Court of Appeals of New
STATE of New Mexico,
Jason JONES, Defendant-Appellee.
State of New Mexico,
Nos. 19,977, 20,372.
April 14, 2000.
Certiorari Denied, No.
May 25, 2000.
Defendant, who spit on
police officer, moved to dismiss felony charge of battery
upon a peace officer. The District Court, San Juan County,
George Harrison, D.J., granted motion, and the State
appealed. In separate action, defendant was convicted in the
District Court, Roosevelt County, Robert C. Brack, D.J., of
battery upon a peace officer for spitting and throwing urine
on prison guards, and he appealed. On consolidated appeals,
the Court of Appeals, Bosson, J., held that: (1) reasonable
jury could find that spitting or throwing urine upon a peace
officer came within purview of battery upon a peace officer,
but (2) when there was evidence to support defendant's
position that his challenge to officer's authority was not
meaningful, nor actually threatened an officer's safety, and
the defendant so requests, then trial court was required to
instruct jury, using those terms.
 Assault and Battery
Purpose of the battery
upon a peace officer statute is to protect the safety and
authority of peace officers. NMSA 1978, § 30-22-24.
 Assault and Battery
Jury must be instructed
that State's burden of proof in felony prosecution for
battery upon a peace officer ihis statute. To analyze this
question we must determine the impact of the holding in
State v. Padilla, 1997-NMSC-022, ¶ 2, 123 N.M. 216, 937
P.2d 492, on the statute and its corresponding uniform jury
instruction. See UJI 14- 2211 NMRA 2000. We
determine that, depending upon context, a rational jury
could find beyond a reasonable doubt that spitting or
throwing urine upon a peace officer falls within the terms
of the statute. We also hold that when the injury, threat
to safety, or challenge to authority of a peace officer is
in dispute, then upon request the jury must be instructed
that the battery resulted in an "actual injury, actual
threat to safety, or meaningful challenge to authority."
Padilla, 1997-NMSC-022, ¶ 7, 123 N.M. 216, 937 P.2d 492.
For the reasons that follow, we reverse both cases and
remand for further proceedings.
(2) Jason Jones yelled
from his parked car at a cruising police officer. When the
officer began to stop his car, Jones drove off, and for some
time Jones refused to pull over. When he finally did, the
officer arrested and handcuffed Jones for driving under the
influence of liquor and placed him in the rear of a patrol
car. During the trip to the police station, Jones' conduct
vacillated between periods of calm followed by outbursts of
anger. In one irate moment, Jones told the officer, "I'm
going to pull something out of me and put it on you to kill
all of your daughters." Then Jones leaned forward and spat
on the officer, which caused phlegm to land on the side of
the officer's face and shoulder.
(3) The parties
stipulated to these facts and asked the trial court to
determine whether they supported a conviction as a matter of
law under the battery upon a peace officer jury instruction,
as amended to conform with Padilla, 1997-NMSC-022,
123 N.M. 216, 937 P.2d 492. The trial court found that
these facts did not satisfy the elements of the crime under
UJI 14-2211, and dismissed the charge against Jones. The
State appeals the dismissal, requesting that the case be
remanded and the indictment reinstated.
(4) Joaquin Cordova
violated detention center rules of the Roosevelt County Jail
by attending breakfast while nude and then flooding the day
room. For this behavior, Cordova was placed in solitary
confinement. After a few days without a shower or the
ability to flush his toilet, Cordova became agitated. One
evening during a welfare check, when the corrections officer
checked on the prisoner through the food tray slot in the
cell door, Cordova spat on the officer. The officer quit
performing the remaining welfare checks on Cordova's cell
for the duration of his shift for fear of being spit on
(5) The next morning
another corrections officer served breakfast to Cordova.
This officer heard Cordova scream and curse at him. As the
officer left Cordova's cell, he heard a crash and returned
to find Cordova's food tray splattered across the floor.
When the officer began to clean up the mess, Cordova
screamed that he had "something else" for the officer, and
threw liquid on him contained in a "little white cup, like a
meds cup." Cordova screamed that the liquid was urine.
Thereafter, the officers subdued Cordova with pepper spray
and placed him in hand and leg restraints. A jury
convicted Cordova of two counts of battery upon a peace
officer. Cordova appeals, arguing that the trial court
erred in refusing to give his requested jury **145 *168
instruction, which would have tracked the language of
Padilla, 1997-NMSC-022, ¶ 7, 123 N.M. 216, 937 P.2d 492.
 (6) Battery upon a
peace officer is "the unlawful, intentional touching or
application of force to the person of a peace officer while
he is in the lawful discharge of his duties, when done in a
rude, insolent or angry manner." Section 30-22-24(A).
The purpose of the battery upon a peace officer statute "is
to protect the safety and authority of peace officers."
Padilla, 1997-NMSC-022, ¶ 5, 123 N.M. 216, 937 P.2d 492
(emphasis omitted). Padilla found that the statute's
felony sanctions were aimed at behavior that was above and
beyond the "mere affronts to personal dignity" that are
actionable under tort law. Id. ¶ 6. Therefore, it
was inappropriate to graft the analysis of tort law onto
this section of the criminal code. Padilla observed
that the penalty for battery upon a peace officer, a fourth
degree felony, was the same as that for an aggravated
battery upon a peace officer, which requires "painful
temporary disfigurement or temporary loss or impairment of
the functions of any member or organ of the body." NMSA
1978, § 30-22-25(B) (1971). Both are punishable by
eighteen months imprisonment. In balancing the conduct and
penalties involved, the Court reasoned that only if the
unlawful conduct comprising a battery upon a peace officer
rises to the level of an "actual injury, actual threat to
safety, or meaningful challenge to authority," could any
logic be discerned from the punishment that accompanies the
statute. Padilla, 1997-NMSC-022, ¶ 7, 123 N.M. 216,
937 P.2d 492. Otherwise, even a mundane civil battery,
such as rudely grabbing a ticket from an officer's hands, or
any other touching no matter how insignificant, could, at
the prosecutor's whim, become punishable as a felony. The
Supreme Court sought to avoid such an absurd result.
See id. ¶ 6; see also State v. Ortega, 113 N.M.
437, 439, 827 P.2d 152, 154 (Ct.App.1992).
(7) Thereafter, the
uniform jury instruction (UJI) for battery upon a peace
officer was amended, ostensibly to conform with the holding
of Padilla. See UJI 14-2211. Although Use Note 3
to the UJI acknowledges that Padilla defined unlawful
conduct as that which "meaningfully challenges" an officer's
authority, the text of the instruction omits the term
"meaningfully." Id. Nor does the UJI use the word
"actual" when describing the threat to an officer's
safety. These terms were fundamental to the definition of
unlawfulness in Padilla, and their absence from the
amended UJI is inexplicable.
(8) Because this Court
is vested with the responsibility to review a UJI in the
absence of controlling Supreme Court precedent, we must
decide whether the amended UJI sufficiently states the law
as applied to the facts of these particular prosecutions.
See State v. Wilson, 116 N.M. 793, 795, 867 P.2d 1175,
1177 (1994) (holding that the "Court of Appeals is not
precluded from considering error in jury instructions").
Thus, the question before us is twofold. First, must the
jury instruction include the terms, "meaningful challenge,"
"actual threat," or "actual injury," if so requested?
Second, can spitting on an officer constitute battery upon a
peace officer, assuming a jury is properly instructed
according to the evidence? We answer both questions in the
The Jury Instruction
for Section 30-22-24 after Padilla
 (9) In response to
the first question, we think that Padilla requires
the jury instruction to reflect the State's burden of proof,
which includes an "actual injury, actual threat to safety,
or meaningful challenge to authority," when the issue of a
challenge to authority or threat to safety is in dispute and
the defendant requests such language in the instruction.
See Padilla, 1997-NMSC-022, ¶ 7, 123 N.M. 216, 937 P.2d
492. The Supreme Court's goal in Padilla--to
separate felonious conduct from lesser offenses--would be
undermined if these terms are not included in an instruction
to the jury. Without language that focuses upon the
context of the act and the nature of the injury, the jury is
not instructed, as it must be under Padilla, to
distinguish mere rude, insolent, or angry conduct that could
be punished as a misdemeanor, from truly felonious conduct
that poses a threat or a challenge that is **146 *169
proportional in consequence to the punishment extracted.
(10) Language focusing
on context may be critical because, as Padilla
demonstrated, a contextual analysis is necessary to
determine what constitutes a meaningful challenge to
authority or an actual threat to safety. Although the
behavior in that case involved squirting baby oil on
corrections officers as they subdued an inmate, the opinion
noted that the atmosphere inside the jail, the context of
the battery, had already become unruly to the point of
rebellion. See id. ¶ 8. Under these
circumstances, the Court held that "a jury could find beyond
a reasonable doubt that [the defendant's] acts exacerbated a
serious situation in the jail and created unnecessary danger
for or jeopardized the authority of the detention officers."
Id. Thus, the jury must be directed to look to the
surrounding circumstances to determine whether a battery is
merely offensive in the ordinary civil sense, or whether it
rises to the level of "unnecessary danger" envisioned by the
definition of unlawfulness in Padilla, 1997-NMSC-022,
¶ 8, 123 N.M. 216, 937 P.2d 492.
(11) By restricting the
class of conduct punishable as a felony, Padilla
reflects the accepted legal principle that police are
trained to tolerate more than the average citizen is
expected to endure. See City of Alamogordo v. Ohlrich,
95 N.M. 725, 726, 625 P.2d 1242, 1243 (Ct.App.1981). A
useful analogy can be drawn to the use of "fighting words,"
which are not protected as speech under the First Amendment
to the United States Constitution. See Chaplinsky v.
New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed.
1031 (1942). Fighting words are not protected because
their utterance would cause an average person to react
violently. See State v. James M., 111 N.M. 473,
476, 806 P.2d 1063, 1066 (Ct.App.1990). In New Mexico, the
use of fighting words is punishable when directed towards a
fellow citizen. See id. at 475, 806 P.2d at 1065
(yelling obscenities at another citizen was likely to incite
a breach of the peace). However, if similar language is
directed towards the police, we expect greater restraint and
self-control. See Ohlrich, 95 N.M. at 726, 625 P.2d
at 1244 (dismissing disorderly conduct conviction of
defendant who yelled obscenities at police officer). Our
legislature has not made the use of profanity towards peace
officers a crime, much less a felony, although some would
argue that condoning this behavior is to "foster disrespect
for law and order." Id. at 727, 625 P.2d at 1244
(Hernandez, J., dissenting). We recently declined an
invitation to lower our expectations of police officers,
reiterating that they are " 'expected to have a higher
tolerance for offensive conduct.' " State v. Hawkins,
1999-NMCA-126, ¶ 11, 128 N.M. 245, 991 P.2d 989 (quoting
James M., 111 N.M. at 477, 806 P.2d at 1067). We
presume the legislature is aware that police are held to a
higher standard when it comes to defining unlawful conduct
punishable as a felony. See State v. Cleve,
1999-NMSC-017, ¶ 14, 127 N.M. 240, 980 P.2d 23; Padilla,
1997-NMSC-022, ¶ 6, 123 N.M. 216, 937 P.2d 492. And we
believe our Supreme Court's construction of Section
30-22-24, as expressed in Padilla, reflects this
"higher tolerance" expected of police officers with respect
to minor, technical batteries. Cf. Padilla,
1997-NMSC-022, ¶ 6, 123 N.M. 216, 937 P.2d 492 ("It is
absurd to think the legislature intended to make felonious
mere affronts to personal dignity.")
(12) 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, 123 N.M. 216, 937 P.2d 492. 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 **147 *170 of an "actual
injury, actual threat to safety, or meaningful challenge to
authority" before a jury can convict of a felony. Id.
(13) 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, 217 Mich.App. 660, 553 N.W.2d 23,
24-25 (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.
 (14) 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?
 (15) 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
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 I of
 (16) 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.
(17) 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 **148 *171
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, 123 N.M. 216, 937 P.2d 492. Thus, we reverse and remand
for a new trial.
 (18) 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).
 (19) 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 saliva in the
transmission of [HIV] is unclear" (citation and internal
quotation marks omitted)). But see State v. Bird,
81 Ohio St.3d 582, 692 N.E.2d 1013, 1016 (1998)
(affirming no contest plea of HIV-infected defendant who
spat in police officer's face because plea made it
unnecessary to decide whether HIV could be transmitted by
saliva). To the contrary, the authorities all involve
batteries with bodily waste from known carriers of
communicable disease. See, e.g., Weeks v. State,
834 S.W.2d 559, 562-65 (Tx.Ct.App.1992) (sustaining
attempted murder conviction of HIV-infected inmate who spat
into face of guard); Commonwealth v. Brown, 413
Pa.Super. 421, 605 A.2d 429 430-31 (1992) (sustaining
aggravated assault conviction against inmate with HIV and
hepatitis who flung fecal material into guard's mouth).
Neither case before us contains evidence that the accused
carried any communicable disease. We will not assume as a
matter of law that one has been battered by a harmful
disease unless supported by the evidence, especially in the
absence of clear legislative intent to make such
unsubstantiated apprehension a felony.
(20) We hold that a
reasonable jury could find that spitting or throwing urine
upon a peace officer comes within the purview of battery
upon a peace officer. However, when there is evidence to
support a defendant's position that his challenge to an
officer's authority was not meaningful, nor actually
threatened an officer's safety, and the defendant so
requests, then the jury must be instructed, using those
terms taken from the Supreme Court's opinion in Padilla.
Therefore, we reinstate Jones' indictment and reverse
Cordova's conviction, and we remand for a new trial for
Cordova with a jury instruction that conforms with this
(21) IT IS SO ORDERED.
BUSTAMANTE and ARMIJO,
3 P.3d 142, 129 N.M.
END OF DOCUMENT