Albuquerque Criminal Lawyer Blog

Stalking is a common domestic violence charge in New Mexico. The definition of stalking under the New Mexico statutes is fairly broad allowing prosecutors great latitude in bringing stalking charges.

Under the statute, stalking is defined to include any of the following acts on more than one occasion:

1) following a person in a place other than the residence of the alleged stalker, 2) placing another under surveillance by being present outside the person's residence, school, workplace or motor vehicle or any other place frequented by that person, other than the residence e of the alleged stalker, or 3) harassing another person.

Each and every element of the definition can be read very broadly to include some fairly innocuous behavior. A first time stalking offense is a misdemeanor. Under the prior law, a 3rd offense was a 4th degree felony.

However, due to the growing concern with domestic violence, the law was amended in 1997 to make a second offense a 4th degree felony. In addition, aggravated stalking may be charged for knowingly violating a protective order or no contact order.

Aggravated stalking is also a 4th degree felony. Aggravated stalking consists of knowingly violating protective order, violating a no contact order under conditions of release, stalking while in possession of a deadly weapon, or stalking a person under 16 years of age.

A 4th degree felony carries very serious penalties with possible jail time of 18 months and fines up to $5000 for each count. Most prosecutors will charge the offense of aggravated stalking only in cases involving real and serious danger to a victim. Others may err on the side of caution and charge it whenever the statute allows. Then there are those prosecutors that will charge everything conceivably possible under the alleged facts in order to gain strategic advantage. And felony charges most definitely place enormous plea pressure on a defendant due to the great risks associated with conviction.

To avoid any risk of charges for aggravated stalking, a person under a protective order or no contact order should have absolutely no contact with the alleged victim of any kind. This means avoiding contact even when the alleged victim initiates the contact. Charges under these circumstances are far too common.

The statute reads that a mutual violation "may" constitute a defense. Thus, a mutual violation is not an absolute defense. Nor does a mutual violation prevent the charges from being filed.

In short, it is highly inadvisable to test the boundaries of the statute. In a case of alleged domestic violence or stalking, the defendant should either stay away from the victim, or get the protective order or no contact order lifted. Any other course of action is extremely risky carrying very serious felony consequences.

Collins & Collins, P.C.
Albuquerque Attorneys

Sentencing is New Mexico felony criminal cases can be pretty tricky as both the prosecution and defense argue their positions to the judge. The State typically argues that the defendant should spend time in prison while Defense counsel argues against prison time.

Sentencing is greatly complicated when there is a firearm involved with the felony charges. When the defendant is convicted of a felony and a firearm is used, there really is no opportunity for the Defense to argue for deferred jail time. In other words, the defendant, if convicted, is going to prison. Prison time is mandatory.

When a defendant is convicted of a non-capital felony and through a separate finding of fact by the jury it is determined that a firearm was used, the judge shall increase the sentence by one year. For a second felony conviction where a firearm is used the sentencing is enhanced by three years.

It is important to realize that a firearm is defined as a weapon designed to propel an object by an explosion. There is a significant distinction between a firearm and a deadly weapon. Many objects may be used as deadly weapons. Much of the classification of a deadly weapon depends upon intent. As such, a lamp if used with deadly intent constitutes a deadly weapon. Firearm classification is more restrictive. For instance, a bb gun or even a C-O2 air gun may constitute deadly weapons depending upon the intent and use, but neither are considered firearms.

The Defendant is looking at mandatory jail time for firearm sentencing because the Judge is mandated by law to enhance the sentence. Moreover, the defendant must spend the entire firearm enhanced sentence in prison. "Good time" reduction in sentencing is not allowed.

There are a few defense strategies that may avoid the felony firearm enhancements. One possible strategy used by Defense Counsel to avoid jail time is to negotiate with the state and plea bargain the underlying felony offense to a misdemeanor. When the felony is pled down to a misdemeanor, the firearm enhancement is taken out of the equation in determining sentencing.

Another possible approach is through the jury instructions issued to the jury at trial. The goal is to include a lesser misdemeanor offense in the jury instructions. This will allow the jury to consider the less serious offense. If the jury finds guilt on only misdemeanor offenses, the felony firearm enhancement is not in play because the underlying charge is a misdemeanor and not a felony.

Firearm charges are extremely serious. They take many possible defense and plea options off the table. Anyone facing a firearm related charges would be well advised to contact an experienced New Mexico criminal law attorney as early in the criminal process as possible.

Collins & Collins, P.C.
Albuquerque Attorneys

The Zero Tolerance policy for schools was implemented in New Mexico to halt the growth of school related violence. There is no disputing that the policy has for the most part been both necessary and beneficial to New Mexico schools. However, on occasion, the enforcement of the policy at the local enforcement level can get a little carried away.

In the 2009 case of State v. Nick R., the New Mexico Supreme Court addressed the prosecution of a sixteen-year-old Taos High School student for possession of a deadly weapon on school premises, a fourth degree felony. The problem with the case was the fact that the so-called deadly weapon was a simple pocket-knife that the child used at work in his dad's furniture business, and had forgotten to remove from his pocket before school. It was agreed by all that the child never intended to use the pocket-knife as a deadly weapon. In fact, after a brief suspension, the high school reinstated the child.

On the other hand, the local prosecutor would not let it go and the case proceeded to trial. The child's lawyer argued that evidence showing that the child had no deadly intent should be admitted to the jury. The court denied the evidence stating that the child had committed the crime as a matter of law. In short, the trial court stated that intent was irrelevant, the fact of possession was enough. The court did this despite the fact that "pocket-knife" is not among the weapons named in the statutes defining deadly weapon under New Mexico law.

The child appealed the ruling by the court that intent was irrelevant arguing evidence of intent should have been presented to the jury. The New Mexico Court of Appeals sided with trial court upholding the ruling and the conviction. The Supreme Court reversed.

The Supreme Court went through a lengthy analysis and discussion of the history of the statute and the cases since its enactment in law during New Mexico's territorial days and its amendment in 1953 to add two additional weapons of switchblade knives and brass knuckles. Interestingly the Court fell back on common dictionary definitions of deadly weapon. The Court even referenced Mark Twain and "the ubiquitous Barlow pocketknives in his classic Tom Sawyer and Huckleberry Finn books." The statute defining deadly weapon and the cases applying it simply did not include pocket-knives.

Following its analysis, the Court came to the common sense conclusion that a pocket-knife is no more a deadly weapon than a rock, both of which can be used to inflict deadly harm. The key to analysis in any particular case is the intent of the party possessing the pocket-knife or other potentially deadly weapon not specifically identified in the statutory definition. The court recognized that many objects, lamps, chairs, rocks, dishes, bottles and yes pocket-knives may and have become deadly weapons with the requisite intent. However and most importantly to the ruling, the Court stated that the issue of intent must go to the jury.

Zero Tolerance has led in the past to many similar such charges. The Court in Nick R. has introduced some common sense to ongoing enforcement. There are some things that should be left to the schools and parents. Hopefully, in the future, a simple and innocent mistake like Nick's will be left to the school and parents to address without the unnecessary and heavy-handed intervention of law enforcement.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com