{ "id": 4246461, "name": "STATE of New Mexico, Plaintiff-Petitioner, v. Derrick JOHNSON, Defendant-Respondent", "name_abbreviation": "State v. Johnson", "decision_date": "2009-09-24", "docket_number": "No. 31,215", "first_page": "177", "last_page": "182", "citations": [ { "type": "official", "cite": "147 N.M. 177" }, { "type": "parallel", "cite": "2009-NMSC-049" }, { "type": "parallel", "cite": "218 P.3d 863" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "297 U.S. 124", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3929620 ], "weight": 3, "year": 1936, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/us/297/0124-01" ] }, { "cite": "50 N.M. 147", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577096 ], "weight": 3, "year": 1946, "pin_cites": [ { "page": "154", "parenthetical": "Bickley, J., specially concurring" }, { "page": "1023", "parenthetical": "Bickley, J., specially concurring" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/50/0147-01" ] }, { "cite": "2007-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692623 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0102-01" ] }, { "cite": "195 P.3d 1267", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "145 N.M. 255", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2008-NMCERT-008", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "118 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563429 ], "weight": 31, "year": 1994, "pin_cites": [ { "page": "239-40" }, { "page": "850-51", "parenthetical": "\"The issue of whether a Farmington [Community Services Officer] qualifies as a 'peace officer' under the aggravating circumstance statute is a purely legal question.\"" }, { "page": "242" }, { "page": "853" }, { "page": "244" }, { "page": "855" }, { "page": "237" }, { "page": "848" }, { "page": "243-44" }, { "page": "854-55" }, { "page": "243" }, { "page": "854" }, { "page": "245" }, { "page": "856" }, { "page": "244" }, { "page": "855" }, { "page": "244-45" }, { "page": "855-56" }, { "page": "242" }, { "page": "853" }, { "parenthetical": "brackets in original; internal quotation marks and citations omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "242" }, { "page": "853", "parenthetical": "\"[S]trict construction is only one factor influencing interpretation of punitive legislation, and it should not be used to defeat the policy and purposes of a statute.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0234-01" ] }, { "cite": "2008-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4001933 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 1" }, { "page": "\u00b6 8" }, { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0629-01" ] }, { "cite": "2009-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242622 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0757-01" ] }, { "cite": "114 N.M. 395", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731611 ], "weight": 2, "pin_cites": [ { "page": "404" }, { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0395-01" ] } ], "analysis": { "cardinality": 864, "char_count": 19787, "ocr_confidence": 0.691, "pagerank": { "raw": 1.722827306369206e-07, "percentile": 0.7041976192434385 }, "sha256": "11f4bf1344a6336f76ff5d2a4c8ae91e1c85b15e8a8d9070f5a6f8fee172e869", "simhash": "1:7ad16d226871c7eb", "word_count": 3118 }, "last_updated": "2023-07-14T21:21:31.817470+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: PATRICIO M. SERNA, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and CHARLES W. DANIELS, Justices." ], "parties": [ "STATE of New Mexico, Plaintiff-Petitioner, v. Derrick JOHNSON, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nCH\u00c1VEZ, Chief Justice.\n{1} After allegedly striking three private security guards while visiting Gallup High School, Defendant Derrick Johnson was charged with three counts of battery on school personnel, contrary to NMSA 1978, Section 30-3-9(E) (1989), which prohibits battery upon \u201cschool employee[s].\u201d The district court dismissed the charges, concluding that because the security guards were providing contractual services at the high school, they were not \u201cschool employees\u201d as defined in Section 30-3-9(A)(2). The State appealed.\n{2} The sole issue we must decide in this case is whether the security guards may be considered \u201cemployees\u201d of the school board for the purposes of Section 30-3-9. The State argues that the security guards are \u201cschool employees\u201d because the Legislature intended to reduce violence in schools by protecting any person hired by the board to provide services for the school. Defendant argues that by using the term \u201cemployee,\u201d the Legislature did not intend to make battery upon independent contractors punishable by Section 30-3-9. We hold that the term \u201cschool employee\u201d in Section 30-3-9 includes security guards providing services for a school district pursuant to a contract with a school board. Therefore, we reverse the dismissal of the charges against Defendant and remand this matter to the district court.\nI. BACKGROUND\n{3} Since this matter is before us on review of Defendant\u2019s motion to dismiss, we briefly set forth the allegations in the State\u2019s criminal complaint. See State v. Powell, 114 N.M. 395, 404, 839 P.2d 139, 148 (Ct.App.1992) (\u201cIn considering a defense motion to dismiss [a complaint], the district court accepts as true the factual allegations set forth in the [complaint].\u201d (modifications in original, internal quotation marks and citation omitted)). In December 2005, Defendant and his cousin, Kevin Barney, visited Gallup High School. Neither Defendant nor his cousin were students at that time; their purpose in visiting the school was to return some books. Mr. Barney was involved in an altercation with a school security guard and Defendant intervened. In the ensuing scuffle, Defendant allegedly struck three security guards, Dennis Moeckel, Delbert Cachini, and Edward King. The State charged Defendant with three counts of battery upon school personnel.\n{4} Defendant moved to dismiss all three counts pursuant to Rule 5-601(B) NMRA on the grounds that the security guards were not \u201cschool employees\u201d within the meaning of Section 30-3-9. See Rule 5-601(B) (\u201cAny defense, objection or request which is capable of determination without a trial on the merits may be raised before trial by motion.\u201d). The parties agreed that this issue would require the district court to take evidence to determine the nature of the guards\u2019 working relationship with the school. However, they stipulated that the issue before the court in Defendant\u2019s motion to dismiss was a legal question that could be decided pre-trial under Rule 5-601(B). The district court heard testimony and accepted written evidence regarding the nature of the security guards\u2019 working relationship with Gallup-McKinley County Board of Education and Gallup-McKinley High School. In this ease, the parties stipulated that the facts are not in dispute, and therefore the security guards\u2019 status as school employees is a question of law appropriate for disposition on a motion to dismiss. See State v. Smith, 2009-NMCA-028, \u00b6 7, 145 N.M. 757, 204 P.3d 1267 (\u201cA defendant\u2019s pretrial motion to dismiss cannot contradict allegations of fact supported by probable cause; to do so would raise a factual issue for the jury to decide.\u201d).\n{5} Regarding the evidence submitted to determine whether the guards were \u201cschool employees\u201d under Section 30-3-9, the record reflects the following undisputed facts. Gallup Security Service (GSS) is a sole proprietorship owned by Dennis Moeckel. Pursuant to a request for proposals issued by the Gallup-McKinley County Board of Education, GSS was selected by the board to provide contractual security services to the Gallup-McKinley County School District for the 2004-2005 school year. As part of this contract, GSS provided security services at Gallup-McKinley High School. As owner of GSS, Moeekle hired and paid security guards Cachini and King to work at Gallup-McKinley High School. Neither Cachini nor King were hired directly by the school board, nor were they paid directly by the board for their services pursuant to its contract with GSS. However, pursuant to the contract, the principal of Gallup-McKinley High School determined what hours GSS security guards should work and at what locations. The principal also could dictate that a particular security guard could not work at Gallup-McKinley High School. The contract between the board and GSS provided that the \u201c[s]ite administrator has full direction over guards [sic] assignments including temporary assignments on other Gallup School Property sites.\u201d\n{6} The district court granted Defendant\u2019s motion to dismiss, concluding that Moeckle, Cachini and King \u201c[were] not \u2018school employees\u2019 as defined by NMSA 1978, \u00a7 30-3-9(A)(2)[.]\u201d The Court of Appeals affirmed in a split decision. State v. Johnson, 2008-NMCA-106, \u00b6 1, 144 N.M. 629, 190 P.3d 350. To determine whether the security guards were \u201cschool employees\u201d within the meaning of Section 30-3-9, the Court of Appeals majority stated that its task was to give the words of the statute their ordinary meaning. Johnson, 2008-NMCA-106, \u00b6 8. It concluded that this determination \u201cis informed by the undisputed relationship between the school board and the school security guards.\u201d Id. \u00b6 9. Thus, the Court of Appeals\u2019 analysis was guided by cases that analyze whether an employer-employee relationship exists by determining whether the employer had the right to control the details of the work to be performed by the employee. Id.\n{7} The majority concluded that under these right to control tests, the security guards were not employees of Gallup-McKinley High School. Id. \u00b6 11. It therefore determined that the plain meaning of the term \u201cemployee\u201d as used in Section 30-3-9 \u201cdoes not include employees of business entities that contract with the board.\u201d Johnson, 2008-NMCA-106, \u00b6 12. Relying on State v. Ogden, 118 N.M. 234, 880 P.2d 845 (1994), the majority strictly construed the criminal statute and \u201cdecline[d] to extend the definition provided by the Legislature with regard to school employees.\u201d Johnson, 2008-NMCA-106, \u00b6 12, 144 N.M. 629, 190 P.3d 350.\n{8} In her dissent, Judge Pickard took issue with the majority\u2019s reliance on \u201ctechnical employment law\u201d to define who qualified as \u201cschool employees\u201d under the statute. Id. \u00b6 20 (Pickard, J., dissenting). Rather than looking to the right to control tests, Judge Pickard explained that she would give the term \u201cemployee\u201d its ordinary meaning and construe the statute to effectuate its purpose. Id. \u00b6\u00b6 21-22. Consequently, Judge Pickard concluded that \u201cthe guards who are hired by the school to help maintain order, whether they are direct employees of the school or of a company that contracts with the school, seem to be deserving of the protection afforded by Section 30-3-9.\u201d Id. \u00b622. We granted certiorari to consider whether \u201cemployees\u201d as defined in the battery on school personnel statute includes security guards providing services to the school under a contract with the school board. State v. Johnson, 2008-NMCERT-008, 145 N.M. 255, 195 P.3d 1267.\nII. DISCUSSION\n{9} The issue of whether the security guards are \u201cschool employees\u201d as defined in the battery upon school personnel statute is purely a legal question. Cf. Ogden, 118 N.M. at 239-40, 880 P.2d at 850-51 (\u201cThe issue of whether a Farmington [Community Services Officer] qualifies as a \u2018peace officer\u2019 under the aggravating circumstance statute is a purely legal question.\u201d). Therefore, as a matter of statutory construction, our review is de novo. State v. Lucero, 2007-NMSC-041, \u00b6 8, 142 N.M. 102, 163 P.3d 489.\n{10} \u201cThe principal command of statutory construction is that the court should determine and effectuate the intent of the legislature[.]\u201d Ogden, 118 N.M. at 242, 880 P.2d at 853. The primary indicator of legislative intent is the plain language of the statute. Id. When a term is not defined in a statute, we must construe it, giving those words \u201ctheir ordinary meaning absent clear and express legislative intention to the contrary.\u201d Id.\n{11} Section 30-3-9(E) makes unlawful any battery upon a \u201cschool employee.\u201d As used in that section, \u2018\u201cschool employee\u2019 includes a member of a local public school board and public school administrators, teachers and other employees of that board.\u201d Section 30-3-9(A)(2). As the GSS security guards are not members of the school board, administrators, or teachers, we are only concerned with whether they are \u201cother employees of [the] board.\u201d Unfortunately, the definition of \u201cother employees of [the] board\u201d is not defined in the statute, and thus we must look to other sources to determine the exact meaning of \u201cschool employee.\u201d We also observe that \u201cschool employee\u201d is not defined elsewhere in the Criminal Code. See NMSA 1978, \u00a7 30-1-12 (1963) (definitions applicable in the Criminal Code). Finally, we note that nothing in the statute indicates the Legislature intended something other than the ordinary meaning of \u201cemployee\u201d to apply. Therefore, we begin our analysis by determining the ordinary meaning of that term.\n{12} An \u201cemployee\u201d is \u201c[a] person who works for another in return for financial or other compensation.\u201d The American Heritage Dictionary of the English Language 428 (1973). An \u201cemployee\u201d is also \u201cone employed by another ... usu[ually] for wages[.]\u201d Webster\u2019s Third New International Dictionary 743 (1971). To \u201cemploy\u201d means \u201cto provide with a job that pays wages or a salary},]\u201d and, more generally, \u201cto use or engage the services of[.]\u201d Id. Under the ordinary meaning of the term, an \u201cemployee\u201d is one who provides services to another in exchange for compensation. As used in Section 30-3-9, it includes those who have been hired directly by the school board in exchange for wages or a salary and, in some cases, those who provide services for the board in exchange for compensation, provided their services further the legislative purpose of this section. Thus, we must investigate whether the security guards contracted by the school board fall within this definition.\n{13} \u201cA criminal statute must be interpreted in light of the harm or evil it seeks to prevent.\u201d Ogden, 118 N.M. at 244, 880 P.2d at 855. In Ogden, we were faced with the issue of whether a community service officer (CSO) was a \u201cpeace officer\u201d under the aggravating circumstance statute, NMSA 1978, Section 31-20A-5 (1981). Ogden, 118 N.M. at 237, 880 P.2d at 848. Observing that the aggravating circumstance statute did not define that term, we first defined \u201cpeace officer\u201d according to its plain and ordinary meaning. Id. at 243-44, 880 P.2d at 854-55. We recognized, however, that \u201cthe language of penal statutes should be given a reasonable or common sense construction consonant with the objects of the legislation, and the evils sought to be overcome should be given special attention.\u201d Id. at 243, 880 P.2d at 854. Thus, when construing an undefined term in a criminal statute, the court should embrace the common sense meaning of the statutory language in light of the rule that \u201ccriminal statutes should be construed to further their purpose.\u201d Id. at 245, 880 P.2d at 856.\n{14} In Ogden, we held that the purpose of the aggravating circumstance statute is \u201cto deter the killing of law enforcement officers by enhancing the penalty for committing that crime.\u201d Id. at 244, 880 P.2d at 855. After broadly defining the popularly understood meaning of \u201cpeace officers\u201d to include those \u201cwho keep[] the peace by patrolling public areas and enforcing the law[,]\u201d we concluded that \u201c[protecting CSOs under the aggravating circumstance statute clearly furthers the purpose of the statute.\u201d Id. We adopt the same analytical approach here.\n{15} The purpose of the battery upon school personnel statute is to decrease incidents of violence at schools by enhancing the penalties for crimes committed against \u201cemployees\u201d of the school. The law enacting Section 30-3-9 was entitled \u201cAn Act Relating to Public School Violence and Vandalism}.]\u201d 1989 N.M. Laws, eh. 344. Thus, one of the Legislature\u2019s explicit purposes was to reduce violence in schools. Indeed, the State Board of Education has recognized that school boards throughout New Mexico have the \u201cauthority and responsibility to provide a safe environment for student learning\u201d in order to effectively educate New Mexico\u2019s children. 6.11.2.6 NMAC.\n{16} We also look to related provisions of the Administrative Code to examine whether security guards are traditionally viewed as school employees. In the section of the Code that declares the rights and responsibilities of public schools and public school students, the State Board of Education defines \u201c[s]chool personnel\u201d as \u201call members of the staff, faculty and administration employed by the local school board [,] ... includ[ing] school security officers!)]\u201d 6.11.2.7(T) NMAC (emphasis added). Among the provisions of these regulations, a student may be appropriately disciplined for endangering the health or safety of \u201cschool personnel,\u201d meaning that if a student commits an act that endangers the health or safety of a security guard, that student may be disciplined. 6.11.2.10(C)(1) NMAC. We acknowledge that these regulations are not an interpretation of Section 30-3-9. However, they nonetheless demonstrate two important principles: (1) they support our conclusion that the ordinary meaning of \u201cschool employee\u201d includes school security guards; and (2) they demonstrate that deterring assaults on security guards furthers the policy to provide a safe environment in which students can learn. It is to this policy, shared by Section 30-3-9, that we now turn.\n{17} Our conclusion that the ordinary definition of \u201cschool employee\u201d in Section 30-3-9 includes security guards who are providing services for the school promotes the State\u2019s articulated policy to make schools safe places for learning. Therefore, \u201cusing two important rules of construing criminal statutes, the plain meaning rule and the rule that criminal statutes should be construed to further their purpose,\u201d Ogden, 118 N.M. at 244-45, 880 P.2d at 855-56, we conclude that security guards providing services at a school pursuant to a contract with the school board are included within the definition of \u201cschool employee\u201d in Section 30-3-9.\n{18} Defendant encourages us to strictly construe Section 30-3-9, citing our statement in Ogden that \u201c[statutes defining criminal conduct should be strictly construed, and doubts about construction of criminal statutes are resolved in favor of lenity.\u201d 118 N.M. at 242, 880 P.2d at 853. Defendant\u2019s citation to Ogden is incomplete and does not acknowledge our further explanation in Ogden of the rule of lenity when construing penal statutes. \u201cThe rule of lenity counsels that criminal statutes should be interpreted in the defendant\u2019s favor when insurmountable ambiguity persists regarding the intended scope of a criminal statute.\u201d Id. A penal statute is not ambiguous \u201cmerely because it [is] possible to articulate a construction more narrow than that urged by the Government.\u201d Id. (brackets in original; internal quotation marks and citations omitted). \u201cRather, lenity is reserved for those situations in which a reasonable doubt persists about a statute\u2019s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.\u201d Id. (internal quotation marks and citation omitted).\n{19} The rule of lenity is inapplicable in this case. We acknowledge that the term \u201cemployee\u201d in certain contexts may be given the narrow reading advanced by Defendant. However, as we have discussed, the ordinary meaning of that term also includes those who are not \u201cemployees\u201d in the strictest sense of that term. Furthermore, when considering the objects of Section 30-3-9 and the evils it seeks to overcome, protecting security guards under Section 30-3-9 clearly furthers the purpose of the statute. See Ogden, 118 N.M. at 242, 880 P.2d at 853 (\u201c[S]trict construction is only one factor influencing interpretation of punitive legislation, and it should not be used to defeat the policy and purposes of a statute.\u201d).\n{20} Finally, Defendant argues that the principle of ejusdem generis dictates that our construction of the term \u201cemployee\u201d as used in Section 30-3-9 should be limited by the Legislature\u2019s specific reference to board members, administrators, and teachers in Section 30-3-9(A)(2). The principle of ejusdem generis literally means \u201c[o]f the same kind or species.\u201d State v. Grayson, 50 N.M. 147, 154, 172 P.2d 1019, 1023 (1946) (Bickley, J., specially concurring) (internal quotation marks and citation omitted). It provides that \u201cwhere an enumeration of specific things if followed by some more general word or phrase, such general word or phrase is to be held to refer to things of the same kind.\u201d Id. (internal quotation marks and citation omitted). Defendant argues that security guards cannot be included in the same group as board members, administrators, and teachers because the listed group \u201chas an internal consistency relating to the traditional function of the school.\u201d We disagree. The school board has a duty to provide a safe environment for the education of public school students. That members of the board, administrators, and teachers also have a responsibility to provide a formal education for the students misses the point. Each of these employees, including security guards, by virtue of their working relationship with the board, share in the board\u2019s responsibility for making the school a safe environment for student learning. See 6.11.2.6. Indeed, security guards, by nature of their employment, bear this responsibility perhaps more than some of the employees specifically listed in Section 30-3-9. Therefore, the principle of ejusdem generis does not operate to exclude security guards as \u201cemployees\u201d of the board. See Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936) (\u201cThe rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified; but it may not be used to defeat the obvious purpose of legislation. And, while penal statutes are narrowly construed, this does not require rejection of that sense of the words which best harmonizes with the context and the end in view.\u201d).\nIII. CONCLUSION\n{21} We hold that the contracted security guards providing services for a school are \u201cschool employees\u201d within the meaning of Section 30-3-9. We reverse the district court\u2019s dismissal of three counts of battery on school personnel, contrary to Section 30-3-9(E), and we also reverse the Court of Appeals. We remand this matter to the district court with instructions to reinstate it on its docket.\n{22} IT IS SO ORDERED.\nWE CONCUR: PATRICIO M. SERNA, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and CHARLES W. DANIELS, Justices.", "type": "majority", "author": "CH\u00c1VEZ, Chief Justice." } ], "attorneys": [ "Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Petitioner.", "Hugh W. Dangler, Chief Public Defender, Nina Lalevic, Assistant Public Defender, Santa Fe, NM, for Respondent." ], "corrections": "", "head_matter": "2009-NMSC-049\n218 P.3d 863\nSTATE of New Mexico, Plaintiff-Petitioner, v. Derrick JOHNSON, Defendant-Respondent.\nNo. 31,215.\nSupreme Court of New Mexico.\nSept. 24, 2009.\nGary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Petitioner.\nHugh W. Dangler, Chief Public Defender, Nina Lalevic, Assistant Public Defender, Santa Fe, NM, for Respondent." }, "file_name": "0177-01", "first_page_order": 213, "last_page_order": 218 }