State v. Nozie, 30,620.

Citation2009 NMSC 018,207 P.3d 1119
Decision Date22 April 2009
Docket NumberNo. 30,620.,30,620.
PartiesSTATE of New Mexico, Plaintiff-Petitioner, v. Stephen NOZIE, Defendant-Respondent.
CourtSupreme Court of New Mexico

Gary K. King, Attorney General, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Plaintiff.

Hugh W. Dangler, Chief Public Defender, Navin H. Jayaram, Assistant Appellate Defender, Santa Fe, NM, for Defendant.

OPINION

MAES, Justice.

{1} In this appeal, we address whether knowledge of the victim's identity as a peace officer is an essential element of the crime of aggravated battery upon a peace officer, which the State bears the burden to prove beyond a reasonable doubt. Following a jury trial, Stephen Nozie (Defendant) was convicted of aggravated battery upon a peace officer, contrary to NMSA 1978, Section 30-22-25(B) (1971), criminal damage to property, contrary to NMSA 1978, Section 30-15-1 (1963), and battery in violation of NMSA 1978, Section 30-3-4 (1963). On appeal, Defendant challenged only his conviction of aggravated battery upon a peace officer, claiming, in relevant part, that the trial court improperly denied his request to issue jury instructions regarding mistake of fact as to the victim's identity as a peace officer, UJI 14-2216 NMRA, and battery, UJI 14-320 NMRA, as a lesser-included offense of aggravated battery upon a peace officer. State v. Nozie, 2007-NMCA-131, ¶¶ 1, 12, 142 N.M. 626, 168 P.3d 756. The Court of Appeals determined that, pursuant to Reese v. State, 106 N.M. 498, 745 P.2d 1146, on reh'g, 106 N.M. 505, 745 P.2d 1153 (1987), Defendant was entitled to a jury instruction in accordance with UJI 14-2216 because a question of fact existed with respect to whether Defendant knew the victim was a peace officer. Nozie, 2007-NMCA-131, ¶¶ 6, 10, 142 N.M. 626, 168 P.3d 756. Likewise, the Court concluded that Defendant was entitled to a jury instruction on battery as a lesser-included offense of aggravated battery upon a peace officer. Id. ¶ 12. We affirm based on our clarification of the legal principles announced in Reese.

I. FACTS AND PROCEDURAL HISTORY

{2} The jury reasonably could have found the following facts. Defendant and his wife, Philipita, had been drinking heavily throughout the day and early evening of March 18, 2003. At approximately 8:15 p.m., they drove to the Safeway grocery store located in Gallup where they picked up Philipita's sister, Oleta Kinsel. Defendant, Philipita, and Kinsel went to a bar located in town, but were forced to leave after only fifteen minutes because Defendant and Philipita were arguing. As Kinsel was driving home, Defendant and Philipita continued to argue. Their argument turned violent, and Defendant struck Philipita in the head with a bottle of alcohol. Kinsel pulled into a nearby parking lot, and Philipita ran out of the car to summon emergency assistance. When Philipita returned to the parking lot, she and Defendant continued to fight, both physically and verbally. Philipita managed to escape from Defendant and locked herself in the car with Kinsel. Undeterred, Defendant broke the rear window of Kinsel's car and crawled inside.

{3} At this point, Kinsel decided to drive back to Safeway because she knew that it had a security guard on duty. Upon arriving at Safeway, Kinsel went inside to summon the security guard while Defendant and Philipita continued to fight outside in the parking lot. The security guard, Eric Leora, who was wearing black pants and a gray shirt, with a badge and patches identifying him as a private security guard, went outside to the parking lot to investigate. Loera attempted to calm Defendant, who was chasing Philipita around the parking lot, and informed Defendant that the police were on their way. Defendant began to walk away, but then suddenly turned around, grabbed Leora's shirt, and attempted to throw him to the ground. A struggle ensued, during which Leora subdued Defendant by pulling him to the ground and striking him three or four times. While Defendant was on the ground, Kinsel and Philipita kicked him repeatedly until Leora forced them to stop. Afterward, Defendant got up and walked toward a vacant parking lot across the street.

{4} At this point, the victim, Lieutenant Craig Meo of the Gallup Police Department, arrived at the Safeway parking lot. The lieutenant was wearing a police uniform, which consisted of black pants and a black jacket with insignia on the shoulders identifying him as a police officer. The lieutenant spoke briefly to Leora, who pointed out Defendant's location.

{5} Lieutenant Meo drove across the street to the vacant parking lot and parked his vehicle by the side of the road. He did not activate his police siren or emergency lights because he did not want to startle Defendant, or cause him to flee. The lieutenant exited his vehicle, turned off his two-way radio, and followed Defendant on foot. When the lieutenant and Defendant were approximately ten to fifteen feet apart, Defendant suddenly turned around and faced the lieutenant with clenched fists. Upon seeing the lieutenant, however, Defendant visibly relaxed. The lieutenant gestured to Defendant to follow him back to the parking lot, and Defendant complied.

{6} While walking side-by-side back to the parking lot, Defendant suddenly struck Lieutenant Meo in the left eye, causing a laceration that bled profusely. As the lieutenant was trying to wipe the blood out of his eyes to clear his vision, Defendant struck him a second time. The lieutenant attempted to defend himself by hitting Defendant in the head with a flashlight. He landed the blow, but lost his footing, falling to the ground. Defendant fell on top of the lieutenant and proceeded to head-butt him three times in quick succession, causing severe physical injuries, including a nasal fracture and broken teeth. Unable to defend himself and fearing for his life, the lieutenant drew his service weapon and shot Defendant in the chest.

{7} At no point during his interaction with Defendant did Lieutenant Meo verbally identify himself as a police officer. Instead, he relied on his uniform to provide Defendant with visual confirmation of his identity as a police officer, as was his practice and custom.

{8} Defendant subsequently was transported to the hospital where his gunshot wound was treated, and a blood alcohol content test was administered at 10:57 p.m. Defendant's blood alcohol content was .289, which an expert witness described as "black out" level. Additionally, a blood test revealed that Defendant was hyperglycemic, meaning that he had an excess amount of sugar in his blood, which can cause wooziness, blurred vision, and an inability to concentrate.

{9} Defendant was charged in an amended four-count information with (1) aggravated battery upon a peace officer, Lieutenant Meo, contrary to Section 30-22-25(B); (2) aggravated battery upon a household member, Philipita, contrary to NMSA 1978, Section 30-3-16(A), (C) (1995, prior to amendments through 2008); (3) criminal damage to property, the rear window of Kinsel's car, contrary to Section 30-15-1; and (4) battery of Leora, contrary to Section 30-3-4. Prior to trial, the State filed a nolle prosequi with respect to Count Two of the information, aggravated battery of a household member, citing "[u]navailability of witness" as the grounds therefor.

{10} At the close of evidence, both parties submitted their requests for jury instructions. Defendant asked the trial court to instruct the jury in accordance with UJI 14-2216 and submitted the following instruction:

Evidence has been presented that the Defendant did not know that Craig Meo, Sr. was a Peace Officer.

The burden is on the State to prove beyond a reasonable doubt that the Defendant knew that Craig Meo, Sr. was a Peace Officer. If you have reasonable doubt as to whether the Defendant knew that Craig Meo, Sr. was a Peace Officer, you must find the Defendant not guilty of the crime of Aggravated Battery Upon a Peace Officer.

The State objected, arguing that no affirmative evidence had been presented to establish that Defendant did not know that Lieutenant Meo was a peace officer. The trial court agreed, noting that none of the witnesses had testified with respect to Defendant's alleged lack of knowledge. Accordingly, the trial court refused to issue the requested instruction.

{11} Defendant also asked the trial court to instruct the jury on the essential elements of battery in accordance with UJI 14-320, claiming that, under the circumstances of the present case, battery is a lesser-included offense of aggravated battery upon a peace officer. The State objected, arguing that battery is not a lesser-included offense of aggravated battery upon a peace officer. The trial court agreed and refused to issue the requested instruction.

{12} The jury found Defendant guilty of the crimes charged, and the trial court rendered judgment consistent with the jury's verdict. Additionally, the trial court found Defendant guilty of being a habitual offender, contrary to NMSA 1978, Section 31-18-17(B) (2002, as amended), and enhanced Defendant's sentence accordingly.

{13} Defendant appealed from the judgment of the trial court to the Court of Appeals, claiming, in relevant part, that the trial court improperly declined to issue the requested jury instructions. The Court concluded that substantial evidence existed to support Defendant's claim that he had no knowledge of Lieutenant Meo's identity as a peace officer and, therefore, pursuant to Reese, Defendant was entitled to the issuance of UJI 14-2216. Nozie, 2007-NMCA-131, ¶ 6, 142 N.M. 626, 168 P.3d 756. The Court also concluded that Defendant was entitled to an instruction on battery, UJI 14-320, as a lesser-included offense of aggravated battery upon a peace officer because "[i]f the jury found both that Defendant was mistaken as to the victim's status as a peace officer and that Defendant was unable to form the specific...

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