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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                                   NO. 32,996

 5 DANIEL DIAZ,

 6          Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
 8 Grant L. Foutz, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellant

12   Jorge A. Alvarado, Chief Public Defender
13   Santa Fe, NM
14   J.K. Theodosia Johnson, Assistant Public Defender
15   Albuquerque, NM

16 for Appellee


17                                 MEMORANDUM OPINION

18 GARCIA, Judge.
 1   {1}   The State appeals from a district court order dismissing the charge of battery

 2 upon a peace officer. We issued a calendar notice proposing to reverse. Defendant has

 3 filed a timely memorandum in opposition. We reverse.

 4   {2}   In this case, Defendant had been charged with driving while intoxicated (DWI)

 5 and battery upon a peace officer. [RP 1] The State stipulated that the officer lacked

 6 probable cause to make the arrest, and the DWI charge was dismissed. [DS 4]

 7 Defendant then argued that the battery charge also should be dismissed because the

 8 officer was not acting lawfully when he was effectuating the arrest because he did not

 9 have probable cause. [DS 4] The district court agreed and dismissed the charge. [RP

10 124]

11   {3}   Our calendar notice indicated that this case is controlled by our Supreme Court's

12 analysis in State v. Doe, 1978-NMSC-072, ¶ 8, 92 N.M. 100, 583 P.2d 464. In Doe,

13 the issue was whether a person who uses force against an officer to resist a search

14 after an illegal arrest may be convicted of battery on a police officer. Id. Battery upon

15 a peace officer consists of “the unlawful, intentional touching or application of force

16 to the person of a peace officer while he is in the lawful discharge of his duties, when

17 done in a rude, insolent or angry manner.” NMSA 1978, § 30-22-24(A) (1971). The

18 defendant in Doe had attacked officers who were searching him at the police station

19 after he had been illegally arrested. 1978-NMSC-072, ¶ 2.



                                               2
 1   {4}   The Supreme Court in Doe concluded that “a private citizen may not use force

 2 to resist a search by an authorized police officer engaged in the performance of his

 3 duties whether or not the arrest is illegal.” Id. ¶ 11. Our Supreme Court then addressed

 4 the element of the crime that the officers were acting within the “lawful discharge of

 5 [their] duties.” Id. (internal quotation marks omitted). It concluded that they were

 6 within the lawful discharge of their duties because they were still acting within their

 7 authority, even though there was no probable cause for the arrest. Id. ¶ 14. In

 8 determining that the defendant committed a battery upon a peace officer, the Court

 9 held that the officers were acting within their authority as long as they were acting

10 “within the scope of what [they were] employed to do.” Id. ¶ 15.

11   {5}   The facts of this case are identical to Doe in that the alleged battery occurred

12 while the officer was acting within his authority, even though the arrest itself was not

13 supported by probable cause. To the extent that Defendant believes [MIO 4-6] that

14 there is some Court of Appeals case law that may be read to be in conflict with Doe,

15 we are bound by our Supreme Court precedent. See State ex rel. Martinez v. City of

16 Las Vegas, 2004-NMSC-009, ¶ 20, 135 N.M. 375, 89 P.3d 47 (stating that this Court

17 is bound by Supreme Court precedent).

18   {6}   Alternatively, Defendant argues that the facts of this case only support simple

19 battery under our case law. See State v. Padilla, 1997-NMSC-022, ¶¶ 5-7, 123 N.M.

20 216, 937 P.2d 492. However, the facts relating to this argument have not been


                                               3
1 developed below, and we do not believe that it would be fair to deny the State an

2 opportunity for further factual development. See State v. Franks, 1994-NMCA-097,

3 ¶ 8, 119 N.M. 174, 889 P.2d 209 (stating that this Court may “affirm a district court

4 ruling on a ground not relied upon by the district court, [but] will not do so if reliance

5 on the new ground would be unfair to appellant.”)

6   {7}   For the reasons set forth above, we reverse.

7   {8}   IT IS SO ORDERED.


8
9                                            TIMOTHY L. GARCIA, Judge


10 WE CONCUR:


11
12 JAMES J. WECHSLER, Judge


13
14 JONATHAN B. SUTIN, Judge




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