A. Aggravated battery against a household member consists of the unlawful touching or application of force to the person of a household member with intent to injure that person or another.
B. Whoever commits aggravated battery against a household member by inflicting an injury to that person that is not likely to cause death or great bodily harm, but that 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 against a household member by inflicting great bodily harm or doing so with a deadly weapon or doing so in any manner whereby great bodily harm or death can be inflicted is guilty of a third degree felony.
D. Upon conviction pursuant to Subsection B of this section, an offender shall be required to participate in and complete a domestic violence offender treatment or intervention program approved by the children, youth and families department pursuant to rules promulgated by the department that define the criteria for such programs.
E. Notwithstanding any provision of law to the contrary, if a sentence imposed pursuant to the provisions of Subsection B of this section is suspended or deferred in whole or in part, the period of probation may extend beyond three hundred sixty-four days but may not exceed two years. If an offender violates a condition of probation, the court may impose any sentence that the court could originally have imposed and credit shall not be given for time served by the offender on probation; provided that the total period of incarceration shall not exceed three hundred sixty-four days and the combined period of incarceration and probation shall not exceed two years.
HISTORY:
Laws 1995, ch. 221, § 7; 2007, ch. 221, § 2; 2008, ch. 16, § 3.
Amendment Notes.
The 2007 amendment, effective July 1, 2007, added Subsections D and E.
The 2008 amendment, effective July 1, 2008, in Subsection D, inserted “or intervention”; and in the last sentence in Subsection E, substituted “shall not exceed” for “may not exceed”.
Notes to Decisions
Construction.
Defendant’s act of striking a household member’s window with sufficient force to propel the glass inward and against the household member, who was cut by the flying shard of glass, constituted the application of force to the household member within the meaning of 30-3-16A NMSA 1978. State v. Wynn, 2001-NMCA-020, 130 N.M. 381, 24 P.3d 816, 2001 N.M. App. LEXIS 15 (N.M. Ct. App. 2001).
Brick wall was a potentially deadly weapon for purposes of the statute prohibiting aggravated battery against a household member, 30-3-16C NMSA 1978; the purpose of aggravating the charge and enhancing the sentence for use of a weapon was to minimize injury to human beings no matter how the injury was inflicted and to discourage people from using objects to injure one another, and including a brick wall as potentially being a deadly weapon met those purposes. State v. Montano, 1999-NMCA-023, 126 N.M. 609, 973 P.2d 861, 1998 N.M. App. LEXIS 189 (N.M. Ct. App. 1998), cert. denied, 126 N.M. 533, 972 P.2d 352, 1999 N.M. LEXIS 25 (N.M. 1999), cert. denied, 127 N.M. 390, 981 P.2d 1208, 1999 N.M. LEXIS 72 (N.M. 1999).
Deadly weapon.
In a prosecution for aggravated battery against a household member with a deadly weapon in violation of 30-3-16 NMSA 1978, whether a brick wall was a deadly weapon was a factual question for the jury to decide; a brick wall was not precluded from the definition of “deadly weapon” under 30-1-12B NMSA 1978. State v. Montano, 1999-NMCA-023, 126 N.M. 609, 973 P.2d 861, 1998 N.M. App. LEXIS 189 (N.M. Ct. App. 1998), cert. denied, 126 N.M. 533, 972 P.2d 352, 1999 N.M. LEXIS 25 (N.M. 1999), cert. denied, 127 N.M. 390, 981 P.2d 1208, 1999 N.M. LEXIS 72 (N.M. 1999).
Evidence.
—Insufficient.
Pursuant to UJI 14-133, proof that defendant unreasonably disregarded the victim’s safety is insufficient to establish defendant’s specific intent to injure in order to convict him of aggravated battery of a household member, a violation of 30-3-16A NMSA 1978. State v. Wynn, 2001-NMCA-020, 130 N.M. 381, 24 P.3d 816, 2001 N.M. App. LEXIS 15 (N.M. Ct. App. 2001).
Instructions.
In a prosecution for aggravated battery against a household member with a deadly weapon in violation of 30-3-16 NMSA 1978, the trial court’s instruction, which failed to follow the provisions of UJI 14-322, was reversible error because it could have led the jury to conclude that rather than having within its province the decision of whether the brick wall was a deadly weapon, the trial court instructed that the brick wall was a deadly weapon. State v. Montano, 1999-NMCA-023, 126 N.M. 609, 973 P.2d 861, 1998 N.M. App. LEXIS 189 (N.M. Ct. App. 1998), cert. denied, 126 N.M. 533, 972 P.2d 352, 1999 N.M. LEXIS 25 (N.M. 1999), cert. denied, 127 N.M. 390, 981 P.2d 1208, 1999 N.M. LEXIS 72 (N.M. 1999).
Intent, knowledge.
Evidence was insufficient to convict defendant of aggravated battery on a household member, a violation of 30-3-16A NMSA 1978 because there was no direct testimony or sufficient circumstantial evidence supporting the trial court’s finding that defendant acted with the specific intent to harm the victim. State v. Wynn, 2001-NMCA-020, 130 N.M. 381, 24 P.3d 816, 2001 N.M. App. LEXIS 15 (N.M. Ct. App. 2001).
Sentence.
Defendant’s sentence was legal and appropriate where the trial court sentenced defendant to 364 days in the county detention center, suspended the sentence with the exception of 18 days to be served on defendant’s days off from work or on weekends, and ordered defendant to serve the remainder of his sentence on unsupervised probation. State v. Orquiz, 2003-NMCA-089, 134 N.M. 157, 74 P.3d 91, 2003 N.M. App. LEXIS 45 (N.M. Ct. App. 2003).
Research References and Practice Aids
Cross references.
Multiple convictions of battery or aggravated battery, 30-3-17 NMSA 1978.
Definitions, 31-26-3 NMSA 1978.
Definitions, 32A-2-3 NMSA 1978.
Eligibility for earned meritorious deductions, 33-2-34 NMSA 1978.