State v. Neatherlin, 25,729.

• Decision Date: 09 February 2007
• Docket Number: No. 25,729.,25,729.
• Citation: 2007 NMCA 035,154 P.3d 703
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Richard Don NEATHERLIN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

154 P.3d 703

2007 NMCA 035

STATE of New Mexico, Plaintiff-Appellee, v. Richard Don NEATHERLIN, Defendant-Appellant.

No. 25,729.

Court of Appeals of New Mexico.

February 9, 2007.

Gary K. King, Attorney General, Santa Fe, NM, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

CASTILLO, Judge.

{1} Defendant appeals his conviction for aggravated battery with a deadly weapon, a third-degree felony. In our review of this case, we are required to determine if the human mouth can be a deadly weapon, pursuant to NMSA 1978, § 30-1-12(B) (1963) (defining "deadly weapon"), and NMSA 1978, § 30-3-5(C) (1969) (explaining felony aggravated battery). We conclude that a jury could reasonably determine that the human mouth is a deadly weapon if the mouth is used in a manner that could cause death or great bodily harm. We hold that sufficient evidence existed to support the jury's determination in this case. We also conclude that the trial court erred when it refused to give a jury instruction for misdemeanor aggravated battery as a lesser included offense. Thus, we reverse and remand for a new trial in accordance with this opinion.

I. BACKGROUND

{2} Defendant and Victim were traveling in a vehicle with three other individuals, namely Defendant's wife, Victim's friend, and the driver of the vehicle. At some point, a fight occurred in the vehicle. Testimony at trial yielded widely varying accounts of the fight. Defendant admitted, however, that he bit Victim in the course of the altercation, but Defendant claimed that he did so only in self-defense. The driver of the vehicle testified that he heard Defendant say as he was biting Victim, "I hope you die[;] I hope you die."

{3} Victim was taken to the emergency room, where she was treated for injuries resulting from the fight in the vehicle. Among other injuries, Victim had two bite marks on her left arm — one bite on her upper arm and one on the forearm. In both bites, the skin was broken. Victim recovered from her injuries in about three weeks.

{4} The emergency room doctor offered Victim testing for hepatitis and HIV to determine her possible exposure from the bites inflicted by Defendant. Victim declined the testing at that time, and no evidence was presented indicating whether Victim was later tested. Defendant's blood was not tested by the State. During the course of the State's investigation, however, Defendant admitted that he had hepatitis C, and he said that as a result of the disease, he did not expect to live much longer. In addition, Defendant's wife later testified that Defendant had previously tested positive for hepatitis C and that he had hepatitis C when he bit Victim.

{5} At trial, the doctor provided the following testimony about the nature of hepatitis C. It is a viral illness transmitted primarily by blood through transfusions, needles, and mucosal contact with blood. The virus is also shed in saliva. Although it is not likely that the virus would be transmitted through a human bite, it is "certainly possible." There are several documented cases in which the only risk factor was exposure through bites. Two percent of those individuals who are exposed to hepatitis C, through saliva or blood, will test positive for the virus as a result. When the virus is transmitted, ninety-five percent of people will have no symptoms; however, twenty percent or more will develop cirrhosis and chronic liver disease, and one to three percent will go on to have liver cancer. Liver cancer caused by hepatitis C can, over a long period of time, result in death.

{6} Defense counsel requested a jury instruction on the lesser offense of misdemeanor aggravated battery. See § 30-3-5(B). The trial court denied the misdemeanor instruction; the jury was instructed only on aggravated battery with a deadly weapon. See § 30-3-5(C). The State reasoned that by biting Victim, Defendant used his mouth as a weapon to intentionally injure Victim and that Defendant's mouth could have caused death or great bodily harm because he had hepatitis C. The jury returned a verdict of guilty, and this appeal followed.

{7} Defendant makes two arguments. First, he argues that there was insufficient evidence to convict him of aggravated battery with a deadly weapon. Second, Defendant argues that the trial court erred by refusing to instruct the jury regarding the lesser offense of misdemeanor aggravated battery.

II. STANDARD OF REVIEW

{8} When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the State; we resolve all conflicts and indulge all permissible inferences in favor of the verdict. State v. Johnson, 2004-NMSC-029, ¶ 54, 136 N.M. 348, 98 P.3d 998. We must determine if substantial evidence exists to support a verdict of guilt beyond a reasonable doubt with respect to each element necessary for conviction. Id. In so doing, we do not reweigh the evidence or substitute our judgment for that of the jury. State v. Sosa, 2000-NMSC-036, ¶ 6, 129 N.M. 767, 14 P.3d 32. Sufficiency of the evidence to support a conviction and interpretation of a statute are both questions of law, which are reviewed de novo. State v. Traeger, 2001-NMSC-022, ¶ 9, 130 N.M. 618, 29 P.3d 518; State v. Anaya, 98 N.M. 211, 212, 647 P.2d 413, 414 (1982); State v. Shay, 2004-NMCA-077, ¶ 7, 136 N.M. 8, 94 P.3d 8. The issue of whether Defendant's mouth is a deadly weapon is "one of law, applying law to the facts and requiring statutory construction; our review is de novo." State v. Galaz, 2003-NMCA-076, ¶ 4, 133 N.M. 794, 70 P.3d 784.

{9} When reviewing the trial court's denial of a jury instruction, "[w]e view the evidence in the light most favorable to the giving of the requested instruction." State v. Hill, 2001-NMCA-094, ¶ 5, 131 N.M. 195, 34 P.3d 139. The question of proper denial of a jury instruction is a mixed question of law and fact, which we review de novo. State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438.

III. DISCUSSION

A. Sufficiency of the Evidence

{10} Defendant argues first that the State failed to meet its burden of proving, beyond a reasonable doubt, each element of the crime of aggravated battery with a deadly weapon. See § 30-3-5(C). Specifically, Defendant contends that the State failed to prove that Defendant used a "deadly weapon."

{11} The term "deadly weapon" is defined as

any firearm, whether loaded or unloaded; or any weapon which is capable of producing death or great bodily harm, including but not restricted to any types of daggers, brass knuckles, switchblade knives, bowie knives, poniards, butcher knives, dirk knives and all such weapons with which dangerous cuts can be given, or with which dangerous thrusts can be inflicted, including swordcanes, and any kind of sharp pointed canes, also slingshots, slung shots, bludgeons; or any other weapons with which dangerous wounds can be inflicted. Section 30-1-12(B). Instruments or objects that are specifically listed in Section 30-1-12(B) are considered deadly weapons per se, or as a matter of law. Traeger, 2001-NMSC-022, ¶ 10, 130 N.M. 618, 29 P.3d 518. If an instrument or object is not listed, the jury must determine whether the item is a deadly weapon. Id. ¶ 12. In making this determination, the jury must decide whether the object or instrument is a "weapon which is capable of producing death or great bodily harm" or a weapon "with which dangerous wounds can be inflicted." Section 30-1-12(B); UJI 14-322 NMRA; State v. Anderson, 2001-NMCA-027, ¶ 15, 130 N.M. 295, 24 P.3d 327. The jury considers the circumstances of the case, including the "character of the instrument and the manner of its use." Anderson, 2001-NMCA-027, ¶ 16, 130 N.M. 295, 24 P.3d 327 (internal quotation marks and citation omitted); see also Traeger, 2001-NMSC-022, ¶ 16, 130 N.M. 618, 29 P.3d 518 ("[T]he question of whether the item is a deadly weapon, given the defendant's use and the character of the item, should be submitted to the jury for a finding of fact.").

{12} The jury is specifically instructed that an instrument or object, used as a weapon by a defendant, can be a deadly weapon only if the jury finds that the instrument, "when used as a weapon, could cause death or great bodily harm." UJI 14-322; see also Traeger, 2001-NMSC-022, ¶ 16, 130 N.M. 618, 29 P.3d 518 ("[W]e require that a jury determine, given the defendant's use, if the baseball bat was capable of producing death or great bodily harm." (internal quotation marks and citation omitted)). Thus, in our case, in order to prove that Defendant committed aggravated battery with a deadly weapon, the State was required to show that Defendant's mouth, when used as a weapon, could cause death or great bodily harm. The requisite showing that an object was used as a deadly weapon is often made by the state "while establishing other elements of the crime like intent, motive, method, or the resulting injury." Traeger, 2001-NMSC-022, ¶ 16, 130 N.M. 618, 29 P.3d 518.

{13} Defendant argues that New Mexico courts have never considered the human mouth to be a deadly weapon; he asserts that in each relevant New Mexico case, the jury has considered an "external instrumentality, something with which a defendant arms himself." See id. ¶ 1 (baseball bat); State v. Conwell, 36 N.M. 253, 255, 13 P.2d 554, 555 (1932) (rock); Anderson, 2001-NMCA-027, ¶ 7, 130 N.M. 295, 24 P.3d 327 (stick); State v. Montaño, 1999-NMCA-023, ¶ 1, 126 N.M. 609, 973 P.2d 861 (brick wall); State v. Bonham, 1998-NMCA-178, ¶ 1, 126 N.M. 382, 970 P.2d 154 (trivet), abrogated on other grounds, Traeger, 2001-NMSC-022, ¶ 20, 130 N.M. 618, 29 P.3d 518; State v. Candelaria, 97 N.M. 64, 65, 636 P.2d 883, 884 (Ct.App.1981) (screwdriver); State v. Gonzales, 85 N.M. 780, 781, 517 P.2d 1306, 1307 (Ct.App.1973) (tire tool). Thus, Defendant contends that our...