State v. Ocon, 493 P.3d 448

Background

On August 2, 2016 a 911 call with Spanish-language statements prompted Eunice PD to investigate a possible domestic-violence incident at Victim’s home; Defendant (Victim’s estranged husband) was at the scene.
Officers knocked, Defendant opened the door and retreated toward the kitchen; Officer Gutierrez ordered him to the ground and then shot Defendant twice in the chest. Defendant survived.
Officer Gutierrez testified Defendant armed himself with a six-inch fillet knife and made stabbing/thrusting motions; Defendant maintained he was holding a cell phone. Lapel-camera footage was blurred but showed both a knife and a phone on the kitchen floor after the shooting.
The State charged Defendant with aggravated assault on a peace officer (deadly weapon), resisting/evading/obstructing an officer (resisting or abusing a peace officer subsection), and assault/battery against a household member (with various related counts). The jury convicted on aggravated assault on a peace officer, resisting/abusing a peace officer, and battery against a household member (acquitting on some charged violent-felony counts).
On appeal Defendant argued (1) the aggravated-assault instruction omitted essential elements and evidence was insufficient, (2) the resisting conviction resulted from an instruction error and raised double-jeopardy concerns, and (3) the district court erred by admitting hearsay from a 911 call for the battery charge.
The Court of Appeals affirmed the aggravated-assault and battery convictions but reversed the resisting/abusing conviction and remanded that count for retrial.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Ocon)	Held
Whether the aggravated-assault-on-a-peace-officer jury instruction omitted essential elements (deadly-weapon and unlawfulness) and whether that omission was fundamental error	Instruction omission was not reversible because the jury’s findings and the record demonstrate the omitted elements would have been found	Ocon: omission of deadly-weapon and unlawfulness elements deprived him of due process and requires reversal	Court: instruction omitted elements but error was not fundamental; conviction affirmed
Whether the evidence sufficed to support aggravated-assault conviction given inconclusive lapel video and competing accounts (knife vs. phone)	Evidence (officer testimony, photo, lapel footage showing knife after shooting, chief’s testimony) supports a rational jury verdict that Defendant used a knife and threatened the officer	Ocon: footage inconclusive; state failed to prove he wielded a knife beyond a reasonable doubt	Court: viewing evidence in State’s favor, sufficient evidence supported the guilty verdict; conviction affirmed
Whether the resisting/evading/obstructing conviction resulted from fundamental error because the jury was instructed on an uncharged alternative of the statute (and whether double jeopardy attaches)	State conceded fundamental error: jury convicted on a crime not charged because instruction used the wrong statutory subsection	Ocon: conviction should be reversed; also argues double jeopardy from being convicted of two officer-related offenses	Court: agreed with concession — jury was instructed on an uncharged alternative; conviction reversed and remanded for retrial on that charge; did not resolve double-jeopardy claim due to reversal
Whether admission of officer testimony recounting a 911 dispatcher’s statement ("You’re here to kill me; why are you here to kill me?") required reversal of battery against a household member	State: any error was harmless because the testimony was cumulative, not emphasized, and substantial evidence of battery came from Victim and Defendant’s admissions	Ocon: testimony was hearsay and its admission requires a new trial on battery charge	Court: admission, if erroneous, was harmless beyond a reasonable probability of affecting the verdict; conviction affirmed

Key Cases Cited

State v. Orosco, 833 P.2d 1146 (N.M. 1992) (omitted element may not require reversal where jury implicitly found the element)
State v. Barber, 92 P.3d 633 (N.M. 2004) (framework for fundamental-error review of jury instructions)
State v. Stevens, 323 P.3d 901 (N.M. 2014) (omitted-element may be harmless where record leaves no doubt jury would have found it)
State v. Samora, 387 P.3d 230 (N.M. 2016) (omitted-element reversal required if no way to know jury found element beyond reasonable doubt)
State v. Nick R., 218 P.3d 868 (N.M. 2009) (unlisted knife requires jury finding that object was used as a weapon and capable of causing death or great bodily harm)
State v. Jimenez, 392 P.3d 668 (N.M. Ct. App. 2017) (statute’s subsections are distinct alternatives; State limited to proving the charged subsection)
State v. Grubb, 455 P.3d 877 (N.M. Ct. App. 2020) (conviction for uncharged crime is due-process/fundamental error)