Antonio Bustamonte, hereinafter referred to as the defendant, petitions this Court to review the Court of Appeals decision in
State v. Bustamonte,
Defendant was charged with assault with a deadly weapon in violation, of A.R.S. § 13-249 A and B. At trial, the victim, Officer Ruiz, testified that he was an undercover narcotics agent and that the assault occurred after an unsuccessful attempt to purchase heroin. The defendant, while sitting behind Officer Ruiz in a *107 parked car, placed his left arm around the officer and held a pair of scissors to the side of the officer’s neck. A third person, Hun Harris, leaned into the car and tried to reach for the officer. Officer Ruiz grabbed the scissors, drew his gun and pointed it over his shoulder at the defendant. The defendant released the officer and withdrew the scissors. Officer Ruiz subsequently arrested both the defendant and Harris.
The defendant also testified at trial, asserting that the officer had pulled a gun on him and fired two shots, but that he had, at no time, held scissors to the officer’s neck. Following a jury trial, the defendant was convicted of assault with a deadly weapon and sentenced to a term of not less than five nor more than nine years in the Arizona State Prison.
On appeal to the Court of Appeals, defendant asserted that: (1) the state improperly introduced evidence of the attempted heroin transaction; (2) the information was insufficient to put him on notice; (3) he was improperly sentenced under the enhanced punishment provisions of A.R.S. § 13-249 B; and (4) the court improperly instructed the jury on the law of assault with a deadly weapon.
The Court of Appeals affirmed defendant’s conviction, but remanded for resentencing. In an effort to clarify the law on assault with a deadly weapon and to resolve differences between the Court of Appeals’ opinion and our opinion in
State v. Gordon,
The punishment for assault with a deadly weapon is defined in A.R.S. § 13-249. Subsection B of that statute provides for an increased punishment when the assault is “with a gun or other deadly weapon.” Before a person can be subjected to the enhanced punishment of subsection B, however, there must be a determination that he was armed with an inherently dangerous weapon.
State v. Church,
The Court of Appeals remanded for resentencing under subsection A, because it found that household scissors were not inherently dangerous. In so doing, the court defined an inherently dangerous weapon as one involving a grave risk of serious bodily harm or death, if unskillfully or carelessly used. We agree that the matter should be remanded for sentencing, but do so because there was no jury determination that the scissors were inherently dangerous. We also reject the court’s definition of inherently dangerous in favor of the definition we pronounced in Gordon, supra.
The Court of Appeals found that because of the manner in which they were used, the scissors were a dangerous weapon as a matter of law, pursuant to A.R.S. § 13-249 A. In
State v. Moss,
We reaffirm this position and hold that it is for the jury to determine if the manner in which a weapon is used renders it a deadly weapon. That portion of the Court of Appeals’ opinion, which decides this issue as a matter of law, is hereby vacated. The jury, however, was instructed that a deadly *108 weapon is any instrument used in a way likely to cause death or serious physical injury. The jury was also instructed that assault with a deadly weapon has two elements: an attempt to injure another person physically by the use of a deadly weapon, and an ability to cause physical injury. It is clear from the jury’s guilty verdict that it found the scissors to be a deadly weapon. We, therefore, uphold the defendant’s conviction pursuant to A.R.S. § 13-249 A.
The defendant specifically asks us to review the propriety of the Court of Appeals’ affirmance of the instruction on intent. The trial court instructed:
“Attempt to injure another person physically does not mean that the defendant has to intend that some bodily harm result. Defendant need only intend the acts which he performs. Thus, the pointing of a deadly weapon in a threatening manner within striking distance and with the ability to injure constitutes assault with a deadly weapon.”
The defendant asserts that such an instruction allows him to be convicted without proof of any criminal intent. We disagree. The trial court stated that the defendant “need only intend the acts which he performs.” He must have intended to hold the scissors to the officer’s neck.
Moreover, the state need not prove that the defendant intended to physically harm the victim. In
United States v. Harvey,
In
State v. Gary,
“In other words, regardless of the type of deadly weapon, when a person holds a deadly weapon in a position so that it could immediately be used to physically injure another, he need go no further toward the completion of a battery in order to satisfy the ‘attempt’ element inhering in A.R.S. § 13-249.”120 Ariz. at 175 ,584 P.2d at 1166 .
We hold that no matter what type of weapon is used, an intent to actually harm is not an element of assault with a deadly weapon. Therefore, whether a defendant is charged under A.R.S. § 13-249 A or B, an intent to do physical harm need not be proven.
The criminal intent required is the general intent to wilfully commit an act the direct, natural and probable consequences of which, if successfully completed, would constitute a battery.
State v. Dillon,
We affirm the defendant’s conviction under A.R.S. § 13-249 A, and remand to the Superior Court for sentencing pursuant to that statute. Those portions of the Court of Appeals’ opinion that are inconsistent with this opinion are hereby vacated.