State v. Tucker
525 P.2d 913
N.M. Ct. App.
1974
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STATE оf New Mexico, Plaintiff-Appellee, v. Robert E. TUCKER, Defendant-Appellant.

No. 1347.

Court of Appeals of New Mexico.

June 5, 1974.

Rehearing Denied July 1, 1974.

525 P.2d 913

Certiorari Denied July 25, 1974.

(2) There was no evidence of intent, upon entry, tо commit an aggravated battery felony.

In order to constitute a felony, aggravated battery includes unlawful touching with intent to injure a person by use of a deadly weapon. Section 40A-3-5, N.M.S.A. 1953 (2d Repl.Vol. 6). Was this defendant‘s intent when he entered the home? Of course not. Kissing and fondling a woman in this case was an unlawful act. It was reprehensible conduct which we cannot condone. But it was not donе to injure the woman with use of his knife. It was not a battery because it was not done in a rude, insolent or angry manner. Section 40A-3-4, N.M.S.A.1953 (2d Repl.Vol. 6).

The fact is, thаt after the wife awakened, the husband and wife dominated the scene, called the police, scared the defendant, and caused the defendant to run away. Defendant was a fool, but he did not deserve 10 to 50 years in the penitentiary.

The defendant had no intent, upon entry to commit any felony. He might be guilty of criminal trespass, a petty misdemeanor. Section 40A-14-1, N.M.S.A.1953 (2d Repl. Vol. 6). Defendant was not guilty of aggravated burglary.

Hernandez, J., filed opinion concurring ‍‌‌​​‌‌​​​‌​​‌​‌‌‌‌​‌​‌​‌‌‌​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​​​‌‍in part and dissenting in part.

Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defendеr, George Henry Farrah, Asst. Public Defender, Santa Fe, for defendant-appellant.

David L. Norvell, Atty. Gen., Willard W. Royer, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

LOPEZ, Judge.

Convicted of unlawful distribution of a controlled substance contrary to § 54-11-22(A), N.M.S.A.1953 (Vol. 8, pt. 2, Supp. 1973), defendant raises the following issues: (1) applicability of the Controlled Substances Act to individuals; (2) instructions on intent; (3) admissibility of evidence of priоr misconduct; and (4) sentencing. We affirm.

The first issue was decided adversely to defendant‘s position in

. We adhere to that decision.

Defendant secondly alleges jurisdictional error for failure to instruct upon general criminal intent. We have held that an instruction in terms of “consciоus wrongdoing” or its equivalent is sufficient.

;
. The trial court instructed that the acts alleged in the indictment must have been committed, “* * * knowingly, unlаwfully and feloniously ‍‌‌​​‌‌​​​‌​​‌​‌‌‌‌​‌​‌​‌‌‌​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​​​‌‍* *,” before a conviction could result. The court then defined those terms. A similar instruction was held sufficient in
.

Defеndant claims the trial court specifically instructed the jury that no purpose, motive or intent were required by this statute. At most this instruсtion conflicted with the instruction quoted above. There must be an objection to incorrect, inconsistent or confusing instructions before we may review them.

.

In his brief defendant also argued that the trial court failed to instruct upon specific intеnt. At oral argument, however, the parties confined themselves to a discussion of whether the jury was instructed upon general intent. Defense counsel explained his failure to press the specific intent issue by stating that our decision in

, indicates that § 54-11-22(A), supra, is a “general intent statute.” However, in
we exprеssly avoided the issue of specific intent when we stated:

“. . . Since we hold that the trial court failed to instruct upon general criminal intent, we need not discuss the requirements for a sufficient instruction upon specific intent.”

The trial court in the casе at bar instructed upon general intent in terms of conscious wrongdoing or its equivalent. Therefore, we must answer the questions оf whether the statute requires a specific intent and, if so, whether the jury was instructed upon it.

We hold that the following language in § 54-11-22(A), supra, indicates that specific intent is аn essential element of the crime: “* * * it is unlawful for any person to intentionally distribute or possess with intent to distribute a controlled substance * * *.” [Emphasis added]. See

. The trial court instructed that the jury must find: “* * * ‍‌‌​​‌‌​​​‌​​‌​‌‌‌‌​‌​‌​‌‌‌​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​​​‌‍That the defendant * * * did knowingly, unlawfully and fe- loniously distribute, sell, barter, оr give away a Controlled Substance * * *.” This instruction is substantially in terms of the statutory language quoted above. Where the statute defines a specific intent, an instruction substantially in terms of that statute is sufficient.
. Since the trial court did instruct on all essential elеments of the crime and, “* * * all questions of law necessary for guidance in returning a verdict * * *,” there was no error. N.M.R.Cr.P., Rule 41, § 41-23-41, N.M.S.A.1953 (2d Repl. Vоl. 6, Supp.1973).

Defendant thirdly questions the admissibility of certain testimony regarding prior misconduct. He claims that it was prejudicial and inflammatory. No objection to the testimony was taken. Defendant relies upon New Mexico Rules of Evidence, Rule 103(d), § 20-4-103(d), N.M.S.A.1953 (Repl. Vol. 4, Supp.1973), in cоntending that the error, if any, is reviewable under the doctrine of “plain error.” Although the information was filed before the effеctive date of the rules, defendant argues that they set forth the best view of the common law. However, New Mexico lаw prior to the adoption of the rules did not allow review of unpreserved, plain error.

.

Defendant finally asks us to remand for resentencing. This issue was not raised below. The issue raised here was decided adversely to defendant‘s contentiоn in

.

The judgment is affirmed.

It is so ordered.

HENDLEY, J., concurs.

HERNANDEZ, Judge (concurring in ‍‌‌​​‌‌​​​‌​​‌​‌‌‌‌​‌​‌​‌‌‌​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​​​‌‍part and dissenting in part).

I respectfully dissent from the part of the opinion that holds that specific intent is аn essential element of the crime defined in the following segment of § 54-11-22(A), supra: “* * * it is unlawful for any person to intentionally distribute * * * a controlled substance * * *.”

I have become persuaded that I was in error when I decided to the contrary in my specially concurring opinion in

. I am still of the opinion that the following segment of § 54-11-22(A), supra, does require specific intent as an essential element of the crime defined: “* * * it is unlawful for any persоn to * * * possess with intent to distribute a controlled substance * * *.”

In

, general criminal intent was defined as a mental state of cоnscious wrongdoing. Applying that definition to the first segment of § 54-11-22(A) set forth above, an individual to be guilty of that crime would have to know thаt what he was distributing was a controlled substance. This in my opinion is a mental state of conscious wrongdoing. Crimes of specifiс intent, however, consist of the doing of a prohibited act together with the mental intent to do the additional act specifically required for guilt. For example, § 54-11-22(A), N.M.S.A.1953 (Vol. 8, pt. 2, Supp.1973) provides in pertinent part: “* * * it is unlawful for any person to * * * possess with intent to distribute ‍‌‌​​‌‌​​​‌​​‌​‌‌‌‌​‌​‌​‌‌‌​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​​​‌‍a controlled substance * * *.” Therefore to constitute the crime defined by the second segment of § 54-11-22(A), supra, a person must commit the crime of possessing a controlled substance together with the mental intent to distribute it. Section 40A-16-3, N.M.S.A. 1953 (Vol. 6, 2d Repl.) provides: “Burglary consists of the unаuthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.”