 4 P.3d 1240, 2000 N.M. LEXIS 257 (N.M. 2000).

Defendant’s use of force by pointing a gun to retain money taken from the victim who was lured to the motel where he had sex with a prostitute could have constituted aggravated assault under 30-3-2A NMSA 1978. State v. Lewis, 1993-NMCA-165, 116 N.M. 849, 867 P.2d 1231, 1993 N.M. App. LEXIS 153 (N.M. Ct. App. 1993).

Evidence was sufficient to support aggravated assault conviction where the victim testified that while he was at defendant’s gas station, defendant took a gun out of his back pocket, pointed it at the victim’s head, and threatened to kill him. State v. Charlton, 1992-NMCA-124, 115 N.M. 35, 846 P.2d 341, 1992 N.M. App. LEXIS 133 (N.M. Ct. App. 1992), cert. denied, 114 N.M. 577, 844 P.2d 827, 1993 N.M. LEXIS 6 (N.M. 1993).

Even though defendant’s acts of threatening victims with a deadly weapon constituted the means by which his victims were restrained or confined against their will so as to cause assault to merge into the crime of false imprisonment, the trial court did not err in refusing to merge defendant’s convictions of aggravated assault under 30-3-2 NMSA 1978 into the offenses of false imprisonment under 30-4-3 NMSA 1978, because there was evidence of multiple acts of aggravated assault committed against each victim. State v. Bachicha, 1991-NMCA-014, 111 N.M. 601, 808 P.2d 51, 1991 N.M. App. LEXIS 122 (N.M. Ct. App. 1991).

Defendant’s acts of specifically pointing a rifle at several victims on two or more separate instances, accompanied by verbal threats, constituted evidence from which the jury could properly determine that defendant committed the separate offenses of aggravated assault under 30-3-2 NMSA 1978 and false imprisonment against each victim under 30-4-3 NMSA 1978. Moreover, the jury could find that defendant falsely imprisoned his victims at the beginning of the episode and thereafter committed additional independent aggravated assaults for which he could be separately punished. State v. Bachicha, 1991-NMCA-014, 111 N.M. 601, 808 P.2d 51, 1991 N.M. App. LEXIS 122 (N.M. Ct. App. 1991).

Provision of 30-3-2 NMSA 1978 that an aggravated assault included threatening or menacing another while wearing a mask upon the face supported defendant’s conviction for aggravated assault where there was no valid reason for him to possess a ski mask and gloves during warm weather. State v. Durante, 1986-NMCA-024, 104 N.M. 639, 725 P.2d 839, 1986 N.M. App. LEXIS 647 (N.M. Ct. App. 1986).

Evidence held sufficient for conviction of violating this section, with a firearms enhancement. State v. Peterson, 1985-NMCA-109, 103 N.M. 638, 711 P.2d 915, 1985 N.M. App. LEXIS 621 (N.M. Ct. App. 1985), cert. denied, 475 U.S. 1052, 106 S. Ct. 1279, 89 L. Ed. 2d 586, 1986 U.S. LEXIS 670 (U.S. 1986).

Defendant’s conviction for rape, a violation of former 40A-9-2, 1953 Comp. and aggravated assault, a violation of former 40A-3-2, 1953 Comp. were affirmed because a victim’s identification of defendant from defendant’s driver’s license photograph was not unnecessarily suggestive and conducive to irreparable mistaken identification. The victim had been with the rapist more than an hour and a half, she had seen the rapist by the available light throughout this period of time, she took a good look at the driver’s license photograph before making the identification, and the victim displayed no doubt as to her identification of defendant. State v. Baldonado, 1971-NMCA-068, 82 N.M. 581, 484 P.2d 1291, 1971 N.M. App. LEXIS 800 (N.M. Ct. App. 1971).

Where defendant pulled a loaded gun on a victim and threatened him after the victim told him to stop fondling his girlfriend, substantial evidence of an attempt to apply force in an angry manner existed to support an aggravated assault conviction under former 40A-3-2, 1953 Comp. (now 30-3-2 NMSA 1978). 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).

Evidence was sufficient to support a conviction for aggravated assault in violation of former 40A-3-2AA NMSA 1953 (now 30-3-2 NMSA 1978), where defendant pulled a loaded gun from his pocket and threatened to kill the prosecuting witness after the witness told defendant to cease fondling the witness’s girlfriend, and the trial court instructed the jury that an assault consisted of an attempt to commit a battery upon the person of another; defendant’s conduct was an attempt to apply force in an angry or insolent manner within the definition of battery contained in former 40-A-3-4 NMSA 1953 (now 30-3-4 NMSA 1978). 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).

Where defendant pulled a gun, pointed it at a victim while asking for money, and then another person took the gun and shot the victim, the evidence was sufficient to sustain defendant’s conviction for aggravated assault as a principal, pursuant to former 40A-3-2 1953 Comp.; it was unnecessary to pass upon the sufficiency of the evidence to sustain a theory that defendant aided and abetted another in the shooting of the victim. State v. Anaya, 1968-NMCA-014, 79 N.M. 43, 439 P.2d 561, 1968 N.M. App. LEXIS 439 (N.M. Ct. App. 1968).

—Insufficient.

Evidence was insufficient to support conviction for aggravated assault in violation of former 40A-3-2 NMSA (now 30-3-2 NMSA 1978) because it did not show that the victim reasonably believed that he was in danger of receiving an immediate battery. State v. Mata, 1974-NMCA-067, 86 N.M. 548, 525 P.2d 908, 1974 N.M. App. LEXIS 690 (N.M. Ct. App.), cert. denied, 86 N.M. 528, 525 P.2d 888, 1974 N.M. LEXIS 1438 (N.M. 1974).

Findings.

—Sufficient.

Defendant was properly found to have fired the sawed-off shotgun in connection with another felony offense when he purposefully fired the shotgun in the direction of the fleeing victim, which constituted unlawfully assaulting or striking at another with a deadly weapon, in violation of 30-3-2 NMSA 1978. United States v. Cowan, No. 96-2055, 1996 U.S. App. LEXIS 27840 (10th Cir. N.M. Oct. 28, 1996).

Under 30-2-3A NMSA 1978, a telephone conversation was not sufficiently provocative to justify a conviction for voluntary manslaughter because the defendant was calm when he purchased the murder weapon, he had time to cool off before committing the crime, and words alone did not furnish adequate provocation. State v. Castro, 1979-NMCA-023, 92 N.M. 585, 592 P.2d 185, 1979 N.M. App. LEXIS 802 (N.M. Ct. App.), cert. denied, 92 N.M. 621, 593 P.2d 62, 1979 N.M. LEXIS 1356 (N.M. 1979).

Harmless error.

Admission, under the res gestae doctrine, of the testimony of a friend of the wife that the wife ended their telephone conversation saying that she had to hang up because her husband was home, was harmless error because there was substantial evidence that defendant was guilty of the attempted murder of his wife in violation of former 40A-28-1, 1953 Comp. (now 30-28-1 NMSA 1978) and aggravated assault in violation of former 40A-3-2A, 1953 Comp. (now 30-3-2A NMSA 1978). State v. Gunthorpe, 1970-NMCA-027, 81 N.M. 515, 469 P.2d 160, 1970 N.M. App. LEXIS 558 (N.M. Ct. App. 1970), cert. denied, 81 N.M. 588, 470 P.2d 309, 1970 N.M. LEXIS 1521 (N.M. 1970), cert. denied, 401 U.S. 941, 91 S. Ct. 943, 28 L. Ed. 2d 221, 1971 U.S. LEXIS 2977 (U.S. 1971).

Included offenses.

Defendant’s conviction for assault with a dangerous weapon with specific intent to do bodily harm in violation of 18 USCS § 113(a)(3) is improper where defendant demonstrated his entitlement to an instruction on the lesser included state offense of aggravated assault under 30-3-2A NMSA 1978; section 30-3-2A is a lesser included offense of 18 USCS § 113(a)(3) because its elements constitute a subset of the elements of § 113(c). United States v. Abeyta, 27 F.3d 470, 1994 U.S. App. LEXIS 13663 (10th Cir. N.M. 1994).

In a prosecution for assault with intent to kill under former 40A-3-3, 1953 Comp. (now 30-3-3 NMSA 1978), defendant’s conviction for aggravated assault with a deadly weapon under former 40A-3-2A, 1953 Comp. (now 30-3-2 NMSA 1978) was reversed because it was not a lesser-included offense. State v. Patterson, 1977-NMCA-084, 90 N.M. 735, 568 P.2d 261, 1977 N.M. App. LEXIS 646 (N.M. Ct. App. 1977).

Assault with a deadly weapon is not necessarily included within the offense of assault with intent to murder. State v. Taylor, 1927-NMSC-081, 33 N.M. 35, 261 P. 808, 1927 N.M. LEXIS 73 (N.M. 1927).

Former 1915 Code, § 1476 had no application to defendant’s case because defendant was charged with the offense of assault with intent to murder under former N.M. Code § 1481. State v. Martin, 1926-NMSC-048, 32 N.M. 48, 250 P. 842, 1926 N.M. LEXIS 58 (N.M. 1926).

Indictment.

State was properly permitted to amend indictment under Rule 5-204(C) NMRA from assault with intent to commit robbery in violation of 30-3-3 NMSA 1978, to assault with intent to commit larceny in violation of 30-3-2C NMSA 1978. State v. Gallegos, 1989-NMCA-066, 109 N.M. 55, 781 P.2d 783, 1989 N.M. App. LEXIS 64 (N.M. Ct. App.), cert. denied, 108 N.M. 771, 779 P.2d 549, 1989 N.M. LEXIS 265 (N.M. 1989).

Trial court properly denied defendant’s motion in arrest of judgment, where defendant had been convicted of assault with a deadly weapon, and the indictment under which defendant was tried alleged that he unlawfully and feloniously assaulted the victim with “a certain deadly weapon, to wit, a gun”; the indictment’s allegations were sufficient to apprise defendant of the offense for which he was being tried because all guns are deadly weapons. Territory v. Gonzales, 1907-NMSC-007, 14 N.M. 31, 89 P. 250, 1907 N.M. LEXIS 7 (N.M. 1907).

Instructions.

Failure to properly instruct the jury on aggravated assault with a deadly weapon amounted to fundamental error because there was no evidence about a kitchen knife that could suggest it was inherently threatening or deadly or about defendant's skill with knives or his behavior that made his possession of it inherently dangerous or deadly; the instructions gave no suggestion that the jury was required to consider whether any deadly weapon was used or whether the knife was used as a deadly weapon. State v. Radosevich, 2016-NMCA-060, 376 P.3d 871, 2016 N.M. App. LEXIS 22 (N.M. Ct. App. 2016).

In regards to defendants' kidnapping convictions, the prolonged period of restraint in this case was not incidental to or inherent in aggravated assault under any of the tests described in case law; the victims were told they could not leave until cocaine was found and they were prevented from leaving the apartment for between one and a half and two hours, and the facts did not present a more complicated factual scenario that had to be submitted to the jury as defendants claimed. State v. Herrera, 2015-NMCA-116, 362 P.3d 167, 2015 N.M. App. LEXIS 99 (N.M. Ct. App.), cert. denied, 369 P.3d 372, 2015 N.M. LEXIS 350 (N.M. 2015), cert. denied, 369 P.3d 372, 2015 N.M. LEXIS 374 (N.M. 2015).

Either of defendant’s statements, “I have a gat” or “get the gat,” indicated his intent to intimidate his victim, which constituted an aggravated assault in violation of 30-3-2A NMSA 1978, and negated any suggestion that defendant only negligently participated in a killing and was entitled to an instruction on involuntary manslaughter in violation of 30-2-3B NMSA 1978. State v. Gaitan, 2002-NMSC-007, 131 N.M. 758, 42 P.3d 1207, 2002 N.M. LEXIS 89 (N.M. 2002).

Trial court properly refused a requested instruction on involuntary manslaughter in violation of 30-2-3B NMSA 1978, because defendant’s testimony indicated that he believed his victim feared defendant was going to run him over with his vehicle, which would have been an aggravated assault under 30-3-2A NMSA 1978, not an unintentional killing. State v. Gaitan, 2002-NMSC-007, 131 N.M. 758, 42 P.3d 1207, 2002 N.M. LEXIS 89 (N.M. 2002).

Due to trial court’s error in failing to instruct the jury on the elements of felony aggravated battery, the court reversed defendant’s conviction for aggravated assault under 30-3-2C NMSA 1978, and remanded the matter for a retrial on said charge. State v. Armijo, 1999-NMCA-087, 127 N.M. 594, 985 P.2d 764, 1999 N.M. App. LEXIS 56 (N.M. Ct. App. 1999).

Failure of a trial court to instruct a jury that an officer must have been in the performance of his duties when assaulted omitted an essential element to the charge against defendant of aggravated assault on a police officer, in violation of 30-22-22A(1) NMSA 1978; an aggravated assault in violation of 30-3-2A NMSA 1978 is a fourth degree felony; the same aggravated assault, where the victim is a peace officer, in violation of 30-22-22A(1) NMSA 1978, is a third degree felony. The difference between the two offenses, which justifies the different felony degrees, is that the peace officer must have been in the lawful discharge of his duties. State v. Rhea, 1979-NMCA-121, 93 N.M. 478, 601 P.2d 448, 1979 N.M. App. LEXIS 730 (N.M. Ct. App. 1979).

Intent within the meaning of the aggravated assault statute, former 40A-3-2, 1953 Comp. (now 30-3-2 NMSA 1978), is that of conscious wrongdoing, which is also the standard for former 40A-22-21A(1), 1953 Comp. (now 30-22-22A(1)), but defendant could not be convicted of the latter where the jury instruction failed to inform the jury that conscious wrongdoing was a required element. State v. Cutnose, 1974-NMCA-130, 87 N.M. 307, 532 P.2d 896, 1974 N.M. App. LEXIS 770 (N.M. Ct. App.), cert. denied, 87 N.M. 299, 532 P.2d 888, 1974 N.M. LEXIS 1499 (N.M. 1974), cert. denied, 87 N.M. 299, 532 P.2d 888, 1974 N.M. LEXIS 1500 (N.M. 1974).

Conscious wrongdoing is an element of the crime of aggravated assault under former 40A-3-2A, 1953 Comp. (now 30-3-2A NMSA 1978); an instruction that a defendant’s conduct must have been “unlawful” does not inform a jury of that element because “unlawful” may mean nothing more than “not authorized by law.” 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).

A jury instruction that aggravated assault, in violation of 40A-3-2 NMSA 1953 (now 30-3-2 NMSA 1978), could be committed by an act done without evil purpose, for fun, or as a practical joke was improper, because aggravated assault required a mental state of conscious wrongdoing. State v. Cruz, 1974-NMCA-077, 86 N.M. 455, 525 P.2d 382, 1974 N.M. App. LEXIS 675 (N.M. Ct. App. 1974).

Intent.

Indictment charging defendant with assault with intent to murder under former 1915 Code, § 1481 did not need to describe the particular kind of assault as mentioned in former 1915 Code, § 1476, because if the intent was to murder, the manner of consummating the intent was not important, provided it was of a character which might result in murder, and the resulting battery was not a necessary constituent element of the offense of assault with intent to murder. State v. Martin, 1926-NMSC-048, 32 N.M. 48, 250 P. 842, 1926 N.M. LEXIS 58 (N.M. 1926).

—Knowledge.

Intent to do physical harm or bodily injury is not an element of aggravated assault under former 40A-3-2A, 1953 Comp. (now 30-3-2 NMSA 1978); it is the use of a deadly weapon that raises an assault to an aggravated assault, not an intent to injury. State v. Cruz, 1974-NMCA-077, 86 N.M. 455, 525 P.2d 382, 1974 N.M. App. LEXIS 675 (N.M. Ct. App. 1974).

General criminal intent is a necessary element of the crime of aggravated assault although the terms of former 42A-3-2A, 1953 Comp. (now 30-3-2A NMSA 1978) do not require it; general criminal intent is a mental state of conscious wrongdoing, and an act done not with an evil purpose, but for fun, or as a practical joke is not done with the requisite criminal intent to constitute the crime of aggravated battery. State v. Cruz, 1974-NMCA-077, 86 N.M. 455, 525 P.2d 382, 1974 N.M. App. LEXIS 675 (N.M. Ct. App. 1974).

Defendant’s conviction for aggravated assault was upheld where the circumstances of the victim’s shooting provided substantial evidence that defendant intended to shoot the victim; the prosecution was not required to prove motive. State v. Brito, 1969-NMCA-027, 80 N.M. 166, 452 P.2d 694, 1969 N.M. App. LEXIS 555 (N.M. Ct. App. 1969).

Jurisdiction.

Evidence that defendant, who lived on an Indian reservation, wielded a loaded rifle when police officers arrived to investigate a domestic disturbance between defendant and his wife, was sufficient to find him guilty of two counts of aggravated assault, in violation of 30-3-2 NMSA 1978, and made him subject to federal prosecution by the Assimilative Crimes Act, 18 U.S.C.S. § 13(a). United States v. Waupekenay, No. 93-2135, 1994 U.S. App. LEXIS 2457 (10th Cir. N.M. Feb. 7, 1994).

Action charging a juvenile with assault upon a peace officer, a violation of 30-22-22A(1) NMSA 1978, and aggravated assault, a violation of 30-3-2C NMSA 1978, was found to have been properly transferred to a district court pursuant to 32-1-29 NMSA 1978 because doctors who evaluated the juvenile determined that no available facility could adequately treat the juvenile and because the juvenile was not committable to an institution for the mentally disordered or mentally disabled under 43-1-16.1G NMSA 1978 (repealed). State v. Doe, 1982-NMCA-128, 98 N.M. 567, 650 P.2d 851, 1982 N.M. App. LEXIS 917 (N.M. Ct. App.), cert. denied, 98 N.M. 590, 651 P.2d 636, 1982 N.M. LEXIS 3018 (N.M. 1982).

Legislative intent.

Indictment charging aggravated assault and battery that omitted the word “unlawfully” was fatally defective, because in using the word “unlawfully” in N.M Rev. Stat. ch. 55, § 11, the legislature intended to distinguish between lawful and unlawful strikings. Territory v. Miera, 1866-NMSC-004, 1 N.M. 387, 1866 N.M. LEXIS 4 (N.M. 1866).

Question of fact.

Defendant who used a knife in an assault was entitled to a jury instruction on simple assault at his trial for assault with a deadly weapon because it was a question for the jury to determine whether the knife was a deadly weapon. State v. Mitchell, 1939-NMSC-007, 43 N.M. 138, 87 P.2d 432, 1939 N.M. LEXIS 4 (N.M. 1939).

Self-defense.

Where defendant pled no contest to aggravated assault with a deadly weapon for chasing down and confronting a pair of repo men at gunpoint who had repossessed defendant’s truck, his proffered self-defense, defense of property, and citizen’s arrest instructions were properly denied because (1) there was no appearance of immediate danger or death before defendant drew the gun, (2) the action was not taken to prevent the theft, and (3) defendant acted unreasonably. State v. Emmons, 2007-NMCA-082, 141 N.M. 875, 161 P.3d 920, 2007 N.M. App. LEXIS 56 (N.M. Ct. App. 2007).

Notes to Unpublished Decisions

Construction with other law.

Unpublished decision: Defendant, who was convicted of being an alien in possession of a firearm in violation of 18 U.S.C.S. §§ 922(g)(5) and 924(a)(2), failed to show that the district court committed reversible error by applying a four-level sentencing enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) for possession of the firearm in connection with aggravated assault under this section, even though the district court erred by not engaging in fact finding under Fed. R. Crim. P. 32(i)(3) before imposing the § 2K2.1(b)(6) enhancement, because defendant did not show that the error affected defendant’s substantial rights as required under plain error review; defendant failed to show a reasonable probability that the enhancement would not be imposed on remand. United States v. Hernandez-Valdez, 441 Fed. Appx. 592, 2011 U.S. App. LEXIS 23233 (10th Cir. N.M. 2011).

Research References and Practice Aids

Cross references.

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

Definitions, 31-26-3 NMSA 1978.

Eligibility for earned meritorious deductions, 33-2-34 NMSA 1978.

30-3-2. Aggravated assault.

Text

History

Annotations