Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.
Whoever commits battery is guilty of a petty misdemeanor.
HISTORY:
1953 40A-3-4, enacted by Laws 1963, ch. 303, § 3-4.
Notes to Decisions
Analysis
Constitutionality.
Aggravated battery statute, former 40A-3-5, 1953 Comp. (now 30-3-5 NMSA 1978), is not unconstitutionally vague either when its subsections are compared or when the entire section is compared with former 40A-3-4, 1953 Comp. (now 30-3-4 NMSA 1978) which, in defining simple battery, does not include an intent to injure, because former 40A-3-5, 1953 Comp. conveys a definite warning of the proscribed conduct. State v. Chavez, 1971-NMCA-030, 82 N.M. 569, 484 P.2d 1279, 1971 N.M. App. LEXIS 670 (N.M. Ct. App.), cert. denied, 82 N.M. 562, 484 P.2d 1272, 1971 N.M. LEXIS 1661 (N.M. 1971).
Appeal.
Defendant, convicted of simple battery under 30-3-4 NMSA 1978 in the metropolitan court, was entitled to a de novo trial in the district court as part of his appeal from the metropolitan court; defendant would have been entitled to only an on the record appeal had he been convicted under 30-3-15 NMSA 1978, a statute which became effective five weeks before the offense committed by defendant and criminalized battery against a household member, but the state did not charge or convict defendant of this offense. State v. Trujillo, 1999-NMCA-003, 126 N.M. 603, 973 P.2d 855, 1998 N.M. App. LEXIS 177 (N.M. Ct. App. 1998).
Defendant, who was convicted of battery in violation of 30-3-4 NMSA 1978, was entitled to a trial de novo in the district court rather than just an on-record review of the metropolitan court proceeding; the State could not contend that defendant was convicted of a crime involving domestic violence for purposes of 34-8A-6C NMSA 1978 because it did not prosecute defendant under 30-3-15 NMSA 1978. State v. Trujillo, 1999-NMCA-003, 126 N.M. 603, 973 P.2d 855, 1998 N.M. App. LEXIS 177 (N.M. Ct. App. 1998).
Arrest.
A private citizen may not make a warrantless arrest for a petty misdemeanor, such as battery. Downs v. Garay, 1987-NMCA-108, 106 N.M. 321, 742 P.2d 533, 1987 N.M. App. LEXIS 759 (N.M. Ct. App. 1987).
Attempt.
Jury’s verdict convicting defendant of aggravated assault was not contrary to the evidence when there was sufficient evidence to support the contention that defendant attempted a battery on the victim, as defined under former 40A-3-4, 1953 Comp. (now 30-3-4 NMSA 1978) where he pulled a loaded gun from his pocket and threatened the victim after the victim told defendant to stop fondling his girlfriend. 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).
Double jeopardy.
Separate punishments for the petty-misdemeanor battery and aggravated battery convictions violated double jeopardy; the evidence indicated that defendant was continually and sequentially progressing from lesser force to more forceful harm over a very short period of time, all resulting without any apparent change in defendant’s state of mind. State v. Garcia, 2009-NMCA-107, 147 N.M. 150, 217 P.3d 1048, 2009 N.M. App. LEXIS 126 (N.M. Ct. App.), cert. denied, 147 N.M. 395, 223 P.3d 940, 2009 N.M. LEXIS 948 (N.M. 2009).
Conviction for criminal sexual penetration in a second trial was not barred by double jeopardy after petitioner was convicted in first trial of battery, as the marital relationship was suspended and petitioner had notice his conduct was proscribed. Brecheisen v. Mondragon, 833 F.2d 238, 1987 U.S. App. LEXIS 14992 (10th Cir. N.M. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707, 1988 U.S. LEXIS 1728 (U.S. 1988).
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.
Defendant was improperly convicted for battery upon a peace officer in violation of former 40A-22-23, 1953 Comp.; since there was evidence that the officer was not in the lawful discharge of his duties at the time of the incident, defendant was entitled to an instruction on simple battery under 40A-3-4, 1953 Comp. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, 1977 N.M. App. LEXIS 595 (N.M. Ct. App.), cert. denied, 90 N.M. 637, 567 P.2d 486, 1977 N.M. LEXIS 1189 (N.M. 1977).
Trial court properly convicted defendant for battery upon his wife, a violation of former 40A-3-4, 1953 Comp. (now 30-3-4 NMSA 1978), because the least amount of touching another wilfully, or in anger, constituted a battery, and defendant grabbed his wife, pulled her over to a parked car, held her, and would not let her go. State v. Seal, 1966-NMSC-123, 76 N.M. 461, 415 P.2d 845, 1966 N.M. LEXIS 2678 (N.M. 1966).
Evidence.
Evidence was sufficient, based on the victim’s testimony and that of the officer, to convict defendant of a petty-misdemeanor battery by the pushing and punching, and there was also substantial evidence of an aggravated battery by defendant by jumping on the victim’s leg and shattering it. State v. Garcia, 2009-NMCA-107, 147 N.M. 150, 217 P.3d 1048, 2009 N.M. App. LEXIS 126 (N.M. Ct. App.), cert. denied, 147 N.M. 395, 223 P.3d 940, 2009 N.M. LEXIS 948 (N.M. 2009).
Defendant’s battery conviction, resulting from his act of grabbing his daughter’s hand, was reversed since his conduct did not reach beyond the point of departure from justified parental discipline and was privileged; thus, as a matter of law, the evidence was insufficient to support the charge of battery beyond a reasonable doubt. State v. Lefevre, 2005-NMCA-101, 138 N.M. 174, 117 P.3d 980, 2005 N.M. App. LEXIS 90 (N.M. Ct. App. 2005).
—Sufficient.
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. 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. 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).
Where defendant was convicted of aggravated burglary in violation of former 40A-16-4C NMSA 1953, (now 30-16-4 NMSA 1978), and criminal sexual penetration in the third degree in violation of former 40A-9-21C NMSA 1953, now 30-9-11 NMSA 1978 the aggravating factor of the burglary did not merge with the rape because there was evidence of a battery under former 40A-3-4 NMSA 1953, now 30-3-4 NMSA 1978, that preceded the sex offense in that defendant told the victim not to move or make a noise, or he would blow her head off. Thus, there was evidence of an aggravated burglary apart from the sex offense. State v. Archunde, 1978-NMCA-050, 91 N.M. 682, 579 P.2d 808, 1978 N.M. App. LEXIS 563 (N.M. Ct. App. 1978).
Evidence was sufficient to support a conviction for aggravated assault in violation of former 40A-3-2AA 1953, Comp. (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 40A-3-4, 1953 Comp. (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).
Federal law.
Where a gynecologist was charged with sexual assault in violation of both federal and state law, the state crimes of sexual penetration, as defined by 30-9-11 NMSA 1978, were dismissed because they were directed at roughly the same sort of conduct as the federal statutes, 18 U.S.C.S. § 2242(2)(A), under which defendant had also been charged; however, the state battery statute, 30-3-4 NMSA 1978, was sufficiently different from the federal “assault” statute so that a gap existed with respect to the battery charges. United States v. Guardia, 10 F. Supp. 2d 1237, 1998 U.S. Dist. LEXIS 10337 (D.N.M. 1998).
Habeas corpus.
Where 30-3-4 and 30-1-6(C) NMSA 1978 ensured that a habeas corpus petitioner would not receive a sentence in excess of 180 days in his trial de novo pursuant to 35-13-2 NMSA 1978 on multiple petty offenses arising from the same transaction, he was not entitled to a jury trial. Haar v. Hanrahan, 708 F.2d 1547, 1983 U.S. App. LEXIS 27193 (10th Cir. N.M. 1983).
Included offenses.
Because it is impossible to commit the crime of aggravated battery upon a peace officer without necessarily committing aggravated battery, aggravated battery is a lesser-included offense of aggravated battery upon a peace officer, and a defendant charged with aggravated battery upon a peace officer is entitled to a jury instruction on aggravated battery as a lesser-included offense. State v. Nozie, 2009-NMSC-018, 146 N.M. 142, 207 P.3d 1119, 2009 N.M. LEXIS 362 (N.M. 2009).
One cannot batter a peace officer while the officer was in the lawful discharge of his duties without battering the person of another. Trial court erred when it refused to instruct on simple battery as an included offense within peace officer battery because there was evidence that the police officer was not in the lawful discharge of his duties in connection with the altercation. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, 1977 N.M. App. LEXIS 595 (N.M. Ct. App.), cert. denied, 90 N.M. 637, 567 P.2d 486, 1977 N.M. LEXIS 1189 (N.M. 1977).
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.
In a prosecution for felony aggravated battery, the trial court properly refused to give a simple battery jury instruction because no view of the evidence showed that simple battery was the highest degree of crime committed. State v. Pettigrew, 1993-NMCA-095, 116 N.M. 135, 860 P.2d 777, 1993 N.M. App. LEXIS 90 (N.M. Ct. App.), cert. denied, 116 N.M. 71, 860 P.2d 201, 1993 N.M. LEXIS 284 (N.M. 1993), cert. denied, 116 N.M. 71, 860 P.2d 201, 1993 N.M. LEXIS 285 (N.M. 1993), cert. denied, 116 N.M. 71, 860 P.2d 201, 1993 N.M. LEXIS 286 (N.M. 1993).
Defendant was not entitled to a jury instruction on simple battery under 30-3-4 NMSA 1978 in a prosecution for aggravated battery under 30-3-5A NMSA 1978 where the evidence showed that the charge of aggravated battery arose from an incident in which defendant shot his victim in the foot with a .22 caliber revolver during a confrontation at a neighbor’s home. Defendant testified that after the argument began, the victim told him to leave or he would throw him through the wall, defendant pulled out his gun and stuck it in the victim’s chest, the victim pushed the gun away, and the gun discharged, striking the victim in the foot. State v. Gammill, 1985-NMCA-014, 102 N.M. 652, 699 P.2d 125, 1985 N.M. App. LEXIS 552 (N.M. Ct. App. 1985).
Trial court erred when it did not instruct a jury on simple battery under 30-3-4 NMSA 1978 in defendant’s trial for battery of a peace officer under 30-22-24 NMSA 1978 where there was a fact issue for the jury of whether the officer used excessive force when he arrested defendant; defendant had been involved in a bar fight and was sitting outside the bar when the police arrived, a police officer asked defendant and others for identification and defendant refused, the officer arrested defendant for concealing identity, as the officer placed handcuffs on defendant, a fight occurred, and the officer struck defendant in the face and defendant fought back. State v. Gonzales, 1982-NMCA-043, 97 N.M. 607, 642 P.2d 210, 1982 N.M. App. LEXIS 805 (N.M. Ct. App. 1982).
Defendant was entitled to a lesser-included offense of simple battery because an officer that precipitated a fight in the booking room with defendant by kicking defendant was not lawfully discharging his duties. State v. Melendrez, 1977-NMCA-131, 91 N.M. 259, 572 P.2d 1267, 1977 N.M. App. LEXIS 690 (N.M. Ct. App. 1977).
Where defendant was convicted of rape on an Indian reservation under the Major Crimes Act of 1885, 18 U.S.C.S. §§ 1153 and 3242, the trial court erred in failing to instruct on attempted rape, simple assault, and battery, which were not enumerated in the federal law but were lesser included offenses under New Mexico law, 40A-9-2, 1953 Comp. (30-9-11 NMSA 1978), 40A-3-4, 1953 Comp. (30-3-4 NMSA 1978), and 40A-28-1, 1953 Comp. (30-28-1 NMSA 1978). Joe v. United States, 510 F.2d 1038, 1974 U.S. App. LEXIS 5543 (10th Cir. N.M. 1974).
Jury instructions.
Reasonable minds could differ regarding whether defendant’s actions during the scuffle with the victim constituted simple battery, under this section, and defendant’s testimony provided evidence that he lacked the intent to injure the victim, a statutory element of aggravated battery, pursuant to 30-3-5A NMSA 1978; sufficient evidence of an unlawful act not amounting to a felony was present to support an involuntary manslaughter instruction, pursuant to 30-2-3B NMSA 1978. State v. Skippings, 2011-NMSC-021, 150 N.M. 216, 258 P.3d 1008, 2011 N.M. LEXIS 273 (N.M. 2011).
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 former 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).
Notice.
Defendant’s conviction for battery of a peace officer in violation of 30-22-24 NMSA 1978, which stemmed from a fight that occurred while an officer was placing defendant under arrest for concealing his identity in violation of 30-22-3 NMSA 1978, was reversed and a new trial was ordered because the trial court was found to have erred when it failed to instruct the jury on simple battery, a violation of 30-3-4 NMSA 1978, since there was a fact issue for the jury as to whether the officer used excessive force when he arrested defendant. State v. Gonzales, 1982-NMCA-043, 97 N.M. 607, 642 P.2d 210, 1982 N.M. App. LEXIS 805 (N.M. Ct. App. 1982).
Parental acts.
In New Mexico, a parent has a privilege to use moderate or reasonable physical force, without criminal liability, when engaged in the discipline of his or her child. Discipline involves controlling behavior and correcting misbehavior for the betterment and welfare of the child; the physical force cannot be cruel or excessive if it is to be justified. The parent’s conduct is to be measured under an objective standard. State v. Lefevre, 2005-NMCA-101, 138 N.M. 174, 117 P.3d 980, 2005 N.M. App. LEXIS 90 (N.M. Ct. App. 2005).
Sentence.
Defendant’s sentence in the district court following his simple battery conviction under 30-3-4 NMSA 1978 was improper because, under 34-8A-6 NMSA 1978, the district court lacked authority to impose a sentence greater than that imposed by metropolitan court, which convicted defendant originally. State v. Haar, 1983-NMCA-140, 100 N.M. 609, 673 P.2d 1342, 1983 N.M. App. LEXIS 813 (N.M. Ct. App. 1983).
Notes to Unpublished Decisions
Arrest.
Unpublished decision: Where officers pursued battery charges against an arrestee for attacking a person, the officers were entitled to qualified immunity as to the arrestee’s malicious prosecution claim because it appeared the officers’ arrest and prosecution of the arrestee was amply justified since the undisputed facts showed that the officers learned from the injured person or hospital staff that the arrestee and the arrestee’s sons attacked the injured person, stomped on the person’s head, bit the person, and kicked the person, and all this would appear more than enough to sustain a prosecution for battery; the arrestee failed to carry the burden of establishing that the arrest and prosecution clearly lacked probable cause under existing law. Hernandez v. Story, 459 Fed. Appx. 697, 2012 U.S. App. LEXIS 1544 (10th Cir. N.M. 2012).
Research References and Practice Aids
Cross references.
Aggravated indecent exposure, 30-9-14.3 NMSA 1978.
New Mexico Law Review.
Note: Criminal Law: Applying The General/Specific Statute Rule In New Mexico-State v. Santillanes, Quentin Smith, 32 N.M. L. Rev. 313 (2002).
Tort Law — New Mexico Imposes Strict Liability On A Private Employer Of An Independent Contractor For Harm From Dangerous Work, But Bestows Immunity On A Government Employer: Saiz v. Belen School District, Jane Marshall Gagne, 23 N.M. L. Rev. 399 (1993).