State v. Ebert

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JAMES EBERT, Defendant-Appellant.

No. A-1-CA-39185

Court of Appeals of New Mexico

April 18, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Angie K. Schneider District Judge

Hector H. Balderas, Attorney General Laurie Blevins, Assistant Attorney General Santa Fe, NM for Appellee

Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant

MEMORANDUM OPINION

MEGAN P. DUFFY, JUDGE

{¶1} A jury convicted Defendant James Ebert of two counts of aggravated assault upon a peace officer in violation of NMSA 1978, Section 30-22-22(A)(1) (1971), and one count of unlawful carrying of a deadly weapon on school premises in violation of NMSA 1978, Section 30-7-2.1 (1994). ^[1] Defendant appeals these convictions, arguing that (1) the district court erred by refusing Defendant's request for jury instructions on resisting, evading, or obstructing an officer (resisting) as a lesser included offense of the aggravated assault counts and by failing to modify the uniform jury instruction for aggravated assault upon a peace officer; (2) the State presented insufficient evidence to support his convictions; and (3) the district court improperly polled the jury. For the reasons that follow, we affirm Defendant's conviction for unlawfully carrying a deadly weapon on school premises. However, because we conclude that Defendant was entitled to have the jury instructed on resisting as a lesser included offense of aggravated assault upon a peace officer, we reverse Defendant's convictions for aggravated assault and hold that sufficient evidence exists to support remand for a new trial on those counts.

DISCUSSION

I. Instructional Errors

{¶2} Defendant raises two preserved claims of error relating to the jury instructions for aggravated assault upon a peace officer: (1) the jury should have been instructed on resisting as a lesser included offense of aggravated assault on a peace officer, and (2) the UJI for aggravated assault on a peace officer should have been modified. We agree with Defendant's first argument but reject his second.

A. Defendant Was Entitled to Have the Jury Instructed on Resisting as a Lesser Included Offense of Aggravated Assault on a Peace Officer

{¶3} We first address Defendant's argument that the district court erred in denying his request for instructions on resisting or abusing an officer, contrary to Section 30-22-1(D), as a lesser included offense of aggravated assault on a peace officer. Defendant's two convictions for aggravated assault stem from the same twenty-minute encounter but concern different police officers, Officer Garrett (Count 2) and Officer Alonzo (Count 3).

{¶4} We review de novo the district court's refusal to instruct the jury on a lesser included offense. State v. Munoz, 2004-NMCA-103, ¶ 10, 136 N.M. 235, 96 P.3d 796. "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. Jernigan, 2006-NMSC-003, ¶ 21, 139 N.M. 1, 127 P.3d 537. In this case, only the second element is in dispute. See State v. Diaz, 1995-NMCA-137, ¶ 14, 121 N.M. 28, 908 P.2d 258 (holding that resisting in violation of Section 30-22-1(D) is a lesser included offense of aggravated assault on a peace officer).

{¶5} As a preliminary matter, to the extent the State contends that the only element distinguishing aggravated assault from resisting in this case was the use of a deadly weapon, we disagree. As Defendant correctly notes, "[T]he main elements distinguishing the two offenses are whether the defendant engaged in conduct that was merely resistive and abusive versus conduct that was actually menacing or threatening; whether the officer feared an immediate battery as a result; and whether that fear was reasonable." Compare § 30-22-22(A)(1) (defining "aggravated assault upon a peace officer" as "unlawfully assaulting or striking at a peace officer with a deadly weapon while he is in the lawful discharge of his duties"), and UJI 14-2202 NMRA (setting forth the essential elements of aggravated assault on a peace officer), with § 30-22-1(D) (stating that "[r]esisting, evading or obstructing an officer consists of . . . resisting or abusing any . . . peace officer in the lawful discharge of his duties"); see generally State v. Jimenez, 2017-NMCA-039, ¶ 39, 392 P.3d 668 (stating that "[o]ur cases illustrate that another way a person can violate Subsection (D) is by avoiding doing something required, including refusing to comply with an officer's orders").

{¶6} In this case, there is evidence tending to establish the crime of resisting and that resisting is the highest degree of crime committed by Defendant. See Diaz, 1995-N MCA-137, ¶ 8. Officers encountered Defendant in the midst of a mental health crisis, yelling and pacing back and forth with a machete and a knife in his hands in the parking lot of an elementary school around eleven o'clock p.m. Five officers arrived at the scene, and the entire twenty-minute incident is captured on the officers' lapel cameras. Video from three of these cameras were made exhibits at trial and played for the jury.

{¶7} During the encounter, Defendant yelled at the officers and refused to comply with their repeated commands to drop the machete. The videos showed Defendant continuously walking back and forth, swinging his arms and occasionally gesturing with the weapons in his hands. Throughout the encounter, he remained at a distance from the officers; he never came closer than approximately forty to fifty feet to Officer Garrett and no closer than thirty to forty feet to Officer Alonzo. After about twenty minutes, Defendant walked away from the officers into a public housing area, at which point he dropped the machete and small knife. Defendant appeared in the area of the school again minutes later, and the officers were able to approach and apprehend him at that point.

{¶8} Much like Diaz, the evidence here was sufficient to show that Defendant "was only resisting officers, and not menacing or threatening them," such that the highest degree of offense committed by Defendant was "resisting or abusing" the officers in violation of Section 30-22-1(D). See Diaz, 1995-NMCA-137, ¶¶ 16-23 (holding under similar facts that the defendant was entitled to an instruction on resisting in violation of Section 30-22-1(D) as a lesser included offense of aggravated assault on a peace officer). A jury could reasonably have concluded from the video evidence that Defendant did not pose a threat to the officers because he maintained his distance from the officers and never raised his weapons or advanced on them as if to attack. As well, the jury heard conflicting evidence about whether Defendant verbally threatened the officers while holding a weapon. Officer Garrett, for example, admitted that Defendant's words were more akin to challenges and not threats, and also testified that Defendant never made any threatening statements to him during the entire encounter. From this evidence, the jury could reasonably have concluded that Defendant resisted the officers but that his conduct did not objectively threaten their safety. See Diaz, 1995-NMCA-137, ¶ 18.

{¶9} Likewise, the jury was presented with conflicting evidence regarding the officers' subjective fear of an imminent battery. At trial, Officer Garrett testified that he believed Defendant was going to attack him with the machete. Officer Alonzo similarly testified that he thought he "could have been attacked" and feared for his life because of "the distance, the deadly weapon, and the aggression [of Defendant]." However, the jury also received video from Officer Alonzo's lapel camera where, while waiting for the machete and knife to be photographed, Officer Alonzo asked a fellow officer, "So what, besides resisting, what charge do we have?" The officer responded, "We can-we're all in fear of being attacked." Officer Alonzo replied, "He never advanced. He never advanced, though." In light of this, the jury may have declined to credit the officers' testimony regarding their subjective fear of Defendant and could reasonably have concluded "that the officers had no reason to fear" Defendant. See id. ¶ 22; see also id. ¶ 19 (holding that "[i]f the jury believed the testimony that [the d]efendant challenged and directed profanity at the officers while holding a weapon, but did not actively threaten or menace them, then [the d]efendant could have been found guilty of resisting by abusing the officers").

{¶10} Because the evidence was sufficient to establish the crime of resisting and that resisting was the highest degree of crime committed, we hold that the district court erred by denying Defendant's request for instructions on the lesser included offense. See id. ¶ 19. We therefore reverse Defendant's convictions for aggravated assault upon a peace officer.

{¶11} Finally, because it bears on our decision to remand for retrial, we briefly address Defendant's claim that there was insufficient evidence to support his convictions for aggravated assault upon a peace officer. E.g. State v. Hernandez, 2017-NMCA-020, ¶ 30, 388 P.3d...