High court: Hidden gun can still be an ‘assault’

Ruling involves boy, 12, who was found at school with concealed BB gun

The state Supreme Court ruled Monday that an attacker can be convicted of aggravated assault with a deadly weapon without actually brandishing a gun.

The ruling upheld the finding of juvenile delinquency of a 12-yearold boy who brought a BB gun to school and later made threatening comments to the school’s principal.

The BB gun remained concealed in the child’s waistband until police searched the boy.

In a unanimous opinion, the court clarified that an attacker has “used” a deadly weapon to commit aggravated assault as long as the victim knows, or has reason to know, that the attacker is armed.

The ruling stems from a February 2018 incident in which a student brought an air-powered BB gun to a Clovis middle school, according to the opinion. The principal took the sixth-grade student, Zachariah G., to his office after learning the child had a weapon on campus.

Zachariah refused to produce the gun after the principal observed a bulge in the boy’s waistband and found BB gun accessories in the boy’s pockets.

While waiting for police to arrive, Zachariah made comments to the principal, including, “Are you afraid to die?” and “How would you feel if a 12 year old shot you?”

A 9th Judicial District Court judge found the boy to be a juvenile delinquent after a jury found him guilty of aggravated assault with a deadly weapon.

The state Court of Appeals later affirmed the finding of juvenile delinquency because the child “used” the BB gun in the assault.

Justices rejected the argument by the boy’s attorney that use of a deadly weapon should require “weapons-related conduct,” such as brandishing a gun.

Writing for the court, Chief Justice Michael E. Vigil said that an attacker makes use of a weapon when “the victim knows or, based on the defendant’s words or actions, has reason to know that the defendant has a deadly weapon” used in the commission of an assault.