{ "id": 5331133, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Leo CHAVEZ, Defendant-Appellant", "name_abbreviation": "State v. Chavez", "decision_date": "1971-03-19", "docket_number": "No. 532", "first_page": "569", "last_page": "573", "citations": [ { "type": "official", "cite": "82 N.M. 569" }, { "type": "parallel", "cite": "484 P.2d 1279" } ], "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": "80 N.M. 406", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358740 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0406-01" ] }, { "cite": "76 N.M. 376", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502468 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0376-01" ] }, { "cite": "80 N.M. 695", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354466 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0695-01" ] }, { "cite": "25 L.Ed.2d 815", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "90 S.Ct. 1532", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "397 U.S. 1079", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12109312, 12109248, 12109282, 12109346, 12109322, 12109259, 12109298, 12109333, 12109304 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/1079-06", "/us/397/1079-01", "/us/397/1079-03", "/us/397/1079-09", "/us/397/1079-07", "/us/397/1079-02", "/us/397/1079-04", "/us/397/1079-08", "/us/397/1079-05" ] }, { "cite": "80 N.M. 697", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361385 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0697-01" ] }, { "cite": "81 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360257 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0556-01" ] }, { "cite": "69 N.M. 187", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2789013 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0187-01" ] }, { "cite": "74 N.M. 559", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804499 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0559-01" ] }, { "cite": "79 N.M. 489", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2736870 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0489-01" ] }, { "cite": "81 N.M. 97", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363859 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0097-01" ] }, { "cite": "80 N.M. 663", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361811 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0663-01" ] } ], "analysis": { "cardinality": 493, "char_count": 9923, "ocr_confidence": 0.688, "pagerank": { "raw": 3.114293531506031e-07, "percentile": 0.8602024674025397 }, "sha256": "5512d43b3323248a6691bdc9f748ca19a8b6296324c4ca9d58d1bd86b95a4ca4", "simhash": "1:1966c683396111f0", "word_count": 1628 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J, and HENDLEY, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Leo CHAVEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nDefendant appeals his conviction of an aggravated battery that inflicted great bodily harm on the victim. Section 40A-3-5, N.M.S.A.1953 (Repl.Vol. 6, Supp.1969). Defendant contends: (1) the statute is unconstitutionally vague; (2) there is no evidence that defendant\u2019s acts caused great bodily harm; (3) the court erred in failing to instruct the jury that \u201cgreat bodily harm\u201d had to be of a permanent nature; and (4) the jury should have been instructed on a lesser included offense.\nSection 40A-3-5, supra, reads:\n\u201cA. Aggravated battery consists of the unlawful touching or application of force to the person of another with intent to injure that person or another.\n\u201cB. Whoever commits aggravated battery, inflicting an injury to the person which is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a misdemeanor.\n\u201cC. Whoever commits aggravated battery inflicting great bodily harm or does so with a deadly weapon or does so in any manner whereby great bodily harm or death can be inflicted is guilty of a third degree felony.\u201d\nAlleged unconstitutional vagueness.\nSubdivision A of the above quoted statute defines the crime of aggravated battery. Whether the crime is a misdemeanor or a felony depends largely, as shown by subdivisions B and C, on the nature of the injury inflicted. Defendant says the severity of punishment depends on \u201ca result, not an act.\u201d Defendant asserts the statute \u201c * * * is contrary to the general purpose of criminal statutes which is [to] proscribe acts * * He claims \u201c * * * a person must have a reasonable degree of foreseeability as to the effects of his act. * * * \u201d In substance, defendant contends the statute is unconstitutionally vague because he could not foresee the degree of his crime when he committed it.\nDefendant also argues that \u00a7 40A-3-5, supra, is unconstitutionally vague, as a whole, when compared to \u00a7 40A-3^1, N.M. S.A.1953 (Repl.Vol. 6) which, in defining a simple battery, does not include an intent to injure. He contends that simple battery \u201c * * * is a petty misdemeanor, and aggravated battery is a misdemeanor unless there is present the element of great bodily harm.\u201d\nThe two statutes, \u00a7\u00a7 40A-3-4 and 40A-3-5, supra, specifically define the crimes involved. Each step \u2014 the simple battery, the aggravated battery which is a misdemeanor and the aggravated battery which is a felony \u2014 is clearly defined. Specific acts are prohibited in each of these three crimes. Further, the argument that the severity of the punishment depends on the result rather than the act, is fallacious. If the defendant did not commit the acts identified in \u00a7 40A-3-5(C), supra, his aggravated battery is not defined as a felony.\nState v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct.App.1969) states:\n\u201cThe \u2018vagueness\u2019 rule requires that the statutory language convey a sufficiently definite warning of the proscribed conduct. If the language is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, then the statute violates due process. * * * \u201d\nThe statutes here involved convey a definite warning of the proscribed conduct. Section 40A-3-5, supra, is not unconstitutionally vague either when its subsections are compared or when the entire section is compared with \u00a7 40A-3-4, supra. Compare State v. Pacheco, 81 N.M. 97, 463 P.2d 521 (Ct.App.1969).\nEvidence of great bodily harm.\nDefendant was charged with aggravated battery that inflicted great bodily harm. In the instruction defining the material elements of the crime,.the jury was told that one of the elements to be proved beyond a reasonable doubt was that defendant \u201c * * * did inflict great bodily harm upon Manuel Archuleta,.\u201d The instruction accords with \u00a7 40A-3-5, supra.\nDefendant claims: \u201cThe main factual issue of this appeal is the lack of evidentiary proof as to the cause of the loss of the left eye of Manuel Archuleta. The main legal issue in this point is whether New Mexico adopts the rule of proximate cause in criminal cases, or adopts the rule of direct causation in criminal cases.\u201d\nThe evidence shows that defendant struck his victim in the eye during a fight. According to the victim the eye was removed some months later because of an infection. There is no medical testimony connecting the infection with defendant\u2019s blow to the victim\u2019s eye. The trial court sustained defendant\u2019s objection when the lay victim attempted to testify as to the causal connection. We agree with defendant that there is no evidence of a causal connection between the blow and the removal of the eye. Compare State v. Ewing, 79 N.M. 489, 444 P.2d 1000 (Ct.App.1968).\nThere is evidence that during the fight another person kicked the victim in the face. Defendant seems to argue that this kicking shows an intervening cause between defendant\u2019s blow and the removal of the victim\u2019s eye. The kicking incident is simply not pertinent to the issue; there is no evidence that the kicking involved the eye or in any way caused the removal of the eye.\nThere is evidence that after defendant hit the victim in the eye, apparently with his fist, the victim \u201ccouldn\u2019t see anything\u201d and was never again able to see with that eye. This evidence connected defendant\u2019s blow with the loss of sight in the victim\u2019s eye.\nThe issue the jury was to decide was whether defendant\u2019s admitted battery inflicted great bodily harm on his victim. Rephrased, it is whether that battery caused the great bodily harm. New Mexico Supreme Court decisions seem to indicate that \u201cproximate cause\u201d is sufficient; that a defendant\u2019s act need not be a direct (that is, immmediate) cause. State v. Fields, 74 N.M. 559, 395 P.2d 908 (1964); State v. Romero, 69 N.M. 187, 365 P.2d 58 (1961). We do not concern ourselves with the type of causation in this case because the loss of sight was great bodily harm. That loss of sight, under the evidence, was proximately and directly caused by defendant.\nFailure to instruct that great bodily harm must be permanent.\nDefendant contends the instruction is erroneous that tells the jury there must be proof beyond a reasonable doubt that defendant inflicted great bodily harm on his victim. The asserted error is that the instruction should have told the jury the-great bodily harm must be of a permanent nature.\nThere is no merit to the contention. The trial court defined \u201cgreat bodily harm\u201d to> the jury. The definition was consistent with the statutory definition, \u00a7 40A-1-13, N.M.S.A.1953 (Repl.Vol. 6). Omitting the references to a high probability of death and to serious disfigurement, great bodily harm was defined to include an injury \u201c * * * which results in permanent or protracted loss or impairment of the function of any member or organ of the body.\u201d\nGreat bodily harm is thus defined to include a permanent loss or impairment (a permanent injury). To say that great bodily harm, which includes a permanent injury, must be of a permanent nature is a redundancy. Further, the inclusion of the words requested by defendant would have been confusing to the jury, since by statutory definition, \u00a7 40A-1-13, supra, the loss or impairment is not required to be permanent. A protracted loss or impairment is-sufficient.\nAt a minimum, here, there is a protracted loss of sight when the victim never again had sight in the eye struck by defendant.\nLesser included offenses.\nThe issue submitted to the jury was whether defendant had committed an aggravated battery which inflicted great bodily harm on the victim. Defendant claims, the trial court erred in failing to submit forms of verdict which included lesser offenses. He claims the jury should have been instructed on the offense of simple battery. This claim, however, was not presented to the trial court and, therefore, will not be reviewed. State v. Ford, 81 N.M. 556, 469 P.2d 535 (Ct.App.1970); State v. Carrillo, 80 N.M. 697, 460 P.2d 62 (Ct.App.1969), cert. denied 397 U.S. 1079, 90 S.Ct. 1532, 25 L.Ed.2d 815 (1970).\nDefendant contended before the trial court that aggravated battery amounting to a misdemeanor should be submitted to the jury as a lesser included offense. This misdemeanor is committed when the injury inflicted by the aggravated battery is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment. Section 40A-3-5(B), supra.\nDefendant has the right to have the jury instructed on lesser included offenses if there is some evidence tending to establish the lesser included offenses. State v. Anaya, 80 N.M. 695, 460 P.2d 60 (1969); State v. James, 76 N.M. 376, 415 P.2d 350 (1966); State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct.App.1969). Defendant claims there is evidence that the victim\u2019s injury was temporary. The claim is erroneous. The only evidence is that the victim never again had sight in the eye struck by defendant. There is no evidence that the injury was temporary. The trial court properly refused to instruct on aggravated battery as a misdemeanor. State v. Anaya, supra.\nThere is an additional reason why this point is without merit. Although defendant asked the trial court to instruct on the asserted lesser included offense, he offered no instruction on this subject. Thus, there is no basis for a review under this point. State v. James, supra.\nThe judgment and sentence is affirmed.\nIt is so ordered.\nSPIESS, C. J, and HENDLEY, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Joseph A. Roberts, Chavez & Roberts, \u2022Santa Fe, for appellant.", "James A. Maloney, David L. Norvell, Attys. Gen., John A. Darden, Asst. Atty. Gen., Santa Fe., for appellee." ], "corrections": "", "head_matter": "484 P.2d 1279\nSTATE of New Mexico, Plaintiff-Appellee, v. Leo CHAVEZ, Defendant-Appellant.\nNo. 532.\nCourt of Appeals of New Mexico.\nMarch 19, 1971.\nRehearing Denied April 14, 1971.\nCertiorari Denied May 5, 1971.\nJoseph A. Roberts, Chavez & Roberts, \u2022Santa Fe, for appellant.\nJames A. Maloney, David L. Norvell, Attys. Gen., John A. Darden, Asst. Atty. Gen., Santa Fe., for appellee." }, "file_name": "0569-01", "first_page_order": 625, "last_page_order": 629 }