1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 30,311
10 JAMES S.,
11 Child-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
13 Daniel Viramontes, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Allison H. Jaramillo, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 SUTIN, Judge.
1 Child challenges the sufficiency of the evidence to support his adjudication of
2 delinquency based on committing battery upon a school employee, contrary to NMSA
3 1978, Section 30-3-9(E) (1989), and assault upon a school employee, contrary to
4 Section 30-3-9(B). We issued a calendar notice proposing to summarily affirm. Child
5 filed a timely memorandum in opposition, which we have duly considered.
6 Unpersuaded, we affirm.
7 DISCUSSION
8 “Substantial evidence review requires analysis of whether direct or
9 circumstantial substantial evidence exists and supports a verdict of guilt beyond a
10 reasonable doubt with respect to every element essential for conviction.” State v.
11 Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86. On appeal, “[w]e
12 determine whether a rational factfinder could have found that each element of the
13 crime was established beyond a reasonable doubt.” Id. We view the evidence in the
14 light most favorable to the verdict, resolving all conflicts and indulging all reasonable
15 inferences in favor of the verdict. State v. Apodaca, 118 N.M. 762, 766, 887 P.2d
16 756, 760 (1994). “Jury instructions become the law of the case against which the
17 sufficiency of the evidence is to be measured.” State v. Smith, 104 N.M. 729, 730,
18 726 P.2d 883, 884 (Ct. App. 1986).
2
1 The offense of battery upon a school employee consists of “the unlawful,
2 intentional touching or application of force to the person of a school employee while
3 he is in the lawful discharge of his duties, when done in a rude, insolent or angry
4 manner.” Section 30-3-9(E). To prove that Child committed the delinquent act of
5 battery upon a school employee, the State was required to prove beyond a reasonable
6 doubt in relevant part that (1) Child intentionally touched or applied force to the
7 victim by bumping his chest against the victim’s chest; (2) the victim was a school
8 employee performing his duties; and (3) Child acted in a rude, insolent, or angry
9 manner. [RP 58]
10 The offense of assault upon a school employee at issue here consists of “any
11 unlawful act, threat or menacing conduct which causes a school employee while he
12 is in the lawful discharge of his duties to reasonably believe that he is in danger of
13 receiving an immediate battery.” Section 30-3-9(B)(2). To prove that Child
14 committed the delinquent act of assault upon a school employee, the State was
15 required to prove beyond a reasonable doubt in relevant part that (1) Child put his face
16 close to the victim’s face and threatened him; (2) Child’s conduct caused the victim
17 to believe that Child was about to intrude on his bodily integrity or personal safety by
18 touching or applying force to the victim in a rude, insolent, or angry manner; (3) a
3
1 reasonable person in the same circumstances as the victim would have had the same
2 belief; (4) the victim was a school employee performing his duties. [RP 59]
3 In satisfaction of these elements, the docketing statement indicates that the State
4 presented evidence that Child verbally confronted a teacher at school after lunch. [DS
5 1] The victim, an instructional assistant, intervened. [Id.] Child began to curse at the
6 victim and threatened to “kick his ass.” [Id.] Child then walked toward the victim with
7 his fists clenched at his sides. [Id.] The victim put his hands behind his back. [Id.]
8 When Child reached the victim, the two bumped chests. [DS 2] Child told the victim
9 that he would find him on the street and walked away. [Id.] Under these
10 circumstances, our calendar notice proposed to hold that there was sufficient evidence
11 that Child committed assault on a school employee and assault on a school employee.
12 In response to our proposed disposition on the battery count, Child argues that
13 the majority of the evidence presented was that Child did not touch the victim or, that
14 if he did, Child was responding to a threat. [MIO 3-5] We are not persuaded.
15 Although Child and his brother testified that Child did not touch the victim, the victim
16 testified that Child bumped chests with him. [MIO 5] Although Child might have
17 introduced conflicting testimony, we defer to the fact finder on such matters of
18 credibility. See State v. Sosa, 2000-NMSC-036, ¶ 8, 129 N.M. 767, 14 P.3d 32; State
4
1 v. Ortiz-Burciaga, 1999-NMCA-146, ¶ 22, 128 N.M. 382, 993 P.2d 96 (holding that
2 it is the “exclusive province of the jury to resolve factual inconsistencies in testimony”
3 (internal quotation marks and citation omitted)). In addition, we remain persuaded
4 that there is sufficient evidence that Child intentionally touched or applied force to the
5 victim by approaching him and bumping his chest against the victim’s chest and that
6 Child did so in a rude, insolent, or angry manner by cursing and making threats,
7 appearing agitated, and then walking toward the victim with clenched fists. Although
8 Child argues that the evidence showed that Child felt threatened by the victim’s
9 aggressive stance [MIO 5], the jury was not required to believe Child’s version of
10 events. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (filed
11 1998) (“Contrary evidence supporting acquittal does not provide a basis for reversal
12 because the jury is free to reject [the d]efendant’s version of the facts.”).
13 We also remain persuaded that the State introduced sufficient evidence that
14 Child committed assault. Our calendar notice proposed to hold that a jury could have
15 reasonably found that Child committed assault by putting his face close to the victim’s
16 face and threatening him, especially given Child’s conduct in appearing agitated,
17 walking up to the victim with clenched fists, and bumping chests with the victim.
5
1 In response, Child continues to argue that the threats made by Child would not
2 have caused a reasonable person to believe that he or she was about to receive an
3 immediate battery. [DS 2; MIO 6-7] We disagree. We remain persuaded that a jury
4 could have reasonably found that Child’s threats, which included promising to “kick
5 his ass” and find him on the street, caused the victim to believe that Child was about
6 to intrude on his bodily integrity or personal safety by touching him in a menacing
7 manner and that a reasonable person in the same circumstances would have had the
8 same belief.
9 CONCLUSION
10 We therefore reject Child’s challenge to the sufficiency of the evidence and
11 affirm.
12 IT IS SO ORDERED.
13 __________________________________
14 JONATHAN B. SUTIN, Judge
15 WE CONCUR:
16 ____________________________________
17 CELIA FOY CASTILLO, Judge
18 ____________________________________
19 ROBERT E. ROBLES, Judge
6