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New Mexico Supreme Court clarifies what is a ‘use’ of a deadly weapon

A New Mexico middle schooler who brought a BB gun to school claimed he never used it, but the court upheld his adjudication of aggravated assault with a deadly weapon.

SANTA FE, N.M. (CN) — A person does not necessarily have to brandish a weapon or physically attack someone with it to be found to have committed aggravated assault with a deadly weapon, the New Mexico Supreme Court ruled Monday.

In February 2018, Todd Morris, the principal of Marshall Middle School in Clovis, New Mexico, learned that a student had brought a weapon to school. Morris asked the child to empty his pockets, which revelaed a CO2 cartridge — an accessory for a BB gun or air soft pistol. He also noticed the student was “fumbling in the front area of his waistband," where there was an "abnormal bulge." The student refused to tell Morris what was he was hiding.

Morris called for the police, and while waiting for them to arrive, the student asked him three questions: “What would happen if somebody shot up the school?”; “Are you afraid to die?”; and “How would you feel if a 12-year-old shot you?” 

A police search revealed the student had a BB gun and he was found delinqune for commiting an aggravated assault with a deadly weapon on a school employee.

The student argued on appeal that the incident did not qualify as aggravated assault because there wasn't enough evidence he "used" the weapon. He argued he did not "reference, gesture towards, brandish, aim or reveal” the BB gun.

However, in an opinion written by Chief Justice Michael E. Vigil with concurrence from Justice C. Shannon Bacon, Justice David K. Thomson and retired Justice Judith K. Nakamura, sitting by designation, the court concluded that a “defendant uses a deadly weapon to commit assault where a defendant makes facilitative use of the deadly weapon.”

“Facilitative use of a deadly weapon may be found if (1) a deadly weapon is present at some point during the encounter, (2) the victim knows or, based on the defendant's words or actions, has reason to know that the defendant has a deadly weapon, and (3) the presence of the weapon is intentionally used by the defendant to facilitate the commission of the assault," the opinion clarifies.

The justices determined the student therefore did commit aggravated assault.

“In this case, a reasonable jury could have determined Child used the BB gun when his verbal threats together with the presence of the BB gun created the victim's fear of receiving an immediate battery,” Vigil wrote in the 19-page opinion.

The court also directed the state’s Criminal Uniform Jury Instructions Committee to develop recommendations for revising jury instructions consistent with the opinion's definition of “use” of a deadly weapon.

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