2021 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 3 - Assault and Battery
Section 30-3-15 - Battery against a household member.

Universal Citation: NM Stat § 30-3-15 (2021)

A. Battery against a household member consists of the unlawful, intentional touching or application of force to the person of a household member, when done in a rude, insolent or angry manner.

B. Whoever commits battery against a household member is guilty of a misdemeanor.

C. Upon conviction pursuant to this section, an offender shall be required to participate in and complete a domestic violence offender treatment or intervention program approved by the children, youth and families department pursuant to rules promulgated by the department that define the criteria for such programs.

D. Notwithstanding any provision of law to the contrary, if a sentence imposed pursuant to this section is suspended or deferred in whole or in part, the period of probation may extend beyond three hundred sixty-four days but may not exceed two years. If an offender violates a condition of probation, the court may impose any sentence that the court could originally have imposed and credit shall not be given for time served by the offender on probation; provided that the total period of incarceration shall not exceed three hundred sixty-four days and the combined period of incarceration and probation shall not exceed two years.

History: Laws 1995, ch. 221, § 6; 2001, ch. 144, § 1; 2007, ch. 221, § 1; 2008, ch. 16, § 2.

ANNOTATIONS

The 2008 amendment, effective July 1, 2008, provided for participation in intervention programs in Subsection C.

The 2007 amendment, effective July 1, 2007, added Subsections C and D.

The 2001 amendment, effective July 1, 2001, in Subsection B, increased the penalty for the offense of battery against a household member from a petty misdemeanor to a misdemeanor.

Unlawfulness is an essential element of battery against a household member. — Whether a defendant's touch or application of force was unlawful is an essential element of battery against a household member, so if there is some evidence that excused or justified the defendant's conduct, which is to say if the essential element of unlawfulness was contested, the court has a duty to instruct the jury on the state's burden to prove unlawfulness beyond a reasonable doubt. State v. Smith, 2021-NMSC-025, aff'g A-1-CA-34765, mem. op. (Dec. 16, 2019) (nonprecedential).

Defendant was entitled to an instruction on unlawfulness. — Where defendant was convicted of battery against a household member, based on evidence that defendant pushed his girlfriend to the ground after she pushed him away from the door to prevent him from entering their apartment and that defendant backed his car into his girlfriend, making contact with her arm, when she did not move away while defendant was trying to exit the parking lot, and where, at trial, defendant argued that his use of force was justified as a reasonable response to his girlfriend's initial use of force and that his conduct was justified or excused because his girlfriend committed the crime of deprivation of property of a household member, the trial court erred in denying defendant's requested instruction on unlawfulness, because, as an essential element of the crime of battery against a household member, if there was some evidence that excused or justified defendant's conduct, which is to say if the essential element of unlawfulness was contested, the court had a duty to instruct the jury on the state's burden to prove unlawfulness beyond a reasonable doubt. State v. Smith, 2021-NMSC-025, aff'g A-1-CA-34765, mem. op. (Dec. 16, 2019) (nonprecedential).

Battery against one's own child is not encompassed in the offense of battery against a household member. State v. Stein, 1999-NMCA-065, 127 N.M. 362, 981 P.2d 295.

Sufficient evidence of battery against a household member. — Where defendant was charged with criminal sexual penetration of a minor and battery against a household member, and where the state relied on testimony elicited from the victim that defendant kicked and pushed her and that defendant is her uncle, there was sufficient evidence to prove beyond a reasonable doubt that defendant intentionally touched or applied force to the victim in a rude, insolent or angry manner and that the victim was a household member. State v. Garcia, 2019-NMCA-056, cert. denied.

Adult children. — A plain reading of this section supports a conclusion that the definition of a "household member" includes adult children of the accused. State v. Montoya, 2005-NMCA-005, 136 N.M. 764, 104 P.3d 540, cert. quashed, 2005-NMCERT-011, 138 N.M. 586, 124 P.3d 564.

Right to de novo appeal. — Where defendant was convicted in metropolitan court of battery against a household member in violation of 30-3-4 NMSA 1978, because the state did not prosecute the battery under this section, state could not contend that defendant was convicted of a crime involving domestic violence and he was entitled to a de novo appeal in district court rather than just an on-record review of the proceeding. State v. Trujillo, 1999-NMCA-003, 126 N.M. 603, 973 P.2d 855.

Convictions for robbery and battery against a household member did not violate double jeopardy. — Where defendant, who was a former employee of a restaurant, had an intimate romantic relationship with the victim who was the assistant manager of the restaurant; under the guise of returning the victim's cell phone, defendant approached the victim outside the restaurant, grabbed two money bags containing receipts of the restaurant that the victim intended to deposit; and when defendant grabbed the money bags, defendant struck the victim in the face and fled the scene, defendant's conviction for robbery and battery against a household member did not violate double jeopardy. State v. Gutierrez, 2012-NMCA-095, 286 P.3d 608, cert. denied, 2012-NMCERT-008.

State statute does not preempt municipal ordinance. — The state statute providing a full misdemeanor penalty for certain acts of domestic violence does not preclude prosecution of an offense under a municipal ordinance that only provides a petty misdemeanor penalty. 2008 Op. Att'y Gen. No. 08-06.

Am. Jur. 2d, A.L.R. and C.J.S. references. — "Cohabitation" for purposes of domestic violence statutes, 71 A.L.R.5th 285.

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