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State v. Zachariah G.

Court of Appeals of New Mexico

October 1, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
ZACHARIAH G., Child-Appellant.

          APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Fred T. Van Soelen, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Jane A. Bernstein, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          LINDA M. VANZI, JUDGE

         {¶1} Zachariah G. (Child) appeals his adjudication of delinquency for committing aggravated assault with a deadly weapon upon a school employee, in violation of NMSA 1978, Section 30-3-9(C) (1989), and unlawful carrying of a deadly weapon on school premises, in violation of NMSA 1978, Section 30-7-2.1(A) (1994). We conclude that there is substantial evidence that Child "used" a deadly weapon in his assault. We also conclude that Child's adjudication does not violate double jeopardy. Accordingly, we affirm.

         BACKGROUND

         {¶2} The facts of this case are undisputed. One morning, the principal of Marshall Middle School in Clovis, Todd Morris, learned that Child, a twelve-year-old in the sixth grade, had some sort of a weapon on campus. Morris located Child in the hallway and escorted Child back to his office. As they were walking back to Morris's office, Child kept "fumbling in the front area of his waistband." When they reached his office, Morris had Child empty his pockets in accordance with the limited scope of search school officials were permitted to conduct. Among other items, Child removed a CO2 cartridge from his pockets, which Morris knew was commonly used with BB guns (also referred to as an air pistol). At that point, Morris also noticed a bulge in Child's waistband that "was not consistent with anything that was normal." When asked what he had in his pants, Child refused to reveal the object and told Morris that it was his "dick."[1] Although a security officer was present, Morris was feeling insecure and had his secretary call for police assistance. While they were waiting for the police to arrive, Child asked Morris the following questions: "What would happen if somebody shot up the school?" "Are you afraid to die?" and "How would you feel if a twelve-year-old shot you?" Child's questions made Morris "feel very unsecure." However, Child never told Morris that he had a gun, nor did Child remove the object from his waistband or gesture as if he had a gun. Once the officers arrived, they searched Child and found a BB gun in his pants that resembled an actual firearm.

         {¶3} The State filed a delinquency petition charging Child with aggravated assault with a deadly weapon upon a school employee and unlawful carrying of a deadly weapon on school premises. After a jury found that Child committed the crimes charged, the district court adjudicated Child a delinquent child pursuant to NMSA 1978, Section 32A-2-3(B) (2009, amended 2019), and ordered Child to complete a residential treatment program. Additionally, the district court imposed a one-year term of probation. This appeal followed.

         DISCUSSION

         {¶4} On appeal, Child raises two arguments. First, Child argues there was insufficient evidence that he "used" a deadly weapon. Second, Child argues that his adjudication of delinquency for aggravated assault with a deadly weapon upon a school employee and unlawful carrying of a deadly weapon on school premises violates double jeopardy. We address both of Child's arguments.

         Mootness

         {¶5} As a preliminary matter, we first address the State's argument that Child's appeal is moot. The State argues that we should dismiss Child's appeal because there is no longer an active controversy, as Child's term of probation has ended. Generally, appellate courts will not decide moot cases. Gunaji v. Macias, 2001 -NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008. "A case is moot when no actual controversy exists, and the court cannot grant actual relief." Id. (internal quotation marks and citations omitted). Notwithstanding this general rule, appellate courts may exercise their discretion to review moot cases that present "issues of substantial public interest or which are capable of repetition yet evade review." Id. ¶ 10. In order for an issue to be capable of repetition yet evading review, it must be likely to arise in a future controversy. Id. ¶ 11. Under our state mootness doctrine, unlike its more restrictive federal counterpart, the parties' identities are irrelevant. Id. Our Court has previously applied this exception to reach issues in children's court cases because such cases often involve short-term commitments. See, e.g., State v. Jose S., 2005-NMCA-094, ¶7, 138 N.M. 44, 116 P.3d 115; State v. Sergio B., 2002-NMCA-070, ¶ 11, 132 N.M. 375, 48 P.3d 764.

         {¶6} Child argues that this case falls within one of the exceptions to mootness because it presents issues capable of repetition yet evading review. Additionally, Child argues that this case falls within another exception to mootness for cases presenting issues of substantial public interest. We agree with Child. The State argues that Child's case does not fall within this exception because, "rather than rais[ing] general procedural or jurisdiction issues, it involves narrow questions that are specific to [Child's] case and not capable of repetition." In support of its argument, the State cites State v. Justin C, No. A-1-CA-36176, mem. op. ¶ 7 (N.M. Ct. App. Sept. 5, 2018) (non-precedential), in which our Court distinguished that case from Jose S. and Sergio B., stating "that [Justin C] does not raise general procedural or jurisdictional issues capable of repetition in the review of other juvenile dispositions." However, Justin C. is an unpublished memorandum opinion, which has no precedential value. See Rule 12-405(A) NMRA. Moreover, we do not read Jose S. and Sergio B. as requiring Child to raise only "general procedural or jurisdictional" issues in order to present issues capable of repetition yet evading review. Rather, the holdings of Jose S. and Sergio B. rest on the short-term nature of dispositions inherent to the Children's Code. See Jose S., 2005-NMCA-094, ¶7 ("[B]ecause of the short time frames for Children 's Code dispositions and the sometimes lengthy time for disposition of general calendar cases on appeal, such cases can evade review." (emphasis added)); Sergio B., 2002-NMCA-070, ¶ 11 ("Many children 's court cases will involve short-term commitments of one year or less which could expire before the case was fully briefed before this Court or our Supreme Courtx and thus these issues would evade review unless this exception was invoked." (emphasis added) (citing NMSA 1978, § 32A-2-19(B) (1996, amended 2009))). Indeed, in Sergio B., we stated, "[The c]hild also argues . . . that there was insufficient evidence to support the [district] court's judgment. Th[is] issue[] [is] also capable of repetition." 2002-NMCA-070, ¶ 11. Thus, appeals from the children's court-no matter the specific issues raised-generally fall within the exception for issues that are capable of repetition yet evading review simply because of the nature of children's court sentences. Cases from other contexts illustrate that the deciding factor is the relatively short length of the appellants' sentences, not the specific issues that they raise on appeal. See State ex rel. Children, Youth & Families Dep't v. Amanda K, 2007-NMCA-029, ¶¶ 17-18, 141 N.M. 299, 154 P.3d 674 (holding that a mother's appeal from an adjudication of neglect or abuse challenging the sufficiency of the evidence fell within the exception for cases capable of repetition yet evading review because "[m]any of these adjudications may involve only short-term deprivations of custody and district court oversight of treatment plans"). Thus, while the issues that Child raises are not "general or procedural," they are capable of repetition and evasive of review.

         {¶7} Child also argues that this case presents an issue of substantial public interest because-as we discuss below-our Courts have not addressed what constitutes "use" of a deadly weapon in the course of an assault, which is a question that will most likely recur in the future. See State v. Jones, 1998-NMCA-076, ¶ 15, 125 N.M. 556, 964 P.2d 117 ("In determining whether the requisite degree of public interest exists to prevent dismissal on mootness grounds, we consider among other factors ... the desirability of an authoritative determination for future guidance of public officers, and the likelihood that the question will recur in the future."). We agree. Accordingly, we exercise our discretion to decide Child's appeal despite his term of probation having ended.

         Sufficiency of the Evidence

         {¶8} Child challenges the sufficiency of the evidence supporting the jury's finding that he committed aggravated assault with a deadly weapon on a school employee. "The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation omitted). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks and citation omitted). "In reviewing whether there was sufficient evidence to support a conviction, we resolve all disputed facts in favor of the [s]tate, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary." Id. (internal quotation marks and citation omitted). "Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." State v. Garcia, 2009-NMCA-107, ¶ 21, 147 N.M. 150, 217 P.3d 1048 (internal quotation marks and citation omitted). To the extent Child's argument implicates questions of statutory interpretation, our review is de novo. See State v. Neatherlin, 2007-NMCA-035, ¶ 8, 141 N.M. 328, 154 P.3d 703.

         {¶9} New Mexico defines assault, in relevant part, as "any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery[.]" NMSA 1978, § 30-3-1(B) (1963). The offense is aggravated when it is committed with a deadly weapon. State v. Branch, 2018-NMCA-031, ¶ 12, 417 P.3d 1141; see NMSA 1978, § 30-3-2(A) (1963). Here, Child was charged with a specific form of aggravated assault on a school employee, which is defined, in pertinent part, as "unlawfully assaulting or striking at a school employee with a deadly weapon while he is in the lawful discharge of his duties[.]" Section 30-3-9(C)(1). Consistent with UJI 14-355 NMRA, the district court instructed the jury that, in order to find that Child committed aggravated assault with a deadly weapon, it had to find beyond a reasonable doubt that:

1. ... Child threatened to shoot. . . Morris;
2. ... Child's conduct caused . . . Morris to believe that. . . Child was about to intrude on ... Morris's bodily integrity or personal safety by touching or applying force to . . . Morris in a rude, insolent[, ] or angry manner;
4. A reasonable person in the same circumstances as . . . Morris would have had ...

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