{
  "id": 2872917,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Raymond PATTERSON, Defendant-Appellant",
  "name_abbreviation": "State v. Patterson",
  "decision_date": "1977-08-02",
  "docket_number": "No. 2908",
  "first_page": "735",
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    "name_abbreviation": "N.M. Ct. App.",
    "id": 9025,
    "name": "Court of Appeals of New Mexico"
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    "name_long": "New Mexico",
    "name": "N.M."
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  "last_updated": "2023-07-14T21:34:48.706767+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Raymond PATTERSON, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nThe dispositive issue is whether the aggravated assault offense of which defendant was convicted was a lesser offense included within the offense charged in the indictment.\nThe indictment charged a violation of \u00a7 40A-3-3, N.M.S.A. 1953 (2d Repl. Vol. 6) in that defendant assaulted the victim with intent to kill. Section 40A-3-3, supra, reads:\n\u201cAssault with intent to commit a violent felony. \u2014 Assault with intent to commit a violent felony consists of any person assaulting another with intent to kill or to commit any murder, mayhem, rape, robbery or burglary.\n\u201cWhoever commits assault with intent to commit a violent felony is guilty of a third degree felony.\u201d\nThe trial court instructed the jury on aggravated assault with a deadly weapon. The aggravated assault statute, \u00a7 40A-3-2, N.M.S.A. 1953 (2d Repl. Vol. 6) reads:\n\u201cAggravated assault. \u2014 Aggravated assault consists of either:\n\u201cA. unlawfully assaulting or striking at another with a deadly weapon;\n\u201cB. committing assault by threatening or menacing another while wearing a mask, hood, robe or other covering upon the face, head or body, or while disguised in any manner, so as to conceal identity; or\n\u201cC. willfully and intentionally assaulting another with intent to commit any felony.\n\u201cWhoever commits aggravated assault is guilty of a fourth degree felony.\u201d\nThe State asserts that aggravated assault was a lesser offense included within the charge of assault with intent to kill. The State\u2019s argument is based on \u00a7 40A-3-2(C), supra. We do not consider whether \u00a7 40A-3-2(C), supra, is a lesser offense included within \u00a7 40A-3-3, supra, because that is not an issue in this case. No issue as to \u00a7 40A-3-2(C), supra, was submitted to the jury. The aggravated assault submitted to the jury was \u00a7 40A-3-2(A), supra \u2014 an assault committed with a deadly weapon.\nThe State's position, both at trial and on appeal, has been that the aggravated assault was a lesser offense included within the assault with intent to kill under the facts of the case. That is not the basis for determining whether an offense is a lesser included offense. In determining whether there is a lesser included offense \u201cwe look to the offense charged in the indictment.\u201d State v. Medina, 87 N.M. 394, 534 P.2d 486 (Ct.App.1975). Thus, Criminal Procedure Rule 44(d) refers to \u201can offense necessarily included in the offense charged\u201d. (Our emphasis.) State v. Kraul, 90 N.M. 314, 563 P.2d 108 (Ct.App.1977); see State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App.1977).\nFor a lesser offense to be included within the greater, it must be necessarily included. To be necessarily included, the greater offense cannot be committed without also committing the lesser. State v. Kraul, supra; State v. Sandoval, supra; State v. Medina, supra.\nAssault with intent to kill can be committed without use of a deadly weapon; thus, aggravated assault with a deadly weapon was not a lesser included offense. Compare State v. Taylor, 33 N.M. 35, 261 P. 808 (1927). The trial court erred in submitting aggravated assault with a deadly weapon because it was not included within the offense charged. State v. Trivitt, 89 N.M. 162, 548 P.2d 442 (1976).\nDefendant\u2019s conviction is reversed. The cause is remanded for further proceedings consistent with this opinion.\nIT IS SO ORDERED.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Jan A. Hartke, Chief Public Defender, Douglas A. Barr, Asst. Appellate Defender, Santa Fe, for appellant.",
      "Toney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "568 P.2d 261\nSTATE of New Mexico, Plaintiff-Appellee, v. Raymond PATTERSON, Defendant-Appellant.\nNo. 2908.\nCourt of Appeals of New Mexico.\nAug. 2, 1977.\nJan A. Hartke, Chief Public Defender, Douglas A. Barr, Asst. Appellate Defender, Santa Fe, for appellant.\nToney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for appellee."
  },
  "file_name": "0735-01",
  "first_page_order": 771,
  "last_page_order": 773
}