This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om the official paper ve rsion filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 31,263 4 PAUL SAMORA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John A. Dean, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 M. Anne Kelly, Assistant Attorney General 11 for Appellee 12 Jacqueline L. Cooper 13 Nina Lalevic 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Judge. 182 Defendant appeals his convictions for three batteries, one assault, and disorderly 1 conduct. We proposed to affirm in our first calendar notice. After this Court filed its 2 opinion in State v. Valino , 2012-NMCA-___, ___ P.3d ___ (No. 30,497, July 27, 3 2012), we issued a second calendar notice in which we proposed to reverse and 4 remand for a new trial. The State has responded to our second calendar notice with 5 a memorandum in opposition. We have considered the State’s arguments. Not 6 persuaded, we reverse. 7 Defendant appealed his convictions, argui ng that it was error to deny his motion 8 for directed verdict based on his claim that there was insufficient evidence that the two 9 security guards were healthcar e workers. [DS 3] In our second calendar notice, we 10 proposed to hold that it was fundamental error to fail to instruct the jury on the 11 essential element of knowledge. We also proposed to hold that there was sufficient 12 evidence to support the charge of battery on a health care worker and, therefore, it was 13 not error to deny the motion for directed verd ict. The State agr ees that the security 14 guards fit within the definition of hea lth care workers under NMSA 1978, Section 30- 15 3-9.2(A)(2) (2006). 16 The State contends that, based on the facts inthis case, the failure to instruct the 17 jury on the element of knowledge did not amount to fundamental error. See Valino , 18 2012-NMCA-___, ¶ 17 (holding that a defendant’s knowledge of the victim’s status 193 as a health care worker is anessential element of the crime of battery on a health care 1 worker, and concluding that the failure to in struct the jury on the essential element of 2 knowledge amounted to fundament error). The State refers to language in Valino 3 stating that, if a jury’s finding of guilt “necessarily includes or amounts to a finding 4 on an element omitted” from a jury instru ction, the error is not fundamental. Id. ¶ 14 5 (internal quotation marks and citation omitted). According to the State, Defendant 6 knew he was being treated in a health care facility, and the State claims there is 7 nothing to indicate that Defendant was “unaware of the status of the persons in the 8 facility.” [MIO 8] Based on these asserti ons, the State argues that it can be inferred 9 that Defendant knew the security guards werehealth care workers, the jury verdict of 10 guilty “necessarily” amounted to a finding that Defendant knew the victims were 11 health care workers, and failure to in struct on the element of knowledge did not 12 amount to fundamental error. [MIO 7-8] Other than the statement that Defendant was 13 aware that he was in a health care facility , the State points to nothing that would 14 support an inference that Defendant would necessarily have been aware that any 15 person that he came in contact with during hi s treatment in the h ealth care facility was 16 a health care worker. Instead, the State appears to argue that it was up to Defendant 17 to submit evidence to show that Defendant was unaware of the status of the people he 18 encountered during his treatment. However, we note that knowledge of the victim’s 194 status is an element of the crime, and lack of knowledge is not a defense that 1 Defendant needs to establish. Instead, it is up to the State to provethe elements of the 2 crime. Based on the evidence relied on by the State, the jury’s finding of guilt in this 3 case did not “necessarily include[] or amount[] to a finding” on the element of 4 knowledge. As discussed in our second calendar notice, the failure to instruct on the 5 element of knowledge amounted to fundamental error. 6 We reverse and remand for a new trial. We deny the State’s motion to stay this 7

case. 8 IT IS SO ORDERED. 9

__________________________________ 10 LINDA M. VANZI, Judge 11 WE CONCUR: 12

_________________________________ 13 JAMES J. WECHSLER, Judge 14

_________________________________ 15 TIMOTHY L. GARCIA, Judge 16