State v. Baier

Decision Date27 December 2022
Docket NumberA-1-CA-40530
PartiesSTATE OF NEW MEXICO, Plaintiff-Appellee, v. KRISTOPHER BAIER, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
KRISTOPHER BAIER, Defendant-Appellant.

No. A-1-CA-40530

Court of Appeals of New Mexico

December 27, 2022


UNPUBLISHED OPINION

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY Daylene Marsh, District Judge

Hector H. Balderas, Attorney General Santa Fe, NM Meryl E. Francolini, Assistant Attorney General Albuquerque, NM for Appellee

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

MEMORANDUM OPINION

KRISTINA BOGARDUS, JUDGE

{¶1} This matter was submitted to this Court on Defendant's brief in chief, pursuant to the Administrative Order for Appeals in Criminal Cases from the Second, Eleventh, and Twelfth Judicial District Courts in In re Pilot Project for Criminal Appeals, No. 2022-002, effective November 1, 2022. Following consideration of the

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brief in chief, the Court assigned this matter to Track 2 for additional briefing. Now having considered the brief in chief, answer brief, and reply brief, we reverse Defendant's conviction of aggravated burglary based upon fundamental instructional error and affirm the remainder of the district court's judgment for the following reasons.

{¶2} Defendant's first issue on appeal asserts fundamental error in the failure to instruct the jury that in order to convict of aggravated burglary, it had to determine whether Defendant was armed with a deadly weapon at the time of the offense alleged. [BIC 7] The approved instruction for that offense allows a jury to be instructed by alternative means, depending upon whether or not the allegations involve a per se deadly weapon, as defined at NMSA 1978, Section 30-1-12(B) (1963). If a per se deadly weapon is involved, the relevant instruction requires only a finding that "[t]he defendant was armed with a," inserting the name of the weapon at issue. UJI 14-1632 NMRA. Although the statutorily enumerated weapons are deadly weapons as a matter of law, "[i]f the item is not specifically listed, the question of whether the object is a deadly weapon should be given to the jury to decide." State v. Traeger, 2001-NMSC-022, ¶ 12, 130 N.M. 618, 29 P.3d 518. In that circumstance, the approved instruction requires a finding that "[t]he defendant was armed with an instrument or object which, when used as a weapon, could cause death or very serious injury." UJI 14-1632, use note 3.

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{¶3} The evidence in this case suggests that Defendant went into a house by using a pocketknife to open a locked door. [BIC 3-4; AB 2] A pocketknife is not a deadly weapon as a matter of law, because Section 30-1-12(B) "neither refers to a pocketknife in particular nor to all...

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