     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 31,263

 5 PAUL SAMORA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM
11 M. Anne Kelly, Assistant Attorney General

12 for Appellee

13 Jacqueline L. Cooper
14 Nina Lalevic
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VANZI, Judge.
 1        Defendant appeals his convictions for three batteries, one assault, and disorderly

 2 conduct. We proposed to affirm in our first calendar notice. After this Court filed its

 3 opinion in State v. Valino, 2012-NMCA-___, ___ P.3d ___ (No. 30,497, July 27,

 4 2012), we issued a second calendar notice in which we proposed to reverse and

 5 remand for a new trial. The State has responded to our second calendar notice with

 6 a memorandum in opposition. We have considered the State’s arguments. Not

 7 persuaded, we reverse.

 8        Defendant appealed his convictions, arguing that it was error to deny his motion

 9 for directed verdict based on his claim that there was insufficient evidence that the two

10 security guards were healthcare workers. [DS 3] In our second calendar notice, we

11 proposed to hold that it was fundamental error to fail to instruct the jury on the

12 essential element of knowledge. We also proposed to hold that there was sufficient

13 evidence to support the charge of battery on a health care worker and, therefore, it was

14 not error to deny the motion for directed verdict. The State agrees that the security

15 guards fit within the definition of health care workers under NMSA 1978, Section 30-

16 3-9.2(A)(2) (2006).

17        The State contends that, based on the facts in this case, the failure to instruct the

18 jury on the element of knowledge did not amount to fundamental error. See Valino,

19 2012-NMCA-___, ¶ 17 (holding that a defendant’s knowledge of the victim’s status


                                                2
 1 as a health care worker is an essential element of the crime of battery on a health care

 2 worker, and concluding that the failure to instruct the jury on the essential element of

 3 knowledge amounted to fundament error). The State refers to language in Valino

 4 stating that, if a jury’s finding of guilt “necessarily includes or amounts to a finding

 5 on an element omitted” from a jury instruction, the error is not fundamental. Id. ¶ 14

 6 (internal quotation marks and citation omitted). According to the State, Defendant

 7 knew he was being treated in a health care facility, and the State claims there is

 8 nothing to indicate that Defendant was “unaware of the status of the persons in the

 9 facility.” [MIO 8] Based on these assertions, the State argues that it can be inferred

10 that Defendant knew the security guards were health care workers, the jury verdict of

11 guilty “necessarily” amounted to a finding that Defendant knew the victims were

12 health care workers, and failure to instruct on the element of knowledge did not

13 amount to fundamental error. [MIO 7-8] Other than the statement that Defendant was

14 aware that he was in a health care facility, the State points to nothing that would

15 support an inference that Defendant would necessarily have been aware that any

16 person that he came in contact with during his treatment in the health care facility was

17 a health care worker. Instead, the State appears to argue that it was up to Defendant

18 to submit evidence to show that Defendant was unaware of the status of the people he

19 encountered during his treatment. However, we note that knowledge of the victim’s


                                              3
 1 status is an element of the crime, and lack of knowledge is not a defense that

 2 Defendant needs to establish. Instead, it is up to the State to prove the elements of the

 3 crime. Based on the evidence relied on by the State, the jury’s finding of guilt in this

 4 case did not “necessarily include[] or amount[] to a finding” on the element of

 5 knowledge. As discussed in our second calendar notice, the failure to instruct on the

 6 element of knowledge amounted to fundamental error.

 7         We reverse and remand for a new trial. We deny the State’s motion to stay this

 8 case.

 9         IT IS SO ORDERED.

10                                          __________________________________
11                                          LINDA M. VANZI, Judge

12 WE CONCUR:



13 _________________________________
14 JAMES J. WECHSLER, Judge



15 _________________________________
16 TIMOTHY L. GARCIA, Judge




                                               4
