{ "id": 4244764, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Danny CORREA, Defendant-Appellant", "name_abbreviation": "State v. Correa", "decision_date": "2009-09-29", "docket_number": "No. 31,455", "first_page": "291", "last_page": "300", "citations": [ { "type": "official", "cite": "147 N.M. 291" }, { "type": "parallel", "cite": "2009-NMSC-051" }, { "type": "parallel", "cite": "222 P.3d 1" } ], "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": "2004-NMCA-042", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428010 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0408-01" ] }, { "cite": "92 N.M. 100", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557263 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "102", "parenthetical": "reversing the defendant's disorderly conduct conviction where he argued with police officers during traffic stop but was not combative and \"no act of violence was attempted\"" }, { "page": "466", "parenthetical": "reversing the defendant's disorderly conduct conviction where he argued with police officers during traffic stop but was not combative and \"no act of violence was attempted\"" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0100-01" ] }, { "cite": "100 N.M. 152", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588675 ], "weight": 2, "pin_cites": [ { "page": "155" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0152-01" ] }, { "cite": "1999-NMCA-126", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106547 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6\u00b64, 15" }, { "page": "\u00b6 19" }, { "page": "\u00b6 15" }, { "page": "\u00b6\u00b6 12-13" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0245-01" ] }, { "cite": "315 U.S. 568", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 374637 ], "weight": 4, "year": 1942, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/us/315/0568-01" ] }, { "cite": "64 N.E. 175", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 3, "year": 1902, "pin_cites": [ { "page": "177" }, { "page": "177" } ], "opinion_index": 0 }, { "cite": "171 N.Y. 423", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2305272, 1186125 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/ny/171/0423-01", "/ny-crim/16/0555-01" ] }, { "cite": "77 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2810138 ], "weight": 4, "year": 1966, "pin_cites": [ { "page": "49", "parenthetical": "quoting People v. Most, 171 N.Y. 423, 64 N.E. 175, 177 (1902)" }, { "page": "249", "parenthetical": "quoting People v. Most, 171 N.Y. 423, 64 N.E. 175, 177 (1902)" }, { "page": "49" }, { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0047-01" ] }, { "cite": "82 N.M. 563", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331179 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "565" }, { "page": "1275" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0563-01" ] }, { "cite": "111 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715085 ], "weight": 7, "year": 1990, "pin_cites": [ { "page": "476" }, { "page": "1066" }, { "page": "1066" }, { "page": "1067", "parenthetical": "upholding the defendant's disorderly conduct conviction where the defendant was arguing with a third party, yelling provocative fighting words, and appeared to be ready to fight" }, { "page": "477" }, { "page": "1067" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0473-01" ] }, { "cite": "1999-NMCA-099", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257744 ], "weight": 4, "pin_cites": [ { "page": "\u00b612" }, { "page": "\u00b6\u00b620, 37" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0686-01" ] }, { "cite": "1997-NMSC-060", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18088 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0346-01" ] }, { "cite": "2006-NMCA-134", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671702 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0606-01" ] }, { "cite": "2009-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243873 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 41" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0142-01" ] } ], "analysis": { "cardinality": 1427, "char_count": 34935, "ocr_confidence": 0.674, "pagerank": { "raw": 8.86313570112321e-08, "percentile": 0.49890302484816684 }, "sha256": "3770951a8a30a839a0e5dc922c26b311f097adf9304ad244f9729000b6af11df", "simhash": "1:bf6b676b77aaa2f1", "word_count": 5503 }, "last_updated": "2023-07-14T21:21:31.817470+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and CHARLES W. DANIELS, Justices." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Danny CORREA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBOSSON, Justice.\n{1} We accepted certification from the Court of Appeals to address whether the Detoxification Reform Act (DRA), NMSA 1978, \u00a7\u00a7 43-2-1.1 to -23 (1977, as amended through 2005), prohibits criminal prosecution for breaches of the peace when the suspect\u2019s behavior amounts to the normal manifestations of intoxication. For reasons discussed more fully below, we conclude that the DRA does not preclude the State from charging an accused with disorderly conduct when the accused\u2019s conduct otherwise satisfies the statutory elements of the charge, regardless of whether the offender is intoxicated. However, because the evidence in this case was insufficient to support a conviction for disorderly conduct, we reverse.\nBACKGROUND\n{2} On September 30, 2005, at approximately 10 p.m., Albuquerque police officers Lucas Townsend and Kelly Maes responded to a call from Defendant\u2019s neighbor, Robert Root, who alleged that Defendant had made death threats against him. After interviewing Root, police walked across the street to Defendant\u2019s home and knocked on the door. When Defendant answered th\u00a7 door, Officer Townsend identified himself as a police officer and stated that he wanted to talk to Defendant about the incident with Root. Defendant shut and locked the metal security door and stated that he did not want to speak with the officers. Officer Townsend made a second request for Defendant\u2019s cooperation, which was refused. Officer Townsend testified that Defendant raised his voice, used profanity, and instructed the officers to leave. The officers stated that Defendant appeared to be \u201cheavily intoxicated\u201d based on his slurred speech, bloodshot and watery eyes, and the smell of alcohol on his breath.\n{3} At some point during this initial interaction, Defendant was joined at the front door by his Mend, Marty Harrison, who also began making obscene gestures and yelling profanity at the officers through the metal security door. The officers retreated to the side of Defendant\u2019s house. As a result of Defendant\u2019s aggressive behavior, Officer Townsend was concerned for Root\u2019s safety and feared that Defendant might retaliate against Root for calling the police. The officers determined that Defendant and Harrison should not be left alone and decided to call additional officers to the scene. Approximately six officers arrived and took positions in Defendant\u2019s front driveway and in the backyard of a house adjacent to Defendant\u2019s home.\n{4} Over the next three hours, a stand-off ensued while the officers maintained their watch. During that time, Defendant came out of the house two or three times. On each occasion, he would yell at the officers and then run back inside. During these incidents, Defendant would swear at the police officers, tell them to leave his property, and make statements apparently designed to entice the officers to fight. After a few hours, the officers were satisfied that Defendant and Harrison had calmed down and left the scene without arresting either man.\n{5} Nearly nine months later, Defendant was charged with one count of disorderly conduct as a result of this incident. Defendant was found guilty in the metropolitan court and sentenced to fifteen days in jail. Defendant appealed to the district court, and after a de novo bench trial, that court also found Defendant guilty. Defendant appealed again to the Court of Appeals, challenging only whether the evidence was sufficient to support his conviction. That Court sua sponte raised the issue before us on certification \u2014 whether the DRA removes from criminal prosecutions \u201cbreaches of the peace otherwise punishable as petty misdemeanor disorderly conduct when the suspect\u2019s behavior amounts to the normal manifestations of intoxication.\u201d\nDISCUSSION\nThe Detoxification Reform Act and Disorderly Conduct\n{6} The DRA has a long history, and although it has been substantially revised over the years, its central purpose remains largely unchanged \u2014 to study the problems of alcoholism and to promote treatment and rehabilitation of alcoholics. See \u00a7 43-2-5. At issue in this case is Section 43-2-3 of the DRA, which states:\nIt is the policy of this state that intoxicated and incapacitated persons may not be subjected to criminal prosecution, but rather should be afforded protection. It is further the policy of this state that alcohol-impaired persons and drug-impaired persons should be afforded treatment in order that they may lead normal lives as productive members of society.\nThe Court of Appeals questions whether this section prohibits the State from prosecuting intoxicated persons for disorderly conduct pursuant to NMSA 1978, Section 30-20-l(A) (1967), and we are asked to construe the relationship between these two legislative enactments. Our research into the development of these two statutes has proved particularly helpful to understanding the effect of the modern DRA on New Mexico\u2019s current disorderly conduct statute. Therefore, we begin with an historical perspective of these two laws.\n\u201cDrunk and Disorderly \u201d\n{7} From New Mexico\u2019s earliest days, drunkenness and disorderly conduct were closely intertwined, and some of the first laws on record for the Territory address drunkenness and alcoholism. In 1855, for example, a person could be adjudged an \u201chabitual drunkard\u201d based on the affirmation of six men, and upon such determination, the district court could appoint a guardian or a trustee to manage both the person and his estate. See 1856 N.M. Laws, ch. 11, \u00a7\u00a7 1-6. In addition, the Territorial Legislature passed an Act Against Persons Who Disturb Good Order, defined as\n[ejvery inhabitant within the limits of this Territory who shall appear drunk, or in their sound mind shall, within the plazas or streets, use, in loud voice, scandalous or obscene words, or may remain prostrate in the streets, or in any other public place, if they are not taken care of by some friend or relation who shall take them immediately to their houses, or prevent them from committing such scandal. Any person who shall commit such offences shall be immediately taken by any officer ... who, if in his judgment it should be necessary, may require the aid of the citizens, to place such delinquents in the county jail, from which they shall be set at liberty, for the first offense, the following day, having to pay the usual jail fees.\nId. \u00a7 1.\n{8} In 1891, our Territorial Legislature prohibited \u201cDrunkenness and Disorderly Conduct\u201d and declared that \u201c[i]t shall be unlawful for any person to become intoxicated or disorderly, and any person found in such state shall upon conviction thereof before a justice of the peace be fined in a sum of not less than five dollars and not more than twenty-five dollars.\u201d 1891 N.M. Laws, ch. 9, \u00a7 9. This enactment remained in force and without substantial change until 1963, when the Legislature separated \u201cdisorderly conduct\u201d from \u201cdrunkenness\u201d as distinct offenses in the Criminal Code. See NMSA 1953, \u00a7 40A-20-KA) (Vol. 6, 2d Repl.) (defining \u201cdisorderly conduct\u201d as \u201cviolent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace\u201d); NMSA 1953, \u00a7 40A-20-2 (Vol. 6, 2d Repl.) (\u201cDrunkenness consists of being so intoxicated in a public place that the person has become disorderly or is unable to care for his own safety. Whoever commits drunkenness is guilty of a petty misdemeanor.\u201d). \u201cDrunkenness\u201d remained a misdemeanor offense for an additional ten years when, in 1973, the Legislature repealed Section 40A-20-2 (being 1963 N.M. Laws, ch. 303, \u00a7 20-2), as part of the newly enacted Detoxification Act. See 1973 N.M. Laws, ch. 331, \u00a7 8.\nThe Detoxification Act\n{9} In 1941, the Legislature created the Commission on Alcoholism to study the problems of alcoholism and to evaluate the methods and facilities available for treatment and rehabilitation. See 1949 N.M. Laws, ch. 114, \u00a7 3 (codified at NMSA 1953, \u00a7 46-12-3 (Vol. 7, Repl.)). In addition, the Legislature authorized the district courts to commit an alcoholic to an institution for up to three years if he was found to be a \u201chabitual drunkard, chronic alcoholic, ... any person who has been five times convicted of intoxication ... or who is a person who has been legally determined to have lost the power of self control from the intemperate use of spirituous or intoxicating liquors.\u201d 1949 N.M. Laws, ch. 114, \u00a7 7 (codified at NMSA 1953, \u00a7 46-12-7 (Vol. 7, Repl.)).\n{10} In 1973, the Legislature passed the Detoxification Act, which signaled a shift in the way the state addresses alcoholism. NMSA 1953, \u00a7\u00a7 46-14-1 to -7 (Vol. 7, Repl., 1975 Pocket Supp.). Notably, the Legislature repealed Section 40A-20-2 and decriminalized \u201cdrunkenness.\u201d See 1973 N.M. Laws, ch. 331, \u00a7 8. Rather than continuing to punish alcoholism, the Act authorized peace officers to transport intoxicated persons to their residences, or to a health care facility or jail \u2014 in that order, depending on the circumstances \u2014 until the intoxicated person became orderly. Section 46-14-3. The Act noted, however, that \u201c[a]n intoxicated person held in protective custody at a jail or transported to a health care facility under the Detoxification Act shall not be considered to have been arrested or charged with any crime.\u201d Section 46-14-7(B).\n{11} This shift continued in 1977, when the Legislature amended the Act creating the Commission on Alcoholism to add a new section detailing the \u201cpolicy of the State regarding alcoholism,\u201d which read:\nIt is the policy of this state that alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society.\nNMSA 1953, \u00a7 46-12-2.1 (1977) (emphasis added).\n{12} The following year, in 1978, the Compilation Commission recompiled the New Mexico Statutes and combined the Detoxification Act, Sections 46-14-1 to -7, with the Act authorizing the Commission on Alcoholism, Sections 46-12-1 to -13, and recodified them together, see NMSA 1978, \u00a7\u00a7 43-2-1.1 to -23 (2005), as the DRA.\n{13} Notably, the Legislature amended the DRA\u2019s policy statement in 2005 and removed language that would have been helpful to resolving the present dispute. Rather than stating that a person \u201cmay not be subjected to criminal prosecution because of the consumption of alcohol,\u201d the policy statement now reads:\nIt is the policy of this state that intoxicated and incapacitated persons may not be subjected to criminal prosecution, but rather should be afforded protection. It is further the policy of this state that alcohol-impaired persons and drug-impaired persons should be afforded treatment in order that they may lead normal lives as productive members of society.\nNMSA 1978, \u00a7 43-2-3 (2005).\n{14} Under the pre-2005 version of the Act, it was clear that the Legislature intended to eliminate criminal prosecution for the act of consuming alcohol, and to prohibit statutes where drunkenness is an element of the offense. The Act is less clear following the 2005 amendment, largely due to the Legislature\u2019s substituted statement that \u201cintoxicated and incapacitated persons may not be subjected to criminal prosecution.\u201d Taken literally, this language would suggest that a person could not be criminally prosecuted for any offense \u2014 including murder \u2014 if the accused happened to be intoxicated at the time of the crime. However, this language must be viewed in the context of the overarching amendments to the policy statement.\n{15} The 2005 amendment broadened the scope of the DRA to include substance abuse as well as alcoholism. In conjunction with this change, it was necessary to remove the language \u201cbecause of the consumption of alcohol\u201d from the policy statement, although the Legislature could have modified the language to make clearer its intent. Accordingly, it appears that the change in the policy statement indicates the Legislature\u2019s intent to address a broader category of \u201csubstance abuse\u201d through the DRA, rather than limiting it to intoxication. Nothing else in the amended DRA suggests an intent to make a radical change in existing criminal law.\n{16} An expansive interpretation of the statement \u201cintoxicated and incapacitated persons may not be subjected to criminal prosecution\u201d would contravene longstanding New Mexico law. For example, a literal interpretation would mean that an accused would not be criminally liable for murder, burglary, assault, or battery if he was intoxicated when he committed the offense. However, our courts and our Legislature have never suggested that voluntary intoxication could provide wholesale immunity to the accused, or preclude the State from pursuing criminal sanctions. See, e.g., State v. Nozie, 2009-NMSC-018, \u00b6 41, 146 N.M. 142, 207 P.3d 1119 (stating that intoxication may be raised as an affirmative defense to negate specific intent). Such a position would have far-reaching implications and would dramatically alter the Criminal Code in New Mexico. We find no indication that the Legislature intended to do so by way of textual changes to a mere policy statement defining the purpose of the DRA.\n{17} The narrower issue before us is to determine whether the Legislature, through the DRA, intended to \u201cpreclude the handling of drunkenness under any of a wide variety of petty criminal offense statutes, such as loitering, vagrancy, disturbing the peace, and so forth.\u201d Unif. Alcoholism and Intoxication Treatment Act, 9 U.L.A. 229, 230 (1999). The historical relationship between drunkenness and disorderly conduct suggests that in earlier years the Legislature specifically intended to punish disorderly conduct resulting from intoxication. However, as the State\u2019s policy on alcoholism evolved, so too did the relationship between disorderly conduct and drunkenness. When the Legislature classified \u201cdisorderly conduct\u201d and \u201cdrunkenness\u201d as separate offenses in 1963, it signaled an end to the century-old relationship between the two offenses, perhaps in recognition that a person may behave in a disorderly manner without consuming alcohol and conversely that just because a person is intoxicated\u2014 even in a public place \u2014 does not make him disorderly.\n{18} It is significant that the Legislature repealed only \u201cdrunkenness\u201d when it enacted the Detoxification Act in 1973, and did not modify the disorderly conduct statute. When the Legislature stated that \u201calcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages,\u2019\u2019 it made clear that citizens should not be criminally punished solely for being intoxicated. Section 43-2-3 (emphasis added). Therefore, peaceful public drunkenness could not be criminally punished, either as drunkenness or any other petty misdemeanor, including disorderly conduct.\n{19} However, the DRA does not purport to prohibit punishment for conduct that is otherwise criminal or otherwise qualifies as disorderly conduct merely because the offender may be intoxicated. While intoxication itself is not criminal, any criminal offenses committed while an accused is intoxicated are still punishable under the Criminal Code. The DRA does not indicate that intoxication can ever be a mitigating factor, an affirmative defense, or a ground for dismissal when a defendant\u2019s conduct is also disorderly within the meaning of Section 30-20-l(A). Therefore, we conclude that the DRA does not remove disorderly conduct from criminal prosecution merely because an accused is intoxicated, as long as the statutory elements of the charge are satisfied. An accused\u2019s intoxication cannot alone form the basis for the charge; the elements of disorderly conduct must all be proven. Accordingly, because we perceive no conflict between the DRA and the Criminal Code, we proceed to evaluate Defendant\u2019s challenge to his conviction for disorderly conduct.\nSufficiency of the Evidence\n{20} Defendant challenges the sufficiency of the evidence to support his conviction for disorderly conduct.\nSubstantial evidence review requires analysis of whether direct or circumstantial substantial evidence exists and supports a verdict of guilt beyond a reasonable doubt with respect to every element essential for conviction. We determine whether a rational factfinder could have found that each element of the crime was established beyond a reasonable doubt.\nState v. Kent, 2006-NMCA-134, \u00b6 10, 140 N.M. 606, 145 P.3d 86 (citations omitted). \u201cThe reviewing court does not weigh the evidence or substitute its judgment for that of the fact finder as long as there is sufficient evidence to support the verdict.\u201d State v. Mora, 1997-NMSC-060, \u00b6 27, 124 N.M. 346, 950 P.2d 789.\n{21} Disorderly conduct is a petty misdemeanor, and occurs when an accused engages in \u201cviolent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace.\u201d Section 30-20-1. \u201cThis statutory provision has two elements: the conduct itself and the tendency of the conduct to disturb the peace.\u201d State v. Salas, 1999-NMCA-099, \u00b612, 127 N.M. 686, 986 P.2d 482. Both must be present. There is no question that Defendant\u2019s conduct satisfies the first element: his conduct reasonably could be seen as abusive, indecent, profane, boisterous, or unreasonably loud. The question for us to determine is whether that conduct could also be seen as tending to disturb the peace.\n{22} Our Legislature has not defined what it means to \u201cdisturb the peace.\u201d Our courts have stated that \u201cthe standard is whether defendant\u2019s conduct tends to disturb the public peace.\u201d State v. James M., 111 N.M. 473, 476, 806 P.2d 1063, 1066 (Ct.App. 1990). \u201cConduct which tends to disturb the peace is that conduct \u2018which is inconsistent with the peaceable and orderly conduct of society.\u2019\u201d Id. (quoting State v. Oden, 82 N.M. 563, 565, 484 P.2d 1273, 1275 (Ct.App. 1971)). We have defined \u201cdisturbing the peace\u201d as \u201c \u2018a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.\u2019 \u201d State v. Florstedt, 77 N.M. 47, 49, 419 P.2d 248, 249 (1966) (quoting People v. Most, 171 N.Y. 423, 64 N.E. 175, 177 (1902)). We have construed the statute narrowly and, \u201c[ujnless the acts complained of fall clearly within the statute, they are not disorderly.\u201d Id.\n{23} The State argues that Defendant disturbed the peace in two ways: (1) by his use of \u201cfighting words\u201d directed toward the police officers, and (2) by inciting his companion, Harrison, to breach the peace. As we discuss in more detail below, the evidence at trial was insufficient to support Defendant\u2019s conviction on either ground.\nDefendant\u2019s Conduct Toward the Police\n{24} The State argues that Defendant disturbed the peace by verbally attacking the police officers. The State posits that Defendant\u2019s provocative remarks amounted to fighting words, which \u201c \u2018by their very utterance inflict injury or tend to incite an immediate breach of the peace.\u2019 \u201d James M., Ill N.M. at 476, 806 P.2d at 1066 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)) (emphasis added). \u201cFighting words\u201d are measured by their likelihood of provoking an average person to react violently, although it is not necessary that the person who is insulted actually react. Id.\n{25} Our courts have upheld disorderly conduct convictions based on the use of provocative fighting words addressed to a non-police officer. See id. at 477, 806 P.2d at 1067 (upholding the defendant\u2019s disorderly conduct conviction where the defendant was arguing with a third party, yelling provocative fighting words, and appeared to be ready to fight). However, our Court of Appeals has previously held that police officers are not \u201caverage persons\u201d when considering the likelihood of provocation, because \u201c\u2018[pjolice officers, by the nature of their training, are generally expected to have a higher tolerance for offensive conduct and language.\u2019 \u201d State v. Hawkins, 1999-NMCA-126, \u00b6 11, 128 N.M. 245, 991 P.2d 989 (quoting James M., 111 N.M. at 477, 806 P.2d at 1067). We follow this settled precedent in deciding the present dispute.\n{26} It is undisputed that Defendant yelled vulgar and profane statements at the police over the course of three hours. However, our Court of Appeals has previously considered similar conduct, and held that \u201c[sjereaming obscenities and yelling \u2018get the hell out of the house\u2019 do not amount to \u2018fighting\u2019 words, particularly when they are addressed to police officers, who are supposed to exercise restraint.\u201d State v. Wade, 100 N.M. 152, 155, 667 P.2d 459, 462 (Ct.App.1983) (citation omitted) (reversing the defendant\u2019s conviction for abusing a policeman pursuant to NMSA 1978, Section 30-22-l(D) (1981), when the defendant screamed obscenities at police, who entered the defendant\u2019s home in response to a domestic violence call by his wife); see also Hawkins, 1999-NMCA-126, \u00b6\u00b64, 15 (reversing the defendant\u2019s disorderly conduct conviction for yelling at the police, \u201cThis isn\u2019t a f \u2014 ing crack house\u201d and \u201cGet out of my f \u2014 ing yard,\u201d because \u201cNew Mexico is among the states that holds police officers to a higher standard of tolerance for abuse or offensive language.\u201d). \u201cUsually, arguing with a police officer, even when using profane and insulting words, will not be enough to constitute disorderly conduct, unless the words are coupled with threatening behavior.\u201d 12 Am. Jur.2d Breach of Peace and Disorderly Conduct \u00a7 32 (2009) (internal citations omitted); see also Salas, 1999-NMCA-099, \u00b6\u00b620, 37 (upholding the defendant\u2019s conviction for disorderly conduct where he spoke loudly, used profanity, and clenched his fists as he walked toward an officer); Hawkins, 1999-NMCA-126, \u00b6 19 (distinguishing Salas because the defendant \u201cdid not clench his fists or otherwise yell threats\u201d at the officer).\n{27} In the present case, the record does not reveal any threatening conduct accompanying Defendant\u2019s verbal insults toward the police. During the initial encounter, Defendant closed and locked a metal screen door to separate himself from the officers and to bar access to the inside of his home. The State did not present any evidence indicating that Defendant or Harrison moved to open the locked metal door or attempted to physically confront the officers. After this brief, thirty-second initial encounter, the record indicates that the officers had only two or three short interactions with Defendant over the next three hours. The officers testified that Defendant came out of the house to yell at the officers, but would advance only as far as the porch before quickly retreating inside to avoid arrest. Defendant\u2019s conduct, while cowardly and surely irritating, posed no threat to the officers present at the scene.\n{28} The State did not argue or otherwise present evidence that Defendant\u2019s conduct posed any actual threat of violence to the officers. Officer Maes testified that the officers \u201cthought we were going to be threatened, there was a possibility to be harmed.\u201d However, in a similar case, the Court of Appeals reasoned that an officer\u2019s perception that a suspect might become combative was insufficient to support a disorderly conduct conviction. State v. Doe, 92 N.M. 100, 102, 583 P.2d 464, 466 (1978) (reversing the defendant\u2019s disorderly conduct conviction where he argued with police officers during traffic stop but was not combative and \u201cno act of violence was attempted\u201d).\n{29} It is also significant that Defendant\u2019s taunting, even though his words may have been threatening, occurred at a distance. The amount of provocation created by Defendant\u2019s words might have been greater if Defendant were closer to the officers. In this case, Defendant refused to leave his porch, indicating that he feared or sought to avoid actual confrontation with the officers. Indeed, Officer Townsend testified that the officers were waiting for Defendant to come outside so that they could place him under arrest for disorderly conduct. If Defendant had advanced beyond his porch or physically threatened the officers, they would have seized upon the opportunity to arrest him.\n{30} We are not indifferent to the officers in this case. Their valuable role in confronting situations of conflict often carries with it the unfortunate consequence of verbal abuse. The officers in this situation exercised admirable restraint in the face of Defendant\u2019s \u201crude, obnoxious, and ... vulgar speech.\u201d However, it is because of their degree of skill, training, and experience that we rely on officers not to react to verbal provocation, at the risk of escalating a situation rife with conflict. Accordingly, without evidence of anything more than profane and vulgar remarks, the evidence is insufficient to support Defendant\u2019s conviction based on what he said to the officers. As our Court of Appeals noted in Hawkins, \u201cNew Mexico decided this issue years ago, and the State has not provided us with any compelling reason that persuades us to overrule existing precedent.\u201d 1999-NMCA-126, \u00b6 15, 128 N.M. 245, 991 P.2d 989 (citation omitted).\nDisturbing the Tranquility of the Community and Incitement\n{31} As we indicated above, the Legislature has not provided guidance on what it means to \u201cdisturb the peace.\u201d In 1966, when we drew an analogy between \u201cdisturbing the peace\u201d and \u201cbreach of the peace\u201d in Florstedt, we identified three categories of conduct that may satisfy the second element of disorderly conduct: (1) an actual act of violence; (2) an act likely to incite another to violence; and (3) an act that disturbs the peace and tranquility of the community. 77 N.M. at 49, 419 P.2d at 249 (disturbing the peace is \u201ca disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm disturbs the peace and quiet of the community\u201d (quoting Most, 64 N.E. at 177)). In the 43 years following that decision, this Court has never had occasion to consider a ease where an accused\u2019s conduct was alleged to have disturbed the tranquility of the community. Al-though the State theoretically could have made such an argument here, considering the time, place, and manner of Defendant\u2019s conduct, it did not do so in its briefing. On appeal, issues not briefed are considered abandoned, and we do not raise them on our own. State v. Gee, 2004-NMCA-042, \u00b6 25, 135 N.M. 408, 89 P.3d 80.\n{32} At trial, the State noted that Defendant\u2019s yelling was loud enough that it attracted his neighbors. However, the State never argued, as an independent basis for Defendant\u2019s conviction, that his yelling amounted to unreasonably loud noise which disturbed the tranquility of the neighborhood. Rather, the State focused on how Defendant\u2019s behavior impacted the officers and Harrison. On appeal, the State claims that the three-hour duration of the incident caused \u201cthe police to fear for their personal safety and for the safety of Mr. Root and the neighbors living adjacent to Defendant.\u201d Because the State does not advocate that Defendant\u2019s behavior tended to disturb or incite his neighbors \u2014 a conclusion not apparent from the record \u2014 we do not consider further the impact of Defendant\u2019s behavior on the surrounding community in our review.\n{33} However, the State did argue, both to the trial court and on appeal, that Defendant\u2019s behavior incited Harrison to breach the peace. See Hawkins, 1999-NMCA-126, \u00b6\u00b6 12-13. We rely on Haiokins, a factually similar case, where the Court of Appeals discussed disorderly conduct by incitement.\n{34} In Hawkins, two police officers entered Hawkins\u2019s property in pursuit of a criminal suspect. After the officers apprehended the suspect, one reentered Hawkins\u2019s backyard to search for evidence. Hawkins followed and confronted the officer, yelling, \u201cThis isn\u2019t a f \u2014 ing crack house\u201d and \u201cGet out of my f \u2014 ing yard.\u201d Id. \u00b64. These statements were overheard by workers installing a pool in Hawkins\u2019s backyard. The officers arrested Hawkins for disorderly conduct and, on Hawkins\u2019s appeal of his conviction, the State argued that \u201cDefendant\u2019s conduct created the possibility that the workmen in [Hawkins\u2019s] backyard would be incited to aid [Hawkins] and precipitate a breach of the peace.\u201d Id. \u00b6 12. The Court of Appeals held that\nthere was no evidence that [the workers] were negatively affected by or reacted in any way to the statements. The mere fact that people may have heard Defendant\u2019s remarks, however loud or offensive they may have been, is insufficient to support a charge of disorderly conduct. There must be evidence that the remarks were likely to incite the listeners to breach the peace.\nId. \u00b6 13 (emphasis added). The State argues that the present case is similar to Hawkins, but that, unlike the workers in Hawkins, there is evidence that Harrison actually reacted to Defendant\u2019s statements by \u201cmimicking\u201d his behavior. We are not persuaded.\n{35} The evidence establishes that Harrison joined Defendant at the front door during Defendant\u2019s initial contact with the police officers and Harrison, like Defendant, shouted aggressive and profane statements to the officers. At trial, Officer Townsend testified that,\nduring the initial contact, [Defendant] was calm but maybe within one sentence later he elevated his voice, profanities, very upset over the fact that police were there at the house. And I guess the tall, Native American later identified as Marty Harrison, began to mimic that same behavior screaming, using profanity as well.\n(Emphasis added.) Officer Townsend\u2019s opinion is the only statement in the record to suggest that Harrison \u201cmimicked\u201d Defendant, and the trial court relied on this statement as evidence that Defendant incited Harrison. However, Officer Townsend\u2019s \u201cguess\u201d is merely speculation and fails to establish a causal connection between Defendant\u2019s conduct and Harrison\u2019s.\n{36} Harrison testified at trial and was asked on cross-examination:\n[Prosecutor:] Did [Defendant] yelling and being so upset have any effect on you? [Harrison:] No, sir, not at all.\n[Prosecutor:] So you didn\u2019t have any reaction to him being\u2014\n[Harrison:] No.\n[Prosecutor:] Do you think you still would have been angry if he had been perfectly calm?\n[Harrison:] Yes----\n{37} Moreover, as we discussed above, shouting profanity at police officers, without more, does not itself amount to a breach of the peace \u2014 no different for Harrison than for Defendant. We can find no evidence to show a causal connection that Harrison was influenced by or reacted as a consequence of Defendant\u2019s behavior. This evidence is insufficient to establish that Defendant incited Harrison to breach the peace.\nCONCLUSION\n{38} We reverse the disorderly conviction of Defendant.\n{39} IT IS SO ORDERED.\nWE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and CHARLES W. DANIELS, Justices.\n. Defendant's comments allegedly included, \"Hey ass hole you want some of me, f \u2014 ing punk bitch!\u201d and \u201cBring it on, you want some f \u2014 head!\u201d and \"Take off your badge!\"\n. Defendant served his entire sentence prior to this appeal.\n.Section 30-20-l(A) states that disorderly conduct consists of \"engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace.\u201d\n. Section 3 clarified that \"[t]he foregoing sections comprise, in the same manner, women who appear in great prejudice to society, committing such scandals, having some consideration for their sex.\u201d It is not clear from the statute what this last phrase was to mean.\n. During Prohibition from 1920 to 1933, our Legislature declared it a misdemeanor to \"have, possess, or in any wise use any intoxicating liquor of any kind ... at any dance, ball, fandango, or any public gathering, meeting or convention.\u201d 1929 N.M. Laws, ch. 37, \u00a7 9.\n.The Act did not address or modify \u201cdisorderly conduct.\u201d See \u00a7 40A-20-1.\n. In 1976, the Legislature abolished the Commission on Alcoholism and created in its place an Alcoholism Division Within the Hospitals and Institutions Department. We retain our shorthand name for the act for consistency when referring to the origin of NMSA 1953, \u00a7\u00a7 46-12-1 to -13 (Vol. 7, Repl.). See 1976 N.M. Laws, ch. 9, \u00a7 14 (repeal Sections 46-12-1 and-2).\n. Driving while intoxicated is specifically exempted from the Act. See NMSA 1978, \u00a7 43-2-4(C) (1989) (\"Nothing in this section affects any law, ordinance, resolution or rule against driving under the influence of alcohol or drugs or other similar offense involving the operation of a vehicle, aircraft, boat, machinery or other equipment or regarding the sale, purchase, dispensing, possessing or use of alcoholic beverages at stated times and places or by a particular class of persons.\u201d).\n.Interestingly, in 1989, the Legislature created a curious two-year window that permitted criminal prosecution for the consumption of alcohol. The Legislature amended the policy statement to read: \"It is the policy of this stale that alcoholics and intoxicated persons may be subjected to criminal prosecution because of their consumption of alcoholic beverages only under circumstances of chronic public intoxication and, whenever possible, should be afforded a continuum of treatment....\u201d NMSA 1978, \u00a7 43-2-3 (1989) (emphasis added); see 1989 N.M. Laws, ch. 378, \u00a7 1 (Vols. 6-9, 1989 Repl. Pamp.). However, this change was enacted with a sunset clause and automatically reverted back to the previous language used in the 1977 policy statement \u2014 prohibiting criminal prosecution because of the consumption of alcohol \u2014 two years later in 1991. See NMSA 1978, \u00a7 43-2-3 (1989, repealed effective July 1, 1991); 1989 N.M. Laws, ch. 378, \u00a7 2 (Vols. 6-9, 1989 Repl. Pamp.).\n. Although Officer Maes testified that he perceived Harrison's size as a threat, he did not indicate that Harrison made threatening gestures or otherwise acted violently. Moreover, even if Harrison had threatened violence, that conduct cannot be attributed to Defendant as evidence that Defendant disturbed the peace, unless Harrison's conduct was incited by Defendant \u2014 a position we dispel below.\n. The State had a full opportunity before the Court of Appeals to explain the evidence and its theory for conviction. The briefing to this Court was confined to the issue certified to us pertaining the DRA.", "type": "majority", "author": "BOSSON, Justice." } ], "attorneys": [ "Hugh W. Dangler, Chief Public Defender, Adrianne R. Turner, Assistant Appellate Defender, Santa Fe, NM, for Appellant.", "Gary K. King, Attorney General, Andrea Sassa, Assistant Attorney General, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2009-NMSC-051\n222 P.3d 1\nSTATE of New Mexico, Plaintiff-Appellee, v. Danny CORREA, Defendant-Appellant.\nNo. 31,455.\nSupreme Court of New Mexico.\nSept. 29, 2009.\nHugh W. Dangler, Chief Public Defender, Adrianne R. Turner, Assistant Appellate Defender, Santa Fe, NM, for Appellant.\nGary K. King, Attorney General, Andrea Sassa, Assistant Attorney General, Santa Fe, NM, for Appellee." }, "file_name": "0291-01", "first_page_order": 327, "last_page_order": 336 }