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State v. Jones4/14/2000
technical batteries. Cf. Padilla, 1997-NMSC-022, 6 ("It is absurd to think the legislature intended to make felonious mere affronts to personal dignity.").
We observe that even if some offensive conduct, like spitting, does not always rise to the level of a felony, it may still be punishable by one means or another. For example, under any circumstance, intentionally spitting upon a peace officer is abusive, and therefore, if supported by the evidence, it might be punishable as resisting, evading, or obstructing an officer. See NMSA 1978, § 30-22-1(D) (1981) (making "resisting or abusing any . . . peace officer in the lawful discharge of his duties" a misdemeanor). Additionally, as the Supreme Court pointed out in Padilla, a jailer or corrections officer could invoke a host of institutional sanctions to punish such behavior. Padilla, 1997-NMSC-022, 10. For these reasons, we take our Supreme Court at its word. When the element of unlawfulness is in dispute and the facts of the case are open to interpretation, the trial court must indulge a request for an instruction that the charged conduct rise to the level of an "actual injury, actual threat to safety, or meaningful challenge to authority" before a jury can convict of a felony. Id. 7.
Our holding today is in line with the majority rule that imposes penal sanctions only for those batteries resulting in actual physical injury. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.15(a) (1986). Although the State urges us to adopt the minority approach that upholds spitting upon a peace officer as a felony, with or without actual injury, our statute does not reflect any such legislative intent. Unlike the few jurisdictions that apply the minority rule, the language of our battery upon a peace officer statute does not cover acts intending to "injure, insult or provoke," Ariz. Rev. Stat. §§ 13-1203, -04(5) (1989 & Cum. Supp. 1999), or proscribe applications of force designed to "embarrass" the victim. See People v. Terry, 553 N.W.2d 23, 24-25 (Mich. Ct. App. 1996) (per curiam) (applying Michigan jury instruction containing foregoing language to affirm conviction for assault of prison guard intended to embarrass). New Mexico's statute demands more.
While the parties urge us to define the legal boundaries of a "meaningful challenge" to authority, we decline to do so. Because its definition demands knowledge of the context in which the battery arose, this question is best left to juries to decide using their collective common sense and wisdom as a guide. See State v. Trevino, 116 N.M. 528, 531, 865 P.2d 1172, 1175 (1993) (holding that the common sense of the jury "`is sufficient to apply the [contributing to the delinquency of a minor] statute to each particular case, and point out what particular conduct is rendered criminal by it'" (quoting State v. McKinley, 53 N.M. 106, 111, 202 P.2d 964, 967 (1949))). The term "meaningful" provides a means to prevent treating petty conduct that could be interpreted as an incidental challenge to authority as though it were a strict liability felony.
Does Spitting upon a Peace Officer Violate Section 30-22-24?
We turn now to the second question of whether spitting could constitute a battery upon a peace officer, assuming a proper instruction. We emphasize that the answer depends upon the context in which the battery takes place. In Jones' case, for instance, depending upon the evidence actually presented, a rational, properly instructed jury could find beyond a reasonable doubt that his spitting upon an officer from the rear seat of the officer's car constituted a "meaningful challenge" to the authority the officer was
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