Notes to Decisions

Assault with a deadly weapon.

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).

Generally.

Former § 41-607, 1941 Comp. (now 30-3-3 NMSA 1978) does not purport to repeal any other laws of the state. State v. Melendrez, 1945-NMSC-020, 49 N.M. 181, 159 P.2d 768, 1945 N.M. LEXIS 410 (N.M. 1945).

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).

Where defendant’s trial on a charge of rape ended in a hung jury, it was not a violation of double jeopardy to try defendant on a charge 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), involving a companion of the alleged rape victim and stemming from the same incident because a mistrial caused by a hung jury could not form the basis for a plea of former jeopardy absent a gross abuse of discretion in discharging the jurors; where the two trials involved different offenses in connection with different victims, the facts were sufficiently different that no double jeopardy was involved. 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).

Assault with a deadly weapon.

Defendant, charged with assault with intent to murder, former 1915 Code, §§ 1480 and 1481, had his conviction for assault with a deadly weapon, former 1915 Code, §§ 1704 and 1706, reversed because defendant had not been charged with assault with a deadly weapon and the offense was not included within the charged offense. State v. Taylor, 1927-NMSC-081, 33 N.M. 35, 261 P. 808, 1927 N.M. LEXIS 73 (N.M. 1927).

Assault with intent to murder.

Assault with a deadly weapon, former 1915 Code, §§ 1704 and 1706, is not necessarily included within the offense of assault with intent to murder, former 1915 Code, §§ 1480 and 1481. State v. Taylor, 1927-NMSC-081, 33 N.M. 35, 261 P. 808, 1927 N.M. LEXIS 73 (N.M. 1927).

Construction with other law.

Interpreting 30-3-8 NMSA 1978 to require knowledge of occupancy of the building shot at fills a gap in the law: Before 1987 such action, not accompanied by intent to commit murder, could be only a petty misdemeanor under 30-7-4 NMSA 1978. These defendants could not be convicted of assault with intent to commit murder under 30-3-3 NMSA 1978, a third degree felony. State v. Elmquist, 1992-NMCA-119, 114 N.M. 551, 844 P.2d 131, 1992 N.M. App. LEXIS 114 (N.M. Ct. App. 1992).

Charges against defendant for assault with intent to commit murder in violation of this section and shooting at an inhabited dwelling in violation of 30-3-8 NMSA 1978, for shooting at a mobile home in which he thought his ex-wife was sleeping, did not merge, even though they involved the same conduct; 30-3-8 NMSA 1978 is concerned with conduct designed to terrorize or intimidate, regardless of whether the dwelling was actually occupied, while this section is directed towards conduct motivated by an intention to cause another’s death. State v. Highfield, 1992-NMCA-020, 113 N.M. 606, 830 P.2d 158, 1992 N.M. App. LEXIS 24 (N.M. Ct. App.), cert. denied, 113 N.M. 503, 828 P.2d 415, 1992 N.M. LEXIS 105 (N.M. 1992).

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).

Defendant’s conviction for the offense of “assault with intent to murder” under former § 41-406, 1941 Comp. was proper because that section was not changed, superseded, or repealed by former § 41-607, 1941 Comp. which established the offense of “assault with intent to kill.” State v. Melendrez, 1945-NMSC-020, 49 N.M. 181, 159 P.2d 768, 1945 N.M. LEXIS 410 (N.M. 1945).

Criminal offenses.

Defenses.

Defendant’s conviction for assault with intent to commit a violent felony, a violation of former 40A-3-3, 1953 Comp., was reversed because pursuant to former 21-1-1(93), 1953 Comp. (codified as Rule 1-093 NMRA and now withdrawn), a trial court erroneously determined that defendant was not entitled to an evidentiary hearing on his motion that he was not competent to stand trial and on the issue of whether defendant’s guilty plea was voluntary. Roman v. State, 1970-NMCA-048, 81 N.M. 477, 468 P.2d 878, 1970 N.M. App. LEXIS 584 (N.M. Ct. App. 1970).

Definitions.

Pursuant to former 40A-3-3, 1953 Comp. (now 30-3-3 NMSA 1978) an assault with intent to commit a felony refers to a person as the victim, one who is presumably animated and sensate. State v. Tijerina, 1973-NMSC-105, 86 N.M. 31, 519 P.2d 127, 1973 N.M. LEXIS 1305 (N.M. 1973), cert. denied, 417 U.S. 956, 94 S. Ct. 3085, 41 L. Ed. 2d 674, 1974 U.S. LEXIS 1392 (U.S. 1974).

Double jeopardy.

Defendant’s convictions for both attempted criminal sexual penetration in the third degree and assault with intent to commit criminal sexual penetration violated double jeopardy, as his conduct in committing the criminal acts was unitary. State v. Schackow, 2006-NMCA-123, 140 N.M. 506, 143 P.3d 745, 2006 N.M. App. LEXIS 94 (N.M. Ct. App.), cert. denied, 140 N.M. 423, 143 P.3d 185, 2006 N.M. LEXIS 427 (N.M. 2006), cert. denied, 140 N.M. 542, 144 P.3d 101, 2006 N.M. LEXIS 529 (N.M. 2006).

Defendant sentenced to consecutive sentences for assault with the intent to commit criminal sexual penetration and for attempted kidnapping could not claim violation of his rights against double jeopardy because the offenses involved different elements, an assault can occur without restraint of the victim, and false imprisonment can occur without an assault. Price v. Barreras, No. 97-2155, 1997 U.S. App. LEXIS 36142 (10th Cir. N.M. 1997).

Defendant convicted of assault with intent to commit a violent felony, murder, in violation of 30-3-3 NMSA 1978 and aggravated battery with a deadly weapon in violation of 30-3-5C NMSA 1978 following the shooting of a police officer was found to have been properly sentenced on both counts because each crime contained an element that the other did not; therefore, the double jeopardy clauses of U.S. Const. amends. V and N.M. Const. art II § 15 were not violated. 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).

Defendant’s convictions for assault with intent to commit a felony in violation of former 40A-3-3, 1953 Comp. (now 30-3-3 NMSA 1978) and false imprisonment in violation of 40A-4-3, 1953 Comp. (now 30-3-4 NMSA 1978) were not barred by double jeopardy after defendant was previously charged with assaulting a jail and false imprisonment of a different person. State v. Tijerina, 1973-NMSC-105, 86 N.M. 31, 519 P.2d 127, 1973 N.M. LEXIS 1305 (N.M. 1973), cert. denied, 417 U.S. 956, 94 S. Ct. 3085, 41 L. Ed. 2d 674, 1974 U.S. LEXIS 1392 (U.S. 1974).

Elements of offenses.

Evidence.

—Admissible.

In defendant’s trial for assault with intent to commit a violent felony, the trial court properly allowed a police officer to refresh his memory of an interview with defendant by refreshing his memory from the transcription after the original tape was lost; because the transcript was used to revive the officer’s present recollection, it was not necessary under Rule 11-612 NMRA to show that the transcription was correct when made. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, 1977 N.M. App. LEXIS 578 (N.M. Ct. App.), cert. denied, 90 N.M. 254, 561 P.2d 1347, 1977 N.M. LEXIS 1149 (N.M. 1977).

—Inadmissible.

In defendant’s trial for assault on a police officer with intent to commit a violent felony, the trial court did not err in refusing to admit evidence that went to the officer’s character and to the officer’s reputation for truth and veracity; the evidence was not admissible under Rule 11-404 NMRA because no questions were asked of a witness concerning any character trait of the officer and because asserted character traits were not essential elements of the defense in the instant action. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, 1977 N.M. App. LEXIS 578 (N.M. Ct. App.), cert. denied, 90 N.M. 254, 561 P.2d 1347, 1977 N.M. LEXIS 1149 (N.M. 1977).

—Sufficient.

Evidence that defendant shot into the rooms of a mobile home where he thought that his ex-wife was sleeping was sufficient to sustain a conviction under this section for assault with intent to commit murder. State v. Highfield, 1992-NMCA-020, 113 N.M. 606, 830 P.2d 158, 1992 N.M. App. LEXIS 24 (N.M. Ct. App.), cert. denied, 113 N.M. 503, 828 P.2d 415, 1992 N.M. LEXIS 105 (N.M. 1992).

Substantial evidence supported defendant’s conviction for assault with intent to commit a violent felony in violation of former 40A-3-3, 1953 Comp. (now 30-3-3 NMSA 1978); given the high possibility of death in a deliberate sharp turn, the jury could reasonably have inferred from the fact that defendant hit a police car and forced it off the road at a speed of 110 mph that he intended to kill the police officers. State v. Bell, 1972-NMCA-101, 84 N.M. 133, 500 P.2d 418, 1972 N.M. App. LEXIS 822 (N.M. Ct. App. 1972).

Defendant’s statement upon his uninvited entry into the prosecutrix’s home that he wanted to perform a lascivious act upon her did not negate the state’s contention that defendant intended to force the prosecutrix to have sexual intercourse with him, which was an essential element to the crime of assault with intent to rape in violation of § 41-620 1941 Comp., because the undisputed evidence showed that defendant forced the prosecutrix onto a couch after she tried to telephone the police, began tearing off her clothes, and did not stop until the prosecutrix’s minor son entered the room and called the police; the jury was justified in viewing defendant’s statement of intent as a preliminary statement and that defendant assaulted the prosecutrix with the intent of forcing her to have sexual intercourse with him. State v. Compos, 1952-NMSC-016, 56 N.M. 89, 240 P.2d 228, 1952 N.M. LEXIS 887 (N.M. 1952).

Included offenses.

Defendant’s conviction for kidnapping by holding for service, pursuant to 30-4-1 NMSA 1978, was not merged with his conviction for assault with intent to commit criminal sexual penetration under 30-3-3 NMSA 1978; the assault with intent to commit criminal sexual penetration occurred after the victim had been restrained and held for services. State v. Williams, 1986-NMCA-122, 105 N.M. 214, 730 P.2d 1196, 1986 N.M. App. LEXIS 679 (N.M. Ct. App. 1986).

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).

Defendant, charged with assault with intent to murder under former 1915 Code, § 1480 and former 1915 Code, § 1481, had his conviction for assault with a deadly weapon under former 1915 Code, § 1704 and former 1915 Code, § 1706 reversed because defendant had not been charged with assault with a deadly weapon and the offense was not included within the charged offense. State v. Taylor, 1927-NMSC-081, 33 N.M. 35, 261 P. 808, 1927 N.M. LEXIS 73 (N.M. 1927).

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).

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).

Intent.

In a prosecution for assault with intent to kill in violation of 1929 Code, § 35-605, it was proper to allow defendant to be cross-examined as to whether he had been indicted the day before the assault for a prohibition violation; the State contended that defendant intended to kill the victim as a “stool pigeon”. State v. Solis, 1934-NMSC-077, 38 N.M. 538, 37 P.2d 539, 1934 N.M. LEXIS 84 (N.M. 1934).

In a prosecution for assault with intent to kill in violation of 1929 Code, § 35-605, the victim’s scars and the overalls he wore at the time he was shot were material as to intent and as to self-defense; the State contended that the second shot was fired and took effect after the victim had fallen from the first. State v. Solis, 1934-NMSC-077, 38 N.M. 538, 37 P.2d 539, 1934 N.M. LEXIS 84 (N.M. 1934).

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.

Where the defendant knew that his ex-wife’s father occupied the east-end bedroom of a mobile home and that the ex-wife’s new husband had moved into the trailer and was living there at the same time that his ex-wife’s father was there, and the ex-wife testified that when she stayed at the trailer she usually slept in the living room, the jury could reasonably infer that, when the defendant shot into the west-end bedroom and living room, he assumed that ex-wife would be in one of those rooms, and the evidence was sufficient to sustain a verdict for assault with intent to kill the ex-wife in violation of 30-3-3 NMSA 1978. State v. Highfield, 1992-NMCA-020, 113 N.M. 606, 830 P.2d 158, 1992 N.M. App. LEXIS 24 (N.M. Ct. App.), cert. denied, 113 N.M. 503, 828 P.2d 415, 1992 N.M. LEXIS 105 (N.M. 1992).

Jury instructions.

Under this section, defendant’s conviction for assault with intent to commit a violent felony was improper because, under the erroneous jury instruction, the jury might have found defendant guilty of assault with intent to commit a violent felony against an individual without finding that he intended to murder the individual. State v. Arrendondo, 2012-NMSC-013, 278 P.3d 517, 2012 N.M. LEXIS 179 (N.M. 2012).

Where defendant was convicted for an assault with intent to kill, his conviction was improper; the jury was erroneously instructed that they could find defendant guilty of that charge if the assault was committed with an intent simply to do bodily injury. Territory v. Vigil, 1896-NMSC-021, 8 N.M. 583, 45 P. 1117, 1896 N.M. LEXIS 23 (N.M. 1896).

Purpose.

30-3-8 NMSA 1978 has a different goal than 30-3-3 NMSA 1978, assault with intent to commit a violent felony, because 30-3-8 NMSA 1978 is concerned with conduct typically designed to terrorize or intimidate. A requirement of knowledge of occupancy of the building shot at would be consistent with this design. State v. Elmquist, 1992-NMCA-119, 114 N.M. 551, 844 P.2d 131, 1992 N.M. App. LEXIS 114 (N.M. Ct. App. 1992).

Sentence.

Trial court did not abuse its discretion in sentencing defendant to serve not less than 15 years and not more than 25 years in the penitentiary for assault with intent to rape where the minimum sentence was less than a third of the maximum which could have been imposed. State v. Compos, 1952-NMSC-016, 56 N.M. 89, 240 P.2d 228, 1952 N.M. LEXIS 887 (N.M. 1952).

Violent felony.

In a prosecution for 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), a trial court’s failure to define assault was jurisdictional error; the failure to instruct on an essential element of a crime is 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).

Research References and Practice Aids

Cross references.

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

Definitions, 31-18-15.2 NMSA 1978.

Definitions, 32A-2-3 NMSA 1978.

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

30-3-3. Assault with intent to commit a violent felony.

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History

Annotations