State v. Zachariah G.
| Decision Date | 18 October 2021 |
| Docket Number | No. S-1-SC-37990,S-1-SC-37990 |
| Citation | 501 P.3d 451 |
| Parties | STATE of New Mexico, Plaintiff-Respondent, v. ZACHARIAH G., Child-Petitioner. |
| Court | New Mexico Supreme Court |
Bennett J. Baur, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.
Hector H. Balderas, Attorney General, Meryl Elizabeth Francolini, Assistant Attorney General, Santa Fe, NM, for Respondent.
{1} When Zachariah G. (Child) was twelve years old, he brought a BB gun to school.1 Although Child did not shoot, point, or brandish the gun, a jury found that he committed the delinquent act of aggravated assault with a deadly weapon on a school employee pursuant to NMSA 1978, § 30-3-9(C)(1) (1989). That delinquent act, along with his delinquent act of unlawfully carrying a deadly weapon on school premises pursuant to NMSA 1978, § 30-7-2.1 (1994), led to his adjudication as a delinquent child.
{2} Child contends that the jury finding that he committed aggravated assault must be reversed because there was not substantial evidence that he "used" the deadly weapon. Relatedly, Child argues that this Court should alter the standard for "use" of a deadly weapon to commit assault that was applied by the Court of Appeals. Child argues that "use" of a deadly weapon in an assault requires "actual use" or "weapons-related conduct."
{3} We agree with Child that the principles governing use of a deadly weapon should be refined but decline to adopt Child's suggested standard. Instead, we hold 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. 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. Accordingly, we affirm.
{4} At Marshall Middle School in Clovis, New Mexico, Principal Morris learned that Child—then twelve years old—had a weapon on campus. Morris located Child in a hallway and escorted Child back to Morris's office. On the way, Morris noticed that Child was "fumbling in the front area of his waistband."
{5} 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."
{6} Feeling insecure, Morris asked his secretary to call the police. While waiting for the police to arrive, Child asked Morris three 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?" The questions and circumstances made Morris insecure and unnerved. A subsequent police search of Child revealed that a BB gun which resembled a firearm was the object creating the bulge in Child's waistband.
{7} Child was adjudicated as delinquent in the district court. The Court of Appeals affirmed that adjudication, with Judge Vargas specially concurring and Judge Ives dissenting. State v. Zachariah G. , 2021-NMCA-036, ¶¶ 1, 23, 24-39, 495 P.3d 537 (2019). The Court of Appeals concluded, in relevant part, that there was substantial evidence to affirm Child's delinquent act of aggravated assault with a deadly weapon because Child "used" the BB gun in the assault. Id. ¶ 15. Child petitioned this Court for a writ of certiorari, requesting that we review the definition of use applied by the Court of Appeals. Child also petitioned for review of the Court of Appeals conclusion that there was substantial evidence that Child committed aggravated assault on Morris "[i]n light of the fact that [Child] did not reference, gesture towards, brandish, aim or reveal" the BB gun. To address these two issues, we granted certiorari.
{8} Child's challenge to the definition of the term use applied by the Court of Appeals raises an issue of statutory construction that we review de novo. State v. Nick R. , 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868. When interpreting statutory language, "[o]ur primary goal is to ascertain and give effect to the intent of the Legislature." Id. "In doing so, we examine the plain language of the statute as well as the context in which it was promulgated, including the history of the statute and the object and purpose the Legislature sought to accomplish." Id. (internal quotation marks and citation omitted).
{9} Child's sufficiency of the evidence challenge requires that we review "whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Baroz , 2017-NMSC-030, ¶ 9, 404 P.3d 769 (internal quotation marks and citation omitted). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Baca , 2019-NMSC-014, ¶ 17, 448 P.3d 576 (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 State, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary." State v. Largo , 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation omitted).
{10} Child challenges whether the Court of Appeals properly construed the jury instruction for Section 30-3-9(C)(1), which defines aggravated assault with a deadly weapon on a school officer as "unlawfully assaulting or striking at a school employee with a deadly weapon while he is in the lawful discharge of his duties." (Emphasis added.) The related uniform jury instruction is UJI 14-355 NMRA. UJI 14-355 interprets the Section 30-3-9(C)(1) requirement that the assault was committed with a deadly weapon by requiring that a deadly weapon was used to commit the assault. The relevant jury instruction in this case was based on UJI 14-355 and, like UJI 14-355, required that a deadly weapon was used . Child does not challenge whether used is an appropriate proxy for with but, instead, contends that the Court of Appeals did not appropriately define used .
{11} The Court of Appeals concluded that in the context of aggravated assault with a deadly weapon, "[u]se 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." Zachariah G. , 2021-NMCA-036, ¶ 14, 495 P.3d 537 (internal quotation marks omitted) (quoting State v. Trujillo , 1978-NMCA-041, ¶ 12, 91 N.M. 641, 578 P.2d 342 ). This standard 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 nonuse or mere possession of a deadly weapon." Zachariah G. , 2021-NMCA-036, ¶ 14, 495 P.3d 537. The special concurrence and dissent both agreed that a more "precise" definition of "use" than that crafted by the majority opinion would be beneficial in the context of assault with a deadly weapon. See id. ¶ 23 (Vargas, J., specially concurring); id. ¶ 25 (Ives, J., dissenting). Toward that end, the dissent suggested refinements to the majority's definition of "use." Id. ¶¶ 26-31 (Ives, J. dissenting).
{12} Drawing on a line of California cases already incorporated into New Mexico law, the dissent suggested a "litmus test" to determine whether a gun is "used" in the commission of a felony. Id. ¶ 30 (Ives, J., dissenting). That proposed test "is whether the defendant took some action with the gun in furtherance of the commission of the crime." Id. (Ives, J., dissenting) (brackets, internal quotation marks, and citation omitted). Under this test, "use" requires a "facilitative, gun-related act." Id. (Ives, J., dissenting) (internal quotation marks and citation omitted). Thus, to the dissent, when a "defendant's conduct with respect to the weapon appears to be purely incidental to the crime," a defendant has not "used" the weapon Id. (Ives, J., dissenting) (internal quotation marks and citation omitted). However, a jury may "find a facilitative use rather than an incidental or inadvertent exposure if a defendant deliberately shows a gun, or otherwise makes its presence known," or "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. ¶ 30 & n.4 (Ives, J., dissenting) (brackets, internal quotation marks, and citation omitted). Although these concepts of use were discussed in the context of firearm sentencing enhancement, id. ¶ 30 (Ives, J., dissenting), the dissent would also apply them to the "use" of a deadly weapon. Id. ¶ 31 (Ives, J., dissenting) ().
{13} In this Court, Child advocates for the formulation of use suggested by the Court of Appeals dissent and also proposes a related jury instruction. In relevant part, Child's proposed jury instruction states that:
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