State v. Armijo

• Decision Date: 15 June 1999
• Docket Number: No. 19341.,19341.
• Citation: 985 P.2d 764,127 N.M. 594
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Simon ARMIJO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

985 P.2d 764

127 N.M. 594

STATE of New Mexico, Plaintiff-Appellee, v.Simon ARMIJO, Defendant-Appellant.

No. 19341.

Court of Appeals of New Mexico.

June 15, 1999.

Patricia A. Madrid, Attorney General, Santa Fe, Steven S. Suttle, Assistant Attorney General, Albuquerque, for Appellee.

Don Klein, Jr., Socorro, for Appellant.

OPINION

WECHSLER, J.

{1}DefendantSimon Armijo appeals his convictions of aggravated assault, a fourth-degree felony, contrary to NMSA 1978, § 30-3-2(C)(1963), and aggravated battery, a misdemeanor, contrary to NMSA 1978, § 30-3-5(B)(1969).We consolidate Defendant's issues on appeal as follows: (1) whether the district court erred by improperly instructing the jury on the elements of felony aggravated assault; (2) whether Defendant is entitled to be discharged from the aggravated assault charge; and (3) whether the district court committed fundamental error by failing to instruct the jury that the alleged acts of aggravated assault and aggravated battery must be unlawful.We reverse Defendant's conviction for aggravated assault because the jury instructions were faulty and remand for retrial.We affirm Defendant's conviction for aggravated battery.

Facts

{2}Defendant and friends gathered the evening of September 20, 1996 at the Golden Spur Bar in Magdalena, New Mexico.Symantha Montoya was the bartender.At some point during the evening, Montoya advised Defendant that arm wrestling was not allowed in the bar.Thereafter, Defendant argued with another person, and Montoya defused the disturbance and ordered Defendant to leave the bar.Montoya pointed her finger at Defendant as if to poke him and, according to some witnesses, actually poked or hit Defendant in the chest.Defendant grabbed Montoya by the neck with his hands and lifted her from the floor.Another patron knocked Defendant down, freeing Montoya.Montoya testified that Defendant acted very angry, that she felt as if her throat was being crushed, and that she believed Defendant was going to kill her.

Jury Instructions on Felony Aggravated Assault

{3} The criminal information charged Defendant with the fourth-degree felony of aggravated assault asserting that he unlawfully assaulted or struck at Montoya willfully and intentionally with the intent to commit a felony contrary to Section 30-3-2(C).The district court instructed the jury as to the essential elements of this charge based on UJI 14-309 NMRA 1997 as follows:

For you to find the defendant guilty of aggravated assault with intent to commit felony aggravated battery as charged in Count I of the Criminal Information, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1.The defendant picked Symantha Montoya up off the ground with both hands by her neck;

2.This caused Symantha Montoya to believe she was about to be choked and her throat crushed by the defendant;

3.A reasonable person in the same circumstances as Symantha Montoya would have had the same belief;

4.The defendant intended to commit the crime of felony aggravated battery;

5.This happened in New Mexico on or about the 20th day of September 1996.

UJI 14-309 Use Note 1 requires the district court to immediately follow this instruction with the essential elements of the felony which the State alleges Defendant intended to commit.In the next instruction, the district court guided the jury concerning the essential elements of the misdemeanor aggravated battery charge of the criminal information, not the elements of a felony.Defendant contends that the district court committed fundamental error by failing to comply with UJI 14-309 Use Note 1.The State concedes the point in its answer brief.

{4}"Although we are not bound by the State's concession," after reviewing the jury instructions given and the UJI, we agree.State v. Foster,1999-NMSC-007, ¶ 25, 126 N.M. 646, 974 P.2d 140.The district court instructed the jury on the elements of aggravated assault with intent to commit felony aggravated battery, but failed to instruct the jury on the essential elements of felony aggravated battery.Rather, it next instructed the jury on the essential elements of misdemeanor aggravated battery.The order of the instructions has 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.The district court did not inform the jury of the essential elements of the felony that increased the assault charge to that of felony aggravated assault.

{5} Because it followed the elements instruction of felony aggravated assault, the instruction on misdemeanor aggravated battery exacerbates rather than resolves the problem of the omission of the instruction on the elements of felony aggravated battery.The difference between the elements of felony aggravated battery and misdemeanor aggravated battery, albeit slight, is a critical one.Felony aggravated battery 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 which great bodily harm or death can be inflicted.SeeSection 30-3-5(C);UJI 14-322 NMRA 1999;UJI 14-323 NMRA 1999.On the other hand, misdemeanor aggravated battery only requires a showing that the perpetrator inflicted an injury that causes painful temporary disfigurement.SeeSection 30-3-5(B);UJI 14-321 NMRA 1999.This distinction is an important factual issue for the jury to resolve.

{6} The omission of the instruction on felony aggravated battery raises serious questions as to whether the jury was aware of the distinction and considered the facts of the case in light of this distinction.The failure to instruct on the elements of felony aggravated battery was fundamental error.SeeState v. Parish,118 N.M. 39, 42, 878 P.2d 988, 991(1994)("Reversible error arises if... a reasonable juror would have been confused or misdirected.").As a consequence, we reverse Defendant's conviction of felony aggravated assault.

Discharge Not Applicable

{7}Defendant asks this Court to preclude further proceedings in district court relating to felony aggravated assault.He argues that the error in the jury instructions concerning this charge entitles him to a discharge for the offense.As we understand Defendant's argument, because the jury instructions did not make reference to any independent felony which would have been part of Defendant's intent and referred instead to misdemeanor aggravated battery, the erroneous jury instructions became the law of the case as to the elements required for conviction.Under Defendant's argument, jeopardy would attach and the State could not retry Defendant with felony aggravated assault because it would be barred from retrial because it failed to prove its case.We disagree.{8} While it is true that jury instructions become "the law of the case and, absent proof conforming to the instructions, the state could not prevail,"State v. Landers,115 N.M. 514, 516, 853 P.2d 1270, 1272(Ct.App.1992), errors in jury instructions do not bar retrial, seeParish,118 N.M. at 47,878 P.2d at 996(case remanded for new trial due to confusing jury instruction);State v. Peterson,1998-NMCA-049, ¶ 11, 125 N.M. 55, 956 P.2d 854.Therefore, the State can retry Defendant on the aggravated assault charge.

{9}Defendant further contends that expert medical evidence concerning the nature of Montoya's injuries was required as to the charge of felony aggravated assault.According to Defendant, because the State did not present such evidence, Defendant must be discharged with regard to that charge for failure of proof.However, Defendant does not state any basis for his proposition that medical evidence was necessary.

{10} In State v. Chavez,82 N.M. 569, 572, 484 P.2d 1279, 1282(Ct.App.1971), relied upon by Defendant, this Court held that medical evidence was needed to support an aggravated battery charge in order to establish a causal connection between an infection and subsequent loss of the victim's eye and the defendant's action of hitting the eye to support the charge that the victim suffered great bodily harm.State v. Hollowell,80 N.M. 756, 759-60, 461 P.2d 238, 241-42(Ct.App.1969), also cited by Defendant, similarly addresses the causal connection of great bodily harm.In the case on appeal, there is no issue of causation.Therefore, there was no need for the State to present expert testimony.Thus, even if this theory of discharge were correct, an issue which we do not address, discharge would not be proper.

Alleged Fundamental Error in Jury Instructions

{11}Defendant argues that the jury instructions were fundamentally flawed because they failed to include an essential element of the aggravated assault and aggravated battery crimes.Defendant claimed that he acted in self defense.The district court instructed the jury on self defense in accordance with UJI 14-5181 NMRA 1999.However, Use Note 1 to UJI 14-5181 prescribes that if the self-defense instruction is given, the court should "add to the essential elements instruction for the offense charged, `The defendant did not act in self defense.'"See alsoParish,118 N.M. at 42-43, 878 P.2d at 991-92.The district court failed to add the Use Note language to the essential elements instructions for both aggravated assault and aggravated battery.Defendant argues that, as a result, his convictions should be reversed because the jury instructions constituted fundamental error.Because we reverse the aggravated assault conviction on other grounds, we discuss this issue only with regard to the aggravated battery charge.

{12}Defendant is correct that when the court instructs the jury on self defense, an issue is also created concerning the unlawfulness of the offense.Seeid. at 43-44, 878 P.2d at 992-93;State v. Johnson,1996-NMSC-075, ¶ 20, 122 N.M. 696, 930 P.2d 1148;State...