State v. James M.

• Citation: 1990 NMCA 135,806 P.2d 1063,111 N.M. 473
• Decision Date: 13 December 1990
• Docket Number: No. 12011,12011
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. JAMES M., a child, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1063

806 P.2d 1063

111 N.M. 473

STATE of New Mexico, Plaintiff-Appellee, v. JAMES M., a child, Defendant-Appellant.

No. 12011.

Court of Appeals of New Mexico.

Dec. 13, 1990.

Certiorari Denied Feb. 13, 1991.

[111 N.M. 474] Hal Stratton, Atty. Gen. and Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender and Amme M. Hogan, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

CHAVEZ, Judge.

Defendant appeals from the children's court judgment and disposition finding him guilty of disorderly conduct. We grant defendant's request to amend his docketing statement. The issues discussed on appeal are (1) whether there was sufficient evidence to support the conviction of disorderly conduct, and (2) whether the applicable disorderly conduct statute is unconstitutionally vague and overbroad. We affirm.

FACTS

The events from which the charge of disorderly conduct arose took place on July 7, 1989. We view the elicited evidence in the light most favorable to sustain the children's court finding that defendant committed disorderly conduct. See State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978); State v. Bloom, 90 N.M. 192, 561 P.2d 465 (1977).

Defendant was riding his bicycle when he was stopped by Lujan. Lujan accused defendant of having broken into Lujan's van. Defendant denied the accusation. Defendant tried to leave. Lujan pulled the seat of defendant's bicycle to prevent defendant's departure. Defendant protested this detention. Lujan continued to accuse defendant of breaking into his van. At this point, Officer Bencomo arrived.

When Officer Bencomo arrived, defendant and Lujan were arguing. Lujan told Officer Bencomo that he suspected defendant of having burglarized Lujan's van. Defendant continued to deny the accusation. Officer Bencomo requested that Lujan and defendant move up the street to the corner of Bullard and Market Street by Colby's store. Both parties complied with Officer Bencomo's request. Officer Bencomo followed and parked his car.

As Officer Bencomo exited his car, he heard defendant and Lujan arguing. Defendant yelled "[f]uck you" to Lujan. Officer Bencomo asked Lujan and Bencomo to stop arguing. They continued. Officer Bencomo again requested that the parties stop arguing. Defendant yelled to Lujan "[f]uck you, you don't know who I am." Officer Bencomo testified that Lujan "was keeping it moderate," but that defendant was clearly upset. Defendant and Lujan had been arguing in front of Colby's for about 30 seconds in Officer Bencomo's presence. Officer Bencomo was concerned because defendant was yelling, flailing his arms, pointing, and continuing to get excited. At this point, Officer Bencomo thought that a fight might erupt. To prevent what he perceived to be a possible fight, Officer Bencomo stepped between defendant and Lujan.

After Officer Bencomo stepped between the parties, defendant was still visibly upset. Defendant looked around Officer Bencomo, pointed at Lujan, and again yelled "[f]uck you. You don't know me." At this time, Officer Bencomo placed defendant under arrest for disorderly conduct.

Throughout the incident, a lot of people were going in and out of Colby's and the nearby stores. Four or five people had gathered to watch the incident. A witness from half a block away later testified that he could not hear any yelling.

Defendant was adjudicated guilty of disorderly conduct, as defined by NMSA 1978, Section 30-20-1 (Repl.Pamp.1984). We hold that defendant's conviction is supported by sufficient evidence and that the statute is not unconstitutionally overbroad.

1. Sufficiency of the Evidence

Defendant contends that there was insufficient evidence to support his conviction for disorderly conduct. Section 30-20-1(A) states that disorderly conduct consists of "engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace."

It is first necessary to set forth what evidence we may consider upon review. Defendant contends that the children's court relied only on defendant's indecent and profane language to support its finding of disorderly conduct. Accordingly, defendant states that this court should consider only defendant's speech, as opposed to his speech and conduct. We disagree. In its oral ruling, the children's court stated that defendant committed disorderly conduct by the use of indecent and profane language that tended to disturb the peace. No mention was made of defendant's flailing his arms, pointing, or becoming excited. In the context of this case, the oral remarks by the district court do not create substantial doubt that the court applied the proper legal standard in determining guilt. The children's court had heard all the evidence surrounding defendant's arrest for disorderly conduct. Thus, in finding defendant guilty of disorderly conduct, we assume that the children's court relied on both defendant's speech and conduct.

Defendant's profane and indecent speech, under the circumstances, supported his conviction for a violation of Section 30-20-1. We must first satisfy ourselves that a conviction under the statute does not offend the first and fourteenth amendments' right of free speech. The right to 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.

Id. at 571-72, 62 S.Ct. at 769. Thus, expressions which may be classified as "fighting words" are not constitutionally protected speech. In the present case, defendant's speech can be analyzed under the "fighting words" doctrine. If defendant's words constitute "fighting words," they are not protected by the guarantee of free speech against a charge of disorderly conduct. See Chaplinsky v. New Hampshire; State v. Wade, 100 N.M. 152, 667 P.2d 459 (Ct.App.1983); City of Alamogordo v. Ohlrich, 95 N.M. 725, 625 P.2d 1242 (Ct.App.1981).

"Fighting words" are those words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky, 315 U.S. at 572, 62 S.Ct. at 769. "Fighting words" have also been defined as "... those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971). Thus, the words constitute fighting words as long as the language would cause an average person to react violently. See State v. Authelet, 120 R.I. 42, 385 A.2d 642 (1978) (as long as the language is inherently likely to cause the average person to retaliate violently, it is not necessary that the person who is personally insulted react violently). Defendant contends that a fight must actually occur before the fighting words doctrine is applicable. This contention is incorrect. It is necessary only that the words are "likely to provoke violent reaction." Cohen, 403 U.S. at 20, 91 S.Ct. at 1785 (emphasis added).

In the present case, defendant yelled to Lujan "[f]uck you" and "[f]uck you, you don't know who I am." These statements, directed toward Lujan, were made during the course of an argument between the two parties. Lujan was angry because he believed defendant had burglarized Lujan's van. Defendant was angry because of Lujan's accusation. Such statements were made on a sidewalk near several stores. Officer Bencomo noticed the parties arguing and stopped to intervene. The parties had been arguing for approximately 30 seconds in Officer Bencomo's presence. Defendant was standing close to Lujan when the statements were made. Officer Bencomo stepped between the parties because he thought a fight might begin. Defendant was flailing his arms and continued to yell and point at Lujan. We find that it was reasonable for Officer Bencomo to conclude that a fight was likely to ensue. Lujan was being insulted loudly and profanely on a public sidewalk. People were walking by and four or five people had gathered to watch. Both parties were upset. It would be unreasonable to impose a requirement that Officer Bencomo wait until Lujan actually violently reacted to defendant's speech. Accordingly, we hold that defendant's speech amounts to "fighting words" and is, therefore, not afforded constitutional protection.

Having determined that there is no constitutional impediment to defendant's conviction, we examine whether defendant's speech and conduct amount to disorderly conduct under New Mexico law. To violate Section 30-20-1, defendant's conduct must have (1) been indecent or profane and (2) tended to disturb the peace. See State v. Oden, 82 N.M. 563, 484 P.2d 1273 (Ct.App.1971). Conduct which tends to disturb the peace is that conduct "which is inconsistent with the peaceable and orderly conduct of society." Id. at 565, 484 P.2d at 1275. The court in State v. Florstedt, 77 N.M. 47, 419 P.2d 248 (1966), equated "disturb the peace" with "breach of the peace." In Florstedt, the court adopted the New York court's definition of "breach of the peace": " ' * * * It is a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community. * * * ' " Id. at 49, 419 P.2d at 249 (quoting People v. Most, 171 N.Y. 423, 429, 64 N.E. 175, 177 (1902)).

Defendant contends that the state must show not only that his behavior was provocative, but that it actually provoked. We disagree. Section 30-20-1 does not require that defendant's...