{ "id": 1573225, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Mario PARRILLO, Defendant-Appellant", "name_abbreviation": "State v. Parrillo", "decision_date": "1979-10-23", "docket_number": "No. 3993", "first_page": "98", "last_page": "101", "citations": [ { "type": "official", "cite": "94 N.M. 98" }, { "type": "parallel", "cite": "607 P.2d 636" } ], "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": "81 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361327 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0047-01" ] }, { "cite": "586 P.2d 1233", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 787", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872120, 2867153 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0787-02", "/nm/90/0787-01" ] }, { "cite": "91 N.M. 244", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571061 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/91/0244-01" ] }, { "cite": "576 P.2d 297", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "opinion_index": 0 }, { "cite": "91 N.M. 491", "category": "reporters:state", "reporter": "N.M.", "year": 1978, "opinion_index": 0 }, { "cite": "91 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571098 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0445-01" ] }, { "cite": "405 U.S. 518", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722895 ], "weight": 4, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/0518-01" ] }, { "cite": "242 S.W.2d 367", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10197315, 10197445 ], "year": 1951, "opinion_index": 1, "case_paths": [ "/sw2d/242/0367-01", "/sw2d/242/0367-02" ] }, { "cite": "156 Tex.Cr.R. 446", "category": "reporters:state", "reporter": "Tex. Crim.", "case_ids": [ 2578252 ], "year": 1951, "opinion_index": 1, "case_paths": [ "/tex-crim/156/0446-01" ] }, { "cite": "385 A.2d 642", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8517733 ], "opinion_index": 1, "case_paths": [ "/ri/120/0042-01" ] }, { "cite": "16 Ariz.App. 463", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1225356 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/ariz-app/16/0463-01" ] }, { "cite": "5 S.W. 208", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1887, "pin_cites": [ { "page": "209" } ], "opinion_index": 1 }, { "cite": "23 Tex. 653", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2114479 ], "year": 1887, "opinion_index": 1, "case_paths": [ "/tex/23/0653-01" ] }, { "cite": "414 U.S. 2", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11714764 ], "weight": 3, "year": 1973, "opinion_index": 1, "case_paths": [ "/us/414/0002-01" ] }, { "cite": "403 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12026621 ], "weight": 3, "year": 1971, "opinion_index": 1, "case_paths": [ "/us/403/0015-01" ] }, { "cite": "33 L.Ed.2d 321", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 1 }, { "cite": "92 S.Ct. 2479", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 1 }, { "cite": "408 U.S. 901", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782761, 1782768, 1782897, 1782718, 1782846 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/us/408/0901-02", "/us/408/0901-04", "/us/408/0901-01", "/us/408/0901-05", "/us/408/0901-03" ] }, { "cite": "188 F. 453", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6747126 ], "opinion_index": 1, "case_paths": [ "/f/188/0453-01" ] }, { "cite": "294 N.W. 25", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1940, "opinion_index": 1 }, { "cite": "235 Wis. 628", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8692143 ], "year": 1940, "opinion_index": 1, "case_paths": [ "/wis/235/0628-01" ] }, { "cite": "52 N.M. 15", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579470 ], "weight": 2, "year": 1948, "opinion_index": 1, "case_paths": [ "/nm/52/0015-01" ] }, { "cite": "58 N.M. 303", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587502 ], "weight": 2, "year": 1954, "opinion_index": 1, "case_paths": [ "/nm/58/0303-01" ] }, { "cite": "230 P. 379", "category": "reporters:state_regional", "reporter": "P.", "year": 1924, "opinion_index": 1 }, { "cite": "30 N.M. 178", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841545 ], "year": 1924, "pin_cites": [ { "page": "190" } ], "opinion_index": 1, "case_paths": [ "/nm/30/0178-01" ] }, { "cite": "85 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773452 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/85/0234-01" ] }, { "cite": "20 A.L.R. 1527", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1921, "opinion_index": 1 }, { "cite": "202 P. 988", "category": "reporters:state_regional", "reporter": "P.", "year": 1921, "opinion_index": 1 }, { "cite": "27 N.M. 477", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842554 ], "year": 1921, "opinion_index": 1, "case_paths": [ "/nm/27/0477-01" ] }, { "cite": "64 N.M. 300", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5346230 ], "weight": 2, "year": 1958, "opinion_index": 1, "case_paths": [ "/nm/64/0300-01" ] }, { "cite": "80 N.M. 748", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5355345 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/80/0748-01" ] }, { "cite": "405 U.S. 518", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722895 ], "weight": 3, "year": 1972, "opinion_index": 1, "case_paths": [ "/us/405/0518-01" ] } ], "analysis": { "cardinality": 822, "char_count": 12284, "ocr_confidence": 0.801, "pagerank": { "raw": 7.72743462626362e-08, "percentile": 0.4542413476615818 }, "sha256": "e865917bf6a5d3657041d4ca80284178b239dd2eaf02a38a4cfdaa2ddcb39851", "simhash": "1:0c46f183e76924e1", "word_count": 2042 }, "last_updated": "2023-07-14T18:18:16.712923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ANDREWS, J., concurs.", "SUTIN, J., dissents." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Mario PARRILLO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWALTERS, Judge.\nThe defendant was convicted of assault under \u00a7 30-3-1 C, N.M.S.A.1978, in the magistrate court. His de novo appeal to the district court also resulted in conviction. He seeks to have the decision of the district court reversed.\nDefendant, riding a motorcycle and stopped at a traffic light, saw his ex-wife driving an automobile heading in the opposite direction. As soon as the light turned green the defendant turned around, followed her, and drove his motorcycle in front of her, causing her to drive off the highway to avoid an accident. He walked from his cycle to her car, which she had pulled off into a ditch, addressed her in some coarse, insulting, gutter terms and threatened her and her children with bodily harm. The encounter lasted about two minutes and the defendant drove off.\nIn his docketing statement defendant contended that defendant\u2019s alibi was sufficient to establish reasonable doubt and thus avoid a judgment of conviction.\nIn connection with this contention, defendant argues other sub-points of his docketing statement, i. e., that hearsay and opinion evidence were allowed to refute the alibi testimony, and that \u201cthe only proper evidence concerning the question of alibi and provocation were based upon inferences that were piled upon inferences and in the alternative were so insubstantial as to result in fundamental error.\u201d His briefed argument otherwise includes an objection to allowance of evidence of collateral offenses, but it departs from his docketing statement to assert further that the defendant was precluded from developing testimony supporting his theories of defense, and that the statute under which he was tried fails to provide notice of the offenses charged.\nWe recognize that, properly raised, we might agree that a constitutional infirmity in the statute exists insofar as first and fourteenth (not fifth or sixth) amendment rights are concerned, Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). We do not consider the argument of vagueness in defendant\u2019s brief, or his contention that he was restricted in presenting his theories of defense (which, incidentally, is not supported by the record). Neither issue was included in his docketing statement. State v. Jacobs, 91 N.M. 445, 575 P.2d 954 (Ct.App.), cert. den. 91 N.M. 491, 576 P.2d 297 (1978). Moreover, the question of the allegedly unconstitutional vagueness of the statute was not presented to the trial court for decision. A reviewing court will not reverse a trial court on a ground that the trial court was not asked to consider nor had the opportunity to rule upon. Laguna Dev. Co. v. McAlester Fuel Co., 91 N.M. 244, 572 P.2d 1252 (1977); see Melon v. State, 90 N.M. 787, 586 P.2d 1233 (1977). We note the first amendment weakness of subsection C of \u00a7 30-3-1, N.M. S.A.1978, sua sponte, merely to alert the Legislature and prosecuting authorities of its possible constitutional imperfection in view of the Supreme Court\u2019s decision in Gooding v. Wilson, supra.\nReturning, then, to the arguments raised below and preserved by the docketing statement, the record reveals that defendant\u2019s alibi was partially reinforced by one witness, denied by two others. As the trial of facts, the trial court resolved the conflict, observing that \u201cto accept your proposition would mean that I would have to find everyone else in this court is a liar except [defendant].\u201d The trial judge is presumed to know that he must be satisfied beyond a reasonable doubt of defendant\u2019s guilt. Defendant\u2019s alibi evidence was not sufficient, as a matter of law, to overcome the quantum of proof required for the trial court\u2019s decision.\nThere was limited evidence taken of collateral offenses committed by the defendant and the court itself raised some questions at that stage of the trial. But the evidence elicited was invited by the manner of defendant\u2019s cross-examination of the ex-wife. In explaining to the court that defendant was attempting to show harassment by his former wife\u2019s abuse of the prosecutorial process, after the State had objected to that line of questioning, defendant opened up the trial court\u2019s legitimate inquiry regarding the outcome of her previous complaints. If there was error\u2014 and we do not say there was \u2014 it was induced by defendant\u2019s injecting into the trial the issue of prior misdemeanor charges instituted by Mrs. Parrillo against defendant. He will not be heard to complain on appeal that he was prejudiced by evidence that might be objectionable under Rule 404, N.M.R. Evid., if offered by the State, when he invited its introduction into the trial record. State v. Sedillo, 81 N.M. 47, 462 P.2d 632 (Ct.App.1969).\nThe hearsay and opinion evidence objections are predicated on testimony of the son of the parties that he had talked by telephone with his mother on the day she said she had been run off the road. He related the date of the conversation to the date the complaint was filed and the date his father had exercised visitation rights with his sister. The evidence was admitted not to show the truth of his mother\u2019s accusations but to establish how he remembered the whereabouts of his father at the time and date in question. The boy\u2019s testimony was not inadmissible under N.M.R. Evid. 801(c).\nFinding no error, the judgment of conviction is affirmed.\nIT IS SO ORDERED.\nANDREWS, J., concurs.\nSUTIN, J., dissents.", "type": "majority", "author": "WALTERS, Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nI dissent:\nDefendant was found guilty of violating \u00a7 30-3-l(C), N.M.S.A.1978. It reads: Assault consists of . .:\n******\nC. the use of insulting language toward another impugning his honor, delicacy or reputation.\nThis provision focuses on written or spoken words and is unconstitutional. The constitutional issue was not raised below, but it may be raised for the first time on appeal. State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969); State v. Barreras, 64 N.M. 300, 328 P.2d 74 (1958); State v. Diamond, 27 N.M. 477, 202 P. 988, 20 A.L.R. 1527 (1921). The reasons are stated in State v. Armstrong, 85 N.M. 234, 511 P.2d 560 (Ct.App.1973), Sutin, J., dissenting.\nAt common law a criminal assault was defined as \u201can attempt to commit violent injury on the person of another.\u201d State v. Martinez, 30 N.M. 178, 190, 230 P. 379 (1924). It does not require citation of authority to show that mere use of words alone does not constitute a criminal assault, however insulting, abusive or violent the words might be. 6 Am.Jur.2d Assault and Battery \u00a7 23 (1963); 6A C.J.S. Assault and Battery \u00a7 66, p. 434 (1975). See Faubion v. Tucker, 58 N.M. 303, 270 P.2d 713 (1954). There must be an apparent attempt to inflict a battery or bodily contact or harm upon another. 1 Warton\u2019s Criminal Law and Procedure (Anderson) \u00a7 329 (1957); 6A C.J.S. Assault and Battery \u00a7 64, p. 462; 6 Am.Jur.2d Assault and Battery \u00a7 3 (1963). However, where the legislature defines an offense, its definition supersedes the common law.\nThe question for decision is this:\nCan Section 30-3-l(C) be sustained when it omits the essential elements necessary to constitute the crime of assault?\nIt is obvious that to allow \u201cinsulting language\u201d to be an assault means that the legislature can declare \u201cinsulting language\u201d to be any type of crime such as a battery, aggravated battery, larceny, abuse of privacy, trespass, or a nuisance. \u201cInsulting language\u201d is not an element of any of such crimes. To denominate an assault as a use of \u201cinsulting language\u201d is beyond the police power of the State. To be valid, a penal statute must define the act necessary to constitute an offense with such certainty that a person who violates it must know that his act is criminal when he does it. If the statute is uncertain in its meaning, vague and indefinite, a person charged thereunder is deprived of due process of law. State v. Prince, 52 N.M. 15, 189 P.2d 993 (1948).\nWhat does \u201cinsulting language\u201d mean to the average person? What is meant by \u201cimpugning his honor, delicacy or reputation\u201d? \u201cWords in statutes are to be given their commonly understood meaning. Language comprises both speech and writing; it is the expression of thought by means of either spoken or written words.\" [Emphasis added.] State v. Clark, 235 Wis. 628, 294 N.W. 25 (1940); United States v. One Car Load of Corno. H. and M. Feed, 188 F. 453 (D.C.Ala.1911). Black\u2019s Law Dictionary, p. 1022 (Revised Fourth Ed. 1968); 52A C.J.S. p. 385 (1968). It must be noted that \u201cinsulting language\u201d is not limited to speech. It includes written words. Under subsection (C), an \u201cassault\u201d can be committed by writing a letter to another with an insulting tone.\nSection 30-3-l(C) constitutes a crime if one person in New York writes or telephones another in California and uses \u201cinsulting language\u201d that attacks \u201chis honor, delicacy or reputation.\u201d I am not quite sure of what his \u201cdelicacy\u201d is, but it must border on \u201cdaintiness, frailty, fineness, softness, fragility, sensitivity, finesse, tender feeling, considerations, decency,\u201d etc. Perhaps, it means \u201cdelicate treatment.\u201d To attempt to apply \u201cinsulting\u201d language would depend upon the nature of the person to whom it is directed.\nIn the instant case, defendant directed a dirty \u201ccuss\u201d word to his ex-wife. It was M_______f______ In Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972), this word was used four times. The statute declared:\n\u201cAny person who utters loud and offensive or profane or indecent language in any public street or other public place, public conveyance, or place to which the public is invited . . is a disorderly person.\u201d\nRosenfeld was vacated and remanded for reconsideration in light of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), and Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Gooding involved a statute which declared use of \u201copprobrious words or abusive language, tending to cause a breach of peace\u201d to be a misdemeanor. This statute was declared to be unconstitutionally vague and broad.\nIn Plummer v. City of Columbus, 414 U.S. 2, 94 S.Ct. 17, 38 L.Ed.2d 3 (1973), an ordinance provided that \u201cNo person shall abuse another by using menacing, insulting, slanderous, or profane language.\u201d In a per curiam opinion, the court held that the ordinance was facially unconstitutional as being vague and overbroad.\nThese are 5-4 decisions that may change with the substitution of a \u201cconservative\u201d justice for a \u201cliberal\u201d justice. But we must not forget that even in the 19th century, it was a \u201clamentable fact that this mode of expression [\u2018damned son of a bitch\u2019] is of too common use in the country.\u201d Simmons v. State, 23 Tex. 653, 5 S.W. 208, 209 (1887). This language did not come within the meaning of \u201cthe law of manslaughter arising upon insulting words used toward a female relative.\u201d A \u201ccuss\u201d word \u201cis rather a sudden expression of anger and contempt . .\u201d [Id. 209.] In the latter part of the 20th century, we must not view profanity or \u201cinsulting\u201d language with such squinting eyes that a resort to epithets constitutes an assault, disorderly conduct or a breach of the peace. The use of profane language may, in itself, constitute a violation of law, Baker v. State, 16 Ariz.App. 463, 494 P.2d 68 (1972), but the name of the offense cannot be deleted for purpose of convenience to uphold a conviction. The State cannot prohibit speech merely because the words offend, cause indignation, or anger the addressee. \u201cHere comes the god damn f______ pigs again\u201d did not constitute \u201cfighting words.\u201d State v. Authelet, 385 A.2d 642 (R.I.1978).\nThough the statute were constitutional, defendant did not violate it. In the latter part of the 20th century, epithets are of common use in this country. We should not hold a person guilty of an offense because the \u201ccuss\u201d word was shouted in anger. Some added factors are needed to make out a case of assault. Dunning v. State, 156 Tex.Cr.R. 446, 242 S.W.2d 367 (1951). None occurred in this case.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Steve H. Mazer, Albuquerque, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "607 P.2d 636\nSTATE of New Mexico, Plaintiff-Appellee, v. Mario PARRILLO, Defendant-Appellant.\nNo. 3993.\nCourt of Appeals of New Mexico.\nOct. 23, 1979.\nRehearing Denied Nov. 7, 1979.\nSteve H. Mazer, Albuquerque, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Michael E. Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0098-01", "first_page_order": 134, "last_page_order": 137 }