State v. NICK R.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-050

Filing Date: September 28, 2009

Docket No. 30,657

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

NICK R., a child,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Sam B. Sanchez, District Judge

Hugh W. Dangler, Chief Public Defender
Nancy M. Hewitt, Appellate Defender
J.K. Theodosia Johnson, Assistant Public Defender
Santa Fe, NM

for Petitioner

Gary King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM

for Respondent

OPINION

DANIELS, Justice.

{1} Petitioner Nick R., a sixteen-year-old student at Taos High School, was charged in
Children’s Court with possessing a deadly weapon on school premises, in violation of
NMSA 1978, Section 30-7-2.1 (1994). The issue before us is whether the Legislature
intended to make an ordinary pocketknife a per se deadly weapon in the Criminal Code’s
statutory definitions, without regard to either its actual use or a person’s purpose for carrying
it, and thereby preclude any right to a jury determination of its status as a deadly weapon in

1
the circumstances of a particular case.

{2} Although Section 30-7-2.1 does not refer to a pocketknife or define the term “deadly
weapon” in any other way, NMSA 1978, Section 30-1-12(B) (1963) provides that, “[a]s used
in the Criminal Code”:

“deadly weapon” means any firearm, whether loaded or unloaded; or any
weapon which is capable of producing death or great bodily harm, including
but not restricted to any types of daggers, brass knuckles, switchblade knives,
bowie knives, poniards, butcher knives, dirk knives and all such weapons
with which dangerous cuts can be given, or with which dangerous thrusts can
be inflicted, including swordcanes, and any kind of sharp pointed canes, also
slingshots, slung shots, bludgeons; or any other weapons with which
dangerous wounds can be inflicted[.]

{3} The Court of Appeals affirmed rulings of the Children’s Court that Petitioner was not
entitled to have a jury decide whether he had the intent to possess a pocketknife as a weapon.
State v. Nick R., No. 27,145, slip op. at 2 (N.M. Ct. App. Aug. 30, 2007). Our review of the
definitional statute’s language, its history, its purposes, its relationship with other statutes,
and over one hundred years of New Mexico case law leads us to the opposite conclusion.
We therefore reverse the contrary rulings of the lower courts.

I. FACTS AND PROCEEDINGS BELOW

{4} The relevant facts were stipulated by the parties. Petitioner Nick R. worked after
school hours for his father at a furniture store. His father supplied all store employees,
including Nick, with pocketknives for opening boxes at work. One day in his math class,
Nick felt something in his pocket and pulled it out to look at it. It was the pocketknife he
had been using at work the evening before when he had been wearing the same pair of pants.
His math teacher spotted him “messing around” with the unopened pocketknife underneath
his school desk, confiscated it, and turned it over to school authorities. Nothing in the record
indicates that the pocketknife was ever used or intended to be used as a weapon.

{5} Nick was suspended from school pending an administrative investigation, but he was
reinstated after the superintendent of schools determined that he had not intentionally
brought the pocketknife onto campus. Three months later, the State filed a delinquency
petition in Children’s Court, charging that Nick had committed a delinquent act under the
Children’s Code, on the theory that he had committed an offense that would have been a
fourth-degree felony if committed by an adult.

{6} Before trial, the State filed two motions in limine relevant to this appeal, both of
which were heard as preliminary matters on the day the parties appeared for the scheduled
jury trial. The first, “State’s Motion in Limine for Legal Determination that the Knife Is a
Deadly Weapon,” included as an exhibit a photograph of the pocketknife taken from Nick.

2
The motion sought to have the court rule as a matter of law that the depicted item fit the
statutory definition of “deadly weapon” under Section 30-1-12(B) and rule that the jury
could not be allowed to make that determination. In granting the motion and taking the issue
from the jury, the court rejected defense counsel’s argument that the jury should determine
whether the statutory deadly weapon definition had been met, based on the nature of the
object and its manner of actual or intended use in the circumstances.

{7} A related motion was the “State’s Motion in Limine to Exclude Any Reference to a
Use Requirement,” which argued that not only should the court make a pretrial
determination that the particular pocketknife was per se a deadly weapon under the statute,
but that defense counsel should be prohibited from making any argument to the jury
regarding Nick’s actual or intended use of the pocketknife. In granting the State’s motions,
the Children’s Court judge commented from the bench:

So, it’s not the intended use of the instrument, it’s just the fact that
you have it and you shouldn’t. Simple as that. So, I don’t think the use of
it or the intended use has any bearing in this case. He either had it on him or
carried it on school grounds or he didn’t. I don’t know what else—that’s
what the jury’s got to hear.

They can’t hear that he didn’t intend to use it, he wasn’t going to use
it, because everybody could argue that, whether they intend to or not.

{8} Following the court’s rulings on the motions in limine, defense counsel moved that
the issues be certified for an interlocutory appeal, given the fact that there were no other
triable issues to submit to the jury. The court denied the request. The parties then conferred
and arrived at a conditional plea agreement that preserved Petitioner’s right to appellate
review of the pretrial rulings in limine.

{9} In an unpublished memorandum opinion, the Court of Appeals affirmed the
Children’s Court rulings, holding that simple possession of a pocketknife on school premises
constitutes criminal possession of a deadly weapon as a matter of law, regardless of the
possessor’s actual or intended use. Nick R., No. 27,145, slip op. at 2-3.

{10} The case comes before us on certiorari to review the Court of Appeals’ conclusion
that “[b]ecause Child was carrying a knife, which is defined as a deadly weapon, there is no
requirement that the State show that he intended to use it as a weapon.” Id. at 3.

II. STANDARD OF REVIEW

{11} Statutory construction is a matter of law we review de novo. State v. Rivera,
2004-NMSC-001, ¶ 9, 134 N.M. 768, 82 P.3d 939. Our primary goal is to ascertain and give
effect to the intent of the Legislature. State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172,
74 P.3d 1064. In doing so, “we examine the plain language of the statute as well as the

3
context in which it was promulgated, including the history of the statute and the object and
purpose the Legislature sought to accomplish.” Maes v. Audubon Indem. Ins. Group,
2007-NMSC-046, ¶ 11, 142 N.M. 235, 164 P.3d 934; see Hovet v. Allstate Ins. Co.,
2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69. We must take care to avoid adoption of
a construction that would “render the statute’s application absurd or unreasonable” or “lead
to injustice or contradiction.” N.M. State Bd. of Educ. v. Bd. of Educ., 95 N.M. 588, 591,
624 P.2d 530, 533 (1981).

III. DISCUSSION

{12} Article 7 of the New Mexico Criminal Code, “Weapons and Explosives,” contains
several statutes imposing criminal sanctions for unlawfully carrying deadly weapons.
Section 30-7-1, provides with respect to all those statutes that “‘[c]arrying a deadly weapon’
means being armed with a deadly weapon . . . or in close proximity thereto, so that the
weapon is readily accessible for use.” NMSA 1978, § 30-7-1 (1963); see State v. Salazar,
1997-NMCA-043, ¶¶ 8, 10, 123 N.M. 347, 940 P.2d 195 (holding that the term “carrying”
does not have a broader meaning in connection with carrying a weapon on school grounds;
whether the defendant was carrying a deadly weapon was a factual determination to be made
by a jury in school ground cases, in the same manner as in prosecutions under other statutes
criminalizing the carrying of a deadly weapon).

{13} The basic crime of unlawful carrying of a deadly weapon is contained in NMSA
1978, Section 30-7-2(A) (2001), which imposes a petty misdemeanor criminal penalty of up
to six months in jail, and NMSA 1978, § 31-19-1(B) (1984), for carrying “a concealed
loaded firearm or any other type of deadly weapon anywhere, except” in one’s automobile
for personal protection, on one’s real property, with a concealed firearms permit, or by a
peace officer.

{14} In addition to this generally applicable weapons-carrying crime, Article 7 also
contains statutes providing heightened criminal penalties for carrying deadly weapons in
particular contexts, such as authorizing a full misdemeanor jail sentence of up to a year,
NMSA 1978, § 31-19-1(A) (1984), for carrying any deadly weapon on a bus, NMSA 1978,
§ 30-7-13 (1979), and a felony prison sentence of up to eighteen months for carrying any
deadly weapon on school grounds, § 30-7-2.1, the criminal charge involved in this case. See
NMSA 1978, § 31-18-15(A)(10) (2005, prior to 2007 amendment).

{15} Although neither Section 30-7-2.1 nor any other statute in Article 7 contains any
further definition of what is meant by the recurring term “deadly weapon,” the courts below
and the parties have recognized that the definition applicable to those statutes is contained
in Section 30-1-12(B), the Criminal Code’s uniform definition of the term, applicable to a
broad range of offenses involving both use and possession of deadly weapons. See State v.
Traeger, 2001-NMSC-022, ¶ 10, 130 N.M. 618, 29 P.3d 518 (interpreting Section 30-1-
12(B) in the context of a charge of aggravated battery with a baseball bat as a deadly
weapon); State v. Fernandez, 2007-NMCA-091, ¶¶ 6, 8-9, 142 N.M. 231, 164 P.3d 112

4
(interpreting Section 30-1-12(B) in the context of a charge of armed robbery with a BB gun
as a deadly weapon); State v. Galaz, 2003-NMCA-076, ¶¶ 4, 9-10, 133 N.M. 794, 70 P.3d
784 (interpreting Section 30-1-12(B) in the context of a probation revocation for possession
of bullets as deadly weapons); State v. Anderson, 2001-NMCA-027, ¶¶ 10, 14, 130 N.M.
295, 24 P.3d 327 (interpreting Section 30-1-12(B) in the context of a charge of aggravated
stalking with a stick as a deadly weapon); State v. Blea, 100 N.M. 237, 238-39, 668 P.2d
1114, 1115-16 (Ct. App. 1983) (interpreting a similar city ordinance in the context of a
charge of unlawful carrying of a voltage tester as a deadly weapon). We therefore must
analyze the proper interpretation of this uniform statutory definition of deadly weapons in
light of its multiple intended applications.

A. Statutory Language Analysis

{16} The first step in any statutory construction is to try “to determine and give effect to
the Legislature’s intent” by analyzing the language of the statute. Marbob Energy Corp. v.
N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. The
“deadly weapons” definitional statute, which includes specifically named weapons and
several generic catchalls, neither refers to a pocketknife in particular nor to all knives in
general. While it includes “any firearm, whether loaded or unloaded,” it does not include
“any knife.” See § 30-1-12(B). Instead, Section 30-1-12(B) clearly designates by name a
number of specific kinds of knives as included within its definition of deadly weapon:
“daggers . . . switchblade knives, bowie knives, poniards, butcher knives, dirk knives . . .
swordcanes, and any kind of sharp pointed canes.”

{17} Because a common pocketknife is not mentioned in the statute, we consider whether
the Legislature intended to give it the same status as the specifically named weapons through
application of the three general catchall clauses in the statute: (1) “any weapon which is
capable of producing death or great bodily harm,” (2) “and all such weapons with which
dangerous cuts can be given, or with which dangerous thrusts can be inflicted,” and (3) “or
any other weapons with which dangerous wounds can be inflicted.” Section 30-1-12(B).
The State argues that the Court of Appeals was correct in interpreting the phrase “and all
such weapons with which dangerous cuts can be given, or with which dangerous thrusts can
be inflicted” as reflecting a legislative intent to include pocketknives as per se deadly
weapons.

{18} Because all of the catchalls relate specifically to “weapons” rather than a more
inclusive term such as “items” or “instruments,” we must address what the Legislature meant
by its use of the term “weapons.” That term is not defined separately in the statutes, and we
therefore must consider the ordinary meaning most likely to have been in the minds of the
enacting legislators. See State v. Gutierrez, 2007-NMSC-033, ¶ 30, 142 N.M. 1, 162 P.3d
156 (interpreting the intended meaning of words used by the Legislature by consulting
dictionaries to ascertain their “ordinary meaning”). The dictionary definitions of “weapon”
focus on an object’s use or intended use against another. See, e.g., Webster’s Third New
International Dictionary 2589 (1976) (“an instrument of offensive or defensive combat”);

5
Black’s Law Dictionary 1624 (8th ed. 2004) (“An instrument used or designed to be used
to injure or kill someone”). The Court of Appeals recently reaffirmed the applicability of
this mode of interpretation in State v. Neatherlin, 2007-NMCA-035, ¶ 15, 141 N.M. 328, 154
P.2d 703: “This Court has previously relied on the definition of ‘weapon’ from Black’s Law
Dictionary 1593 (6th ed. 1990): ‘An instrument of offensive or defensive combat, or
anything used, or designed to be used, in destroying, defeating, threatening, or injuring a
person.’” (internal quotation marks and citation omitted).

{19} The definitions of the specific items named in the statute emphasize that the
Legislature must have had in mind instruments used or carried for use in injuring or killing
people when it repeatedly used the term “weapons.” See, e.g., 8 Oxford English Dictionary
95 (2d ed. 1989) (defining “poniard” as “[a] short stabbing weapon”); 4 Oxford English
Dictionary, supra, at 214 (defining “dagger” as “[a] short stout edged and pointed weapon,
like a small sword, used for thrusting and stabbing”); Webster’s Third New International
Dictionary, supra, at 642 (defining “dirk” as “a long straight-bladed dagger”); id. at 2314
(defining “sword cane” as “a cane or walking stick that conceals the blade of a sword or
dagger”); id. at 2314 (defining “sword” as “a weapon with a long blade for cutting and
thrusting”); id. at 262 (defining “bowie knife” as “a large hunting knife adapted esp. for
knife-fighting and common in western frontier regions”).

{20} The striking characteristic of all the inherently dangerous items identified by name
in the statute is that they are generally carried on one’s person for their utility as offensive
or defensive weapons. In contrast, no definition of “pocketknife” we have found refers to
it as a “weapon” or refers to its having a purpose of use against other human beings. See id.
at 1747 (defining “pocketknife” simply as “a knife with a blade folding into the handle to
fit it for being carried in the pocket”).

{21} New Mexico courts have long recognized the ejusdem generis principle of statutory
construction, that where general words follow words of a more specific meaning, “the
general words are not construed in their widest extent but are instead construed as applying
to persons or things of the same kind or class as those specifically mentioned.” State v.
Foulenfont, 119 N.M. 788, 791, 895 P.2d 1329, 1332 (Ct. App. 1995) (internal quotation
marks and citation omitted); see id. at 790-91, 895 P.2d at 1331-32 (declining to interpret
a chainlink fence as a “structure” as meant in the burglary statute, which criminalizes
unlawful entry into “any vehicle, watercraft, aircraft, dwelling or other structure, movable
or immovable” (internal quotation marks and citation omitted)); see also State ex rel.
Murphy v. Morley, 63 N.M. 267, 269, 317 P.2d 317, 318-19 (1957) (applying the principle
to hold that “lewdness,” as meant by a statute defining a sanctionable nuisance as “any place
upon which lewdness, assignation or prostitution, is conducted,” did not include the showing
of pornographic films or other acts “not connected with assignation or prostitution”) (internal
quotation marks and citation omitted). The meaning of “weapons” in the catchall phrases
thus would necessarily share the attributes of the items specifically named, that is, inherently
dangerous items that either are carried for use or are actually used to inflict injuries on
people.

6
{22} The application of this concept of statutory construction to this case is made
inescapable by the Legislature’s use of the adjective “such” before “weapons” in the generic
phrase relied on by the State, which is found immediately after the itemization of prohibited
kinds of knives: “and all such weapons with which dangerous cuts can be given, or with
which dangerous thrusts can be inflicted.” Section 30-1-12(B). The word “such” has the
same meaning in legal analysis as it does in other linguistic applications. See 17 Oxford
English Dictionary, supra, at 102 (defining “such” as “[o]f the same kind or class as
something mentioned or referred to; of that kind; similar, the like”); Bryan A. Garner, A
Dictionary of Modern Legal Usage 849 (2d ed. 1995) (“Such is properly used as an adjective
when reference has previously been made to a category of persons or things: thus such = of
this kind, not this, these or those.”). The use of the word “such” in this definitional statute
underscores that the generic catchall is directed to the same kind of things specifically
named, instruments carried for use, or actually used, to injure or kill people.

{23} Significantly, the statute names only one kind of knife that folds for carrying in a
pocket, the weapon known as a “switchblade,” which is commonly defined as “a pocketknife
having the blade spring-operated so that pressure on a release catch causes it to fly open,”
Webster’s Third New International Dictionary, supra, at 2314, and which is defined further
in our statutes as a

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.

NMSA 1978, § 30-7-8 (1963). It is difficult to imagine that the Legislature could have
meant to include all pocketknives when it not only did not name them but at the same time
expressly named only one narrowly specialized type of folding pocketknife that is designed
for quick use in a knife fight. “The age-old Latin phrase inclusio unius est exclusio alterius
is applicable here. It means the inclusion of one thing is the exclusion of the other. The
legislature did not see fit to include it in the statute, therefore it is excluded.” City of Santa
Rosa v. Jaramillo, 85 N.M. 747, 749-50, 517 P.2d 69, 71-72 (1973) (applying the concept
to the scope of a permissible liquor license transfer).

{24} Even though we can find nothing in the plain wording of the statute that reflects any
expression of legislative intent to criminalize the carrying of a common pocketknife, out of
caution we also have traced the statute’s long history in New Mexico law.

B. Statutory History

{25} To understand fully the intended meaning of a statute describing what the State in
its briefing understandably refers to as a “quaint collection” of nineteenth century weapons
such as poniards and dirk knives and swordcanes, it is important to trace the statute’s origins
and development.

7
{26} The statutory use of the term “deadly weapon” in New Mexico law dates back to the
earliest territorial days, and it began with concerns about the actual use, rather than mere
possession, of deadly weapons. The rather sparse collection of criminal statutes first set
forth in Territorial New Mexico’s 1846 Kearny Code provided no definition of the term
“deadly weapon,” although it did contain one deadly weapon offense, assault with a deadly
weapon. Kearny Code of Laws (1846), Crimes and Punishments, art. III, § 7; see Territory
v. Sevailles, 1 N.M. 119, 123, 1855 WL 2214, at *1 (1855) (holding that an indictment
charging assault with intent to kill with an undescribed knife was insufficient under the
statute because of its failure to allege that the assault was committed with a deadly weapon).

{27} In 1869, the New Mexico Territorial Legislative Assembly enacted the
comprehensive statutory definition of the term “deadly weapons” that formed the basic
framework of the modern definition. 1868-69 N.M. Laws, ch. 32, §§ 1-16. The Act made
it a crime for people “to carry deadly weapons, either concealed or otherwise, on or about
their persons within any of the settlements of this Territory,” other than on their own real
property, id. § 1, or while traveling between settlements or towns. Id. § 11. Hotels, boarding
houses, and saloons were required to post notices that travelers were required to divest
themselves of their deadly weapons within one hour of their arrival in a town. Id. § 12.
Section 7 provided that “where the words ‘weapons’ or ‘deadly weapons’ are used in this
act, such word or words shall be construed to mean the weapons described in section two of
this act.” Id. § 7. Section 2 contained the first statutory articulation of the definition that has
been carried forward with little change for almost a century and a half into New Mexico’s
current criminal code:

Deadly weapons, in the meaning of this act, shall be construed to mean all
kinds and classes of pistols whether the same be a revolver, repeater,
derringer, or any other kind or class of pistol; any and all kinds of bowie
knives, daggers, poniards, butcher knives, dirk knives, and all such weapons
with which cuts can be given, or by which wounds can be inflicted by
thrusting, including sword canes and such sharp pointed canes with which
deadly thrusts can be given, and all kinds of slung shots, and any other kinds
of deadly weapon, by whatever name it may be called, by which a dangerous
wound can be inflicted.

Id. § 2.

{28} The only material alteration of the definition of “deadly weapons” since territorial
days was the addition of two more modern weapons, switchblade knives and brass knuckles,
in 1953. NMSA 1953, § 40A-1-13(B) (Vol. 6, 2d Repl.). The specific addition of the
switchblade in a later statutory amendment is of particular significance to the issues in this
case. If folding pocketknives already had been included in the catchall language that had
existed for over half a century, the amendment that added the switchblade, a very specialized
folding pocketknife, would have been superfluous. This Court has long held that we must
avoid constructions of statutory amendments that “would render the change unnecessary and

8
meaningless.” State v. Romero, 73 N.M. 109, 115, 385 P.2d 967, 970 (1963) (applying the
principle to a change in criminal sentencing statutes). Indeed, if the statute made all
pocketknives prohibited weapons without regard to their actual or intended use, the Court
of Appeals need not have gone to the effort of trying to determine whether a quick-release
butterfly knife qualified as a switchblade in State v. Riddall, 112 N.M. 78, 79-80, 811 P.2d
576, 577-78 (Ct. App. 1991). See id. at 82, 811 P.2d at 580 (determining that a butterfly
knife fit the statutory definition of a switchblade and therefore was a “deadly weapon” under
the statute).

C. Judicial Interpretations

{29} The first reported appellate opinion to construe the statutory definition of “deadly
weapon,” interestingly in the context of its application to a pocketknife, was Territory v.
Armijo, 7 N.M. 571, 577-78, 37 P. 1117, 1118 (1894). By that time, the definition had been
slightly amended by the Deadly Weapon Act of 1887 to resemble even more closely the
current wording, primarily by adding the adjective “dangerous” before the nouns “cuts” and
“thrusts”:

Deadly weapons, within the meaning of this act, shall be construed to mean
all kinds and classes of pistols, whether the same be a revolver, repeater,
derringer, or any kind or class of pistol or gun; any and all kinds of daggers,
bowie knives, poniards, butcher knives, dirk knives, and all such weapons
with which dangerous cuts can be given, or with which dangerous thrusts can
be inflicted, including sword canes, and any kind of sharp pointed canes; as
also slung shots, bludgeons or any other deadly weapons with which
dangerous wounds can be inflicted.

1887 N.M. Laws, ch. 30, § 8.

{30} In Armijo, the defendant was charged with assault with a deadly weapon and was
alleged to have used a pocketknife to “cut, stab, and wound” the victim. Id. at 574, 37 P. at
1117. Our Territorial Supreme Court held that the indictment was fatally flawed because it
failed to set forth how “the kind or character of the knife” was a deadly weapon as defined
in the statute. Id. at 577, 37 P. at 1118. The Court concluded that while many ordinary
knives may become deadly weapons by virtue of their use in a particular case, not all knives
are automatically “deadly weapons” as a matter of law. Id. Of particular relevance to the
issue before us, the Court addressed whether a pocketknife could be considered a per se
deadly weapon under the statutory definition:

It is evident that the kind and character of the knife should be
described as one of the class therein mentioned. The word “such” qualifies
the kind of knives, and the knife used, to bring the offense within the act,
must belong to that class. It was never intended by the legislature to include
in the class named ordinary pocket knives as deadly weapons.

9
Id. at 578, 37 P. at 1118. No case has ever overruled or even criticized Armijo’s
substantially contemporaneous holding that “[i]t was never intended by the legislature to
include . . . ordinary pocket knives as deadly weapons.” Id.

{31} It should not be surprising that the Armijo Court would find unacceptable the notion
that the Legislature had intended to criminalize possession of an ordinary pocketknife in the
same manner as firearms or knives commonly carried for their usefulness as deadly weapons.
Apparently, penknives and other folding pocketknives were commonly possessed by persons
of all ages in the era when the statute was enacted. See, e.g., Sevailles, 1 N.M. at 124, 1855
WL at *3 (Brocchus, J., dissenting) (referring to knives “commonly in use” which “a
gentleman would carry in his pocket for the harmless purpose of making pens”).

{32} Mark Twain, America’s popular chronicler of nineteenth century frontier life,
repeatedly mentioned the ubiquitous Barlow pocketknives in his classic Tom Sawyer and
Huckleberry Finn books. See Mark Twain, The Adventures of Tom Sawyer 30-31 (Harper
& Brothers 1920) (1875) (“Mary gave [Tom] a brand-new ‘Barlow’ knife worth twelve and
a half cents; and the convulsion of delight that swept his system shook him to his
foundations. True, the knife would not cut anything, but it was a ‘sure-enough’ Barlow, and
there was inconceivable grandeur in that . . . .”); id. at 276 (looking for buried treasure,
“Tom’s ‘real Barlow’ was out at once, and he had not dug four inches before he struck
wood”); Mark Twain, The Adventures of Huckleberry Finn 70 (Harper & Brothers 1912)
(1884) (stocking their canoe for a river trip, Tom and Huck “got an old tin lantern, and a
butcher-knife without any handle, and a bran-new Barlow knife worth two bits in any
store”); id. at 193 (“There was empty dry-goods boxes under the awnings, and loafers
roosting on them all day long, whittling them with their Barlow knives . . . .”).

{33} For over a century since Armijo was decided, numerous other cases have illuminated
the issues before us in the course of construing the definition in a variety of contexts, most
often in cases where the object was actually used as a weapon. In State v. Conwell, 36 N.M.
253, 255, 13 P.2d 554, 555 (1932), the defendant was convicted by a jury of actual assault
with a deadly weapon, not its mere possession. The alleged weapon used to beat the victim
was a four-inch-long rock. Id. at 254, 13 P.2d at 555. The defendant argued before this
Court that there was insufficient evidence to support a jury finding that the rock used on the
victim’s face was a deadly weapon, as defined in the statutory catchall of “bludgeons or any
other deadly weapons with which dangerous wounds can be inflicted.” Id. at 255, 13 P.2d
at 555. In language that is instructive here, Conwell held that “[w]here the instrument used
is not one declared by the statute to be a deadly weapon, it is ordinarily a question for the
jury to determine whether it is so, considering the character of the instrument and the manner
of its use.” Id. The Court noted with approval that the rock had been passed among the
jurors, “enabling them to know its dimensions, weight, sharpness of its edges, and
potentiality for infliction of dangerous wounds from the manner in which it was claimed to
have been used.” Id. at 255-56, 13 P.2d at 556.

{34} In State v. Mitchell, 43 N.M. 138, 139-40, 87 P.2d 432, 433 (1939), the defendant

10
was charged with assaulting a victim “with a certain deadly weapon, to-wit: a certain knife,
with which dangerous cuts could be given, and with which dangerous wounds and thrusts
could be inflicted.” Mitchell endorsed Conwell’s application of the “well settled rule” that
where an instrument is not specifically named in the statute as a deadly weapon, whether it
is an unlawful deadly weapon is a fact question for the jury to resolve by considering the
instrument’s use by an accused and the other circumstances of a particular case. Id. at 140,
87 P.2d at 433.

{35} This approach has been recognized and applied repeatedly over the years in a long
line of opinions by the courts of this State up to the present day. See, e.g., State v. Martinez,
57 N.M. 174, 176, 256 P.2d 791, 792 (1953) (holding that it was for the jury to determine
whether a knife with a two-inch blade was a deadly weapon as used by the defendant in the
circumstances of the case); State v. Gonzales, 85 N.M. 780, 781, 517 P.2d 1306, 1307 (Ct.
App. 1973) (concluding that because the statute does not specifically define a tire tool as a
deadly weapon, the determination whether the tool was a deadly weapon in the context of
a robbery prosecution was for the jury).

{36} Although fewer in number than the actual use cases, the simple possession cases
follow a similar approach, holding the jury must determine whether the accused had the
“intent to carry or to use the [unlisted] object as a weapon.” Blea, 100 N.M. at 239, 668 P.2d
at 1116. In Blea, the Court of Appeals reversed a conviction for simple possession of a
voltage tester, even though it could have been used to stab someone:

A voltage tester, or other utilitarian tool or object is not per se a weapon; it
may, however, become a weapon by its actual use . . . or by the purpose for
which it is carried. Hence, a factual finding as to defendant’s intent or
purpose in carrying the object is necessary to determine guilt or innocence
of an accused charged with carrying a concealed article not expressly listed
as a deadly weapon . . . .

Id. (internal citations omitted); see also Anderson, 2001-NMCA-027, ¶ 32 (reversing a
conviction for carrying a stick as a deadly weapon and thereby committing the offense of
aggravated stalking).

[W]hen the object or instrument in question is an unlisted one that falls
within the catchall language of Section 30-1-12(B), the jury must be
instructed (1) that the defendant must have possessed the object or instrument
with the intent to use it as a weapon, and (2) the object or instrument is one
that, if so used, could inflict dangerous wounds.

Id.

{37} In short, our cases hold that in an actual use case involving an unlisted weapon, the
jury must find, among other elements, that an object was actually used as a weapon and that

11
it was capable of causing the wounds described in the statute. In a simple possession case,
the jury must find that the object was possessed with intent to carry it as a weapon and that
it was capable of causing the wounds described in the statute. These are determinations that
cannot be ruled on by a trial court as a matter of law and taken from the jury’s consideration,
no matter how obvious the existence of any essential element of an offense may seem. It is
impermissible to enter a “partial directed verdict” against a defendant because it is “the
fundamental right of a criminal defendant to have the jury determine whether each element
of the charged offense has been proved by the state beyond a reasonable doubt.” State v.
Orosco, 113 N.M. 780, 786, 833 P.2d 1146, 1152 (1992) (determining that a trial court had
not removed an essential element of an offense from a jury’s consideration in a sex offense
prosecution).

{38} We have found no New Mexico case that has ever interpreted the “deadly weapons”
definitional statute inconsistently with this large body of precedent. Neither court below
ever addressed the statutory history or the relevant New Mexico case law interpreting and
applying the “deadly weapon” definition. Instead, the Court of Appeals cited this Court’s
opinion in State v. Baca, 114 N.M. 668, 674, 845 P.2d 762, 768 (1992), in support of its
position that the public policy of ensuring safety for certain segments of the population
eliminated any “use requirement” in certain weapons possession crimes. Nick R., No.
27,145, slip op. at 4. Neither Baca nor any other precedent has stood for that proposition.
The issue in Baca had nothing to do with the statutory definition of “deadly weapon” or its
proof requirements. The only issue in Baca was whether a defendant could avail himself of
a duress defense against a charge of intentional possession of a conceded deadly weapon,
a purposeful weapon known as a “shank,” by a prison inmate who claimed he needed to arm
himself for self-defense. 114 N.M. at 673-74, 845 P.2d at 767-68.

{39} Similarly, State v. Padilla, 1996-NMCA-072, 122 N.M. 92, 920 P.2d 1046, did not
analyze the statutory definition of “deadly weapon.” Instead, it specifically addressed
whether stealing and carrying away a deadly weapon constituted “arming” oneself during
a burglary. Id. ¶ 1. The opinion therefore never had occasion to address what proof would
have been necessary if there had been an issue as to whether the item possessed met the
statutory definition of a deadly weapon.

{40} New Mexico’s case law is consistent with that of other jurisdictions, which routinely
distinguish between legislatively designated per se deadly weapons and a vast array of tools
and other ordinary items that could become deadly weapons if used offensively. See, e.g.,
Grass v. People, 471 P.2d 602, 605 (Colo. 1970) (shoe as deadly weapon); Timm v. State,
644 N.E.2d 1235, 1238-39 (Ind. 1994) (plastic flashlight); Johnson v. State, 455 N.E.2d 932,
936 (Ind. 1983) (automobile); State v. Kelly, 571 A.2d 1286, 1292-93 (N.J. 1990) (carpet-
cutting razor); People v. Elijah B., 813 N.Y.S.2d 405, 406 (N.Y. App. Div. 2006) (work
boots); People v. Buhagiar, 713 N.Y.S.2d 114, 115 (N.Y. App. Div. 2000) (pestle); Bald
Eagle v. State, 355 P.2d 1015, 1017 (Okla. Crim. App. 1960) (beer bottle); Strahan v. State,
284 P.2d 744, 749 (Okla. Crim. App. 1955) (metal automobile window crank); State v.
Barrientos, 444 N.W.2d 374, 377 (S.D. 1989) (race car); Bui v. State, 964 S.W.2d 335, 342

12
(Tex. Crim. App. 1998) (Duraflame log); Broom v. State, 242 S.W. 236, 238 (Tex. Crim.
App. 1922) (breast yoke of a wagon); State v. Bodoh, 595 N.W.2d 330, 333 (Wis. 1999)
(dog). Our own actual use cases have included such situational deadly weapons as a human
mouth, a trivet, a brick wall, and a screwdriver. See Neatherlin, 2007-NMCA-035, ¶¶ 13,
15 (reviewing precedents and concluding that the statutory catchall language “is broad
enough to include an individual’s mouth” in the factual context of a particular case).

{41} This Court recently reaffirmed the long-standing approach of New Mexico case law
“that it effectuates the legislative intent to give Section 30-1-12(B) a narrow construction.”
Traeger, 2001-NMSC-022, ¶ 12. In Traeger, we held that because a baseball bat was not
specifically named in the statute as a deadly weapon per se, it was for the jury to decide
whether a baseball bat was sufficiently dangerous to be a “deadly weapon” when used in an
aggravated battery. Id.; see also ¶ 26 (“[W]e retain the rule that if the item is not specifically
listed in Section 30-1-12(B), then a jury should make that determination considering the
character of the instrument and manner of its use.”).

{42} Of particular significance to the case at bar, Traeger cautioned that if this Court were
to make a baseball bat a per se deadly weapon under the general definitional statute in the
Criminal Code, it would have far-reaching implications for other statutes and would
criminalize the mere carrying of a bat in a variety of situations. Id. ¶ 15. “We believe that
to criminalize the carrying of a baseball bat, without a jury finding that the baseball bat was
a deadly weapon and that the baseball bat was in fact being carried because it could be used
as a weapon, is incongruent with New Mexico law.” Id.

{43} Traeger’s concerns apply with equal force here. If we were to hold that a
pocketknife is a per se deadly weapon, it would mean a person who carried one at work, on
a fishing trip, or virtually anywhere else would commit the criminal offense of carrying a
deadly weapon, in violation of Section 30-7-2. It would increase that statute’s potential six-
month penalty to a potential jail sentence of up to a year if the defendant took a bus to work
while carrying the pocketknife, under the provisions of Section 30-7-13. And in this case,
if Nick’s father had gone to pick his son up at school or had gone to a parent-teacher
conference with his own utilitarian work knife in his pocket, he could have been imprisoned
and lost his civil rights for the felony of carrying a deadly weapon on school premises, under
the terms of the same statute that was applied to Nick below. Indeed, the same far-reaching
theory could result in criminal liability for innocently possessing any of the tools, other
objects, and even body parts that have been found to constitute deadly weapons when used
offensively. We simply cannot attribute to the Legislature any such unexpressed objectives
in enacting New Mexico’s deadly weapons statutes.

D. School Security Concerns

{44} In 1994, when the Legislature enacted the statute making it a felony to possess deadly
weapons on school grounds, it neither created a new definition of “deadly weapons” for use
in school cases nor amended in any way the existing general definition in the Criminal Code.

13
Cf. State v. Salazar, 1997-NMCA-043, ¶ 9, 123 N.M. 347, 940 P.2d 195 (“We believe the
legislature intended [in Section 30-7-1] that its definition of carrying a deadly weapon would
apply to all statutes making it a crime to carry a deadly weapon, whether concealed or on
school premises.”) Doe v. State ex rel. Governor’s Organized Crime Prevention Comm’n,
114 N.M. 78, 80, 835 P.2d 76, 78 (1992) (stating that the Legislature is presumed to know
about existing laws and cannot be inferred to have enacted a law inconsistent with an
existing law). The Legislature simply expanded the existing criminal consequences for
carrying a deadly weapon, from petty misdemeanor to fourth-degree felony penalties, if the
crime was committed on school grounds. It expressed no intention whatsoever to change the
definition of a deadly weapon.

{45} We are sensitive to the concern expressed by the State that “the social problem of
deadly weapons in the schools is certainly more formidable and intractable than it was in
1855.” This Court, however, must be careful not to intrude on the exclusive legislative
prerogative to take those kinds of arguments into account in deciding whether an existing
statute should be changed. Whether or not concerns of security arguably might now justify
criminalizing the simple possession of potentially dangerous utilitarian tools on school
grounds, “this Court is not the entity charged with the modernization of the relevant statute.”
Traeger, 2001-NMSC-022, ¶ 14 (declining to add a baseball bat as a modern expansion of
the historical bludgeon included in the definition).

{46} Nor is anything in this opinion intended to impair the existing authority of school
authorities to promulgate and enforce administrative security measures of the kind the Taos
School Superintendent expeditiously employed in this case before the District Attorney filed
charges under the criminal statutes. See, e.g., Taos High School, Student Behavior Policy,
in Handbook §§ IV(A)-(B)(1), VI(A)(2)(p)-(q) (2008) (listing both possession of a weapon
of any kind and possession of a pocketknife among specific examples of behavior that may
result in school disciplinary action); Santa Fe Public Schools, Board of Education Policy
Manual §§ 336-3 to -4, 347-1 (2002) (prohibiting possession of “any firearm, knife . . . or
other object, even if manufactured for a nonviolent purpose, that has a potentially violent
use, or any ‘look-a-like’ object that resembles an object that has a potentially violent use, if,
under the surrounding circumstances, the purpose of keeping or carrying the object is for
use, or threat of use, as a weapon”); Albuquerque Public Schools, Student Behavior
Handbook: 2008-2009 11, 25 (2008) (prohibiting possession of, among other items, “a
firearm, any type of gun, knife, club . . . that may cause or is intended to cause injury or
death”). The Legislature has specifically mandated minimum one-year expulsions of
students who knowingly bring to school any firearms, explosives, or incendiary devices.
NMSA 1978, § 22-5-4.7 (1995).

{47} “[P]ublic school officials [have] an effective means of disciplining unruly or
disruptive pupils in an administrative fashion.” State v. Doe, 92 P.3d 521, 525 (Idaho 2004);
see also In re Julio L., 3 P.3d 383, 385 (Ariz. 2000) (en banc) (“[N]ot every violation of
public decorum or of school rules gives legal cause for criminal adjudication . . . .”).

14
{48} Whatever the Legislature or school officials may choose to do in defining and
sanctioning weapons violations in their respective spheres of authority, the courts are simply
not invested with substantive policy-making authority to create those policies. It is the duty
of the judicial branch to enforce the lawful policies established by the political branches as
they are written and intended. In this case, we follow a long and consistent interpretation
of legislative intent in reaffirming that our Legislature has not chosen to define an ordinary
pocketknife as a per se deadly weapon, without regard to either its actual or its intended use.

IV. CONCLUSION

{49} The Children’s Court erred in denying Petitioner a jury determination of whether he
intended to carry his pocketknife as a deadly weapon, as that term is defined in the
applicable New Mexico statutes, and the Court of Appeals erred in holding that he had no
right to such a jury resolution. We reverse the decision of the Court of Appeals and remand
to the Children’s Court for further proceedings in accordance with this Opinion.

{50} IT IS SO ORDERED.

____________________________________
CHARLES W. DANIELS, Justice

WE CONCUR:

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

Topic Index for State v. Nick R., No. 30,657

CL CRIMINAL LAW
CL-DW Deadly Weapon
CL-SI Specific Intent
CL-WO Weapons Offenses

ST STATUTES
ST-AP Applicability

15
ST-IP Interpretation
ST-LI Legislative Intent
ST-RC Rules of Construction

16