dissenting.
I respectfully disagree with the majority’s affirmance of defendant’s conviction under NMSA 1978, Section 30-7-8 (Repl. Pamp.1984). I would hold that a butterfly knife is not a switchblade knife under the provisions of that statute. I would thus reverse defendant’s conviction of violating Section 30-7-8 (unlawful possession of a switchblade knife). Additionally, because the state pursued defendant’s conviction under NMSA 1978, Section 30-7-2 (Repl. Pamp.1984) (unlawful carrying of a deadly weapon) on the premise that defendant’s knife was a switchblade knife and thus failed to produce evidence adducing that the knife could inflict great bodily harm, I would hold that there was insufficient evidence to convict defendant under Section 30-7-2 as well. For this reason, the merger issue need not be addressed.
THE CONVICTION UNDER SECTION 30-7-8
The bases for my disagreement with the majority can be simply stated. For the most part, I do not take issue with much of the majority’s discussion. However, its discussion does not go far enough — it does not sufficiently address some important aspects of defendant’s arguments on appeal. Among other authority, defendant relies on two of this court’s prior decisions that, in my view, dictate the course we should take in this appeal. Those cases are State v. Bybee, 109 N.M. 44, 781 P.2d 316 (Ct.App. 1989) and State v. Keith, 102 N.M. 462, 697 P.2d 145 (Ct.App.1985).
In Keith, this court addressed the construction of two conflicting statutes involving sentencing of the defendant. In applying generally recognized principles of statutory construction, Keith held that the statute there must be strictly construed in favor of the defendant. It also held that “[djoubts about the construction of criminal statutes are resolved in favor of the rule of lenity.” State v. Keith, 102 N.M. at 465, 697 P.2d at 148. Later, in Bybee, this court addressed the question of whether the act of breaking into a soft drink vending machine violated our burglary statute. Bybee concluded that our legislature did not intend a vending machine to constitute a “structure” within the meaning of our burglary statute and thus reversed defendant’s burglary conviction. Relying on the principle enunciated in Keith, Bybee held that “[a] criminal statute may not be made applicable beyond its intended scope, and it is a fundamental rule that crimes must be defined with appropriate definiteness.” State v. Bybee, 109 N.M. at 46, 781 P.2d at 318. Bybee likewise held that statutes defining criminal conduct must be strictly construed.
Bybee and Keith are important to the resolution of this appeal because defendant contended below, as he does on appeal, that the statute at issue here, Section 30-7-8, is susceptible of different, yet reasonable constructions. Consequently, he argues that, under Bybee and Keith, we are obliged to adopt the construction most favorable to defendant. I agree.
To understand how our statute is subject to more than one interpretation, one need only to compare it to the provisions of similar statutes adopted by the state of New York. The majority correctly notes that our statute does not expressly define a switchblade knife or a gravity knife, as New York does. Technically, instead of defining the prohibited knives, our statute defines the specific act that constitutes the crime.
The pertinent statutory provisions of New York make it unlawful for a person to possess a deadly weapon, then proceeds expressly to include a switchblade knife and a gravity knife within the definition of a deadly weapon. See N.Y.Penal Law § 10.00 (Consol.1990). In a separate statutory provision, New York provides as follows:
4. “Switchblade knife” means 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.
5. “Gravity knife” means any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.
N.Y.Penal Law § 265.00 (Consol.1984). For purposes of illustration, I will take the liberty of slightly modifying Section 30-7-8, by simply inserting certain material (denoted in brackets), as follows:
Unlawful possession of. switchblades consists of any person * * * possessing, displaying, offering * * * selling * * * [ (1) (description of the traditional switchblade knife) ] 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 [ (2) (description of the traditional gravity knife)] any knife having a blade which opens or falls or is ejected into position by the force of gravity or any outward or centifugal thrust or movement. [Emphasis added.]
In comparing our statute with that of New York, it can readily be seen that the description of each knife following (1) and (2) follows almost verbatim the language contained in the express definitions of switchblade knife and gravity knife in the New York statute. The only difference, as the majority has already noted, is that, in defining a gravity knife, the New York statute contains the additional language “is locked in place by means of a button, spring, lever or other device.” The majority points to the absence of such language in our statute to support its rejection of People v. Dolson, 142 Misc.2d 779, 538 N.Y.S.2d 393 (1989), in which the New York court concluded that a butterfly knife was not a gravity knife under the New York statutory definition. I consider the absence of this language inconsequential. My understanding of the operation of the butterfly knife at issue in this appeal permits me to conclude it does indeed become “locked in place,” either by a latch that is located at the end of one of the two handles or directly by the grip of the hand itself. On this factual basis, the blade does indeed become locked in place and therefore comes within the definition of the New York statute. The fact that our statute has not used this restrictive language is of no consequence.
What does this comparison demonstrate? Simply, it indicates at least one reasonable interpretation or construction of our statute — specifically, that our legislature intended to prohibit the possession of only two kinds of knives, namely, the traditional switchblade knife and the traditional gravity knife, and no more. I have previously expressed my concern that criminal statutes not be read too broadly lest we “step too far afield” of the conduct intended to be prohibited by the statute. State v. Sanchez, 105 N.M. 619, 622, 735 P.2d 536, 539 (Ct.App.1987) (Apodaca, J., specially concurring). I again express my concern and submit that a butterfly knife does not fit within either one of these traditional definitions. Although the knife operates generally in the same manner as gravity and switchblade knives, it is not traditionally considered to be one of them. It is this statutory construction that we are bound to adopt, since it is the construction most favorable to defendant. See State v. Bybee; State v. Keith. For these reasons, I would adopt, as law in New Mexico, the holdings of the New York court in People v. Dolson and of the Alaska court in State v. Strange, 785 P.2d 563 (Alaska Ct.App.1990).
THE CONVICTION UNDER SECTION 30-7-2
The state, in trying the case against defendant under Section 30-7-2 (unlawful carrying of a deadly weapon), argued that the knife in question here was a switchblade knife. The state did so because the definition of a deadly weapon includes switchblade knives expressly by name. If the butterfly knife was not a switchblade knife, however, then the state was required to prove that the butterfly knife was a weapon that was “capable of producing death or great bodily harm.” See NMSA 1978, § 30-l-12(B) (Repl.Pamp.1984). The state did not present such evidence. From this, I would conclude that there was insufficient evidence presented to the jury to convict defendant of carrying a deadly weapon in violation of Section 30-7-2.
In summary, I would reverse both convictions for the reasons I have given and remand with instructions to dismiss the criminal charges against defendant. For these reasons, I dissent.