State v. NozieState v. Nozie
ALARID, Judge.
{1} Defendant-Appellant, Stephen Nozie, appeals his conviction for aggravated battery on a peace officer. We are persuaded by Defendant‘s arguments that the district court erred in denying Defendant‘s requested jury instructions on mistake and the lesser-included offense of battery and that the denial of these instructions was not harmless error. Accordingly, we reverse Defendant‘s conviction for aggravated battery on a peace officer and remand for a new trial.
DISCUSSION
Instruction on Mistake
{2} In Rutledge v. Fort, 104 N.M. 7, 715 P.2d 455 (1986), a proceeding on a petition for a writ of superintending control brought by the prosecutor, the Supreme Court construed the statutes defining the offenses of aggravated assault upon a peace officer and battery upon a peace officer. The Supreme Court addressed the question of whether these statutes require the State to prove that the defendant knew that the victim was a peace officer. A three-justice majority of the Supreme Court concluded that proof of the defendant‘s knowledge of the victim‘s status as a peace officer is not required to obtain a conviction for aggravated assault upon a peace officer or battery upon a peace officer, reasoning that imposing a knowledge requirement would be equivalent to adding an additional element to the offenses as defined by the Legislature. Id. at 9, 715 P.2d at 457. Justices Walters and Sosa dissented. Id. at 10, 715 P.2d at 458. Thereafter, the defendant was convicted of aggravated assault upon a peace officer under jury instructions that imposed strict liability on the defendant
{3} Subsequent to Reese, the Supreme Court promulgated a uniform jury instruction that addresses the defendant‘s ignorance or mistake as to the victim‘s status as a peace officer.
{4} The State argues that
{5} In the present case, Defendant tendered an instruction conforming to
{6} “`As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.‘” State v. Gaines, 2001-NMSC-036, ¶ 6, 131 N.M. 347, 36 P.3d 438 (quoting Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)). “A defendant is entitled to have the jury instructed on his theories of the case if that [sic] theory is supported by the evidence.” State v. Bunce, 116 N.M. 284, 287, 861 P.2d 965, 968 (1993). We are satisfied that the record contains substantial evidence supporting an instruction on Defendant‘s ignorance or mistake as to the victim‘s status as a peace officer.
{7} The jury was presented with evidence of the following circumstances: Defendant and his wife, Philipita, had been drinking throughout the day and early evening. They were joined by Philipita‘s sister, Oleta, who was driving her car. Oleta drove Defendant and Philipita to a supermarket. Defendant and Philipita got out of the car and began fighting. A male security guard intervened. The guard was wearing a uniform with black slacks and a gray shirt with a badge and patches identifying him as a security guard. Defendant grabbed the guard‘s shirt. In the ensuing struggle, the guard struck Defendant in the head and face three to five times with his fist. While Defendant was lying on the ground, Philipita and Oleta kicked Defendant in the head until the guard stopped them. Defendant got up and wandered into a vacant lot located across the street from the supermarket. Defendant‘s BAC was close to a black-out level. Defendant also had elevated blood sugar, a condition that can cause blurred vision.
{8} The victim, Lt. Craig Meo of the Gallup Police Department, arrived in response to a report of a domestic disturbance. Lt. Meo was wearing a uniform with black pants and a black jacket with insignia on the shoulders. Lt. Meo parked his car in front of the lot without engaging his emergency lights. Lt. Meo got out of the car and followed Defendant into the vacant lot. It was approximately 10:00 p.m. on a March evening, and the light in the lot came from lights at an adjacent car dealership. Lt. Meo turned off his belt radio and jogged toward Defendant. Lt. Meo did not identify himself as a police officer due to his concern that Defendant would flee if Defendant realized that a police officer was approaching. When Lt. Meo caught up with Defendant, the two men were about ten to fifteen feet apart. Lt. Meo made a come here gesture with his hand. Defendant walked toward Lt. Meo. Lt. Meo turned so that his gun was on the side opposite Defendant, and the two men began walking back toward Lt. Meo‘s car.
{9} Without warning, Defendant hit Lt. Meo in the eye with his fist. Defendant then punched Lt. Meo in the nose. As Lt. Meo fought back, he slipped and fell on his back. Defendant straddled Lt. Meo, “head-butting” Lt. Meo three times. Lt. Meo suffered a broken nose, a gash above his eye, one lost tooth, and two chipped teeth. Lt. Meo, now afraid for his life, drew his handgun and shot Defendant, wounding him in the chest. Defendant went limp, falling on Lt. Meo‘s chest.
{10} We are satisfied that a reasonable jury could have found that Defendant was in a dazed, disoriented, and intoxicated state and that, in this state, he believed that the person he attacked in the lot was the private security guard who had followed him into the field from the supermarket parking lot. Defendant‘s theory of ignorance or mistake was supported by the State‘s own witnesses and, contrary to the argument of the prosecutor, did not depend upon Defendant taking the
{11} We are not persuaded by the State‘s argument that the instructions on intent adequately address Defendant‘s state of mind with respect to the victim‘s status as a peace officer. The victim‘s status as a peace officer is an “attendant circumstance.” 1 Wayne R. LaFave, Substantive Criminal Law § 5.1 at 332 (2d ed.2003) (observing that “[i]t is commonly stated that a crime consists of both a physical part and a mental part . . . and sometimes also . . . prescribed attendant circumstances“). The attendant circumstance of the victim‘s status as a peace officer in the lawful exercise of his duties distinguishes felony aggravated battery on a peace officer from misdemeanor aggravated battery. Compare
Other Requested Instructions
{12} Defendant also was entitled to an instruction on battery,
{13} Citing State v. Gonzales, 97 N.M. 607, 642 P.2d 210 (Ct.App.1982), Defendant argues that in view of evidence that Lt. Meo resorted to deadly force, Defendant was entitled to an instruction on whether Lt. Meo was acting within the scope of his duties,
{14} We also agree with the State that Defendant was not entitled to an instruction on self-defense. The facts as summarized in Defendant‘s Brief-in-Chief clearly demonstrate that Lt. Meo confronted Defendant in a non-threatening manner:
When he caught up to [Defendant], about 10-15 feet separated the men. [Lt.] Meo gestured in silence to [Defendant] with his hand for [Defendant] to come toward him. [Defendant] responded to the gesture and walked toward [Lt.] Meo. [Lt.] Meo turned so his gun was on his hip opposite to [Defendant], and then fell in step with [Defendant]. . . . They commenced to walk in step, abreast, in the dark, back toward [Lt.] Meo‘s car in this “escort” position.
Even if Defendant believed that he was being confronted by the security guard with whom he had previously struggled, no reasonable jury could have found on the evidence before it that at the point in time that Defendant attacked Lt. Meo there was “an appearance of immediate danger of bodily harm,” that the force used by Defendant was “reasonable and necessary,” or that a reasonable person in the same circumstances would have acted as Defendant did.
CONCLUSION
{15} We reverse Defendant‘s aggravated battery on a peace officer conviction and remand for a new trial in which the jury is given instructions consistent with this opinion.
{16} IT IS SO ORDERED.
WE CONCUR: LYNN PICKARD and CELIA FOY CASTILLO, Judges.