specially concurring.
Although I agree with the majority that the trial court’s dismissal of the firearm enhancement should be affirmed, I take a different path in arriving at that conclusion. The majority relies on the two-part test announced in Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991); I would employ statutory construction only.
The question posed in this appeal is whether the legislature intended the firearm enhancement statute to apply in a case such as the one before us. According to the briefs, two friends, while watching Super Bowl football on television on January 26, 1992, en-, gaged in a “quick-draw” game which resulted in the tragic death of the victim and with Defendant being charged with involuntary manslaughter.
Under NMSA 1978, Section 30-2-3(B) (Repl.Pamp.1984), “[ijnvoluntary manslaugh-' ter consists of manslaughter committed in the commission of an unlawful act not amounting to felony.” The “unlawful act not amounting to felony” relied on by the State in this case is the negligent use of a deadly weapon. Specifically, the State relies on NMSA 1978, Section 30-7-4(A)(3) (Repl.Pamp.1984), which provides “[njegligent use of a deadly weapon consists of: endangering the safety of another by handling or using a firearm or other deadly weapon in a negligent manner.” Involuntary manslaughter is a fourth degree felony; negligent use of a deadly weapon is a petty misdemeanor. See id.; Section 30-2-3(B).
In the criminal information, the State included firearm enhancement under NMSA 1978, Section 31-18-16 (Repl.Pamp.1990). The portion of that statute relevant to this appeal provides:
A. When a separate finding of fact by the court or jury shows that a firearm was used in the commission of a noncapital felony, the basic sentence of imprisonment ... shall be increased by one year, and the sentence imposed by this subsection shall be the first year served and shall not be suspended or deferred. (Emphasis added.)
Under this statute, the one-year additional imprisonment is not only mandatory, it cannot be suspended or deferred by the trial court. Did the legislature intend this result to apply to an unintentional killing resulting from noncriminal negligence?
In construing a statute, it is fundamental that we must ascertain and give effect to the intention of the legislature. See State v. Chavez, 77 N.M. 79, 82, 419 P.2d 456, 457 (1966). Where there is no clearly express legislative intent, the words used are to be given their usual and ordinary meaning. See Tafoya v. New Mexico State Police Bd., 81 N.M. 710, 714, 472 P.2d 973, 977 (1970).
On first reading, the language in Section 31-18-16(A) providing for enhancement when a separate finding of fact shows “that a firearm was used in a commission of a noncapital felony” can be read as all encompassing. In fact, this Court recently reiterated that the legislature intended to apply the firearm enhancement statute to “‘any felony[,] other than a capital felony.’” State v. Charlton, 115 N.M. 35, 40, 846 P.2d 341, 346 (Ct.App.1992) (emphasis deleted), cert. denied, 114 N.M. 577, 844 P.2d 827 (1993) (quoting from State v. Gabaldon, 92 N.M. 230,234, 585 P.2d 1352, 1356 (Ct.App.), cert. denied, 92 N.M. 260, 586 P.2d 1089 (1978)). Certainly, given the language used, coupled with those statements, one could forcefully argue, as does the State, that the legislature intended the firearm enhancement to apply to the case before us. I believe, however, that on closer examination, a different conclusion should be reached.
“Manslaughter is the unlawful killing of a human being without malice.” Section 30-2-3. There are two kinds of manslaughter: voluntary and involuntary. Id. The latter, as set forth above, consists of manslaughter committed in the commission of an unlawful act not amounting to a felony. Section 30-2-3(B). Here, that unlawful act was a negligent handling of a firearm. See § 30-7-4(A)(3). While the word “commission” is used both in the involuntary manslaughter and the firearm enhancement statutes, in my opinion, they each have different connotations. In the involuntary manslaughter statute, commission does not contemplate a deliberate, intentional act, whereas, in the firearm enhancement statute, it does. I reach this conclusion for the following reasons.
Involuntary manslaughter has been held to include only unintentional killings. See State v. King, 90 N.M. 377, 380, 563 P.2d 1170, 1173 (Ct.App.1977), overruled on other grounds by State v. Reynolds, 98 N.M. 527, 650 P.2d 811 (1982). In addition, where negligent use of a deadly weapon is the basis for involuntary manslaughter, a showing of only ordinary civil negligence is required. See Santillanes v. State, 115 N.M. 215, 222, 849 P.2d 358, 365 (1993). Therefore, there is no requirement that Defendant first knew or should have known of the danger involved and then acted with a reckless disregard for the safety of another. See id. I would therefore make a distinction between the use of a firearm in those cases which include either intentional acts or criminal negligence, on the one hand, and those which are unintentional or based on ordinary civil negligence, on the other.
This reading of the firearm enhancement statute, I believe, comports with the type of situation in which its application has been upheld. For example, in Gabaldon, 92 N.M. at 231, 585 P.2d at 1353, the defendant was convicted of three robberies while armed with a deadly weapon. In that case, the deadly weapon was a firearm, and the defendant’s sentence was enhanced as a result of the use of a firearm. Id. at 234, 585 P.2d at 1356. In Gabaldon, this Court said “[t]he legislative policy is that any felony, other than a capital felony, committed by use of a firearm, should be more severely punished than felonies committed without using a firearm.” Id. For example, when one sets out to commit armed robbery with the firearm, few would seriously question that the statute serves notice that that person will be more severely punished as a result. Similarly, when one resorts to the use of a firearm in committing aggravated battery, that person is on notice that he will be more severely punished. See State v. Gonzales, 95 N.M. 636, 638-39, 624 P.2d 1033, 1035-36 (Ct.App.), overruled on other grounds by Buzbee v. Donnelly, 96 N.M. 692, 634 P.2d 1244 (1981); see also Charlton, 115 N.M. at 40, 846 P.2d at 347 (firearm enhancement upheld against double jeopardy attack where firearm used in the commission of aggravated assault).
That severity should not, however, apply when, as in this case, Defendant did not set out to commit a crime and he has not been charged with doing so. This is an unintentional accidental killing which, had it not resulted in a death, would have amounted to no more than a petty misdemeanor. Surely, the same societal concerns involved with the use of a firearm in the commission of nonfelony crimes intentionally committed or committed with criminal negligence would not apply to a case such as the one before us.
Additionally, to apply the firearm enhancement statute in this case, as the State urges, would bring about absurd results. See State v. Herrera, 86 N.M. 224, 226, 522 P.2d 76, 78 (1974) (appellate courts will not construe statutes to achieve an absurd result). It is easy to visualize a tragic death occurring during a hunting accident due to the negligent handling of a firearm. If we were to adopt the State's argument, even the most law-abiding citizen would be subjected to the mandatory one-year imprisonment. This interpretation would give the trial court absolutely no choice in the matter of sentencing. For example, if Defendant in this ease were convicted of involuntary manslaughter, the trial court could impose jail time; however, if we were to hold the firearm enhancement statute applicable, the trial court would have no choice but to impose the one-year jail time.
At the outset, I indicated that I did not think the two-part Swafford test was necessary. I reached that conclusion based upon my reading of that case. The defendant in Swafford was convicted of one count of third-degree criminal sexual penetration, one count of incest, one count of aggravated assault with intent to commit felony, and one count of false imprisonment. 112 N.M. at 6, 810 P.2d at 1226. On appeal, the defendant in Swafford contended that separate, consecutive sentences for third degree criminal sexual penetration and incest violated the double jeopardy protection against multiple punishments for the same offense. Id. at 7, 810 P.2d at 1227. It was in regard to that contention that our Supreme Court set forth the two-part test utilized by the majority. Additionally, the defendant in Swafford claimed error by the trial court in aggravating his sentences based on his blood relationship to the victim. Id. at 6, 810 P.2d at 1226. In dealing with the latter issue, I read Swafford to apply only a statutory construction analysis, rather than the two-part test applied to the multiple punishment issue. In my opinion, the case before us requires no more than what the Supreme Court did with the aggravation question which is similar to the enhancement issue presented here. Usually, a court should not resort to constitutional scrutiny when an issue can be otherwise resolved. See New Mexico State Rawing Comm’n v. Yoakum, 113 N.M. 561, 564, 829 P.2d 7, 10 (Ct.App.1991), cert. denied, 113 N.M. 352,826 P.2d 573 (1992); State v. Ball, 104 N.M. 176, 178, 718 P.2d 686, 688 (1986); In re Bunnell, 100 N.M. 242, 244, 668 P.2d 1119, 1121 (Ct.App.1983).
I join with the majority in affirming dismissal of the firearm enhancement component of the charge but do so for the reasons stated above.