730 P.2d 497 (N.M.App. 1986), 9176, State v. Gattis

Docket Nº:9176.
Citation:730 P.2d 497, 105 N.M. 194, 1986 -NMCA- 121
Opinion Judge:[9] Bivins
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Michael C. GATTIS, Defendant-Appellant.
Attorney:Thomas A. Harden, Dan B. Buzzard, Clovis, Winston Roberts-Hohl, Santa Fe, for defendant-appellant., Paul G. Bardacke, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee. [7] Thomas A. Harden, Dan B. Buzzard, Winston Roberts-Hohl, for Defendant-Appellant. [8] Paul G. Barda...
Judge Panel:ALARID and MINZNER, JJ., concur.
Case Date:November 26, 1986
Court:Court of Appeals of New Mexico
 
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Page 497

730 P.2d 497 (N.M.App. 1986)

105 N.M. 194, 1986 -NMCA- 121

STATE of New Mexico, Plaintiff-Appellee,

v.

Michael C. GATTIS, Defendant-Appellant.

No. 9176.

Court of Appeals of New Mexico.

November 26, 1986

Page 498

[Copyrighted Material Omitted]

Page 499

[105 N.M. 196] Thomas A. Harden, Dan B. Buzzard, Clovis, Winston Roberts-Hohl, Santa Fe, for defendant-appellant.

Paul G. Bardacke, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

Defendant appeals his conviction on three counts of use of telephone to harass, annoy or offend, contrary to NMSA 1978, Section 30-20-12 (Repl.Pamp.1984). After a jury trial, defendant was sentenced to eighteen months on each count, to run concurrently. The sentences were suspended and defendant was placed on probation for eighteen months on each count, to run concurrently.

Defendant lists four issues on appeal: (1) whether Section 30-20-12(A) is overbroad; (2) whether that subsection, reasonably interpreted, prohibits conduct which is constitutionally protected; (3) whether that subsection is too vague and indefinite; and (4) whether there was a failure of proof under the circumstances of this case. Issues one and two are the same and, thus, will be discussed together. One other issue listed in the docketing statement, but not briefed, is deemed abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). We affirm.

BACKGROUND

Defendant was indicted on six counts--two counts of threatening a witness, contrary to NMSA 1978, Section 30-24-3 [105 N.M. 197]

Page 500

(Repl.Pamp.1984), and four counts of misuse of telephone, contrary to Section 30-20-12. A jury found him guilty of three counts of misuse of telephone and acquitted him of the other charges. The convictions resulted from a telephone call defendant made to Anita A. on March 23, 1985, and three telephone calls to Vickie L., two on April 12, 1985, and one on May 3, 1985.

Both of the victims had had intimate relationships with defendant. Anita testified that her affair with defendant ended in 1978. In 1984, she sent a certified letter to defendant asking him not to call her anymore. Vickie had lived with defendant at two different times. Testimony indicates this relationship ended in December 1984. The relevant telephone calls from defendant were traced and recorded. At the time the telephone calls were made, both women were married to other men.

  1. Whether Section 30-20-12 is Unconstitutionally Overbroad or Vague, or Both

    Section 30-20-12(A) states:

    It shall be unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to telephone another and use any obscene, lewd or profane language or suggest any lewd, criminal or lascivious act, or threaten to inflict injury or physical harm to the person or property of any person. It shall also be unlawful for any person to attempt by telephone to extort money or other thing of value from any other person, or to otherwise disturb by repeated anonymous telephone calls the peace, quiet or right of privacy of any other person at the place where the telephone call or calls were received, or to maliciously make a telephone call, whether or not conversation ensues, with intent to annoy or disturb another, or to disrupt the telecommunications of another. [Emphasis added.]

    The jury was only instructed on the underscored alternative, and that is the only alternative applicable to this case.

    Challenges of overbreadth and vagueness are frequently brought together and many of the cases dealing with the constitutionality of statutes similar to Section 30-20-12 address both issues. Nevertheless, they are distinct concepts.

    A statute is unconstitutionally overbroad, and thus offends the first amendment, if it not only forbids conduct constitutionally subject to proscription but also sweeps within its ambit those actions ordinarily deemed to be constitutionally protected. State v. Jaeger, 249 N.W.2d 688 (Iowa 1977). See State ex rel. Gonzales v. Manzagol, 87 N.M. 230, 531 P.2d 1203 (1975). A statute is unconstitutionally vague, and thus offends due process, if it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so he may act accordingly. State v. Jaeger. See State v. Segotta, 100 N.M. 498, 672 P.2d 1129 (1983). A statute must give fair warning of proscribed conduct in order to avoid arbitrary and discriminatory enforcement. State v. Jaeger, citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Statutes are to be construed, if possible, so that they will be constitutional. State v. Wade, 100 N.M. 152, 667 P.2d 459 (Ct.App.1983).

    Several courts have considered constitutional challenges to statutes similar to Section 30-20-12. See Annot., 95 A.L.R.3d 411 (1979). Defendant relies on one case, People v. Klick, 66 Ill.2d 269, 5 Ill.Dec. 858, 362 N.E.2d 329 (Ill.1977), to support his argument that Section 30-20-12 is overbroad and vague. We have found two other state courts which have struck down similar statutes. City of Everett v. Moore, 37 Wash.App. 862, 683 P.2d 617 (1984); State v. Dronso, 90 Wis.2d 110, 279 N.W.2d 710 (1979). Also, the Texas statute, after being upheld in several state court cases, e.g., Alobaidi v. State, 433 S.W.2d 440 (Tex.Crim.App.), cert. denied, 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281 (1968), was struck down by the Fifth Circuit as unconstitutionally vague. Kramer v. Price, 712 F.2d 174 (5th Cir.1983).

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    [105 N.M. 198] However, statutes of this type have been upheld in twenty-one states. 1 The Connecticut court, which upheld that state's statute in State v. Anonymous, was affirmed by the Second Circuit. Gormley v. Director, Connecticut State Department of Probation. The Third Circuit, in United States v. Lampley, 573 F.2d 783 (3rd Cir.1978), upheld the constitutionality of 47 U.S.C.A. Sec. 223 (West Cum.Supp.1986), which prohibits threatening or harassing interstate telephone calls. Thus, courts that rejected arguments of overbreadth and vagueness in this type statute are in the majority.

    A. Whether Section 30-20-12 is overbroad.

    A statute is unconstitutionally overbroad if it criminalizes speech that is protected by the first amendment. See State v. Jaeger. The three states that struck down their statutes held that they were overbroad. People v. Klick ("call made with intent to annoy" not limited to unreasonable conduct); State v. Dronso ("intent to annoy" overly broad); City of Everett v. Moore ("alarms or seriously annoys" overbroad). The argument is that many constitutionally-protected calls may be made with the intent to annoy.

    In determining what speech will be protected by the first amendment, courts must balance the right to free speech against other state interests.

    Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect--at best a prediction--cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. * * * To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.

    Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973) (citation omitted).

    People v. Klick held that the Illinois statute criminalized conduct protected by the first amendment, i.e., the right to communicate to another in a reasonable manner. Id., 362 N.E.2d at 331. Examples of reasonable communications that the court believed were prohibited by the statute include a call made by a customer to express dissatisfaction with a product or service, a call by an irate citizen to a public official, or a call by an individual bickering over family matters. The New Mexico statute requires that a call made with the intent to annoy or disturb must be made maliciously. This excludes valid calls of the type described in People v. Klick even if they are intended to cause minor annoyance, since "maliciously" is defined as the intentional doing of a harmful act without just cause or excuse, or in utter disregard of the

    Page 502

    [105 N.M. 199] consequences. Potomac Insurance Co. v. Torres, 75 N.M. 129, 401 P.2d 308 (1965).

    Some courts have held that statutes are not overbroad if they require a specific intent to threaten, harass, annoy, etc. "Freedom of speech does not encompass the right to abuse the telephone with the specific intent to annoy and to harass the recipient of the call." von Lusch v. State, 39 Md.App. at 525, 387 A.2d at 310. See State v. Thompson; State v. Finance American Corp.; State v. Brown. The New Mexico statute also requires specific intent to annoy or disturb. Sec. 30-20-12(A).

    In most cases that have rejected challenges of overbreadth, the court has distinguished between the content of speech, protected by the first amendment, and conduct which invades substantial privacy interests. See generally Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Most statutes seek to prohibit the latter. Statutes that regulate only the content of speech have been struck down. See Walker v. Dillard, 523 F.2d 3 (4th Cir.1975) (Virginia statute prohibiting abusive comments by either caller or recipient and having no intent requirement was facially and substantially overbroad). See also Radford v. Webb, 446 F.Supp. 608 (W.D.N.C.1978), aff'd, 596 F.2d 1205 (4th Cir.1979) (per curiam) (portion of North Carolina statute regulating pure speech overbroad); State v. Camp (subsection of same statute which regulates conduct rather than speech not overbroad or vague).

    Several other cases have relied on the...

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