NMSC Defines “Use” of a Deadly Weapon for Assault by Threat Cases

In State v. Zacharia G., a 12-year-old child was convicted of aggravated assault with a deadly weapon on a school employee, which requires that he “use” the deadly weapon. A divided court of appeals affirmed, rejecting Child’s argument that he did not “use” the weapon, which had been concealed in his waistband. The New Mexico Supreme Court affirmed, providing a more detailed definition of “use” for future cases.

Background

When a middle school principal learned that Child might have a weapon on campus, he called Child to his office.  In the office, Morris directed Child to empty his pockets. Child had a CO₂ cartridge, among other items, which Morris recognized as an accessory for a BB gun or an airsoft pistol. Morris noticed an abnormal bulge in Child’s waistband. Morris asked Child what was causing the bulge and to hand over the item. Child refused  and said it was his “dick.” The principal had his staff call the police.

While waiting for the police, Child asked the principal a number of provocative 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?” Eventually, the police arrived and discovered that the object creating the bulge in Child’s waist was a BB gun. A jury found, among other things, that Child had committed the delinquent act of aggravated assault with a deadly weapon on a school employee.

In a fractured opinion, the court of appeals affirmed. The majority held that “use” meant “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.” Applying this definition, it found sufficient evidence to support the conviction. Then-judge Vargas concurred separately. Judge Ives dissented, proposing to rely on California’s definition of “use,” under which Child would not have used the gun. Both Judge Vargas and Judge Ives noted that the law would benefit from a more precise definition of “use.”

Analysis

The primary issue before the Supreme Court was whether the court of appeals had properly construed the term “used” from the jury instruction. The Court reviews this type of question de novo–that is, without deference to the lower courts.

The court of appeals had taken its definition from an earlier New Mexico case. That definition was intended to be sufficiently broad to effectuate the purpose of aggravated assault statutes “to deter the use of deadly weapons” but not so broad “as to encompass non-use or mere possession of a deadly weapon.” On appeal, the State argued for this standard, arguing that where a defendant leverages a victim’s awareness of a readily accessible firearm with verbal threats, a defendant has used the firearm.

Judge Ives had suggested an alternative: that use should require the defendant to take some action with the gun in furtherance of the commission of the crime. On appeal, Child argued for this standard, plus the requirement that a defendant take some “affirmative action” with the deadly weapon.

The Court Adopts the Facilitative Use Concept

The Court began by looking to the purpose of the many statutes, such as the one before it, in which the penalties are increased when the defendant uses a deadly weapon. The purpose for the enhancements is to deter the use of deadly weapons in aggression against others. In furtherance of that purpose, the Court reasoned, it is appropriate to construe the term “use” broadly.

The Court also found that the California cases were instructive. Those cases required a connection between the weapon and the underlying crime. The Court found this particularly important in assault by threat cases, which include threats that cause a person to reasonably believe that they are in danger of immediate battery. In those cases, the legislature has criminalized “the creation of apprehension or fear.”

The Court did not believe that the existing New Mexico law, applied by the majority decision, was sufficiently helpful in the context of threat by assault cases. To aid in the analysis, it created the new concept of “facilitative use”:

A facilitative use of a deadly weapon during an assault—as distinct from incidental exposure or mere possession—may be found where (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 to facilitate the commission of the assault. 

State v. Zacharia G., ¶ 19.

Facilitative use of a deadly weapon in the course of an assault indicates that a defendant has committed assault “with” a deadly weapon. Notably, this definition does not require an “affirmative use” of the weapon, which would fail to capture the way weapons are used in cases like this one involving verbal threats.

Sufficiency

Having cleared up the definition of “use,” the Court moved on to Child’s argument that there was not sufficient evidence to support his conviction. Although the jury instruction contained seven elements, Child only disputed one: whether he had “used” the deadly weapon. Accordingly, the Court merely had to apply the three factors it had just adopted.

First, there was no dispute that a deadly weapon was present (Child had not argued that the BB gun was not a deadly weapon). Second, the principal had reason to know that Child had the weapon: the CO2 cartridge, the bulge, the Child’s questions all gave him reason to know of the gun. Finally, Child used the presence of the weapon in the assault when Child asked the principal how he would feel if he were shot, what would happen if someone shot up the school, and if he was afraid to die.

The court of appeals asked for more clarity on the meaning of “use” in the statute, and the Supreme Court delivered. This opinion should provide a workable framework for future cases involving the use of a weapon, especially in the context of verbal assaults.

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