State v. Lake

• Decision Date: 04 April 1996
• Docket Number: No. 17075,17075
• Citation: 121 N.M. 794,918 P.2d 380,1996 NMCA 55
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Mark LAKE, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 380

918 P.2d 380

121 N.M. 794

STATE of New Mexico, Plaintiff-Appellant, v. Mark LAKE, Defendant-Appellee.

No. 17075.

Court of Appeals of New Mexico.

April 4, 1996.

Certiorari Denied May 22, 1996.

[121 N.M. 795] Tom Udall, Attorney General Santa Fe, for Appellant.

Leonard J. Foster, Law Office of Leonard J. Foster, Albuquerque, for Appellee.

OPINION

PICKARD, Judge.

1. This case presents us with another opportunity to determine the constitutionality of NMSA 1978, Section 30-7-3 (Repl.Pamp.1994) ("Unlawful carrying of a firearm in an establishment licensed to dispense alcoholic beverages consists of carrying a loaded or unloaded firearm on any premises licensed by the department of alcoholic beverage control for the dispensing of alcoholic beverages...."). The State appeals from an order granting Defendant's motion to dismiss a charge of violating that statute. Our calendar notice proposed summary reversal, and Defendant filed a memorandum in opposition. We reverse.

Facts

2. At approximately 12:40 a.m. on Monday, April 10, 1995, Defendant entered a convenience store to purchase a cup of coffee. The store was licensed to sell alcoholic beverages, but at the time Defendant entered the premises at approximately 12:40 a.m., such sales were prohibited by statute. See NMSA 1978, § 60-7A-1(B) (Repl.Pamp.1994) (alcoholic beverages can be sold on Mondays only from 7:00 a.m. until midnight). Defendant had an unconcealed, loaded handgun in his back pocket. A police officer noticed the gun, and he placed Defendant under arrest for violating Section 30-7-3. The State was prepared to introduce evidence that (a) Defendant had previously been warned repeatedly by the store's employees that carrying a firearm into the establishment, a place licensed to sell alcoholic beverages, was illegal, (b) signs posted above the cash registers warned of the legal prohibition, and (c) Defendant admitted to the arresting officer that he knew his conduct was in violation of the law.

Discussion

3. Defendant moved to dismiss the charge on the grounds that Section 30-7-3 is vague and overbroad. We consider Defendant's vagueness challenges in the light of the facts of this case and in light of the prohibited act with which he was charged. See State v. Wood, 117 N.M. 682, 687, 875 P.2d 1113, 1118 (Ct.App.) (statute is unconstitutionally vague if it does not provide person of ordinary intelligence a reasonable opportunity to know what is prohibited under such act), cert. denied, 117 N.M. 744, 877 P.2d 44 (1994). The trial court's ruling in Defendant's favor was based on its opinion that: (a) since only a small fraction of the licensed premises was devoted to package liquor sales, a reasonable person would not know that there was liquor on the premises or that carrying a firearm therein would be illegal; and (b) the statute does not serve a valid purpose during the hours when liquor sales are restricted.

4. Defendant contends that the statute did not provide him with notice that his act of buying coffee without going into the liquor area would subject him to arrest and that such an application would punish innocent citizens who had no criminal intent. In essence, Defendant claims that the statute was vague because it did not inform him that his behavior was illegal even if he neither intended to purchase alcohol nor was physically present in the liquor display area.

5. We addressed this argument in our calendar notice, and Defendant has not pointed out any error in fact or law with respect to our proposed disposition. See State v. Mondragon, 107 N.M. 421, 423, 759 P.2d 1003, 1005 (Ct.App.) (insufficient to restate prior contentions), cert. denied, 107 N.M. 267, 755 P.2d 605 (1988). We reiterate our reasons for rejecting Defendant's argument.

6. First, Section 30-7-3 does not require proof that Defendant knew his act to be unlawful. See State v. Powell, 115 N.M. 188, 191, 848 P.2d 1115, 1118 (Ct.App.1993) (required mental element is that the possession be intentional); see also State v. Montoya, 91 N.M. 262, 265, 572 P.2d 1270, 1273 (Ct.App.1977) (rejecting claim that the prosecution was required to prove the defendant had or should have had notice that he had entered a regulated area). Second, "licensed premises" is defined in NMSA 1978, Section 60-3A-3(L) (Repl.Pamp.1994) to mean "the contiguous areas or areas connected by indoor passageways of a structure ... which are under the direct control of the licensee and from which the licensee is authorized to sell ... alcoholic beverages under the provisions of its license." Third, although as we have said, specific knowledge is not an element of the crime, the State was prepared to introduce evidence from which it could be reasonably inferred that Defendant knew his conduct violated the statute.

7. Defendant contends that Section 30-7-3 abridges his right under the New Mexico Constitution to bear arms for a lawful purpose. See N.M. Const. art. II, § 6. Defendant argues that since he was not intoxicated and because sales of liquor were not permitted at the time he was in the store and he did not intend to purchase or possess alcohol within the store, the statute as applied to him criminalizes innocent and protected conduct. In State v. Dees, 100 N.M. 252, 255, 669 P.2d 261, 264 (Ct.App.1983), we held that Section 30-7-3 is not an infringement upon the right to bear arms under our constitution. Defendant suggests that carrying Dees forward under the circumstances of this case conflicts with City of Las Vegas v. Moberg, 82 N.M. 626, 627, 485 P.2d 737, 738 (Ct.App.1971) (ordinance prohibiting the carrying of a deadly weapon anywhere in city limits deprived citizens of the right to bear arms). We disagree. In Moberg we explained that regulation of the right to bear arms is not a deprivation of that right. Id. Furthermore, we did not state in Moberg that it is lawful to carry a non-concealed deadly weapon under any circumstances.

8. Defendant argues that Section 30-7-3 is vague and overbroad in that it defines the criminal offense in a manner that encourages arbitrary and discriminatory enforcement by permitting application in premises other than bars, taverns, and night clubs, places in which Defendant concedes that the State has a legitimate interest in regulating firearm possession, and that such application is not intended by the legislature. We are not persuaded. In Montoya, 91 N.M. at 265, 572 P.2d at 1273, we stated that the...