State v. Ortega

• Decision Date: 14 January 1992
• Docket Number: No. 12952,12952
• Citation: 827 P.2d 152,113 N.M. 437,1992 NMCA 3
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert S. ORTEGA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 152

827 P.2d 152

113 N.M. 437

STATE of New Mexico, Plaintiff-Appellee, v. Robert S. ORTEGA, Defendant-Appellant.

No. 12952.

Court of Appeals of New Mexico.

Jan. 14, 1992.

[113 N.M. 438] Tom Udall, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

C. Barry Crutchfield, Templeman and Crutchfield, Lovington, for defendant-appellant.

OPINION

BIVINS, Judge.

Convicted of battery upon a peace officer contrary to NMSA 1978, Section 30-22-24 (Repl.Pamp.1984), Defendant appeals. He raises two issues. First, Defendant claims that since the uncontradicted evidence shows that he never touched the person of the peace officer--only grabbed or knocked a flashlight out of the officer's hand--substantial evidence does not support a conviction of battery upon a peace officer. Second, and closely related to the first issue, Defendant claims that the trial court erred in giving a jury instruction defining the crime of battery upon a peace officer to include knocking or taking of a flashlight from the hand of the officer. We answer these contentions as follows: First, there was direct evidence from the officer that blows were exchanged between Defendant and the officer which, if believed, would support direct touching or application of force to the person of the peace officer. Second, even if the jury did not believe that there was direct touching or application of force by the exchange of blows, nevertheless, the grabbing or knocking of the flashlight from the hand of the officer, which Defendant admits he did, suffices as intentional touching or application of force to the person of the peace officer. The instruction correctly described the crime. Therefore, we affirm Defendant's conviction.

On October 12, 1989, at approximately 8:30 p.m., Officer Greg Adams of the Hobbs Police Department, accompanied by rookie Officer Mark Hargrove, responded to a call of a disturbance at the Greystoke Lounge. As the two officers arrived at the lounge, they noticed a silver 1982 Firebird stopped at a light adjacent to the lounge, headed in the opposite direction from which the officers were travelling. An individual in the parking area of the lounge pointed at the Firebird. The officers turned their unit around and stopped the car for what Officer Adams described as an investigative stop.

Noticing that the driver of the vehicle appeared to be intoxicated, Officer Adams took the driver, later identified as Mark Alvarado, to a flat concrete slab for a field sobriety test. At that time, Officer Hargrove was talking to the other two occupants of the vehicle, one of whom was Defendant. Officer Adams overheard Defendant shouting obscenities at Officer Hargrove and went over to assist, since Officer Hargrove was inexperienced.

As he approached, Officer Adams told Defendant to calm down and that if he did not cease shouting obscenities, he would be arrested for disorderly conduct. Officer Adams had a flashlight in his hand. Officer Adams testified that Defendant grabbed the flashlight, pulled it out of his hand and tried to hit the officer with his right fist. The officer said that he was able to knock the flashlight out of Defendant's hand. "At that point several blows between Mr. Ortega and myself were exchanged and then I was jumped by the other two occupants of the vehicle." Officer Adams described the blows as "hitting each other with our fists."

On cross-examination, defense counsel questioned Officer Adams concerning previous testimony that he had given a year earlier at the preliminary hearing. When questioned as to whether he testified that Ortega struck him, the officer said he did not recall his earlier testimony but reiterated, "I believe he did, yes sir." Defense counsel was then able to obtain a concession from Officer Adams that he, at the time of trial, was making an assumption that blows were exchanged with Defendant. "That's the way I had it written in my report," he testified, referring to a police report filed shortly after the incident.

The officer also conceded that it was possible that when Defendant grabbed the flashlight, it was one or both of the Alvarado brothers who jumped him. When pressed as to whether the officer could remember, as of the time of trial, whether Defendant actually did more than grab the flashlight, the officer agreed he could not.

On redirect examination, the prosecutor attempted to rehabilitate the officer's prior direct testimony regarding the exchange of blows. In response to questions, Officer Adams said that he did make a report, that it was accurate at the time it was made, and that he presently did not remember all the details of the occurrence. When the prosecutor inquired again if blows were exchanged, an objection was lodged and a bench conference held. The bench conference is not audible but the prosecutor then proceeded with his questions, at which time the officer answered that, according to his report, blows were exchanged between himself and Defendant. The judge admonished the jury to disregard the answer. Officer Adams then said he and Defendant may have fought but that he was not sure when he was testifying.

SCRA 1986, 11-803(E) permits the reading into evidence of a memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection, when it is shown that the record was made or adopted by the witness when the matter was fresh in his memory. While it may have been an error to refuse to allow the officer to read what was in his report, nevertheless, the trial court's admonition to the jury did not affect the officer's prior direct testimony regarding the exchange of blows. That evidence came in without objection. If the jury believed that testimony, then Defendant's argument on appeal fails because there was direct evidence of intentional touching or application of force to the person of Officer Adams. Even if the jury did not believe that blows were exchanged, it would nevertheless have been justified in convicting based upon Defendant's own admission that he grabbed or knocked the flashlight out of the hand of the officer.

Section 30-22-24(A) states: "Battery upon a peace officer is the unlawful, intentional touching or application of force to the person of a peace officer while he is in the lawful discharge of his duties, when done in a rude, insolent or angry manner." Defendant contends that the knocking of the flashlight from the officer's hand did not constitute a battery under Section 30-22-24(A) because there was never any actual contact between Defendant and Officer Adams. Further, Defendant argues that the statute should be construed to require a direct touching or application of force to Officer Adams' person.

New Mexico law provides ample guidance to this court in construing a statute.

The cardinal rule of statutory construction is that there is no need to construe an unambiguous statute. Instead, the reviewing court will give a literal meaning to such a statute to give effect to its plain meaning. However, a court will not give a statute a literal reading when to do so leads to absurd or unreasonable results * * *.

State v. Wyrostek, 108 N.M. 140, 142, 767 P.2d 379, 381 (Ct.App.1988) (citations omitted) cert. denied, 108 N.M. 115, 767 P.2d 354 (1989). Defendant's reading of Section 30-22-24(A) would permit a person to actually touch or apply force to something closely associated to the person of a peace officer without violating the statute. We do not read the statute so narrowly.

Although the issue Defendant raises is one of first impression in New Mexico, commentaries and...