Opinion
No. A-1-CA-36084
12-11-2017
STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOSHUA PLOWMAN, Defendant-Appellant.
Hector H. Balderas, Attorney General Santa Fe, NM John J. Woykovsky, Assistant Attorney General Albuquerque, NM for Appellee Bennett J. Baur, Chief Public Defender Matthew J. Edge, Assistant Appellate Defender Santa Fe, NM Appellant
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Jane Shuler Gray, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM
John J. Woykovsky, Assistant Attorney General
Albuquerque, NM for Appellee Bennett J. Baur, Chief Public Defender
Matthew J. Edge, Assistant Appellate Defender
Santa Fe, NM Appellant
MEMORANDUM OPINION
HANISEE, Judge. {1} Defendant has appealed from a conviction for battery on a health care worker. We issued a second notice of proposed summary disposition in which we proposed to reverse and remand for a new trial. The State has filed a memorandum in opposition. After due consideration, we remain unpersuaded. {2} To very briefly reiterate the pertinent background information, in this case the jury instructions omitted an essential element, that Defendant "acted in a rude, insolent, or angry manner." [RP 199; St. MIO 8] See UJI 14-365 NMRA (outlining the essential elements of the offense of battery on a health care worker, inter alia). Although this issue was not preserved, [Def. MIO 9, 11] insofar as the element was disputed we proposed to hold that the omission constituted fundamental error. [2nd CN 3-4] See, e.g., State v. Valino, 2012-NMCA-105, ¶ 13, 287 P.3d 372 (similarly reversing a conviction for battery on a health care worker and remanding for a new trial after concluding that failure to instruct the jury on an essential element was fundamental error). {3} In its memorandum in opposition the State argues that the jury implicitly found that Defendant acted in a rude, angry, or insolent manner, notwithstanding the omission of this element, because the only conflicting evidence concerned the question whether Defendant struck the victim intentionally or accidentally. [St. MIO 10-12] Insofar as the jury was instructed that intentional conduct was essential, the State contends that the guilty verdict reflects that the jury rejected Defendant's version of the events as accidental. [St. MIO 10-11] However, this does not fully address our concerns. {4} As we observed in the second notice of proposed summary disposition, [2 CN 3-4] in addition to the suggestion of accidental contact, evidence was also presented to the effect that Defendant collided with the victim as Defendant was leaving the hospital, and he acted out of fear because he was receiving inadequate treatment for his seizures and the hospital staff had threatened to keep him against his will. [Def. MIO 6-8; St. MIO 11] To the extent that Defendant's collision with the victim was precipitated by fear, the jury might have concluded that his conduct should not be characterized as rude, angry, or insolent. {5} In closing, we continue to acknowledge that the evidence was amply sufficient to support a conviction,[CN 2-6; 2 CN 3] and that the jury could reasonably reject Defendant's "self-serving" testimony about his state of mind and course of conduct. [St. MIO 11-12] However, insofar as the evidence was capable of supporting conflicting inferences, we must reverse and remand for a new trial. See generally State v. Lopez, 1996-NMSC-036, ¶ 13, 122 N.M. 63, 920 P.2d 1017 ("We will only affirm a case in which the trial court failed to instruct the jury on an essential element when, under the facts adduced at trial, that omitted element was undisputed and indisputable, and no rational jury could have concluded otherwise." (internal quotation marks and citation omitted)); State v. Benavidez, 1999-NMCA-053, ¶ 28, 127 N.M. 189, 979 P.2d 234 (concluding that to speculate on how a properly instructed jury would have decided a case "would jeopardize Defendant's right to have his conviction rest on an actual finding of guilt, beyond a reasonable doubt, as to each essential element of the crime charged, as our case law requires"), vacated on other grounds, 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274. {6} Accordingly, for the reasons stated above and in the notice of proposed summary disposition, we reverse and remand for a new trial.
{7} IT IS SO ORDERED.
/s/ _________
J. MILES HANISEE, Judge
WE CONCUR:
/s/ _________
M. MONICA ZAMORA, Judge /s/ _________
HENRY M. BOHNHOFF, Judge