667 P.2d 459 (N.M.App. 1983), 7038, State v. Wade

Docket Nº:7038.
Citation:667 P.2d 459, 100 N.M. 152, 1983 -NMCA- 084
Opinion Judge:[10] Neal
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Mark WADE, Defendant-Appellant.
Attorney:Paul Bardacke, Atty. Gen., Ida M. Lujan, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee., Janet E. Clow, Chief Public Defender, Henry R. Quintero, Asst. Appellant Defender, Santa Fe, for defendant-appellant. [7] Paul Bardacke, Attorney General, Ida M. Lujan, Assistant Attorney General, Santa...
Judge Panel:WALTERS, C.J., and WOOD, J., concur.
Case Date:July 12, 1983
Court:Court of Appeals of New Mexico

Page 459

667 P.2d 459 (N.M.App. 1983)

100 N.M. 152, 1983 -NMCA- 084

STATE of New Mexico, Plaintiff-Appellee,

v.

Mark WADE, Defendant-Appellant.

No. 7038.

Court of Appeals of New Mexico.

July 12, 1983

Paul Bardacke, Atty. Gen., Ida M. Lujan, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Janet E. Clow, Chief Public Defender, Henry R. Quintero, Asst. Appellant Defender, Santa Fe, for defendant-appellant.

OPINION

NEAL, Judge.

What is the meaning of "abusing any * * * peace officer" in NMSA 1978, Sec. 30-22-1(D) (Cum.Supp.1982.)? The defendant, convicted

Page 460

[100 N.M. 153] of abusing a policeman, contends that "abusing any * * * peace officer" in Sec. 30-22-1(D) is void for vagueness or, alternatively, overbroad. We reverse because the evidence is insufficient to support the conviction, and do not reach the constitutional issues.

On March 24, 1982, two Bernalillo County Sheriff's Department deputies were dispatched to the defendant's home. There had been a family fight, and the defendant's wife had called the police. The defendant's wife had been drinking and the defendant told her to leave the house. She was going to take their infant daughter with her. The defendant, sober, objected. The defendant's wife, testifying as a witness for the State, said that the defendant had not threatened her or become violent with her or the child.

The deputies stated that when they arrived they were invited into the house by the defendant's wife. When they entered the house the defendant started yelling at them. He tried to walk past the officers and one of them grabbed his arm. He ten stepped up on the couch, screaming and yelling that he wanted to see the patrol commander and that he wanted the officers to "get the hell out of the house." He was upset because he had not called them. There was evidence that he used obscenities. One of the officers, Deputy Garcia, testified that the defendant made no threatening gestures. Deputy Garcia testified that the defendant's yelling and screaming interfered with their investigation, but on cross-examination he admitted that he could hear what the defendant's wife said to him.

At the close of the evidence the trial judge found the defendant guilty of "abuse of a police officer", and sentenced him to a ninety-day deferred sentence. The written judgment and sentence, however, finds the defendant guilty of "Interfering with a Peace Officer." Section 30-22-1 is entitled "Resisting, evading or obstructing an officer." Interfering with a peace officer is not a crime. On remand this error should be corrected. NMSA 1978, Crim.P.R. 57.1 (Repl.Pamp.1980).

"ABUSING"

"[A]busing any * * * peace officer" is a misdemeanor under Sec. 30-22-1(D), supra. As used in this statute, what does "abusing" mean?

A review of Sec. 30-22-1, supra, in its entirety, indicates that "Resisting, evading or obstructing an officer" primarily consists of physical acts of resistance. "Abuse", however, also refers to speech, since one of the primary meanings of the word is " 'to attack or injure with words.' " See State v. Boss, 195 Neb. 467, 238 N.W.2d 639 (1976), quoting Webster's Third International Dictionary (Unabr.1961).

By using the word "abusing" the Legislature has prohibited certain speech. This it may do so long as the statute does not offend the First and Fourteenth Amendments, Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), and Art. II, Sec. 17 of our New Mexico Constitution.

The right of free speech is not absolute. As stated in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942):

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

In Boss, supra, the Nebraska Supreme Court considered a statute which stated that whoever " 'resists or abuses any sheriff, constable or any other officer' " would be guilty of a misdemeanor. The court, construing "abuse", stated:

The word abuse and similarly broad terms in like statutes have been held to pass constitutional muster under...

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