State v. OrtegaState v. Ortega
Convicted of battery upon a peace officer contrary to
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
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.
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,
Although the issue Defendant raises is one of first impression in New Mexico, commentaries and case law from other jurisdictions provide support for the result we reach. Commentators explain that battery does not require actual physical contact between the defendant and the victim. In W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 39-40 (5th ed. 1984), it is stated:
Protection of the interest in freedom from intentional and unpermitted contacts with the plaintiff’s person extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus, if all other requisites of a battery against the plaintiff are satisfied, contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in the plaintiffs hand, will be sufficient. * * * The interest in the integrity of person includes all those things which are in contact or connected with the person. [Emphasis added and footnotes omitted.]
Similarly, in 6A C.J.S. Assault & Battery § 70, at 440-41 (1975), it is stated:
It is essential to the offense of battery ... that there be a touching of the person of the prosecutor, or of something so intimately associated with, or attached to, his person as to be regarded as a part thereof. * * *
Accordingly, battery may consist in the ... snatching or wresting something from his possession. * * * The contact may have been with the clothes of the prosecutor or with something carried by him. [Footnotes omitted.]
Defendant contends that the application of authority relating to common law battery concepts would be erroneous. However, “[t]he elements of civil and criminal assault and battery are essentially identical.” 6A C.J.S. Assault & Battery § 2 at 319 (1975); see also Virgin Islands v. Stull,
(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) an offensive contact with the person of the other directly or indirectly results.
Criminal law commentators also suggest that physical contact between the defendant and the victim is not required. See generally 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.15, at 303 (1986) (force in criminal battery need not be applied directly to the body of the victim; it may be applied indirectly.) In addition, case law from other jurisdictions supports the proposition that there need not be direct touching of the victim’s person in order for a battery to occur. Touching something intimately connected with the victim’s body is sufficient. In Fisher v. Carrousel Motor Hotel, Inc.,
We reject Defendant’s literal reading of the statute and hold that the word “person” as used in New Mexico’s battery upon a peace officer statute includes anything intimately connected with person. Accordingly, the flashlight which Officer Adams carried was part of Officer Adams’ “person” as contemplated by Section 30-22-24(A). That is the way the trial court read the statute and we agree. It would be strange, indeed, if one could with impunity grab an item in a peace officer’s hand, such as a night stick, flashlight, or weapon, spin the officer around, causing the officer to fall to the ground, or even worse, fall from a building, out a window, into a mine shaft, off a ship, or out of an airplane, and then claim no battery occurred because, “I never touched his person.”
Not only is the safety of a peace officer at stake, we believe the legislature, by enacting Section 30-22-24, intended to avoid a challenge to the officer’s authority. The case before us illustrates that purpose clearly. After the flashlight was knocked from Officer Adams’ hand, Defendant’s companions jumped Officer Adams. Defendant then fought with Officer Hargrove. Testimony reflects that the assistance of several citizens was required to subdue Defendant and his companions.
The trial court’s jury instruction stated, in part, that the offense of battery upon a peace officer could be proved by showing that Defendant “knocked or took a flashlight from Greg Adams; or hit Greg Adams.” Defendant contends that the jury instruction was erroneous. Based on the discussion above, the jury was properly instructed that it could find Defendant guilty if it found that Defendant knocked or took the flashlight out of Officer Adams’ hand. See, e.g., State ex rel. State Highway Dep’t v. Strosnider,
IT IS SO ORDERED.