{1} Defendant appeals his conviction for aggravated battery with a deadly weapon, a third-degree felony. In our review of this case, we are required to determine if the human mouth can be a deadly weapon, pursuant to NMSA 1978, § 30-l-12(B) (1963) (defining “deadly weapon”), and NMSA 1978, § 30-3-5(C) (1969) (explaining felony aggravated battery). We conclude that a jury could reasonably determine that the human mouth is a deadly weapon if the mouth is used in a manner that could cause death or great bodily harm. We hold that sufficient evidence existеd to support the jury’s determination in this case. We also conclude that the trial court erred when it refused to give a jury instruction for misdemeanor aggravated battery as a lesser included offense. Thus, we reverse and remand for a new trial in accordance with this opinion.
I. BACKGROUND
{2} Defendant and Victim were traveling in a vehicle with three other individuals, namely Defendant’s wife, Victim’s friend, and the driver of the vehicle. At some point, a fight occurred in the vehicle. Testimony at trial yielded widely varying accounts of the fight. Defendаnt admitted, however, that he bit Victim in the course of the altercation, but Defendant claimed that he did so only in self-defense. The driver of the vehicle testified that he heard Defendant say as he was biting Victim, “I hope you die[;] I hope you die.”
{3} Victim was taken to the emergency room, where she was treated for injuries resulting from the fight in the vehicle. Among other injuries, Victim had two bite marks on her left arm — one bite on her upper arm and one on the forearm. In both bites, the skin was broken. Victim recovered from her injuries in abоut three weeks.
{4} The emergency room doctor offered Victim testing for hepatitis and HIV to determine her possible exposure from the bites inflicted by Defendant. Victim declined the testing at that time, and no evidence was presented indicating whether Victim was later tested. Defendant’s blood was not tested by the State. During the course of the State’s investigation, however, Defendant admitted that he had hepatitis C, and he said that as a result of the disease, he did not expect to live much longer. In addition, Defendant’s wife later testified that Defendant had previously tested positive for hepatitis C and that he had hepatitis C when he bit Victim.
{5} At trial, the doctor provided the following testimony about the nature of hepatitis C. It is a viral illness transmitted primarily by blood through transfusions, needles, and mucosal contact with blood. The virus is
{6} Defense counsel requested a jury instruction on the lesser offense of misdеmean- or aggravated battery. See § 30 — 3—5(B). The trial court denied the misdemeanor instruction; the jury was instructed only on aggravated battery with a deadly weapon. See § 30-3-5(C). The State reasoned that by biting Victim, Defendant used his mouth as a weapon to intentionally injure Victim and that Defendant’s mouth could have caused death or great bodily harm because he had hepatitis C. The jury returned a verdict of guilty, and this appeal followed.
{7} Defendant makes two arguments. First, he argues that there was insufficient evidence to convict him of aggravated battery with a deadly weapon. Second, Defendant argues that the trial court erred by refusing to instruct the jury regarding the lesser offense of misdemeanor aggravated battery.
II. STANDARD OF REVIEW
{8} When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the State; we resolve all conflicts and indulge all permissible inferences in favor of the verdict. State v. Johnson,
{9} When reviewing the trial court’s denial of a jury instruction, “[w]e view the evidence in the light most favorable to the giving of the requested instruction.” State v. Hill,
III. DISCUSSION
A. Sufficiency of the Evidence
{10} Defendant argues first that the State failed to meet its burden of proving, beyond a reasonable doubt, each element of the crime of aggravated battery with a deadly weapon. See § 30-3-5(C). Specifically, Defendant contends that the Stаte failed to prove that Defendant used a “deadly weapon.”
{11} The term “deadly weapon” is defined as
any firearm, whether loaded or unloaded; or any weapon which is capable of producing death or great bodily harm, including but not restricted to any types of daggers, brass knuckles, switchblade knives, bowie knives, poniards, butcher knives, dirk knives and all such weapons with which dangerous cuts can be given, or with which dangerous thrusts can be inflicted, including swordcanes, and any kind of sharp pointed canes, also slingshots, slung shots, bludgeons; or any other weapоns with which dangerous wounds can be inflicted.
{12} The jury is specifically instructed that an instrument or object, used as a weapon by a defendant, can be a deadly weapon only if the jury finds that the instrument, “when used as а weapon, could cause death or great bodily harm.” UJI 14-322; see also Traeger,
{13} Defendant argues that New Mexico courts have never considered the human mouth to be a deadly weapon; he asserts that in each relevant New Mexico case, the jury has considered an “external instrumentality, something with which a defendant arms himself.” See id. ¶ 1 (baseball bat); State v. Conwell,
{14} In other jurisdictions, the majority rule is that body parts, i.e., bare fists and teeth, are not considered weapons. See generally Vitauts M. Gulbis, Annotation, Parts of the Human Body, Other Than Feel, as Deadly or Dangerous Weapons for Purposes of Statutes Aggravating Offenses Such as Assault and Robbery,
{15} This Court has previously relied on the definition of “weapon” from Black’s Law Dictionary 1593 (6th ed. 1990): “ ‘An instrument of offensive or defensive combat, or anything used, or designed to be used, in destroying, defeating, threatening, or injuring a person.’” Montaño, 1999— NMCA-023, ¶ 5,
{16} The distinction between wielding an object or instrument that is external to the body to cause injury and using one’s mouth to cause injury is an unsupportable difference. See Montaño,
{17} Defendant also argues that even if the mouth could be a deadly weapon for purposes of Sections 30-1-12 and 30-3-5, the evidence is insufficient to prove that Defendant used his mouth as a deadly weapоn. As stated earlier, the State did not offer into evidence any medical tests that showed Defendant suffered from hepatitis C. Defendant admitted, however, to having hepatitis C. Moreover, Defendant’s wife testified that Defendant was diagnosed with hepatitis C when they got married in 2001 and that Defendant had the disease at the time he bit Victim. In addition, the doctor testified that transmission of the hepatitis C virus is possible through a bite that breaks the skin and that hepatitis C could result in liver cancer, ultimately leading to death. Finally, a witness testified that Defendant, while biting Victim, told Victim that he hoped she would die. From this evidence, the jury could conclude that Defendant used his mouth in a manner that could cause death and that by definition, Defendant’s mouth was thus used as a deadly weapon. See § 30-l-12(B) (“ ‘[D]eadly weapon’ means ... any weapon which is capable of producing death[.]”); Montaño,
{18} Defendant appears to argue that his mouth could not be a deadly weapon because the prosрect of death or great bodily harm was not probable but merely speculative. Defendant’s argument fails, however, because it ignores the terms contained in the statute and the jury instruction. The term “capable of producing” is found in the statutory definition of deadly weapon, while the term “could cause” is used in the jury instruction. Compare § 30-l-12(B), with UJI 14-322. Both terms, however, are similar in that they do not require a certain probability of occurrence, but rather focus on any probability of occurrence.. In our case, the jury was instructed as follows: “The Defendant’s mouth is a deadly weapon only if you find that the Defendant’s mouth, when used as a weapon, could cause death or great bodily harm[.]”
{19} As discussed in paragraph 5, the State provided evidence that a bite from Defendant could cause death. Defendant admitted and his wife testified that he had hepatitis C. Defendant admitted biting Victim, and evidence showed that Defendant’s bites broke the skin. The doctor testified that hepatitis C can be transmitted through saliva, that one to three рercent of those testing positive for hepatitis C would go on to have liver cancer, and that liver cancer can cause death. Thus, the jury could determine that Defendant used his mouth as a deadly weapon because the evidence supported a conclusion that Defendant’s mouth “could cause death.” UJI 14-322. Although it was not likely that Victim would develop liver cancer resulting in death, the potential for death was sufficient to meet the standard enunciated in the statute and the jury instruction. See Montaño,
B. Jury Instruction on the Lesser Offense
{21} In regard to his second issue, Defendant contends that the trial court erred by refusing to instruct the jury on the lesser included offense of misdemeanor aggravated battery. See § 30-3-5(B). The State concedes that the court erred in denying Defendant a jury instruction on the lesser included offense and that this denial constituted reversible error. However, wе are not bound by the State’s concession; thus, we examine the issue to reach an independent conclusion. See State v. Muñiz,
{22} Defendant is entitled to an instruction on the lesser-included offense when a reasonable view of the evidence could lead a fact-finder to conclude that the lesser offense is the highest degree of crime committed. State v. Brown,
{23} Under the facts of our case, misdemeanor aggravated battery is a lesser included offense of aggravated battery with a deadly weapon. An individual commits aggravated battery by unlawfully touching or applying force to the person of another, with an intent to injure. Section 30-3-5(A). Aggravated battery is a misdemeanor when a defendant inflicts “an injury to the person which is not likely to cause death or great bodily hаrm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body.” Section 30-3-5(B). Aggravated battery is a third-degree felony when the battery is committed, inter alia, with a deadly weapon. Section 30-3-5(C). Misdemeanor aggravated battery is not necessarily a lesser included offense of aggravated battery with a deadly weapon because the misdemeanor element of temporary disfigurement, loss, or impairment is not an element
{24} In addition, evidence was presented that tended to establish the lesser included offense. Victim testified regarding several injuries, all of which were healed in three weeks. Further, our review of the record leads us to conclude that a rational fact-finder could have determined, based on the evidence, that Defendant did not use a deadly weapon. The State offered no evidence of any permanent disfigurement. Evidence was not presented regarding loss or functional impairment of an organ. The only testimony establishing use of a deadly weapon was the doctor’s testimony that Victim had a chance of being exposed to Defendant’s disease. The element that distinguished the lesser and greater offenses, use of a deadly weapon, was “sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.” Darkis,
IV. CONCLUSION
{25} We conclude that an individual’s mouth can be a deadly weapon for purposes of the aggravated battery statute and that the ultimate determination depends on the manner of use, which is a question of fact for the jury. We also conclude that sufficient evidence existed to support each element of the crime. We further hold that Defendant
{26} IT IS SO ORDERED.