{ "id": 3669906, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Richard Don NEATHERLIN, Defendant-Appellant", "name_abbreviation": "State v. Neatherlin", "decision_date": "2007-02-09", "docket_number": "No. 25,729", "first_page": "328", "last_page": "338", "citations": [ { "type": "official", "cite": "141 N.M. 328" }, { "type": "parallel", "cite": "154 P.3d 703" }, { "type": "parallel", "cite": "2007-NMCA-035" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "121 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566569 ], "weight": 8, "year": 1995, "pin_cites": [ { "page": "42-43", "parenthetical": "discussing the strict elements approach when the state has requested an instruction on the lesser offense" }, { "page": "735-36", "parenthetical": "discussing the strict elements approach when the state has requested an instruction on the lesser offense" }, { "page": "43-44" }, { "page": "736-37", "parenthetical": "concluding that a lesser offense is necessarily included when under the facts alleged in the charging document and supported by the evidence, the defendant could not have committed the greater offense without also committing the lesser offense" }, { "page": "44" }, { "page": "737" }, { "page": "52" }, { "page": "745", "parenthetical": "Ransom, J., specially concurring" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0038-01" ] }, { "cite": "2006-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2545160 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0001-01" ] }, { "cite": "1998-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827374 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0338-01" ] }, { "cite": "1999-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257627 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0207-01" ] }, { "cite": "2003-NMSC-021", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77137 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0152-01" ] }, { "cite": "2000-NMCA-047", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217126 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0165-01" ] }, { "cite": "120 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558841 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "520", "parenthetical": "stating that an appellate court does not consider \"the merit of evidence that may have supported a verdict to the contrary\" (internal quotation marks and citation omitted)" }, { "page": "831", "parenthetical": "stating that an appellate court does not consider \"the merit of evidence that may have supported a verdict to the contrary\" (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0517-01" ] }, { "cite": "2000-NMCA-075", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217188 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 15, 18" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0424-01" ] }, { "cite": "93 N.Y.2d 398", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 188444 ], "weight": 5, "year": 1999, "pin_cites": [ { "parenthetical": "holding that teeth, a body part, do not constitute an \"instrument\" under the statute (emphasis omitted)" }, { "parenthetical": "holding that teeth, a body part, do not constitute an \"instrument\" under the statute (emphasis omitted)" }, { "page": "1229", "parenthetical": "holding that teeth, a body part, do not constitute an \"instrument\" under the statute (emphasis omitted)" }, { "page": "1229", "parenthetical": "stating that the \"defendant bit the victim's finger so severely that nerves were severed\"" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/93/0398-01" ] }, { "cite": "6 Neb.App. 426", "category": "reporters:state", "reporter": "Neb. Ct. App.", "case_ids": [ 1673499 ], "weight": 3, "year": 1998, "pin_cites": [ { "parenthetical": "holding that teeth are not to be considered a dangerous instrument" }, { "page": "633", "parenthetical": "holding that teeth are not to be considered a dangerous instrument" }, { "page": "627", "parenthetical": "observing that the defendant bit off a piece of the victim's nose" } ], "opinion_index": 0, "case_paths": [ "/neb-app/6/0426-01" ] }, { "cite": "406 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "420", "parenthetical": "holding that teeth and other human body parts should not be considered as dangerous weapons, even on a case-by-case basis" }, { "page": "418", "parenthetical": "observing that the defendant bit off a piece of the victim's ear" } ], "opinion_index": 0 }, { "cite": "10 Mass.App.Ct. 190", "category": "reporters:state", "reporter": "Mass. App. Ct.", "case_ids": [ 3963205 ], "year": 1980, "pin_cites": [ { "parenthetical": "holding that teeth and other human body parts should not be considered as dangerous weapons, even on a case-by-case basis" } ], "opinion_index": 0, "case_paths": [ "/mass-app-ct/10/0190-01" ] }, { "cite": "555 So.2d 285", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7514568 ], "pin_cites": [ { "page": "287-88" } ], "opinion_index": 0, "case_paths": [ "/so2d/555/0285-01" ] }, { "cite": "846 F.2d 1163", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1788535 ], "weight": 3, "pin_cites": [ { "page": "1168" }, { "page": "1167", "parenthetical": "relying on a doctor's testimony that a human bite, which can be more dangerous than a dog bite, is capable of causing serious infection and \"can be a very dangerous form of aggression\" (internal quotation marks omitted)" }, { "page": "1167", "parenthetical": "\"[I]t is the capacity for harm in the weapon and its use that is significant, not the actual harm inflicted.... [The defendant] used his mouth and teeth in a way that could have transmitted disease.\" (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/f2d/846/1163-01" ] }, { "cite": "48 F.3d 784", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7410746 ], "weight": 4, "pin_cites": [ { "page": "788" }, { "page": "788" }, { "page": "787", "parenthetical": "\"[W]hat constitutes a dangerous weapon depends not on the object's intrinsic character but on its capacity, given the manner of its use, to endanger life or inflict serious physical harm.\" (internal quotation marks and citation omitted)" }, { "page": "789", "parenthetical": "\"The assertion that human teeth can never qualify as a dangerous weapon ignores the harm to those on whom these bites were inflicted.\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/48/0784-01" ] }, { "cite": "1981 WL 167463", "category": "reporters:specialty_west", "reporter": "WL", "opinion_index": 0 }, { "cite": "8 A.L.R.4th 1268", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": 0 }, { "cite": "85 N.M. 780", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2774872 ], "weight": 4, "pin_cites": [ { "page": "781" }, { "page": "1307" }, { "page": "781" }, { "page": "1307", "parenthetical": "stating that the jury can resolve the question of fact regarding the character of a tire tool and its use as a deadly weapon through hearing or viewing descriptions of the tool and its use or through viewing the tool itself when a description of the tool's use is provided" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0780-01" ] }, { "cite": "97 N.M. 64", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555139 ], "weight": 4, "pin_cites": [ { "page": "65" }, { "page": "884" }, { "page": "65" }, { "page": "884" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0064-01" ] }, { "cite": "1998-NMCA-178", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827428 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 1" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0382-01" ] }, { "cite": "1999-NMCA-023", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827414 ], "weight": 23, "pin_cites": [ { "page": "\u00b6 1" }, { "page": "\u00b6 5" }, { "page": "\u00b6 6" }, { "page": "\u00b6 8" }, { "page": "\u00b6 9" }, { "page": "\u00b6 6" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0609-01" ] }, { "cite": "36 N.M. 253", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586526 ], "weight": 2, "year": 1932, "pin_cites": [ { "page": "255", "parenthetical": "rock" }, { "page": "555", "parenthetical": "rock" } ], "opinion_index": 0, "case_paths": [ "/nm/36/0253-01" ] }, { "cite": "2001-NMCA-027", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352453 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 16" }, { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0295-01" ] }, { "cite": "2001-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183116 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 4" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0347-01" ] }, { "cite": "2001-NMCA-094", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183133 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0195-01" ] }, { "cite": "2003-NMCA-076", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15859 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 4" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0794-01" ] }, { "cite": "2004-NMCA-077", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224672 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0008-01" ] }, { "cite": "98 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582521 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "212" }, { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0211-01" ] }, { "cite": "2001-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352435 ], "weight": 21, "year": 1982, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 10" }, { "page": "\u00b6 16" }, { "page": "\u00b6 16" }, { "page": "\u00b6 16" }, { "page": "\u00b6 20" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0618-01" ] }, { "cite": "2000-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217140 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0767-01" ] }, { "cite": "2004-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224656 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 54" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0348-01" ] }, { "cite": "2000-NMSC-021", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217106 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 30" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0284-01" ] }, { "cite": "2000-NMCA-085", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217150 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 14" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0547-01" ] }, { "cite": "2004-NMCA-103", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224639 ], "weight": 9, "pin_cites": [ { "page": "\u00b6\u00b6 11, 13" }, { "page": "\u00b6\u00b6 7, 15" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0235-01" ] } ], "analysis": { "cardinality": 1099, "char_count": 29484, "ocr_confidence": 0.696, "pagerank": { "raw": 9.919575242149246e-08, "percentile": 0.5360505573877087 }, "sha256": "fbffe40acbe56efae5d303842316fda6daf1c3d4beeb76729529347d817ee36a", "simhash": "1:da6ae0894c8b66a0", "word_count": 4910 }, "last_updated": "2023-07-14T21:58:03.770248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD and CYNTHIA A. FRY, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Richard Don NEATHERLIN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCASTILLO, Judge.\n{1} Defendant appeals his conviction for aggravated battery with a deadly weapon, a third-degree felony. In our review of this case, we are required to determine if the human mouth can be a deadly weapon, pursuant to NMSA 1978, \u00a7 30-l-12(B) (1963) (defining \u201cdeadly weapon\u201d), and NMSA 1978, \u00a7 30-3-5(C) (1969) (explaining felony aggravated battery). We conclude that a jury could reasonably determine that the human mouth is a deadly weapon if the mouth is used in a manner that could cause death or great bodily harm. We hold that sufficient evidence existed to support the jury\u2019s determination in this case. We also conclude that the trial court erred when it refused to give a jury instruction for misdemeanor aggravated battery as a lesser included offense. Thus, we reverse and remand for a new trial in accordance with this opinion.\nI. BACKGROUND\n{2} Defendant and Victim were traveling in a vehicle with three other individuals, namely Defendant\u2019s wife, Victim\u2019s friend, and the driver of the vehicle. At some point, a fight occurred in the vehicle. Testimony at trial yielded widely varying accounts of the fight. Defendant admitted, however, that he bit Victim in the course of the altercation, but Defendant claimed that he did so only in self-defense. The driver of the vehicle testified that he heard Defendant say as he was biting Victim, \u201cI hope you die[;] I hope you die.\u201d\n{3} Victim was taken to the emergency room, where she was treated for injuries resulting from the fight in the vehicle. Among other injuries, Victim had two bite marks on her left arm \u2014 one bite on her upper arm and one on the forearm. In both bites, the skin was broken. Victim recovered from her injuries in about three weeks.\n{4} The emergency room doctor offered Victim testing for hepatitis and HIV to determine her possible exposure from the bites inflicted by Defendant. Victim declined the testing at that time, and no evidence was presented indicating whether Victim was later tested. Defendant\u2019s blood was not tested by the State. During the course of the State\u2019s investigation, however, Defendant admitted that he had hepatitis C, and he said that as a result of the disease, he did not expect to live much longer. In addition, Defendant\u2019s wife later testified that Defendant had previously tested positive for hepatitis C and that he had hepatitis C when he bit Victim.\n{5} At trial, the doctor provided the following testimony about the nature of hepatitis C. It is a viral illness transmitted primarily by blood through transfusions, needles, and mucosal contact with blood. The virus is also shed in saliva. Although it is not likely that the virus would be transmitted through a human bite, it is \u201ccertainly possible.\u201d There are several documented cases in which the only risk factor was exposure through bites. Two percent of those individuals who are exposed to hepatitis C, through saliva or blood, will test positive for the virus as a result. When the virus is transmitted, ninety-five percent of people will have no symptoms; however, twenty percent or more will develop cirrhosis and chronic liver disease, and one to three percent will go on to have liver cancer. Liver cancer caused by hepatitis C can, over a long period of time, result in death.\n{6} Defense counsel requested a jury instruction on the lesser offense of misdemean- or aggravated battery. See \u00a7 30 \u2014 3\u20145(B). The trial court denied the misdemeanor instruction; the jury was instructed only on aggravated battery with a deadly weapon. See \u00a7 30-3-5(C). The State reasoned that by biting Victim, Defendant used his mouth as a weapon to intentionally injure Victim and that Defendant\u2019s mouth could have caused death or great bodily harm because he had hepatitis C. The jury returned a verdict of guilty, and this appeal followed.\n{7} Defendant makes two arguments. First, he argues that there was insufficient evidence to convict him of aggravated battery with a deadly weapon. Second, Defendant argues that the trial court erred by refusing to instruct the jury regarding the lesser offense of misdemeanor aggravated battery.\nII. STANDARD OF REVIEW\n{8} When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the State; we resolve all conflicts and indulge all permissible inferences in favor of the verdict. State v. Johnson, 2004-NMSC-029, \u00b6 54, 136 N.M. 348, 98 P.3d 998. We must determine if substantial evidence exists to support a verdict of guilt beyond a reasonable doubt with respect to each element necessary for conviction. Id. In so doing, we do not reweigh the evidence or substitute our judgment for that of the jury. State v. Sosa, 2000-NMSC-036, \u00b6 6, 129 N.M. 767, 14 P.3d 32. Sufficiency of the evidence to support a conviction and interpretation of a statute are both questions of law, which are reviewed de novo. State v. Traeger, 2001-NMSC-022, \u00b6 9, 130 N.M. 618, 29 P.3d 518; State v. Anaya, 98 N.M. 211, 212, 647 P.2d 413, 414 (1982); State v. Shay, 2004-NMCA-077, \u00b6 7, 136 N.M. 8, 94 P.3d 8. The issue of whether Defendant\u2019s mouth is a deadly weapon is \u201cone of law, applying law to the facts and requiring statutory construction; our review is de novo.\u201d State v. Galaz, 2003-NMCA-076, \u00b6 4, 133 N.M. 794, 70 P.3d 784.\n{9} When reviewing the trial court\u2019s denial of a jury instruction, \u201c[w]e view the evidence in the light most favorable to the giving of the requested instruction.\u201d State v. Hill, 2001-NMCA-094, \u00b6 5, 131 N.M. 195, 34 P.3d 139. The question of proper denial of a jury instruction is a mixed question of law and fact, which we review de novo. State v. Gaines, 2001-NMSC-036, \u00b6 4, 131 N.M. 347, 36 P.3d 438.\nIII. DISCUSSION\nA. Sufficiency of the Evidence\n{10} Defendant argues first that the State failed to meet its burden of proving, beyond a reasonable doubt, each element of the crime of aggravated battery with a deadly weapon. See \u00a7 30-3-5(C). Specifically, Defendant contends that the State failed to prove that Defendant used a \u201cdeadly weapon.\u201d\n{11} The term \u201cdeadly weapon\u201d is defined as\nany 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.\nSection 30-l-12(B). Instruments or objects that are specifically listed in Section 30-1-12(B) are considered deadly weapons per se, or as a matter of law. Traeger, 2001-NMSC-022, \u00b6 10, 130 N.M. 618, 29 P.3d 518. If an instrument or object is not listed, the jury must determine whether the item is a deadly weapon. Id. \u00b6 12. In making this determination, the jury must decide whether the object or instrument is a \u201cweapon which is capable of producing death or great bodily harm\u201d or a weapon \u201cwith which dangerous wounds can be inflicted.\u201d Section 30-1-12(B); UJI 14-322 NMRA; State v. Anderson, 2001-NMCA-027, \u00b6 15, 130 N.M. 295, 24 P.3d 327. The jury considers the circumstances of the case, including the \u201ccharacter of the instrument and the manner of its use.\u201d Anderson, 2001-NMCA-027, \u00b6 16, 130 N.M. 295, 24 P.3d 327 (internal quotation marks and citation omitted); see also Traeger, 2001-NMSC-022, \u00b6 16, 130 N.M. 618, 29 P.3d 518 (\u201c[T]he question of whether the item is a deadly weapon, given the defendant\u2019s use and the character of the item, should be submitted to the jury for a finding of fact.\u201d).\n{12} The jury is specifically instructed that an instrument or object, used as a weapon by a defendant, can be a deadly weapon only if the jury finds that the instrument, \u201cwhen used as a weapon, could cause death or great bodily harm.\u201d UJI 14-322; see also Traeger, 2001-NMSC-022, \u00b6 16, 130 N.M. 618, 29 P.3d 518 (\u201c[W]e require that a jury determine, given the defendant\u2019s use, if the baseball bat was capable of producing death or great bodily harm.\u201d (internal quotation marks and citation omitted)). Thus, in our case, in order to prove that Defendant committed aggravated battery with a deadly weapon, the State was required to show that Defendant\u2019s mouth, when used as a weapon, could cause death or great bodily harm. The requisite showing that an object was used as a deadly weapon is often made by the state \u201cwhile establishing other elements of the crime like intent, motive, method, or the resulting injury.\u201d Traeger, 2001-NMSC-022, \u00b6 16, 130 N.M. 618, 29 P.3d 518.\n{13} Defendant argues that New Mexico courts have never considered the human mouth to be a deadly weapon; he asserts that in each relevant New Mexico case, the jury has considered an \u201cexternal instrumentality, something with which a defendant arms himself.\u201d See id. \u00b6 1 (baseball bat); State v. Conwell, 36 N.M. 253, 255, 13 P.2d 554, 555 (1932) (rock); Anderson, 2001-NMCA-027, \u00b6 7, 130 N.M. 295, 24 P.3d 327 (stick); State v. Monta\u00f1o, 1999-NMCA-023, \u00b6 1, 126 N.M. 609, 973 P.2d 861 (brick wall); State v. Bonham, 1998-NMCA-178, \u00b6 1, 126 N.M. 382, 970 P.2d 154 (trivet), abrogated on other grounds, Traeger, 2001-NMSC-022, \u00b6 20, 130 N.M. 618, 29 P.3d 518; State v. Candelaria, 97 N.M. 64, 65, 636 P.2d 883, 884 (Ct.App.1981) (screwdriver); State v. Gonzales, 85 N.M. 780, 781, 517 P.2d 1306, 1307 (Ct.App.1973) (tire tool). Thus, Defendant contends that our precedent precludes, as a matter of law, the jury from considering the human mouth as a weapon. This question is an issue of first impression in New Mexico.\n{14} In other jurisdictions, the majority rule is that body parts, i.e., bare fists and teeth, are not considered weapons. See generally Vitauts M. Gulbis, Annotation, Parts of the Human Body, Other Than Feel, as Deadly or Dangerous Weapons for Purposes of Statutes Aggravating Offenses Such as Assault and Robbery, 8 A.L.R.4th 1268, 1981 WL 167463 (1981 & Supp.2006). In cases that have specifically addressed the mouth or teeth as a weapon, the jurisdictions are split. Compare United States v. Sturgis, 48 F.3d 784, 788 (4th Cir.1995) (\u201c[A] jury could reasonably have concluded that [the defendant\u2019s] use of his teeth to inflict potentially lethal bite wounds amounted to use of a dangerous weapon.\u201d); United States v. Moore, 846 F.2d 1163, 1168 (8th Cir.1988) (holding that the defendant\u2019s mouth and teeth could be a deadly weapon); and Brock v. State, 555 So.2d 285, 287-88 (Ala.Crim.App.1989) (concluding that teeth can be a deadly weapon but ruling that no evidence was presented that the biting in this case had the capacity to result in serious physical injury), with Commonwealth v. Davis, 10 Mass.App.Ct. 190, 406 N.E.2d 417, 420 (1980) (holding that teeth and other human body parts should not be considered as dangerous weapons, even on a case-by-case basis); State v. Bachelor, 6 Neb.App. 426, 575 N.W.2d 625, 633 (1998) (holding that teeth are not to be considered a dangerous instrument); and People v. Owusu, 93 N.Y.2d 398, 690 N.Y.S.2d 863, 712 N.E.2d 1228, 1229 (1999) (holding that teeth, a body part, do not constitute an \u201cinstrument\u201d under the statute (emphasis omitted)). As we explain below, New Mexico statutes and precedent are more in line with those out-of-state cases that hold that the mouth or teeth can be considered a deadly weapon, at least when they are in fact used in a manner that could cause death or great bodily harm.\n{15} This Court has previously relied on the definition of \u201cweapon\u201d from Black\u2019s Law Dictionary 1593 (6th ed. 1990): \u201c \u2018An instrument of offensive or defensive combat, or anything used, or designed to be used, in destroying, defeating, threatening, or injuring a person.\u2019\u201d Monta\u00f1o, 1999\u2014 NMCA-023, \u00b6 5, 126 N.M. 609, 973 P.2d 861; see also Galaz, 2003-NMCA-076, \u00b6 10, 133 N.M. 794, 70 P.3d 784. This definition of \u201cweapon\u201d \u2014 anything used to injure a person \u2014 is broad enough to include an individual\u2019s mouth. See Monta\u00f1o, 1999-NMCA-023, \u00b6 5, 126 N.M. 609, 973 P.2d 861 (concluding that this definition is broad enough to include a brick wall). Clearly, the mouth, which includes the teeth and saliva, can be used to injure a person. See Davis, 406 N.E.2d at 418 (observing that the defendant bit off a piece of the victim\u2019s ear); Bachelor, 575 N.W.2d at 627 (observing that the defendant bit off a piece of the victim\u2019s nose); Owusu, 690 N.Y.S.2d 863, 712 N.E.2d at 1229 (stating that the \u201cdefendant bit the victim\u2019s finger so severely that nerves were severed\u201d); see also Moore, 846 F.2d at 1167 (relying on a doctor\u2019s testimony that a human bite, which can be more dangerous than a dog bite, is capable of causing serious infection and \u201ccan be a very dangerous form of aggression\u201d (internal quotation marks omitted)). Thus, the question of whether the mouth has been used as a deadly weapon is for the jury. Monta\u00f1o, 1999-NMCA-023, \u00b6 6, 126 N.M. 609, 973 P.2d 861 (\u201cOur Courts have long reserved for the fact finder the question of whether an object not specifically listed by statute, when used by a defendant in committing a crime, is a deadly weapon.\u201d); Bonham, 1998-NMCA-178, \u00b6 25, 126 N.M. 382, 970 P.2d 154 (agreeing that the jury instruction \u201cdefined a trivet as a deadly weapon, thereby usurping the jury\u2019s function of deciding whether a trivet is a deadly weapon\u201d); Candelaria, 97 N.M. at 65, 636 P.2d at 884 (concluding that the victim\u2019s testimony was sufficient for the jury to find that a screwdriver was used as a deadly weapon \u2014 the defendant held a screwdriver most of the time he was in the victim\u2019s home; the defendant was on top of the victim on the kitchen floor; the defendant held the screwdriver to the victim\u2019s throat and told her that he was going to kill her); Gonzales, 85 N.M. at 781, 517 P.2d at 1307 (stating that the jury can resolve the question of fact regarding the character of a tire tool and its use as a deadly weapon through hearing or viewing descriptions of the tool and its use or through viewing the tool itself when a description of the tool\u2019s use is provided). New Mexico cases illustrate that a determination regarding an object\u2019s status as a deadly weapon requires a functional inquiry into the manner of use. The test cannot be mechanical or reduced to a question of law. Sturgis, 48 F.3d at 788. The jury must determine, under the circumstances of each case, if the defendant used the object in a manner that could cause death or great bodily harm. See, e.g., id.; Traeger, 2001-NMSC-022, \u00b6 10, 130 N.M. 618, 29 P.3d 518.\n{16} The distinction between wielding an object or instrument that is external to the body to cause injury and using one\u2019s mouth to cause injury is an unsupportable difference. See Monta\u00f1o, 1999-NMCA-023, \u00b6 8, 126 N.M. 609, 973 P.2d 861 (stating that the distinction between wielding a single brick as a weapon and using a brick wall is an \u201cunsupportable difference\u201d). \u201cThe aggravated battery statute is directed at preserving the integrity of a person\u2019s body against serious injury.\u201d State v. Vallejos, 2000-NMCA-075, \u00b6\u00b6 15, 18, 129 N.M. 424, 9 P.3d 668 (discussing double jeopardy). Thus, we construe the statute to protect an individual from the possibility of serious injury, regardless of the nature of the instrument used to injure. See Sturgis, 48 F.3d at 787 (\u201c[W]hat constitutes a dangerous weapon depends not on the object\u2019s intrinsic character but on its capacity, given the manner of its use, to endanger life or inflict serious physical harm.\u201d (internal quotation marks and citation omitted)). \u201cThe purpose of aggravating the charge and enhancing the sentence for use of a weapon is to minimize injury to human beings no matter how the injury is inflicted and discourage people from using objects to injure another.\u201d Monta\u00f1o, 1999-NMCA-023, \u00b6 9, 126 N.M. 609, 973 P.2d 861. With our conclusion today, we serve the purpose of the statute by minimizing the risk of injury from human bites and by discouraging people from using their mouths to injure others. See Sturgis, 48 F.3d at 789 (\u201cThe assertion that human teeth can never qualify as a dangerous weapon ignores the harm to those on whom these bites were inflicted.\u201d).\n{17} Defendant also argues that even if the mouth could be a deadly weapon for purposes of Sections 30-1-12 and 30-3-5, the evidence is insufficient to prove that Defendant used his mouth as a deadly weapon. As stated earlier, the State did not offer into evidence any medical tests that showed Defendant suffered from hepatitis C. Defendant admitted, however, to having hepatitis C. Moreover, Defendant\u2019s wife testified that Defendant was diagnosed with hepatitis C when they got married in 2001 and that Defendant had the disease at the time he bit Victim. In addition, the doctor testified that transmission of the hepatitis C virus is possible through a bite that breaks the skin and that hepatitis C could result in liver cancer, ultimately leading to death. Finally, a witness testified that Defendant, while biting Victim, told Victim that he hoped she would die. From this evidence, the jury could conclude that Defendant used his mouth in a manner that could cause death and that by definition, Defendant\u2019s mouth was thus used as a deadly weapon. See \u00a7 30-l-12(B) (\u201c \u2018[D]eadly weapon\u2019 means ... any weapon which is capable of producing death[.]\u201d); Monta\u00f1o, 1999-NMCA-023, \u00b6 6, 126 N.M. 609, 973 P.2d 861 (\u201cThe determination by the fact finder depends upon the evidence presented about the object and its manner of use.\u201d); see also State v. Kersey, 120 N.M. 517, 520, 903 P.2d 828, 831 (1995) (stating that an appellate court does not consider \u201cthe merit of evidence that may have supported a verdict to the contrary\u201d (internal quotation marks and citation omitted)); State v. Jones, 2000-NMCA-047, \u00b6 19, 129 N.M. 165, 3 P.3d 142 (recognizing that spitting or throwing bodily waste may give rise to a rational concern about communicable disease or infection when such battery is committed by a known carrier of disease or infection).\n{18} Defendant appears to argue that his mouth could not be a deadly weapon because the prospect of death or great bodily harm was not probable but merely speculative. Defendant\u2019s argument fails, however, because it ignores the terms contained in the statute and the jury instruction. The term \u201ccapable of producing\u201d is found in the statutory definition of deadly weapon, while the term \u201ccould cause\u201d is used in the jury instruction. Compare \u00a7 30-l-12(B), with UJI 14-322. Both terms, however, are similar in that they do not require a certain probability of occurrence, but rather focus on any probability of occurrence.. In our case, the jury was instructed as follows: \u201cThe Defendant\u2019s mouth is a deadly weapon only if you find that the Defendant\u2019s mouth, when used as a weapon, could cause death or great bodily harm[.]\u201d\n{19} As discussed in paragraph 5, the State provided evidence that a bite from Defendant could cause death. Defendant admitted and his wife testified that he had hepatitis C. Defendant admitted biting Victim, and evidence showed that Defendant\u2019s bites broke the skin. The doctor testified that hepatitis C can be transmitted through saliva, that one to three percent of those testing positive for hepatitis C would go on to have liver cancer, and that liver cancer can cause death. Thus, the jury could determine that Defendant used his mouth as a deadly weapon because the evidence supported a conclusion that Defendant\u2019s mouth \u201ccould cause death.\u201d UJI 14-322. Although it was not likely that Victim would develop liver cancer resulting in death, the potential for death was sufficient to meet the standard enunciated in the statute and the jury instruction. See Monta\u00f1o, 1999-NMCA-023, \u00b6 9, 126 N.M. 609, 973 P.2d 861 (\u201c[A]n enhanced penalty can result when use of an object or instrument increases the severity of injury to the victim to the statutorily[ ]required levels.\u201d).\n{20} Moreover, the State offered evidence that a bite from Defendant could cause great bodily harm. The term \u201cgreat bodily harm\u201d is defined as \u201can injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body.\u201d Section 30-l-12(A). Reading the definitions of deadly weapon and great bodily harm together, we note that the definition of deadly weapon includes any weapon that could cause an injury resulting in impairment to the function of an organ of the body. In our case, Defendant\u2019s teeth could have caused an injury that resulted in impairment of the liver function. The doctor testified that twenty percent of those testing positive for hepatitis C would develop cirrhosis of the liver. Thus, if Victim were one of those two percent at risk who would test positive for hepatitis C, she would have a twenty percent chance of having impaired liver function. This potential for impaired function resulting from the injury, though arguably small, is sufficient to satisfy the standard found in the statute and the jury instruction. See \u00a7 30 \u2014 1\u201412(B); UJI 14-322; Moore, 846 F.2d at 1167 (\u201c[I]t is the capacity for harm in the weapon and its use that is significant, not the actual harm inflicted.... [The defendant] used his mouth and teeth in a way that could have transmitted disease.\u201d (citations omitted)). Accordingly, we conclude that an individual\u2019s mouth can be considered a weapon pursuant to Sections 30-1-12(B) and 30~3-5(C) and that the question of whether an individual has used his mouth as a \u201cdeadly weapon\u201d is strictly a question of fact, reserved for the jury.\nB. Jury Instruction on the Lesser Offense\n{21} In regard to his second issue, Defendant contends that the trial court erred by refusing to instruct the jury on the lesser included offense of misdemeanor aggravated battery. See \u00a7 30-3-5(B). The State concedes that the court erred in denying Defendant a jury instruction on the lesser included offense and that this denial constituted reversible error. However, we are not bound by the State\u2019s concession; thus, we examine the issue to reach an independent conclusion. See State v. Mu\u00f1iz, 2003-NMSC-021, \u00b6 5, 134 N.M. 152, 74 P.3d 86 (stating that appellate courts have a duty to affirm the trial court if its decision was correct, despite the state\u2019s concession of an issue); see also State v. Martinez, 1999-NMSC-018, \u00b6 26, 127 N.M. 207, 979 P.2d 718 (\u201c[Ajppellate courts in New Mexico are not bound by the [attorney [g]eneral\u2019s concession of an issue in a criminal appeal.\u201d).\n{22} Defendant is entitled to an instruction on the lesser-included offense when a reasonable view of the evidence could lead a fact-finder to conclude that the lesser offense is the highest degree of crime committed. State v. Brown, 1998-NMSC-037, \u00b6 12, 126 N.M. 338, 969 P.2d 313. \u201cFailure to instruct the jury on a lesser included offense of a charged offense is reversible error if[](l) the lesser offense is included in the greater, charged offense; (2) there is evidence tending to establish the lesser included offense and that evidence establishes that the lesser offense is the highest degree of crime committed; and (3) the defendant has tendered appropriate instructions preserving the issue.\u201d State v. Jernigan, 2006-NMSC-003, \u00b6 21, 139 N.M. 1, 127 P.3d 537.\n{23} Under the facts of our case, misdemeanor aggravated battery is a lesser included offense of aggravated battery with a deadly weapon. An individual commits aggravated battery by unlawfully touching or applying force to the person of another, with an intent to injure. Section 30-3-5(A). Aggravated battery is a misdemeanor when a defendant inflicts \u201can injury to the person which is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body.\u201d Section 30-3-5(B). Aggravated battery is a third-degree felony when the battery is committed, inter alia, with a deadly weapon. Section 30-3-5(C). Misdemeanor aggravated battery is not necessarily a lesser included offense of aggravated battery with a deadly weapon because the misdemeanor element of temporary disfigurement, loss, or impairment is not an element of aggravated assault with a deadly weapon. See State v. Meadors, 121 N.M. 38, 42-43, 908 P.2d 731, 735-36 (1995) (discussing the strict elements approach when the state has requested an instruction on the lesser offense); State v. Mu\u00f1oz, 2004-NMCA-103, \u00b6\u00b6 11, 13, 136 N.M. 235, 96 P.3d 796 (discussing the strict elements approach when the defendant has requested an instruction on the lesser offense). However, under the facts of our case \u2014 as alleged in the criminal information, supported by the evidence, and argued by the State \u2014 Defendant could not have committed felony aggravated battery without also committing the lesser offense. See Meadors, 121 N.M. at 43-44, 908 P.2d at 736-37 (concluding that a lesser offense is necessarily included when under the facts alleged in the charging document and supported by the evidence, the defendant could not have committed the greater offense without also committing the lesser offense); Mu\u00f1oz, 2004-NMCA-103, \u00b6\u00b6 7, 15, 136 N.M. 235, 96 P.3d 796 (concluding that under the state\u2019s theory of the case, the defendant could not have committed the crime of great bodily injury by vehicle without committing the crime of driving while intoxicated); State v. Darkis, 2000-NMCA-085, \u00b6 15, 129 N.M. 547, 10 P.3d 871 (\u201c[T]he appropriate focus is not merely upon the specific wording of the information, but also on the facts the [sjtate had arrayed and the theory of its case.\u201d). Considering the State\u2019s theory of our ease and the facts as charged and supported by the evidence, the only difference between misdemeanor aggravated battery and felony aggravated battery with a deadly weapon is Defendant\u2019s use of a deadly weapon. Compare \u00a7 30-3-5(B), with \u00a7 30-3-5(C); of Mu\u00f1oz, 2004-NMCA-103, \u00b6 17, 136 N.M. 235, 96 P.3d 796 (stating that the only element distinguishing the lesser and greater offenses was sufficiently in dispute). Thus, under these circumstances, misdemeanor aggravated battery is a lesser included offense of aggravated battery with a deadly weapon.\n{24} In addition, evidence was presented that tended to establish the lesser included offense. Victim testified regarding several injuries, all of which were healed in three weeks. Further, our review of the record leads us to conclude that a rational fact-finder could have determined, based on the evidence, that Defendant did not use a deadly weapon. The State offered no evidence of any permanent disfigurement. Evidence was not presented regarding loss or functional impairment of an organ. The only testimony establishing use of a deadly weapon was the doctor\u2019s testimony that Victim had a chance of being exposed to Defendant\u2019s disease. The element that distinguished the lesser and greater offenses, use of a deadly weapon, was \u201csufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.\u201d Darkis, 2000-NMCA-085, \u00b6 14, 129 N.M. 547, 10 P.3d 871 (quoting Meadors, 121 N.M. at 44, 908 P.2d at 737). Finally, Defendant properly requested an instruction on misdemeanor aggravated battery as a lesser included offense of felony aggravated battery. For these reasons, we conclude that Defendant was entitled to an instruction on misdemeanor aggravated battery; accordingly, we reverse. See Meadors, 121 N.M. at 52, 908 P.2d at 745 (Ransom, J., specially concurring) (discussing the legitimate concern that the lack of an instruction on the lesser crime may result in conviction of the greater offense, even when the lesser offense may be found to be the highest degree of the crime committed, \u201cbecause acquittal is an alternative that is unacceptable to the jury\u201d); Darkis, 2000-NMCA-085, \u00b6 20, 129 N.M. 547, 10 P.3d 871 (stating that the defendant\u2019s request for an instruction on the lesser offense was \u201ca valid and appropriate defense strategy\u201d because the element at issue was in dispute).\nIV. CONCLUSION\n{25} We conclude that an individual\u2019s mouth can be a deadly weapon for purposes of the aggravated battery statute and that the ultimate determination depends on the manner of use, which is a question of fact for the jury. We also conclude that sufficient evidence existed to support each element of the crime. We further hold that Defendant was entitled to a jury instruction on the lesser included offense of misdemeanor aggravated battery. Our determination regarding sufficiency of the evidence precludes any double jeopardy concerns regarding retrial. See State v. Sanchez, 2000-NMSC-021, \u00b6 30, 129 N.M. 284, 6 P.3d 486. We therefore reverse Defendant\u2019s conviction and remand for a new trial in accordance with this opinion.\n{26} IT IS SO ORDERED.\nWE CONCUR: LYNN PICKARD and CYNTHIA A. FRY, Judges.", "type": "majority", "author": "CASTILLO, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.", "John Bigelow, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2007-NMCA-035\n154 P.3d 703\nSTATE of New Mexico, Plaintiff-Appellee, v. Richard Don NEATHERLIN, Defendant-Appellant.\nNo. 25,729.\nCourt of Appeals of New Mexico.\nFeb. 9, 2007.\nGary K. King, Attorney General, Santa Fe, NM, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.\nJohn Bigelow, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0328-01", "first_page_order": 378, "last_page_order": 388 }