State v. Zachariah G.

                                                         Office of the
                                                             Director                     New Mexico
                                                                                          Compilation
                                                 11:21:37 2021.09.27                      Commission
                                                               '00'06-
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: October 1, 2019

NO. A-1-CA-37584

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

ZACHARIAH G.,

      Child-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Fred T. Van Soelen, District Judge

Certiorari Granted, February 3, 2020, No. S-1-SC-37990. Released for Publication
October 5, 2021.

Hector H. Balderas, Attorney General
Santa Fe, NM
Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

VANZI, Judge.

{1}    Zachariah G. (Child) appeals his adjudication of delinquency for committing
aggravated assault with a deadly weapon upon a school employee, in violation of
NMSA 1978, Section 30-3-9(C) (1989), and unlawful carrying of a deadly weapon on
school premises, in violation of NMSA 1978, Section 30-7-2.1(A) (1994). We conclude
that there is substantial evidence that Child “used” a deadly weapon in his assault. We
also conclude that Child’s adjudication does not violate double jeopardy. Accordingly,
we affirm.

BACKGROUND

{2}     The facts of this case are undisputed. One morning, the principal of Marshall
Middle School in Clovis, Todd Morris, learned that Child, a twelve-year-old in the sixth
grade, had some sort of a weapon on campus. Morris located Child in the hallway and
escorted Child back to his office. As they were walking back to Morris’s office, Child
kept “fumbling in the front area of his waistband.” When they reached his office, Morris
had Child empty his pockets in accordance with the limited scope of search school
officials were permitted to conduct. Among other items, Child removed a CO2 cartridge
from his pockets, which Morris knew was commonly used with BB guns (also referred to
as an air pistol). At that point, Morris also noticed a bulge in Child’s waistband that “was
not consistent with anything that was normal.” When asked what he had in his pants,
Child refused to reveal the object and told Morris that it was his “dick.” 1 Although a
security officer was present, Morris was feeling insecure and had his secretary call for
police assistance. While they were waiting for the police to arrive, Child asked Morris
the following questions: “What would happen if somebody shot up the school?” “Are you
afraid to die?” and “How would you feel if a twelve-year-old shot you?” Child’s questions
made Morris “feel very unsecure.” However, Child never told Morris that he had a gun,
nor did Child remove the object from his waistband or gesture as if he had a gun. Once
the officers arrived, they searched Child and found a BB gun in his pants that resembled
an actual firearm.

{3}    The State filed a delinquency petition charging Child with aggravated assault with
a deadly weapon upon a school employee and unlawful carrying of a deadly weapon on
school premises. After a jury found that Child committed the crimes charged, the district
court adjudicated Child a delinquent child pursuant to NMSA 1978, Section 32A-2-3(B)
(2009, amended 2019), and ordered Child to complete a residential treatment program.
Additionally, the district court imposed a one-year term of probation. This appeal
followed.

DISCUSSION

{4}    On appeal, Child raises two arguments. First, Child argues there was insufficient
evidence that he “used” a deadly weapon. Second, Child argues that his adjudication of
delinquency for aggravated assault with a deadly weapon upon a school employee and
unlawful carrying of a deadly weapon on school premises violates double jeopardy. We
address both of Child’s arguments.

Mootness



1Child’s brief states that Child told Morris the object was “a stick.” However, our careful review of the
recording makes clear that Child was not referring to “a stick” but instead, said it was his “dick.”
{5}     As a preliminary matter, we first address the State’s argument that Child’s appeal
is moot. The State argues that we should dismiss Child’s appeal because there is no
longer an active controversy, as Child’s term of probation has ended. Generally,
appellate courts will not decide moot cases. Gunaji v. Macias, 

,

, 

. “A case is moot when no actual controversy exists, and
the court cannot grant actual relief.” 

 (internal quotation marks and citations omitted).
Notwithstanding this general rule, appellate courts may exercise their discretion to
review moot cases that present “issues of substantial public interest or which are
capable of repetition yet evade review.” Id. ¶ 10. In order for an issue to be capable of
repetition yet evading review, it must be likely to arise in a future controversy. Id. ¶ 11.
Under our state mootness doctrine, unlike its more restrictive federal counterpart, the
parties’ identities are irrelevant. Id. Our Court has previously applied this exception to
reach issues in children’s court cases because such cases often involve short-term
commitments. See, e.g., State v. Jose S., 

, 

, 

; State v. Sergio B., 

, 

, 

.

{6}     Child argues that this case falls within one of the exceptions to mootness
because it presents issues capable of repetition yet evading review. Additionally, Child
argues that this case falls within another exception to mootness for cases presenting
issues of substantial public interest. We agree with Child. The State argues that Child’s
case does not fall within this exception because, “rather than rais[ing] general
procedural or jurisdiction issues, it involves narrow questions that are specific to
[Child’s] case and not capable of repetition.” In support of its argument, the State cites
State v. Justin C., No. A-1-CA-36176, mem. op. ¶ 7 (N.M. Ct. App. Sept. 5, 2018) (non-precedential), in which our Court distinguished that case from Jose S. and Sergio B.,
stating “that [Justin C.] does not raise general procedural or jurisdictional issues capable
of repetition in the review of other juvenile dispositions.” However, Justin C. is an
unpublished memorandum opinion, which has no precedential value. See Rule 12-
405(A) NMRA. Moreover, we do not read Jose S. and Sergio B. as requiring Child to
raise only “general procedural or jurisdictional” issues in order to present issues capable
of repetition yet evading review. Rather, the holdings of Jose S. and Sergio B. rest on
the short-term nature of dispositions inherent to the Children’s Code. See Jose S.,

 (“[B]ecause of the short time frames for Children’s Code
dispositions and the sometimes lengthy time for disposition of general calendar cases
on appeal, such cases can evade review.” (emphasis added)); Sergio B., 2002-NMCA-
070, ¶ 11 (“Many children’s court cases will involve short-term commitments of one year
or less which could expire before the case was fully briefed before this Court or our
Supreme Court, and thus these issues would evade review unless this exception was
invoked.” (emphasis added) (citing NMSA 1978, § 32A-2-19(B) (1996, amended
2009))). Indeed, in Sergio B., we stated, “[The c]hild also argues . . . that there was
insufficient evidence to support the [district] court’s judgment. Th[is] issue[] [is] also
capable of repetition.” 

. Thus, appeals from the children’s court—
no matter the specific issues raised—generally fall within the exception for issues that
are capable of repetition yet evading review simply because of the nature of children’s
court sentences. Cases from other contexts illustrate that the deciding factor is the
relatively short length of the appellants’ sentences, not the specific issues that they
raise on appeal. See State ex rel. Children, Youth & Families Dep’t v. Amanda H., 2007-
NMCA-029, ¶¶ 17-18, 

, 

 (holding that a mother’s appeal from
an adjudication of neglect or abuse challenging the sufficiency of the evidence fell within
the exception for cases capable of repetition yet evading review because “[m]any of
these adjudications may involve only short-term deprivations of custody and district
court oversight of treatment plans”). Thus, while the issues that Child raises are not
“general or procedural,” they are capable of repetition and evasive of review.

{7}    Child also argues that this case presents an issue of substantial public interest
because—as we discuss below—our Courts have not addressed what constitutes “use”
of a deadly weapon in the course of an assault, which is a question that will most likely
recur in the future. See State v. Jones, 

, 

, 

 (“In determining whether the requisite degree of public interest exists to prevent
dismissal on mootness grounds, we consider among other factors . . . the desirability of
an authoritative determination for future guidance of public officers, and the likelihood
that the question will recur in the future.”). We agree. Accordingly, we exercise our
discretion to decide Child’s appeal despite his term of probation having ended.

Sufficiency of the Evidence

{8}     Child challenges the sufficiency of the evidence supporting the jury’s finding that
he committed aggravated assault with a deadly weapon on a school employee. “The
test for sufficiency of the evidence is whether substantial evidence of either a direct or
circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Largo, 2012-NMSC-
015, ¶ 30, 

 (internal quotation marks and citation omitted). “Substantial
evidence is relevant evidence that a reasonable mind might accept as adequate to
support a conclusion.” 

 (internal quotation marks and citation omitted). “In reviewing
whether there was sufficient evidence to support a conviction, we resolve all disputed
facts in favor of the [s]tate, indulge all reasonable inferences in support of the verdict,
and disregard all evidence and inferences to the contrary.” 

 (internal quotation marks
and citation omitted). “Jury instructions become the law of the case against which the
sufficiency of the evidence is to be measured.” State v. Garcia, 

,

, 

 (internal quotation marks and citation omitted). To the
extent Child’s argument implicates questions of statutory interpretation, our review is de
novo. See State v. Neatherlin, 

, 

, 

.

{9}    New Mexico defines assault, in relevant part, as “any unlawful act, threat or
menacing conduct which causes another person to reasonably believe that he is in
danger of receiving an immediate battery[.]” NMSA 1978, § 30-3-1(B) (1963). The
offense is aggravated when it is committed with a deadly weapon. State v. Branch,

, ¶ 12, 

; see NMSA 1978, § 30-3-2(A) (1963). Here,
Child was charged with a specific form of aggravated assault on a school employee,
which is defined, in pertinent part, as “unlawfully assaulting or striking at a school
employee with a deadly weapon while he is in the lawful discharge of his duties[.]”
Section 30-3-9(C)(1). Consistent with UJI 14-355 NMRA, the district court instructed the
jury that, in order to find that Child committed aggravated assault with a deadly weapon,
it had to find beyond a reasonable doubt that:

        1.      . . . Child threatened to shoot . . . Morris;

        2.     . . . Child’s conduct caused . . . Morris to believe that . . . Child was
        about to intrude on . . . Morris’s bodily integrity or personal safety by
        touching or applying force to . . . Morris in a rude, insolent[,] or angry
        manner;

        ....

        4.     A reasonable person in the same circumstances as . . . Morris
        would have had the same belief; [and]

        5.      . . . Child used a deadly weapon[.]

{10} Child does not challenge the first three elements that the BB gun constituted a
deadly weapon but argues that the State did not present sufficient evidence that he
“used” the BB gun because he “never brandished or retrieved [the BB gun], motioned
toward [the BB gun,] or gestured as though he had [the BB gun].” We disagree. 2

{11} Neither the Criminal Code nor the uniform jury instructions provide a definition for
the term “use” within the context of assault with a deadly weapon. Nor does it appear
that our courts have had the opportunity to define that term in this context. This Court,
however, has defined the term “use” within the context of our firearm enhancement
statute penalizing defendants for using a firearm in the commission of a felony. See
NMSA 1978, § 31-18-16(A) (1993) (providing for an increase to the basic sentence
“[w]hen a separate finding of fact by the court or jury shows that a firearm was used in
the commission of a noncapital felony”). In State v. Trujillo, 

, ¶¶ 1, 10,

, 

, the defendant was convicted of several counts of
aggravated assault and battery and received an enhanced sentence for each count for
using a firearm in the commission of the underlying felonies. On appeal, the defendant
challenged the sentence enhancement for one of the batteries in which he clubbed a
victim with the firearm. Id. ¶ 11. The defendant claimed, “[T]he Legislature intended to
increase the sentence only when a firearm is ‘used’ in accordance with its intended
purpose, the shooting of a projectile or placing persons in fear of the shooting of a
projectile, in order to accomplish a crime.” Id. (internal quotation marks omitted). In
rejecting this argument, we cited with approval the following passage from People v.
Chambers, 

, 1027-28:

        By employing the term ‘uses’ instead of ‘while armed’ the [l]egislature
        requires something more than merely being armed. One who is armed

2We note that, although Section 30-3-9 does not contain the term “use,” the jury instructions, based on
UJI 14-355, became the law of the case against which we measure the sufficiency of the evidence. See
Garcia, 

.
       with a concealed weapon may have the potential to harm or threaten harm
       to the victim and those who might attempt to interrupt the commission of
       the crime or effect an arrest. Although the use of a firearm connotes
       something more than a bare potential for use, there need not be conduct
       which actually produces harm but only conduct which produces a fear of
       harm or force by means or display of a firearm in aiding the commission of
       one of the specified felonies. ‘Use’ means, among other things, ‘to carry
       out a purpose or action by means of,’ to ‘make instrumental to an end or
       process,’ and to ‘apply to advantage.’ The obvious legislative intent to
       deter the use of firearms in the commission of the specified felonies
       requires that ‘uses’ be broadly construed.

(Citations omitted.)

{12} We similarly concluded that “[t]he obvious intent of the New Mexico Legislature
[in enacting the firearm enhancement statute] was to deter the use of firearms in
committing felonies; consistent with that intent, ‘use’ should be broadly construed.”
Trujillo, 

, ¶ 14. Consequently, we held that the defendant’s use of the
firearm fell within the meaning of the firearm enhancement statute. 

{13} One year later, in State v. Chouinard, 

, ¶ 5, 

, 

, we again addressed the meaning of “use” within the context of the firearm
enhancement statute and held that the defendant must do more than simply possess a
firearm. In that case, the defendant and a codefendant were arrested after selling
cocaine to an undercover agent. Id. ¶ 3. The state charged the defendant with, inter
alia, using a firearm in the trafficking of cocaine because he and his codefendant had
pistols in their belts and vehicle. Id. The district court dismissed the firearm
enhancement count because “[n]either defendant ever drew or pointed his gun at the
police officers at any time.” Id. The state appealed the dismissal of the firearm
enhancement count. Id. ¶ 1. This Court acknowledged that we construed the term “use”
broadly in Trujillo to include the use of a gun as a club but we declined to “stretch the
meaning of ‘use’ to include ‘non-use.’ ” Chouinard, 

, ¶ 5. We concluded
that “[t]he use of a firearm is something beyond mere possession of it.” Id. ¶ 5. As a
result, we held that the defendant did not “use” the firearm because “the [s]tate d[id] not
contend that either defendant ever showed his gun or threatened to use it during the
alleged sale of cocaine[.]” Id. ¶ 8.

{14} Neither of these cases defined the term “use” within the context of assault with a
deadly weapon; however, we find their analyses instructive. Similar to the firearm
enhancement statute discussed in Trujillo and Chouinard, the purpose of the
aggravated assault statutes is to deter the use of deadly weapons. See State v.
Rodriguez, 

, ¶ 17, 

, 

 (“The aggravated
assault statute is aimed at deterring aggression against other people in which the use of
deadly weapons is involved.”). Although we construe the term “use” broadly to effect
that purpose, cf. Trujillo, 

, ¶ 14, we do not construe the term so broadly
as to encompass non-use or mere possession of a deadly weapon, see Chouinard,


, ¶ 5. “ ‘Use’ means, among other things, ‘to carry out a purpose or
action by means of,’ to ‘make instrumental to an end or process,’ and to ‘apply to
advantage.’ ” Trujillo, 

, ¶ 12 (quoting Chambers, 

);
see also Use, Black’s Law Dictionary 1776 (10th ed. 2014) (defining “use,” in relevant
part, as “[t]o employ for the accomplishment of a purpose; to avail oneself of”). While we
recognize this is a close case, we conclude that Child’s “use” of the BB gun falls within
this definition.

{15} Contrary to Child’s assertions, this is not a situation where Child merely
possessed the BB gun. While Child did not pull out, motion toward, or tell Morris that he
had the gun, it was nonetheless instrumental and applied to Child’s advantage in his
threatening of Morris. The jury could reasonably infer that Child knew Morris was aware
that Child had some sort of weapon when Morris escorted him to his office, asked him
to empty out his pockets, and inquired about the bulge in his pants. Additionally, the jury
could infer that Child knew Morris had reason to believe that Child had some sort of gun
because Child removed a CO2 cartridge from his pockets, which Morris testified was
commonly used with BB guns and because Child refused Morris’s request that he
remove the object. Capitalizing on Morris’s awareness of the bulging object, later
revealed to be a BB gun, Child asked Morris menacing questions while they waited for
the police, including: “What would happen if somebody shot up the school?” “Are you
afraid to die?” and “How would you feel if a twelve-year-old shot you?” Unlike the
defendant in Chouinard, who did not threaten to use his firearm, 

, ¶ 8,
Child essentially threatened Morris with the gun through these pointed questions.
Indeed, when the prosecutor asked Morris if he had to see the weapon to be
apprehensive about Child using it, Morris testified, “No ma’am, not after those
statements. He kept building on those statements. The statements that he kept making .
. . led me to that[.]” A reasonable juror could have determined that the BB gun was
instrumental to Child’s assault because, without the BB gun bulging from Child’s
pants—which Child knew Morris was aware of—Child’s menacing questions would not
have carried the same threat of imminent harm to Morris. In other words, Child “used”
the BB gun to transform his questions from possibly hypothetical to real threats, thereby
instilling greater fear in his victim. We conclude that substantial evidence supported the
jury’s finding that Child “used” the BB gun.

{16} Child argues that our case law “seems to suggest that ‘use’ of a deadly weapon
in the context of threatening or menacing conduct means, at the very least, displaying
the weapon in a rude, insolent[,] or angry manner.” But none of the cases Child cites
addressed the question of what constitutes “use” of a deadly weapon because the
parties did not dispute the issue in light of the unquestionable ways the defendants used
the weapons. See State v. Herrera, 

, ¶ 16, 

 (affirming
conviction where the defendant held a knife to the victim’s throat and told the victim that
he was going to kill him); State v. Wiseley, No. 32,088, mem. op. ¶ 30 (N.M. Ct. App.
Feb. 10, 2014) (non-precedential) (affirming conviction where the defendant waved
around a large piece of glass and threatened the victims with it); State v. Bachicha,

, ¶¶ 2-3, 13, 15, 

, 

 (affirming conviction where
the defendant pointed a rifle at several victims, threatened the victims with the rifle, and
shot one victim). While we agree that most cases of aggravated assault with a deadly
weapon will involve deadly weapons being used in a more obvious way, as this case
demonstrates, an individual can use a deadly weapon in other, more insidious, ways.
Cf. Smith v. United States, 

 (1993) (“That one example of ‘use’ is the
first to come to mind when the phrase ‘uses . . . a firearm’ is uttered does not preclude
us from recognizing that there are other ‘uses’ that qualify as well.” (omission in
original)).

Double Jeopardy

{17} Child next claims that his adjudication of delinquency for both aggravated assault
with a deadly weapon on a school employee and unlawful carrying of deadly weapon on
school premises violates his right to be free from double jeopardy. See U.S. Const.
amend. V; N.M. Const. art. II, § 15; State v. Doe, 

, ¶¶ 1, 3, 

, 

 (applying double jeopardy to children’s court’s adjudication of
delinquency). We disagree.

{18} Double jeopardy protects against multiple punishments for the same offense.
Swafford v. State, 

, ¶ 6, 

, 

. Whether separate
convictions violate double jeopardy is a question of law, which we review de novo. See
State v. Montoya, 

, 

. For double description cases,
like the present one, we apply the two-part test set forth in Swafford, 

,
¶ 25. First, we determine whether the conduct underlying the offenses is unitary. 

Conduct is not unitary if “sufficient indicia of distinctness” separate the illegal acts. Id.
¶ 26.

       [I]ndicia of distinctness include the separation between the illegal acts by
       either time or physical distance, the quality and nature of the individual
       acts, and the objectives and results of each act. Distinctness may also be
       established by the existence of an intervening event, the defendant’s
       intent as evinced by his or her conduct and utterances, the number of
       victims, and the behavior of the defendant between acts.

State v. Barrera, 

, 

, 

 (internal quotation
marks and citation omitted). Ultimately, we must decide “whether the facts presented at
trial establish that the jury reasonably could have inferred independent factual bases for
the charged offenses.” State v. Quick, 

, 

, 

(emphasis, internal quotation marks, and citation omitted). If the conduct is unitary, we
then “focus[] on the statutes at issue to determine whether the [L]egislature intended to
create separately punishable offenses.” Swafford, 

, ¶ 25. Double
jeopardy prohibits multiple punishments in the double-description context only where
the conduct is “unitary” and where the Legislature did not intend to create separately
punishable offenses. Id. ¶¶ 9, 25.

{19} In regard to the first prong, Child argues that he “committed a singular culpable
act—he brought [a BB gun] to school and threatened the principal with it.” Child’s own
argument belies his double jeopardy claim, as he admits that he: (1) brought the BB gun
to school and (2) threatened Morris with it. The facts presented at trial demonstrate that
Child’s actions were not unitary. Morris testified that he first learned that Child had some
sort of weapon on campus at approximately 8:15 a.m. and located Child shortly
thereafter in the hallway. At the point that Child crossed onto the school grounds with
the BB gun, Child completed the crime of unlawfully carrying a deadly weapon on
school premises. See § 30-7-2.1(A) (“Unlawful carrying of a deadly weapon on school
premises consists of carrying a deadly weapon on school premises.”); § 30-7-2.1(B)(1)
(defining “school premises” as “the buildings and grounds . . . of any public elementary,
secondary, junior high or high school”). Child did not assault Morris until after Morris
escorted Child back to his office, asked Child to empty his pockets, and called the
police. Thus, both time and location separated Child’s acts of bringing the BB gun to
school and threatening Morris with it, and, the two acts were not unitary. See State v.
Contreras, 

, 

, 

 (“[W]e will not find that
a defendant’s conduct is unitary where the defendant completes one of the charged
crimes before committing the other.”). In addition, the criminal acts were of distinct
quality and nature, affected different victims, and were motivated by different objectives.
By carrying the BB gun on campus, Child’s actions jeopardized the safety of everyone
at the school. Indeed, Child revealed to the police officers after his arrest that he was
planning to “shoot at large crowds of students or staff while at school and after any of
them would fall down, he would go to them at that point, after they were shot with the
BB gun, [and] if they fell down he was gonna go over there and snap their necks.”

{20} Child argues that “[t]here is nothing in the record to suggest that the State
attempted to distinguish bringing the weapon to school and using it in a threatening
manner.” As noted earlier, however, the proper inquiry is “whether the facts presented
at trial establish that the jury reasonably could have inferred independent factual bases
for the charged offenses.” Quick, 

 (emphasis added) (internal
quotation marks and citation omitted). Given the facts here, we conclude that the jury
reasonably could have inferred independent factual bases for the charges of aggravated
assault with a deadly weapon on a school employee and unlawful carrying of deadly
weapon on school premises. Accordingly, Child’s adjudication of delinquency premised
on the two charges does not violate his right to be free from double jeopardy. See
Swafford, 

, ¶ 25.

CONCLUSION

{21}   For the foregoing reasons, we affirm Child’s adjudication of delinquency.

{22}   IT IS SO ORDERED.

LINDA M. VANZI, Judge

VARGAS, Judge (specially concurring).
{23} While I concur in the majority opinion, I write separately to agree with the Dissent
that New Mexico law would benefit from a more precise definition of the term “use”
when considering whether a defendant “used” a deadly weapon in the commission of a
crime. Our long-standing, but never-discussed standard set out in Trujillo, 1978-NMCA-
041, ¶¶ 12-14, and further explained in Chouinard, 

, ¶¶ 5-6, 8, defining
“use” in the context of a firearm provides limited guidance. This is especially true in
those instances when the item identified as the deadly weapon is not a firearm, but an
item that is generally not considered to be a weapon. See Dissent Op. ¶ 27 (listing
examples of items generally not considered to be weapons). In my view, the standard
identified by the dissent in People v. Granado, 

 (Cal. Ct. App. 1996)
and adopted by the California Supreme Court in People v. Wilson, 

(Cal. 2008), see Dissent Op. ¶ 30, would be a helpful addition to our case law defining
“use” in circumstances when the state charges that a deadly weapon was employed in
the commission of a crime.

JULIE J. VARGAS, Judge

IVES, Judge (dissenting in part and concurring in part).

{24} The significance of this appeal might not be immediately apparent. It is of
obvious significance to Child, who argues that his offense was a misdemeanor, assault
on a school employee, see § 30-3-9(B)(2), rather than a felony, aggravated assault on a
school employee with a deadly weapon, see § 30-3-9(C)(1). But Child’s appeal also has
significance statewide for those accused of a variety of assault offenses, as well as the
victims of those offenses. In such cases, the definition of “use” will impact whether New
Mexicans are convicted of misdemeanors or felonies. Compare, e.g., § 30-3-1 (assault,
a petty misdemeanor), with § 30-3-2(A) (aggravated assault with a deadly weapon, a
felony). This distinction between misdemeanor and felony convictions impacts the
potential term of incarceration. See NMSA 1978, § 31-19-1 (1984) (stating that the
maximum incarceration is six months for petty misdemeanor and 364 days for
misdemeanor); NMSA 1978, § 31-18-15(A)(13) (2019) (setting eighteen-month basic
sentence for fourth-degree felonies, including aggravated assault with a deadly
weapon); NMSA 1978, § 31-18-15.1(G) (2009) (allowing increase in felony sentence of
up to one-third of the basic sentence). Felony convictions also carry serious collateral
consequences. See, e.g., N.M. Const. art. VII, § 1(A) (providing that people convicted of
a felony are not qualified to vote if restricted by statute); NMSA 1978, § 30-7-16(A)(1),
(B) (2019) (defining criminal offense of possession of a firearm by a felon).

{25} With these high stakes in mind, I write to explain why I think New Mexico should
adopt a more precise definition of “use” and to offer such a definition. Applying that
definition, I respectfully disagree with my esteemed colleagues’ conclusion that the
evidence would allow a rational jury to find beyond a reasonable doubt that Child “used”
the BB gun. Child never aimed, brandished, revealed, gestured toward, or even
mentioned the BB gun, which he kept concealed in his clothing throughout the
encounter with Morris. Child used words—not the BB gun—to commit the assault. This
was a delinquent act: misdemeanor assault on a school employee. But it was not felony
aggravated assault on a school employee.

I.      The Meaning of “Use”

{26} Clearly and precisely defining “use” is, in my view, necessary to decide Child’s
case and future cases. As the entire panel recognizes, what constitutes “use” is a
question of substantial public interest because it is likely to arise repeatedly. Indeed,
whether a person has “used” a deadly weapon is a question at the heart of many cases,
including those in which people are accused of aggravated assault. 3

{27} Defining “use” appropriately is especially important for cases in which people are
accused of committing aggravated assaults with deadly weapons based on their “use”
of ordinary items, rather than firearms or other items commonly used as weapons. Our
Legislature has defined “deadly weapon” to encompass “any weapon which is capable
of producing death or great bodily harm” and “weapons with which dangerous wounds
can be inflicted[.]” NMSA 1978, § 30-1-12(B) (1963). Many ordinary items—such as
trivets, screwdrivers, and pocketknives—may qualify as deadly weapons. See State v.
Nick R., 

, 

, 

. Cases involving such
items, which are not ordinarily used as weapons, can raise an especially difficult
question. A few hypotheticals illustrate the difficulty. Imagine an accused who threatens
to harm a victim while holding a trivet during service of a meal; while opening a toolbox
with a screwdriver inside; or shortly after a pocketknife falls from the accused’s pocket.
Did the accused merely possess the item at the time of the assault, or did the accused
actually “use” the item to facilitate the assault? Similar situations come to mind in the
school setting. A child might utter threatening words to a school employee or fellow
student while the child holds or has easy access to a pencil, a drawing compass, a
metal water bottle, or a baseball bat. Such items could be deemed deadly weapons,
even though children in schools across our state possess and use them for legitimate
reasons every day. It would be far more difficult to determine whether a child who
threatened another child in a classroom while holding a pencil “used” the pencil in the
assault than it would be to determine whether a child who threatened a classmate while
brandishing a firearm “used” the firearm. To correctly distinguish between felony and
misdemeanor assaults, New Mexico law should draw the line between use and non-use
as clearly and carefully as possible.

{28} But our Legislature has not defined “use,” and our Supreme Court has not had
occasion to discuss its meaning. Nor does New Mexico have a uniform jury instruction
defining the verb. The only New Mexico authorities on the topic are this Court’s 1978
opinion in Trujillo and 1979 opinion in Chouinard, both of which relied on the Supreme

3Charges in such cases include aggravated assault with a deadly weapon, § 30-3-2(A); UJI 14-304
NMRA; UJI 14-305 NMRA, aggravated assault on a household member with a deadly weapon, NMSA
1978, § 30-3-13(A)(1) (1995); UJI 14-374 NMRA; UJI 14-375 NMRA; UJI 14-376 NMRA, aggravated
assault on a peace officer with a deadly weapon, NMSA 1978, § 30-22-22(A)(1) (1971); UJI 14-2201
NMRA; UJI 14-2202 NMRA; UJI 14-2203 NMRA, and aggravated assault on a school employee, § 30-3-
9(C)(1), a sports official, NMSA 1978, § 30-3-9.1(D) (2001), or health care personnel, NMSA 1978, § 30-
3-9.2(C)(1) (2006), with a deadly weapon, UJI 14-354 NMRA; UJI 14-355 NMRA; UJI 14-356 NMRA.
Court of California’s 1972 opinion in Chambers. The majority opinion accurately distills
the following concepts from Chambers, Trujillo, Chouinard: (1) we apply a number of
dictionary definitions of “use”; (2) we construe the verb broadly; (3) mere possession of
a weapon during the commission of an offense is not use; (4) use is more than a bare
potential for use; (5) conduct need not produce physical harm to constitute use; and (6)
use can be conduct that produces fear of harm or force by means or display of a
firearm. I do not believe these concepts define “use” with sufficient precision.

{29} Because our precedents are four decades old and rely on an out-of-state case
that is nearly half a century old, it seems reasonable to ask whether courts in California
or elsewhere have developed more helpful ways of defining what it means to “use” a
weapon in the commission of an offense. To that end, a majority of the panel requested
supplemental briefs on the important question of first impression Child’s appeal
presents. Those briefs confirm that the law has evolved.

{30} Developments in California are of particular interest because we have already
adopted its jurisprudence and because California courts have since refined the
definition of “use” that we relied on in Trujillo and Chouinard. Child cites Granado, 

, in which the defendant challenged his sentencing enhancement for
using a firearm. Affirming, the court discussed the meaning of “use” of a firearm,
beginning with the Supreme Court of California’s decision in Chambers and then
describing subsequent developments. The court explained that use requires broad
construction “to check the magnified risk of serious injury which accompanies any
deployment of a gun in a criminal endeavor.” 

. However, the court recognized
that “a finding of weapon use is precluded if the defendant’s conduct with respect to the
weapon appears to be purely incidental to the crime.” 

. The court noted that, in
a prior case, it had held that evidence of firearm use “was insufficient because, even
though the gun was exposed to the victim’s view, the exposure was not an act in
furtherance of the crime, but a mere incident of possession.” 

 The court explained
that “[t]he litmus test” for the distinction between using a gun in the commission of a
felony and being armed during the offense is whether the defendant “too[k] some action
with the gun in furtherance of the commission of the crime[.]” 

 at 324 n.7. If so, the
gun was used. 

 But if “the defendant engaged in no weapons-related conduct, or
such conduct was incidental and unrelated to the offense, no ‘use’ occurred[.]” 

 The
court observed that the Supreme Court of California had stated, in yet another case,
that displaying a firearm without actually using it to facilitate the commission of an
offense does not constitute use of the firearm. 

. In the Granado court’s
view, that statement “confirm[ed] the commonsense requirement of a facilitative, gun-related act before the defendant can be found to have ‘used’ the gun.” 

(emphasis omitted). The court concluded that “the jury is entitled to find a facilitative use
rather than an incidental or inadvertent exposure” if “a defendant deliberately shows a
gun, or otherwise makes its presence known[.]” 4 

 The Supreme Court of California

4California law includes an additional principle that is generally helpful but does not impact Child’s
appeal. The jury may find facilitative use if “there is no evidence to suggest any purpose other than
intimidating the victim (or others) so as to successfully complete the underlying offense[.]” Id.; accord
Wilson, 

.
has adopted this conclusion as a statement of California law. See Wilson, 

.

{31} I agree with California’s approach. Adding the principles described above to New
Mexico jurisprudence would assist this Court in correctly analyzing Child’s appeal, and it
would benefit our appellate and trial courts, the bar, and the public.

II.    The Evidence That Child Used the BB Gun Was Insufficient

{32} The State’s evidence would not allow a rational jury—relying on an appropriate
definition of “use”—to find beyond a reasonable doubt that Child used the BB gun to
assault Morris. I would therefore hold that the evidence is insufficient to support Child’s
conviction for aggravated assault on a school employee.

{33} When reviewing the sufficiency of the evidence, our duty is to “supervis[e] . . . the
jury’s fact-finding function to ensure that, indeed, a rational jury could have found
beyond a reasonable doubt the essential facts required for a conviction.” State v. Rojo,

, 

, 

 (emphasis, internal quotation
marks, and citation omitted). We must neither speculate nor “sanction a view that
assumes the worst about human nature” because doing so would conflict with “an
essential message of the presumption of innocence.” State v. Mariano R., 1997-NMCA-
018, ¶ 7, 

, 

. To affirm, we must be satisfied that the jury
“ha[d] a sufficient evidentiary basis to conclude that the defendant actually committed
the criminal act he is accused of, not just that he may have done it among a range of
possibilities or that it cannot be ‘ruled out’ among other possible explanations, or even
that it is more likely than not.” State v. Consaul, 

, 

.
Our standard of review is highly deferential in some respects, but we owe no deference
on questions of law, which we review de novo. Consol. Elec. Distrib., Inc. v. Santa Fe
Hotel Grp., LLC, 

, 

, 

.

{34} A question of law—the meaning of “use” in the uniform instruction the jury
received—should drive the analysis in Child’s appeal. The evidence does not prove
beyond a reasonable doubt that Child “deliberately show[ed]” the BB gun to Morris “or
otherwise ma[de] its presence known” to him. See Wilson, 

 (internal
quotation marks and citation omitted). The State did not present any evidence that Child
aimed, brandished, revealed, gestured toward, or mentioned the BB gun. In fact, the
evidence showed that Child did the opposite of showing the BB gun to Morris or
otherwise making its presence known to him. Child acted to prevent Morris from seeing
the BB gun or otherwise knowing about its presence. Child kept the BB gun concealed
in his pants. When Morris asked what was in Child’s pants, Child did not say he had a
BB gun. Child’s hypothetical questions were menacing, but he never referred to the BB
gun in any way, either verbally or physically, when he asked those questions or at any
other point during the encounter. Because Child “did [not] take some action with the
[BB] gun in furtherance of the commission of the [assault,]” Granado, 

 n.7 (emphasis omitted), he did not “use” the BB gun.
{35} I respect but do not share the majority’s perspective on this close case. Child’s
questions did not constitute use of the BB gun because Child did not refer to it, and the
majority has not identified any other BB-gun-related act that could rationally support a
finding of “use” beyond a reasonable doubt. The majority relies heavily on “the gun
bulging from Child’s pants,” Majority Op. ¶ 15, but Child took no action to indicate that
the item in his pants was a BB gun, a firearm, or any other deadly weapon. So the bulge
is no more than “a mere incident of [his] possession.” Granado, 

.
The majority also relies on the CO2 cartridge, Majority Op. ¶ 15, but Child did nothing
with respect to the cartridge that supports a reasonable inference that he used the BB
gun. Child removed the cartridge from his pockets involuntarily, on Morris’s orders, and
Child never referred to the CO2 cartridge during the encounter. Finally, the majority cites
Morris’s trial testimony that he was apprehensive, see 

 but whether Child caused
Morris to be apprehensive and whether Child used the BB gun to cause that
apprehension are distinct inquiries. As the jury instruction confirms, the State bore the
burden of proving two separate essential elements: that Child “caused [Morris] to
believe” Child was going to harm him and that Child “used” the BB gun. Conflating the
two relieves the State of its burden of proving the element of use beyond a reasonable
doubt. Proving what Child caused Morris to believe is no substitute for proving that Child
used the BB gun.

{36} Nothing Child said or did indicated that whatever was in his pants would be the
means of carrying out his threats. And his threats would have caused Morris “to believe
[that Child] was about to intrude on [his] bodily integrity or personal safety,” regardless
of whether Child had a BB gun or something else in his pants. I conclude that a rational
jury could not find that the evidence proved beyond a reasonable doubt that Child
performed “a facilitative, gun-related act.” Granado, 

. Child
assaulted Morris using words, not the BB gun.

{37} By reaching this conclusion, I do not intimate that the jurors in Child’s case were
irrational. I find no fault in their work because, in my view, they lacked the tools
necessary for the job. The jury instructions required them to decide whether the State
proved beyond a reasonable doubt that Child “used” the BB gun, but the jurors never
received any instruction defining “use.”5 It might seem counterintuitive to define a
common, non-technical word such as “use” for juries. However, the meaning of “use” is
“elastic” and, as with many common words, “inordinately sensitive to context.” Smith,

 (Scalia, J., dissenting, joined by Stevens J. and Souter, J.). As
Child’s case and others illustrate, jurists and lawyers—whose job is to understand what
words mean and use them appropriately—have vigorously debated the meaning of
“use” in various contexts. See, e.g, 

 (dividing the Supreme Court of the
United States six to three on the definition of “use” of a firearm “during and in relation to
. . . [a] drug trafficking crime”). These struggles strongly suggest that a uniform


5The structure of the UJI at issue, UJI 14-305, exacerbates the problem. The UJI requires the jury to find
(1) that “[t]he defendant’s conduct caused [the victim] to believe the defendant was about to intrude on
[the victim’s] bodily integrity or personal safety”; and (2) that “[t]he defendant used a . . . deadly weapon.”

 It does not explicitly state what the defendant must have used the deadly weapon at issue for in order
to have committed an aggravated assault.
instruction defining “use” would help juries more effectively perform their critical function
of returning accurate verdicts. 6 Such an instruction would also improve the quality and
efficiency of appellate review, which entails measuring the sufficiency of the evidence
against the instructions the jury received. See Garcia, 

. Without a
definitional instruction, appellate judges must divine an appropriate definition. And the
definition—or, worse, as in this case, multiple definitions—on which appellate judges
rely will not necessarily be the same as the definition—or, again worse, definitions—on
which jurors relied during deliberations. Adopting one context-specific definition of this
elastic word strikes me as an idea worth exploring. 7

Conclusion

{38} I respectfully dissent from the majority’s conclusion that a rational jury could have
found beyond a reasonable doubt that Child “used” the BB gun. I would therefore
reverse Child’s adjudication of delinquency for aggravated assault on a school
employee and remand for an adjudication of assault on a school employee, a lesser-included offense on which the jury was instructed. See State v. Villa, 

, 

, 

 (holding that an appellate court that has vacated a
conviction for insufficient evidence may remand for entry of judgment on a lesser-included offense only if the jury was instructed on the lesser-included offense).

{39} I join the sections of the Court’s opinion declining to dismiss Child’s appeal as
moot and finding no double jeopardy violation.

ZACHARY A. IVES, Judge




6Defining words with common meanings in a uniform instruction is not unprecedented in New Mexico.
Our Supreme Court has approved a uniform instruction defining “possession.” UJI 14-130 NMRA. Like
the word “possession,” the word “use” is central to determinations of criminal liability in a wide variety of
common cases, as I have described. New Mexico would not be alone in defining “use” for juries. See,
e.g., Tenth Circuit Pattern Instruction 2.45 (2018) (defining “use” for purposes of 

(c)(1)(A)
(2018), which prohibits knowingly using a firearm during and in relation to a drug trafficking crime or crime
of violence). By citing this instruction as an example, I do not imply that its content, which is tailored to a
particular federal offense, would fit New Mexico’s aggravated assault offenses.
7Our appellate courts have often rejected arguments that district courts erred by failing to give
instructions defining terms with common meanings. See, e.g., State v. Munoz, 

, ¶¶ 23-
26, 139 N.M.106, 

 (holding that the court did not err in refusing a definitional instruction on
“protracted period of time”). But, in my view, whether such an argument regarding the definition of “use”
would have any merit in an imagined appeal is not the appropriate question when considering adoption of
a uniform instruction defining “use.” I would ask instead whether experience teaches that adopting a
uniform instruction would make our system function more justly. See UJI 14-130 NMRA comm. cmt. (“The
committee recognizes that experience under the UJI Criminal may indicate that additional definitions
should be included[.]”).