State v. Luckie

• Citation: 120 N.M. 274,901 P.2d 205,1995 NMCA 75
• Decision Date: 19 June 1995
• Docket Number: Nos. 15889,15972,s. 15889
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Theresa Renee LUCKIE, Defendant-Appellee. STATE of New Mexico, Plaintiff-Appellant, v. Maria Del Consuelo Ozuna TRAN, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 205

901 P.2d 205

120 N.M. 274

STATE of New Mexico, Plaintiff-Appellant, v. Theresa Renee LUCKIE, Defendant-Appellee.

STATE of New Mexico, Plaintiff-Appellant, v. Maria Del Consuelo Ozuna TRAN, Defendant-Appellee.

Nos. 15889, 15972.

Court of Appeals of New Mexico.

June 19, 1995.

Certiorari Denied Aug. 8, 1995.

[120 N.M. 275] Tom Udall, Atty. Gen., Daniel F. Haft, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

Sammy J. Quintana, Chief Public Defender, Darryl A. Bouchard, Asst. Appellate Defender, Santa Fe, for defendants-appellees.

OPINION

DONNELLY, Judge.

The State of New Mexico appeals from district court orders filed in two separate cases dismissing indictments against Theresa Renee Luckie and Maria Del Consuelo Ozuna Tran for unlawful custodial interference contrary to NMSA 1978, Section 30-4-4 (Repl.Pamp.1994). We granted the State's motion to consolidate both appeals because they raise the common issue of whether Section 30-4-4(B) is unconstitutionally vague. For the reasons that follow, we find that the statute withstands Defendants' constitutional challenges and reverse the district court orders.

FACTS AND PROCEEDINGS

Luckie was indicted on one count of alleged custodial interference of a child on March 16, 1992. The State filed a pretrial motion to review the legality of Luckie's indictment because, in two prior cases involving other defendants, judges in the same judicial district had previously ruled that the words "without good cause" utilized in Section 30-4-4(B) rendered the statute unconstitutionally vague. The prior cases involving the same constitutional challenge are not included in these consolidated appeals.

On February 23, 1994, Tran was indicted in a separate case on three counts of alleged custodial interference involving three children. Tran moved to dismiss the case on the grounds that the terms "without good cause," "maliciously," "detaining," and "deprive" contained in Section 30-4-4(B), and which proscribe certain acts of custodial interference, were not readily understandable and thus render the statute unconstitutionally vague. In support of her motion, Tran relied in part on the rulings of other judges in the Second Judicial District Court.

Judge Frank H. Allen entered an order in the Luckie case and Judge Ross C. Sanchez entered an order in the Tran case, dismissing the indictments in their respective cases. In granting the motions to dismiss, both judges agreed with Defendants' assertions that the phrase "without good cause" embodied in Section 30-4-4(B) was vague and rendered the statute unconstitutional.

DISCUSSION

The Due Process Clauses of both the United States Constitution, Amendments V and XIV, and the New Mexico Constitution, Article II, Section 18, require that criminal statutes be drafted in such manner so that they provide fair warning of the conduct sought to be proscribed, and so that the statutes do not encourage arbitrary or discriminatory enforcement. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); see also State v. Ramos, 116 N.M. 123, 127, 860 P.2d 765, 769 (Ct.App.), cert. denied, 115 N.M. 795, 858 P.2d 1274 (1993); State v. Gattis, 105 N.M. 194, 197, 730 P.2d 497, 500 (Ct.App.1986). A penal statute offends due process and is unconstitutionally vague if it fails to give a person of ordinary intelligence a reasonable opportunity to know what is being prohibited so that he or she may act accordingly. Gattis, 105 N.M. at 197, 730 P.2d at 500.

A challenge asserting that a statute is unconstitutional based on a claim of vagueness ordinarily is analyzed in light of the facts of each particular case. State v. Wood, 117 N.M. 682, 687, 875 P.2d 1113, 1118 (Ct.App.), cert. denied, 117 N.M. 744, 877 P.2d 44 (1994). Under traditional analysis it is only when First Amendment freedoms are involved that a statute may be challenged on the ground that it is facially invalid. State v. Carver, 113 Wash.2d 591, 781 P.2d 1308, 1312 (1989) (en banc), modified on other grounds, 789 P.2d 306 (1990).

The State argues that because First Amendment freedoms are not at issue here, the courts below erred in holding that Section 30-4-4(B) was facially invalid. However, the State has failed to indicate, and our review of the record in both cases does not indicate, how it preserved its argument that Defendants were precluded from asserting a facial challenge to the constitutionality of the statute in the courts below. See SCRA 1986, 12-213(A)(3), -216(A) (Cum.Supp.1994). By failing to raise this contention in the courts below, the State implicitly conceded that Defendants had a right to challenge the constitutionality of Section 30-4-4(B). See State v. Lopez, 105 N.M. 538, 546, 734 P.2d 778, 786 (Ct.App.1986) (failure to object below prohibits the raising of an issue on appeal), cert. quashed, 105 N.M. 521, 734 P.2d 761 (1987). In fact, in Luckie, the State, by filing a motion seeking review of the constitutionality of Section 30-4-4(B), specifically invited such review. Thus, we determine that under the record before us the State failed to preserve its argument that Defendants are precluded from asserting a facial challenge to Section 30-4-4(B).

In asserting that Section 30-4-4(B) is unconstitutional on its face, Defendants argue, and the courts below agreed, that Section 30-4-4(B) violates the Due Process Clauses of the United States and New Mexico Constitutions because the statute is impermissibly vague. Section 30-4-4(B) provides in pertinent part:

Custodial interference consists of any person, having a right to custody of a child, maliciously taking, detaining, concealing or enticing away or failing to return that child without good cause and with the intent to deprive permanently or for a protracted time another person also having a right to custody of that child of his right to custody. [Emphasis added.]

Defendants contend, among other things, that the words "without good cause" and "for a protracted time" in Section 30-4-4(B) render the statute void on vagueness grounds because neither phrase is defined in the statute, and such phrases are not readily susceptible of definition by resort to case law or other sources. As a result, Defendants argue that the statute does not provide fair notice of the conduct sought to be proscribed and the enactment is susceptible to arbitrary and discriminatory enforcement. We disagree.

The mere fact that a term or phrase is not defined within a statute or legislative act does not necessarily render the statute unconstitutional. State v. Jim, 107 N.M. 779, 783, 765 P.2d 195, 199 (Ct.App.), cert. denied, 107 N.M. 720, 764 P.2d 491 (1988); see also State v. Sanders, 96 N.M. 138, 140, 628 P.2d 1134, 1136 (Ct.App.1981) (the word "knowing" used in former custodial interference statute, NMSA 1978, § 30-4-4, has established meaning although not defined in statute). Rather, the test of whether a statute is unconstitutionally vague so as to violate constitutional due process is whether the statute gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. Wood, 117 N.M. at 686-87, 875 P.2d at 1117-18. Courts in other jurisdictions have addressed various vagueness challenges to statutes similar to New Mexico's custodial interference statute. See People v. McGirr, 198 Cal.App.3d 629, 243 Cal.Rptr. 793, 796 (1988); People v. Tippett, 733 P.2d 1183, 1187-88 (Colo.1987) (en banc); McNeely v. State, 391 N.E.2d 838, 840 (Ind.Ct.App.1979); State v. Holtcamp, 614 S.W.2d 389, 392-93 (Tenn.Crim.App.1980); Carver, 781 P.2d at 1314; State v. McCoy, 143 Wis.2d 274, 421 N.W.2d 107, 111 (1988). See generally William B. Johnson, Annotation, Kidnapping or Related Offense by Taking or Removing of Child by or Under Authority of Parent or One in Loco Parentis, 20 A.L.R.4th 823 § 9 (1983 & Supp. Sept. 1994). Each of the decisions issued by the courts in the above cases involving vagueness challenges have declined to hold that their respective custodial interference statutes were constitutionally infirm.

We examine Section 30-4-4(B) in light of Defendants' vagueness claims presented here applying familiar rules of statutory construction. First, we presume the constitutionality of a statute. City of Albuquerque v. Jones, 87 N.M. 486, 488, 535 P.2d 1337, 1339 (1975). Thus, the party attacking the constitutionality of a statute has the burden of demonstrating its invalidity. Wood, 117 N.M. at 687, 875 P.2d at 1118. Second, we construe a statute in a manner so as to uphold it against a claim of unconstitutionality if a reasonable and practical construction can be given to the language in question. State v. Segotta, 100 N.M. 498, 500, 672 P.2d 1129, 1131 (1983). Finally, we consider the statute as a whole in determining legislative intent and construe the words and phrases of the statute using their generally accepted meaning. Id.

After reviewing Section 30-4-4(B) in light of the above rules, we conclude that the language of the statute is sufficient to withstand each of Defendants' constitutional challenges. The phrases "without good cause" and "for a protracted time" are readily susceptible of definition by resort to case law, and persons of ordinary intelligence need not have to guess at their meaning. In the employment context, our Supreme Court has stated that "[g]ood cause is established when an individual faces compelling and necessitous circumstances of such magnitude that there is no [other] alternative" and that the term "good cause" "includes the concept of good faith." Molenda v. Thomsen, 108 N.M. 380, 381, 772 P.2d 1303, 1304 (1989). This definition can readily be applied to varying fact patterns in the context of our custodial interference statute. See Jim, 107 N.M. at 783, 765 P.2d at 199.

Furthermore, the language "without good cause" has been employed by legislatures in other jurisdictions which have enacted statutes similar to New Mexico's...