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STATE v. FERNANDEZ

No. 26,124.

164 P.3d 112 (2007)

2007-NMCA-091

STATE of New Mexico, Plaintiff-Appellee, v. Armando FERNANDEZ, Defendant-Appellant.

Court of Appeals of New Mexico.

June 6, 2007.

Attorney(s) appearing for the Case

Gary K. King, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM for Appellee.

Michael J. Dugan, Las Cruces, NM, for Appellant.

OPINION

ALARID, Judge.

{1} In this appeal we consider whether Defendant's use of a BB gun during a robbery provided a sufficient factual basis to permit a jury to determine that a "deadly weapon" had been used, thereby satisfying an essential element of the crime of armed robbery. We conclude that a pre-trial dismissal of the charge would have been inappropriate, because a jury could have concluded that the manner and character of use of the...

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