The New Mexico Supreme Court has ruled that a person does not necessarily have to brandish a weapon or physically attack someone with it to be found to have committed aggravated assault with a deadly weapon, reports the Courthouse News Service. The decision stems from a case in which a student was found to be carrying a BB gun on school grounds and charged with committing an aggravated assault with a deadly weapon on a school employee.
The student argued on appeal that the incident did not qualify as aggravated assault because there wasn’t enough evidence he “used” the weapon. He argued he did not “reference, gesture towards, brandish, aim or reveal” the BB gun. However, the court concluded that a “defendant uses a deadly weapon to commit assault where a defendant makes facilitative use of the deadly weapon.” “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,” the opinion clarifies. The justices determined the student therefore did commit aggravated assault.