dissenting.
I dissent.
In Rutledge v. Fort, 104 N.M. 7, 715 P.2d 455 (1986), this Court, interpreting the plain language of NMSA 1978, Sections 30-22-22 and 30-22-24 (Repl.Pamp.1984), held that the offenses of aggravated assault and battery upon a peace officer require proof that the defendant acted with a mental state of conscious wrongdoing (i.e., that he purposefully did an act the law declares to be a crime) but not proof that the defendant had knowledge of the fact that he was assaulting a peace officer who was in the lawful discharge of his duties. In that case, we issued a writ of superintending control prohibiting the district court from giving an instruction requiring the jury to find that the defendant had such knowledge.
The relevant uniform jury instructions issued by this Court have not been revised since we issued our Rutledge v. Fort opinion, and they merely require that an aggravated assault or battery was made upon a named victim and proof that the named victim was an officer and was performing his duties. See SCRA 1986, 14-2203, 14-2211.
The laws regarding interference with law enforcement were promulgated by one act of the Legislature, 1963 N.M. Laws, ch. 303, Sections 22-1 through 22-19, and strongly indicate a clear purpose to protect peace officers and law enforcement activities. The United States Supreme Court, in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), recognized that these were legitimate goals of a similar federal statute and held that that statute required proof only of an “intent to assault, not an intent to assault a federal officer.” Id. at 684, 95 S.Ct. at 1264. To hold otherwise, it concluded, “would give insufficient protection to the agent enforcing an unpopular law, and none to the agent acting under cover.” Id. The Court did not even consider the possibility that such protection might violate the constitutional rights of those accused. It stated:
This interpretation poses no risk of unfairness to defendants. It is no snare for the unsuspecting. Although the perpetrator of a narcotics “rip-off,” such as the one involved here, may be surprised to find that his intended victim is a federal officer in civilian apparel, he nonetheless knows from the very outset that his planned course of conduct is wrongful. The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected. In a case of this kind the offender takes his victim as he finds him.
Id. at 685, 95 S.Ct. at 1264.
While the majority points to some federal circuit court cases which attempt to distinguish Feola, the Tenth Circuit has consistently followed the Feola holding. Furthermore, the United States Supreme Court has not altered or reversed its prior opinion; Feola is still good law.
Moreover, the principle that the wrongdoer takes his victim as he finds him underlies many New Mexico criminal statutes, and our Legislature frequently has mandated more severe punishment for offenses committed against members of classes it deems worthy of special protection. For example, peace officers are protected by our capital sentencing laws, which enumerate as an aggravating circumstance the fact that the victim was a peace officer in the lawful discharge of his duties. NMSA 1978, § 31-20A-5(A) (Repl.Pamp.1987). Persons sixty years of age and older are protected by NMSA 1978, Section 31-18-16.1 (Repl.Pamp.1987), which requires the sentencing court to increase the sentence of a noncapital felony offender if, in the course of his crime, such a person was intentionally injured. Pregnant women and their unborn fetuses are protected by NMSA 1978, Section 66-8-101.1 (Repl. Pamp.1987), which extends the scope of our vehicular homicide statute, NMSA 1978, Section 66-8-101 (Repl.Pamp.1987), to vehicular injuries resulting in miscarriage or stillbirth.
The best example of a criminal offense based upon conduct directed at a member of a protected class which can be committed without the offender having knowledge that the victim was a member of the protected class is what is commonly known as “statutory rape.” This offense, presently codified at NMSA 1978, Subsection 30-9-11(A)(1) (Cum.Supp.1987), makes the unlawful and intentional engaging in sexual intercourse with or sexual penetration of a child under thirteen years of age a first degree felony, without regard to consent or the use of force or coercion. See also NMSA 1978, § 30-9-11(B)(1) (Cum.Supp. 1987) (criminal sexual penetration is second degree felony if victim is thirteen to sixteen years of age and perpetrator is in a position of authority which he uses to coerce the child to submit). While our statute has been altered several times since territorial days, New Mexico law has consistently recognized some form of statutory rape. Knowledge or belief regarding the victim’s age clearly is not an element of either of the present offenses. See SCRA 1986, 14-945, 14-957.
Further, the United States Supreme Court has never held that an honest mistake as to the age of the victim is a constitutional defense to statutory rape, and the requisite mental state to sustain criminal convictions has generally been left to the discretion of the states. Nelson v. Moriarty, 484 F.2d 1034, 1035 (1st Cir.1973). Numerous state appellate courts have also held that reasonable belief or good faith mistake as to the victim’s age is no defense to statutory rape charges. See, e.g., State v. Superior Court, 104 Ariz. 440, 454 P.2d 982 (1969); State v. Silva, 53 Haw. 232, 491 P.2d 1216 (1971); Toliver v. State, 267 Ind. 575, 372 N.E.2d 452 (1978); Eggleston v. State, 4 Md.App. 124, 241 A.2d 433 (1968); State v. Reaten, 390 A.2d 1043 (Me.1978); People v. Doyle, 16 Mich.App. 242, 167 N.W.2d 907 (1969); State v. Morse, 281 Minn. 378, 161 N.W.2d 699 (1968).
Like the statutory rape statutes, our statutes regarding battery and assault upon a peace officer by their plain language do not require proof of an additional element of knowledge. These latter statutes meet the clear legislative intention to protect peace officers performing their duties and do not violate any constitutional rights of the defendant. Rutledge v. Fort correctly interpreted these statutes and should not be overruled.
Finally, I disagree with the majority’s conclusion that because the trial court improperly instructed the jury, the court’s error rose to the level of a constitutional violation.
For the foregoing reasons, I respectfully dissent.