OPINION
WOOD, Chief Judge.Defendant appeals his convictions of aggravated burglary and aggravated assault. Sections 40A-16^4 and 40A-3-2, N.M.S.A. 1953 (2d Rpl.Vol. 6). The appeal turns on the sufficiency of the evidence. We affirm the aggravated burglary conviction. We reverse the aggravated assault conviction.
Defendant entered the apartment of Mr. and Mrs. Cardona at approximately 5 :30 a. m. The entry was made after cutting the screen door with a knife.
Mr. and Mrs. Cardona were in bed, asleep. Mrs. Cardona was nude. She awakened to find defendant sitting on the side of the bed, kissing her lips and fondling her breasts. She was scared; she yelled for her husband.
The husband awakened, saw defendant sitting on the bed and got up “to see who it was.” Defendant stood up at the same time with a knife in his hand about waist high. In Spanish, defendant said to Mr. Cardona, “ ‘Come on. Let’s go.’ ”
Mr. Cardona followed defendant into the kitchen. After entering the kitchen, defendant closed the knife blade and put the knife in his pocket. Defendant kept his hand in his pocket during the conversation that followed.
In the kitchen, both men walked to the front door, and both opened the door at the same time. For 15 or 20 minutes, the two men argued over whether Mr. Cardona had accused defendant and some of his friends of a burglary at the Town House. After dressing, Mrs. Cardona entered the kitchen and heard defendant say he was a detective. She asked for identification. Defendant had none. Mr. Cardona did not believe defendant was a detective and told his wife to telephone the police. Mrs. Car-dona telephoned the police; defendant ran out of the apartment.
Aggravated burglary.
Section 40A-16^1, supra, defines aggravated burglary. In this case, aggravated burglary must consist of an unauthorized entry, “with intent to commit any felony,” when the defendant either is armed with a deadly weapon or commits a battery upon a person after the entry.
The element contested is that of defendant’s intent to commit a felony. Defendant claims the evidence is insufficient to show such an intent. We disagree.
In this appeal, the State asserts defendant’s intent upon entry was “to scare the dickens out of” the Cardonas. The State makes no effort to show that “scaring” is a crime, much less a felony.
At trial, the prosecutor had two theories as to the felony intended at the time of entry — rape and aggravated assault. The trial court indicated agreement with the defense contention that the evidence was insufficient to show an intent to rape. The trial court asked the prosecutor if he wanted to withdraw rape. The prosecutor stated he would be satisfied with assault.
Thus, the felony intended at entry was limited to an assault. The felony of which the jury was informed was aggravated assault.
The trial court instructed the jury that aggravated assault consisted of unlawfully assaulting another with a deadly weapon. Section 40A-3-2, supra. It defined assault as: “Any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery.” Section 40A-3-l(B), N.M.S.A.1953 (2d Repl.Vol. 6). It defined battery as the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner. Section 40A-3-4, N.M.S.A.1953 (2d Repl.Vol. 6).
Mrs. Cardona did not see the knife, but that is immaterial. Our concern is with defendant’s intent upon entry. At the time of his unauthorized entry, defendant was armed with a deadly weapon. His kissing and fondling of Mrs. Cardona was an unlawful act. She was scared. Defendant concedes that his touching of Mrs. Cardona amounted to a battery. Intent may be proven by inference from the facts and circumstances. State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App.1971); State v. Ortega, 79 N.M. 707, 448 P.2d 813 (Ct.App.1968). The evidence is sufficient to establish that defendant’s intent upon entry was to commit an aggravated assault.
Defendant raises three other issues concerning the aggravated burglary. These issues are directed to the sufficiency of the information to charge the crime and the sufficiency of the instructions defining the crime. None of these issues were raised in the trial court. None amounted to an issue that may be raised for the first time on appeal. They will not be reviewed. See Rule 11 of the Rules Governing Appeals.
Aggravated assault.
Defendant was not charged with an aggravated assault upon Mrs. Cardona. The charge was that aggravated assault was committed upon Mr. Cardona.
For there to be an aggravated assault there must first be an assault. For there to be an assault upon Mr. Cardona, there must have been an act, threat or conduct which caused Mr. Cardona to reasonably believe he was in danger of receiving an immediate battery.
There is no direct evidence of Mr. Cardona’s belief. As the trial court pointed out: “he didn’t say why he got out of bed and went in the other room.” The evidence does not permit an inference as to Mr. Cardona’s belief. Mr. Cardona got out of bed to see who it was, followed defendant to the kitchen, walked to and opened the door with defendant, argued with defendant for 15 to 20 minutes and, in defendant’s presence, told his wife to call the police. Defendant held the knife waist high when Mr. Cardona awakened, but put it away upon reaching the kitchen.
The evidence is insufficient to show Mr. Cardona reasonably believed he was in danger of receiving an immediate battery.
The judgment and sentence for aggravated burglary is affirmed. The judgment and sentence for aggravated assault is reversed. The cause is remanded for further proceedings consistent with this opinion.
It is so ordered.
HENDLEY, J., concurs. SUTIN, J., dissents.