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N.M. Supreme Court rejects appeal of Clovis student who brought BB gun to school

The New Mexico Supreme Court clarified what constitutes the “use” of a deadly weapon in...
The New Mexico Supreme Court clarified what constitutes the “use” of a deadly weapon in committing an assault in a case involving a Clovis middle school student who brought a BB gun to school.
Published: Oct. 18, 2021 at 1:20 PM CDT
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SANTA FE, N.M. (KFDA) - The New Mexico Supreme Court clarified what constitutes the “use” of a deadly weapon in committing an assault in a case involving a Clovis middle school student who brought a BB gun to school.

In a unanimous opinion, the Court concluded that a “defendant uses a deadly weapon to commit assault where a defendant makes facilitative use of the deadly weapon.”

The Court rejected arguments by the juvenile’s attorney that use of a deadly weapon should require “weapons-related conduct” or an “affirmative action with the deadly weapon.”

According to a news release, the 12-year-old verbally threatened the principal but never showed the gun or pointed it at him.

“Facilitative use of a deadly weapon may be found if (1) a deadly weapon is present at some point during the encounter, (2) the victim knows or, based on the defendant’s words or actions, has reason to know that the defendant has a deadly weapon, and (3) the presence of the weapon is intentionally used by the defendant to facilitate the commission of the assault,” Chief Justice Michael E. Vigil wrote in the Court’s opinion.

The Court affirmed the conviction of the juvenile, who had been found guilty by a Curry County Jury for aggravated assault with a deadly weapon on a school employee and unlawfully carrying a deadly weapon on school premises.

The case stems from an incident in February of 2018 when other students reported the student had brought a gun to school. When the principal asked the student about the gun and waited for police to arrive, the student asked the principal: “What would happen if somebody shot up the school?” “Are you afraid to die?” and “How would you feel if a 12-year-old shot you?”

“In this case, a reasonable jury could have determined Child used the BB gun when his verbal threats together with the presence of the BB gun created the victim’s fear of receiving an immediate battery,” the Court wrote.

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