October 1, 2019- State of New Mexico v. Zachariah G., No. A-1-CA-37584

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1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____ _
3 Filing Date: October 1, 2019
4 NO. A-1-CA-37584
5 	STATE OF NEW MEXICO,
6 	Plaintiff-Appellee,
7 V.
8 ZACHARIAH G.,
9 	Child-Appellant.
10 	APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
11 	Fred T. Van Soelen, District Judge
12 Hector H. Balderas, Attorney General
13 	Santa Fe, NM
14 Jane A. Bernstein, Assistant Attorney General
15 	Albuquerque, NM
16 	for Appellee
17 	Bennett J. Baur , Chief Public Defender
18 	Kathleen T. Baldridge, Assistant Appellate Defender
19 	Santa Fe, NM
20 	for Appellant
Court of Appeals of New Mexico
Filed 10/1/2019 9:24 AM

1 	OPINION
2 VANZI, Judge.
3 	{t} 	Zachariah G. (Child) appeals his adjudication of delinquency for committing
4 aggravated assault with a deadly weapon upon a school employee, in violation of
5 NMSA 1978, Section 30-3-9(C) (1989), and unlawful carrying of a deadly weapon
6 on school premises, in violation ofNMSA 1978, Section 30-7-2.l(A) (1994). We
7 conclude that there is substantial evidence that Child "used" a deadly weapon in his
8 assault. We also conclude that Child 's adjudication does not violate double jeopardy.
9 Accordingly, we affirm.
10 BACKGROUND
11 	{2} 	The facts of this case are undisputed. One morning, the principal of Marshall
12 Middle School in Clovis, Todd Morris, learned that Child, a twelve-year-old in the
13 	sixth grade, had some sort of a weapon on campus. Morris located Child in the
14 hallway and escorted Child back to his office. As they were walking back to Morris ' s
15 	office, Child kept "fumbling in the front area of his waistband." When they reached
16 his office, Morris had Child empty his pockets in accordance with the limited scope
17 	of search school officials were permitted to conduct. Among other items, Child
18 	removed a CO 2 cartridge from his pockets, which Morris knew was commonly used
19 with BB guns (also referred to as an air pistol). At that point, Morris also noticed a
20 	bulge in Child's waistband that "was not consistent with anything that was normal."

1 When asked what he had in his pant s, Child refused to reveal the object and told
2 Morris that it was hi s "dick." 1 Although a security officer was present, Morris was
3 feeling insecure and had his secretary call for police assistance. While they were
4 waiting fo r the police to arrive, Child asked Morris the following questions: "What
5 would happen if somebody shot up the school?" "Are you afraid to die?" and "How
6 would you feel if a twelve-year-old shot you?" Child' s questions made Morris "feel
7 very unsecure." However, Child never told Morris that he had a gun, nor did Child
8 remove the object from his waistband or gesture as ifhe had a gun. Once the officers
9 arrived, they searched Child and found a BB gun in his pants that resembled an actual
10 	firearm.
11 	{3} 	The State filed a delinquency petition charging Child with aggravated assault
12 with a deadly weapon upon a school employee and unlaw ful carrying of a deadly
13 	weapon on school premises. After a jury found that Child committed the crimes
14 charged, the district court adjudicated Child a delinquent child pursuant to NMSA
15 	1978, Section 32A-2-3(B) (2009, amended 2019), and ordered Child to complete a
16 residential treatment program. Additionally, the district court imposed a one-year
17 	term of probation. This appeal followed.
'Child' 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."
2

1 DISCUSSION
2 	{4} 	On 	appeal, 	Child 	raises 	two 	arguments. 	First, 	Child 	argues 	there 	was
3 insufficient evidence that he "used" a deadly weapon. Second, Child argues that his
4 adjudication of delinquency for aggravated assault with a deadly weapon upon a
5 school employee and unlawful carrying of a deadly weapon on school premises
6 violates double jeopardy. We address both of Child's arguments.
7 Mootness
8 {S} 	As a preliminary matter, we first address the State 's argument that Child's
9 appeal is moot. The State argues that we should dismiss Child' s appeal because there
10 	is no longer an active controversy, as Child's term of probation has ended. Generally,
11 	appellate courts will not decide moot cases. Gunaji v. Macias , 2001-NMSC-028, ,r 9,
12 	130 N.M. 734, 31 P.3d 1008. "A case is moot when no actual controversy exists,
13 	and the court cannot grant actual relief." Id. (internal quotation marks and citations
14 omitted). Notwithstanding this general rule, appellate courts may exercise their
15 	discretion to review moot cases that present "issues of substantial public interest or
16 which are capable of repetition yet evade review." Id. ,r 10. In order for an issue to
17 be capable of repetition yet evading review, it must be likely to arise in a future
18 	controversy. Id. ,r 11. Under our state mootness doctrine, unlike its more restrictive
19 	federal counterpart, the parties' identities are irrelevant. Id. Our Court has previously
20 applied this exception to reach issues in children's court cases because such cases
3

1 often involve short-term commitments. Se e, e. g., State v. Jo se S. , 2005-NMCA-094,
2 i17, 138 N.M. 44, 116 P.3d 115; State v. Sergio B., 2002-NMCA-070, i111 , 132
3 N.M. 375 , 48 P.3d 764.
4 	{6} 	Child argues that this case falls within one of the exceptions to mootness
5 because it presents issues capable of repetition yet evading review. Additionally,
6 Child argues that this case falls within another exception to mootness for cases
7 presenting issues of substantial public interest. We agree with Child. The State
8 argues that Child's case does not fall within this exception because, "rather than
9 rais[ing] general procedural or jurisdiction issues, it involves narrow questions that
10 are specific to 	[Child's] case and not capable of repetition." In support of its
11 	argument, the State cites State v. Justin C. , No. A-1-CA-36176, mem. op. ,i 7 (N.M.
12 	Ct. App. Sept. 5, 2018) (non-precedential), in which our Court distinguished that
13 	case from Jose S. 	and Sergio B., stating "that [Ju stin C.] does not raise general
14 procedural 	or jurisdictional issues capable of repetition in the review of other
15 juvenile dispositions." However, Justin C. is an unpublished memorandum opinion,
16 which has no precedential value. See Rule 12-405(A) NMRA. Moreover, we do not
17 read Jose S. and Sergio B. as requiring Child to raise only "general procedural or
18 jurisdictional" issues in order to present issues capable of repetition yet evading
19 review. Rather, the holdings of Jose S. and Sergio B. rest on the short-term nature of
20 	dispositions inherent to the Children ' s Code. See Jose S. , 2005-NMCA-094, ,i 7
4

l 	("[B]ecause of the short time frames for 	Children's Code dispositions and the
2 sometimes lengthy time for disposition of general calendar cases on appeal, such
3 cases can evade review." (emphasis added)); Sergio B., 2002-NMCA-070, il 11
4 ("Many children's court cases will involve short-term commitments of one year or
5 	less which could expire before the case was fully briefed before this Court or our
6 Supreme Court1 and thus these issues would evade review unless this exception was
7 invoked." (emphasis added) (citing NMSA 1978, § 32A-2-19(B) (1996, amended
8 2009))). Indeed, in Sergio B., we stated, "[The c]hild also argues ... that there was
9 insufficient evidence to support the [district] court's judgment. Th[is] issue[] [is]
10 also 	capable 	of repetition." 	2002-NMCA-070, 	il 11. 	Thus, 	appeals 	from 	the
11 	children's court- 	no matter the specific issues raised-generally fall within the
12 exception for issues that are capable of repetition yet evading review simply because
13 	of the nature of children's court sentences. Cases from other contexts illustrate that
14 the deciding factor is the relatively short length of the appellants' sentences, not the
15 	specific issues that they raise on appeal. See State ex rel. Children, Youth & Families
16 Dep 't v. Amanda H , 2007-NMCA-029, ilil 17-18, 141 N.M. 299, 154 P.3d 674
17 	(holding that a mother's appeal from an adjudication of neglect or abuse challenging
18 	the sufficiency of the evidence fell 	within the exception for cases capable of
19 	repetition yet evading review because "[ m]any of these adjudications may involve
20 	only short-term deprivations of custody and district court oversight of treatment
5

1 plans" ). Thus, while the issues that Child raises are not "general or procedural," they
2 are capable of repetition and evasive of review.
3 {7} 	Child also argues that this case presents an issue of substantial public interest
4 because- 	as we discuss below---our Courts have not addressed what constitutes
5 "use" of a deadly weapon in the course of an assault, which is a question that will
6 most likely recur in the future. See State v. Jones, 1998-NMCA-076, ,-r 15, 125 N.M.
7 556, 964 P.2d 117 ("In determining whether the requisite degree of public interest
8 exists to prevent dismissal on mootness grounds, we consider among other factors
9 	.. . the desirability of an authoritative determination for future guidance of public
10 	officers, and the likelihood that the question will recur in the future."). We agree.
11 	Accordingly, we exercise our discretion to decide Child' s appeal despite his term of
12 probation having ended.
13 	Sufficiency of the Evidence
14 	{8} 	Child challenges the sufficiency of the evidence supporting the jury' s finding
15 	that he committed aggravated assault with a deadly weapon on a school employee.
16 "The test for sufficiency of the evidence is whether substantial evidence of either a
17 	direct or circumstantial 	nature exists to 	support a verdict 	of guilty beyond a
18 	reasonable doubt with respect to every element essential to a conviction." State v.
19 Largo, 2012-NMSC-015 , ,-r 30, 278 P.3d 532 (internal quotation marks and citation
20 omitted). "Substantial evidence is relevant evidence that a reasonable mind might
6

1 accept as adequate to support a conclusion." Id. 	(internal quotation marks and
2 citation omitted). "In reviewing whether there was sufficient evidence to support a
3 conviction, we resolve all disputed facts in favor of the [s]tate, indulge all reasonable
4 inferences in support of the verdict, and disregard all evidence and inferences to the
5 contrary." Id. 	(internal quotation marks and citation omitted). "Jury instructions
6 become the law of the case against which the sufficiency of the evidence is to be
7 measured." State v. Garcia, 2009-NMCA-107, if 21,147 N.M. 150,217 P.3d 1048
8 (internal quotation marks and citation omitted). To the extent Child's argument
9 implicates questions of statutory interpretation, our review is de novo. See State v.
10 Neatherlin, 2007-NMCA-035, if 8, 141 N.M. 328, 154 P.3d 703.
11 	{9} 	New Mexico defines assault, in relevant part, as "any unlawful act, threat or
12 	menacing conduct which causes another person to reasonably believe that he is in
13 	danger of receiving an immediate battery[.]" NMSA 1978, § 30-3-1 (B) (1963). The
14 offense is aggravated when it is committed with a deadly weapon. State v. Branch,
15 	2018-NMCA-031, if 12,417 P.3d 1141; see NMSA 1978, § 30-3-2(A) (1963). Here,
16 	Child was charged with a specific form of aggravated assault on a school employee,
17 	which is defined, in pertinent part, as "unlawfully assaulting or striking at a school
18 	employee with a deadly weapon while he is in the lawful discharge of his duties[.]"
19 	Section 	30-3-9(C)(l ). 	Consistent 	with 	UJI 	14-355 	NMRA, 	the 	district 	court
7

1 instructed the jury that, in order to find that Child committed aggravated assault with
2 a deadly weapon, it had to find beyond a reasonable doubt that:
3
4
5
6
7
8
9
10
11
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[.]
12 {10} 	Child does not challenge the first three elements that the BB gun constituted
13 	a deadly weapon but argues that the State did not present sufficient evidence that he
14 "used" the 	BB 	gun because he " never brandished 	or retrieved 	[the BB 	gun],
15 	motioned toward [the BB gun,] or gestured as though he had [the BB gun]." We
16 disagree.2
17 	{11} 	Neither 	the 	Criminal 	Code 	nor the 	uniform jury 	instructions 	provide 	a
18 	definition for the term " use " within the context of assault with a deadly weapon. Nor
19 does it appear that our courts have had the opportunity to define that term in this
20 	context. This Court, however, has defined the term "use" within the context of our
2 We 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, 2009-NMCA-107, i121.
8

1 firearm 	enhancement 	statute penalizing 	defendants 	for using a firearm 	in 	the
2 commission of a felony. See NMSA 1978, § 3 l-l 8-16(A) (1993) (providing for an
3 increase to the basic sentence "[ w ]hen a separate finding of fact by the court or jury
4 shows that a firearm was used in the commission of a noncapital felony"). In State
5 v. Trujillo, 1978-NMCA-041, ,r,r 1, 10, 91 N.M. 641, 578 P.2d 342, the defendant
6 was convicted of several counts of aggravated assault and battery and received an
7 enhanced sentence for each count for using a firearm in the commission of the
8 underlying felonies. On appeal, the defendant challenged the sentence enhancement
9 for one of the batteries in which he clubbed a victim with the firearm. Id. ,r 11. The
10 	defendant claimed, "[T]he Legislature intended to increase the sentence only when
11 	a firearm is 	'used' 	in accordance with its intended purpose, the shooting of a
12 projectile or placing persons in fear of the shooting of a projectile, in order to
13 	accomplish 	a crime." Id. 	(internal 	quotation 	marks 	omitted). 	In 	rejecting this
14 argument, we cited with approval the following passage from People v. Chambers,
15 	498 P.2d 1024, 1027-28:
16
17
18
19
20
21
22
23
24
25
By employing the term 'uses' instead of 'while armed' the [l]egislature
requires something more than merely being armed. One who is armed
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
9

1
2
3
4
'make instrumental to an end or process,' and to 'app ly 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.
5 (Citations omitted.)
6 	{12} 	We 	similarly concluded 	that "[t]he 	obvious 	intent 	of the New 	Mexico
7 Legislature [in enacting the firearm enhancement statute] was to deter the use of
8 firearms in committing felonies; consistent with that intent, 'use' should be broadly
9 construed." 	Trujillo, 	1978-NMCA-041 , 	,r 14. 	Consequently, 	we 	held 	that 	the
10 	defendant's use of the firearm fell within the meaning of the firearm enhancement
11 	statute. Id.
12 	{13} 	One year later, in State v. Chouinard, 1979-NMCA-145, ,r 5, 93 N.M. 634,
13 	603 P.2d 744, we again addressed the meaning of "use" within the context of the
14 firearm enhancement statute and held that the defendant must do more than simply
15 	possess a firearm. In that case, the defendant and a codefendant were arrested after
16 selling cocaine to an undercover agent. Id. ,r 3. The state charged the defendant with,
17 	inter alia, using a firearm in the trafficking of cocaine because he and his codefendant
18 	had pistols in their belts and vehicle. Id. The district court dismissed the firearm
19 enhancement count because "[n]either defendant ever drew or pointed his gun at the
20 police officers at any time." Id. 	The state appealed the dismissal of the firearm
21 	enhancement count. Id. ,r 1. This Court acknowledged that we construed the term
22 "use" broadly in Trujillo to include the use of a gun as a club but we declined to
10

1 "stretch the meaning of 'use' to include 'non-use.'" Chouinard, 1979-NMCA-145,
2 ,r 5. We concluded that "[t]he use of a firearm is something beyond mere possession
3 of it." Id. ,r 5. As a result, we held that the defendant did not "use" the firearm
4 because "the [s]tate d[id] not contend that either defendant ever showed his gun or
5 threatened to use it during the alleged sale of cocaine[.]" Id. ,r 8.
6 {14} 	Neither of these cases defined the term "use" within the context of assault
7 with a deadly weapon; however, we find their analyses instructive. Similar to the
8 firearm enhancement statute discussed in Trujillo and Chouinard, the purpose of the
9 aggravated assault statutes is to deter the use of deadly weapons. See State v.
10 Rodriguez, 1992-NMCA-035, ,r 17,113 N.M. 767,833 P.2d 244 ("The aggravated
11 	assault statute is aimed at deterring aggression against other people in which the use
12 	of deadly weapons is involved."). Although we construe the term "use" broadly to
13 	effect that purpose, cf Trujillo, 1978-NMCA-041 , ,r 14, we do not construe the term
14 so broadly as to encompass non-use or mere possession of a deadly weapon, see
15 	Chouinard, 1979-NMCA-145, ,r 5." 'Use' means, among other things, 'to carry out
16 a purpose or action by means of,' to 'make instrumental to an end or process,' and
17 	to 'apply to advantage.'" Trujillo, 1978-NMCA-041, ,r 12 (quoting Chambers, 498
18 	P.2d at 1027-28); see also 	Use, 	Black's Law Dictionary 	1776 (10th ed. 2014)
19 	(defining "use," in relevant part, as "[t]o employ for the accomplishment of a
11

1 purpose; to avail oneself of'). While we recognize this is a close case, we conclude
2 that Child's "use" of the BB gun falls within this definition.
3 	{ts} 	Contrary to Child's assertions, this is not a situation where Child merely
4 possessed the BB gun. While Child did not pull out, motion toward, or tell Morris
5 that he had the gun, it was nonetheless instrumental and applied to Child's advantage
6 in his threatening of Morris. The jury could reasonably infer that Child knew Morris
7 was aware that Child had some sort of weapon when Morris escorted him to his
8 office, asked him to empty out his pockets, and inquired about the bulge in his pants.
9 Additionally, the jury could infer that Child knew Morris had reason to believe that
10 	Child had some sort of gun because Child removed a CO2 cartridge from his pockets,
11 	which Morris testified was commonly used with BB guns and because Child refused
12 	Morris's request that he remove the object. Capitalizing on Morris 's awareness of
13 	the bulging object, later revealed to be a BB gun, Child asked Morris menacing
14 questions while they waited for the police, including: "What would happen if
15 	somebody shot up the school?" "Are you afraid to die?" and "How would you feel
16 	if a twelve-year-old shot yo u?" Unlike the defendant in Chouinard, who did not
17 	threaten to use his firearm, 	1979-NMCA-145, ,r 8, Child essentially threatened
18 	Morris with the gun through these pointed questions. Indeed, when the prosecutor
19 asked Morris if he had to see the weapon to be apprehensive about Child using it,
20 Morris testified, "No ma'am, not after those statements. He kept building on those
12

1 statements. The statements that he kept making . . . led me to that[.]" A reasonable
2 juror could have determined that the BB gun was instrumental to Child's assault
3 because, without the BB gun bulging from Child's pants- 	which Child knew Morris
4 was aware of-Child's menacing questions would not have carried the same threat
5 of imminent harm to Morris. In other words, Child "used" the BB gun to transform
6 his questions from possibly hypothetical to real threats, thereby instilling greater fear
7 in his victim. We conclude that substantial evidence supported the jury's finding that
8 Child "used" the BB gun.
9 {16} 	Child argues that our case law "seems to suggest that 'use ' of a deadly weapon
10 	in the context of threatening or menacing conduct means, at the very least, displaying
11 	the weapon in a rude, insolent[,] or angry manner." But none of the cases Child cites
12 addressed the question of what constitutes "use" of a deadly weapon because the
13 	parties did not dispute the issue in light of the unquestionable ways the defendants
14 used the weapons. See State v. Herrera, 2015-NMCA-116, ,r 16 , 362 P.3d 167
15 	(affirming conviction where the defendant held a knife to the victim's throat and told
16 the victim that he was going to kill him); State v. Wiseley , No. 32,088, mem. op. ,r 30
17 	(N.M. Ct. App. Feb. 10 , 2014) (non-precedential) (affirming conviction where the
18 	defendant waved around a large piece of glass and threatened the victims with it);
19 State v. Bachicha, 1991-NMCA-014, i-fi-f 2-3 , 13, 15, 111 N.M. 601 , 808 P.2d 51
20 (affirming 	conviction 	where the 	defendant pointed 	a rifle 	at 	several 	victims,
13

1 threatened the victims with the rifle, and shot one victim). While we agree that most
2 cases of aggravated assault with a deadly weapon will involve deadly weapons being
3 used in a more obvious way, as this case demonstrates, an individual can use a deadly
4 weapon in other, more insidious, ways. Cf Smith v. United States, 508 U.S. 223,230
5 (1993) ("That one example of 'use' is the first to come to mind when the phrase
6 'uses ... a firearm' is uttered does not preclude us from recognizing that there are
7 other 'use s' that qualify as well." (omission in original)).
8 Double Jeopardy
9 {17} 	Child next claims that his adjudication of delinquency for both aggravated
10 	assault with a deadly weapon on a school employee and unlawful carrying of deadly
11 	weapon on school premises violates his right to be free from double jeopardy. See
12 U.S. Const. amend. V; N.M. Const. art. II, § 15; State v. Doe, 1977-NMCA-120,
13 	,r,r 1, 3, 91 N.M. 158, 571 P.2d 425 (applying double jeopardy to children's court's
14 adjudication of delinquency). We disagree.
15 	{18} 	Double jeopardy protects against multiple punishments for the same offense.
16 Swafford v. 	State, 	1991-NMSC-043, ,r 6, 	112 N.M. 	3, 810 P.2d 1223. Whether
17 	separate convictions violate double jeopardy is a question of law, which we review
18 	de novo. See State v. Montoya, 2013-NMSC-020, ,r 22, 306 P.3d 426. For double
19 description cases, like the present one, we apply the two-part test set forth 	in
20 	Swafford, 	1991-NMSC-043, 	,r 25. 	First, 	we 	determine 	whether 	the 	conduct
14

1 underlying the offenses is unitary. Id . Conduct is not unitary if "sufficient indicia of
2 distinctness" separate the illegal acts. Id. ,r 26.
3
4
5
6
7
8
[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.
9 State v. Barrera, 2001-NMSC-014, ,r 36, 130 N.M. 227, 22 P.3d 1177 (internal
10 	quotation marks and citation omitted). Ultimately, we must decide "whether the facts
11 	presented at trial establish that the jury reasonably could have inferred independent
12 	factual bases for the charged offenses." State v. Quick, 2009-NMSC-015, ,r 8, 146
13 	N.M. 80,206 P.3d 985 (emphasis, internal quotation marks, and citation omitted). If
14 the conduct is unitary, we then "focus [] on the statutes at issue to determine whether
15 	the [L]egislature intended to create separately punishable offenses." Swafford, 1991-
16 NMSC-043, ,r 25. Double jeopardy prohibits multiple punishments in the double-
17 	description context only where the conduct is "unitary" and where the Legislature
18 	did not intend to create separately punishable offenses. Id. ,r,r 9, 25.
19 {19} 	In regard to the first prong, Child argues that he "committed a singular
20 	culpable act- 	he brought [a BB gun] to school and threatened the principal with it."
21 	Child's own argument belies his double jeopardy claim, as he admits that he: (1)
22 brought the BB gun to school and (2) threatened Morris with it. The facts presented
23 	at trial demonstrate that Child's actions were not unitary. Morris testified that he first
15

1 learned that Child had some sort of weapon on campus at approximately 8: 15 a.m.
2 and located Child shortly thereafter in the hallway. At the point that Child crossed
3 onto the school grounds with the BB gun, Child completed the crime of unlawfully
4 carrying a deadly weapon on school 	premises. 	See 	§ 30-7-2.l(A) ("Unlawful
5 carrying of a deadly weapon on school premises consists of carrying a deadly
6 weapon on school premises.");§ 30-7-2.l(B)(l) (defining "school premises" as "the
7 buildings and grounds ... of any public elementary, secondary, junior high or high
8 school"). Child did not assault Morris until after Morris escorted Child back to his
9 office, asked Child to empty his pockets, and called the police. Thus, both time and
10 	location separated Child's acts of bringing the BB gun to school and threatening
11 	Morris with it, and, the two acts were not unitary. See State v. 	Contreras, 2007-
12 NMCA-045, 	,I 21, 	141 	N.M. 	434, 	156 P.3d 725 	("[W]e will 	not 	find 	that a
13 	defendant's conduct is unitary where the defendant completes one of the charged
14 crimes before committing the other."). In addition, the criminal acts were of distinct
15 	quality and nature, affected different victims, and were motivated by different
16 objectives. By carrying the BB gun on campus, Child's actions jeopardized the
17 	safety of everyone at the school. Indeed, Child revealed to the police officers after
18 	his arrest that he was planning to "shoot at large crowds of students or staff while at
19 	school and after any of them would fall down, he would go to them at that point,
16

1 after they were shot with the BB gun, [and] if they fell down he was gonna go over
2 there and snap their necks."
3 	{20} 	Child argues that "[t]here is nothing in the record to suggest that the State
4 attempted to distinguish bringing the weapon to school and using it in a threatening
5 manner." 	As 	noted 	earlier, however, the proper inquiry is "whether the 	facts
6 presented at trial establish that the jury reasonably could have inferred independent
7 factual ba ses for the charged offenses." Quick, 2009-NMSC-015 , ,I 8 (emphasis
8 added) (internal quotation marks and citation omitted). Given the facts here, we
9 conclude that the jury reasonably could have inferred independent factual bases for
10 the charges of aggravated assault with a deadly weapon on a school employee and
11 	unlawful carrying of deadly weapon on school premises. Accordingly, Child ' s
12 adjudication of delinquency premised on the two charges does not violate his right
13 	to be free from double jeopardy. See Swafford, 1991-NMSC-043, ,I 25.
14 	CONCLUSION
15 	{21} 	For the foregoing reasons, we affirm Child ' s adjudication of delinquency.
16 	{22} 	IT IS SO ORDERED.
17

1 VARGAS, Judge (specially concurring).
2 	{23} 	While I concur in the majority opinion, I write separately to agree with the
3 Dissent that New Mexico law would benefit from a more precise definition of the
4 term "use" when considering whether a defendant "used" a deadly weapon in the
5 commission of a crime. Our long-standing, but never-discussed standard set out in
6 	Trujillo, 1978-NMCA-041, ilil 12-14, and further explained in Chouinard, 1979-
7 NMCA-145 , ilil 5-6, 8, defining "use" in the context of a firearm provides limited
8 guidance. This is especially true in those instances when the item identified as the
9 deadly weapon is not a firearm, but an item that is generally not considered to be a
10 weapon. See Dissent Op. il 27 (listing examples of items generally not considered to
11 	be weapons). 	In my view, the standard identified by the dissent in People v.
12 	Granado , 49 Cal. App. 4th 317 (Cal. Ct. App. 1996) and adopted by the California
13 	Supreme Court in People v. Wils on , 187 P.3d 1041 , 1072 (Cal. 2008), see Dissent
14 	Op. il 30, would be a helpful addition to our case law defining "use" in circumstances
15 	when the state charges that a deadly weapon was employed in the commission of a
16 cnme.
17
18
18

1 IVES, Judge (dissenting in part and concurring in part).
2 	{24} 	The significance of this appeal might not be immediately apparent. It is of
3 obvious significance to Child, who argues that his offense was a misdemeanor,
4 assault on a school employee, se e § 30-3-9(B)(2), rather than a felony, aggravated
5 assault on a school employee with a deadly weapon, see§ 30-3-9(C)(l). But Child's
6 appeal also has significance statewide for those accused of a variety of assault
7 offenses, as well as the victims of those offenses. In such cases, the definition of
8 "use" 	will 	impact whether New 	Mexicans are 	convicted 	of misdemeanors 	or
9 felonies. Compare, e.g.,§ 30-3-1 (assault, a petty misdemeanor), w ith§ 30-3-2(A)
10 	(aggravated assault with a deadly weapon, a felony). 	This distinction between
11 	misdemeanor and felony convictions impacts the potential tenn of incarceration. See
12 NMSA 	1978, § 31-19-1 	(1984) (stating that the maximum incarceration is six
13 	months for petty misdemeanor and 364 days for misdemeanor); NMSA 1978, § 31-
14 	18-15(A)(l3) 	(2019) 	(setting 	eighteen-month 	basic 	sentence 	for 	fourth-degree
15 	felonies, including aggravated assault with a deadly weapon); NMSA 1978, § 31-
16 	18-15.1 (G) (2009) (allowing increase in felony sentence of up to one-third of the
17 	basic sentence). Felony convictions also carry serious collateral consequences. See,
18 	e.g. , N.M. Const. art. VII, § l(A) (providing that people convicted ofa felony are
19 	not qualified to vote if restricted by statute); NMSA 1978, § 30-7-16(A)(l), (B)
20 	(2019) (defining criminal offense of possession of a firearm by a felon).
19

1 {25} 	With these high stakes in mind, I write to explain why I think New Mexico
2 should adopt a more precise definition of "use" and to offer such a definition.
3 Applying that definition, I respectfully disagree with my esteemed colleagues'
4 conclusion that the evidence would allow a rational jury to find beyond a reasonable
5 doubt that Child "used" the BB gun. Child never aimed, brandished, revealed,
6 gestured toward, or even mentioned the BB gun, which he kept concealed in his
7 clothing throughout the encounter with Morris. Child used words- 	not the BB
8 gun- 	to commit the assault. This was a delinquent act: misdemeanor assault on a
9 school employee. But it was not felony aggravated assault on a school employee.
10 I. 	The Meaning of "Use"
11 	{26} 	Clearly and precisely defining "use" is, in my view, necessary to decide
12 Child's case and future cases. As the entire panel recognizes, what constitutes "use"
13 	is a question of substantial public interest because it is likely to arise repeatedlY..
14 	Indeed, whether a person has "used" a deadly weapon is a question at the heart of
15 	many cases, including those in which people are accused of aggravated assault. 3
3 Charges 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)(l) (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)(l) (1971); UJI
14-2201 NMRA; UJI 14-2202 NMRA; UJI 14-2203 NMRA, and aggravated assault
on a school employee,§ 30-3-9(C)(l), a sports official, NMSA 1978, § 30-3-9.l(D)
(2001), or health care personnel, NMSA 1978, § 30-3-9.2(C)(l) (2006), with a
deadly weapon, UJI 14-354 NMRA; UJI 14-355 NMRA; UJI 14-356 NMRA.
20

1 {27} 	Defining "use" appropriately is especially important for cases in which people
2 are accused of committing aggravated assaults with deadly weapons based on their
3 "use" of ordinary items, rather than firearms or other items commonly used as
4 weapons. Our Legislature has defined "deadly weapon" to encompass "any weapon
5 which 	1s 	capable 	of 	producing 	death 	or 	great 	bodily 	harm" 	and
6 "weapons with which dangerous wounds can be inflicted[.]" NMSA 1978, § 30-1-
7 	12(B) 	(1963). 	Many 	ordinary 	items-such 	as 	trivets, 	screwdrivers, 	and
8 pocketknives-may qualify as deadly weapons. See State v. Nick R., 2009-NMSC-
9 050, ,r,r 40, 49, 147 N.M. 182,218 P.3d 868. Cases involving such items, which are
10 	not ordinarily used as weapons, can raise an especially difficult question. A few
11 	hypotheticals illustrate the difficulty. Imagine an accused who threatens to harm a
12 victim while holding a trivet during service of a meal; while opening a toolbox with
13 	a screwdriver inside; or shortly after a pocketknife falls from the accused's pocket.
14 Did the accused merely possess the item at the time of the assault, or did the accused
15 	actually "use" the item to facilitate the assault? Similar situations come to mind in
16 the school setting. A child might utter threatening words to a school employee or
17 	fellow student while the child holds or has easy access to a pencil, a drawing
18 	compass, a metal water bottle, or a baseball bat. Such items could be deemed deadly
19 weapons, even though children in schools across our state possess and use them for
20 	legitimate reasons every day. It would be far more difficult to determine whether a
21

1 child who threatened another child in a classroom while holding a pencil "used" the
2 pencil in the assault than it would be to determine whether a child who threatened a
3 classmate while brandishing a firearm "used" the firearm. To correctly distinguish
4 between felony and misdemeanor assaults, New Mexico law should draw the line
5 between use and non-use as clearly and carefully as possible.
6 	{28} 	But our Legislature has not defined "use," and our Supreme Court has not had
7 occasion to discuss 	its meaning. 	Nor does New Mexico have a uniform jury
8 instruction defining the verb. The only New Mexico authorities on the topic are this
9 Court's 1978 opinion in Trujillo and 1979 opinion in Chouinard, both of which
10 relied on the Supreme Court of California's 1972 opinion in Chambers. The majority
11 	opinion 	accurately 	distills 	the 	following 	concepts 	from 	Chambers, 	Trujillo,
12 	Chouinard: ( 1) we apply a number of dictionary definitions of "use"; (2) we construe
13 	the verb broadly; (3) mere possession of a weapon during the commission of an
14 offense is not use; (4) use is more than a bare potential for use; (5) conduct need not
15 	produce physical harm to constitute use; and (6) use can be conduct that produces
16 	fear of harm or force by means or display of a firearm. I do not believe these concepts
17 	define "use" with sufficient precision.
18 	{29} 	Because our precedents are four decades old and rely on an out-of-state case
19 that is nearly half a century old, it seems reasonable to ask whether courts in
20 California or elsewhere have developed more helpful ways of defining what it means
22

1 to "use" a weapon in the commission of an offense. To that end, a majority of the
2 panel requested supplemental briefs on the important question of first impression
3 Child's appeal presents. Those briefs confirm that the law has evolved.
4 	{30} 	Developments in California are of particular interest because we have already
5 adopted its jurisprudence and because California courts have since refined the
6 definition of"use" that we relied on in Trujillo and Chouinard. Child cites Granado,
7 49 Cal. App. 4th 317, in which the defendant challenged his sentencing enhancement
8 for using a firearm. Affirming, the court discussed the meaning of "use" of a firearm,
9 beginning with the Supreme Court of California's decision in Chambers and then
10 	describing subsequent developments. The court explained that use requires broad
11 	construction "to check the magnified risk of serious injury which accompanies any
12 deployment of a gun in a criminal endeavor." Id. 	at 322. However, the court
13 	recognized that "a finding of weapon use is precluded if the defendant's conduct
14 with respect to the weapon appears to be purely incidental to the crime." Id. at 324.
15 	The court noted that, in a prior case, it had held that evidence of firearm use "was
16 	insufficient because, even though the gun was exposed to the victim's view, the
17 exposure was not an act 	in 	furtherance 	of the crime, 	but a mere incident 	of
18 	possession." Id. 	The court explained that "[t]he litmus test" for the distinction
19 between using a gun in the commission of a felony and being armed during the
20 offense is whether the defendant "too[k] some action with the gun in furtherance of
23

1 the commission of the crime[.]" Id. at 324 n.7. lf so, the gun was used. Id. But if"the
2 defendant engaged in no weapons-related conduct, or such conduct was incidental
3 and unrelated to the offense, no 'use' occurred[.]" Id. The court observed that the
4 Supreme Court of California had stated, in yet another case, that displaying a firearm
5 without actually using 	it to 	facilitate 	the commission 	of an offense does not
6 constitute use of the firearm. Id. 	at 324-25. In the Granado 	court 's view, that
7 statement "confirm[ ed] the commonsense requirement of a facilitative, gun-related
8 act before the defendant can be found to have 'used' the gun." Id. at 325 (emphasis
9 omitted). The court concluded that "the jury is entitled to find a facilitative use rather
10 	than an incidental or inadvertent exposure" if"a defendant deliberately shows a gun,
11 	or otherwise makes its presence known[.]"4 Id. The Supreme Court of California has
12 adopted this conclusion as a statement of California law. See Wil son, 187 P.3d 1041,
13 	1072.
14 	{31} 	I agree with California's approach. Adding the principles described above to
15 	New Mexico jurisprudence would assist this Court in correctly analyzing Child's
16 appeal, and it would benefit our appellate and trial courts, the bar, and the public.
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 , 187 P.3d at
1072.
24

1 II. 	The Evidence That Child Used the BB Gun Was Insufficient
2 	{32} 	The 	State's 	evidence 	would . not 	allow 	a 	rational 	jury- 	relying 	on 	an
3 appropriate definition of "use"- 	to find beyond a reasonable doubt that Child used
4 the BB gun to assault Morris. I would therefore hold that the evidence is insufficient
5 to support Child 's conviction for aggravated assault on a school employee.
6 	{33} 	When reviewing the sufficiency of the evidence, our duty is to "supervis[ e]
7 	... the jury' s fact-finding function to ensure that, indeed, a rational jury could have
8 found beyond a reasonable doubt the essential facts required for a conviction." State
9 v. Rojo, 1999-NMSC-001 , ,r 19 , 126 N.M. 438, 971 P.2d 829 (emphasi s, internal
10 	quotation mark s, and citation omitted). We must neither speculate nor "sanction a
11 	view that assumes the worst about human nature" because doing so would conflict
12 	with "an essential message of the presumption of innocence." State v. Mariano R.,
13 	1997-NMCA-018, ,r 7, 123 N.M. 121 , 934 P.2d 315. To affirm, we must be satisfied
14 that the jury "ha[ d] a sufficient evidentiary basis to conclude that the defendant
15 	actually committed the criminal act he is accused of, not just that he may have done
16 it among a range of possibilities or that it cannot be 'ruled out' among other possible
17 explanation s, or even that it is more likely than not." State v. Consaul, 2014-NMSC-
18 030, ,r 70, 332 P.3d 850. Our standard of review is highly deferential in some
19 respects, but we owe no deference on questions of la w, which we review de novo.
25

1 Consol. Elec. Distrib ., Inc. v. Santa Fe Hotel Grp., LLC , 2006-NMCA-005, ,r 7, 138
2 N.M. 781 , 126 P.3d 1145.
3 	{34} 	A question of law- 	the meaning of "use" in the uniform instruction the jury
4 received- 	should drive the analysis in Child 's appeal. The evidence does not prove
5 beyond a reasonable doubt that Child "deliberately show[ ed]" the BB gun to Morris
6 "or otherwise ma[de] its presence known" to him. See Wilson, 	187 P.3d at 1072
7 (internal quotation marks and citation omitted). The State did not present any
8 evidence that Child aimed, brandished, revealed, gestured toward, or mentioned the
9 BB gun. In fact, the evidence showed that Child did the opposite of showing the BB
10 	gun to Morris or otherwise making its presence known to him. Child acted to prevent
11 	Morris from seeing the BB gun or otherwise knowing about its presence. Child kept
12 	the BB gun concealed in his pants. When Morris asked what was in Child 's pants,
13 	Child did not say he had a BB gun. Child's hypothetical questions were menacing,
14 but he never referred to the BB gun in any way, either verbally or physically, when
15 	he asked those questions or at any other point during the encounter. Because Child
16 "did [not] take some action with the [BB] gun in furtherance of the commission of
17 the [assault,]" Granado, 49 Cal. App. 4th at 324 n.7 (emphasis omitted), he did not
18 	"use" the BB gun.
19 	{35} 	I respect but do not share the majority's perspective on this close case. Child's
20 questions did not constitute use of the BB gun because Child did not refer to it, and
26

1 the majority has not identified any other BB-gun-related act that could rationally
2 support a finding of "use" beyond a reasonable doubt. The majority relies heavily
3 on "the gun bulging from Child's pants," Majority Op. ,r 15, but Child took no action
4 to indicate that the item in his pants was a BB gun, a firearm, or any other deadly
5 weapon. 	So the bulge is 	no more than "a mere incident of [his] possession."
6 	Granado, 49 Cal. App. 4th at 324. The majority also relies on the CO2 cartridge,
7 Majority Op. ,r 15, but Child did nothing with respect to the cartridge that supports
8 a reasonable inference that he used the BB gun. Child removed the cartridge from
9 his pockets involuntarily, on Morris's orders, and Child never referred to the CO2
10 cartridge during the encounter. Finally, the majority cites Morris 's trial testimony
11 	that 	he 	was 	apprehensive, 	see 	id., 	but 	whether 	Child 	caused 	Morris 	to 	be
12 apprehensive and whether Child used the BB gun to cause that apprehension are
13 	distinct inquiries. As the jury instruction confirms, the State bore the burden of
14 proving two separate essential elements: that Child "caused [Morris] to believe"
15 	Child was going to harm him and that Child "used" the BB gun. Conflating the two
16 relieves the State of its burden of proving the element of use beyond a reasonable
17 	doubt. Proving what Child caused Morris to believe is no substitute for proving that
18 	Child used the BB gun.
19 	{36} 	Nothing Child said or did indicated that whatever was in his pants would be
20 the means of carrying out his threats. And his threats would have caused Morris "to
27

I 	believe [that Child] was about to intrude on [his] bodily integrity or personal safety,"
2 regardless of whether Child had a BB gun or something else in his pants. I conclude
3 that a rational jury could not find that the evidence proved beyond a reasonable doubt
4 that Child performed "a facilitative, gun-related act." Granado, 49 Cal. App. 4th at
5 325. Child assaulted Morris using words, not the BB gun.
6 	{37} 	By reaching this conclusion, I do not intimate that the jurors in Child' s case
7 were irrational. I find no fault in their work because, in my view, they lacked the
8 tools necessary for the job. The jury instructions required them to decide whether
9 the State proved beyond a reasonable doubt that Child "used" the BB gun, but the
10 jurors never received any instruction defining "use. " 5 It might seem counterintuitive
11 	to define a common, non-technical word such as "use" for juries. However, the
12 meaning of "use" is "elastic" and, as with many common words, "inordinately
13 	sensitive to context." Smith, 508 U.S. at 241, 245 (Scalia, J. , dissenting, joined by
14 	Stevens J. and Souter, J.). As Child' s case and others illustrate, jurists and lawyers-
15 	whose job is to understand what words mean and use them appropriately- 	have
16 	vigorously debated the meaning of "use" in various contexts. Se e, e.g, id. at 225 , 241
5 The structure of the UJI at issue, UJI 14-305, exacerbates the problem. The
UJI requires the jury to find (l) 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." Id. It does
not explicitly state what the defendant must have used the deadly weapon at
issue/or in order to have committed an aggravated assault.
28

1 (dividing the Supreme Court of the United States six to three on the definition of
2 "use" of a firearm "during and in relation to ... [a] drug trafficking crime"). These
3 struggles strongly suggest that a uniform instruction defining "use" would help juries
4 more effectively perform their critical function of returning accurate verdicts.6 Such
5 an instruction would also improve the quality and efficiency of appellate review,
6 which entails measuring the sufficiency of the evidence against the instructions the
7 jury 	received. 	See 	Garcia, 	2009-NMCA-107, 	,r 	21. 	Without 	a 	definitional
8 instruction, 	appellate judges 	must 	divine 	an 	appropriate 	definition. 	And 	the
9 definition- 	or, worse, as in this case, multiple definitions-on which appellate
10 judges rely will not necessarily be the same as the definition- 	or, again worse,
11 	definitions-on which jurors relied during deliberations. Adopting one context-
12 	specific definition of this elastic word strikes me as an idea worth exploring. 7
6 Defining 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 18 U.S.C. § 924(c)(l)(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.
7 0ur 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, 2006-NMSC-005, ,I,I 23-26, 139 N.M.106, 129 P.3d 142 (holding that the
court did not err in refusing a definitional instruction on "protracted period of time" ).
29

1 Conclusion
2 	{38} 	I respectfully dissent from the majority's conclusion that a rational jury could
3 have found beyond a reasonable doubt that Child "used" the BB gun. I would
4 therefore reverse Child's adjudication of delinquency for aggravated assault on a
5 school employee and remand for an adjudication of assault on a school employee, a
6 lesser-included offense on which the jury was instructed. See State v. 	Villa, 2004-
7 NMSC-031, ,i 11, 136 N.M. 367, 98 P.3d 1017 (holding that an appellate court that
8 has vacated a conviction for insufficient evidence may remand for entry of judgment
9 on a lesser-included offense only if the jury was instructed on the lesser-included
10 offense).
11 	{39} 	I join the sections of the Court's opinion declining to dismiss Child's appeal
12 	as moot and finding no double jeopardy violation.
13
14
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[.]").
30