{ "id": 1588675, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Mark WADE, Defendant-Appellant", "name_abbreviation": "State v. Wade", "decision_date": "1983-07-12", "docket_number": "No. 7038", "first_page": "152", "last_page": "155", "citations": [ { "type": "official", "cite": "100 N.M. 152" }, { "type": "parallel", "cite": "667 P.2d 459" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "84 N.M. 151", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2763165 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0151-01" ] }, { "cite": "95 N.M. 725", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575558 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nm/95/0725-01" ] }, { "cite": "414 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11714834 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/0014-01" ] }, { "cite": "92 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557033 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0109-01" ] }, { "cite": "92 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557080 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0001-01" ] }, { "cite": "92 N.M. 100", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557263 ], "weight": 4, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0100-01" ] }, { "cite": "171 P. 790", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "24 N.M. 333", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8512742 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nm/24/0333-01" ] }, { "cite": "415 U.S. 130", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172554 ], "weight": 4, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/415/0130-01" ] }, { "cite": "315 U.S. 568", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 374637 ], "weight": 6, "year": 1942, "opinion_index": 0, "case_paths": [ "/us/315/0568-01" ] }, { "cite": "405 U.S. 518", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722895 ], "weight": 4, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/0518-01" ] }, { "cite": "195 Neb. 467", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5304318 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/neb/195/0467-01" ] } ], "analysis": { "cardinality": 543, "char_count": 8866, "ocr_confidence": 0.764, "pagerank": { "raw": 1.5391609098950786e-07, "percentile": 0.6725656592334147 }, "sha256": "e77667544e7d260859c1aae9087f63643c817c12c35ecded4292e9d2275e528a", "simhash": "1:3755d0d9b708a16f", "word_count": 1443 }, "last_updated": "2023-07-14T21:45:38.267108+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WALTERS, C.J., and WOOD, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Mark WADE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nNEAL, Judge.\nWhat is the meaning of \u201cabusing any * * peace officer\u201d in NMSA 1978, \u00a7 30-22-l(D) (Cum.Supp.1982.)? The defendant, convicted of abusing a policeman, contends that \u201cabusing any * * * peace officer\u201d in \u00a7 30-22-l(D) is void for vagueness or, alternatively, overbroad. We reverse because the evidence is insufficient to support the conviction, and do not reach the constitutional issues.\nOn March 24,1982, two Bernalillo County Sheriffs Department deputies were dispatched to the defendant\u2019s home. There had been a family fight, and the defendant\u2019s wife had called the police. The defendant\u2019s wife had been drinking and the defendant told her to leave the house. She was going to take their infant daughter with her. The defendant, sober, objected. The defendant\u2019s wife, testifying as a witness for the State, said that the defendant had not threatened her or become violent with her or the child.\nThe deputies stated that when they arrived they were invited into the house by the defendant\u2019s wife. When they entered the house the defendant started yelling at them. He tried to walk past the officers and one of them grabbed his arm. He ten stepped up on the couch, screaming and yelling that he wanted to see the patrol commander and that he wanted the officers to \u201cget the hell out of the house.\u201d He was upset because he had not called them. There was evidence that he used obscenities. One of the officers, Deputy Garcia, testified that the defendant made no threatening gestures. Deputy Garcia testified that the defendant\u2019s yelling and screaming interfered with their investigation, but on cross-examination he admitted that he could hear what the defendant\u2019s wife said to him.\nAt the close of the evidence the trial judge found the defendant guilty of \u201cabuse of a police officer\u201d, and sentenced him to a ninety-day deferred sentence. The written judgment and sentence, however, finds the defendant guilty of \u201cInterfering with a Peace Officer.\u201d Section 30-22-1 is entitled \u201cResisting, evading or obstructing an officer.\u201d Interfering with a peace officer is not a crime. On remand this error should be corrected. NMSA 1978, Crim.P.R. 57.1 (Repl.Pamp.1980).\n\u201cABUSING\u201d\n\u201c[Ajbusing any * * * peace officer\u201d is a misdemeanor under \u00a7 30-22-l(D), supra. As used in this statute, what does \u201cabusing\u201d mean?\nA review of \u00a7 30-22-1, supra, in its entirety, indicates that \u201cResisting, evading or obstructing an officer\u201d primarily consists of physical acts of resistance. \u201cAbuse\u201d, however, also refers to speech, since one of the primary meanings of the word is \u201c \u2018to attack or injure with words.\u2019 \u201d See State v. Boss, 195 Neb. 467, 238 N.W.2d 639 (1976), quoting Webster\u2019s Third International Dictionary (Unabr.1961).\nBy using the word \u201cabusing\u201d the Legislature has prohibited certain speech. This it may do so long as the statute does not offend the First and Fourteenth Amendments, Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), and Art. II, \u00a7 17 of our New Mexico Constitution.\nThe right of free speech is not absolute. As stated in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942):\nThere are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or \u201cfighting\u201d words\u2014 those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.\nIn Boss, supra, the Nebraska Supreme Court considered a statute which stated that whoever \u201c \u2018resists or abuses any sheriff, constable or any other officer\u2019 \u201d would be guilty of a misdemeanor. The court, construing \u201cabuse\u201d, stated:\nThe word abuse and similarly broad terms in like statutes have been held to pass constitutional muster under the First Amendment to the Constitution of the United States only if they are construed so as to apply the statute to punish only what have been called \u201cfighting words.\u201d\nIn making this statement the Nebraska court relied on Chaplinsky, supra; Gooding, supra; and Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974). We agree with the reasoning and the holding in the Boss case, and we hold that \u201cabusing\u201d speech in \u00a7 30-22-l(D), supra, covers only speech that can be called \u201cfighting\u201d words. Any other interpretation of \u00a7 30-22-l(D), supra, applied to speech renders it unconstitutional. Lewis, supra. When construing a statute we are to construe it, if possible, so that it will be constitutional. State ex rel. Sedillo v. Sargent, 24 N.M. 333, 171 P. 790 (1918).\nSUFFICIENCY OF THE EVIDENCE\nAlthough the defendant did not raise this issue in his docketing statement we may review it. State v. Doe, 92 N.M. 100, 583 P.2d 464 (1978). In doing so, however, we must view the evidence in the light most favorable to the conviction. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). Viewed in this light, did the evidence support the defendant\u2019s conviction for \u201cabusing\u201d an officer?\n\u201cFighting\u201d words are those which tend to incite an immediate breach of the peace. Chaplinsky, supra. In State v. Doe, 92 N.M. 109, 583 P.2d 473 (Ct.App.) rev\u2019d on other grounds, 92 N.M. 100, 583 P.2d 464 (1978), we considered whether a defendant was guilty of disorderly conduct under \u00a7 40A-20-1, N.M.S.A. 1953 (2d RepLVol. 6), which read:\nDisorderly Conduct.\u2014Disorderly conduct consists of:\nA. engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace * * *.\nThe defendant in Doe, in a loud voice, continued to question the police about why the car had been stopped, and why he and his friends were always being harassed. This attracted attention. The defendant also clenched his fists, but there was no evidence that he made a move on the officer. On these facts we held that the defendant\u2019s conduct did not tend to disturb the peace and reversed his conviction. Judge Wood, writing for the court, quoted Norwell v. Cincinnati, 414 U.S. 14, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973):\n[0]ne is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer. Regardless of what the motivation may have been behind the expression in this case [the defendant\u2019s words], it is clear that there was no abusive language or fighting words. If there had been, we would have a different case.\nIn City of Alamogordo v. Ohlrich, 95 N.M. 725, 625 P.2d 1242 (Ct.App.1981) the defendant was convicted of disorderly conduct under \u00a7 6-2-8 of the Codified Ordinances of the City of Alamogordo, which read:\nDISORDERLY CONDUCT. Disorderly conduct consists of either:\nA. Engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which creates a clear and present danger of violence that tends to disturb the public peace; or\n* * * * * *\nD. Using, in any public place, words which are inherently likely to provoke an immediate violent reaction in an average person to whom such words were addressed.\nIn Ohlrich the defendant shouted at a policeman: \u201c \u2018You mother fucking son-of-a-bitch.\u2019 \u201d We reversed his conviction holding that the evidence was insufficient to support the conviction.\nDoe, supra, and Ohlrich, supra, deal with disorderly conduct statutes which prohibit speech that tends to disturb the peace. Since \u201cfighting\u201d words are those which tend to incite an immediate breach of the peace, Chaplinsky, supra, both Doe and Ohlrich give us guidance in the present case.\nComparing Doe, supra, and Ohlrich, supra, to the present case, we believe that, like those cases, the evidence here does not support the conviction. The defendant was upset at what he thought was an unwelcomed intrusion into a family argument. He screamed obscenities, waved his arms, and yelled at the officers to \u201cget the hell out of the house.\u201d Screaming obscenities and yelling \u201cget the hell out of the house\u201d do not amount to \u201cfighting\u201d words, particularly when they are addressed to police officers, who are supposed to exercise restraint. Ohlrich, supra. There is no evidence that the defendant threatened the officers, or that the officers felt threatened by him.\nThe defendant\u2019s conviction is reversed because the evidence does not support it. State v. Losolla, 84 N.M. 151, 500 P.2d 436 (Ct.App.1972).\nIT IS SO ORDERED.\nWALTERS, C.J., and WOOD, J., concur.", "type": "majority", "author": "NEAL, Judge." } ], "attorneys": [ "Paul Bardacke, Atty. Gen., Ida M. Lujan, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Janet E. Clow, Chief Public Defender, Henry R. Quintero, Asst. Appellant Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "667 P.2d 459\nSTATE of New Mexico, Plaintiff-Appellee, v. Mark WADE, Defendant-Appellant.\nNo. 7038.\nCourt of Appeals of New Mexico.\nJuly 12, 1983.\nPaul Bardacke, Atty. Gen., Ida M. Lujan, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJanet E. Clow, Chief Public Defender, Henry R. Quintero, Asst. Appellant Defender, Santa Fe, for defendant-appellant." }, "file_name": "0152-01", "first_page_order": 184, "last_page_order": 187 }