A. Aggravated battery consists of the unlawful touching or application of force to the person of another with intent to injure that person or another.
B. Whoever commits aggravated battery, inflicting an injury to the person which is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a misdemeanor.
C. Whoever commits aggravated battery inflicting great bodily harm or does so with a deadly weapon or does so in any manner whereby great bodily harm or death can be inflicted is guilty of a third degree felony.
HISTORY:
1953 40A-3-5, enacted by Laws 1963, ch. 303, § 3-5; 1969, ch. 137, § 1.
Notes to Decisions
Constitutionality.
Section 40A-3-5, 1953 Comp. (now 30-3-5 NMSA 1978) was not void for vagueness. State v. Segura, 1973-NMCA-006, 83 N.M. 432, 492 P.2d 1295, 1972 N.M. App. LEXIS 722 (N.M. Ct. App. 1972).
Section 40A-3-5, 1953 Comp. (now 30-3-5 NMSA 1978) did not violate N.M. Const. art IV § 16 on the basis that its title did not reflect that its subject because it included both felonies and misdemeanors; the title of the statute clearly showed that the subject of the act was aggravated battery and that more than one penalty was provided. State v. Segura, 1973-NMCA-006, 83 N.M. 432, 492 P.2d 1295, 1972 N.M. App. LEXIS 722 (N.M. Ct. App. 1972).
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 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).
In defendant’s trial for aggravated battery in violation of former 40A-3-5, 1953 Comp. (now 30-3-5 NMSA 1978), defendant’s argument that former 40A-3-5, 1953 Comp. was unconstitutionally vague because he could not foresee the degree of his crime when he committed it, failed because former 40A-3-5, 1953 Comp. conveyed 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.
State’s appeal, pursuant to Rule 12-502 NMRA, of an appellate court’s affirmation of a trial court order suppressing evidence related to a rock allegedly used to batter a victim in the trial of defendant charged with aggravated battery with a deadly weapon, in violation of 30-3-5A and C NMSA 1978, was successful because the State’s failure to photograph the rock, rather than collect it as physical evidence, was a judgment call and not anything more than mere inadvertence or ordinary negligence on the part of the police, and because defendant’s due process rights, as guaranteed by N.M. Const. art II § 18 and U.S. Const. amends. V, were not violated, suppression of the evidence of the rock was inappropriate. State v. Ware, 1994-NMSC-091, 118 N.M. 319, 881 P.2d 679, 1994 N.M. LEXIS 337 (N.M. 1994).
Clerical error.
In a prosecution for aggravated battery, where the indictment referred to former 40A-2-5, 1953 Comp. (now 30-2-4 NMSA 1978), the crime of assisting suicide, rather than former 40A-3-5, 1953 Comp. (now 30-3-5 NMSA 1978), aggravated battery, the misreference was a patent typing error and did not provide a basis for dismissal under former N.M. R. Crim.P. 7(a) (now Rule 5-204 NMRA). State v. Trujillo, 1978-NMCA-041, 91 N.M. 641, 578 P.2d 342, 1978 N.M. App. LEXIS 556 (N.M. Ct. App.), cert. denied, 91 N.M. 751, 580 P.2d 972, 1978 N.M. LEXIS 1064 (N.M. 1978).
Confinement credit.
When defendant was committed pursuant to 31-9-1.5D NMSA 1978 to a locked, secure facility for nine years for armed robbery and committed for three years for aggravated battery with a deadly weapon or, alternatively, aggravated battery with great bodily harm, contrary to Subsection A or C of this section, the district court erred by failing to modify defendant’s commitment period for the time he spent in detention prior to the commitment. Presentence confinement credit under 31-20-12 NMSA 1978 should be credited to criminal commitment to the same extent the confinement would have been credited against a sentence for a criminal conviction. State v. Lopez, 2011-NMCA-071, 150 N.M. 34, 256 P.3d 977, 2011 N.M. App. LEXIS 13 (N.M. Ct. App.), cert. denied, 150 N.M. 666, 265 P.3d 717, 2011 N.M. LEXIS 217 (N.M. 2011).
Criminal commitment.
Where defendant beat a hotel clerk with his fist and a hard plastic tube, took the hotel keys from the victim, used the keys to enter the office, and took $40 from the cash drawer, the circumstantial evidence was sufficient to support a finding that defendant formed the intent to commit the robbery before or during the time he committed the battery. Because defendant’s felony offense resulted in the infliction of great bodily harm, he was committed pursuant to 31-9-1.5D NMSA 1978 to a locked, secure facility for nine years for armed robbery in violation of 30-16-2 NMSA 1978; defendant was committed for three years for aggravated battery with a deadly weapon or with great bodily harm, contrary to Subsection A or C of this section. State v. Lopez, 2011-NMCA-071, 150 N.M. 34, 256 P.3d 977, 2011 N.M. App. LEXIS 13 (N.M. Ct. App.), cert. denied, 150 N.M. 666, 265 P.3d 717, 2011 N.M. LEXIS 217 (N.M. 2011).
Deadly weapon.
Shooting was not elevated from aggravated battery to shooting from within a vehicle because the vehicle was the location where both the shooter and victims were located. State v. Tafoya, 2012-NMSC-030, 285 P.3d 604, 2012 N.M. LEXIS 332 (N.M. 2012).
Although it was possible for a jury to determine that a defendant who bit someone while the defendant was infected with hepatitis C was guilty of felony aggravated battery with a deadly weapon, the trial court erred in refusing to instruct the jury on the lesser included offense of misdemeanor aggravated battery, since this would be the proper charge on which to convict if the jury determined that the defendant’s mouth was not a deadly weapon. State v. Neatherlin, 2007-NMCA-035, 141 N.M. 328, 154 P.3d 703, 2007 N.M. App. LEXIS 10 (N.M. Ct. App. 2007).
Defenses.
Under 30-3-5A NMSA 1978, a defendant can negate the specific intent to injure an individual on the offense of aggravated battery by showing that he was intoxicated to such a degree as would negate the possibility of the necessary intent. State v. Lovato, 1990-NMCA-047, 110 N.M. 146, 793 P.2d 276, 1990 N.M. App. LEXIS 38 (N.M. Ct. App. 1990).
In defendant’s trial for aggravated battery in violation, the evidence raised an issue of fact for the jury on the question of intent to injure by showing intoxication to such a degree that he was unable to form the necessary intent. State v. Crespin, 1974-NMCA-104, 86 N.M. 689, 526 P.2d 1282, 1974 N.M. App. LEXIS 716 (N.M. Ct. App. 1974).
In defendant’s trial for aggravated battery, evidence that for three years defendant had admitted himself or was committed to the state mental hospital a total of nine times for evaluation and treatment, and that some three weeks before he committed the offense the court had recommitted him for evaluation, was sufficient to warrant an instruction on the issue of sanity or mental illness as a defense. State v. Crespin, 1974-NMCA-104, 86 N.M. 689, 526 P.2d 1282, 1974 N.M. App. LEXIS 716 (N.M. Ct. App. 1974).
Victim’s act of procuring a gun and inviting defendant to shoot him did not constitute consent and defendant was properly convicted of aggravated robbery. State v. Fransua, 1973-NMCA-071, 85 N.M. 173, 510 P.2d 106, 1973 N.M. App. LEXIS 725 (N.M. Ct. App. 1973).
Discretion.
Defendant’s conviction for aggravated battery, a violation of former 40A-3-5A and C, 1953 Comp., was affirmed because a trial court properly exercised its discretion in denying defendant’s motion for a continuance based upon the ground that a particular witness could not be located for service of a subpoena because defendant had more than two weeks notice of the date of trial in which to issue the subpoena and another witness who had been subpoenaed could supply testimony of a similar nature. State v. Jaramillo, 1971-NMCA-057, 82 N.M. 548, 484 P.2d 768, 1971 N.M. App. LEXIS 697 (N.M. Ct. App. 1971).
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).
Although a habeas petitioner's convictions for voluntary manslaughter, aggravated battery, and shooting at or from a motor vehicle, NMSA 1978, §§ 30-2-3(A), 30-3-5, and 30-3- 8(B), violated double jeopardy, U.S. Const. amends. V, under a new rule announced in State v. Montoya, the rule was procedural and did not apply retroactively. Dominguez v. State, 2015-NMSC-014, 348 P.3d 183, 2015 N.M. LEXIS 104 (N.M. 2015).
Defendant's convictions for both voluntary manslaughter and aggravated battery violated the prohibition against double jeopardy because the evidence did not support the State's theory that the victim suffered two separate attacks, and the conduct supporting each of the charges was nearly indistinguishable. State v. Lucero, 2015-NMCA-040, 346 P.3d 1175, 2014 N.M. App. LEXIS 120 (N.M. Ct. App. 2014).
Double jeopardy.
Where defendant beat, stabbed, and slashed the victims after entering their home, his two convictions for aggravated burglary while committing a battery under 30-16-4C NMSA 1978 and one conviction for aggravated burglary with a deadly weapon under 30-16-4A NMSA 1978 violated the Fifth Amendment’s prohibition against double jeopardy; because there was only one unlawful entry, only one burglary could be enhanced to an aggravated burglary. This approach was consistent with the principles of double jeopardy because defendant was also convicted of two counts of armed robbery under 30-16-2 NMSA 1978; two counts of aggravated battery with a deadly weapon under Subsection C of this section; and two counts of attempted murder under 30-2-1 and 30-28-1 NMSC 1978 for the same assaultive conduct that took place after the unlawful entry. State v. Swick, 2012-NMSC-018, 279 P.3d 747, 2012 N.M. LEXIS 181 (N.M. 2012).
Defendant’s convictions for two counts of aggravated battery and two counts of attempted murder violated the Fifth Amendment’s prohibition against double jeopardy, because the aggravated battery elements under this section were subsumed within the attempted murder elements under 30-2-1 and 30-28-1 NMSA 1978, and the same evidence showing that defendant beat, stabbed, and slashed the victims after entering their home was offered to prove both offenses. State v. Swick, 2012-NMSC-018, 279 P.3d 747, 2012 N.M. LEXIS 181 (N.M. 2012).
Defendant’s convictions of kidnapping and aggravated battery, when coupled with his conviction of voluntary manslaughter, did not violate the prohibition against double jeopardy because: (1) defendant’s shooting the victim twice in the head was sufficiently separated by time and space from the first gunshot wound inside defendant’s vehicle; (2) the requisite force to support defendant’s kidnapping conviction was the force used to transport the unconscious victim to the mesa after he was shot in the chest; and (3) evidence of defendant’s use of two different types of force to commit voluntary manslaughter and kidnapping constituted a sufficient indication of distinctness, as defendant first shot the victim inside defendant’s vehicle and then kept the unconscious victim in the vehicle and transported him to the mesa. State v. Urioste, 2011-NMCA-121, 267 P.3d 820, 2011 N.M. App. LEXIS 115 (N.M. Ct. App. 2011), cert. quashed, 296 P.3d 491, 2012 N.M. LEXIS 272 (N.M. 2012).
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).
Defendant was convicted of punching, hitting, and kicking a 13-month-old child. Double jeopardy was not implicated by convicting defendant of child abuse and aggravated battery because the general/specific rule of statutory construction was inapplicable, and child abuse was not a specific type of misdemeanor battery. State v. Stewart, 2005-NMCA-126, 138 N.M. 500, 122 P.3d 1269, 2005 N.M. App. LEXIS 125 (N.M. Ct. App.), cert. denied, 138 N.M. 586, 124 P.3d 564, 2005 N.M. LEXIS 523 (N.M. 2005).
Aggravated battery requires an intent to injure, which is not an element of shooting at or from a motor vehicle and the crime of shooting at or from a motor vehicle requires the discharge of a firearm at or from a motor vehicle, which is not an element of aggravated battery. Thus, the legislature intended to create separately punishable offenses by enacting the aggravated battery statute and the shooting at or from a motor vehicle statute and defendant’s conviction for both offenses did not violate double jeopardy. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563, 2005 N.M. LEXIS 78 (N.M. 2005), overruled, State v. Montoya, 2013-NMSC-020, 306 P.3d 426, 2013 N.M. LEXIS 139 (N.M. 2013), overruled as stated in State v. Tungovia, No. 28914, 2013 N.M. App. Unpub. LEXIS 181 (N.M. Ct. App. June 13, 2013), overruled as stated in State v. Garcia, No. 29338, 2014 N.M. App. Unpub. LEXIS 56 (N.M. Ct. App. Feb. 12, 2014), overruled in part as stated in State v. Rudy B., No. 27589, 2014 N.M. App. Unpub. LEXIS 177 (N.M. Ct. App. May 8, 2014), overruled as stated in State v. Munoz, No. 30837, 2014 N.M. App. Unpub. LEXIS 208 (N.M. Ct. App. June 23, 2014), overruled as stated in State v. Franco, No. 33392, 2016-NMCA-074, 2016 N.M. App. LEXIS 54 (N.M. Ct. App. 2016).
Although the underlying conduct was unitary, a defendant’s convictions for attempted first degree murder under 30-2-1A and 30-28-1 NMSA 1978, aggravated battery resulting in great bodily harm under 30-3-5A, C NMSA 1978, and conspiracy to commit murder under 30-28-3D and 30-28-1 NMSA 1978, did not violate the protection from double jeopardy afforded by N.M. Const. art II § 15 and U.S. Const. amends. V, and theP-efendant could be punished for all three crimes, but under 30-28-3D NMSA, a defendant could not be guilty of both criminal solicitation and conspiracy to commit murder so the defendant’s conviction for criminal solicitation had to be vacated. State v. Vallejos, 2000-NMCA-075, 129 N.M. 424, 9 P.3d 668, 2000 N.M. App. LEXIS 63 (N.M. Ct. App.), cert. denied, 129 N.M. 385, 9 P.3d 68, 2000 N.M. LEXIS 306 (N.M. 2000).
Defendant’s right against double jeopardy was not violated by convictions for robbery and aggravated battery under 30-3-5A NMSA 1978; both crimes have distinctly different elements and regulation of each deviant conducts protected separate societal values. State v. Fuentes, 1994-NMCA-158, 119 N.M. 104, 888 P.2d 986, 1994 N.M. App. LEXIS 149 (N.M. Ct. App. 1994), cert. denied, 889 P.2d 203, 1995 N.M. LEXIS 15 (N.M. 1995).
Neither the rules of statutory construction nor the federal and state constitutional provisions against double jeopardy prohibited the application of the firearm enhancement statute to a person convicted of aggravated battery when the weapon used was a firearm. State v. Gonzales, 1981-NMCA-023, 95 N.M. 636, 624 P.2d 1033, 1981 N.M. App. LEXIS 688 (N.M. Ct. App.), overruled, Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244, 1981 N.M. LEXIS 2392 (N.M. 1981).
Elements.
In New Mexico, aggravated battery consisted of the unlawful touching or application of force to the person of another with intent to injure that person or another, pursuant to 30-3-5 NMSA 1978, and the bankruptcy court found that if a jury, presumably having made this finding beyond a reasonable doubt, then the doctrine of collateral estoppel or issue preclusion would result in a judgment meeting the standards of non-dischargeability of 11 U.S.C.S. § 523(a)(6). In re Gonzales, 297 B.R. 143, 2003 Bankr. LEXIS 1168 (Bankr. D.N.M. 2003).
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).
Defendant’s failure to aid the victim after the beating was clearly not an element of aggravated battery. State v. Kurley, 1992-NMCA-105, 114 N.M. 514, 841 P.2d 562, 1992 N.M. App. LEXIS 88 (N.M. Ct. App. 1992).
Aggravated battery is a specific intent crime, and intent to injure a person is an essential element of the crime. State v. Crespin, 1974-NMCA-104, 86 N.M. 689, 526 P.2d 1282, 1974 N.M. App. LEXIS 716 (N.M. Ct. App. 1974).
Intent to injure is a required element of aggravated battery under 40A-3-5 1953 Comp. (30-3-5 NMSA 1978) and need not be established by direct evidence but may be inferred from conduct and the surrounding circumstances. State v. Valles, 1972-NMCA-076, 84 N.M. 1, 498 P.2d 693, 1972 N.M. App. LEXIS 893 (N.M. Ct. App. 1972).
Evidence.
Evidence was sufficient to convict defendant of aggravated battery, under Subsection C, given witness testimony, and the severity of the victim’s injuries supported a finding that defendant caused great bodily harm. State v. Fuentes, 2010-NMCA-027, 147 N.M. 761, 228 P.3d 1181, 2009 N.M. App. LEXIS 285 (N.M. Ct. App. 2009), cert. denied, 147 N.M. 704, 228 P.3d 488, 2010 N.M. LEXIS 271 (N.M. 2010).
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).
Where testimony during the trial described a beating in which a victim was hit by the butt of a gun and kicked and punched 30 or 40 times by defendants and expert medical testimony set forth that the beating of the victim’s head could have caused permanent impairment and death, the evidence was sufficient to support the conviction for felony aggravated battery under 30-3-5C NMSA 1978. 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).
—Insufficient.
Where there was proof of only an agreement to murder the victim, and no separate agreement to inflict great bodily harm on the victim, defendant’s conviction for conspiracy to commit aggravated battery, 30-3-5A and C NMSA 1978, was reversed for insufficiency of the evidence. State v. Vallejos, 2000-NMCA-075, 129 N.M. 424, 9 P.3d 668, 2000 N.M. App. LEXIS 63 (N.M. Ct. App.), cert. denied, 129 N.M. 385, 9 P.3d 68, 2000 N.M. LEXIS 306 (N.M. 2000).
—Sufficient.
Failure to grant a motion for directed verdict in a trial in which defendant was convicted for the aggravated battery of a correctional officer did not entitle the inmate to any habeas corpus relief; the inmate was the only inmate that was outside of his cell at the time of the incident and the jury reasonably believed the officer’s testimony that he saw the inmate, that the officer was hit with a broom head, and that that blow knocked the officer out. Stallings v. Tansy, No. 93-2067, 1994 U.S. App. LEXIS 2065 (10th Cir. N.M. Feb. 2, 1994).
Evidence that defendant stabbed or slashed the victim with a knife constituted evidence upon which the jury could find that he committed aggravated battery under 30-3-5A NMSA 1978. State v. Fuentes, 1994-NMCA-158, 119 N.M. 104, 888 P.2d 986, 1994 N.M. App. LEXIS 149 (N.M. Ct. App. 1994), cert. denied, 889 P.2d 203, 1995 N.M. LEXIS 15 (N.M. 1995).
Docketing statement showed that the evidence was sufficient to support defendant’s convictions for aggravated battery, 30-3-5A NMSA 1978, false imprisonment, robbery, and the unlawful taking of a motor vehicle; defendant and his nephew knocked down a victim when he opened the door, beat and kicked the victims, threw them in a closet, tied one who left the closet to a bed, took the keys to the victims’ truck, and drove off with stolen money and jewelry that was recovered from the truck when defendant was apprehended. State v. Ibarra, 1993-NMCA-040, 116 N.M. 486, 864 P.2d 302, 1993 N.M. App. LEXIS 120 (N.M. Ct. App. 1993), cert. denied, 513 U.S. 1157, 115 S. Ct. 1116, 130 L. Ed. 2d 1080, 1995 U.S. LEXIS 1147 (U.S. 1995).
The corpus delicti of the crime of battery, which was the unlawful touching or application of force to the person of another with intent to injure that person or another, was sufficiently proved where the victim had unquestionably suffered a battery, she had told several people that defendant had beat her, and there was no evidence that anyone else had been the assailant. State v. Maestas, 92 N.M. 135, 584 P.2d 182, 1978 N.M. App. LEXIS 598 (N.M. Ct. App. 1978).
Defendant’s conviction for armed robbery and aggravated battery were upheld. The evidence showed that, in shooting the victim to get her purse, defendant committed aggravated battery and armed robbery. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, 1977 N.M. App. LEXIS 586 (N.M. Ct. App.), cert. denied, 90 N.M. 637, 567 P.2d 486, 1977 N.M. LEXIS 1193 (N.M. 1977).
In defendant’s trial for aggravated battery in violation of 40A-3-5, 1953 Comp. (now 30-3-5 NMSA 1978), where the state adduced evidence that defendant shot an individual in the leg during an altercation, the evidence was sufficient to support defendant’s conviction. State v. Santillanes, 1974-NMCA-092, 86 N.M. 627, 526 P.2d 424, 1974 N.M. App. LEXIS 705 (N.M. Ct. App. 1974).
Defendant was properly convicted of robbery while armed with a deadly weapon and aggravated battery, in violation of former 40A-16-2, 40A-3-5, 1953 Comp. (now 30-16-2, 30-3-5 NMSA 1978, respectively), where the evidence showed that defendant was wearing a nylon stocking mask that was involved in the crimes, a robbery of money actually occurred, and defendant was, at minimum, an aider and abettor. State v. Urban, 1974-NMCA-046, 86 N.M. 351, 524 P.2d 523, 1974 N.M. App. LEXIS 665 (N.M. Ct. App. 1974).
Substantial evidence supported defendant’s conviction for aggravated battery in violation of 40A-3-5 NMSA (30-3-5 NMSA 1978) because the victim’s testimony provided substantial evidence of intent to injure on the part of defendant. State v. Valles, 1972-NMCA-076, 84 N.M. 1, 498 P.2d 693, 1972 N.M. App. LEXIS 893 (N.M. Ct. App. 1972).
Defendant was properly convicted of aggravated battery in violation of former 40A-3-5A, C, 1953 Comp., where he had a pistol in his possession at the time of an altercation and intended to hit the victim on the head with it. State v. Jaramillo, 1971-NMCA-057, 82 N.M. 548, 484 P.2d 768, 1971 N.M. App. LEXIS 697 (N.M. Ct. App. 1971).
Evidence was sufficient to support defendant’s conviction for aggravated battery where there was evidence that a fight occurred inside a dance hall, that defendant’s son had the worst of this fight, that ten minutes later defendant, the father, approached a group of people standing outside the building where the dance was held and threatened to shoot, and that defendant shot the victims. The court determined that the foregoing constituted substantial evidence of defendant’s intent to commit the crime of aggravated battery and that defendant had an intent to injure. State v. Mora, 1970-NMCA-072, 81 N.M. 631, 471 P.2d 201, 1970 N.M. App. LEXIS 607 (N.M. Ct. App.), cert. denied, 81 N.M. 668, 472 P.2d 382, 1970 N.M. LEXIS 1527 (N.M. 1970).
Defendant was properly convicted of aggravated battery, under former 40A-3-5, 1953 Comp. (now 30-3-5 NMSA 1978) where he approached a group of people outside a dance hall and began to fire, ultimately injuring someone. State v. Mora, 1970-NMCA-072, 81 N.M. 631, 471 P.2d 201, 1970 N.M. App. LEXIS 607 (N.M. Ct. App.), cert. denied, 81 N.M. 668, 472 P.2d 382, 1970 N.M. LEXIS 1527 (N.M. 1970).
Evidence was sufficient to convict defendant of aggravated burglary and aggravated battery in violation of former 40A-16-4 NMSA 1953 (now 30-16-4 NMSA 1978) and 40A-3-5, 1953 Comp. (now 30-3-5 NMSA 1978), where the victim’s testimony supported a determinations that defendant, after an unauthorized entry, armed himself with a gun and committed a battery upon the victim, and that defendant committed the battery with the gun and with the intent to injure; corroboration of the victim’s testimony was not required. State v. Tafoya, 1969-NMCA-073, 80 N.M. 494, 458 P.2d 98, 1969 N.M. App. LEXIS 597 (N.M. Ct. App. 1969).
Included offenses.
There was no incongruity or injustice in the legislature’s decision to include misdemeanor aggravated battery, a violation of 30-3-5B, NMSA 1978 in the list of offenses that could lead to youthful offender treatment under 32A-2-3I NMSA 1978, even though all other offenses on the list were felonies. State v. Michael S., 1995-NMCA-112, 120 N.M. 617, 904 P.2d 595, 1995 N.M. App. LEXIS 110 (N.M. Ct. App.), cert. denied, 120 N.M. 533, 903 P.2d 844, 1995 N.M. LEXIS 363 (N.M. 1995).
Indictment.
An indictment was properly brought charging a sheriff’s department peace officer with aggravated battery with firearm enhancement for the unlawful touching or application of force with intent to injure by use of a firearm; it was immaterial that defendant was allegedly lawfully discharging his duties. State v. Mares, 1979-NMCA-049, 92 N.M. 687, 594 P.2d 347, 1979 N.M. App. LEXIS 814 (N.M. Ct. App.), cert. denied, 92 N.M. 675, 593 P.2d 1078, 1979 N.M. LEXIS 1383 (N.M. 1979).
Instructions.
In a case where defendant was convicted of, among other things, voluntary manslaughter and aggravated battery, the district court erred in refusing to instruct the jury regarding self-defense because defendant testified that the violence began when the victim attacked him with a machete, delivering a blow to his head that caused him to black out; he testified that when the victim pointed a gun at his face, he was afraid for his life and that he was defending himself when he injured the victim; several photographs showed a significant gash on defendant's forehead; and blood stains on the awning of the victim's doorway, determined to be defendant's blood, were consistent with defendant's testimony that he had been struck with the machete. State v. Lucero, 2015-NMCA-040, 346 P.3d 1175, 2014 N.M. App. LEXIS 120 (N.M. Ct. App. 2014).
Instructions.
Reasonable minds could differ regarding whether defendant’s actions during the scuffle with the victim constituted simple battery under 30-3-4 NMSA 1978, and defendant’s testimony provided evidence that he lacked the intent to injure the victim, a statutory element of aggravated battery pursuant to Subsection A of this section; 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).
Defendant’s conviction for felony aggravated assault was reversed because the trial court instructed the jury as to the essential elements of aggravated assault with intent to commit felony aggravated battery but failed to instruct on the elements of felony aggravated battery, which had the potential of misleading the jury to believe it could convict defendant on the aggravated assault if it convicted him on the misdemeanor aggravated battery and was a fundamental error. 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).
Difference between the elements of felony aggravated battery and misdemeanor aggravated battery, albeit slight, is a critical one and is an important factual issue for the jury to resolve. Felony aggravated battery, 30-3-5C NMSA 1978, requires a showing that the perpetrator inflicted great bodily harm on the victim or that the battery was done with a deadly weapon or is done in a manner in which great bodily harm or death can be inflicted, while misdemeanor aggravated battery, 30-3-5B NMSA 1978 only requires a showing that the perpetrator inflicted an injury that causes painful temporary disfigurement. 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).
Where defendant was convicted of aggravated battery with a deadly weapon, the conviction was reversed because of defects that were present in the jury instructions; because “unlawfulness” was an element of aggravated battery with a deadly weapon, pursuant to 30-3-5 NMSA 1978, and the jury instruction upon which defendant’s conviction was premised did not include a finding that defendant’s act was unlawful, the jury instruction for aggravated battery was erroneous and could not be cured by the presence of separate instructions for self-defense and defense of another. State v. Acosta, 1997-NMCA-035, 123 N.M. 273, 939 P.2d 1081, 1997 N.M. App. LEXIS 27 (N.M. Ct. App.), cert. quashed, 124 N.M. 312, 950 P.2d 285, 1997 N.M. LEXIS 454 (N.M. 1997).
Where a victim used deadly force to initiate an assault against one defendant, the district court committed error in refusing to instruct the jury on the issue of deadly force in self-defense in a prosecution for aggravated battery. State v. Chacon, 1979-NMCA-154, 93 N.M. 581, 603 P.2d 320, 1979 N.M. App. LEXIS 788 (N.M. Ct. App. 1979), cert. denied, 94 N.M. 629, 614 P.2d 546, 1980 N.M. LEXIS 2799 (N.M. 1980).
Where the defendant requested a jury instruction that would have required a finding of his intent to commit a battery, the instruction was properly refused where the crime charged, aggravated battery under former 40A-3-5C, 1953 Comp. (now 30-3-5 NMSA 1978), only required a finding of general intent. State v. Vasquez, 1971-NMCA-182, 83 N.M. 388, 492 P.2d 1005, 1971 N.M. App. LEXIS 827 (N.M. Ct. App. 1971).
Trial court’s instruction on “great bodily harm” accorded with former 40A-3-5 NMSA 1953 (now 30-3-5 NMSA 1978) because the instruction defined the material elements of the crime and the jury was told that one of the elements to be proved beyond a reasonable doubt was that defendant did inflict great bodily harm upon the victim and defendant’s blow to the victim’s eye constituted great bodily harm. 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).
Defendant’s conviction of aggravated battery was proper where jury instruction cautioning against making any presumption because defendant did not take the stand was not error and neither the court nor the prosecution commented on defendant’s silence. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350, 1966 N.M. LEXIS 2668 (N.M. 1966).
Intent.
—Generally.
Robbery, which requires specific intent to deprive the victim of his or her property, is a crime primarily directed toward protection of property interests while aggravated battery, on the other hand, requires specific intent to injure the victim, which is not present in robbery. State v. Fuentes, 1994-NMCA-158, 119 N.M. 104, 888 P.2d 986, 1994 N.M. App. LEXIS 149 (N.M. Ct. App. 1994), cert. denied, 889 P.2d 203, 1995 N.M. LEXIS 15 (N.M. 1995).
—Knowledge.
It was established by the evidence that the defendant’s actions were likely to result in great bodily harm or death to a victim, 30-3-5C NMSA 1978, because he was one of several people who were kicking and hitting the victim; although the defendant was required to have shared a principal’s intent to injure the victim, it was not required by 30-3-5A NMSA 1978 that he intend or foresee the stabbing that was the end result. State v. Dominguez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147, 1993 N.M. App. LEXIS 45 (N.M. Ct. App.), cert. denied, 115 N.M. 409, 852 P.2d 682, 1993 N.M. LEXIS 131 (N.M. 1993).
A defendant’s conviction of aggravated battery, in asserted violation of 40A-3-5 NMSA 1953 (now 30-3-5 NMSA 1978), was reversed and remanded for a new trial, where the evidence raised an issue as to whether there had been an intent to injure due to the defendant’s alleged intoxication. State v. Crespin, 1974-NMCA-104, 86 N.M. 689, 526 P.2d 1282, 1974 N.M. App. LEXIS 716 (N.M. Ct. App. 1974).
Defendant’s conviction for aggravated battery was upheld because the victim’s testimony provided substantial evidence of an intent to injure on the part of defendant. State v. Valles, 1972-NMCA-076, 84 N.M. 1, 498 P.2d 693, 1972 N.M. App. LEXIS 893 (N.M. Ct. App. 1972).
Former 40A-3-5C, 1953 Comp. (now 30-3-5 NMSA 1978) requires an intent to injure; thus, the trial court properly refused to instruct the jury on the effect of defendant’s drunkenness upon the issue of intent because defendant’s requested instruction referred to a specific intent to injure and would have been misleading to the jury if it had been given. State v. Vasquez, 1971-NMCA-182, 83 N.M. 388, 492 P.2d 1005, 1971 N.M. App. LEXIS 827 (N.M. Ct. App. 1971).
Jury trial.
Defendant was not entitled to a jury trial in district court after a trial by jury in magistrate court pursuant to U.S. Const. amends. VI because the jury had acquitted him of the greater offense of aggravated battery, a violation of 30-3-5A, B NMSA 1978, and convicted him only of the lesser included offense of battery, a petty misdemeanor; if the judge in a de novo hearing is not empowered to sentence anew or if he is prohibited from enhancing the earlier penalty, then a jury need not be afforded. State v. Haar, 1980-NMCA-065, 94 N.M. 539, 612 P.2d 1350, 1980 N.M. App. LEXIS 875 (N.M. Ct. App.), cert. denied, 449 U.S. 1063, 101 S. Ct. 787, 66 L. Ed. 2d 606, 1980 U.S. LEXIS 4375 (U.S. 1980).
Question of law or fact.
When the character of the instrument and the manner of its use are necessary to determine whether an item is a deadly weapon, a jury should make that determination. State v. Traeger, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518, 2001 N.M. LEXIS 257 (N.M. 2001).
Sentence.
—Generally.
Defendant’s repeated stabbing of the victim constituted circumstances surrounding the offense that warranted the enhancement of the defendant’s sentence upon his conviction of aggravated battery under 30-3-5A NMSA 1978. State v. Fuentes, 1994-NMCA-158, 119 N.M. 104, 888 P.2d 986, 1994 N.M. App. LEXIS 149 (N.M. Ct. App. 1994), cert. denied, 889 P.2d 203, 1995 N.M. LEXIS 15 (N.M. 1995).
Firearm enhancement statute, 31-18-16 NMSA 1978, did not permit deferral of the first year of the sentence for defendant’s first offense, aggravated battery with a deadly weapon, 30-3-5C NMSA 1978, which carried a basic sentence of three years imprisonment, 31-18-15A(3) NMSA 1978. State v. Gonzales, 1981-NMCA-023, 95 N.M. 636, 624 P.2d 1033, 1981 N.M. App. LEXIS 688 (N.M. Ct. App.), overruled, Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244, 1981 N.M. LEXIS 2392 (N.M. 1981).
Defendant was properly given an enhanced sentence as an habitual offender; the indictment and verdict in an aggravated battery case against the defendant showed that he was charged and convicted under 40A-3-5C, 1953 Comp. (now 30-3-5 NMSA 1978), as a third degree felony. State v. Segura, 1973-NMCA-006, 83 N.M. 432, 492 P.2d 1295, 1972 N.M. App. LEXIS 722 (N.M. Ct. App. 1972).
—Enhancement.
Sentence of a defendant who was convicted of aggravated battery under 30-3-5C NMSA 1978 for shooting her boyfriend was properly increased by a year pursuant to 31-18-15.1 NMSA 1978 because the court could properly have considered the fact that defendant deliberately shot her boyfriend after seeing him with another woman, waiting at his house for two hours, and confronting him about the woman, to be aggravating circumstances; the enhancement of defendant’s sentence based on those circumstances did not violate her due process rights, the separation of powers doctrine, or defendant’s rights against double jeopardy. State v. Wilson, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, 1982 N.M. App. LEXIS 815 (N.M. Ct. App.), cert. denied, 98 N.M. 50, 644 P.2d 1039, 1982 N.M. LEXIS 2964 (N.M. 1982).
Witnesses.
In defendant’s trial for aggravated battery in violation of 40A-3-5, 1953 Comp. (now 30-3-5 NMSA 1978), the trial court did not err in prohibiting defendant from questioning his victim about a pending civil suit wherein the victim sought to recover damages from defendant for assault, because defendant failed to make the substance of the evidence known to the trial court and the substance of the evidence was not apparent from the context of the colloquy between the trial court and defense counsel. State v. Santillanes, 1974-NMCA-092, 86 N.M. 627, 526 P.2d 424, 1974 N.M. App. LEXIS 705 (N.M. Ct. App. 1974).
Research References and Practice Aids
Cross references.
Aggravated indecent exposure, 30-9-14.3 NMSA 1978.
Definitions, 31-18-15.2 NMSA 1978.
Definitions, 31-26-3 NMSA 1978.
Definitions, 32A-2-3 NMSA 1978.
Eligibility for earned meritorious deductions, 33-2-34 NMSA 1978.
New Mexico Law Review.
Article: The Cultural Defense And The Problem Of Cultural Preemption: A Framework For Analysis, Nancy S. Kim, 27 N.M. L. Rev. 101 (1997).