A. Aggravated assault upon a peace officer consists of:

(1) unlawfully assaulting or striking at a peace officer with a deadly weapon while he is in the lawful discharge of his duties;

(2) committing assault by threatening or menacing a peace officer 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 peace officer while he is in the lawful discharge of his duties with intent to commit any felony.

B. Whoever commits aggravated assault upon a peace officer is guilty of a third degree felony.

History: 1953 Comp., § 40A-22-21, enacted by Laws 1971, ch. 265, § 2.

Cross references. — For definition of deadly weapon, see 30-1-12 NMSA 1978.

For aggravated assault, see 30-3-2 NMSA 1978.

For third-degree felony of assault by prisoner, see 30-22-17 NMSA 1978.

Lesser included offense. — When an accused is charged under Section 30-22-1B NMSA 1978, the fleeing, evading method of resisting, evading or obstructing an officer, it is not a lesser included offense of aggravated assault upon a peace officer. State v. Hamilton, 1988-NMCA-023, 107 N.M. 186, 754 P.2d 857, cert. denied, 107 N.M. 132, 753 P.2d 1320.

Intent required to sustain conviction under this section is that of conscious wrongdoing. Rutledge v. Fort, 1986-NMSC-017, 104 N.M. 7, 715 P.2d 455, overruled on other grounds by Reese v. State, 1987-NMSC-079, 106 N.M. 498, 745 P.2d 1146.

Conscious wrongdoing required. — Conscious wrongdoing is an essential element of Paragraph (1) of Subsection A, and instructions in the language of the statute were insufficient to inform the jury of the intent required. State v. Cutnose, 1974-NMCA-130, 87 N.M. 307, 532 P.2d 896, cert. denied, 87 N.M. 299, 532 P.2d 888 (1975).

Sufficient evidence of aggravated assault on a peace officer based on a theory of accessory liability. — Where police officers attempted to execute a search of defendant's residence pursuant to a warrant, and where, as officers approached a camper on the property, the officers heard and saw gunfire coming from the camper, striking one of the officers, evidence that defendant owned the camper and was inside the camper at the time of the gunfire, and that DNA tests performed on several of the firearms retrieved from the camper found that defendant was either a major contributor of the DNA or could not be eliminated as a contributor, was sufficient for a reasonable jury to infer that defendant either shot at the officers himself, or, given the availability of firearms and ammunition inside his camper, defendant encouraged, helped, or caused others to shoot at the officers. State v. Uribe-Vidal, 2018-NMCA-008.

Defendant's knowledge as to identity of peace officer assaulted is a necessary element of the crimes defined in this section and Section 30-22-24 NMSA 1978. State v. Nozie, 2009-NMSC-018, 146 N.M. 142, 207 P.3d 1119; Reese v. State, 1987-NMSC-110, 106 N.M. 505, 745 P.2d 1153.

To deny the defendant the right to have the jury informed as to his knowledge of the identity of police officer he assaulted would be to deny him the right to have the jury apprised of a necessary element of the crime for which he is charged, and that in turn would be to deny him his constitutional guarantee of due process of law, Reese v. State, 1987-NMSC-110, 106 N.M. 505, 745 P.2d 1153.

Officer's performance is essential element of crime because of the requirement that the jury be instructed that the officer must have been performing his duties and the restriction on fiddling with an elements instruction. State v. Rhea, 1979-NMCA-121, 93 N.M. 478, 601 P.2d 448.

When officer in lawful discharge of duties. — Even if an officer makes an arrest without probable cause, the officer is performing official duties if the officer is acting in good faith and within the scope of what the officer is employed to do. State v. Tapia, 2000-NMCA-054, 129 N.M. 209, 4 P.3d 37, cert. denied, 129 N.M. 208, 4 P.3d 36.

Jury instruction on self-defense. — Where a police officer stopped defendant for failing to wear a seat belt; defendant became angry and grabbed defendant's driver's license from the officer; the officer drew a gun; defendant drove away; when the officer caught up with defendant, defendant approached the officer in an aggressive manner, cursing the officer; the officer sprayed defendant with pepper spray and drew the officer's gun; and defendant picked up a tire iron and approached the officer, the officer used reasonable force and defendant was not entitled to a self-defense instruction. State v. Ellis, 2008-NMSC-032, 144 N.M. 253, 186 P.3d 245, rev'g 2007-NMCA-037, 141 N.M. 370, 155 P.3d 775.

Failure to instruct reversible error. — The failure to instruct that the officer must have been performing his duties is the omission of an essential element, and this omission requires reversal of a conviction of aggravated assault upon a peace officer. State v. Rhea, 1979-NMCA-121, 93 N.M. 478, 601 P.2d 448.

Assault with razor. — Testimony of police officers concerning incidents where defendant struck at officers with a straight razor was substantial evidence to support defendant's conviction for aggravated assault upon a peace officer. State v. Vallejos, 1974-NMCA-009, 86 N.M. 39, 519 P.2d 135.

Lesser included offense instruction on resisting arrest. — In a prosecution for aggravated assault on a peace officer, since there was evidence that resisting in violation of either Subsection B or D of 30-22-1 NMSA 1978 was the highest degree of crime committed, the defendant was entitled to a charge on the lesser offense. State v. Diaz, 1995-NMCA-137, 121 N.M. 28, 908 P.2d 258, cert. denied, 120 N.M. 828, 907 P.2d 1009.

Conviction of resisting, evading, or obstructing police officer. — The defendant was properly convicted of resisting, evading or obstructing an officer, because the evidence supported the verdict of the jury to that charge, and his opportunity to prepare and defend against the charge was not impaired by the fact that such an offense varied from the crime charged in the criminal information, i.e., aggravated assault upon a peace officer. State v. Hamilton, 1988-NMCA-023, 107 N.M. 186, 754 P.2d 857, cert. denied, 107 N.M. 132, 753 P.2d 1320.

Collateral estoppel. — The state is collaterally estopped from attempting to prove in district court that the defendant was the driver of a car used in an assault when it has already tried and failed to prove this same issue in municipal court. Abramson v. Griffin, 693 F.2d 1009 (10th Cir. 1982).

Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For annual survey of New Mexico criminal law and procedure, 19 N.M.L. Rev. 655 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Intent to do physical harm as essential element of crime of assault with deadly or dangerous weapon, 92 A.L.R.2d 635.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.