July 22, 2019- State of New Mexico v. Justin Stone Archuleta, No. A-1-CA-35990

OCR transcription for search; preserved printed pages are authoritative

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Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Aja Oishi, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
VANZI, Judge.
} Defendant Justin Stone Archuleta appeals his convictions for two counts of

Court of Appeals of New Mexico
Filed 7/22/2019 9:33 AM

ae
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO i ark at

STATE OF NEW MEXICO,
Plaintiff-Appellee,
V. No. A-1-CA-35990
JUSTIN STONE ARCHULETA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY

Jennifer L. Attrep, District Judge

Hector H. Balderas, Attorney General

aggravated assault with a deadly weapon, in violation of NMSA 1978, Section 30-

3-2(A) (1963), and one count of aggravated battery with a deadly weapon, in

violation of NMSA 1978, Section 30-3-5(C) (1969), on several grounds. We

1 conclude that Defendant's convictions for aggravated assault with a deadly weapon
2 must be vacated because one count was not supported by substantial evidence and
3 the other violated double jeopardy. We affirm Defendant's conviction for aggravated
4 battery.
5 BACKGROUND
6 	{2} 	Defendant's convictions arise out of an altercation he had with his cousins,
7 Isaiah and Isaac Archuleta, at their house. The following facts are pieced together
8 from the trial testimony of Isaiah and Isaac, as well as that of Arlene and Terry
9 Garcia, their aunt and mother, respectively. Defendant and Isaac got into an
10 argument late one night when Defendant refused to go to sleep. Defendant escalated
11 	the argument into a physical fight by swinging at Isaac and pulling him to the floor
12 	in the hallway. Defendant then pinned Isaac down and began "thr[owing] some
13 	punches." At that point, Isaiah tried to pull Defendant off Isaac. When he could not
14 pull Defendant off Isaac, Isaiah ran to the fireplace, picked up a foot-long piece of
15 	railroad tie, and threw it at Defendant's head. After Isaiah hit Defendant with the
16 railroad tie, Defendant went into one of the bedrooms and retrieved a hi-hat 1 ;from a
17 drum kit. Defendant returned from the bedroom and started swinging the hi-hat at
18 	Isaiah, striking him once on the arm. When Defendant hit Isaiah with the lhi-hat,
1
A "hi-hat" is a pair of cymbals mounted on a metal stand with a foot pedal.
See Hi-hat, Wikipedia, https://en.wikipedia.org/wiki/Hi-hat (last visited June 28,
2019).
2

1 Isaiah told Isaac to get a rifle to help stop the fight. As Isaiah was retreating into the
2 kitchen, Defendant threw the hi-hat at Isaiah, although the hi-hat did not hit him.
3 The altercation then moved into the kitchen, where Isaac pulled out a rifle and told
4 Defendant to "get the f--- out of my house." Defendant left the house and the
5 altercation ended.
6 {3} 	After listening to the testimony, the jury convicted Defendant of two counts
7 of aggravated assault with a deadly weapon for swinging the hi-hat at Isaiah and
8 Isaac and one count of aggravated battery with a deadly weapon for hitting Isaiah
9 with the hi-hat. Defendant now appeals.
10 DISCUSSION
11 	{4} 	Defendant appeals his convictions on several grounds. First, Defendant claims
12 that the district court committed fundamental error in failing to instruct the jury on
13 	self-defense. Second, Defendant argues that trial counsel was ineffective for failing
14 to 	request 	an instruction on self-defense. 	Third, Defendant argues there 	was
15 	insufficient evidence 	of the charge for aggravated assault against Isaac. Last,
16 Defendant contends that his convictions for aggravated assault and aggravated
17 battery of Isaiah violate double jeopardy. We address each argument in tum.
18 	I. 	Defendant Was Not Entitled to an Instruction on Self-Defense
19 {5} 	Defendant argues that the district court committed fundamental error by
20 failing to instruct the jury sua sponte that Defendant had the right to use self-defense.
3

1 "The propriety of the jury instructions given by the district court is a mixed question
2 	of law and fact requiring de novo review." State v. Candelaria, 2019-NMSC-004,
3 ,-f 31, 434 P.3d 297. Because Defendant did not preserve any error with respect to
4 instructing the jury on self-defense, we review only for fundamental error. See Rule
5 	12-321(B)(2) NMRA (providing appellate court discretion as an exception to the
6 preservation rule to review questions involving fundamental error or fundamental
7 rights). We will not reverse for fundamental error unless the error results in a
8 conviction that is "so doubtful that it would shock the judicial conscience to allow
9 the conviction to stand." State v. Simmons, 2018-NMCA-015, ,-f 9, 409 P.3d 1030
10 (internal quotation marks and citation omitted).
11 	{6} 	In order to determine whether failing to instruct the jury on self-defense
12 constitutes fundamental error, we must first determine whether Defendant would
13 	have been entitled to the instruction had he requested it. See State v. Barber, 2004-
14 NMSC-019, ,-f 9, 135 N.M. 621, 92 P.3d 633 (stating that, in a fundamental error
15 	analysis for failure to give a jury instruction, the first question is whether the
16 defendant would have been entitled to the instruction had he requested it). Defendant
17 does not dispute that he was the initial aggressor. While Defendant acknowledges
18 that an initial aggressor generallr cannot claim self-defense, he argues that he
19 regained his right to use self-defense when Isaiah threw the piece of railroad tie at
20 him, escalating the fight with deadly force. See State v. Lucero, 1998-NMSC-044,
4

1 17, 126 N.M. 552, 972 P.2d 1143 ("Self defense is not available to the defendant if
2 he or she started the fight unless: 1. The defendant was using force which would not
3 ordinarily create a substantial risk of death or great bodily harm; and 2. victim
4 responded with force which would ordinarily create a substantial risk of death or
5 great bodily harm[.]" (alterations, internal quotation marks, and citation omitted)).
6 Defendant also argues that he was entitled to use self-defense under a multiple
7 assailant theory after Isaac retrieved the rifle. See State v. Sandoval, 2011-NMSC-
8 022, 1 18, 150 N.M. 224, 258 P.3d 1016 ("A multiple assailant defense instruction
9 should be issued when more than one assailant is involved in creating an immediate
10 danger of death or great bodily harm toward the defendant."). However, even
11 	assuming, arguendo, that Defendant regained his right to use self-defense despite
12 being the initial aggressor, we fail to see how Defendant was entitled to a self-
13 	defense instruction.
14 	{7} 	"A defendant is only entitled to jury instructions on a self-defense theory if
15 	there is evidence presented to support every element of that theory." State v. Baroz,
16 	2017-NMSC-030, 114, 404 P.3d 769. For Defendant to be entitled to a non-deadly
17 force self-defense instruction, he was required to present evidence supporting each
18 	of the following elements:
19
20
1. 	There was an appearance of immediate danger ofbodily harm to
[D]efendant as a result of [Isaiah and Isaac's actions]; and
5

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2. 	[D]efendant was in fact put in fear of immediate bodily harm and
[swung the hi-hat at Isaiah and Isaac] because of that fear; and
3. 	[D]efendant used an amount of force that [D]efendant believed
was reasonable and necessary to prevent the bodily harm; and
[4]. 	The apparent danger would have caused a reasonable person in
the same circumstances to act as [D]efendant did.
8 UJI 14-5181 NMRA (2009).
9 	{8} 	Viewing the evidence in the light most favorable to Defendant, no reasonable
10 jury could have found that, at the time that Defendant swung the hi-hat, there was
11 	"an appearance of immediate danger of bodily harm," that the force 	used by
12 Defendant was "reasonable and necessary," or that a reasonable person in the same
13 	circumstances would have acted as Defendant did. UJI 14-5181; see State v. Rudolfo,
14 2008-NMSC.:.036,, 18, 144 N.M. 305, 187 P.3d 170 ("It is important to view the
15 	circumstances at the time the ... force was used by the defendant and not at some
16 earlier point.").
17 	{9} 	At the point in time that Defendant emerged from the bedroom with the hi-
18 hat, there was no evidence that his cousins were doing anything other than trying to
19 stop the fight that Defendant instigated. While Isaiah threw a piece of railroad tie at
'
20 Defendant when he had Isaac pinned down, he testified that he only did thi~ when
21 	he could not pull Defendant off of Isaac, and there was no evidence that Isaiah was
22 	going to use the railroad tie again or continue the fight. Nor was there evidence that
6

1 Isaiah or Isaac were pursuing Defendant when he retrieved the hi-hat from the
2 bedroom. To the contrary, by all accounts, Defendant remained the aggressor by
3 chasing Isaiah and throwing the hi-hat at him after retrieving the hi-hat from the
4 bedroom. Thus, Defendant's actions after being hit with the railroad tie appear to
5 have been motivated by revenge .against Isaiah, rather than self-defense. Cf State v.
6 Pruett, 1918-NMSC-062,, 9, 24 N.M. 68, 172 P. 1044 (affirming the district court's
7 use of a jury instruction containing the "familiar and oft-approved statement that the
8 law of self-defense does not imply the right to attack, nor will it permit acts done in
9 retaliation [or] revenge").
10 	{to} 	Additionally, 	contrary 	to 	Defendant's 	assertions, 	the 	evidence 	did 	not
11 	demonstrate that Isaiah and Isaac were multiple assailants but rather multiple victims
12 defending against one assailant's attacks. Further, the evidence indicates that Isaac
13 	got the rifle after Defendant started chasing Isaiah with the hi-hat. And, when Isaac
14 pulled out the rifle, the evidence suggests that he only used it for defensive purposes,
15 	telling Defendant to "get the f--- out of my house." Therefore, Defendant's use of -
16 the hi-hat could not have been justified by Isaac's possession of a rifle. Cf State v.
17 	Coffin, 1999-NMSC-038,, 12, 128 ~.M. 192, 991 P.2d 477 ("While it is true that a
18 person may act in self-defense against multiple attackers acting in concert, this
- 	'
19 principle applies only to the extent that each accomplice poses an immediate danger
20 	of death or great bodily harm, thereby necessitating an act of self-defense.").
7

1 {11} 	We conclude that because Defendant was not entitled to an instruction on self-
2 defense, the district court did not commit fundamental error by failing to give the
3 instruction sua sponte. Defendant's arguments, which do not focus on the point in
4 time in which Defendant used the hi-hat, are inapposite.
5 II. 	Defendant 	Failed 	to 	Establish 	a 	Prima 	Facie 	Case 	of 	Ineffective
6 	Assistance of Counsel
7 {12} 	Defendant claims that his trial counsel was ineffective in failing to r~quest a
8 self-defense instruction. "We review claims of ineffective assistance of counsel de
9 novo." State v. 	Cordova, 2014-NMCA-081, 1 6, 331 	P.3d 980. "Because [the
10 d]efendant raises the issue for the first time on appeal, he must establish a prima
11 	facie case for ineffective assistance in order for this Court to remand the matter to
12 the [district] court for an evidentiary hearing." State v. Aragon, 2009-NMCA-102,
13 18, 147 N.M. 26, 216 P.3d 276. "A prima facie case of ineffective assistance of
14 counsel requires that a defendant establish that: ( 1) counsel's performance fell below
15 	that of a reasonably competent attorney; (2) no plausible, rational strategy or tactic
16 explains counsel's conduct; and (3) counsel's apparent failings were prejudicial to
17 the defense." Cordova, 2014-NMCA-081, 19 (internal quotation marks and citation
18 	omitted).
19 {13} 	Because we have concluded that Defendant was not entitled to a self-defense
20 instruction, 	we 	cannot 	characterize 	his 	trial 	counsel's 	failure 	to 	request 	the
21 	instruction as deficient or irrational. Nor could Defendant's defense be prejudiced
8

1 by trial counsel's failure to request an instruction to which Defendant was not
2 entitled. Accordingly, we hold that Defendant has not demonstrated that his counsel
3 was ineffective. See State v. Hilliard, 1988-NMCA-066,, 8, 107 N.M. 506, 760
4 P .2d 799 (holding that trial counsel's failure to request an instruction that to which
5 the defendant was not entitled "did not result in ineffective assistance of counsel").
6 III.
7
8 	{14}
Defendant's Conviction for Aggravated Assault of Isaac With a Deadly
Weapon Was Not Supported by Substantial Evidence
Defendant next challenges the sufficiency of the evidence for his conviction
9 	of aggravated assault of Isaac with a deadly weapon. "The test for sufficiency of the
10 	evidence is whether substantial evidence of either a direct or circumstantial nature
11 	exists to support a verdict of guHty beyond a reasonable doubt with respect to every
12 element essential to a conviction." State v. Largo, 2012-NMSC-015,, 30, 278 P.3d
13 	532 (internal quotation marks and citation omitted). "Substantial evidence is relevant
14 evidence that a reasonable mind might accept as adequate to support a conclusion."
15 Id. 	(internal quotation marks and citation omitted). "[O]ur role is to determine
16 whether a rational fact-finder could determine beyond a reasonable doubt the
17 essential facts necessary to convict the accused." State v. Garcia, 2005-NMSC-Ol 7,
18 , 	12, 138 N.M. 1, 116 P.3d 72. "In reviewing whether there was sufficient e-v:idence
19 to support a conviction, we resolve all disputed facts in favor of the state, ind~lge all
20 reasonable inferences in support of the verdict, and disregard all evidence and
21 	inferences to the contrary." Id. (internal quotation marks and citation omitted). "We
9

1 do not reweigh the evidence or substitute our judgment for that of the fact[-]finder
2 as long as there is sufficient evidence to support the verdict." State v. Pitner, 2016-
3 NMCA-102,, 6,385 P.3d 665 (internal quotation marks and citation omitted).
4 	{15} 	Defendant argues 	that the 	evidence 	did not 	support his 	conviction for
5 aggravated assault of Isaac with a deadly weapon because there was no evidence that
6 he tried or intended to apply force to Isaac with the hi-hat. We agree. New Mexico
7 defines assault, in relevant part, as: "A. an attempt to commit a battery upon the
8 person of another; [or] B. any unlawful act, threat or menacing conduct which causes
9 another person to reasonably believe that he is in danger of receiving an immediate
10 battery[.]" NMSA 1978, § 30-3-1 (1963). "The offense is aggravated when, as in
11 	this case, it is committed with a deadly weapon." State v. Branch, 2018-NMCA-03 l,
12 , 	12, 417 P.3d 1141 (citing NMSA 1978, § 30-3-2(A) (1963)). Here, the district
13 	court granted the State's request to instruct the jury that, in order to find Defendant
14 guilty of aggravated assault with a deadly weapon of Isaac, it had to find beyond a
15 	reasonable doubt that:
16
17
18
19
20
1.
2.
3.
4.
[D]efendant tried to touch or apply force to Isaac ... by swinging
a hi-hat at Isaac . . .;
[D]efendant acted in a rude, insolent or angry manner;
[D]efendant used a hi-hat[; and;]
[D]efendant intended to touch or apply force to Isaac[.]"
21 	See UJI 14-304 NMRA (2000).
10

1 {16} 	Defendant contends that there was no evidence to support the first or fourth
2 elements of the aggravated assault conviction because all of the witnesses testified
3 that he was focused on Isaiah, not Isaac, when he was swinging the hi-hat. The State,
4 in tum, argues that it did not have to prove that Defendant intended to assault Isaac,
5 but only that he committed an unlawful act, which caused Isaac to reasonably believe
6 he was in danger of receiving an immediate battery. In support of its argument, the
7 State cites State v. Manus, where our Supreme Court held that
8
9
10
11
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[t]he [s]tate was not required to prove that [the d]efendant intended to
assault [the bystander victim], but only that he did an unlawful act
which caused [the bystander 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.
13 	1979-NMSC-035, ,r 14, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by
14 Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162. Additionally, the State
15 	cites State v. Branch, 2018-NMCA-03 l, ,r 18, 417 P.3d 1141, for the proposition
16 that liability for assault "is only limited by the requisite mental state of conscious
17 wrongdoing and by the requirement that the victim's fear must be reasonable."
18 	{17} 	However, as Defendant correctly points out, both of these cases dealt with an
19 alternative type of assault the State did not pursue in this case. In Manus and Branch,
20 the state pursued aggravated assault convictions based on the "menacing cop.duct"
21 	type of assault listed in Section 30-3-l(B). See Manus, 	1979-NMSC-035, ,r 14
22 	(discussing only the elements of the "menacing conduct" type of assault contained
11

1 in Section 30-3-l(B)); see also Branch, 2018-NMCA-031, 118 (stating that "[t]he
2 expansive application of assault in Manus controls our construction of Section 30-
3 3-l(B)). By contrast, the district court in this case submitted a jury instruction
4 modelled after UJI 14-304, which only addresses the "attempted battery" type of
5 assault described in Section 30-3-l(A). Compare UJI 14-304 (titled "Aggravated
6 assault; a!tempted battery with a deadly weapon; essential elements" (emphasis
'
7 added)), with UJI 14-305 NMRA (titled "Aggravated assault; threat or menacing
8 conduct with a deadly weapon; essential elements (emphasis added)), and UJI 14-
9 306 NMRA (1998) 2 (titled "Aggravated assault; 	attempted battery; 	threat or
10 menacing conduct with a deadly weapon; essential elements" (emphasis added)); see
11 	also UJI 14-306 use note 1 ("This instruction sets forth the elements of two of the
12 types of assault in Section 30-3-1 ... ; one type involves attempted battery and the
13 	other involves a threat or menacing conduct which causes another to reasonably
14 believe he is about to be struck. If the evidence supports both of these theories of
15 	assault, use this instruction."). Thus, Manus and Branch are not controlling. Instead,
16 the instructions submitted to the jury became the law of the case, and the state was
17 required to prove all of the elements of aggravated assault with a deadly weapon
18 premised on an "attempted battery" assault rather than a "menacing conduct" assault.
2UJI 14-306 was amended and renumbered as UJI 14-303 NMRA in 2016
after Defendant's trial.
12

1 See State v. Duttle, 2017-NMCA-001, ,r 18, 387 P.3d 885 ("[T]he jury instructions
2 are the law of the case against which the sufficiency of the evidence supporting the
3 jury's verdict is to be measured.").
4 	{18} 	The State does not argue that there was any evidence to support these
5 elements, and we find none. While Isaac testified that he was "scared for [his] life"
6 and thought he would get hit with the hi-hat because Defendant was swinging the
7 hi-hat within close proximity to him, he did not testify that Defendant attempted to
8 hit him with the hi-hat. To the contrary, when asked by the prosecutor who
9 Defendant was swinging the hi-hat at, Isaac responded, "my brother." Nor did any
10 	of the other witnesses testify that Defendant tried to hit Isaac with the hi-hat. Isaiah
11 	testified that, after he hit Defendant with the railroad tie, Defendant "focused his
12 	attention on [him]" and "started swinging [the hi-hat] at [him]." Terry and Arlene
13 	similarly testified that they saw Defendant chasing Isaiah with the hi-hat. While
14 	Isaac's fear of receiving an immediate battery might have been sufficient to sustain
15 	a conviction for aggravated assault premised on the "menacing conduct" type of
16 assault contained in Section 30-3-l(B), the district court did not instruct the jury on
17 that type of assault. Isaac's fear, however reasonable, cannot substitute for the lack
18 	of evidence of the essential elements of aggravated assault as submitted to t4e jury.
19 State v. Jimenez, 2017-NMCA-039, ,r 27, 392 P.3d 668 ("[W]here a statute provides
20 distinct and alternative offenses and the state chooses to charge under only a
13

1 particular part of the statute, the prosecution is limited to proving what it has
2 charged. Additionally, in order to convict, the state must present sufficient evidence
3 of guilt beyond a reasonable doubt with respect to every element essential to a
4 conviction." (emphasis, internal quotation marks, and citations omitted)). Without
5 any evidence that Defendant tried or intended to hit Isaac with the hi-hat, we
6 conclude that there was insufficient evidence to support Defendant's conviction for
7 aggravated assault on Isaac with a deadly weapon.
8 IV.
9
10 	{19}
Defendant's Convictions for Aggravated Assault and Aggravated Battery
of Isaiah With a Deadly Weapon Violate Double Jeopardy
Finally, Defendant argues, and the State concedes, that his convictions for
11 	aggravated assault and aggravated battery of Isaiah with a deadly weapon violat~
12 double jeopardy. 	While we are not bound to accept the 	State's concession, we
13 	agree that Defendant's conviction for aggravated assault with a deadly weapon must
14 be vacated. 	See State v. 	Tapia, 	2015-NMCA-048, 1 31, 347 P.3d 738 (stating
15 	appellate courts are not bound by the state's concessions).
16 {20} 	Double jeopardy protects against multiple punishments for the same offense.
17 Swafford v. State, 	1991-NMSC-043, 1 6, 112 N.M. 3, 810 P.2d 1223. Whether
18 	separate convictions violate double jeopardy is "a question of law, which we review
19 de novo." State v. Montoya, 2013-NMSC-020, 122,306 P.3d 426 (internal quotation
20 marks and citation omitted). We apply the two-part test set forth in Swafford to
21 	determine whether Defendant's convictions for aggravated assault and aggravated
14

1 battery violate double jeopardy. See Swafford, 1991-NMSC-043, 1 25. First, we must
2 determine "whether the conduct underlying the offenses is unitary." Id. Conduct is
3 not unitary if sufficient "indicia of distinctness" separate the illegal acts. Id. 1 26. If
4 the conduct is unitary, we then "focus[] on the statutes at issue to determine whether
5 the [L]egislature intended to create separately punishable offenses." Id. 	1 25.
6 "Absent 	a 	clear 	expression 	of 	legislative 	intent 	[to 	provide 	for 	multiple
7 punishments], a court ... must apply the Blockburger test to the elements of each
8 statute. If that test establishes that one statute is subsumed within the other, the
9 inquiry is over and the statutes are the same for double jeopardy purposes-
10 punishment cannot be had for both." Swafford, 	1991-NMSC-043, 1 30. "Under
11 	Blockburger, the test to be applied to determine whether there are two offenses or
12 	only one[] is whether each provision requires proof of a fact which the other does
13 	not." State v. Swick, 2012-NMSC-018, 112,279 P.3d 747 (internal quotation marks
14 and citation omitted). "In New Mexico, we apply [the] Blockburger test to not only
15 	the defining statutes in the abstract but also to the [s]tate's theory of the particular
16 case[.]" State v. Torres, 2018-NMSC-013, 125,413 P.3d 467. We assess the State's
17 theory of the case by "considering such resources as the evidence, the charging
18 	documents, and the jury instructions." Statev. Montoya, 2013-NMSC-020, 149,306
19 P.3d 426. "When applying the Blockburger test to offenses that may be charged in
20 alternate ways, we look only to the elements of the statute as charged to the jury and
15

1 disregard the inapplicable statutory elements." State v. Caldwell, 2008-NMGA-049,
2 1 13, 143 N.M. 792, 182 P.3d 775 (omission, alteration, internal quotation marks,
3 and citation omitted).
4 	{21} 	With respect to the first part of the Swafford test, we fail to see "sufficient
5 indicia of distinctness" between the conduct underlying Defendant's convictions for
6 aggravated assault and aggravated battery. 	Swafford, 1991-NMSC-043, 126. Both
7 charges arose out of conduct that took place during the same altercation. There was
8 no intervening event between Defendant's act of swinging the hi-hat at Isaiah and
9 hitting Isaiah with the hi-hat. See State v. 	Comitz, 2019-NMSC-011, 1 39, _
10 P.3d_ (stating that courts look "for an event that intervened between the crimes at
11 	issue, distinguishing the crimes from one another." (internal quotation marks and
12 citation omitted)). Defendant's actions were of the same violent nature, aimed at one
13 	victim, and served a single purpose (i.e., to injure Isaiah). Thus, we conclude that
14 the conduct underlying both charges was unitary. See State v. Silvas, 2015-NMSC-
15 	006, 110,343 P.3d 616 ("Conduct is unitary when not sufficiently separated by time
16 or place, and the object and result or quality and nature of the acts cannot be
17 distinguished.").
18 	{22} 	We now tum to the second part of the Swqfford test to determine whetμer the
19 Legislature intended to make aggravated assault and aggravated battery, as charged
20 in this case, separately punishable offenses. Finding no clear expression of the
16

1 Legislature's intent to punish the two crimes separately, we apply the Blockburger
2 test to the elements of aggravated assault and aggravated battery. See Swafford,
3 	1991-NMSC-043, ,-r 30. Aggravated assault consists of "unlawfully assaulting or
4 striking at another with a deadly weapon." Section 30-3-2(A). Aggravated battery,
5 on the other hand, consists of "the unlawful touching or application of force to the
6 person of another with intent to injure that person or another." Section 30-3-5(A).
7 With respect to the aggravated assault charge, the district court instructed the jury
8 that, in order to find Defendant guilty, the jury had to find that:
9
10
11
12
13
1. 	[D]efendant tried to touch or apply force to Isaiah . . . by
swinging a hi-hat at Isaiah ... ;
2. 	[D]efendant acted in a rude, insolent or angry manner;
3. 	[D]efendant used a hi-hat[; and]
4. 	[D]efendant intended to touch or apply force to Isaiah[.]"
14 (Emphasis. added.) As discussed earlier, this instruction is modelled after UJI 14-
15 	304, which deals with the "attempted battery" type of assault. Thus, the aggravated
16 assault offense 	was 	subsumed within the 	aggravated battery 	offense 	because
17 Defendant could not have committed aggravated battery on Isaiah without also
18 	attempting to batter him. Cf State v. Lee, 2009-NMCA-075, ,-r 14, 146 N.M. 605,
19 213 	P.3d 509 (concluding that the material elements of attempted fraud were
20 subsumed within the crime of forgery because "in order for the false-writing element
21 	of forgery to be met, the element of attempted fraud using a false writing was also
17

1 necessarily met"). Therefore, Defendant's conviction for both crimes violates double
2 jeopardy.3 Because aggravated assault is the lesser offense, we vacate Defendant's
3 conviction for that charge. See State v. Santillanes, 2001-NMSC-018, ,-r,-r 6, 28, 130
4 N.M. 464, 27 P.3d 456 (stating that "the general rule requires that the lesser offense
5 be vacated" (internal quotation marks and citation omitted)). Compare§ 30-3-5(C)
6 (providing that "[w ]hoever commits aggravated battery ... with a deadly weapon
7 ... is guilty of a third degree felony"), with § 30-3-2 (providing that that"[w]hoever
8 commits aggravated assault is guilty of a fourth degree felony")
9 CONCLUSION
10 	{23} 	For the foregoing reasons, we vacate Defendant's convictions for aggravated
11 	assault of Isaiah and Isaac with a deadly weapon and affirm Defendant's conviction
12 	for aggravated battery with a deadly weapon. We therefore remand to the district
13 	court to vacate Defendant's convictions for aggravated assault and resentence
·14 Defendant accordingly.
3
The district court merged Defendant's convictions for aggravated assault and
battery for sentencing purposes. Nonetheless, merging the offenses for sentencing
purposes does not cure the double jeopardy violation. See State v. Vallejos; 2000-
NMCA-075, ,-r 27, 129 N.M. 424, 9 P.3d 668 (stating that "double jeopardy resulting
from multiple convictions for the same offense is not cured by the merger of the
offenses for sentencing purposes").
18

1 {24} IT IS SO ORDERED.
2 3
FundaMais.
LINDA M. VANZI, Judge
4 WE CONCUR:
5
Julio Vargar
6
JULIE J. VARGAS, Judge
7
8 ZACHARY A. IVES, Judge
19