Aggravated assault consists of either:

A. unlawfully assaulting or striking at another with a deadly weapon;

B. committing assault by threatening or menacing another while 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

C. wilfully [willfully] and intentionally assaulting another with intent to commit any felony.

Whoever commits aggravated assault is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-3-2, enacted by Laws 1963, ch. 303, § 3-2.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For aggravated assault upon peace officer, see 30-22-22 NMSA 1978.

For instruction on general criminal intent, see UJI 14-141 NMRA.

I. GENERAL CONSIDERATION.

Legislative intent for separate punishments. — As each offense includes one statutory element not included in the other, the presumption is that the legislature intended to punish separately the two offenses of aggravated assault and armed robbery. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.

Multiple victims. — Defendant's convictions for two counts of aggravated assault stemming from defendant's one act of pointing a shotgun at two victims at the same time did not violate the double jeopardy clause, because each victim suffered distinct mental harm protected by the statute. State v. Roper, 2001-NMCA-093, 131 N.M. 189, 34 P.3d 133, cert. quashed, 131 N.M. 619, 41 P.3d 345 (2002).

State v. Maes, 1983-NMCA-073, 100 N.M. 78, 665 P.2d 1169 is no longer considered to be controlling authority in determining whether there has been a violation of the prohibition against double jeopardy, because the analysis contained therein predates, and has been replaced by, the two-pronged analysis of Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.

Use of deadly weapon to protect property. — The use of a deadly weapon in the protection of property is generally held, except in extreme cases, to be the use of more than justifiable force, and to render the owner of the property liable, both civilly and criminally, for the assault. Brown v. Martinez, 1961-NMSC-040, 68 N.M. 271, 361 P.2d 152.

Resisting arrest with deadly weapon. — Resistance of lawful arrest with deadly weapon was not excused by fact that the officer acted from personal motives. State v. Nieto, 1929-NMSC-060, 34 N.M. 232, 280 P. 248.

Intentional shooting. — The killing of a person by intentionally shooting him with a rifle, if not justified by the law of self-defense, would constitute at least an assault with a deadly weapon and would be a felony, and hence not involuntary manslaughter. State v. Pruett, 1921-NMSC-110, 27 N.M. 576, 203 P. 840.

Prosecution after acquittal of other charges. — State did not violate guarantee against double jeopardy in prosecuting defendant for assault with intent to commit a violent felony and false imprisonment, after an acquittal on charges of assault on a jail and false imprisonment and kidnapping of another individual, arising out of the same incident, since where the jury in the first trial acquitted defendant they did not necessarily conclude that he was not present at the jail that day and thus did not commit any crimes, but simply that he was not guilty of the crimes alleged. State v. Tijerina, 1973-NMSC-105, 86 N.M. 31, 519 P.2d 127, cert. denied, 417 U.S. 956, 94 S. Ct. 3085, 41 L. Ed. 2d 674 (1974).

Statutory language to be used. — An indictment for drawing or handling deadly weapon in threatening manner under Laws 1887, ch. 30, § 2 (former 40-17-3, 1953 Comp.) was required to follow language of statute. Territory v. Armijo, 1894-NMSC-011, 7 N.M. 571, 37 P. 1117 (decided under prior law).

Word "unlawfully" was not necessary in indictment if other words were used which conveyed the same meaning. Ruiz v. Territory, 1900-NMSC-013, 10 N.M. 120, 61 P. 126.

Allegation that gun was loaded unnecessary. — In prosecution for an assault with a deadly weapon, a gun, it was not necessary to allege that the gun was loaded. Territory v. Gonzales, 1907-NMSC-007, 14 N.M. 31, 89 P. 250.

Indictment failing to specify appropriate statutory section. — An indictment framed under Laws 1887, ch. 30, prescribing penalties for drawing or handling deadly weapon in threatening manner, assault with a deadly weapon and drawing or discharging firearm in public place was insufficient when the offense charged did not come within scope of any section of that act. Territory v. Armijo, 1894-NMSC-011, 7 N.M. 571, 37 P. 1117 (decided under prior law).

Where the state originally charged defendant with assault with intent to commit the violent felony of robbery but later amended the indictment to charge assault with intent to commit the felony of larceny, the fact that the amended indictment continued to contain the statutory references to assault with intent to commit a violent felony was not fatal to the indictment, since misreference to statutory sections is not a sufficient reason to dismiss the indictment. State v. Gallegos, 1989-NMCA-066, 109 N.M. 55, 781 P.2d 783, cert. denied, 108 N.M. 771, 779 P.2d 549.

Failing to describe weapon or allege unlawful assault. — An indictment for assault with a deadly weapon under Laws 1907, ch. 36, § 19 (former 40-17-6, 1953 Comp.) was insufficient if it did not describe the knife used or failed to charge that it was one with which dangerous cuts could be given or dangerous thrusts inflicted or that defendant "did unlawfully assault." Territory v. Armijo, 1894-NMSC-011, 7 N.M. 571, 37 P. 1117 (decided under prior law).

Defense of citizen's arrest. — When the defendant asserted the defense of citizen's arrest in a prosecution for aggravated assault with a deadly weapon, the issue of notice of his intent to make an arrest and proof that a felony was in fact committed by the arrestee were not elements of the defense. State v. Johnson, 1996-NMSC-075, 122 N.M. 696, 930 P.2d 1148.

Where evidence on charge is overwhelming, defendant cannot be prejudiced by the testimony as to the extent of a victim's injuries after the jury is told to disregard that testimony. State v. Davis, 1979-NMCA-015, 92 N.M. 563, 591 P.2d 1160.

No double jeopardy for sentence enhancement. — Double jeopardy did not prohibit the trial court from enhancing defendant's sentence for aggravated assault with a deadly weapon under the firearm enhancement section, 31-18-16A NMSA 1978, since each section contains an element or elements not included in the other and the phrase "a noncapital felony" means "any noncapital offense". State v. Charlton, 1992-NMCA-124, 115 N.M. 35, 846 P.2d 341, cert. denied, 114 N.M. 577, 844 P.2d 827.

Sentence improper. — Sentence of 7 to 15 years for convictions of assault with intent to kill and assault with a deadly weapon were not in accordance with the so-called indeterminate sentence law, former 41-17-1, 1953 Comp., which required a trial judge to sentence a person found guilty of an offense to the minimum and maximum provided by statute for the offense. State v. Romero, 1963-NMSC-168, 73 N.M. 109, 385 P.2d 967 (decided under prior law).

II. ELEMENTS OF AGGRAVATED ASSAULT.

Threat of bodily harm. — A defendant could be convicted of aggravated assault by merely threatening the victim with bodily harm. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.

Aggravated assault and armed robbery distinguished. — Aggravated assault contains an element that armed robbery does not: striking at a victim instead of just threatening him. Armed robbery contains an element that aggravated assault does not: taking victim's property with the intent to permanently deprive victim of the property. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.

Meaning of "deadly weapon". — Deadly weapons shall be construed to mean any kind or class of pistol or gun, whether loaded or unloaded. State v. Montano, 1961-NMSC-174, 69 N.M. 332, 367 P.2d 95.

Apprehension of danger required. — For there to be an aggravated assault there must first be an assault; for there to be an assault upon a victim, there must have been an act, threat or conduct which caused him to reasonably believe he was in danger of receiving an immediate battery. State v. Mata, 1974-NMCA-067, 86 N.M. 548, 525 P.2d 908, cert. denied, 86 N.M. 528, 525 P.2d 888.

General criminal intent is necessary element of aggravated assault although the terms of the statute do not require it. Consequently, something done "not with an evil purpose, but for fun, or as a practical joke" is not done with the requisite criminal intent necessary to constitute the crime of aggravated assault. State v. Cruz, 1974-NMCA-077, 86 N.M. 455, 525 P.2d 382.

Intent defined as conscious wrongdoing. — Although Subsection A does not refer to intent, intent is required; the intent involved is that of conscious wrongdoing. State v. Mascarenas, 1974-NMCA-100, 86 N.M. 692, 526 P.2d 1285.

Intent to harm not requisite. — An intent to do physical or bodily injury is not an element of Subsection A of this section. State v. Cruz, 1974-NMCA-077, 86 N.M. 455, 525 P.2d 382.

Specific intent to do bodily harm is not a necessary element of aggravated assault under New Mexico law. Proof of intent under the aggravated assault statute is achieved by showing the defendant intended to commit a simple assault and did so with a deadly weapon. United States v. Boone, 347 F. Supp. 1031 (D.N.M. 1972).

Great bodily harm is not element of aggravated assault charge. State v. Davis, 1979-NMCA-015, 92 N.M. 563, 591 P.2d 1160.

III. EVIDENCE AND PROOF.

State is not required to prove that accused intended to assault victim, but only that he did an unlawful act which caused the victim to reasonably believe that she was in danger of receiving an immediate battery, that the act was done with a deadly weapon, and that it was done with a general criminal intent. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280, overruled on other grounds, Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Specific intent is not an essential element of aggravated assault. — Where defendant was charged with aggravated assault with a deadly weapon, and where the state presented evidence at trial that the victim of the assault was standing next to the shooting victim when the shooting occurred and that the assault victim reasonably believed that she was also going to be shot, and where the jury was properly instructed on general criminal intent, there was sufficient evidence to support defendant's conviction for aggravated assault with a deadly weapon. Specific intent is not an essential element of aggravated assault. State v. Branch, 2018-NMCA-031, replacing 2016-NMCA-071, 387 P.3d 250, cert. denied.

Sufficient evidence of aggravated assault. — Where defendant was charged with aggravated assault with a deadly weapon, the evidence that the victim of the assault was standing right next to the shooting victim when the shooting occurred, that the assault victim believed that she was also going to be shot, and where the jury was properly instructed on general criminal intent, there was sufficient evidence to support defendant's conviction for aggravated assault with a deadly weapon. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed.

Sufficient evidence of aggravated assault with a deadly weapon. — Where, in defendant's trial for first-degree murder, child abuse and aggravated assault with a deadly weapon, the jury heard evidence that defendant fired a gun at the shooting victim nine times at point-blank range, that the victim was seated in the front passenger seat of his vehicle, and that the victim's wife was seated in the driver's seat of the vehicle, and where the victim's wife testified that when the shooting began, she closed her eyes and believed that she was going to die, there was sufficient evidence for a jury to reasonably infer that when defendant pointed the gun at the victim, he was simultaneously point it in the direction of the victim's wife, and there was sufficient evidence to support the jury's determination that the victim's wife believed she was in danger of receiving an immediate battery and that this belief was reasonable. State v. Ramirez, 2018-NMSC-003.

Sufficient evidence of aggravated assault. — Where defendant was convicted of three counts of aggravated assault for unlawfully assaulting or striking at another with a deadly weapon, there was sufficient evidence to support the convictions where the evidence presented at trial established that defendant admitted to police that he discharged his firearm twice in the air and twice at a vehicle that he knew to be occupied by multiple people, because the evidence was such that the jury could have concluded that defendant's act of shooting at the occupied vehicle caused the occupants of the vehicle to believe defendant was about to intrude on their bodily integrity or personal safety. State v. Candelaria, 2019-NMSC-004.

Use of circumstantial evidence. — On trial of charge of assault with deadly weapon, whether the weapon was in fact used may be shown by circumstantial evidence. State v. Conwell, 1932-NMSC-042, 36 N.M. 253, 13 P.2d 554.

Proof of motive is not indispensable to conviction. — Without contention that defendant did not shoot victim, the state is not required to prove motive. State v. Brito, 1969-NMCA-027, 80 N.M. 166, 452 P.2d 694.

Evidence of victim's prior conviction. — Exclusion of bare fact that person threatened with deadly weapon had been convicted of voluntary manslaughter, offered as bearing on self-defense, was within discretion of trial court. State v. Nieto, 1929-NMSC-060, 34 N.M. 232, 280 P. 248.

Sufficient evidence of aggravated assault. — Where co-defendant held a knife at the victim's throat and told the victim that he was going to kill him, the facts were sufficient to support the jury's finding that a reasonable person in the victim's position would believe that his bodily integrity was threatened by co-defendant's use of the knife. State v. Herrera, 2015-NMCA-116, cert. denied, 2015-NMCERT-010.

Evidence sufficient. — Evidence that defendant pulled the loaded gun from his pocket and made threat to kill after argument over girlfriend was substantial evidence of an attempt to apply force in either an insolent or angry manner and therefore sufficient evidence of aggravated assault. State v. Woods, 1971-NMCA-026, 82 N.M. 449, 483 P.2d 504.

Evidence that defendant told victim to leave, fired revolver within one foot of and in the direction of victim, and called victim a son of a bitch and told him to get up, supports conviction for aggravated assault. State v. Brito, 1969-NMCA-027, 80 N.M. 166, 452 P.2d 694.

The evidence was sufficient to sustain defendant's conviction for offense of aggravated assault when he pointed a gun at victim and asked for money, which was handed over, victim testifying that he was worried because the gun was loaded. State v. Anaya, 1968-NMCA-014, 79 N.M. 43, 439 P.2d 561.

Sufficient evidence to support conviction, despite failure to preserve fingerprints or trace ownership of weapon. State v. Peterson, 1985-NMCA-109, 103 N.M. 638, 711 P.2d 915, cert. denied, 475 U.S. 1052, 106 S. Ct. 1279, 89 L. Ed. 2d 586 (1986).

A defendant's acts of specifically pointing a rifle at each of several victims on two or more separate instances, accompanied by verbal threats, constituted evidence from which the jury could properly determine that defendant committed the separate offenses of aggravated assault and false imprisonment against each victim. Moreover, the jury could find that defendant falsely imprisoned his victims at the beginning of the episode and thereafter committed additional independent aggravated assaults for which he could be separately punished. State v. Bachicha, 1991-NMCA-014, 111 N.M. 601, 808 P.2d 51, cert. denied, 111 N.M. 529, 807 P.2d 227.

Because the aggravated assault statute and the armed robbery statute share common ground in theory, a defendant's conviction could rely on similar, if not identical, evidence. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.

IV. DOUBLE JEOPARDY.

Prosecution under Assimilative Crimes Act. — A person may be prosecuted and convicted of the lesser included offense of aggravated assault, in violation of New Mexico law, when congress has enacted a statute (18 U.S.C. § 113) making simple assault and its more aggravated forms federal offenses. United States v. Johnson, 967 F.2d 1431 (10th Cir. 1992).

Lesser included offense of aggravated battery. — Aggravated assault by use of a threat with a deadly weapon is a lesser included offense of aggravated battery. State v. DeMary, 1982-NMSC-144, 99 N.M. 177, 655 P.2d 1021.

No double jeopardy where facts differ. — If the factual basis for the alleged conviction for assault in municipal court and the factual basis for the aggravated assault conviction differ, then there would be no double jeopardy and the burden will be on defendant to prove a factual basis showing double jeopardy. State v. Woods, 1973-NMCA-114, 85 N.M. 452, 513 P.2d 189.

Separate criminal acts. — Assault with a deadly weapon, even though committed in connection with a larceny is a separate criminal act, as distinguished from a necessary ingredient of the crime of larceny, and, accordingly, there may be a conviction and punishment for both. State v. Martinez, 1967-NMSC-103, 77 N.M. 745, 427 P.2d 260.

Separate punishment for aggravated assault and arson. — The legislature intended separate punishment for the crimes of arson and aggravated assault. While these statutes may be violated together, they are not necessarily violated together. Punishment for a violation of either statute is not enhanced for a violation of the other. The legislature intended separate punishment for unitary conduct violating both statutes. State v. Rodriguez, 1992-NMCA-035, 113 N.M. 767, 833 P.2d 244, cert. denied, 113 N.M. 636, 830 P.2d 553.

Shooting into occupied vehicle. — Separate punishments are intended for the offenses of shooting into an occupied vehicle and aggravated assault with a deadly weapon. State v. Sosa, 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017.

Aggravated assault not lesser included offense. — Assault with intent to kill can be committed without use of a deadly weapon; thus, aggravated assault with a deadly weapon was not a lesser included offense. State v. Patterson, 1977-NMCA-084, 90 N.M. 735, 568 P.2d 261.

Lesser included offense of federal crime. — The New Mexico offense of aggravated assault is a lesser included offense of the federal crime of assault with a dangerous weapon with specific intent to do bodily harm, 18 U.S.C. § 113(c) (now 18 U.S.C. § 113(a)(3)). United States v. Abeyta, 27 F.3d 470 (10th Cir. 1994).

Merger of conviction for aggravated assault into offense of false imprisonment. — Even though a defendant's acts of threatening each of multiple victims with a deadly weapon constituted the means by which his victims were restrained or confined against their will so as to cause the assault to merge into the crime of false imprisonment, the trial court did not err in refusing to merge defendant's convictions of aggravated assault into the offenses of false imprisonment, because there was evidence of multiple acts of aggravated assault committed against each victim. State v. Bachicha, 1991-NMCA-014, 111 N.M. 601, 808 P.2d 51, cert denied, 111 N.M. 529, 807 P.2d 227.

V. JURY INSTRUCTIONS.

Jury instructions on aggravated assault as lesser included offense. — In prosecution for assault with a deadly weapon with specific intent to do bodily harm (18 U.S.C. § 113(c)) (now 113(a)(3)), where the record was rife with testimony that alcohol might have affected defendant's ability to appreciate the import of his actions, defendant was entitled to an instruction on the lesser included New Mexico offense of aggravated assault, which has the same action elements but does not include a specific intent to injure. United States v. Abeyta, 27 F.3d 470 (10th Cir. 1994).

Instruction's definitions sufficient. — Instruction defining "assault" as an attempt to commit a battery upon the person of another and "unlawful" as means contrary to law and without legal excuse or justification, held not to be error. State v. Woods, 1971-NMCA-026, 82 N.M. 449, 483 P.2d 504.

Instructions on intent insufficient. — Conscious wrongdoing is an essential element of Subsection A of this statute, and instructions in the language of the statute were insufficient to inform the jury of the intent required. Hence, defendant's conviction was reversed. State v. Cutnose, 1974-NMCA-130, 87 N.M. 307, 532 P.2d 896, cert. denied, 87 N.M. 299, 532 P.2d 888.

Word "unlawful" insufficient description of intent. — When a statute sets forth the requisite intent, instructions in the language of the statute sufficiently instruct on the required intent. However, where the applicable statute speaks of "unlawfulness," instructions informing the jury that defendant's conduct must have been unlawful does not inform the jury that conscious wrongdoing is an element of the crime of aggravated assault. State v. Mascarenas, 1974-NMCA-100, 86 N.M. 692, 526 P.2d 1285.

Use of word "unlawfully" unnecessary. — It was not necessary to use the word "unlawfully" in an instruction, where the jury was informed that the assault must have been committed without excuse or justification, and another instruction defined an assault as an "unlawful attempt." Territory v. Gonzales, 1907-NMSC-007, 14 N.M. 31, 89 P. 250.

Use of "feloniously" unnecessary. — Although an indictment for assault with a deadly weapon under Laws 1907, ch. 36, § 19 (former Section 40-17-4, 1953 Comp.) used the word "feloniously," there was no error in omitting it from the instruction as to elements of crime, as the use of the word in the indictment was unnecessary, and the jury was not required to fix the penalty. Territory v. Gonzales, 1907-NMSC-007, 14 N.M. 31, 89 P. 250.

Use of phrase "without excuse or justification" proper. — In prosecution for assault with a deadly weapon under Laws 1907, ch. 36, § 19 (former Section 40-17-4, 1953 Comp.), it was not error to use the words "without excuse or justification" in an instruction. Territory v. Gonzales, 1907-NMSC-007, 14 N.M. 31, 89 P. 250.

Failure to instruct on essential elements. — The trial court committed reversible error when it instructed the jury on the elements of aggravated assault with intent to commit felony aggravated battery, but then failed to instruct on the essential elements of felony aggravated battery and, instead, instructed on the essential elements of misdemeanor aggravated battery. State v. Armijo, 1999-NMCA-087, 127 N.M. 594, 985 P.2d 764.

Breaking-and-entering instruction refused since defendant intended to threaten. — A requested instruction on breaking and entering as a lesser included offense was properly refused, where although the evidence was susceptible to inferences that defendant did not have the requisite intent to commit any batteries or homicides until he got inside, there was no evidence other than he had the intent, when he entered a house, to threaten someone while masked. State v. Durante, 1986-NMCA-024, 104 N.M. 639, 725 P.2d 839.

Law reviews. — For article, "The Proposed New Mexico Criminal Code," see 1 Nat. Resources J. 122 (1961).

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

For note, "Criminal Law - The Use of Transferred Intent in Attempted Murder, a Specific Intent Crime: State v. Gillette," see 17 N.M.L. Rev. 189 (1987).

For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Assault and Battery §§ 48 to 55.

Sense of shame, or other disagreeable emotion on part of female, as essential to an aggravated or indecent assault, 27 A.L.R. 859.

Deadly or dangerous weapon, intent to do physical harm as essential element of crime of assault with, 92 A.L.R.2d 635.

Sexual nature of physical contact as aggravating offense, 63 A.L.R.3d 225.

Admissibility of evidence of character or reputation of party in civil action for assault on issues other than impeachment, 91 A.L.R.3d 718.

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 100 A.L.R.3d 287.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 7 A.L.R.4th 607.

Walking cane as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 842.

Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 1268.

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

Standard for determination of reasonableness of criminal defendant's belief, for purposes of self-defense claim, that physical force is necessary - modern cases, 73 A.L.R.4th 993.

Criminal assault or battery statutes making attack on elderly person a special or aggravated offense, 73 A.L.R.4th 1123.

Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660.

Sufficiency of bodily injury to support charge of aggravated assault, 5 A.L.R.5th 243.

Stationary object or attached fixture as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 8 A.L.R.5th 775.

Kicking as aggravated assault, or assault with dangerous or deadly weapon, 19 A.L.R.5th 823.

6A C.J.S. Assault and Battery §§ 72 to 82.