State v. Duran

14 Citing cases

  1. State v. Chouinard

    93 N.M. 634 (N.M. Ct. App. 1979)   Cited 14 times
    Distinguishing a statute providing for a sentence enhancement where a firearm is "used" in the commission of a felony from statutes allowing punishment of mere possession and non-use, including the New Mexico armed robbery statute as a specific example, and citing Duran for the proposition that firearm "'[u]se' is different from 'possession'"

    This court has previously noted this distinction with respect to firearms. See Trujillo; State v. Duran, 91 N.M. 38, 570 P.2d 39 (Ct.App.), cert. denied, 91 N.M. 3, 569 P.2d 413 (1977), U.S. cert. denied, 435 U.S. 972, 98 S.Ct. 1615, 56 L.Ed.2d 65 (1978). The use of a firearm is something beyond mere possession of it.

  2. United States v. King

    248 F. Supp. 3d 1062 (D.N.M. 2017)   Cited 11 times
    Holding that armed robbery in New Mexico is not a "violent felony" under the ACCA

    The New Mexico Court of Appeals has consistently interpreted the phrase "armed with a deadly weapon" to mean mere possession of a deadly weapon, and not necessarily its use. The decision most on point is New Mexico v. Duran , 1977-NMCA-099, 91 N.M. 38, 570 P.2d 39, in which the defendant was convicted of armed robbery, and his sentence enhanced for use of a firearm pursuant to Section 31–18–16 of the New Mexico Statutes Annotated. In Duran ,

  3. United States v. King

    Civ. No. 16-501 MV/KK (D.N.M. Dec. 1, 2016)   Cited 1 times

    The New Mexico Court of Appeals has consistently interpreted the phrase "armed with a deadly weapon" to mean mere possession of a deadly weapon, and not necessarily its use. The decision most on point is New Mexico v. Duran, 1977-NMCA-99, 91 N.M. 38, 570 P.2d 39, in which the defendant was convicted of armed robbery, and his sentence enhanced for use of a firearm pursuant to N.M. Stat. Ann. § 31-18-16. In Duran,

  4. United States v. King

    Civ. No. 16-501 MV/KK (D.N.M. Feb. 17, 2017)   Cited 1 times

    I perceive two significant flaws in this position. First, it is flatly inconsistent with New Mexico v. Duran, 1977-NMCA-99, 91 N.M. 38, 570 P.2d 39, which held that, under New Mexico's armed robbery statute, one can be "armed with" a deadly weapon without using it. (Doc. 12 at 17-18.) That this determination was not the only reason for the Duran court's ruling, or even the predominant one, does not make it obiter dictum, as the Government claims.

  5. Rhoads v. United States

    No. CV 16-325 JCH/GBW (D.N.M. Apr. 5, 2017)

    The Court agrees that certain state jurisprudence indicates that mere possession may satisfy this element, as the Magistrate Judge discussed. See State v. Duran, 570 P.2d 39, 40-41 (N.M. 1977); State v. Chouinard, 603 P.2d 744, 745 (N.M. 1979); doc. 17 at 20. However, other controlling case law indicates that a fact-specific inquiry is necessary in New Mexico to determine whether possession of a deadly weapon during a robbery elevates the crime to armed robbery.

  6. United States v. Allen

    No. CV 16-582 JB/GBW (D.N.M. Feb. 27, 2017)

    However, some New Mexico cases suggest that no use of the weapon is required. See, e.g., State v. Duran, 570 P.2d 39, 40-41 (N.M. 1977) (rejecting as "not necessarily true" the State's contention that a jury's finding of guilt on a New Mexico armed robbery charge "necessarily determined that defendant used a firearm," as required to justify a firearm enhancement); see also State v. Chouinard, 603 P.2d 744, 745 (N.M. 1979) (distinguishing a statute providing for a sentence enhancement where a firearm is "used" in the commission of a felony from statutes allowing punishment of mere possession and non-use, including the New Mexico armed robbery statute as a specific example, and citing Duran for the proposition that firearm "'[u]se' is different from 'possession'"). However, the New Mexico Court of Appeals has made clear that whether the element of having been "armed with a deadly weapon" during the commission of a robbery is satisfied requires more than determining that the defendant merely possessed such a weapon.

  7. Rhoads v. United States

    No. CV 16-325 JCH/GBW (D.N.M. Jan. 25, 2017)   Cited 1 times

    However, some New Mexico cases suggest that no use of the weapon is required. See, e.g., State v. Duran, 570 P.2d 39, 40-41 (N.M. 1977) (rejecting as "not necessarily true" the State's contention that a jury's finding of guilt on a New Mexico armed robbery charge "necessarily determined that defendant used a firearm," as required to justify a firearm enhancement); see also State v. Chouinard, 603 P.2d 744, 745 (N.M. 1979) (distinguishing a statute providing for a sentence enhancement where a firearm is "used" in the commission of a felony from statutes allowing punishment of mere possession and non-use, including the New Mexico armed robbery statute as a specific example, and citing Duran for the proposition that firearm "'[u]se' is different from 'possession'"). However, the New Mexico Court of Appeals has made clear that whether the element of having been "armed with a deadly weapon" during the commission of a robbery is satisfied requires more than determining that the defendant merely possessed such a weapon.

  8. United States v. Baker

    Case No. 16-cv-715 PJK/GBW (D.N.M. Dec. 15, 2016)   Cited 1 times

    However, some New Mexico cases suggest that no use of the weapon is required. See, e.g., State v. Duran, 570 P.2d 39, 40-41 (N.M. 1977) (rejecting as "not necessarily true" the State's contention that a jury's finding of guilt on a New Mexico armed robbery charge "necessarily determined that defendant used a firearm," as required to justify a firearm enhancement); see also State v. Chouinard, 603 P.2d 744, 745 (N.M. 1979) (distinguishing a statute providing for a sentence enhancement where a firearm is "used" in the commission of a felony from statutes allowing punishment of mere possession and non-use, including the New Mexico armed robbery statute as a specific example, and citing Duran for the proposition that "'[u]se is different from 'possession.' This court has previously noted this distinction with respect to firearms.").

  9. State v. Coble-Ramirez

    No. A-1-CA-41394 (N.M. Ct. App. Feb. 13, 2025)

    This is insufficient pursuant to the procedure clearly mandated by Section 31-18-16(C). See UJI 14-6013 NMRA comm. cmt. (stating that "[t]his instruction, together with the special interrogatory, UJI 14-6014 [NMRA], is required by Section 31-18-16"); see also State v. Duran, 1977-NMCA-099, ¶ 10, 91 N.M. 38, 570 P.2d 39 (reversing application of a firearm enhancement because "the jury did not make a separate finding of fact as to use of a firearm" contrary to an earlier version of Section 31-18-16).

  10. State v. Turrietta

    No. A-1-CA-38329 (N.M. Ct. App. May. 14, 2020)

    [DS unnumbered 5; MIO 5-7] Our notice explained that, assuming without deciding Defendant is correct that the State had to present evidence that Defendant used a "weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosion[,]" [RP 86] it appeared to us that the testimony of the victims and other witnesses as to their sensory observations about the weapon was sufficient to establish that Defendant brandished a "real gun." See State v. Duran, 1977-NMCA-099, ¶ 5, 91 N.M. 38, 570 P.2d 39 (assuming without deciding that the defendant was correct—that proof was required to establish the firearm was capable of discharging a shot—the victim's testimony was sufficient to prove it was a "'real gun'" to submit the issue to the jury to decide); see also Rule 11-701(A) NMRA (providing that a lay witness may testify as to their opinion "that is . . . rationally based on the witness's perception"). We further noted that the special verdict forms show the jury believed the observations of the victims and other witnesses that Defendant used an actual firearm, which it was free to do.