{ "id": 5334932, "name": "STATE of New Mexico, Plaintiff-Appellee, v. William B. ORZEN, Allen F. Cooper, Defendants-Appellants", "name_abbreviation": "State v. Orzen", "decision_date": "1972-01-14", "docket_number": "No. 729", "first_page": "458", "last_page": "463", "citations": [ { "type": "official", "cite": "83 N.M. 458" }, { "type": "parallel", "cite": "493 P.2d 768" } ], "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. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804052 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0346-01" ] }, { "cite": "80 N.M. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363538 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0364-01" ] }, { "cite": "81 N.M. 185", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5369693 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0185-01" ] }, { "cite": "64 L.Ed. 723", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1920, "opinion_index": 0 }, { "cite": "40 S.Ct. 395", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1920, "opinion_index": 0 }, { "cite": "252 U.S. 574", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 551492, 551406, 551431 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/us/252/0574-03", "/us/252/0574-01", "/us/252/0574-02" ] }, { "cite": "174 P. 207", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "24 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8512772 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nm/24/0433-01" ] }, { "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" ] }, { "cite": "83 N.M. 325", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5341724 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0325-01" ] }, { "cite": "81 N.M. 571", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358341 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/81/0571-01" ] }, { "cite": "18 L.Ed.2d 605", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "87 S.Ct. 1495", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1967, "opinion_index": 0 }, { "cite": "386 U.S. 1039", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6386657, 6385793, 6386181, 6387429, 6387592, 6386024, 6386892, 6386322, 6385621 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/1039-06", "/us/386/1039-02", "/us/386/1039-04", "/us/386/1039-08", "/us/386/1039-09", "/us/386/1039-03", "/us/386/1039-07", "/us/386/1039-05", "/us/386/1039-01" ] }, { "cite": "77 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806707 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0039-01" ] }, { "cite": "41 N.M. 589", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571433 ], "weight": 2, "year": 1937, "opinion_index": 0, "case_paths": [ "/nm/41/0589-01" ] }, { "cite": "141 N.Y.S. 149", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3153002 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nys/141/0149-01" ] }, { "cite": "156 App.Div. 10", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 3153002, 1204356 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nys/141/0149-01", "/ny-crim/29/0325-01" ] }, { "cite": "178 Neb. 763", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5274018 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/neb/178/0763-01" ] }, { "cite": "101 A. 581", "category": "reporters:state_regional", "reporter": "A.", "year": 1917, "opinion_index": 0 }, { "cite": "91 Vt. 507", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4514686 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/vt/91/0507-01" ] }, { "cite": "83 N.M. 175", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333630 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0175-01" ] }, { "cite": "80 N.M. 663", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361811 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/80/0663-01" ] }, { "cite": "82 N.M. 347", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5328019 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0347-01" ] }, { "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": "41 L.R.A.,N.S., 407", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "year": 1912, "opinion_index": 0 }, { "cite": "124 P. 795", "category": "reporters:state_regional", "reporter": "P.", "year": 1912, "opinion_index": 0 }, { "cite": "17 N.M. 214", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 208816 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/nm/17/0214-01" ] }, { "cite": "82 N. M. 232", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5329944 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/82/0232-01" ] } ], "analysis": { "cardinality": 792, "char_count": 16093, "ocr_confidence": 0.663, "pagerank": { "raw": 3.77867527604112e-07, "percentile": 0.8964518780824674 }, "sha256": "8380bd2fe5dfcd63ddc1deb623aef8769725f077587e7249fb624c6222f35327", "simhash": "1:844af5be681aaaf9", "word_count": 2633 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN and COWAN, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. William B. ORZEN, Allen F. Cooper, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThis appeal is concerned with an incident which occurred at the basketball arena of the University of New Mexico in February, 1970. A basketball game was scheduled between the University and Brigham Young University. During the presentation of the colors and the playing of the national anthem various objects were thrown toward the playing surface of the basketball court. Some of the objects hit spectators, some landed on the court. The start of the game was delayed 35 to 40 minutes while the surface of the court was restored to playing condition.\nOrzen was identified as having thrown a paper cup containing either ice, or water or beads, and as having thrown a balloon filled with a liquid. Cooper was identified as having thrown a balloon. Both were convicted of violating \u00a7 40A-13-1(B), N. M.S.A.1953 (Repl.Vol. 6). Their appeal raises issues concerning: (1) the applicability of the statute under which they were convicted; (2) the meaning of \u201cdisturb\u201d; (3) evidence of a disturbance; (4) extrajudicial identification and (5) the use of a motion picture film by the State during closing argument.\nSection 40A-13-1(B), supra, reads:\n\u201cDisturbing lawful assembly consists of:\n\u201cB. disturbing any meeting of the people assembled for any legal object.\u201d\nApplicability of the statute.\nTwo contentions of defendants are that the statutory phrase \u201cmeeting of the people\u201d is inapplicable to their conduct at the basketball arena. These two contentions concern legislative history and the meaning of \u201cmeeting of the people.\u201d A third, and alternative contention, is that the statutory phrase is unconstitutionally vague.\n\u2022\u25a0Legislative history.\nPrior to the enactment of the Criminal Code in 1963 (see \u00a7 40A-1-1, N.M.S.A. 1953, Repl.Vol. 6), \u00a7 40-12-6, N.M.S.A. 1953 made it unlawful to \u201c . . . disturb any meeting of the people assembled for any legal object. . . . \u201d In addition, \u00a7 40-12-7, N.M.S.A.1953, among other things, made it \u201c . . . unlawful for any person wilfully to disturb, interrupt, or in any manner interfere with any . lawful assembly for the purpose of . . . sport or contest. . . . \u201d Sections 40-12-6 and 40-12-7, supra, were repealed in the statute enacting the Criminal Code. See Laws 1963, ch. 303, \u00a7 30-1.\nDefendants assert that \u00a7 40A-13-1(B), supra, (the statute under which the}'- were convicted) was a re-enactment of former \u00a7 40-12-6, supra, but that former \u00a7 40-12-7, supra, was not re-enacted. Since \u00a7 49-12-7, supra, applied specifically to sporting events they claim that \u00a7 40A-13-1(B), supra, as a re-enacted statute, cannot be extended to a sporting event and, therefore, the conduct formerly made unlawful by \u00a7 40-12-7, supra, can only be prosecuted under the \u201c . . . general disorderly conduct provision of the Code. ...\u201d The present disorderly conduct statute is \u00a7 40A-20-1, N.M.S.A.1953 (Repl.Vol. 6).\nThe essence of this argument is that the Legislature did. not intend that \u00a7 40A-13-1(B), supra, should apply to conduct formerly covered by \u00a7 40-12-7, supra. The Report of Criminal Law Study Interim Committee, 1961-1962, shows that defendants\u2019 argument is incorrect. The Report recommended the enactment of \u00a7 40A-13-1, supra, as a revision of three then existing laws, two of which were \u00a7\u00a7 40-12-6 and 40-12-7, supra, upon which defendants rely. The Report negates the claim that conduct prohibited by \u00a7 40-12-7, supra, was not to be prohibited by the new \u00a7 40A-13-1, supra.\nThe argument that conduct prohibited by \u00a7 40-12-7, supra, is now only covered by the disorderly conduct statute, \u00a7 40A-20-1, supra, is also negated by the Report. The Committee recommended the enactment of \u00a7 40A-20-1, supra, as a revision of two other then existing laws, neither of which were \u00a7 40-12-7, supra. The recommendations of the Committee as to the sections referred to herein were enacted into law without change.\nThe contention that the legislative history shows that \u00a7 40A-13-1(B), supra, is inapplicable to defendants\u2019 conduct is without merit.\nMeeting of the people.\nDefendants assert that the people present at the arena at the time of the incident with which this appeal is concerned were an assembly of people but that this assembly was not a meeting of the people. They contend that any grouping of people together is an assembly but that a meeting is an assembly for the purpose of discussing and acting on matters in which the group has a common interest. According to defendants, \u201c . . . it is an essential activity of ... [a meeting] that its members relate to each other, communicate with each other, \u2018deal\u2019 with each other, even share silence together. . . . \u201d Defendants state: \u201c . . . Spectators do not come to a basketball game as a \u2018meeting of the people.\u2019 They do not come to the arena to deal with each other. What intercommunication there may be is happenstance and not essential and does not involve the group as a whole. The spectators at a basketball game are an assembly and not a meeting.\u201d\nThe statute does not define \u201cmeeting.\u201d We must, then, ascertain the legislative intent in using that word. The legislative intent is to be determined primarily by the language in the Act. In addition, the words used are to be given their ordinary meaning unless a different intent is clearly indicated. Albuquerque Nat. Bank v. Commissioner of Revenue, 82 N. M. 232, 478 P.2d 560 (Ct.App.1970). Applying the ordinary meaning, there is no ambiguity in the statute.\nThe language used is \u201cany meeting of the people assembled for any lawful object.\u201d One of the definitions of \u201cmeeting,\u201d when used as a noun, in Webster\u2019s Third New International Dictionary (1966) is \u201ca gathering for business, social or other purposes.\u201d Another definition is: \u201ca horse or dog racing session extending for a stated term of days at one track.\u201d The people assembled to view a basketball game was a \u201cmeeting\u201d within these definitions. Compare Territory v. Davenport, 17 N.M. 214, 124 P. 795, 41 L.R.A.,N.S., 407 (1912).\nThe foregoing answers defendants\u2019 argument that the spectators present at the arena could not be a \u201cmeeting.\u201d The concept of \u201cmeeting\u201d can also be viewed in connection with the players \u2014 the participants in the athletic contest. The players certainly act on a matter of common interest \u2014 the game; they deal with one another; they communicate with each other. Under defendants\u2019 asserted definition of \u201cmeeting\u201d the players were a meeting of people assembled for a lawful obj ect.\nDefendants\u2019 conduct at the arena occurred at a \u201cmeeting of the people\u201d within the meaning of \u00a7 40A-13-1(B), supra.\nAsserted vagueness.\nDefendants assert that \u00a7 40A-13-1 (B), supra, violates due process because the meaning of \u201cmeeting\u201d is so vague that \u201cmen may not know what to avoid.\u201d Due process is violated if a statute which forbids the doing of an act is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Minns, 80 N.M. 269, 454 P.2d 355 (Ct.App.1969); see Balizer v. Shaver, 82 N.M. 347, 481 P.2d 709 (Ct.App.1971). In determining the question of unconstitutional vagueness, the statute as a whole must be considered. State v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct.App.1969).\nPersons of common intelligence do not have to guess at the meaning of \u00a7 40A-13-1(B), supra, which forbids the disturbance of any meeting of the people assembled for any legal object. It forbids the disturbance of any gathering for business, social or other purposes if the object of the gathering is legal. The language used conveys a sufficiently definite warning of the proscribed conduct. State v. Ferris, supra; compare State v. Covens, 83 N.M. 175, 489 P.2d 888 (Ct.App.1971).\nMeaning of \u201cdisturb\nDefendants claim the trial court erred in its definition of \u201cdisturb\u201d and there is no substantial evidence that the spectators at the arena were disturbed. If a disturbance is found to have occurred, defendants assert there is no substantial evidence that either defendant was responsible for the disturbance.\nThe trial court instructed the jury \u201c . . . that the term \u2018disturb\u2019 means to throw into disorder or confusion, to interr rupt.\u201d This accords with the ordinary meaning of the word. Webster\u2019s Third New International Dictionary (1966) defines \u201cdisturb\u201d as a verb to mean: \u201cto interfere with (as by hindering or causing to turn from a course or to stop)\u201d and \u201cto throw into confusion or disorder.\u201d \u201cDisturbance\u201d as a noun, is defined as an \u201cinterruption\u201d or \u201ccommotion.\u201d Since the statutory word \u201cdisturbing\u201d is not defined, its ordinary meaning was properly applied by the trial court. Albuquerque Nat. Bank v. Commissioner of Revenue, supra.\nThe basketball game was scheduled to begin at 8:05 p. m. It did not begin until 35 to 40 minutes later. The delay was occasioned by the necessity of removing debris and liquids from the. playing surface. This is substantial evidence .-that, the game was hindered, turned from its course, interrupted. Thus, both the meeting of .the players and the meeting of the spectators to view the game were interrupted.\nState v. Mancini, 91 Vt. 507, 101 A. 581 (1917) states:\n\u201cSpeaking generally, the rule applicable to disturbances of public assemblies is that any conduct which, being contrary to the usages of the particular sort of meeting and class of persons assembled, interferes with its due progress, or is annoying to the assembly in whole or in part, is a disturbance.\u201d (citation omitted)\nSee also State v. McNair, 178 Neb. 763, 135 N.W.2d 463 (1965); compare People v. Malone, 156 App.Div. 10, 141 N.Y.S. 149 (1913). There is substantial evidence that the meeting was disturbed.\nEvidence of a disturbance.\nDefendants contend there is no evidence that any acts of defendants caused the disturbance. Their position is there is no evidence that the objects which defendants threw landed on the playing surface of the basketball court. Assuming, but not deciding, that this is true, the answer to this contention is that the defendants aided and abetted those who threw far enough so that the objects thrown landed on the playing surface of the court.\nFor a definition of aiding and abetting see State v. Ochoa, 41 N.M. 589, 72 P.2d 609 (1937). There is evidence that the defendants threw objects when others also threw them, and also evidence from which community of intent can be reasonably inferred. Further, the issue of aiding and abetting was submitted to the jury and the only objection of these defendants was on the ground that the evidence was insufficient to submit that issue to the jury. We have held the evidence was sufficient. The claim on appeal is that aiding and abetting was not an issue in the case. This is incorrect. Although charged with disturbing the meeting, defendants could be convicted of aiding and abetting that disturbance. Sections 40A-1-14 and 41-6-34, N.M.S.A.1953 (Repl.Vol. 6); State v. Nance, 77 N.M. 39, 419 P.2d 242 (1966), cert. denied, 386 U.S. 1039, 87 S.Ct. 1495, 18 L.Ed.2d 605 (1967).\nExtra-judicial identification.\nFive witnesses testified that either Or-zen or Cooper or both threw objects. Before any identification testimony was received from each of these witnesses, the trial court was requested to permit the witness to be questioned \u201c . . . outside the presence of the jury with respect to anything helping him or assisting him or relating to that event, identification that took place between the time of the game and today.\u201d\nWhen defendants made their request to voir dire the witnesses, no claim was made that there had been any extra-judicial identification. What defendants sought was a \u201cfishing expedition.\u201d See State v. Turner, 81 N.M. 571, 469 P.2d 720 (Ct.App.1970). At this point no issue as to an extra-judicial identification had been raised. Nor was an issue of extra-judicial identification ever raised as to three of the five witnesses. These three concluded their testimony without being questioned as to any identification of defendants other than their observations at the arena and subsequently learning the defendants\u2019 names. State v. Turner, supra.\nDuring the examination of two of the witnesses it was ascertained that they had seen a motion picture film taken during the incident at the arena. One witness had seen the film about two weeks after the incident occurred. Both had viewed the film during the course of the trial, but after it had been introduced into evidence and shown to the jury. Assuming (but not deciding) that this evidence raised an issue concerning extra-judicial identification by the two witnesses, defendants conceded at oral argument that there is nothing to indicate that the viewing of the film had any effect on the in-court identification made by these witnesses. Compare State v. Gilliam, (Ct.App.), 83 N.M. 325, 491 P.2d 1080, decided November 19, 1971.\nThe issue under this point is whether a defendant has the right to explore for the possibilities of an extra-judicial identification. Absent some indication of an improper extra-judicial identification, it was within the discretion of the trial court to permit the trial to be interrupted to allow defendant to voir dire as to the possibilities of such an identification. Compare State v. Manlove, 79 N.M. 189, 441 P.2d 229 (Ct.App.1968) as to voir dire examination as to competency of a witness, and see State v. Turner, supra, as to defendants\u2019 \u201cright\u201d to a \u201cfishing expedition.\u201d\nUse of motion picture film during closing argument.\nDuring closing argument the State reran-the motion picture film previously admitted into evidence. In doing so it used a screen different from the one used when the film was originally viewed by the jury. In showing the film during argument the prosecutor, at times, slowed the film, stopped it, reversed it and made comments concerning what was shown. Defendants assert this was prejudicial misconduct on the part of the prosecutor. They claim the trial court erred in denying their motion for a mistrial. We disagree.\nThe film, admitted into evidence without objection, was demonstrative evidence. See Paradis, The Celluloid Witness, 37 U. of Colo.Law Review 235, at 259 (1965). The prosecutor\u2019s comments were no more than comments directing the jury\u2019s attention to what the exhibit showed. State v. Blancett, 24 N.M. 433, 174 P. 207 (1918), appeal dismissed 252 U.S. 574, 40 S.Ct. 395, 64 L.Ed. 723 (1920). The comments were based on the evidence and were thus permissible. State v. Santillanes, 81 N.M. 185, 464 P.2d 915 (Ct.App.1970).\nThe method in which the film was shown was also a comment on the evidence by the prosecutor. Counsel are allowed a reasonable amount of latitude in their closing remarks to the jury. State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969). The trial court has wide discretion in dealing with and controlling counsel\u2019s jury arguments. If no abuse of discretion or prejudice is shown, then there is no error. State v. Pace, supra; see Chavez v. Atchison, Topeka and Santa Fe Railway Co., 77 N.M. 346, 423 P.2d 34 (1967). Here, there is no showing of an abuse of discretion of prejudice to defendants.\nThe judgment and sentence is affirmed as to each of the defendants with the following two comments: (1) Notice of Appeal was filed in the District Court on July 2, 1970 yet the transcript was not filed in this Court until June 30, 1971; (2) although the trial judge, by order, directed that the District Court Clerk forward all exhibits to the Clerk of this Court, no exhibits were received. Since neither the briefs nor oral arguments relied on the exhibits, the only consequence is that there are no exhibits to be returned by our Clerk upon entry of final order in this cause.\nIt is so ordered.\nSUTIN and COWAN, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Charles Driscoll, Albuquerque, for William B. Orzen.", "Michael Norwood, Richard Bosson, Albuquerque, for Allen F. Cooper.", "David L. Norvell, Atty. Gen., Ray Shollenbarger, Special Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "493 P.2d 768\nSTATE of New Mexico, Plaintiff-Appellee, v. William B. ORZEN, Allen F. Cooper, Defendants-Appellants.\nNo. 729.\nCourt of Appeals of New Mexico.\nJan. 14, 1972.\nCharles Driscoll, Albuquerque, for William B. Orzen.\nMichael Norwood, Richard Bosson, Albuquerque, for Allen F. Cooper.\nDavid L. Norvell, Atty. Gen., Ray Shollenbarger, Special Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0458-01", "first_page_order": 584, "last_page_order": 589 }