2024 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 3 - Assault and Battery
Section 30-3-9 - Assault; battery; school personnel.
A. As used in this section:
(1) "in the lawful discharge of his duties" means engaged in the performance of the duties of a school employee; and
(2) "school employee" includes a member of a local public school board and public school administrators, teachers and other employees of that board.
B. Assault upon a school employee consists of:
(1) an attempt to commit a battery upon the person of a school employee while he is in the lawful discharge of his duties; or
(2) any unlawful act, threat or menacing conduct which causes a school employee while he is in the lawful discharge of his duties to reasonably believe that he is in danger of receiving an immediate battery.
Whoever commits assault upon a school employee is guilty of a misdemeanor.
C. Aggravated assault upon a school employee consists of:
(1) unlawfully assaulting or striking at a school employee with a deadly weapon while he is in the lawful discharge of his duties;
(2) committing assault by threatening or menacing a school employee who is engaged in the lawful discharge of his duties by a person wearing a mask, hood, robe or other covering upon the face, head or body, or while disguised in any manner so as to conceal identity; or
(3) willfully and intentionally assaulting a school employee while he is in the lawful discharge of his duties with intent to commit any felony.
Whoever commits aggravated assault upon a school employee is guilty of a third degree felony.
D. Assault with intent to commit a violent felony upon a school employee consists of any person assaulting a school employee while he is in the lawful discharge of his duties with intent to kill the school employee.
Whoever commits assault with intent to commit a violent felony upon a school employee is guilty of a second degree felony.
E. Battery upon a school employee is the unlawful, intentional touching or application of force to the person of a school employee while he is in the lawful discharge of his duties, when done in a rude, insolent or angry manner.
Whoever commits battery upon a school employee is guilty of a fourth degree felony.
F. Aggravated battery upon a school employee consists of the unlawful touching or application of force to the person of a school employee with intent to injure that school employee while he is in the lawful discharge of his duties.
Whoever commits aggravated battery upon a school employee, inflicting an injury to the school employee which is not likely to cause death or great bodily harm but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a fourth degree felony.
Whoever commits aggravated battery upon a school employee, inflicting great bodily harm, or does so with a deadly weapon or in any manner whereby great bodily harm or death can be inflicted, is guilty of a third degree felony.
G. Every person who assists or is assisted by one or more other persons to commit a battery upon any school employee while he is in the lawful discharge of his duties is guilty of a fourth degree felony.
History: Laws 1989, ch. 344, § 1.
ANNOTATIONSSchool employee. — Security guards providing services for a school district pursuant to a contact with a school board are school employees. State v. Johnson, 2009-NMSC-049, 147 N.M. 177, 218 P.3d 863, rev'g 2008-NMCA-106, 144 N.M. 629, 190 P.3d 350.
Where a private security company and a school district entered into a contract to provide security services to the school district; the security company hired and paid security guards to work at a high school; the security guards were neither hired directly by the school board nor paid directly by the school board for their services pursuant to the contract; the principal of the high school determined what hours the security guards should work and at what locations; the principal could dictate that a particular security guard could not work at the high school; and the site administrator had full direction over security guard assignments, including temporary assignments at other school district schools, the security guards were school employees. State v. Johnson, 2009-NMSC-049, 147 N.M. 177, 218 P.3d 863, rev'g 2008-NMCA-106, 144 N.M. 629, 190 P.3d 350.
Contract security guards. — Where a school district contracted with a third party to provide school security guards; the school district set the hours worked by the guards, supervised them on a daily basis and required the guards to adhere to policies and procedures of the school district; the third party retained the ability to hire, fire and discipline the guards; the third party was required to insure the guards; and the third party paid the guards' salaries, the security guards were not school employees. State v. Johnson, 2008-NMCA-106, 144 N.M. 629, 190 P.3d 350, rev'd, 2009-NMSC-049, 147 N.M. 177, 218 P.3d 863.
"Use" of a deadly weapon in the context of assault with a deadly weapon construed. — A defendant uses a deadly weapon to commit assault where a defendant makes facilitative use of the deadly weapon. Facilitative use of a deadly weapon may be found if (1) a deadly weapon is present at some point during the encounter, (2) the victim knows or, based on the defendant's words or actions, has reason to know that the defendant has a deadly weapon, and (3) the presence of the weapon is intentionally used by the defendant to facilitate the commission of the assault. State v. Zachariah G., 2022-NMSC-003, aff'g 2021-NMCA-036.
Sufficient evidence of assault on a school employee with a deadly weapon. — Where a child was adjudicated a delinquent for committing aggravated assault with a deadly weapon on a school employee, there was sufficient evidence to support the adjudication where, although the child did not brandish the BB gun he had concealed in his waistband, the child refused to reveal the object to the school principal and asked the principal menacing questions, including "What would happen if somebody shot up the school?", "Are you afraid to die?", and "How would you feel if a twelve-year old shot you?". There was sufficient evidence to satisfy the essential element that the child used the deadly weapon where the evidence supported findings that a deadly weapon was present, that the principal knew or had reason to know from the child's words and actions that the child had a BB gun when the child threatened him, and that the presence of the weapon was intentionally used by the child to facilitate the commission of an assault on the principal. Based on the child's verbal threats that took advantage of the presence of the BB gun, it was reasonable for the jury to determine that the child's conduct caused the principal to reasonably believe that he was in danger of receiving an immediate battery, and thus the child used the deadly weapon to facilitate the assault. State v. Zachariah G., 2022-NMSC-003, aff'g 2021-NMCA-036.
Sufficient evidence of aggravated assault with a deadly weapon on a school employee. — Where a child was adjudicated a delinquent for committing aggravated assault with a deadly weapon on a school employee, there was sufficient evidence to support the adjudication where, although the child did not brandish or retrieve a BB gun he had concealed in his waistband, the child refused to reveal the object to the school principal and asked the school principal menacing questions, including "What would happen if somebody shot up the school?", "Are you afraid to die?", and "How would you feel if a twelve-year-old shot you?". A reasonable juror could have determined that the child threatened the principal with the BB gun and that the gun was instrumental to the child's assault because the child's menacing and threatening questions instilled fear in the principal while the gun was bulging from the child's pants and of which the child knew the principal was aware. State v. Zachariah G., 2021-NMCA-036, cert. granted.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Sufficiency of bodily injury to support charge of aggravated assault, 5 A.L.R.5th 243.
