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.
ANNOTATIONS
Cross 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.
Notes of Decisions
Cited in
19
cases (
8 in the last 5 years), 1992–2025 · leading case:
State v. Benally, 2021-NMSC-027, 493 P.3d 366.
State v. Benally, 2021-NMSC-027, 493 P.3d 366.
· cites it 70× “{1} We granted certiorari to review whether Defendant Milo Benally’s two convictions for “[p]ossession of deadly weapon or explosive by prisoner,” NMSA 1978, § 30-22-16 (1986), violated his double jeopardy rights under the United States and New Mexico Constitutions.”
State v. Benally, 448 P.3d 592 (N.M. Ct. App. 2019).
· cites it 36× “{1} Defendant appeals from his convictions for two counts of possession of a deadly weapon by a prisoner in violation of NMSA 1978, Section 30-22-16 (1986), for which he was sentenced to consecutive nine-year terms, or a total of eighteen years’ incarceration.”
United States v. Marquez, 626 F.3d 214 (5th Cir. 2010).
· cites it 8× “* * * For the foregoing reasons, we AFFIRM the district court's judgment. *226 DENNIS, Circuit Judge, dissenting: The majority erroneously concludes that the New Mexico offense of possession by a prisoner of a deadly weaponhere, a cudgel made of a dried paper magazineN.”
State v. Gonzalez, 2005-NMCA-031, 107 P.3d 547.
· cites it 2× “Although the statute is silent with respect to the mens rea element, the uniform jury instruction for the crime requires the jury to find that the accused possessed a deadly weapon, which in turn requires knowledge of the deadly weapon.”
State v. Lucero, 2001-NMSC-024, 30 P.3d 365.
· cites it 2× “{1} Following a jury trial, Defendant Claude Alex Lucero was convicted of possession of a deadly weapon by a prisoner contrary to NMSA 1978, § 30-22-16 (1986). Defendant filed a motion for new trial on the basis of the jury instruction detailing the elements of the crime.”
State v. Baca, 845 P.2d 762 (N.M. 1992).
· cites it 2× “NMSA 1978, § 30-22-16 (Cum.Supp.1992). Baca contends that the trial court erred in refusing to instruct the jury on the defense of duress to this charge.”
State v. Anderson, 2001-NMCA-027, 24 P.3d 327.
· cites it 2× “NMSA 1978, § 30-22-16 (1986); State v. Baca, 114 N.”
State v. Benally, No. A-1-CA-36122 (N.M. Ct. App. Mar. 6, 2019).
· cites it 32× “3 {1} Defendant appeals from his convictions for two counts of possession of a 4 deadly weapon by a prisoner in violation of NMSA 1978, Section 30-22-16 (1986), 5 for which he was sentenced to consecutive nine-year terms, or a total of eighteen 6 years’ incarceration.”
State v. Urquizo, 2012-NMCA-113, 2 N.M. 743.
· cites it 2× “{4} Defendant was convicted on one count of attempted first-degree murder, contrary to NMSA 1978, Sections 30-28-1 (1963), 30-2-1 (1994); two counts of third-degree aggravated battery upon a peace officer (one count for each officer), contrary to NMSA 1978, Section 30-22-25(A) &…”
State v. Gage, No. A-1-CA-40563 (N.M. Ct. App. Jan. 21, 2025).
· cites it 16× “{1} A jury convicted Defendant of possession of a deadly weapon or explosive device by a prisoner, contrary to NMSA 1978, Section 30-22-16 (1986); tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003); and criminal damage to property, contrary to NMSA 1978,…”
State v. Word (N.M. Ct. App. 2020).
· cites it 13× “{1} Defendant London Word appeals his convictions for possession of a deadly weapon by a prisoner, in violation of NMSA 1978, Section 30-22-16 (1986), and tampering with evidence, in violation of NMSA 1978, Section 30-22-5 (2003).”
Stallings v. Santistevan, No. 2:20-cv-00014 (D.N.M. Feb. 2, 2021).
· cites it 11× “First, the appellate court rejected Petitioner’s double jeopardy claim, concluding that the remedial sanctions by prison management and the subsequent and independent criminal proceedings for violation of N.M. Stat. Ann. § 30-22-16 did not implicate double jeopardy.”
Annotations are extracted automatically from the opinions in the
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