NM Stat § 30-22-16 (2021)
2021 New Mexico Statutes|Chapter 30 - Criminal Offenses|Article 22 - Interference with Law Enforcement|Section 30-22-16 - Possession of deadly weapon or explosive by prisoner.

Possession of deadly weapon or explosive by prisoner in lawful custody consists of any inmate of a penal institution, reformatory, jail or prison farm or ranch possessing any deadly weapon or explosive substance. Whoever commits possession of deadly weapon or explosive by prisoner is guilty of a second degree felony. History: 1953 Comp., § 40A-22-15, enacted by Laws 1963, ch. 303, § 22-15; 1986, ch. 4, § 1. ANNOTATIONSCross references. — For definition of deadly weapon, see 30-1-12 NMSA 1978. For sentencing for second degree felonies, see 31-18-15 NMSA 1978. The 1986 amendment substituted "second degree felony" for "third degree felony" in the second paragraph. Indicia of distinctness was not sufficient to support separate convictions for possession of a deadly weapon by a prisoner. — Where defendant was convicted of two counts of possession of a deadly weapon by a prisoner based on evidence that, during a search of defendant's dormitory-style pod, prison staff found "two makeshift weapons" in defendant's bunk, defendant's two convictions violated his double jeopardy rights because evidence that the two weapons were similar in nature, were found in the same area of defendant's bunk, were found during the same search, and the fact that there was no evidence to suggest that defendant came into possession of the weapons at different times, do not support a reasonable inference of distinctness, and therefore it cannot be presumed that the legislature intended to punish defendant for each weapon he possessed under the circumstances of this case. State v. Benally, 2021-NMSC-027, aff'g 2019-NMCA-048, 448 P.3d 592. Sufficient evidence of possession of a deadly weapon by a prisoner. — Where defendant was charged with two counts of possession of a deadly weapon by a prisoner, and where the state presented evidence that a razor blade was discovered concealed above defendant's bunk bed and a sharpened mop handle was discovered inside his mattress, in addition to statements made by defendant indicating that he had knowledge of the makeshift weapons, a jury could have reasonably inferred that defendant had knowledge of and control over both weapons, and therefore there was sufficient evidence to support defendant's convictions based on constructive possession. State v. Benally, 2019-NMCA-048, cert. granted.Insufficient indicia of distinctness to justify multiple punishments for possession of a deadly weapon by a prisoner. — Where defendant was convicted of two counts of possession of a deadly weapon by a prisoner based on evidence that a razor blade was discovered concealed above his bunk bed and a sharpened mop handle was discovered inside his mattress, there was insufficient evidence to indicate possessory conduct sufficiently distinct in nature to support multiple punishments, and the minor differences in functionality between the two prison-made weapons possessed by defendant does not justify convicting him of separate counts of possession of a deadly weapon by a prisoner. State v. Benally, 2019-NMCA-048, cert. granted.Am. Jur. 2d, A.L.R. and C.J.S. references. — Sufficiency of evidence of possession in prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms or weapons, 43 A.L.R.4th 788. Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.