State v. Montoya , 136 N.M. 674 ( 2005 )

SUTIN, Judge

(specially concurring).

{24} NMSA 1978, § 30-3-11 (1995) should be strictly construed. “[Pjenal statutes must be strictly construed, and the definition of crimes therein contained is not to be broadened by intendment.” State v. Allen, 77 N.M. 433, 434, 423 P.2d 867, 868 (1967). Further, lenity applies when “reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies.” State v. Rowell, 121 N.M. 111, 116, 908 P.2d 1379, 1384 (1995) (internal quotation marks and citation omitted).

{25} The Crimes Against Household Members Act was enacted in response to the Legislature’s concern about domestic violence. State v. Stein, 1999-NMCA-065, ¶ 2, 127 N.M. 362, 981 P.2d 295. It was aimed at household violence. Id. Stein raised some doubt as to the scope of Section 30-3-11. Furthermore, the term “family member,” without any limitation on how far “family” is intended to extend, and the analogical term “relative,” create a conceivably limitless unit. Section 30-3-11 should be strictly construed in favor of a defendant, particularly given the connotations of domestic and household, and given Stein’s restrictive reading of the statute in regard to children. Nevertheless, even applying strict construction and considering lenity, I concur in the majority opinion.

{26} Guidelines as to the meaning of “family member” are provided by the inclusionary terms that follow it in the statute. There appears to be no evidence regarding a continuing personal relationship between Defendant and Joseph. Section 30-3-11’s restrictive definitional term “family member,” and inelusionary term “relative,” should be the only definitional terms applicable in the present case. Joseph, however estranged, was Defendant’s son and thus came from the immediate family; and, of course, Joseph was a relative. It is reasonable to bring a victim’s adult son within the meaning of “family member.”

{27} I nevertheless want to express my concerns about the statute’s scope. The statute neither requires the battery to have taken place in the home or to have been committed against a person residing in the home. The statute automatically covers any person who batters any relative whatsoever no matter the ages, sexes, emancipation, alienation, estrangement, and other circumstances such as chance meeting. Further, the statute automatically includes any person with whom the victim may have at some distant time in the past had a continuing personal relationship. Despite the word “family” in “family member,” the term “family member” could be interpreted to automatically include any person, whether a relative or not, with whom the victim has had at some time a continuing personal relationship.

{28} Many examples can be recited that would seem to make application of the statute virtually absurd without evidence beyond that of the status of relative. An eighty-year-old grandaunt or granduncle can be convicted of battery or aggravated battery under NMSA 1978, §§ 30-3-15 (2001), -16 (1995), for hitting her or his thirty-five-year-old nephew or niece once or twice removed with no further evidence than the elements of simple battery and proof that the victim was a relative. We must speculate that underlying its enactment of the Crimes Against Household Members Act the Legislature intended to establish a very broad policy that, no matter how diluted, attenuated, transient, and generally non-discordant the relationship may be, it was very important to society to provide every member of a virtually limitless family unit (except of course minor children) added protection from every other member of that unit.

{29} Once a battery against a household member takes place, the statute makes the relative-actor criminally liable under Section 30-3-15(B), increasing the penalty from the petty misdemeanor of simple battery under NMSA 1978, § 30-3-4 (1963), to a misdemeanor. In this sense, the statute is or approaches a strict liability statute, because once a simple battery is proved, the sole question for the jury is whether it believes the defendant was a relative. See State v. Baca, 114 N.M. 668, 674, 845 P.2d 762, 768 (1992) (referring to crimes “closely approaching” or constituting “near” strict liability crimes); State v. Anderson, 2001-NMCA-027, ¶¶ 26-34, 130 N.M. 295, 24 P.3d 327 (discussing strict liability for aggravation of a crime by the mere possession of an object or instrument that, if used as a weapon, could inflict serious injury). As such, perhaps it can be presumed to have been intended to afford a high level of protection and should be construed in a manner so that such protection is not vitiated. See Baca, 114 N.M. at 674, 845 P.2d at 768.

{30} Unquestionably expanded way beyond what the public normally thinks of as domestic or household violence against household members, the Legislature apparently felt that as a matter of our social welfare there should be no physical squabbling within this virtually limitless family unit. See State v. Rios, 1999-NMCA-069, ¶ 5, 127 N.M. 334, 980 P.2d 1068 (stating the legislative interest in establishing a strict liability crime to presumably be “that the public interest in the matter is so compelling or that the potential for harm is so great, that public interests override individual interests” (internal quotation marks and citation omitted)). I am not so sure, however, that the statute should be read so broadly. See State v. Torres, 2003-NMCA-101, ¶ 12, 134 N.M. 194, 75 P.3d 410 (noting that policy considerations may require the conclusion that “some of the potential victims within the purview of [a strict liability] statute do not require the protection of strict liability”).

{31} Defendant has raised no constitutional issue. Absent a constitutional defect in the statute, I hesitatingly defer to possible legislative intent and concern, notwithstanding my skepticism that the Legislature actually intended Section 30-3-11 to reach an estranged adult son under the circumstances of this case, because it is conceivable that the Legislature intended protection where the victim, even though an adult son, is a product of the nuclear family unit, a unit in which psychological sores and scars and abuse are often in hidden closets, and as to which the Legislature may well have wanted to provide added protection.