State v. Riddall

• Decision Date: 26 March 1991
• Docket Number: No. 11928,11928
• Citation: 1991 NMCA 33,811 P.2d 576,112 N.M. 78
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. James RIDDALL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 576

811 P.2d 576

112 N.M. 78

STATE of New Mexico, Plaintiff-Appellee, v. James RIDDALL, Defendant-Appellant.

No. 11928.

Court of Appeals of New Mexico.

March 26, 1991.

Certiorari Denied May 8, 1991.

[112 N.M. 79] Tom Udall, Atty. Gen., Elizabeth Major, and Max Wilson Shepherd, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Susan Gibbs, Appellate Defender, and Amme M. Hogan, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant appeals his convictions of unlawful possession of a switchblade and unlawful carrying of a deadly weapon. On appeal, defendant has raised five issues. The first two concern NMSA 1978, Section 30-7-8 (Repl.Pamp.1984), which makes the possession of "switchblades" unlawful. They are: (1) whether a butterfly knife is a switchblade within the meaning of that section, and (2) whether Section 30-7-8 is unconstitutionally vague. The other issues raised on appeal include (3) whether the trial court erred in allowing a police officer to demonstrate the knife as part of the state's case under Section 30-7-8, (4) whether the trial court erred in joining the misdemeanor charges with the felony charge, and (5) whether there was sufficient evidence to convict defendant of unlawfully carrying a deadly knife, pursuant to NMSA 1978, Section 30-7-2 (Repl.Pamp.1984). On the court's own motion, we asked the parties to brief the additional issues of whether defendant's conviction for unlawful carrying of deadly knife merged with his conviction for unlawful possession of a switchblade and whether that issue might be raised for the first time on appeal. We now affirm defendant's conviction for possession of a switchblade contrary to Section 30-7-8, but we reverse as to his conviction for unlawfully carrying a deadly knife contrary to Section 30-7-2, and remand with instructions to enter an amended judgment in conformity with this opinion.

FACTS.

Defendant, a twenty-five-year-old man, was a clerk at an Allsup's store in Roswell. On May 23, 1989, at about 6:00 or 6:30 p.m., Frank Montoya, age twelve, and his sister Reynalda, age fifteen, came into the store. When Reynalda asked for a pack of cigarettes, defendant, recognizing her as a previous customer, said that he wanted a pack of kisses and pointed to his cheek. According to defendant, he intended this as a joke. Defendant says Frank then threatened to come over the counter. Defendant took a butterfly knife out of his pocket and opened it. He pointed the knife upward. Frank asked if it was a butterfly knife. Defendant told him that it was and held it out for him to see. Defendant then put the knife back in his pocket and Frank and Reynalda left. Apparently they told family members about the incident. The family returned to the store and two older brothers threatened defendant. The police were called. The family told the police essentially the same story as did defendant. When defendant produced the knife, an officer retained it, saying that it was prohibited by local ordinance. At that time, defendant was not charged with any offense because the officer was not sure whether the knife was a switchblade. Subsequently, defendant was charged with aggravated assault, a fourth degree felony, as well as unlawful possession of a switchblade and unlawfully carrying a deadly weapon, both of which are petty misdemeanors. At trial before a jury, defendant was acquitted of the felony charge but convicted on both of the other charges.

WHETHER A BUTTERFLY KNIFE IS A "SWITCHBLADE" WITHIN THE MEANING OF SECTION 30-7-8.

A number of states have prohibited the possession of "switchblades." Some purport to define a switchblade knife narrowly. See, e.g., Nev.Rev.Stat.Ann. Sec. 202.350(5)(d) (Michie 1987). Others define a switchblade knife broadly. See, e.g., Haw.Rev.Stat. Sec. 134-52 (1985); Tex.Penal Code Ann. Sec. 46.01(11) (Vernon 1989); Wis.Stat.Ann. Sec. 941.24 (West 1982). Still others prohibit the switchblade knife as a particular kind of dangerous weapon and at the same time prohibit a second type of knife, defined broadly, as a more general kind of dangerous weapon. See, e.g., Kan.Crim.Code Ann. Sec. 21-4201 (1988); Me.Rev.Stat.Ann. tit. 17-A, Sec. 1055(1) (1983); Wash.Rev.Code Ann. Sec. 9.41.250 (1977). New York is the only state we have been able to identify that lists a number of specific types of knives and defines each individually. See N.Y.Penal Law Sec. 265.00 (Consol.1984).

In reviewing the statutes of other jurisdictions, we note that certain language appears in the statutes of those jurisdictions that define a switchblade broadly as well as those that prohibit the switchblade knife as a particular kind of dangerous weapon and at the same time prohibit a second type of knife, defined broadly. In both kinds of statutes, the phrase "any knife having a blade which opens or falls or is ejected into position by the force of gravity or by any outward or centrifugal thrust or movement," or something quite similar, recurs. Compare Tex.Penal Code Ann. Sec. 46.01(11) (" 'Switchblade knife' means any knife that has a blade that ... (B) opens or releases a blade from the handle or sheath by the force of gravity or by the application of centrifugal force") with Kan.Crim.Code Ann. Sec. 21-4201 (defining "[u]nlawful use of weapons" as "knowingly * * * possessing * * * any knife having a blade that opens or falls or is ejected into position by the force of gravity or by an outward, downward or centrifugal thrust or movement"). The same language appears in Section 30-7-8. However, we have not been able to locate case authority in any of the jurisdictions with similar statutes.

In interpreting a statute, an appellate court is obligated to give the words used by the legislature their plain meaning. See Smith v. Village of Corrales, 103 N.M. 734, 713 P.2d 4 (Ct.App.1985). In understanding the legislature's meaning, however, it is equally important to consider the intended purposes of the provision in which the words appear. See Miller v. New Mexico Dep't of Transp., 106 N.M. 253, 741 P.2d 1374 (1987). In this case, the words used and the intended purpose of the provision in which the words are contained indicate that the legislature intended to include a "butterfly knife" within the term "switchblade knife."

Section 30-7-8 provides as follows:

Unlawful possession of switchblades consists of any person * * * possessing, displaying, offering [or] selling * * * any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife, or any knife having a blade which opens or falls or is ejected into position by the force of gravity or by any outward or centrifugal thrust or movement.

Defendant makes several arguments that a butterfly knife is not a switchblade within the meaning of Section 30-7-8. First, he argues that Section 30-7-8 applies only to knives of which the blade moves rather than the handle. He contends that with the knife in this case it is the handle that moves, not the blade. This is only partially correct.

The jury saw a demonstration of how the knife opens. This court also saw a demonstration of how the knife opens at oral argument.

To open a butterfly knife like the one in this case, the wielder begins by holding both halves of the handle. The point is toward the wielder, although the blade and point are not exposed. To open the knife, the wielder releases one of the halves of the handle and through a combination of gravity and centrifugal force, the latter generated by a movement of arm or wrist, the wielder swings that half of the handle around until it meets the other half. However, these forces also swing the blade into position. Once the maneuver is complete, the blade is exposed and pointing away from the wielder. Thus, the blade of the butterfly knife is one that "opens or falls or is ejected into position by the force of gravity or by any outward or centrifugal thrust or movement." Id.

It is of no legal significance that a combination of gravity and centrifugal force is required. The phrase "any outward or centrifugal thrust or movement" suggests a legislative intent to include knives that require a combination of forces to operate.

In People v. Quattrone, 211 Cal.App.3d 1389, 260 Cal.Rptr. 44 (1989), the California court addressed an argument that is very similar to the interpretation of the statute advanced by defendant. The California statute outlawed knives with blades that " 'can be released automatically * * * by any type of mechanism whatsoever.' " Id. at 1394, 260 Cal.Rptr. at 44 (quoting Ca.Pen.Code, Sec. 653k (1988)). One of the knives involved in Quattrone was a "Tekna sheath-retracting knife." This is a fixed-blade knife; the blade does not fold into, or even move relative to, the handle. As the court described it, "A two-part plastic sheath protects the blade. The sheath is spring activated and retracts into the handle when the user pushes a button at the bottom of the handle." Id. at 1394, 260 Cal.Rptr. at 45. Nevertheless, the court concluded that "it is of no legal significance that the handle is pulled away from the blade rather than the other way around." Id. at 1398-99, 260 Cal.Rptr. at 48.

The California court also thought it was of no legal significance that a knife might require several steps to operate, as does a butterfly knife, because "it [was] the speed and ease of operation that concerned the Legislature." Id. at 1398, 260 Cal.Rptr. at 47. We agree with the California court's analysis.

Defendant also argues that "if the legislature had intended to include butterflies in the definition of a switchblade, it would have included the knife by its known name, or by not specifying that the blade is what opens." In part, this argument rests on a premise that we have just rejected. What remains is the assertion that if the legislature had intended to...