(dissenting).
{22} I have come to question the development of this case. The prosecution in a district court followed by the necessity of an appeal to this Court seems a waste of the resources of the criminal or juvenile justice system. It never should have gone as far as a district court jury trial. But, since it did, the district court should have given Child’s requested jury instruction on self-defense. I do not concur in the majority opinion’s affirmance. I would reverse.
{23} I agree that Uncle had a right to discipline Child. But, I seriously question the reasonableness, let alone the wisdom, of hitting or beating a young person the age of sixteen with a belt. It was wrong for the prosecuting attorney or the court to adopt Uncle’s characterization of his act as “spanking.” Child’s defense attorney stated it best when he explained that “if they’re going to be subjected to some sort of corporal punishment, if they’re going to certainly be assaulted or have some sort of battery occur, then the potentiality for self-defense arises.” He elaborated further:
[I]f you’re going to get into a wrestling match, is at some point there is going to be a violation of your [bodily] integrity. And at that point, for the wrestling match, before it began, my client must, at some point, believed that he was going to be approached physically for there to be a wrestling match. And at that point, when he believed that he was about to engage in a physical altercation, as demonstrated by the state’s witness’s testimony, I believe he had the right, or the belief that he had a right, to defend himself at that point. And so, he engaged in this wrestling match with the belief that he had the right, the reasonable right, to defend himself. And that is why I think it is proper that the jury to get this instruction on self-defense.
{24} The district court’s reason for denial of the requested self-defense instruction is equally enlightening. The court stated:
[T]he reason for my reluctance, is the fact that it appears to the court appropriate for a parent or someone acting in loco parentis to continue application of, not force but, exertion of influence over a child, whether it be physically or otherwise, and therefore the court’s going to deny seven [requested self-defense instructions].
The trial judge incorrectly calls Uncle’s beating of Child “not force but, exertion of influence over a child.” That characterization is simply not correct. It was not “influence”; it was “force,” and Uncle’s use of force was neither moderate nor reasonable.
{25} I am not saying that a parent, or one in loco parentis, cannot discipline his or her child, even with force, as long as it is reasonable. But, this was not discipline; it was punishment. And punishing a sixteen-year-old boy by beating him with a belt is not a reasonable use of force. In Lefevre, our Court has given Child a right to self-defense against an excessive use of force. See 2005-NMCA-101, ¶ 16, 138 N.M. 174, 117 P.3d 980. Even though Child is not accused of battery for any of his actions downstairs, if Uncle’s force was excessive or abusive, Child had a right to self-defense, even though he did not exercise it. His right to self-defense is carried over much more clearly when Uncle follows Child upstairs and starts a new fight. The restrained manner in which Child exercises his right to self-defense by just trying to get out of there earns him a right to a self-defense instruction under Lefevre. But, assuming arguendo, that it is reasonable, the beating should have ended downstairs when Uncle finished his corporal punishment.
{26} The end of Uncle’s beating downstairs was an important factual juncture in the events of that morning. After the beating, Uncle told Child to go upstairs, and he complied. That should have been the end of it. But, Uncle followed him upstairs and started up the fracas by getting into a wrestling match with Child, even though Child had complied with Uncle’s order to go upstairs to his room. By an objective standard, a reasonable judge or jury could have found that Uncle was well past any possible reasonableness in his punishment and that his use of excessive force had reached the point of being cruel and abusive. What Uncle has done is started a fight in Child’s room. The State erroneously characterized Child’s pushing past Uncle to get out of his own bedroom, after a further attack by Uncle, a battery or an assault upon a household member. The jury should have been able to consider self-defense, and the district court’s denial of the requested instruction was error.
{27} The State acknowledged in its Answer Brief that Lefevre held:
[I]n New Mexico, a parent has a privilege to use moderate or reasonable physical force, without criminal liability, when engaged in the discipline of his or her child. Discipline involves controlling behavior and correcting misbehavior for the betterment and welfare of the child. The physical force cannot be cruel or excessive if it is to be justified. The parent’s conduct is to be measured under an objective standard.
2005-NMCA-101, ¶ 16, 138 N.M. 174, 117 P.3d 980.
{28} Even though Child may not have preserved the issues of a parent’s use of reasonable force versus excessive force or abuse, fundamental error can be raised sua sponte by the Court if it shocks the conscience of the Court. State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. I would hold that this is a matter of fundamental error.
{29} I would reverse and grant a new trial, giving the district attorney in Curry County, in his discretion, an opportunity to decline to re-prosecute.
{30} I, therefore, respectfully dissent.