{
  "id": 5331179,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Michael B. ODEN, Defendant-Appellant",
  "name_abbreviation": "State v. Oden",
  "decision_date": "1971-04-23",
  "docket_number": "No. 631",
  "first_page": "563",
  "last_page": "565",
  "citations": [
    {
      "type": "official",
      "cite": "82 N.M. 563"
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    {
      "type": "parallel",
      "cite": "484 P.2d 1273"
    }
  ],
  "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": "77 N.M. 47",
      "category": "reporters:state",
      "reporter": "N.M.",
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      "weight": 3,
      "year": 1966,
      "opinion_index": 0,
      "case_paths": [
        "/nm/77/0047-01"
      ]
    },
    {
      "cite": "80 N.M. 269",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5363112
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/80/0269-01"
      ]
    },
    {
      "cite": "79 N.M. 189",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2744578
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/79/0189-01"
      ]
    }
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  "analysis": {
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    "char_count": 7799,
    "ocr_confidence": 0.709,
    "pagerank": {
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    "simhash": "1:b5efbf41bd696f81",
    "word_count": 1258
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  "last_updated": "2023-07-14T17:16:32.756560+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "SPIESS, C. J., and HENDLEY, J., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Michael B. ODEN, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judge.\nConvicted of disorderly conduct, \u00a7 40A-20-1, N.M.S.A.1953 (Repl. Vol. 6, Supp. 1969), defendant appeals. The dispositive issue is the sufficiency of the evidence to sustain the conviction.\nThe applicable portion of \u00a7 40A-20-1, supra, reads:\n\u201cDisorderly conduct consists of:\n\u201cA. engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace\nWhich of the descriptive words appearing in the statute prior to the word \u201cconduct\u201d are involved in this case? Defendant asserts only \u201cindecent\u201d or \u201cprofane\u201d could be applicable. The State does not contend that \u201cprofane\u201d is applicable. Of the statutory words, the State claims \u201cindecent\u201d and \u201cabusive\u201d are applicable. In addition, the State asserts defendant\u2019s conduct was \u201cobscene\u201d and apparently would have us consider the question of obscene conduct under the statutory phrase \u201cotherwise disorderly conduct.\u201d\nSince neither the State nor the defendant contend defendant\u2019s conduct was \u201cprofane,\u201d we eliminate \u201cprofane conduct\u201d as a part of the appeal. In doing so, we dispose of defendant\u2019s claim that the trial court improperly refused to permit defendant to cross-examine a State\u2019s witness as to her use of and familiarity with profanity. Since profane conduct is not involved in the case, a witness\u2019 use of or familiarity with profanity is also not involved.\nFurther, we decline to involve ourselves, in this appeal, with the question of whether defendant\u2019s conduct was obscene or abusive. It is not necessary to do so. The parties are in agreement that the question of indecent conduct is to be considered. Thus, our review is on the basis that \u201cdisorderly conduct consists of engaging in indecent conduct which tends to disturb the peace.\u201d\nEven with this reading of the statute, the parties disagree as to what must be proved to establish a violation. Defendant contends there are two parts to the statute. He asserts his conduct must have been (1) indecent and (2) tend to disturb the peace. The State contends the phrase, \u201cwhich tends to disturb the peace,\u201d applies only to \u201cotherwise disorderly conduct.\u201d The State asserts there is a statutory violation if no more than \u201cindecent conduct\u201d is established; that it was not required to prove that the indecent conduct tended to disturb the peace. Since the word \u201cconduct\u201d appears only once in the statute, we have no difficulty in assuming that the statute should be read as defendant contends. Thus, for the purposes of this appeal, we proceed on the basis that defendant\u2019s conduct must have been indecent and must also have tended to disturb the peace.\nWhat conduct is involved? Five girls were playing tennis. A car drove up. The occupants of the car remarked how badly the girls were playing. The girls ignored these remarks. Three males then emerged from the car and asked if they could play. They were told they could not. These males then took the tennis balls away from the girls.\nDefendant then got out of the car. When the girls told the males to give back the tennis balls, defendant remarked \u201c * * * girls weren\u2019t born with them;\u201d that girls weren\u2019t \u201c[b]orn with balls.\u201d \u201c * * * [FI] e asked us why we needed them because girls didn\u2019t need any, * * i|c\nDuring this encounter, \u201c * * * he [defendant] lifted up his arm and he asked us if that looked like a vagina.\u201d From an exchange between the trial court and defendant, it appears that defendant made a fist with his hand when he raised his arm.\nMeanwhile, the other three males had returned to the car. At the conclusion of the above encounter with defendant, the three males emerged from the car nude. The girls then started running. Defendant said he \u201cwalked\u201d with the girls. At this point, defendant \u201c * * * asked us if we had never seen a boy like that before.\u201d\nMost of the girls testifying admitted they were more shocked by the display of nudity by the three males than by defendant\u2019s conduct. At least one of the girls testified she was shocked by defendant\u2019s conduct and defendant testified the girls \u201cdid take offense at the word [balls].\u201d\nDefendant asserts \u201c * * * that at most the language used in his conversation with the girls at the tennis court was a euphemism and was never intended and was not in fact indecent.\u201d Defendant\u2019s language was certainly not a euphemism, which is defined in Webster\u2019s Third New International Dictionary (1966) as \u201cthe substitution of an agreeable or inoffensive word or expression for one that is harsh, indelicate, or otherwise unpleasant or taboo.\u201d\nFurther, there is substantial evidence that defendant\u2019s conduct \u2014 his language and gesture \u2014 was indecent. See State v. Manlove, 79 N.M. 189, 441 P.2d 229 (Ct.App.1968). The meaning of indecent includes that \u201c \u2018 * * * tending toward or being in fact something generally viewed as morally indelicate or improper or offensive ; * * * \u2019 \u201d See State v. Minns, 80 N.M. 269, 454 P.2d 355 (Ct.App.1969). Defendant\u2019s conduct indecently referred to male and female sex organs.\nEven if his conduct was indecent, defendant claims there is nothing in the record showing his conduct tended to disturb the peace. He relies on the testimony that the girls were more shocked by the nudity of the three males than by defendant\u2019s conduct, and evidence that the girls\u2019 parents \u201c * * * are likely to have been the ones who wanted to file a complaint * * * \u201d He also relies on evidence that the entire episode took approximately twenty minutes and that the girls didn\u2019t leave the tennis court as a result of defendant\u2019s conduct, but only after the three males appeared nude.\nState v. Florstedt, 77 N.M. 47, 419 P.2d 248 (1966) equates \u201cdisturb the peace\u201d with \u201cbreach of the peace\u201d and defines a breach of the peace to include a disturbance which, by causing consternation and alarm, disturbs the peace and quiet of the community. Black\u2019s Law Dictionary (4th ed. 1951), states: \u201cA constructive breach of the peace is an unlawful act which, though wanting the elements of actual violence or injury to any person, is yet inconsistent with the peaceable and orderly conduct of society. * * * \u201d\nAll \u00a7 40A-20-1, supra, requires in this case is indecent conduct which tends to disturb the peace. Conduct which is inconsistent with the peaceable and orderly conduct of society tends to disturb the peace and quiet of the community. A reasonable .mind could find defendant\u2019s conduct adequate to support the conclusion that it tended to disturb the peace. Thus, there is substantial evidence that defendant\u2019s conduct did tend to disturb the peace.\nThe thrust of defendant\u2019s argument, however, is that the question of disturbing the peace must be determined solely by the reaction of the girls to defendant\u2019s conduct. Since the disturbance is viewed in relation to the peace and quiet of the community, the standard for which defendant contends is incorrect. State v. Florstedt, supra. Even if defendant\u2019s contentions were correct, there is substantial evidence. Defendant himself testified that the girls took offense at his reference to \u201cballs.\u201d One girl testified she was shocked and after the three males appeared nude, defendant followed the girls, asking if they had never seen a boy like that before. This evidence supports a conclusion that, considering only the girls\u2019 reactions, defendant\u2019s conduct tended to disturb the peace.\nThe judgment and sentence is affirmed.\nit is so ordered.\nSPIESS, C. J., and HENDLEY, J., concur.",
        "type": "majority",
        "author": "WOOD, Judge."
      }
    ],
    "attorneys": [
      "Dick A. Blenden, Rosenberg & Blenden, Carlsbad, for defendant-appellant.",
      "David L. Norvell, Atty. Gen., Santa Fe, Thomas Patrick Whelan, Jr., Asst. Atty.' Gen., for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "484 P.2d 1273\nSTATE of New Mexico, Plaintiff-Appellee, v. Michael B. ODEN, Defendant-Appellant.\nNo. 631.\nCourt of Appeals of New Mexico.\nApril 23, 1971.\nDick A. Blenden, Rosenberg & Blenden, Carlsbad, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Santa Fe, Thomas Patrick Whelan, Jr., Asst. Atty.' Gen., for plaintiff-appellee."
  },
  "file_name": "0563-01",
  "first_page_order": 619,
  "last_page_order": 621
}