2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 7 - Weapons and Explosives
Section 30-7-16 - Firearms or destructive devices; receipt, transportation or possession by a felon; penalty.

A. It is unlawful for a felon to receive, transport or possess any firearm or destructive device in this state.

B. Any person violating the provisions of this section shall be guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of the Criminal Sentencing Act [Chapter 31, Article 18 NMSA 1978]; provided that the violation of and the sentence imposed pursuant to this subsection shall be increased to a violation of and the sentence for a third degree felony if the person has previously been convicted of a capital felony or a serious violent offense provided in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978.

C. As used in this section:

(1) except as provided in Paragraph (2) of this subsection, "destructive device" means:

(a) any explosive, incendiary or poison gas: 1) bomb; 2) grenade; 3) rocket having a propellant charge of more than four ounces; 4) missile having an explosive or incendiary charge of more than one-fourth ounce; 5) mine; or 6) similar device;

(b) any type of weapon by whatever name known that will, or that may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell that is generally recognized as particularly suitable for sporting purposes; or

(c) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in this paragraph and from which a destructive device may be readily assembled;

(2) the term "destructive device" does not include any device that is neither designed nor redesigned for use as a weapon or any device, although originally designed for use as a weapon, that is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device;

(3) "felon" means a person convicted of a felony offense by a court of the United States or of any state or political subdivision thereof and:

(a) less than ten years have passed since the person completed serving a sentence or period of probation for the felony conviction, whichever is later;

(b) the person has not been pardoned for the felony conviction by the proper authority; and

(c) the person has not received a deferred sentence; and

(4) "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer. "Firearm" includes any handgun, rifle or shotgun.

History: Laws 1981, ch. 225, § 1; 1987, ch. 202, § 1; 2001, ch. 89, § 1; 2018, ch. 74, § 4.

The 2018 amendment, effective July 1, 2018, increased the penalty for a felon in possession of a firearm or destructive device if the person has previously been convicted of a capital felony or a serious violent offense, and provided clarifying language; in Subsection B, after "Criminal Sentencing Act", added the remainder of the subsection; and in Subsection C, Paragraph C(1), added "except as provided in Paragraph (2) of this subsection", at the end of Subparagraph C(1)(b), deleted "and" and added "or", added a new paragraph designation "(2)" and redesignated former Paragraphs C(2) and C(3) as Paragraphs C(3) and C(4), respectively.

The 2001 amendment, effective July 1, 2001, added the Paragraph designation C(1)(c) and substituted "this paragraph" for "Paragraphs (1) and (2)" within that new paragraph; and rewrote the definition of "felon" in Paragraph C(2).

The 1987 amendment, effective June 19, 1987, inserted "or destructive devices" in the catchline and "or destructive device" in Subsection A; substituted "fourth degree felony" for "misdemeanor" in Subsection B; and, in Subsection C, added present Paragraph (1) and redesignated former Paragraphs (1) and (2) as present Paragraphs (2) and (3).

A conditional discharge is not a conviction. — Where the district court had entered a conditional discharge order in a prior criminal proceeding against defendant; the order was entered without an adjudication of guilt and with a sentencing term; defendant's probation was subsequently revoked and defendant was placed back on probation; a year later, defendant's probation was again revoked and the district court ordered that defendant be incarcerated; and the district court did not revoke defendant's conditional discharge, the district court did not err by dismissing a later felon in possession charge against defendant on the ground that defendant's conditional discharge had not been revoked and could not serve as the predicate felony for the felon in possession charge. State v. Harris, 2013-NMCA-031, 297 P.3d 374.

Bullets as destructive devices. — Nothing in this section says that destructive devices as defined in the section are deadly weapons. It is unreasonable to construe this section to say that destructive devices are necessarily also deadly weapons as defined in Section 30-1-12B NMSA 1978. Even were .22 caliber cartridges to be considered destructive devices under Section 30-7-16, the bullets were not deadly weapons under Section 30-1-12B. State v. Galaz, 2003-NMCA-076, 133 N.M. 794, 70 P.3d 784, cert denied, 133 N.M. 771, 70 P.3d 761.

Possession of firearms by felons. — The fact that New Mexico law does not forbid possession of firearms by those convicted of felonies more than 10 years ago does not preclude the federal government from doing so. United States v. Fuentes, 119 Fed. Appx. 248 (2004).

Admission of unavailable accomplice's tape recorded custodial police interview was not harmless error because it provided only direct evidence that defendant held firearm, it contradicted state's otherwise circumstantial case, and defendant expressly denied ever holding firearm. State v. Johnson, 2004-NMSC-029, 136 N.M. 348, 98 P.3d 998, cert. denied, 543 U.S. 1177, 125 S. Ct. 1334, 161 L. Ed. 2d 162.

No preemption by federal firearms act. — Although federal law excludes antique firearms from the proscription of receipt of firearms by certain convicted felons while this section does not, this section is not preempted by the federal law. State v. Haddenham, 1990-NMCA-048, 110 N.M. 149, 793 P.2d 279, cert. denied, 110 N.M. 72, 792 P.2d 49, and cert. denied, 110 N.M. 183, 793 P.2d 865.

Proof of all three aspects not required for conviction. — Thus, the defendant could be convicted for the crime of felon transporting a firearm even though there was no evidence that he possessed or owned the firearm. This section prohibits receiving, transporting, or possessing any firearm; the use of the disjunctive "or" indicates that this section may be violated by any of the enumerated methods. State v. Dunsmore, 1995-NMCA-012, 119 N.M. 431, 891 P.2d 572.

"Constructive" possession. — Where state could not prove that defendant had actual possession of gun, the state can rely on a theory of "constructive" possession; that defendant knew the gun was present and exercised control over it. State v. Garcia, 2004-NMCA-066, 135 N.M. 595, 92 P.3d 41, rev'd on other grounds, 2005-NMSC-017, 138 N.M. 1, 116 P.3d 72.

Evidence sufficient for conviction of possession. — Documentary evidence of a prior felony conviction and defendant's numerous statements during the interrogation that he possessed several of the victim's firearms is sufficient evidence for the conviction of felon in possession of a firearm. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754, overruled on other grounds by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

Sufficient evidence of being a felon in possession of a firearm. — Where defendant was charged with being a felon in possession of a firearm after taking a gun inside a Las Cruces club, there was sufficient evidence to support the conviction, because based on evidence presented at trial that defendant told the officer that he was armed with a gun, a witness told the officer over the phone that defendant had a gun, and police recovered a handgun inside the club, a reasonable jury could have found that defendant had knowledge and control, and thereby possession, of a gun. State v. Jimenez, 2017-NMCA-039, cert. denied.

Sufficient evidence of unlawful transportation of a firearm. — Where defendant was convicted of unlawful transportation of a firearm, and where defendant admitted that he was a felon at the time of the charged offense, and where the state presented evidence at trial that he was driving his accomplice around town and was aware that his accomplice had brought a gun into the car, there was sufficient evidence for a jury to find that defendant transported a firearm. State v. Torres, 2018-NMSC-013.

Defense of duress is available against the charge of felon in possession of a firearm only when no reasonable alternatives are available — a reasonable felon would resort to possession of a firearm only when committing the offense is the only reasonable alternative. State v. Castrillo, 1991-NMSC-096, 112 N.M. 766, 819 P.2d 1324.

District court properly refused to submit the defense of duress to the jury, where defendant, a convicted felon, could have contacted the police, or simply avoided his estranged wife after she smashed his car windshield, but instead he chose to arm himself by purchasing a handgun. State v. Castrillo, 1991-NMSC-096, 112 N.M. 766, 819 P.2d 1324.

No exception for self-defense. — This statute does not exclude from its operation felons who are defending themselves. State v. Calvillo, 1990-NMCA-046, 110 N.M. 114, 792 P.2d 1157, cert. denied, 110 N.M. 72, 792 P.2d 49 (1991).

Construed with 31-18-17 NMSA 1978. — Where defendants were convicted of the charge of felon in possession of a firearm contrary to 30-7-16 NMSA 1978, and the defendants were also sentenced as habitual offenders in accordance with 31-18-17 NMSA 1978, the trial court erred in sentencing the defendants as habitual offenders when the same prior felony convictions were relied upon to convict the defendants of the underlying offense of felon in possession of a firearm. State v. Haddenham, 1990-NMCA-048, 110 N.M. 149, 793 P.2d 279, cert. denied, 110 N.M. 72, 792 P.2d 49, and cert. denied, 110 N.M. 183, 793 P.2d 865.

Use of prior felony. — The state was not prevented from using distinct felonies obtained in the same judgment and sentence for the separate purposes of enhancement under the felon in possession statute and the general habitual offender statute. State v. Calvillo, 1990-NMCA-046, 112 N.M. 140, 812 P.2d 794, cert. denied, 112 N.M. 77, 811 P.2d 575 (1991).

In this case it did not matter that the state did not specify which of the two felonies it was relying on to prove the principal crime, whichever felony the jury relied on, there was an additional one available for sentence enhancement. If the jury relied on both, there is still no double jeopardy problem. State v. Dunsmore, 1995-NMCA-012, 119 N.M. 431, 891 P.2d 572.

Details of the prior crime are irrelevant to prove the required element of the crime of being a felon in possession, and admission into evidence of the defendant's prior conviction of a firearms offense was reversible error. State v. Tave, 1996-NMCA-056, 122 N.M. 29, 919 P.2d 1094.

Multiple uses of prior convictions does not violate double jeopardy. — Where defendant's prior felony convictions were used to establish defendant's status as a habitual offender for sentencing for attempted murder and to serve as the predicate felony for defendant's conviction of felon in possession of a firearm, the double jeopardy clause was not violated. State v. Tafoya, 2012-NMSC-030, 285 P.3d 604.

Jury instruction. — In a prosecution for being a felon in possession of a firearm, it was reversible error for the court to use UJI 14-1701 NMRA naming the predicate offense, i.e., aggravated assault with a deadly weapon. State v. Tave, 1996-NMCA-056, 122 N.M. 29, 919 P.2d 1094.

Unsubstantiated reference to drug dealer gun owner inappropriate. — Repeated references to defendant as a known drug dealer when the state lacked sufficient evidence to convict defendant of possession or distribution of illegal drugs, and instead relied on unsubstantiated hearsay to convince the jury defendant was a "known drug dealer" so, ipso facto, the shotgun must belong to him is prohibited and should be excluded. State v. Rael, 1994-NMCA-043, 117 N.M. 539, 873 P.2d 285.

Restoration of firearms privileges. — Firearm privileges are automatically restored when a person successfully completes the period of a deferred sentence. 1988 Op. Att'y Gen. No. 88-03.

Partial pardon by governor limiting right to use firearm. — The governor has the power under the New Mexico Constitution to grant a partial pardon conferring the right to vote and hold public office while denying the right to possess a firearm. 1992 Op. Att'y Gen. No. 92-09.

Law reviews. — For note, "Evidence Law Boundaries, Balancing, and Prior Felony Convictions: After United States v. Old Chief," see 28 N.M. L. Rev. 583 (1998).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Weapons and Firearms § 24.

Propriety of using single prior felony conviction as basis for offense of possessing weapon by convicted felon and to enhance sentence, 37 A.L.R.4th 1168.

Sufficiency of evidence as to nature of firearm in prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms, 37 A.L.R.4th 1179.

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.

What amounts to "control" under state statute making it illegal for felon to have possession or control of firearm or other dangerous weapon, 66 A.L.R.4th 1240.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

What constitutes actual or constructive possession of unregistered or otherwise prohibited firearm in violation of 26 USCS § 5861, 133 A.L.R. Fed. 347.

94 C.J.S. Weapons § 2.