Case Information
*1
CASTILLO, Chief Judge. Dеfendant was convicted of battery upon a health care worker pursuant to NMSA
1978, Section 30-3-9.2(E) (2006). On appeal, he makes a number of arguments. We agree with Defendant that the jury instruction listing the elements for conviction of battery on a health care worker was deficient because it did not include the requirement of knowledge. *2 Accordingly, we reverse and remand for a new trial. We affirm on two of the other issues raised by Defendant and do not reach the remaining issues.
BACKGROUND
{2} Defendant’s conviction stems from an incident that occurred at the San Juan Regional Medical Center (Medical Center). On the afternoon of August 19, 2009, police officers brought Defendant, who was intoxicated, to the Medical Center. No charges were filed by police at the time, and Defendant was evaluated by nurses in the emergency dеpartment. Although the medical staff recommended no treatment, it was hospital policy that intoxicated persons are not to be released. The doctor who examined Defendant ordered that Defendant could be released “under the supervision of somebody sober.” The Medical Center had contacted his parents to pick him up. After the police officers left, a member of the nursing staff asked Link Roberts, a security supervisor at the Medical Center, to oversee Defendant while he was waiting to be picked up. Defendant “was verbally communicative about his desire to leave” the Medical Center and kept trying to leave, so Roberts called in a security officer under his command, Steven O’Brien, to help him manage Defendant. At one point, the two security guards (the Guards) lifted Defendant back onto a bed. Defendant then began flailing his arms and punched O’Brien in the chest with his left fist. Defendant was charged with battery upon a health care worker under Section 30-3- 9.2(E). Before trial, Defendant filed a motion to dismiss, making three arguments: (1) that O’Brien was not a health care worker as defined by the Code; (2) that Defendant had no reason to know or believe that O’Brien was a health care worker; and (3) that the battery charge violated the policy of the New Mexico Detoxification Reform Act (DRA), NMSA 1978, §§ 43-2-1 to -23 (1949, as amended through 2005), that bars prosecution of an intoxicated person. See § 43-2-3. The district court denied the motion. At trial, Defendant sought a jury instruction on either or both self-defense and
unlawfulness. The district court gave the instruction on unlawfulness but not on self- defense. The jury found Defendant guilty of battery upon a health care worker.
DISCUSSION Defendant makes several arguments. The dispositive issue relates to the deficiency
in the jury instruction and, based on this, we reverse and remand for a new trial. However, Defendant makes two arguments that would have resulted in dismissal of his entire case had we found in his favor. We address these arguments first. In this regard, Defendant contends that his actions were protected by the DRA and that the district court erred in denying his motiоn to dismiss based on the argument that a security guard is not a health care worker. We then turn to his contentions about the jury instructions. Defendant asserts, and we agree, that fundamental error occurred when the district court failed to instruct the jury that a conviction for battery on a health care worker required the element of knowledge that the victim was a health care worker. Because we are rеversing as to this issue, we next turn to *3 Defendant’s argument that there was not substantial evidence presented at trial that the Guards were acting lawfully when they restrained him. We consider this argument in order to determine whether retrial would violate principles of double jeopardy. Defendant’s remaining issues relate to the jury instruction he tendered on self-defense and his claim that his counsel was ineffective. We address Defendant’s contentions in the above order and begin with his argument regarding the DRA.
A. DRA According to Defendant, the DRA bars prosecution in this situation for a battery
committed while he was under the influence of alcohol because the policy of the DRA is to encourage treatment and avoid criminal prosecution. He argues that a felony charge in this case was inappropriate because “thosе in charge of taking care of an intoxicated person should show more circumspection.” “The issue of whether the DRA precludes prosecution of intoxicated persons . . . for
battery upon a health care worker is a question of statutory interpretation, which this Court
reviews de novo.”
State v. Tsosie
,
Medical Center was to hеlp him in his inebriated state, and he argues that the ensuing fight
with the Guards was the type of struggle one would expect from an intoxicated person whose
actions should be protected by the DRA. Under the DRA, it is the policy of the State to
protect “intoxicated and incapacitated persons” from being “subjected to criminal
prosecution[s].” Section 43-2-3. However, the DRA is intended to protect peoрle from
criminal punishment “solely for being intoxicated.”
State v. Correa
,
Guards somehow exceeded their caretaking role while Defendant was awaiting his parents’
arrival. We see nothing unique in these circumstances and nothing to contradict the clear
instruction from
Correa
and
Tsosie
that any criminal offense committed while the actor is
intoxicated is still punishable. As the Court warned in
Correa
, too expansive a reading of
*4
the DRA “would mean that an accused would not be criminally liable for murder, burglary,
assault, or battery if he was intoxicated when he committed the offense.”
B. Health Care Worker Statute Defendant contends that the district court erred in denying his motion to dismiss
based on his argument that O’Brien was not a health care worker. In his motion to dismiss,
Defendant acknowledged that O’Brien was employed by the Medical Center, and thus the
fact of O’Brien’s employment status was undisputed. We are presented with an issue of
statutory interpretation and our review is de novo.
Tsosie
,
worker” in pertinent part as one who is “an employee of a health [care] facility.” Section 30-
3-9.2(A)(2). In spite of his recognition that O’Brien is аn employee of a health care facility,
Defendant argues that O’Brien does not come under the definition of “health care worker”
because he is not in the medical profession, his employment is not for the purpose of
providing medical care, he is not licensed in any medical field, and his employment duties
relate to security, not medicine. We look for direction from two New Mexico cases.
In
Johnson
, the New Mexico Supreme Court held that security guards working in
schools are school employees within the statute criminalizing battery upon school personnel.
Johnson
,
C.
Knowledge Requirement for Battery Upon a Health Care Worker
Defendant next argues that the district court improperly instructed the jury on the
elements of battery upon a health care worker by omitting the requirement that Defendant
have knowledge that the victim was a health care worker. Defendant admits that he did not
tender the proper instruction at trial and therefore failed to preserve the argument; he asks
us to review the issue for fundamental error.
See State v. Cunningham
,
See State v. Sutphin
,
“Battery upon a health care worker is the unlawful, intentional touching or application of
force to the person of a health care worker who is in the lawful discharge of the health care
worker’s duties, when done in a rude, insolent[,] or angry manner.” Knowledge of the
victim’s identity is not expressly included in the statute as an element of battery upon a
health care worker. In
State v. Nozie
,
a health care worker. We agree. When the victim of a battery is a health care worker, a
misdemeanor battery charge is elevated to a fourth degree felony, as it is with respect to the
crime of battery on a peace officer.
See
§ 30-3-9.2(E);
Nozie
,
triggers our concern, as stated in
Nozie
, that the Legislature intended for a defendant to act
with knowledge of the victim’s identity before facing a felony conviction for battery upon
a health care worker. It follows, then, that the jury was permitted to find Defendant guilty
without considering an essential element of the crime—Defendant’s knowledge of the
victim’s status as a health care worker—thus creating an unfair rеsult.
Cf. State v. Gonzalez
D.
Substantial Evidence Regarding Lawfulness of O’Brien’s Actions
As we have previously mentioned, based on our reversal of Defendant’s conviction,
we address his argument regarding the sufficiency of the evidence in order to determine
whether retrial would violate principles of double jeopardy.
See State v. Dowling,
2011-
NMSC-016, ¶ 18,
health[ ]care worker in the lawful performance of his health[ ]care duties[.]” Section 30-3- 9.2(A)(3) defines the phrase “in the lawful discharge” of the health care worker’s duties as being “engаged in the performance of the duties of a health care worker.” Evidence was presented that Defendant was brought to the Medical Center under the DRA, which authorizes a police officer to have an intoxicated person committed to a treatment facility when the police officer has probable cause to suspect that the person “is unable to care for the person’s own safety[.]” Section 43-2-8(A)(2). The intoxicated person “shall be retained at the facility . . . until discharged.” Section 43-2-8(C). A person may be held for up to seventy-two hours, but must be released if his blood-alcohol content reaches zero or “there is no probable cause to believe the person remains at risk of physical harm to himself or another[.]” Section 43-2-8(E). Here, evidence was presented to show that O’Brien had the authority to restrain
Defendant. O’Brien testified that it is the procedure and policy of the Medical Center to hold an intoxicated person because of potential liability of the hospital regarding premature release of intoxicated people who present safety concerns. O’Brien testified that he was acting under the direction of medical staff, who had determined that Defendant was not free to be released and had requested that the Guards restrain Defendant until his parents arrived to pick him up. The Guards’ job description includes detaining those brought in for detoxification evaluations. The Guards testified that they repeatedly told Defendant that he must wait in a bed for his parents to pick him up. When Defendant tried to leave, the Guards restrained him. We conclude that suffiсient evidence existed for a jury to find that O’ Brien was an employee of the Medical Center and, as such, he was a health care worker. Additionally, there was sufficient evidence for the jury to conclude that he was in the lawful performance of his duties in that regard. O’Brien had been directed to prevent Defendant from leaving the Medical Center until his parents came to pick him up, and O’Brien was cаrrying out these duties.
E. Remaining Issues Defendant also argues that the court erred in failing to include the tendered self-
defense instruction, that his counsel was ineffective by not including the element of knowledge in the battery instruction and in failing to request a mistake of fact instruction. Because we are reversing Defendant’s conviction and remanding for a new trial, we need not consider these arguments. As to the self-defense instruction, there is a question regarding whether this argument was even preserved. On retrial, Defendant can develop this issue as he desires. Similarly, Defendant’s claims that his counsel was ineffective need not be considered as those claims become moot in light of the grant of a new trial. In light of this disposition, we need not consider Defendant’s remaining issues.
III. CONCLUSION We hold that knowledge of the victim’s identity as a health care worker is аn
essential element of battery on a health care worker. Currently there are no jury instructions regarding this crime, and we ask that the Supreme Court refer this matter to the appropriate committee to assess whether uniform jury instructions are necessary for this and the related crimes set out in NMSA 1978, Section 30-3-9 (1989) (assault; battery; school personnel), and NMSA 1978, Section 30-3-9.1 (2001) (assault; battery; sports officials). We reverse the verdict below and remand for proceedings consistent with this Opinion. IT IS SO ORDERED.
____________________________________ CELIA FOY CASTILLO, Chief Judge WE CONCUR:
____________________________________
JONATHAN B. SUTIN, Judge
____________________________________
CYNTHIA A. FRY, Judge
Topic Index for State v. Valino , No. 30,497
APPEAL AND ERROR
Fundamental Error
Remand
Substantial or Sufficient Evidence
CONSTITUTIONAL LAW
Double Jeopardy
CRIMINAL LAW
Battery
Elements of Offense
Intoxication
CRIMINAL PROCEDURE
Self-Defense
JURY INSTRUCTIONS
Criminal Jury Instruction
Improper Jury Instruction
STATUTES
Interpretation