Opinion
Certiorari Granted May 22, 1998.
Tom Udall, Attorney General, Santa Fe, W. Ann Maggiore, Assistant Attorney General, Albuquerque, for Appellee.
Paul J. Kennedy, Albuquerque, for Appellant.
OPINION
ALARID, Judge.
¶1 Defendant appeals his conviction for aggravated assault with a deadly weapon, raising three issues on appeal. First, Defendant argues that the trial court erred by refusing to suppress a firearm that was seized from Defendant's vehicle. Second, Defendant contends that there was insufficient evidence to prove that the victim reasonably believed he was about to be personally hit by Defendant's vehicle. And third, Defendant maintains that there is insufficient evidence to support the jury's conclusion that Defendant's vehicle was a deadly weapon within the meaning of the aggravated assault statute. Our first and second calendar notices proposed summary affirmance. Each time, Defendant has responded with a timely memorandum in opposition to our proposed disposition. By separate memorandum opinion, we affirm each of the issues raised by Defendant. This opinion, which contains the portion of the memorandum opinion meriting publication, only addresses Defendant's second issue.
FACTS
¶2 The victim in this case testified that he was driving north on Zickert Road in Albuquerque, New Mexico on the evening of June 19, 1996, when he observed a car coming toward him. The victim thought the car was out of control as he observed the car go up the curb, go in reverse, and come toward him again. At that point, he saw a hand waving out the window of the car. The victim stopped his car at Rio Grande Boulevard, and the car came up from behind him and "nudged" the victim's car. The victim proceeded to drive south on Rio Grande Boulevard, and he observed the car come up from behind him again as if he were going to be hit. The car also apparently came up to the side of the victim's car as if the victim was going to be run off the road.
¶3 The victim testified that the driver of the other car, later identified as Defendant, was yelling something at him. The victim also testified that Defendant was pointing something, which the victim believed was a gun. The victim then called the police and proceeded to drive down Rio Grande Boulevard as the car came up next to him again. Defendant drove his car in front of the victim's car, then the victim drove around the Defendant's car. The victim then stopped his car at the intersection of Rio Grande Boulevard and Central Avenue, at which point his car was "nudged" into the road. In all, the victim testified that Defendant's car made contact with his vehicle four or five times. Responding to the victim's 911 call, a police officer arrived on the scene and pulled over the car driven by Defendant.
¶4 After stopping Defendant, the police made Defendant exit the vehicle and lie face down on the ground. The officer then made a quick check of the car for safety purposes. He subsequently arrested Defendant. After the arrest, the officer made a complete search of the vehicle, which he testified was done as a search incident to arrest. During the search, the officer was able to pull down a folding armrest in the middle of the back seat, which gave access to the trunk of the car. In the trunk behind the back seat, the officer found a 9-mm handgun.
¶5 Defendant was ultimately indicted on one count of aggravated assault with a deadly weapon (a motor vehicle), one count of aggravated assault with a deadly weapon (a firearm), one count of aggravated battery with a motor vehicle, one count of tampering with evidence, and one count of possession of a firearm by a felon. Prior to trial, the trial court dismissed the felon in possession of a firearm charge. Also prior to trial, Defendant unsuccessfully moved to suppress the handgun as the fruit of an unlawful, warrantless, search. The jury could not reach a verdict with respect to the counts for aggravated battery and tampering with evidence, and the State later dismissed these counts. However, the jury acquitted Defendant of the charge of aggravated assault with a firearm, and convicted him of aggravated assault with a motor vehicle.
Was There Sufficient Evidence of Aggravated Assault with a Motor Vehicle?
¶6 Defendant argues that there was insufficient evidence to support his conviction for aggravated assault with a deadly weapon (motor vehicle) because the victim never testified that he believed that he personally was about to be struck by Defendant's motor vehicle. The victim testified that he thought his vehicle was going to be hit by Defendant's vehicle and that Defendant's vehicle hit or "nudged" the victim's vehicle several times. Defendant suggests that his conviction for aggravated assault can only be sustained if there is evidence that the victim believed his body was going to be hit by Defendant's vehicle. We disagree.
¶7 Defendant was charged and convicted pursuant to NMSA 1978, Section 30-3-2(A) (1963), which provides that "unlawfully assaulting or striking at another with a deadly weapon" constitutes aggravated assault. See also UJI 14-305 NMRA 1998. Assault may consist of "any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery[.]" NMSA 1978, § 30-3-1(B) (1963). "Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner." NMSA 1978, § 30-3-4 (1963). Defendant interprets these statutes to mean that an aggravated assault could not have occurred in this case unless the victim reasonably believed that his person was about to be struck by Defendant's vehicle.
¶8 However, New Mexico case law provides that "battery does not require actual physical contact between the defendant and the victim ." State v. Ortega, 113 N.M. 437, 440, 827 P.2d 152, 155 (Ct.App.1992). "Touching something intimately connected with the victim's body is sufficient." Id.; see also 2 Wayne R. LaFaves&sAustin W. Scott, Jr., Substantive Criminal Law § 7.15, at 303 (1986) (for criminal battery, force need not be applied directly to victim's body but may also be applied indirectly). Defendant contends that Ortega is distinguishable because this case involves a motor vehicle, which does not have a sufficient intimate connection with the victim's body. However, case law from other jurisdictions provides that using a motor vehicle to intentionally strike another person's occupied vehicle may constitute battery. See State v. Townsend, 124 Idaho 881, 865 P.2d 972, 976 (1993). We hold that the use of a motor vehicle to intentionally strike an occupied vehicle is sufficient intimate connection with the victim's body to support a charge of battery.
¶9 Defendant further contends that the jury should have been instructed that it had to find an intimate connection between the victim and his vehicle. However, Defendant has not cited any authority to support this argument. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). Further, our uniform jury instructions do not require that the jury be instructed in such a manner. We also find it significant that Defendant did not request the type of instruction that he now suggests should have been given below. See State v. Noble, 90 N.M. 360, 365, 563 P.2d 1153, 1158 (1977) ("Objections to instructions cannot be raised for the first time on appeal where defendant neither objected to the instructions at trial nor tendered any written request."). We believe the trial court properly decided as a matter of law that, if the jury found that Defendant intentionally struck the victim's vehicle as the victim alleged, there would be sufficient evidence to support a conviction for aggravated assault.
¶10 Defendant also argues as a matter of public policy that, if we construe the facts of this case to support his conviction for aggravated assault, our disposition will invite plaintiffs to append a civil cause of action for assault or battery to virtually every automobile tort case. We disagree. There is no indication that virtually every automobile tort case involves the level of intentional conduct demonstrated by Defendant in this case. Nor do we perceive this opinion as creating any new civil cause of action.
CONCLUSION
¶11 Accordingly, based on the foregoing, we hold that the trial court correctly denied Defendant's motion for directed verdict. There is sufficient evidence to support Defendant's aggravated assault conviction.
¶12 IT IS SO ORDERED.
WECHSLER and BUSTAMANTE, JJ., concur.