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State v. Jones4/14/2000
lawfully exercising over him pursuant to his arrest for DWI. Although it is unclear from the record, it also appears that the battery occurred while the officer was driving his vehicle. If so, the spitting could pose an actual threat to safety if it affected the officer's ability to operate the vehicle. Because spitting on an officer could fall within the statute under either prong (safety or authority), we reverse the order of dismissal and reinstate Count 1 of Jones' indictment.
Cordova's case also requires reversal but for different reasons. The jury was not instructed in the language of Padilla, nor was counsel able to argue that the challenge to authority had to be meaningful, despite the presence of evidence supporting this claim. After the presentation of the evidence at trial, Cordova tendered a jury instruction for each count of battery upon a peace officer that included the word "meaningfully." Counsel pointed out that the UJI's Use Note quoted the holding from Padilla. Cordova argued that Padilla called for a higher standard than reflected in the UJI, and insisted that "meaningfully" was a key word which imposed a burden upon the State to prove more than just a mere, incidental challenge to authority. The trial court refused the instruction.
The error went beyond a refusal to instruct. During closing argument, Cordova began to argue that in order to convict, the jury must find that any challenge to the officer's authority was meaningful. This comment drew an immediate objection. The State argued that Cordova was attempting to redefine the law given to the jury. Cordova stated that he was only arguing New Mexico Supreme Court precedent. The trial judge told counsel that his "argument is with the Supreme Court, and not with this jury," and sustained the objection. In effect, these rulings limited the State's burden to proving only that Cordova had committed a mere unwanted touching; that is, the rulings ignored the Supreme Court's holding in Padilla. Because the evidence here called into question the challenge to an officer's authority or whether the safety of an officer was actually threatened, the requested instruction should have been given in the terms of a "meaningful challenge to authority," on an "actual threat to safety," and defense counsel should have been allowed to argue the point to the jury. Padilla, 1997-NMSC-022, 2, 7, 11. Thus, we reverse and remand for a new trial.
Similar to the case against Jason Jones, we believe that Cordova's act of spitting upon jailers or throwing urine at them could constitute a "meaningful challenge" to their authority, depending upon the context and assuming a properly instructed jury. Whereas we find that there was sufficient evidence upon which to base a conviction, we do not find that the evidence was so overwhelming against Cordova as to make this error harmless. See Sanchez v. State, 103 N.M. 25, 27, 702 P.2d 345, 347 (1985).
We add one further observation regarding the sufficiency of the evidence in each case to amount to an "actual threat to the safety" of the officer. We acknowledge that spitting or throwing bodily waste may give rise to rational concerns about infection or communicable disease. The jailers in the Cordova prosecution argued as much. Defendant Jones threatened as much as he spat upon the officer. However, we have not been cited to any authority, and we know of none, that based criminal liability for battery upon the victims' subjective and unsubstantiated fears that they could develop a disease. Cf. Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (reversing first degree assault conviction when no evidence about HIV transmission was presented and "the role of sali
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