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State v. Branch

Court of Appeals of New Mexico

January 23, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
LAWRENCE BRANCH, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY William C. Birdsall, District Judge

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

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


          LINDA M. VANZI, Chief Judge

         {1} Defendant appeals his convictions for aggravated battery with a deadly weapon, negligent use of a deadly weapon, and aggravated assault with a deadly weapon. On May 23, 2016, we issued an opinion affirming in part, reversing in part, and remanding for the district court to document its findings related to the serious violent offense designation. State v. Branch, 2016-NMCA-071, 387 P.3d 250. The Supreme Court granted a writ of certiorari and conditional cross-petition on July 28, 2016. Order at 1, State v. Branch, No. S-1-SC-35951 (July 28, 2016). The Court subsequently quashed the writ of certiorari on Defendant's petition, and quashed and remanded this case to this Court on the State's conditional cross-petition after deciding issues related to whether the firearm enhancements on sentences for aggravated assault with a deadly weapon violated double jeopardy in State v. Baroz, 2017-NMSC-030, ¶¶ 20-27, 404 P.3d 769. In that case, our Supreme Court noted that "[t]he legislative policy behind the firearm sentence enhancement is that a noncapital felony, committed with a firearm, should be subject to greater punishment than a noncapital felony committed without a firearm because it is more reprehensible." Id. ¶ 27. Consequently, because the Legislature intended to authorize an enhanced punishment when a firearm is used in the commission of aggravated assault, the Court held that "[t]he sentence enhancement does not run afoul of double jeopardy." Id.

         {2} On remand, we withdraw the opinion issued on May 23, 2016, and substitute this opinion in its stead.

         {3} As we noted in our original opinion, there is no question that Defendant Lawrence Branch shot and injured his adult son, Joshua Branch, with a .44 caliber revolver. Defendant confessed to the shooting and was charged with aggravated battery with a deadly weapon and negligent use of a deadly weapon. He was also charged with aggravated assault with a deadly weapon for allegedly assaulting his wife, Patricia Branch, on the theory that Defendant's conduct caused Patricia to reasonably believe that he was about to batter her as well. The key issue at trial was whether the shooting, which was the basis for all three charges, was in self defense.

         {4} The jury ultimately convicted Defendant on all counts. Penalties for aggravated battery and aggravated assault were each increased by one year pursuant to the statutory firearm enhancement. NMSA 1978, § 31-18-16(A) (1993). The district court then adjudged the aggravated assault conviction to be a "serious violent offense, " which limits Defendant's eligibility for good time credit for time served in a state prison. See NMSA 1978, § 33-2-34(A)(1) (2006, amended 2015).

         {5} On appeal, Defendant argues that (1) insufficient evidence and instructional error require reversal of the aggravated assault conviction, (2) multiple punishments violate Defendant's right to be free from double jeopardy, (3) discovery and evidentiary rulings undermined Defendant's ability to present a defense and to confront the State's evidence with respect to all charges, and (4) the serious violent offense designation to the aggravated assault conviction lacks necessary findings. In our original opinion, we affirmed Defendant's convictions for aggravated assault and aggravated battery, vacated his conviction for negligent use of a deadly weapon, and remanded for the district court to document its findings related to the serious violent offense designation. The Supreme Court order quashed the writ of certiorari on the questions presented in Defendant's petition on the above issues, and they are no longer subject to further consideration. See Order at 2, State v. Branch, No. S-1-SC-35951 (Dec. 18, 2017). On remand, and in light of Baroz, however, we hold that Defendant's firearm enhancements for aggravated assault and aggravated battery do not violate double jeopardy and that the district court's decision in this regard is affirmed.


         {6} By all accounts, Joshua and Defendant spent the morning of May 7, 2012, arguing in the front yard, as they often did, about how best to care for the property they occupied in separate trailers. Joshua, who was a college student in the spring of 2012, left in the middle of the argument to take an exam. The argument resumed upon his return and ended when Defendant fired a single shot, striking Joshua in the thigh. Joshua's injuries resulted in five surgeries and ongoing issues with circulation and limb function. He was on crutches when he testified for the State at trial a year later.

         {7} The specific circumstances surrounding the shooting were contested below. The State's witnesses testified that Defendant was visibly upset-"aggravated, agitated"-that morning. When Joshua finished his exam and returned to his parents' trailer, Defendant, with "hatred in his voice, " told him to "get . . . off the property." The two then shouted back and forth before Joshua attempted to leave. Joshua and Patricia walked toward the concrete slab that surrounded the steps to the porch. He had plans to meet his girlfriend for lunch, and Patricia, attempting to ease the tension, told him to do that. But as Joshua and Patricia talked near the front steps, Defendant walked past them into the house.

         {8} At some point prior, two guns-including a .44 caliber super blackhawk (described as a "hand cannon" by one witness)-were moved from their usual spot in a closet at the back of the trailer and stashed in Defendant's recliner, which faced the trailer's front entrance. Defendant armed himself with the .44 within seconds of entering the trailer and then walked back to the front door. Steven Hickman, a family friend who was visiting the Branch home that day, testified that Defendant "went to the door and then [said] 'get . . . out of here' and then bang, just like that, that quick, the gun was fired."

         {9} Patricia testified that she had her hand on Joshua's shoulder when he was shot. The two were facing one another when she looked up and saw Defendant standing in the doorway with the .44. She hollered, "No!" And Defendant fired. She saw the "fire come out" of the gun, felt something hit her leg, and saw Joshua fall. She testified that she "thought he was going to shoot all of us."

         {10} While Joshua lay bleeding on the pavement, Defendant came out of the trailer and placed a set of keys on the dash of a car that was parked under the carport. He then looked over to Patricia, turned, and walked up the road, stopping only to dispose of his pocket knife in a flower pot on the way out. Patricia did not see Defendant again that day.

         {11} Defendant's version of events differed in some respects. He testified that he was sitting with Patricia on a swing in the yard when Joshua returned from school. Defendant, who no longer wanted to argue, told Joshua that he would leave. When Defendant stood to do so, he saw that Joshua was furious. As Defendant walked toward the trailer, he saw Joshua and Patricia coming toward him. He entered the house and saw Joshua outside, nearing the porch and then reaching for the rail by the door. Defendant was frightened because he knew that Joshua was a "violent kid" with post traumatic stress disorder (PTSD) who had been in several fights before, including a fight in the military. He armed himself with the .44 and shot Joshua, who then released the rail and fell to the concrete. Additional facts will be included as needed in the analysis that follows.


         A. Instructional Error and Sufficiency of the Evidence

         {12} Assault consists of "any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery[.]" NMSA 1978, § 30-3-1(B) (1963). The offense is aggravated when, as in this case, it is committed with a deadly weapon. NMSA 1978, § 30-3-2(A) (1963). Defendant argues that Section 30-3-1(B) required the State to prove something more than general criminal intent, which was the instruction given to the jury. Specifically, Defendant argues that the State had to prove "specific intent to frighten or put someone in fear of an imminent battery[, ]" or at the very least, that one charged with violating Section 30-3-1(B) did so recklessly. Reading limiting principles of this sort into the statute would theoretically ensure some nexus between a defendant and his victim, thereby preventing what might otherwise amount to a construction of the assault statute that criminalizes the infliction of emotional distress for every bystander that is reasonably put in fear by the commission of a nearby crime.

         {13} Defendant's argument is characterized as a sufficiency of the evidence challenge, as a challenge to the jury instructions themselves, and as an assertion of ineffective assistance of trial counsel in failing to request more demanding jury instructions. "Our review for sufficiency of the evidence is deferential to the jury's findings. We review direct and circumstantial evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Webb, 2013-NMCA-027, ¶ 14, 296 P.3d 1247 (alteration, internal quotation marks, and citations omitted). With respect to jury instructions, we review for reversible error when an instruction is preserved and for fundamental error when not. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. Whether preserved or not, however, Defendant's contention ultimately raises an issue of statutory interpretation, for which our review is de novo. State v. Tafoya, 2012-NMSC-030, ¶ 11, 285 P.3d 604; see also State v. Osborne, 1991-NMSC-032, ¶ 40, 111 N.M. 654, 808 P.2d 624 ("[I]t is the duty of the court, not the defendant, to instruct the jury on the essential elements of a crime.").

         {14} Defendant's view of Section 30-3-1(B) has some merit. At common law, "[a] criminal assault was an attempt to commit a battery. A tortious assault was an act which put another in reasonable apprehension of immediate bodily harm." United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976) (per curiam) (citation omitted). The latter type-reasonable apprehension assault-has since been made a crime in many jurisdictions, which have normally adopted specific intent requirements rooted in the offense's history as an intentional tort. Carter v. Commonwealth, 594 S.E.2d 284, 287-88 (Va. Ct. App. 2004); see, e.g., Robinson v. United States, 506 A.2d 572, 575 (D.C. 1986) ("An intent to frighten is sufficient[.]"); Lamb v. State of Maryland, 613 A.2d 402, 413 (Md. Ct. Spec. App. 1992) ("An assault of the intentional frightening variety . . . requires a specific intent to place the victim in reasonable apprehension of an imminent battery."); Commonwealth v. Spencer, 663 N.E.2d 268, 271 (Mass. App. Ct. 1996) ("[P]roof of an intent to cause fear is required."); accord Model Penal Code § 211.1(1)(c) (2015) ("A person is guilty of assault if he . . . attempts by physical menace to put another in fear of imminent serious bodily injury."). This apparent uniformity in other jurisdictions has prompted one leading treatise to categorically declare that "[t]here must be an actual intention to cause apprehension, unless there exists the morally worse intention to cause bodily harm." 2 Wayne R. LaFave & David C. Baum, Substantive Criminal Law § 16.3(b), at 569 (2d ed. 2003).

         {15} But that is not the law of New Mexico. In State v. Cruz, this Court held that specific intent is not an essential element of aggravated assault. 1974-NMCA-077, ¶ 7, 86 N.M. 455, 525 P.2d 382. As a principle of construction, when a statute does not refer to intent, which is the case with Section 30-3-1(B), we normally presume that the only mens rea involved is that of conscious wrongdoing-commonly referred to as "general criminal intent." State v. Campos, 1996-NMSC-043, ¶ 56, 122 N.M. 148, 921 P.2d 1266 (Franchini, J., dissenting). We applied that presumption to aggravated assault in Cruz, and in State v. Cutnose, 1974-NMCA-130, ¶¶ 19-20, 87 N.M. 307, 532 P.2d 896. Cf. State v. Mascarenas, 1974-NMCA-100, ¶¶ 11-12, 86 N.M. 692, 526 P.2d 1285 ("[I]nstructions in the language of the statute sufficiently instruct on the required intent.").

         {16} In State v. Manus, our Supreme Court-apparently persuaded by that reasoning-confirmed that general criminal intent is all that is required to support a conviction of aggravated assault under Section 30-3-1(B). State v. Manus, 1979-NMSC-035, ¶ 12, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v. State, 1982-NMSC-125, ¶¶ 9-10, 98 N.M. 786, 653 P.2d 162. The arguments made in Manus, which was also a bystander-assault case, are nearly identical to those presented here. A police officer and a bystander were filling out an accident report when the defendant approached and killed the officer with a shotgun. Id. ¶ 3. The defendant was charged with killing the officer and assaulting the bystander on the theory that the bystander was put in reasonable fear of receiving an immediate battery. Id. ¶¶ 1, 14.

         {17} The defendant argued that his conviction for aggravated assault of the bystander could not stand because "there was no evidence of any intentional assault directed at [her]." Id. ¶ 12. Our Supreme Court rejected that argument, holding that "[t]he [s]tate was not required to prove that [the defendant] intended to assault [the bystander], but only that he did an unlawful act which caused [the bystander] to reasonably believe that she was in danger of receiving an immediate battery, that the act was done with a deadly weapon, and that it was done with general criminal intent." Id. ¶ 14; see State v. Morales, 2002-NMCA-052, ¶ 36, 132 N.M. 146, 45 P.3d 406 ("To convict [the d]efendant of aggravated assault on a peace officer, the [s]tate was not required to prove that [the d]efendant intended to injure or even frighten [the officer]."), overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110; see also United States v. Rede-Mendez, 680 F.3d 552, 557 (6th Cir. 2012) ("The New Mexico version of aggravated assault differs from the generic version most significantly in the mens rea it attaches to the element of bodily injury or fear of injury."); United States v. Silva, 608 F.3d 663, 675 (10th Cir. 2010) (Hartz, J., dissenting) ("[A] person [in New Mexico] who intentionally handles a weapon in a manner that induces a fear of battery can be guilty of assault even if he merely wants to show off his dexterity in handling the weapon, without any interest in inducing fear.").

         {18} The expansive application of assault in Manus controls our construction of Section 30-3-1(B). In accordance with the language of the statute, the State was only required to prove that Defendant "did an unlawful act which caused [the bystander] to reasonably believe that she was in danger of receiving an immediate battery, that the act was done with a deadly weapon, and that it was done with general criminal intent." Manus, 1979-NMSC-035, ¶ 14. There is no nexus required between Defendant and Patricia. Liability under the statute is only ...

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