{ "id": 4333493, "name": "STATE OF NEW MEXICO, Plaintiff-Respondent, v. AARON A. RAMOS, Defendant-Petitioner", "name_abbreviation": "State v. Ramos", "decision_date": "2013-06-27", "docket_number": "Docket No. 33,217", "first_page": "415", "last_page": "427", "citations": [ { "type": "official", "cite": "2013-NMSC-031" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "Ind. Code Ann. \u00a7 35-46-1-15", "category": "laws:leg_statute", "reporter": "Ind. Code Ann.", "opinion_index": 0 }, { "cite": "952 P.2d 84", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1553841 ], "year": 1998, "pin_cites": [ { "page": "86-87", "parenthetical": "holding that defendant's coming within 150 feet of petitioner at a video store did not violate protective order because the video store was not specifically designated in the order" } ], "opinion_index": 0, "case_paths": [ "/or-app/152/0040-01" ] }, { "cite": "Wyo. Stat. Ann. \u00a7 35-21-105", "category": "laws:leg_statute", "reporter": "Wyo. Stat. Ann.", "year": 2008, "pin_cites": [ { "page": "(c)", "parenthetical": "\"The [protective] order shall contain notice that willful violation of any provision of the order constitutes a crime as defined by W.S. 6-4-404, can result in immediate arrest and may result in further punishment.\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "118 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563627 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "44", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "993", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "42" }, { "page": "991", "parenthetical": "\"Reversible error arises if ... a reasonable juror would have been confused or misdirected.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0039-01" ] }, { "cite": "111 N.M. 654", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715204 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "662", "parenthetical": "\"[FJailure to instruct the jury on the essential elements of an offense constitutes fundamental error. Where fundamental error is involved, it is irrelevant that the defendant was responsible for the error by failing to object to an inadequate instruction^]\"" }, { "page": "632", "parenthetical": "\"[FJailure to instruct the jury on the essential elements of an offense constitutes fundamental error. Where fundamental error is involved, it is irrelevant that the defendant was responsible for the error by failing to object to an inadequate instruction^]\"" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0654-01" ] }, { "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": "108 N.M. 233", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592886 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "236", "parenthetical": "holding that the general criminal intent instruction was not \"sufficient to instruct the jury that knowledge of the prohibited blood relationship is an essential element of [the crime of] incest\"" }, { "page": "169", "parenthetical": "holding that the general criminal intent instruction was not \"sufficient to instruct the jury that knowledge of the prohibited blood relationship is an essential element of [the crime of] incest\"" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0233-01" ] }, { "cite": "112 N.M. 97", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720218 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "100", "parenthetical": "\"One who intentionally remains ignorant is chargeable in law with knowledge.\" (internal quotation marks and citations omitted)" }, { "page": "1311", "parenthetical": "\"One who intentionally remains ignorant is chargeable in law with knowledge.\" (internal quotation marks and citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0097-01" ] }, { "cite": "2004-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224588 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0161-01" ] }, { "cite": "287 P.3d 372", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-105", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4189151 ], "pin_cites": [ { "page": "\u00b6\u00b6 15, 17" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0675-01" ] }, { "cite": "427 A.2d 479", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7945723 ], "year": 1981, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/a2d/427/0479-01" ] }, { "cite": "2009-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243873 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 30" }, { "page": "\u00b6 30" }, { "page": "\u00b6 30" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0142-01" ] }, { "cite": "297 A.2d 216", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1972, "pin_cites": [ { "page": "217" } ], "opinion_index": 0 }, { "cite": "2005-NMCA-031", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929174 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6\u00b6 1, 18" }, { "page": "\u00b6 7" }, { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0107-01" ] }, { "cite": "115 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725427 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "218" }, { "page": "361" }, { "page": "222" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0215-01" ] }, { "cite": "2001-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183105 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 12", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0258-01" ] }, { "cite": "289 P.3d 1254", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2011-NMCERT-010", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "S.D. Codified Laws \u00a7 25-10-13", "category": "laws:leg_statute", "reporter": "S.D. Codified Laws", "year": 2011, "opinion_index": 1 }, { "cite": "S.C. Code Ann. \u00a7 16-25-20", "category": "laws:leg_statute", "reporter": "S.C. Code Ann.", "year": 2008, "opinion_index": 1 }, { "cite": "Or. Rev. Stat. Ann. \u00a7 107.720", "category": "laws:leg_statute", "reporter": "Or. Rev. Stat. Ann.", "year": 2012, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 1 }, { "cite": "Ohio Rev. Code Ann. \u00a7 2919.27", "category": "laws:leg_statute", "reporter": "Ohio Rev. Code Ann.", "year": 2010, "pin_cites": [ { "page": "(A)(1)" } ], "opinion_index": 1 }, { "cite": "N.D. Cent. Code Ann. \u00a7 14-07.1-06", "category": "laws:leg_statute", "reporter": "N.D. Cent. Code Ann.", "year": 2011, "opinion_index": 1 }, { "cite": "N.Y. Fam. Ct. Act \u00a7 846", "category": "laws:leg_act", "reporter": "N.Y.", "opinion_index": 1 }, { "cite": "Mo. Ann. Stat. \u00a7 455.085", "category": "laws:leg_statute", "reporter": "Mo. Ann. Stat.", "year": 2011, "opinion_index": 1 }, { "cite": "Mich. Comp. Laws Ann. \u00a7 764", "category": "laws:leg_statute", "reporter": "Mich. Comp. Laws Ann.", "opinion_index": 1 }, { "cite": "Md. Code Ann., Fam. Law \u00a7 4-508.1", "category": "laws:leg_statute", "reporter": "Md. Code Ann.", "year": 2011, "opinion_index": 1 }, { "cite": "Ind. Code Ann. \u00a7 31-15-5-1", "category": "laws:leg_statute", "reporter": "Ind. Code Ann.", "year": 2003, "opinion_index": 1 }, { "cite": "Idaho Code Ann. \u00a7 39-6312", "category": "laws:leg_statute", "reporter": "Idaho Code Ann.", "year": 1999, "opinion_index": 1 }, { "cite": "D.C. Code \u00a7 16-1031", "category": "laws:leg_statute", "reporter": "D.C. Code", "year": 2013, "opinion_index": 1 }, { "cite": "Alaska Stat. Ann. \u00a7 18.66.130", "category": "laws:leg_statute", "reporter": "Alaska Stat. Ann.", "pin_cites": [ { "page": "(2013)" } ], "opinion_index": 1 }, { "cite": "56 Ohio St. L.J. 1153", "category": "journals:journal", "reporter": "Ohio St. L.J.", "weight": 2, "year": 1995, "pin_cites": [ { "page": "1158" } ], "opinion_index": 1 }, { "cite": "Wyo. Stat. Ann. \u00a7 35-21-105", "category": "laws:leg_statute", "reporter": "Wyo. Stat. Ann.", "year": 2008, "pin_cites": [ { "page": "(c)(2008)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1405, "char_count": 37414, "ocr_confidence": 0.844, "pagerank": { "raw": 4.5046715916883656e-08, "percentile": 0.28237823904019116 }, "sha256": "25ce0027a97316c836980c71212a893ecaefe447c260e2039ffbb198be4a3283", "simhash": "1:2f30b1b3f6836fc8", "word_count": 6109 }, "last_updated": "2023-07-14T21:50:37.461651+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RICHARD C. BOSSON, Justice", "WE CONCUR:", "EDWARD L. CH\u00c1VEZ, Justice", "CHARLES W. DANIELS, Justice", "BARBARA J. VIGIL, Justice", "PETRA JIMENEZ MAES, Chief Justice (dissenting).", "PETRA JIMENEZ MAES, Chief Justice" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Respondent, v. AARON A. RAMOS, Defendant-Petitioner." ], "opinions": [ { "text": "OPINION\nBOSSON, Justice.\nA jury convicted Aaron Ramos (Defendant) of the misdemeanor of violating an order of protection. Defendant appeals because he was refused a jury instruction that would have required the jury to find that he had \u201cknowingly\u201d violated the protection order. Our Court of Appeals upheld the district court\u2019s decision not to give the \u201cknowingly\u201d instruction, noting the absence of any such word in the relevant statute and applying general principles of statutory construction. For the reasons that follow, we read the language and structure of the statute together with its legislative policy and purpose, and conclude that our Legislature could only have intended to make the crime a \u201cknowing\u201d violation. Accordingly, it was reversible error to deny Defendant\u2019s requested instruction to that effect. We reverse and remand for a new trial consistent with this Opinion.\nBACKGROUND\nAndrea Reed, Defendant\u2019s former girlfriend, obtained an ex parte temporary order of protection (the order) against Defendant on October 31, 2008. Her authority for the order was NMSA 1978, Section 40-13-4(A)(l) (2008) (\u201cUpon the filing of a petition for order of protection, the court shall . . . immediately grant an ex parte temporary order of protection ... if there is probable cause from the specific facts shown by the affidavit or by the petition to give the judge reason to believe that an act of domestic abuse has occurred[.]\u201d). Ms. Reed\u2019s reason for obtaining the order is not entirely clear from the record, but it appears to involve Defendant having entered Ms. Reed\u2019s home without her consent. Ms. Reed was apparently upset about this, and she and Defendant had a heated conversation in which Defendant allegedly stated, \u201cWhat? You act like I\u2019m gonna burn your house down.\u201d Based on these events, Ms. Reed obtained the order.\nThe order explicitly prohibited Defendant from going within 25 yards of Ms. Reed in a public place. The order also contained a provision prohibiting Ms. Reed from doing \u201cany affirmative act the purpose or effect of which is to cause respondent to violate this order.\u201d Regarding its enforcement, the order stated that \u201c[i]f the respondent violates any part of this order, the respondent may be charged with a crime, arrested, held in contempt of court, fined or jailed.\u201d\nA sheriffs deputy personally served Defendant with the order at his workplace. At this time, the deputy told Defendant to \u201cjust stay away from her.\u201d Defendant testified that to him this meant, \u201cdon\u2019t call her, don\u2019t write her, don\u2019t go to talk to her, or engage her.\u201d In fact, Defendant was so confident of his understanding of what the order entailed that he failed to read its contents. Additionally, Defendant testified that he told the deputy when he received the order that this \u201c[was] great, this is the best thing that could have happened.\u201d When asked what he believed a protective order meant, Defendant replied that it meant to stay away from Ms. Reed. When asked why he did not read the order, Defendant stated that its meaning was \u201cobvious, it\u2019s a protective order.\u201d\nBoth Defendant and Ms. Reed are dance instructors and they would often go to a certain bar on Thursday nights to teach students how to dance in public with a live band. On Thursday, November 6, 2008, Defendant went to this bar intending to meet one of his students. Defendant arrived before his student and sat down at the bar and ordered a beer. As it turns out, Ms. Reed was also at this bar with her dance students, seated twelve to fifteen yards away from Defendant. Defendant testified that he did not see Ms. Reed when he arrived at the bar.\nAfter seeing Defendant, Ms. Reed approached the bouncer and told him about her protective order against Defendant and asked for his assistance. The bouncer alerted Defendant that Ms. Reed was in the bar and that she wanted him to leave. Defendant refused, stating, \u201cthat\u2019s her problem, I am going to drink my beer.\u201d According to Defendant, he also told the bouncer, \u201cwhy can\u2019t she leave, why do I need to leave?\u201d and further, \u201cwhy am I having to leave, I\u2019m not even messing with anybody at all, I\u2019m just here.\u201d\nThe bouncer informed Ms. Reed what Defendant had said. When the bouncer returned, he told Defendant that Ms. Reed was going to call the police. Defendant responded, \u201cF\u2014 her, she can call the cops, I\u2019m finishing my beer.\u201d Nevertheless, when Defendant saw Ms. Reed on the telephone, he grabbed his jacket, announced, \u201cI\u2019m outta here,\u201d and left for another bar across the street. All told, Defendant was at the bar for an estimated ten to fifteen minutes.\nDefendant was arrested shortly thereafter at the bar across the street for violation of the protective order pursuant to NMSA 1978, Section 40-13-6(D) (2008) (describing how a peace officer shall act once presented with probable cause to believe a restrained party has violated a protective order). The District Attorney charged Defendant with one count of violation of a temporary restraining order.\nDefendant\u2019s trial occurred on March 25, 2009. There is no uniform jury instruction for a violation of a protective order. As such, Defendant proposed a jury instruction requiring the jury to find that he knowingly violated the order of protection, which the court denied.\nThe jury found Defendant guilty, and he was sentenced to 364 days of incarceration based partially upon the court\u2019s perception of his attitude, lack of remorse, and as the judge stated, that \u201c[he] doesn\u2019t get that what he does is wrong.\u201d Defendant served 90 of those days in the Lincoln County Detention Center with credit for time served during his pre-sentence confinement and the remaining 270 days on probation.\nThe Court of Appeals affirmed Defendant\u2019s conviction in a memorandum opinion. State v. Ramos, No. 29,514, slip op. at 18 (N.M. Ct. App. Aug. 16, 2011). We granted certiorari to consider the proper mens rea requirement for the crime of violating a protective order. State v. Ramos, 2011-NMCERT-010, 289 P.3d 1254. Defendant preserved his objection by tendering a correct jury instruction at trial, and thus we review this appeal for reversible error. See State v. Benally, 2001-NMSC-033, \u00b6 12, 131 N.M. 258, 34 P.3d 1134 (\u201cThe standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved we review the instructions for reversible error.\u201d).\nDISCUSSION\nThe Family Violence Protection Act, NMSA 1978, Sections 40-13-1 to -12 (1987) (as amended through 2010) contains the procedures for obtaining and enforcing protection orders. See \u00a7\u00a7 40-13-3 through -6 (2008). Once a party has violated an order of protection, Section 40-13-6(D) states that \u201c[a] peace officer shall arrest without a warrant and take into custody a restrained party whom the peace officer has probable cause to believe has violated an order of protection that is issued pursuant to the Family Violence Protection Act . . . . \u201d Section 40-13-6(F) states:\nA restrained party convicted of violating an order of protection granted by a court under the Family Violence Protection Act is guilty of a misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978. Upon a second or subsequent conviction, an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement.\nThe penalty for a misdemeanor is a jail term of less than one year, or payment of a fine of not more than $1000, or both. NMSA 1978, \u00a7 31-19-1(A) (1984).\nThe statute does not specify any particular mental state or mens rea that a restrained party must demonstrate to be found guilty ofthis misdemeanor. See \u00a7 40-13-6 (D) & (F). The court gave the jury the following instruction regarding the elements of the offense:\nFor you to find the Defendant guilty of violating a temporary order of protection as charged in Count 1, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n1. A temporary order of protection was filed in the District Court of Lincoln County, N.M. for Cause Number DV 08-87;\n2. The temporary order of protection was valid on November 6, 2008;\n3. The Defendant knew about the temporary order of protection;\n4. The defendant violated the temporary order of protection;\n5. This happened in New Mexico on or about the 6th day of November 2008.\nDefendant objected to this instruction, requesting that the jury be instructed that he must have \u201cknowingly violated the order of protection\u201d in order for the jury to find him guilty. (Emphasis added.) The district judge denied this request, reasoning that \u201cknowingly\u201d was not specified in Section 40-13-6. Instead of including the \u201cknowingly\u201d element in the instruction, the district judge granted Defendant\u2019s alternative request to give the jury the general criminal intent instruction consistent with UJI 14-141 NMRA. The general criminal intent instruction provided:\nIn addition to the other elements of Violation of Restraining Order, the state must prove to your satisfaction beyond a reasonable doubt that the defendant acted intentionally when he committed the crime. A person acts intentionally when he purposely does an act which the law declares to be a crime, even though he may not know that his act is unlawful. Whether the defendant acted intentionally may be inferred from all of the surrounding circumstances, such as the manner in which he acts, the means used, and his conduct and any statements made by him.\n(Emphasis added).\nThe Court of Appeals agreed with the district court, holding that Section 40-13-6(D) and (F) does not require a person to knowingly violate a restraining order. Ramos, No. 29,514, slip op. at 8. The Court focused on the language of the statute, reasoning that the Legislature knows how to include the word \u201cknowingly\u201d in a statute and that its omission from Section 40-13-6(D) and (F) was intentional. Ramos, slip op. at 9. The Court of Appeals held that the general intent instruction sufficed, \u201cabsent a specific mens rea requirement in Section 40-13-6(D), (F).\u201d Id. at 10. For the reasons that follow, this is an accurate application of the law generally, but not, we believe, in the specific context of Section 40-13-6.\nThe State argues that no intent instruction \u2014 neither general nor specific \u2014 was necessary, and we should treat violating an order of protection as a strict liability crime. We disagree. It is well settled that, \u201c[wjhen a criminal statute is silent about whether a mens rea element is required, we do not assume that the [Ljegislature intended to enact a no-fault or strict liability crime.\u201d Santillanes v. State, 115 N.M. 215, 218, 849 P.2d 358, 361 (1993). Rather, \u201cwe presume criminal intent as an essential element of the crime unless it is clear from the statute that the [L]egislature intended to omit the mens rea element.\u201d Id.', see also State v. Gonzalez, 2005-NMCA-031, \u00b6 12, 137 N.M. 107, 107 P.3d 547 (\u201cSince at least 1917, we have followed the common law that where an act is prohibited and punishable as a crime, it is construed as also requiring the existence of a criminal intent.\u201d). The State also urges us to consider the law regarding contempt of court proceedings. Because Defendant was not held in contempt of court, we decline to do so.\nGonzalez is an instructive case. In that case, our Court of Appeals held that bringing contraband into a jail was not a strict liability crime, and the jury needed to be instructed that the accused had knowingly possessed contraband when he entered the jail. Gonzalez, 2005-NMCA-031, \u00b6\u00b6 1, 18. Like the Family Violence Protection Act, the criminal statute in Gonzalez was silent as to mental state. See id. \u00b6 12; NMSA 1978, \u00a7 30-22-14(B) (1976). Like the case before us, the jury in Gonzalez was only given the general intent instruction. Gonzalez, 2005-NMCA-031, \u00b6 7. Unlike the case before us, the accused did not request a \u201cknowing\u201d instruction. Id. \u00b6 19.\nThe State argued that this was a strict liability crime, but the Court of Appeals disagreed, concluding that this offense \u201clackfed] the essential characteristics of a strict liability defense. It is not in the nature of a regulatory measure prescribing conduct which seriously threatens public health or safety.\u201d Id. \u00b6 14. In determining whether the crime encompassed a mental state, the Court of Appeals considered what mental state was required for crimes of a similar nature. Id. \u00b6 15. The Court of Appeals held that the general intent instruction was insufficient and the failure to give a \u201cknowing\u201d instruction amounted to fundamental error. Id. \u00b6 26.\nWe recognize that the Family Violence Protection Act is a civil statute without any separate formulation as a criminal statute and no expression of mens rea. See generally New Mexico Judicial Education Center, Inst, of Pub. Law, New Mexico Domestic Violence Benchbook, pp. 2-1 to 2-9 (University of New Mexico School of Law 2005) [hereinafter Benchbook]. But the Family Violence Protection Act is also a kind of hybrid, being both civil and criminal in consequence. The Legislature created the provisions regarding orders of protection in the Family Violence Protection Act to protect specific persons from domestic abuse and to deter future conduct of the other party. See generally \u00a7\u00a7 40-13-1 through -7. Typically, violations of court orders are handled with contempt-of-court proceedings, which presumably could have been done here but was not. Yet, in its own terms, a violation of an order of protection can result in either civil or criminal penalties, and the party is specifically put on notice of that possibility. See \u00a7 40-13-6 (D) & (F); \u00a7 40-13-5 (B) (\u201cThe order of protection shall contain a notice that violation of any provision of the order constitutes contempt of court and may result in a fine or imprisonment or both.\u201d).\nWhen punished criminally, violating an order ofprotection does not fit comfortably within the norms of the ordinary criminal statute. A person can be convicted for doing a prohibited act, \u201ceven if the conduct that violates the order of protection would not otherwise be against the law.\u201d Benchbook, supra, at p. 8-3. For example, in this case Defendant, being found within 25 yards ofMs. Reed, committed an act which \u201cwould not otherwise be against the law,\u201d but for the protective order. This particular wrong resembles an act malum prohibitum \u2014 or an act which in its nature is not intrinsically wrong, except for \u201cthe fact that its commission is expressly forbidden by law.\u201d State v. Taylor, 297 A.2d 216, 217 (N.J. Dist. Ct. 1972). This is not a crime malum in se \u2014 or a crime exhibiting an \u201cevil mind,\u201d such as an inherently immoral act like rape or murder. See Santillanes, 115 N.M. at 222, 849 P.2d at 365; see also Black\u2019s Law Dictionary 1045 (9th ed. 2009).\nUnlike a malum in se criminal statute in which a person should know of inherently unlawful conduct and anticipate its consequences, a party restrained by a protective order has to be told that certain otherwise lawful conduct now constitutes a crime; i.e., going within 25 yards of the other party in a public place. Accordingly, the Legislature provided a mandatory notice provision in Section 40-13-6(A), instructing that all orders of protection \u201cshall be personally served upon the restrained party, unless the restrained party or the restrained party\u2019s attorney was present at the time the order was issued.\u201d Mandatory service of the order of protection provides the restrained party with knowledge that certain actions will be considered criminal, even actions that would not otherwise be considered criminal in other circumstances. Thus notice, and the knowledge that comes with it, would seem to be an integral part of the crime and the legislative intent behind it.\nIn other contexts, we have required a knowledge instruction when statutes are otherwise silent on a particular mental state regarding the identity of the victim. In State v. Nozie, 2009-NMSC-018, \u00b6 30, 146 N.M. 142, 207 P.3d 1119, we held that knowledge that a victim was a peace officer was an essential element of the crime of aggravated battery on a peace officer. We reasoned that there was no clear legislative intent to omit this mens rea requirement from the statute and that imposing liability on someone who did not know the victim\u2019s identity defeated the \u201c \u2018specific deterrent purpose expressed by the statute.\u2019 \u201d Id. (quoting State v. Morey, 427 A.2d 479, 483 (Me. 1981)). We also reasoned that the heightened punishment for battering a peace officer supported the knowledge requirement. Nozie, 2009-NMSC-018, \u00b6 30; see also State v. Valino, 2012-NMCA-105, \u00b6\u00b6 15, 17, 287 P.3d 372 (holding that even though a statute contained no mental state regarding knowledge of the victim\u2019s identity, knowledge that a victim is a health care worker is an essential element of the crime of battery on a health care worker).\nWe can draw certain parallels here. First, as previously discussed, we see no clear legislative intent to omit any mens rea from Section 40-13-6(D) & (F). See Nozie, 2009-NMSC-018, \u00b6 30. Second, just as knowledge of the victim\u2019s identity was an essential element in both Nozie and Valino, here knowledge that a restrained party\u2019s conduct is endangering or affecting a specific person \u2014 the protected party \u2014 is imperative. The deterrent purpose of the protective order could only be served by knowledge of who is being protected, just like the deterrent purpose of the battery on a peace officer statute. See id. Orders of protection are \u201cpowerful tool[s] to reduce violence against current or former intimates[,]\u201d and orders of protection \u201cplay a critical role as part of a comprehensive plan designed to protect victims from continuing violence in the home.\u201d Benchbook, supra, at pp. 2-1, 2-2.\nThe need for a \u201cknowing\u201d violation is perhaps best illustrated by a common-sense example. The restraining order in this case prohibited Defendant from being in a public place within 25 yards of the protected party. Without knowledge being part of the crime, then a violation could occur, however innocently, at any public place such as a shopping center or an entertainment venue, without one party even being aware of the other\u2019s presence. The general intent instruction given in this case requires only an intentional act \u2014 e.g., the act of going to a store \u2014 even though he may not know that his act is unlawful. Prosecution for that kind of a violation would not serve the deterrent purpose of the Family Violence Protection Act. See generally \u00a7 40-13-2(D) (defining domestic abuse to include protecting persons from physical harm, severe emotional distress, harassment, etc.).\nWe acknowledge that the other \u201cknowing\u201d cases cited herein \u2014 Gonzalez, Nozzle, Valino \u2014 all derive from felonies, and the severity of the crime is one factor our courts have weighed in favor of requiring a knowing violation. In the case before us, of course, Defendant was convicted of a misdemeanor and sentenced to less than a year in jail. That said, we conclude that under the particular circumstances of this crime, a \u201cknowing\u201d violation is most consistent with the policy behind the Family Violence Protection Act and the intent of the Legislature.\nA knowing violation in this instance required proof that the accused knew of (1) the protective order and (2) Ms. Reed\u2019s presence within 25 yards in the same location. With respect to the first element \u2014 knowledge of the restraining order \u2014 a restrained party has knowledge of the order when he receives personal service of the order of protection. See Maso v. N.M. Taxation & Revenue Dep't, 2004-NMSC-028, \u00b6 13, 136 N.M. 161, 96 P.3d 286 (\u201c[Wjhere circumstances are such that a reasonably prudent person should make inquiries, that person is charged with knowledge of the facts reasonable inquiry would have revealed.\u201d (internal quotation marks and citation omitted)).\nAt trial, some significance was made about the fact that Defendant did not actually read the details of the order and was therefore unaware of its 25-yard stipulation. The defense argued that because of this, the State presented no evidence that Defendant actually knew he had to stay 25 yards away from Ms. Reed. Defendant\u2019s position borders on the frivolous. Defendant\u2019s failure to read the contents of the order is no defense. See Stevenson v. Louis Dreyfus Corp., 112 N.M. 97, 100, 811 P.2d 1308, 1311 (1991) (\u201cOne who intentionally remains ignorant is chargeable in law with knowledge.\u201d (internal quotation marks and citations omitted)). Therefore, knowledge of the contents of the order of protection was imputed to Defendant as a matter of law upon proof of service.\nTo be clear, when we state that a party must knowingly violate an order of protection, we do not mean that the party must act with a conscious or wilful desire to defy the protective order. We mean only that in this context the general criminal intent instruction is not enough, because \u201cgeneral intent is only the intention to make the bodily movement which constitutes the act which the crime requires.\u201d Wayne R. LaFave, Substantive Criminal Law \u00a7 5.2(e) (2d ed. 2003), at 355 (internal quotation marks and citation omitted). Additionally, \u201c[kjnowledge and intent are separate, not synonymous, elements.\u201d State v. Hargrove, 108 N.M. 233, 236, 771 P.2d 166, 169 (1989) (holding that the general criminal intent instruction was not \u201csufficient to instruct the jury that knowledge of the prohibited blood relationship is an essential element of [the crime of] incest\u201d). W e have previously set forth the two elements of knowledge \u2014 the protective order and the presence of the protected party within the protected zone \u2014 and the State need prove no more than that to sustain a conviction.\nOur interpretation of Section 40-13-6 (D) and (F) should not deter the State from enforcing orders of protection through criminal sanctions. For example, if a restrained party were to claim he did not knowingly violate an order of protection because he believed he was 30 yards away from the protected party instead of 25, that would be a question for the jury to determine, no different from similar offenses. In most cases, knowing that the prohibited party was within the protected zone of the protected party, at least after a warning, should be sufficient to prove a knowing violation.\nThe District Court\u2019s Rejection of the Requested Instruction Requires a New Trial\nThe evidence in this case supports Defendant\u2019s conviction under the instructions that were given. Defendant knew about the protective order based on personal service. For the purpose of determining whether there should be a new trial we evaluate the sufficiency of the evidence under the instructions given. We do not evaluate the sufficiency of the evidence for instructions that were not given to the jury. See State v. Dowling, 2011-NMSC-016, \u00b6 18, 150 N.M. 110, 257 P.3d 930 (\u201cWe review Defendant\u2019s [sufficiency] claim under the erroneous instruction provided to the jury at trial.\u201d). The issue of Defendant\u2019s knowing violation will be a question for the jury to consider on remand.\nDefendant, like any accused, was fairly entitled to a jury instruction that accurately described the essential elements of the crime and what the State would have to prove for a conviction. Any accused is entitled to such an instruction even if he does not ask for it. See State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991) (\u201c[FJailure to instruct the jury on the essential elements of an offense constitutes fundamental error. Where fundamental error is involved, it is irrelevant that the defendant was responsible for the error by failing to object to an inadequate instruction^]\u201d). And here, Defendant unquestionably did ask for the correct instruction.\nBecause Defendant objected to the jury instruction tendered at trial, we review his conviction for reversible error. Benally, 2001-NMSC-033, \u00b6 12. \u201cA jury instruction which does not instruct the jury upon all questions of law essential for a conviction of any crime submitted to the jury is reversible error.\u201d State v. Parish, 118 N.M. 39, 44, 878 P.2d 988, 993 (1994) (internal quotation marks and citations omitted). To determine if a defect in a jury instruction amounts to reversible error, we must determine whether a reasonable jury could have been confused or misdirected by the jury instruction. Id. at 42, 878 P.2d at 991 (\u201cReversible error arises if ... a reasonable juror would have been confused or misdirected.\u201d).\nThe general intent instruction given in this case could have confused and misdirected the jury notwithstanding the evidence of Defendant\u2019s guilt. Under the facts of this case and the instructions given, the jury could have convicted Defendant on either of two theories. First, the jury could have convicted Defendant appropriately based on Defendant\u2019s knowledge of the restraining order and knowledge of Ms. Reed\u2019s presence. But the jury could also have convicted Defendant based on a lesser showing. The general intent instruction as given allowed the jury to convict for something far less \u2014 merely the intentional act of entering and staying at the bar, \u201ceven though he may not know that his act is unlawful.\u201d We have no way of knowing what was in the jury\u2019s mind because the instructions allowed for either. See Gonzalez, 2005-NMCA-031, \u00b6 23 (holding that the general intent instruction \u201cwas not sufficient to instruct the jury that Defendant\u2019s knowledge of the cocaine he brought into the Detention Center is an essential element [of the crime] ofbringing contraband into a jail\u201d). Accordingly, failure to instruct the jury of a knowing violation constituted reversible error. Under the circumstances we have no choice but to reverse and remand for a new trial.\nFinally, consistent with this Opinion, we recognize that there should be a uniform jury instruction for this crime. We request that the rules committee develop a uniform jury instruction reflecting that a restrained party must knowingly violate an order of protection.\nCONCLUSION\nWe reverse Defendant\u2019s conviction of one count of violating an order of protection and remand for a new trial.\nIT IS SO ORDERED.\nRICHARD C. BOSSON, Justice\nWE CONCUR:\nEDWARD L. CH\u00c1VEZ, Justice\nCHARLES W. DANIELS, Justice\nBARBARA J. VIGIL, Justice\nPETRA JIMENEZ MAES, Chief Justice (dissenting).\nThe temporary order of protection standard Form 4-963 NMRA provides under \u201cENFORCEMENT OF ORDER\u201d that \u201c[i]f the respondent violates any part of this order, the respondent may be charged with a crime, arrested, held in contempt of court, fined or jailed.\u201d\nThe dissent claims that half of states nationwide do not impose a knowing requirement. But the law from various states differs so dramatically, a majority rule is difficult to discern. For instance, many of the states cited by the dissent impose a willful requirement, which we interpret to be a mental state at least as culpable as knowing. See, e.g., Wyo. Stat. Ann. \u00a7 35-21-105(c) (2008) (\u201cThe [protective] order shall contain notice that willful violation of any provision of the order constitutes a crime as defined by W.S. 6-4-404, can result in immediate arrest and may result in further punishment.\u201d (emphasis added)); R.I. Gen. Laws Ann. \u00a7 12-29-4(a)(3) (2001). In other states, protective orders are structured in such a specific way that the accused cannot violate them with any less culpable mental state than knowing. See, e.g., Gerlack v. Roberts, 952 P.2d 84, 86-87 (Or. Ct. App. 1998) (holding that defendant\u2019s coming within 150 feet of petitioner at a video store did not violate protective order because the video store was not specifically designated in the order). Our research indicates that at least one state cited by the dissent explicitly requires a knowing violation by statute. Ind. Code Ann. \u00a7 35-46-1-15.1 (as amended through 2010) (\u201cA person who Icnowingly or intentionally violates: (1) a protective order to prevent domestic or family violence . . . commits invasion of privacy, a Class A misdemeanor.\u201d (emphasis added)). Thus, we conclude that the views expressed in this opinion do reflect those of a number of our sister states that have grappled with similar issues.", "type": "majority", "author": "BOSSON, Justice." }, { "text": "MAES, Chief Justice\n(dissenting).\nIn imposing a \u201cknowing\u201d requirement for proof of a violation of a restraining order, the majority holds that the general intent instruction is insufficient because it only requires the intention to make a bodily movement that constitutes the act required by the crime. The rationale behind the majority\u2019s addition of a \u201cknowing\u201d requirement to NMSA 1978, Section 40-13-6(D) (2008) is the fear of the possibility that a person could be charged with violating a restraining order by merely being in the same vicinity as a protected party, without knowledge of their presence. I respectfully dissent because the general intent instruction given in this case was sufficient to address the concerns of the majority and the definition of the \u201cknowing\u201d requirement set forth by the majority is unclear and appears to be simply one of awareness. I adopt the jury instructions discussion of the Court of Appeals\u2019 Memorandum Opinion. I offer the following thoughts to supplement my rationale for dissenting.\nThe new standard is now a \u201cknowing\u201d violation which requires proof that the accused knew of (1) the protective order and (2) the protected party\u2019s presence in the same location. The majority states that this \u201cknowing\u201d requirement should not deter the State from enforcing orders of protection through criminal sanctions and gives the following example: \u201cif a restrained party were to claim he did not knowingly violate an order of protection because he believed he was 30 yards away from the protected party instead of 25, that would be a question for the jury to determine^]\u201d This example describes almost exactly what a jury is asked to do using the general intent instruction, which was given in this case. The general intent instruction given pursuant to UJI 14-141 NMRA stated:\n[T]he state must prove to your satisfaction heyond a reasonable doubt that the defendant acted intentionally when he committed the crime. A person acts intentionally when he purposely does an act which the law declares to be a crime, even though he may not know that his act is unlawful. Whether the defendant acted intentionally may be inferred from all of the surrounding circumstances, such as the manner in which he acts, the means used, and his conduct and any statements made by him.\nThe majority, however, emphasizes the first prong of the general intent instruction, while ignoring the second prong. Although the instruction requires a showing that the defendant made a bodily movement that constituted the act of the crime, such as entering a bar, the second prong of the general intent instruction requires more. A jury must also infer from the surrounding circumstances whether the defendant acted intentionally, meaning that he acted with intent to violate the restraining order. This second sentence accomplishes what the majority attempts to accomplish by adopting a \u201cknowing\u201d requirement.\nThe primary concern of protecting a defendant from frivolous prosecution resulting from the act of entering a location, without knowledge of the victim\u2019s presence, can be sufficiently addressed by providing the jury with a general intent instruction consistent with UJI 14-141, as the court did in this case. After the jury found that all of the elements of the crime existed, it was able to use the testimony presented in court to determine that Defendant intentionally violated the order by staying in the bar after he became aware of Ms. Reed\u2019s presence. In this case, Defendant\u2019s statements and actions made it clear that he was apathetic to Ms. Reed\u2019s presence and intentionally remained at the bar, in violation of the order, to finish his beer.\nThe second prong of the general intent instruction would allow for a jury to come to the opposite conclusion as well. For example, a defendant enters a bar without knowledge of the protected party\u2019s presence. While the defendant is drinking a beer, the protected party calls the police to report a violation of the order. Police arrive and arrest the defendant, although the defendant never had knowledge of the protected party\u2019s presence. The jury would be able to evaluate all of these facts at trial, and when given the general intent instruction could determine whether the defendant intentionally violated the restraining order, or was merely enjoying a beer. Imposing an unclear \u201cknowing\u201d requirement does not supplement the general intent instruction and may cause trial courts to treat it as a mens rea requirement, forcing the state to delve into a defendant\u2019s state of mind. Instead, with the general intent instruction, both parties\u2019 interests remain protected.\nMoreover, abstaining from imposing a \u201cknowing\u201d requirement into Section 40-13-6(D) would be consistent with the national trend to protect victims from recurring domestic violence. Over the past twenty years, all fifty states have enacted laws intended to rein in domestic violence. David M. Zlotnick, Empowering the Battered Woman: The Use of Criminal Contempt Sanctions to Enforce Civil Protection Orders, 56 Ohio St. L.J. 1153, 1158 (1995). Despite these efforts, police estimate that for each of the more than one million domestic violence crimes reported each year, three more go unreported. Id. In all, there are an estimated 1.8 to 4 million incidents of domestic violence each year. Zlotnick, supra at 1159.\nNationwide, half of the states do not impose a \u201cknowing\u201d requirement for a violation of a temporary restraining order. Logically, this makes sense. If the state had to prove knowledge on the part of every defendant for every violation, conviction rates would likely plummet and animosity between defendant and victim would increase, as well as the likelihood of another incident. A recent study involving over 750 women from various jurisdictions nationwide revealed that nearly 60% of women reported violations of protection orders. TK Logan, Ph.D. & Robert Walker, M.S.W., L.C.S.W., Civil Protective Order Effectiveness: Justice or Just a Piece of Paper?, 25 Violence and Victims 332, 333 (2010). The potential effect of imposing a \u201cknowing\u201d requirement to pro ve a violation is, in all likelihood, extremely dangerous considering most of the reported violations occur within the first three months after the issuance of an order. Christopher T. Benitez, M.D., Dale E. McNiel, Ph.D. & Ren\u00e9e L. B inder, M .D.,Do Protection Orders Pro tect?, 38 J. Am. Acad. Psychiatry L. 376, 382 (2010). Additionally, psychological abuse nearly quadruples during the period of a temporary restraining order. Id. In order to protect against re-abuse, our law should not make it more difficult to prosecute violations of protective orders. Eventually, if it becomes clear that it is difficult to punish a defendant for violating a restraining order because of failure to prove intent, victims will become less likely to report violations, the deterrent effect decreases, and the purpose of obtaining a protective order becomes moot. Ultimately, this result conflicts with the overall goal of protecting and supporting the public\u2019s well-being.\nAccordingly, imposing a \u201cknowing\u201d requirement is contrary to the national trend of protecting victims and deterring domestic violence. It is imperative for future litigants to have a clear understanding of what is required to prove a violation. The general intent instruction sufficiently protects both parties\u2019 interests and therefore I would affirm the Court of Appeals\u2019 holding and adopt the jury instructions discussion regarding the imposition of a knowledge requirement in the attached Memorandum Opinion.\nPETRA JIMENEZ MAES, Chief Justice\nState statutes regarding protective orders that do not require a knowing violation: Ala. Code \u00a7 13A-6-143 (1975); Alaska Stat. Ann. \u00a7 18.66.130(2013); Ariz.Rev. Stat. Ann. \u00a7 13-3602 (2013); Conn. Gen. Stat. Ann. \u00a7 46b-15 (2013); D.C. Code \u00a7 16-1031 (2013); Idaho Code Ann. \u00a7 39-6312 (1999); Ind. Code Ann. \u00a7 31-15-5-1 (2003); Iowa Code Ann. \u00a7 664A.7 (2007); La. Rev. Stat. Ann. \u00a746:2137 (1999); Me. Rev. Stat. tit. 19-A, \u00a7 4011 (2011); Md. Code Ann., Fam. Law \u00a7 4-508.1 (2011); Mich. Comp. Laws Ann. \u00a7 764.15b (2002); Minn. Stat. Ann. \u00a7 260C.405 (2008); Mo. Ann. Stat. \u00a7 455.085 (2011); N.Y. Fam. Ct. Act \u00a7 846-a (2013); N.D. Cent. Code Ann. \u00a7 14-07.1-06 (2011); Ohio Rev. Code Ann. \u00a7 2919.27(A)(1) (2010); Or. Rev. Stat. Ann. \u00a7 107.720(4) (2012); 23 Pa. Cons. Stat. Ann. \u00a7 6114 (2006); R.I. Gen. Laws Ann. \u00a712-29-4 (2001); S.C. Code Ann. \u00a7 16-25-20 (2008); S.D. Codified Laws \u00a7 25-10-13 (2011); VA Code Ann \u00a7 16.1-253.2 (2012); Vt. Stat. Ann. tit. 15 \u00a7 1108 (2010); Wyo. Stat. Ann. \u00a7 35-21-105(c)(2008).", "type": "dissent", "author": "MAES, Chief Justice" } ], "attorneys": [ "Bennett J. Baur, Acting Chief Public Defender Carlos Ruiz de la Torre, Assistant Appellate Defender Santa Fe, NM for Petitioner", "Gary K. King, Attorney General Andrew S. Montgomery, Assistant Attorney General Yvonne Marie Chicoine, Assistant Attorney General Santa Fe, NM for Respondent" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMSC-031\nFiling Date: June 27, 2013\nDocket No. 33,217\nSTATE OF NEW MEXICO, Plaintiff-Respondent, v. AARON A. RAMOS, Defendant-Petitioner.\nBennett J. Baur, Acting Chief Public Defender Carlos Ruiz de la Torre, Assistant Appellate Defender Santa Fe, NM for Petitioner\nGary K. King, Attorney General Andrew S. Montgomery, Assistant Attorney General Yvonne Marie Chicoine, Assistant Attorney General Santa Fe, NM for Respondent" }, "file_name": "0415-01", "first_page_order": 431, "last_page_order": 443 }