{ "id": 4189151, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. STEVEN SHAWN VALINO, Defendant-Appellant", "name_abbreviation": "State v. Valino", "decision_date": "2012-09-24", "docket_number": "No. 33,764; No. 33,784; Docket No. 30,497", "first_page": "675", "last_page": "682", "citations": [ { "type": "official", "cite": "2012-NMCA-105" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "117 N.M. 452", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552789 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "456" }, { "page": "874" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0452-01" ] }, { "cite": "2011-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249805 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0110-01" ] }, { "cite": "2005-NMCA-031", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929174 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0107-01" ] }, { "cite": "511 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147026 ], "year": 1994, "pin_cites": [ { "page": "616", "parenthetical": "\"[T]he cases that first defined the concept of the public welfare offense almo st uniformly involved statutes that provided for only light penalties such as fines or shortjail sentences, not imprisonment in the state penitentiary.\"" } ], "opinion_index": 0, "case_paths": [ "/us/511/0600-01" ] }, { "cite": "115 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725427 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "222" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0215-01" ] }, { "cite": "2009-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243873 ], "weight": 5, "pin_cites": [ { "page": "\u00b6\u00b6 22, 26, 30" }, { "page": "\u00b6 26" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0142-01" ] }, { "cite": "2005-NMCA-060", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929130 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0456-01" ] }, { "cite": "1998-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827431 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0371-01" ] }, { "cite": "113 N.M. 780", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723308 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "784" }, { "page": "1150" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0780-01" ] }, { "cite": "2002-NMCA-093", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260731 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0646-01" ] }, { "cite": "2007-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3691801 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0191-01" ] }, { "cite": "2000-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106493 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0711-01" ] }, { "cite": "2009-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242622 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0757-01" ] }, { "cite": "2009-NMSC-049", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246461 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 17" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0177-01" ] }, { "cite": "2009-NMSC-051", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244764 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 19" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0291-01" ] }, { "cite": "2004-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77119 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0768-01" ] }, { "cite": "2011-NMCA-115", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250599 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 13" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 16" }, { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0754-01" ] } ], "analysis": { "cardinality": 970, "char_count": 22778, "ocr_confidence": 0.818, "pagerank": { "raw": 7.610482555409192e-08, "percentile": 0.45031602228546913 }, "sha256": "c2b10f0fde832cca57c8dc424e58d11cccb7bb67e08f6a4625c53a32839ff30c", "simhash": "1:b12c6671c9da63d3", "word_count": 3706 }, "last_updated": "2023-07-14T17:22:38.419741+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CELIA FOY CASTILLO, Chief Judge", "JONATHAN B. SUTIN, Judge", "CYNTHIA A. FRY, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. STEVEN SHAWN VALINO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCASTILLO, Chief Judge.\n{1} Defendant was convicted of battery upon a health care worker pursuant to NMSA 1978, Section 30-3-9.2(E) (2006). On appeal, he makes a number of arguments. We agree with Defendant that the jury instruction listing the elements for conviction of battery on a health care worker was deficient because it did not include the requirement of knowledge. Accordingly, we reverse and remand for a new trial. We affirm on two of the other issues raised by Defendant and do not reach the remaining issues.\nBACKGROUND\n{2} Defendant\u2019s conviction stems from an incident that occurred at the San Juan Regional Medical Center (Medical Center). On the afternoon of August 19, 2009, police officers brought Defendant, who was intoxicated, to the Medical Center. No charges were filed by police at the time, and Defendant was evaluated by nurses in the emergency department. Although the medical staff recommended no treatment, it was hospital policy that intoxicated persons are not to be released. The doctor who examined Defendant ordered that Defendant could be released \u201cunder the supervision of somebody sober.\u201d The Medical Center had contacted his parents to pick him up. After the police officers left, a member of the nursing staff asked Link Roberts, a security supervisor at the Medical Center, to oversee Defendant while he was waiting to be picked up. D efendant \u201cwas verbally communicative about his desire to leave\u201d the Medical Center and kept trying to leave, so Roberts called in a security officer under his command, Steven O\u2019Brien, to help him manage Defendant. At one point, the two security guards (the Guards) lifted Defendant back onto a bed. Defendant then began flailing his arms and punched O \u2019Brien in the chest with his left fist.\n{3} Defendant was charged with battery upon a health care worker under Section 30-3-9.2(E). Before trial, Defendant filed a motion to dismiss, making three arguments: (1) that O\u2019Brien was not a health care worker as defined by the Code; (2) that Defendant had no reason to know or believe that O \u2019Brien was a health care worker; and (3) that the battery charge violated the policy of the New Mexico Detoxification Reform Act (DRA), NMSA 1978, \u00a7\u00a7 43-2-1 to -23 (1949, as amended through 2005), that bars prosecution of an intoxicated person. See \u00a7 43-2-3. The district court denied the motion.\n{4} At trial, Defendant sought a jury instruction on either or both self-defense and unlawfulness. The district court gave the instruction on unlawfulness but not on self-defense. The jury found Defendant guilty of battery upon a health care worker.\nDISCUSSION\n{5} Defendant makes several arguments. The dispositive issue relates to the deficiency in the jury instruction and, based on this, we reverse and remand for a new trial. However, Defendant makes two arguments that would have resulted in dismissal of his entire case had we found in his favor. W e address these arguments first. In this regard, Defendant contends that his actions were protected by the DRA and that the district court erred in denying his motion to dismiss based on the argument that a security guard is not a health care worker. We then turn to his contentions about the jury instructions. Defendant asserts, and we agree, that fundamental error occurred when the district court failed to instruct the jury that a conviction for battery on a health care worker required the element of knowledge that the victim was a health care worker. Because we are reversing as to this issue, we next turn to Defendant\u2019s argument that there was not substantial evidence presented at trial that the Guards were acting lawfully when they restrained him. We consider this argument in order to determine whether retrial would violate principles of double jeopardy. Defendant\u2019s remaining issues relate to the jury instruction he tendered on self-defense and his claim that his counsel was ineffective. We address Defendant\u2019s contentions in the above order and begin with his argument regarding the DRA.\nA. DRA\n{6} According to Defendant, the DRA bars prosecution in this situation for a battery committed while he was under the influence of alcohol because the policy of the DRA is to encourage treatment and avoid criminal prosecution. He argues that a felony charge in this case was inappropriate because \u201cthose in charge of taking care of an intoxicated person should show more circumspection.\u201d\n{7} \u201cThe issue of whether the DRA precludes prosecution of intoxicated persons . . . for battery upon a health care worker is a question of statutory interpretation, which this Court reviews de novo.\u201d State v. Tsosie, 2011-NMCA-115, \u00b6 13, 150 N.M. 754, 266 P.3d 34. \u201cOur ultimate goal in statutory construction is to ascertain and give effect to the intent of the Legislature.\u201d Id. (internal quotation marks and citation omitted). \u201cUnder the plain meaning rule of statutory construction, when a statute contains language [that] is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.\u201d State v. Rivera, 2004-NMSC-001, \u00b6 10, 134 N.M. 768, 82 P.3d 939 (alteration, internal quotation marks, and citation omitted).\n{8} Defendant speculates that the police officer\u2019s intent in taking Defendant to the Medical Center was to help him in his inebriated state, and he argues that the ensuing fight with the Guards was the type of struggle one would expect from an intoxicated person whose actions should be protected by the DRA. Under the DRA, it is the policy of the State to protect \u201cintoxicated and incapacitated persons\u201d from being \u201csubjected to criminal prosecution[s].\u201d Section 43-2-3. However, the DRA is intended to protect people from criminal punishment \u201csolely for being intoxicated.\u201d State v. Correa, 2009-NMSC-051, \u00b6 18, 147 N.M. 291, 222 P.3d 1. \u201cWhile intoxication itself is not criminal, any criminal offenses committed while an accused is intoxicated are still punishable under the Criminal Code.\u201d Id. \u00b6 19. \u201cOur Court\u2019s reasoning that \u2018any criminal offenses committed while an accused is intoxicated are still punishable under the Criminal Code\u2019 encompasses the criminal offense of battery upon a health care worker.\u201d Tsosie, 2011-NMCA-115, \u00b6 16 (quoting Correa, 2009-NMSC-051, \u00b6 19).\n.{9} Defendant concedes the above points but argues that, in this particular situation, the Guards somehow exceeded their caretaking role while D efendant was awaiting his parents \u2019 arrival. We see nothing unique in these circumstances and nothing to contradict the clear instruction from Correa and Tsosie that any criminal offense committed while the actor is intoxicated is still punishable. As the Court warned in Correa, too expansive a reading of the DRA \u201cwould mean that an accused would not be criminally liable for murder, burglary, assault, or battery if he was intoxicated when he committed the offense.\u201d 2009-NMSC-051, \u00b6 16. As we said in Tsosie, the defendant \u201cwas not prosecuted for intoxication itself, but rather for a battery allegedly committed while he was intoxicated.\u201d 2011-NMCA-115^ 16. Wesee no meaningful distinction between this case and the circumstances in Correa and Tsosie. Accordingly, we conclude that the DRA does not protect Defendant here from a charge of battery, and the district court was correct to reject the argument.\nB. Health Care Worker Statute\n{10} Defendant contends that the district court erred in denying his motion to dismiss based on his argument that O\u2019Brien was not a health care worker. In his motion to dismiss, Defendant acknowledged that O\u2019Brien was employed by the Medical Center, and thus the fact of O\u2019Brien\u2019s employment status was undisputed. We are presented with an issue of statutory interpretation and our review is de novo. Tsosie, 2011-NMCA-115, \u00b6 13. The issue of whether a security guard is a \u201chealth care worker\u201d as defined in the battery upon health care personnel statute is purely a legal question. See State v. Johnson, 2009-NMSC-049, \u00b6 9, 147 N.M. 177, 218 P.3d 863.\n{11} The statute criminalizing battery against a health care worker defines \u201chealth care worker\u201d in pertinent part as one who is \u201can employee of a health [care] facility.\u201d Section 30-3-9.2(A)(2). In spite of his recognition that O\u2019Brien is an employee of a health care facility, Defendant argues that O \u2019Brien does not come under the definition of \u201chealth care worker\u201d because he is not in the medical profession, his employment is not for the purpose of providing medical care, he is not licensed in any medical field, and his employment duties relate to security, not medicine. We look for direction from two New Mexico cases.\n{12} In Johnson, the New Mexico Supreme Court held that security guards working in schools are school employees within the statute criminalizing battery upon school personnel. Johnson, 2009-NMSC-049, \u00b6 17. In coming to this conclusion, the Court observed \u201ctwo important rules of construing criminal statutes, the plain meaning rule and the rule that criminal statutes should be construed to further their purpose[.]\u201d Id. (internal quotation marks and citation omitted). The Court noted that \u201cnothing in the statute indicates the Legislature intended something other than the ordinary meaning of \u2018employee\u2019 to apply.\u201d Id. \u00b6 11; see State v. Smith, 2009-NMCA-028, \u00b6 13, 145 N.M. 757, 204 P.3d 1267 (stating that \u201cwhere a statute specifically defines a term, we interpret the statute according to those definitions, because those definitions reflect legislative intent\u201d). The Court determined that the purpose of the statute was \u201cto decrease incidents of violence at schools by enhancing the penalties for crimes committed against \u2018employees\u2019 of the school.\u201d Johnson, 2009-NMSC-049, \u00b6 15. Using the same analysis, we conclude that there is nothing in Section 30-3-9.2(A)(2) indicating that the Legislature intended something other than the ordinary meaning of \u201cemployee\u201d to apply. Further, our review of the statute supports the determination that its purpose is to protect those providing health care services. See Tsosie, 2011-NMCA-l 15, \u00b6 19 (stating rules the appellate courts abide by when interpreting statutes). We also look to Tsosie where we determined that the victim of an attack by a patient was a health care worker because he was employed by a health care facility as defined by the statute at the time of the incident. Id. \u00b6 29. We therefore hold that because O\u2019Brien was an employee of the Medical Center, he is considered a \u201chealth care worker\u201d under Section 30-3-9.2(A)(2). We affirm the district court on this issue.\nC. Knowledge Requirement for Battery Upon a Health Care Worker\n{13} Defendant next argues that the district court improperly instructed the jury on the elements of battery upon a health care worker by omitting the requirement that Defendant have knowledge that the victim was a health care worker. Defendant admits that he did not tender the proper instruction at trial and therefore failed to preserve the argument; he asks us to review the issue for fundamental error. See State v. Cunningham, 2000-NMSC-009, \u00b6 8, 128 N.M. 711, 998 P.2d 176.\n{14} Fundamental error occurs when a court fails to instruct a jury on an essential element. See State v. Sutphin, 2007-NMSC-045, \u00b6 16, 142 N.M. 191, 164 P.3d 72. \u201cFundamental rights of an accused . . . are implicated where the jury is permitted to return a conviction without having been instructed on an essential element of [a] crime.\u201d State v. Castro, 2002-NMCA-093, \u00b6 2, 132 N.M. 646, 53 P.3d 413 (alteration, internal quotation marks, and citation omitted). However, \u201cwhen a jury\u2019s finding that a defendant committed the alleged act. . . necessarily includes or amounts to a finding on an element omitted from the jury\u2019s instructions, any doubt as to the reliability of the conviction is eliminated and the error cannot be said to be fundamental.\u201d State v. Orosco, 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992). \u201cWe determine whether a reasonable juror would have been confused or misdirected by the erroneous instructions.\u201d Castro, 2002-NMCA-093, \u00b6 2. The propriety of a court\u2019s decision on whether to give a jury instruction is a mixed question of law and fact that we review de novo. See State v. Munoz, 1998-NMSC-041, \u00b6 8, 126 N.M. 371, 970 P.2d 143. \u201cWhen considering a defendant\u2019s requested instructions, we view the evidence in the light most favorable to the giving of the requested instruction.\u201d State v. Romero, 2005-NMCA-060, \u00b6 8, 137 N.M. 456, 112 P.3d 1113.\n{15} We look to Section 30-3-9.2(E) for the elements of battery upon a health care worker: \u201cBattery upon a health care worker is the unlawful, intentional touching or application of force to the person of a health care worker who is in the lawful discharge of the health care worker\u2019s duties, when done in a rude, insolent[,j or angry manner.\u201d Knowledge of the victim\u2019s identity is not expressly included in the statute as an element of battery upon a health care worker. In State v. Nozie, 2009-NMSC-018, \u00b6\u00b6 22, 26, 30, 146 N.M. 142, 207 P.3d 1119, the New Mexico Supreme Court held that knowledge of a victim\u2019s identity as a police officer is an essential element of battery upon a peace officer, even though it is not included in the text of the statute. The Court reaffirmed the proposition that we \u201cpresume criminal intent is an essential element of the crime unless it is clear from the statute that the [Ljegislature intended to omit the mens rea element.\u201d Id. \u00b6 26 (alteration in original) (internal quotation marks and citation omitted). The Nozie Court also noted that the penalty for battery upon a peace officer raised a simple misdemeanor battery into a fourth degree felony. See id. Thus, requiring a knowledge element for battery upon a peace officer makes sense in order to distinguish that more serious offense from \u201cstrict liability or \u2018public welfare crimes\u2019 to which no \u2018moral condemnation and social opprobrium\u2019 typically attach and for which the penalties are \u2018relatively slight.\u2019\u201d Id. (quoting Santillanes v. State, 115 N.M. 215, 222, 849 P.2d 358, 365 (1993)). The Court concluded that the Legislature \u201cdid not intend for punishment to be imposed without knowledge of the victim\u2019s status as a peace officer.\u201d Id. The Court proceeded to modify the uniform jury instruction for a charge of battery upon a peace officer to add the scienter requirement. Id. \u00b6 31.\n{16} Here, Defendant argues thatthe same requirement should carry over to battery upon a health care worker. We agree. When the victim of a battery is a health care worker, a misdemeanor battery charge is elevated to a fourth degree felony, as it is with respect to the crime of battery on a peace officer. See \u00a7 30-3-9.2(E); Nozie, 2009-NMSC-018, \u00b6 26. When determining whether a crime falls into the category of \u201cstrict liability\u201d or \u201cpublic welfare\u201d infractions, one factor to consider is \u201c[t]he severity of the punishment provided for the crime[.]\u201d 1 Wayne R. LaFave, Criminal Law \u00a7 5.5(a) at 383-84 (2d ed. 2003). \u201cOther things being equal, the greater the possible punishment, the more likely some fault is required; and, conversely, the lighter the possible punishment, the more likely the [Ljegislature meant to impose liability without fault.\u201d Id. at 384; see Staples v. United States, 511 U.S. 600, 616 (1994) (\u201c[T]he cases that first defined the concept of the public welfare offense almo st uniformly involved statutes that provided for only light penalties such as fines or shortjail sentences, not imprisonment in the state penitentiary.\u201d). We have previously held that a reviewing court \u201cmust be sure that the penalties associated with a felony conviction are imposed only in response to an act done with at least the minimum culpable state of mind.\u201d Nozie, 2009-NMSC-018, \u00b6 26 (internal quotation marks and citation omitted).\n{17} In the case before us, the heightened penalty for battery upon a health care worker triggers our concern, as stated in Nozie, that the Legislature intended for a defendant to act with knowledge of the victim\u2019s identity before facing a felony conviction for battery upon a health care worker. It follows, then, that the jury was permitted to find Defendant guilty without considering an essential element of the crime \u2014 Defendant\u2019s knowledge of the victim\u2019s status as a health care worker \u2014 thus creating an unfair result. Cf. State v. Gonzalez, 2005-NMCA-031, \u00b6 20, 137 N.M. 107, 107 P.3d 547 (holding the result unfair and constituting fundamental error where the jury was allowed to determine guilt without finding the essential element of knowledge). We conclude that the reasoning of Nozie extends to the crime of battery upon a health care worker. Here, knowledge is a required element for the crime of battery upon a health care worker, and it is not apparent that the jury considered the missing element as the jury did in Orosco. Consequently, we conclude that the failure to instruct the jury on the essential element of knowledge was fundamental error. Because we are holding that the element of knowledge should be included as an element in the jury instruction for battery upon a health care worker, we reverse this case and remand for a new trial.\nD. Substantial Evidence Regarding Lawfulness of O\u2019Brien\u2019s Actions\n{18} As we have previously mentioned, based on our reversal of Defendant\u2019s conviction, we address his argument regarding the sufficiency of the evidence in order to determine whether retrial would violate principles of double jeopardy. See State v. Dowling, 2011-NMSC-016, \u00b6 18, 150 N.M. 110, 257 P.3d 930 (undertaking a sufficiency of the evidence inquiry in order to \u201cascertain whether double jeopardy protections are implicated by retrying Defendant\u201d following reversal of his conviction). Defendant contends that the State failed to provide substantial evidence that O\u2019Brien was acting lawfully while he restrained Defendant. He points to the jury instruction listing the elements of the crime and argues that the State failed to prove the second element: that O\u2019Brien \u201cwas a health} jcare worker in the lawful performance of his health} jcare duties}.]\u201d For a question of sufficiency of the evidence, \u201cwe view the evidence in the light most favorable to the [sjtate, resolving all conflicts and indulging all permissible inferences to uphold a verdict of conviction.\u201d State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994).\n{19} The jury was instructed that the State was required to prove that O\u2019Brien \u201cwas a health} jcare worker in the lawful performance of his health} jcare duties}.]\u201d Section 30-3-9.2(A)(3) defines the phrase \u201cin the lawful discharge\u201d of the health care worker\u2019s duties as being \u201cengaged in the performance of the duties of a health care worker.\u201d Evidence was presented that Defendant was brought to the Medical Center under the DRA, which authorizes a police officer to have an intoxicated person committed to a treatment facility when the police officer has probable cause to suspect that the person \u201cis unable to care for the person\u2019s own safety}.]\u201d Section 43-2-8(A)(2). The intoxicated person \u201cshall be retained at the facility . . . until discharged.\u201d Section 43-2-8(C). A person may be held for up to seventy-two hours, but must be released if his blood-alcohol content reaches zero or \u201cthere is no probable cause to believe the person remains at risk of physical harm to himself or another}.]\u201d Section 43-2-8(E).\n{20} Here, evidence was presented to show that O \u2019Brien had the authority to restrain Defendant. O\u2019Brien testified that it is the procedure and policy of the Medical Center to hold an intoxicated person because of potential liability of the hospital regarding premature release of intoxicated people who present safety concerns. O \u2019Brien testified that he was acting under the direction of medical staff, who had determined that Defendant was not free to be released and had requested that the Guards restrain Defendant until his parents arrived to pick him up. The Guards\u2019 job description includes detaining those brought in for detoxification evaluations. The Guards testified that they repeatedly told Defendant that he must wait in a bed for his parents to pick him up. When Defendant tried to leave, the Guards restrained him. We conclude that sufficient evidence existed for a jury to find that O \u2019 Brien was an employee of the Medical Center and, as such, he was a health care worker. Additionally, there was sufficient evidence for the jury to conclude that he was in the lawful performance of his duties in that regard. O\u2019Brien had been directed to prevent Defendant from leaving the Medical Center until his parents came to pick him up, and O\u2019Brien was carrying out these duties.\nE. Remaining Issues\n{21} Defendant also argues that the court erred in failing to include the tendered self-defense instruction, that his counsel was ineffective by not including the element of knowledge in the battery instruction and in failing to request a mistake of fact instruction. Because we are reversing Defendant\u2019s conviction and remanding for a new trial, we need not consider these arguments. As to the self-defense instruction, there is a question regarding whether this argument was even preserved. On retrial, Defendant can develop this issue as he desires. Similarly, Defendant\u2019s claims that his counsel was ineffective need not be considered as those claims become moot in light of the grant of a new trial. In light of this disposition, we need not consider Defendant\u2019s remaining issues.\nIII. CONCLUSION\n{22} We hold that knowledge of the victim\u2019s identity as a health care worker is an essential element of battery on a health care worker. Currently there are no jury instructions regarding this crime, and we ask that the Supreme Court refer this matter to the appropriate committee to assess whether uniform jury instructions are necessary for this and the related crimes set out in NMSA 1978, Section30-3-9 (1989) (assault;battery; school personnel), and NMSA 1978, Section 30-3-9.1 (2001) (assault; battery; sports officials). We reverse the verdict below and remand for proceedings consistent with this Opinion.\n{23} IT IS SO ORDERED.\nCELIA FOY CASTILLO, Chief Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nCYNTHIA A. FRY, Judge", "type": "majority", "author": "CASTILLO, Chief Judge." } ], "attorneys": [ "Gary K. King, Attorney General Ann M. Harvey, Assistant Attorney General Santa Fe, NM for Appellee", "Jacqueline L. Cooper, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, September 24, 2012,\nNo. 33,764\nCertiorari Denied, September 20,2012,\nNo. 33,784\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2012-NMCA-105\nFiling Date: July 27, 2012\nDocket No. 30,497\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. STEVEN SHAWN VALINO, Defendant-Appellant.\nGary K. King, Attorney General Ann M. Harvey, Assistant Attorney General Santa Fe, NM for Appellee\nJacqueline L. Cooper, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0675-01", "first_page_order": 691, "last_page_order": 698 }