Aggravated Assault Charged When You Owned No Weapon

Attorney Answer

Not owning or carrying a gun does not defeat this charge on its own. "Deadly weapon" is broader than firearms, and one route to aggravated assault does not require a weapon at all.

NMSA 1978 § 30-3-2 sets out three ways the offense can be committed: (A) unlawfully assaulting or striking at another with a deadly weapon; (B) committing an assault while masked, hooded or otherwise disguised to conceal identity; or (C) willfully and intentionally assaulting another with intent to commit any felony. It is a fourth degree felony. If the State is proceeding under subsection (A), it must prove a deadly weapon. If it is proceeding under subsection (C), it does not need one at all — so the first thing to establish is which subsection the criminal complaint actually charges.

On the weapon question, NMSA 1978 § 30-1-12(B) defines "deadly weapon" as any firearm, loaded or unloaded, or any weapon capable of producing death or great bodily harm, and lists examples including daggers, brass knuckles, switchblade knives, bowie knives, butcher knives, bludgeons and similar items, along with any other weapon with which dangerous wounds can be inflicted. The definition is object-based: it requires a weapon, not merely a frightening confrontation. But be careful with the conclusion you draw from that — New Mexico courts have treated ordinary objects as deadly weapons where they were used in a way capable of causing death or great bodily harm. If you were holding anything at all during that encounter, expect the State to point at it.

So the strongest version of your position is not "I do not own a gun." It is that no deadly weapon existed in that encounter, and that what happened was a refusal to hand over a key, not an assault.

What you can do

1. Get the criminal complaint and read which subsection of NMSA 1978 § 30-3-2 is charged and what object, if any, is named as the deadly weapon. Everything else follows from that. 2. Say nothing about the incident to police, to the men involved, or to anyone at your workplace beyond what your employer requires. Do not post about it. 3. Ask your employer today, in writing, to preserve all security camera footage covering that time period, and keep a copy of the request. Workplace systems overwrite quickly. 4. Do not write out your own account of what happened. Notes you create yourself are not protected by attorney-client privilege, can be seized or subpoenaed, and can be used to impeach you if your testimony later differs. Instead preserve the records that already exist — texts, call logs, emails, receipts, photos and location history — along with the names and contact details of any witnesses, and give your account to your attorney verbally. 5. Identify coworkers and any customers who saw it, and get their names and phone numbers before people move on. 6. Preserve the business records showing the key policy — a written procedure, a manager's instruction, a guest register entry — because they establish why you refused and undercut any claim you acted out of hostility. 7. Get a defense attorney the paperwork and the witness list before your first court setting, not after.