{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 14r-2216 NMRA, and battery, UJI 14-320 NMRA, as a lesser-included offense of aggravated battery upon a peace officer. State v. Nozie,
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
{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)
{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,
{14} We granted the State’s petition for writ of certiorari to determine whether (1) the Court of Appeals improperly failed to observe Rule 12-213(A) NMRA by resolving Defendant’s instructional claim on the basis of Reese, and (2) Defendant’s subjective 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. State v. Nozie,
II. DISCUSSION
A. Whether the Court of Appeals violated Rule 12-213(A).
{15} Rule 12-213(A)(4) provides that the argument section of an appellant’s brief-in-chief must include, inter alia, “citations to authorities.” As we previously have
review issues raised in appellate briefs that are unsupported by cited authority. When a criminal conviction is being challenged, counsel should properly present [the reviewing] court with the issues, arguments, and proper authority. Mere reference in a conclusory statement will not suffice and is in violation of our rules of appellate procedure.
State v. Clifford,
{16} The State claims that the Court of Appeals improperly failed to observe Rule 12-213(A)(4) by resolving Defendant’s instructional claim regarding UJI 14-2216 on the basis of Reese because the argument section of Defendant’s brief-in-chief failed to cite Reese or any other pertinent authority. Essentially, the State argues that “Defendant waived any argument based on Reese ” and the Court of Appeals improperly made an “unmade argument ... the basis of [its] Opinion.” Assuming without deciding that a technical violation of Rule 12-213(A)(4) occurred, our review of Defendant’s brief-in-chief nonetheless reveals that Defendant’s claim was sufficiently briefed to permit the Court of Appeals to review the essential question on its merits. Defendant explicitly argued that his
tendered instructions should have been given to the jury and the trial court’s refusal to do so constituted a deprivation of his right to have the jury fully informed of the State’s burden to prove each and every element of the crime alleged, thus denying him his right to due process of law as guaranteed by the United States Constitution, art. XIV as interpreted by [Reese}.
Accordingly, we conclude that the Court of Appeals did not abuse its discretion by addressing the merits of Defendant’s claim.
B. Whether Defendant’s knowledge of the victim’s identity as a peace officer is an essential element of the crime of aggravated battery upon a peace officer.
{17} The State next claims that the Court of Appeals improperly concluded that Defendant’s 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. Specifically, the State claims that the plain language of Section 30-22-25 requires only one mental state, intent to injure, and, therefore, “[i]t is not for the Court of Appeals to rewrite the statute to add a new [mental state].”
{18} We begin our analysis of the State’s claim with Rutledge v. Fort,
{19} In Reese,
1
a plurality of this Court reconsidered and overruled Rutledge “insofar as it [had held] that a defendant’s knowledge as to the identity of the peace officer assaulted is not a necessary element of the crimes.” Reese,
{20} Justice Ransom published a specially concurring opinion wherein he agreed with Justices Sosa and Walters that scienter is an element of the crimes, but disagreed that it was necessary to decide the case on constitutional grounds. Id. at 501,
{21} Chief Justice Scarborough and Justice Stowers each published dissenting opinions. Id. at 503-05,
Like the statutory rape statutes, our statutes regarding battery and assault upon a peace officer by their plain language do not require proof of an additional element of knowledge. These latter statutes meet the clear legislative intention to protect peace officers performing their duties and do not violate any constitutional rights of the defendant. Rutledge v. Fort correctly interpreted these statutes and should not be overruled.
Id. at 505,
{22} Although Reese was a plurality opinion, this Court repeatedly has cited its holding with approval. See, e.g., State v. Ellis,
{23} The State claims, however, that Reese is not binding authority because it “contained only minority opinions, and it is established New Mexico law that an opinion joined by fewer than three justices is not the opinion of this Court.” Although Reese was a plurality opinion, a majority of the Court, namely, Justices Sosa, Walters, and Ransom, all agreed that a defendant’s knowledge of the victim’s identity as a peace officer is an essential element of the crimes, which the State must prove beyond a reasonable doubt. They could not agree, however, as to the legal basis for their conclusion, i.e., whether the element of scienter was constitutionally or statutorily mandated. We therefore take this opportunity to review the principles articulated in Reese and clarify the legal basis for this Court’s holding.
{24} In Reese, Justices Sosa and Walters relied on the rule announced by the United States Supreme Court in United States v. Feola,
{25} We therefore turn to Justice Ransom’s specially concurring opinion. Justice Ransom noted that it is “the rule in New Mexico ... that where an act is prohibited and made punishable by statute, the statute must be construed in the light of the common law, and the existence of a criminal intent is essential absent the appearance of legislative intent to the contrary.” Reese,
(1) The legislative history of the statute or its title or context may throw some light on the matter. (2) The legislature may have in some other statute provided guidance as to how a court is to determine whether strict liability was intended. (3) The severity of the punishment provided for the crime is of importance. Other things being equal, the greater the possible punishment, the more likely some fault is required, and, conversely, the lighter the possible punishment, the more likely the legislature meant to impose liability without fault. (4) The seriousness of harm to the public which may be expected to follow from the forbidden conduct is another factor. Other things being equal, the more serious the consequences to the public, the more likely the legislature meant to impose liability without regard to fault, and vice versa. (5) The defendant’s opportunity to ascertain the true facts is yet another factor which may be important in determining whether the legislature really meant to impose liability on one who was without fault because he lacked knowledge of these facts. The harder to find out the truth, the more likely the legislature meant to require fault in not knowing; the easier to ascertain the truth, the more likely failure to know is no excuse. (6) The difficulty prosecuting officials would have in proving a mental state for this type of crime. The greater the difficulty, the more likely it is that the legislature intended to relieve the prosecution of that burden so that the law could be effectively enforced. (7) The number of prosecutions to be expected is another factor of some importance. The fewer the expected prosecutions, the more likely the legislature meant to require the prosecuting officials to go into the issue of fault; the greater the number of prosecutions, the more likely the legislature meant to impose liability without regard to fault. All the above factors have a bearing on the question of the interpretation of the empty statute, but no single factor can be said to be controlling. Thus some statutes have been held to impose liability without fault although the possible punishment was quite severe, generally because one or more of the other factors pointed toward strict liability.
Id. at 502-03,
{26} We agree with Justice Ransom that it is appropriate to resolve the question of knowledge on the basis of legislative intent. “When a criminal statute is silent about whether a mens rea element is required, we do not assume that the [Legislature intended to enact a no-fault or strict liability crime.” Santillanes,
{27} The State claims, however, that Reese is distinguishable from the present case because, unlike the statutes at issue in Reese, Section 30-22-25 is not silent with respect to the element of mens rea. Section 30-22-25(A) explicitly provides that “[aggravated battery upon a peace officer consists of the unlawful touching or application of force to the person of a peace officer with intent to injure that peace officer while he is in the lawful discharge of his duties.” (Emphasis added). Because the statute specifies one mental state, intent to injure, the State argues that it necessarily excludes a second mental state, knowledge of the victim’s identity as a peace officer.
{28} The State’s claim raises an issue of statutory construction, which we review de novo. “Our ultimate goal in statutory construction is to ascertain and give effect to the intent of the Legislature. It is the high duty and responsibility of the judicial branch of government to facilitate and promote the [Legislature’s accomplishment of its purpose.” State v. Smith,
{29} It is well established that a single statute may require proof of different mental states for different elements of the crime and that these mental states need not be explicit. See, e.g., State v. Contreras,
{30} As previously explained, knowledge of the victim’s identity as a peace officer is an essential element of both aggravated assault upon a peace officer and battery upon a peace officer. Reese,
we cannot see how imposing liability for [aggravated battery upon a peace officer] without also requiring knowledge of his identity could further the specific deterrent purpose expressed by the statute. Neither can we understand why an individual who commits an assault on a person he does not know to be an official is any more blameworthy than one who commits an assault ... is thus any more deserving of the greater punishment for an offense of a higher class.
Morey,
{31} To ensure that the jury properly is instructed on the essential elements of aggravated battery upon a peace officer, we conclude that UJI 14-2212 through 14-2214 should be amended to reflect the requisite mental states attendant to the crime. See State v. Wilson,
{32} We stress that it is the defendant’s mental state, rather than the victim’s conduct, that is the touchstone of the knowledge requirement. However, “[because an individual’s intent is seldom subject to proof by direct evidence, intent may be proved by circumstantial evidence.” State v. Allen,
1. Whether Defendant was entitled to UJI 14-2116: Mistake of Fact as to the victim’s identity as a peace officer.
{33} We next address whether Defendant was entitled to UJI 14-2216, mistake of fact as to the victim’s identity as a peace officer. “The propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar,
{34} Ignorance or mistake as to a matter of fact or law is a defense
if it negatives a mental state required to establish a material element of the crime, except that if the defendant would be guilty of another crime had the situation been as he believed, then he may be convicted of the offense of which he would be guilty had the situation been as he believed it to be.
1 Wayne R. LaFave, Substantive Criminal Law § 5.6 (2d ed.2003). Generally, a defendant is entitled to UJI 14-2216 when “there is a question of fact as to whether or not the defendant knew that the victim was a law enforcement officer”; UJI 14-2216 Use Note 1; and, consequently, the jury reasonably could find the defendant not guilty of the
{35} We agree with the Court of Appeals that Defendant had tendered an appropriate mistake of fact instruction and that the evidence supported the issuance of this instruction because
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 stand to directly deny knowledge. See [State v.] Mantelli,2002-NMCA-033 , ¶ 16,131 N.M. 692 ,42 P.3d 272 (observing that the State’s evidence may support an instruction requested by the defendant); State v. Castañeda,2001-NMCA-052 , ¶21,130 N.M. 679 ,30 P.3d 368 (noting general rule that a defendant’s state of mind may be proved by circumstantial evidence). That there are views of the evidence that support a finding adverse to Defendant is not a reason for denying Defendant an instruction so long as the evidence viewed most favorably to Defendant supported Defendant’s theory of the case.
Id. at ¶ 10. Accordingly, the Court of Appeals properly determined that Defendant was entitled to the requested jury instruction.
{36} We caution, however, that “[ojrdinarily, a defendant is not entitled to a specific instruction where the jury has already been adequately instructed upon the matter by other instructions.” State v. Venegas,
2. Whether Defendant was entitled to UJI 14-320: Battery as a lesser-included offense of aggravated battery upon a peace officer.
{37} We next address whether Defendant was entitled to an instruction on battery, UJI 14-320, as a lesser-included offense of aggravated battery upon a peace officer.
Failure to instruct the jury on a lesser[-]included offense of a charged offense is reversible error if: (1) the lesser offense is included in the greater, charged offense; (2) there is evidence tending to establish the lesser[-]included offense and that evidence establishes that the lesser offense is the highest degree of crime committed;and (3) the defendant has tendered appropriate instructions preserving the issue.
State v. Jemigan,
{38} As a preliminary matter, Defendant claims that this issue is unreviewable because it was not raised in the State’s petition for writ of certiorari. See Rule 12-502(C)(2)(b) NMRA (“[T]he Court will consider only the questions set forth in the petition.”). We are not persuaded. In its petition, the State presented the following question for our review: “Is subjective knowledge that the victim is a peace officer an element of the offense of aggravated battery on a peace officer, as defined in [Section 30-22-25]?” We conclude that this question is broad enough to encompass the issue of whether battery is a lesser-included offense of aggravated battery upon a peace officer. Indeed, our review of the Court of Appeals’ opinion reveals that the two questions, subjective intent as an essential element of aggravated battery upon a peace officer and battery as a lesser-included offense of aggravated battery upon a peace officer, are inextricably intertwined. See Nozie,
{39} Turning to the merits of the State’s claim, we first address whether battery is a lesser-included offense of aggravated battery upon a peace officer. “A lesser[-] included offense is one that includes some, but not all, of the elements of a greater offense and that does not have any element not included in the greater offense, so that it is impossible to commit the greater offense without necessarily committing the lesser offense.” State v. Garcia,
{40} We conclude that it is impossible to commit the crime of aggravated battery upon a peace officer without necessarily committing the crime of battery. First,
[o]ne cannot commit battery with an intent to injure without also proceeding in a rude, insolent or angry manner. See the various definitions of “rude”, “insolent” and “angry” in Webster’s Third New International Dictionary (1966). The meaning of “rude” includes offensive in manner or action; the use of force. The meaning of “insolent” includes insult; contemptuous or brutal in behavior. The meaning of “angry” includes various forms of displeasure.
State v. Kraul,
{41} We agree with the Court of Appeals that Defendant had tendered an appropriate instruction regarding battery as a lesser included offense of aggravated battery upon a peace officer and that the facts supported the issuance of this instruction because
[t]he district court instructed the jury on the question of Defendant’s inability to form the specific intent to injure, UJI 14-5111 NMRA, indicating that the districtcourt recognized that there was sufficient evidence of intoxication to support this defense. If the jury found that Defendant was unable to form the specific intent to injure, it still could have found that Defendant was able to form the general criminal intent necessary to commit battery. See State v. Crespin, 86 N.M. 689 , 691,526 P.2d 1282 , 1284 (Ct.App.1974) (observing that voluntary intoxication is not a defense to a “nonspecific” intent crime); State v. Duran,80 N.M. 406 , 407,456 P.2d 880 , 881 (Ct.App.1969) (distinguishing the intent to apply force required to commit battery from the intent to injure required to commit aggravated battery). If 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 intent to injure, it could have found Defendant guilty of battery.
Nozie,
III. CONCLUSION
{42} We conclude that a criminal defendant’s 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 is required to prove beyond a reasonable doubt. Accordingly, Defendant was entitled to jury instructions regarding mistake of fact as to the victim’s identity as a peace officer and simple battery as a lesser included offense of aggravated battery upon a peace officer. We therefore reverse Defendant’s conviction of aggravated battery upon a peace officer and remand for a new trial on that count.
{43} IT IS SO ORDERED.
Notes
. We note that both Reese and Rutledge arose out of the same criminal prosecution. At the defendant’s first trial, the trial court instructed the jury "that they must find that the defendant had been on notice that the victim was a police officer in order to convict.” Rutledge,
A second trial followed, in which the defendant was found guilty of the crimes charged. Reese,
to deny [the defendant] the right to have the jury informed as to his apprehension of the identity of the person he assaulted would be to deny him the right to have the jury apprised of a necessary element of the crime for which he was charged, and that in turn would be to deny [the defendant] his constitutional guarantee of due process of law.
Id. at 507,