N.M. Stat. § 30-3-1 (2026)

Assault consists of either:

   A. an attempt to commit a battery upon the person of another;

   B. any unlawful act, threat or menacing conduct which causes another person to
reasonably believe that he is in danger of receiving an immediate battery; or
   C. the use of insulting language toward another impugning his honor, delicacy or
reputation.

   Whoever commits assault is guilty of a petty misdemeanor.

History: 1953 Comp., § 40A-3-1, enacted by Laws 1963, ch. 303, § 3-1.

                                    ANNOTATIONS

Cross references. — For assault and battery upon revenue division employees, see 7-
1-75 NMSA 1978.

For assault by prisoner, see 30-22-17 NMSA 1978.

For assaults upon peace officers, see 30-22-21 to 30-22-26 NMSA 1978.

Requisites of assault. — An assault under New Mexico law requires an act, threat or
menacing contact, which causes the plaintiff to reasonably believe she is in danger of
receiving an immediate battery. Chavez v. Thomas & Betts, Corp., 396 F.3d 1088 (10th
Cir. 2005).

Specific intent is not an essential element of aggravated assault. — Where
defendant was charged with aggravated assault with a deadly weapon, and where the
state presented evidence at trial that the victim of the assault was standing next to the
shooting victim when the shooting occurred and that the assault victim reasonably
believed that she was also going to be shot, and where the jury was properly instructed
on general criminal intent, there was sufficient evidence to support defendant's
conviction for aggravated assault with a deadly weapon. Specific intent is not an
essential element of aggravated assault. State v. Branch, 2018-NMCA-031, replacing
2016-NMCA-071, 387 P.3d 250, cert. denied.

Sufficient evidence of aggravated assault. — Where defendant was charged with
aggravated assault with a deadly weapon, the evidence that the victim of the assault
was standing right next to the shooting victim when the shooting occurred, that the
assault victim believed that she was also going to be shot, and where the jury was
properly instructed on general criminal intent, there was sufficient evidence to support
defendant’s conviction for aggravated assault with a deadly weapon. State v. Branch,
2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed.

Constitutional infirmity in Subsection C may exist insofar as first and fourteenth
amendment rights are concerned. State v. Parrillo, 1979-NMCA-135, 94 N.M. 98, 607
P.2d 636, cert. denied, 94 N.M. 629, 614 P.2d 546.

Insulting language. — Language that meant "follow the road, don't go" did not, as a
matter of law, tend toward impugning the honor, delicacy or reputation of another. State
v. Vasquez, 1971-NMCA-182, 83 N.M. 388, 492 P.2d 1005.
Requisites of assault. — For there to have been an assault upon a victim, there must
have been an act, threat or conduct which caused him to reasonably believe he was in
danger of receiving an immediate battery. State v. Mata, 1974-NMCA-067, 86 N.M. 548,
525 P.2d 908, cert. denied, 86 N.M. 528, 525 P.2d 888.

Batteries do not include assault. — While assault and battery are closely related, one
may exist without the other. All batteries do not include an assault. For there to be an
assault, there must have been an act, threat or menacing conduct which causes
another person to reasonably believe that he is in danger of receiving an immediate
battery. Baca v. Velez, 1992-NMCA-053, 114 N.M. 13, 833 P.2d 1194, cert. denied, 113
N.M. 636, 830 P.2d 553.

Evidence of victim's apprehension. — Where there was no direct evidence of an
alleged victim's belief that he was in danger of receiving an immediate battery, the
evidence was insufficient to show that any assault had been committed. State v. Mata,
1974-NMCA-067, 86 N.M. 548, 525 P.2d 908, cert. denied, 86 N.M. 528, 525 P.2d 888.

Sufficient evidence of assault by a corrections officer against an inmate. — Where
defendant was charged with two counts of assault and attempted battery committed
against an inmate, allegedly committed while defendant was employed as a corrections
officer, and where evidence was presented at trial that defendant, while escorting the
victim out of a courtroom following a hearing, attempted to kiss the victim multiple times,
that the victim pushed defendant away each time, but gave defendant her phone
number because she was nervous, uncomfortable, and scared that defendant would try
to do more than kiss her, and where defendant claimed that his two convictions for
assault were not supported by sufficient evidence because there was no evidence that
defendant was angry at the time of either of his attempts to kiss the victim, there was
sufficient evidence to support defendant's convictions for assault where evidence
established that the victim was under defendant's physical control, restrained by
shackles, and isolated within the courthouse when defendant attempted to kiss her. The
victim's testimony provided relevant direct and circumstantial evidence from which a
reasonable jury could conclude that under these specific circumstances, defendant's
attempts to kiss her were done in an offensive or insulting manner. State v. Arvizo,
2021-NMCA-055, cert. denied.

Evidence of threats following assault and attempted battery was relevant. —
Where defendant was charged with two counts of assault and attempted battery
committed against an inmate, allegedly committed while defendant was employed as a
corrections officer, and where evidence was presented that defendant, while escorting
the victim out of a courtroom following a hearing, attempted to kiss the victim multiple
times, that the victim pushed defendant away each time, but gave defendant her phone
number because she was nervous, uncomfortable, and scared that defendant would try
to do more than kiss her, and that following the victim's release from jail, she received
messages on her cell phone from defendant, including a threat from defendant that he
would call the victim's "tracker" if she continued to refuse to return his calls, which the
victim interpreted as a threat to send her back to jail, the district court did not abuse its
discretion by admitting evidence of defendant's voicemail messages because it was not
against the logic and effect of the facts and circumstances of the case for the district
court to allow testimony about defendant's voicemail message threatening the victim
with penal consequences if she continued to refuse his calls. State v. Arvizo, 2021-
NMCA-055, cert. denied.

Improperly admitted evidence of menacing conduct not unfairly prejudicial. —
Where defendant was improperly charged and convicted of aggravated assault with a
deadly weapon along with tampering with evidence, and the district court admitted
evidence that defendant stated that he robbed the neighborhood in the course of the
overall incident at issue, the admission of defendant’s statement was not unfairly
prejudicial because although the evidence related to defendant’s menacing conduct,
which related solely to the improperly charged, assault-based offense, the testimony
about defendant’s statement that he robbed the neighborhood was elicited from the
victim, not law enforcement, was offered in the context of other blustering comments
from defendant, defendant makes no showing that the state placed emphasis on the
statement, there was no indication that the state attempted to relate the statement to the
conduct that supported defendant’s conviction for tampering, and there was other
sufficient evidence to supporting defendant’s conviction for tampering with evidence.
State v. Radosevich, 2016-NMCA-060, 376 P.3d 871, rev’d on other grounds, 2018-
NMSC-028.

Definition mandatory part of instructions. — The definition of assault found in this
section contains essential elements of the crime of which defendant was convicted,
assault with intent to commit a violent felony, and hence, failure to instruct on the
definition of assault constituted jurisdictional error. State v. Jones, 1973-NMCA-107, 85
N.M. 426, 512 P.2d 1262.

Instruction on assault as lesser included offense. — In trial of Indian for rape under
the federal Major Crimes Act (18 U.S.C. §§ 1153, 3242, conferring federal jurisdiction
over certain enumerated major crimes committed by Indians on Indian reservations), it
was reversible error for trial court to refuse to instruct on the nonenumerated offenses of
attempted rape, simple assault and battery, all of which were lesser included offenses
under New Mexico law. Joe v. United States, 510 F.2d 1038 (10th Cir. 1974).

Law reviews. — For article, "The Proposed New Mexico Criminal Code," see 1 Nat.
Resources J. 122 (1961).

For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63
(1974).

For note, "Municipal Assumption of Tort Liability for Damage Caused by Police
Officers," see 1 N.M.L. Rev. 263 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Assault and Battery §§ 8
to 36.
Indecent proposal to woman as assault, 12 A.L.R.2d 971.

Homicide: acquittal on homicide charge as bar to subsequent prosecution for assault
and battery or vice versa, 37 A.L.R.2d 1068.

Motor vehicle: criminal responsibility for assault and battery by operation of
mechanically defective motor vehicle, 88 A.L.R.2d 1165.

Criminal liability for excessive or improper punishment inflicted on child by parent,
teacher, or one in loco parentis, 89 A.L.R.2d 396.

Deadly or dangerous weapon, intent to do serious harm as essential to crime of assault
with, 92 A.L.R.2d 635.

Unintentional killing of or injury to third person during attempted self-defense, 55
A.L.R.3d 620.

Automobile as dangerous or deadly weapon within meaning of assault or battery
statute, 89 A.L.R.3d 1026.

Admissibility of evidence of character or reputation of party in civil action for assault on
issues other than impeachment, 91 A.L.R.3d 718.

Criminal liability as barring or mitigating recovery of punitive damages, 98 A.L.R.3d 870.

Single act affecting multiple victims as constituting multiple assaults or homicides, 8
A.L.R.4th 960.

Civil liability for insulting or abusive language - modern status, 20 A.L.R.4th 773.

Sufficiency of evidence to establish criminal participation by individual involved in gang
fight or assault, 24 A.L.R.4th 243.

Liability of hotel or motel operator for injury to guest resulting from assault by third party,
28 A.L.R.4th 80.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Standard for determination of reasonableness of criminal defendant's belief, for
purposes of self-defense claim, that physical force is necessary - modern cases, 73
A.L.R.4th 993.

Franchisor's tort liability for injuries allegedly caused by assault or other criminal activity
on or near franchise premises, 2 A.L.R.5th 369.
Transmission or risk of transmission of human immunodeficiency virus (HIV) or acquired
immunodeficiency syndrome (AIDS) as basis for prosecution or sentencing in criminal
or military discipline case, 13 A.L.R.5th 628.

Admissibility of threats to defendant made by third parties to support claim of self-
defense in criminal prosecution for assault or homicide, 55 A.L.R.5th 449.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

Effect of federal assault statute (18 USCS § 113) on prosecutions under Assimilative
Crimes Act (18 USCS § 13) making state criminal laws applicable to acts committed on
federal reservations, 57 A.L.R. Fed. 957.

6A C.J.S. Assault and Battery § 64.