FROM THE DISTRICT COURT OF SAN JUAN COUNTY William C.
Birdsall, District Judge
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
M. VANZI, Chief Judge
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."
On remand, we withdraw the opinion issued on May 23, 2016,
and substitute this opinion in its stead.
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
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).
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
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.
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.
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."
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."
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.
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.
Instructional Error and Sufficiency of the
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.
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.").
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
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, Â¶ 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
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.
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
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 ...