State v. Rivera
| Decision Date | 20 January 1993 |
| Docket Number | No. 13540,13540 |
| Citation | 1993 NMCA 11,115 N.M. 424,853 P.2d 126 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Marco Mata Y RIVERA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals his convictions for unlawful carrying of a firearm in a licensed liquor establishment and negligent use of a deadly weapon. He raises the following issues: (1) whether the negligent use of a deadly weapon statute, NMSA 1978, Sec. 30-7-4 (Repl.Pamp.1984), violates his right to bear arms under the New Mexico Constitution; (2) whether Section 30-7-4 is unconstitutionally overbroad and vague; (3) whether the trial court erred in admitting a sales receipt concerning Defendant's gun; (4) whether the trial court erred in admitting evidence concerning a liquor license; (5) the sufficiency of the evidence supporting Defendant's convictions; (6) whether the jury was adequately instructed; (7) whether Defendant was denied due process and his right to appeal because of an incomplete record; and (8) cumulative error. Defendant has expressly abandoned two other issues raised in a motion to amend the docketing statement filed while this case was assigned to the summary calendar. We affirm.
In the early morning hours of March 16, 1991, Officer Holguin was dispatched to the Hiway Package Lounge in Carlsbad to investigate a reported robbery. Holguin determined that no robbery had occurred. While at the bar, Holguin observed a car in which Defendant was a passenger strike another car in the parking lot. Holguin approached the car to investigate. He shined a flashlight in the car, and saw Defendant, seated in the left rear seat, holding a small caliber handgun. Officer Holguin yelled "gun" to alert other officers at the scene. Holguin said the gun was pointed toward the driver of the car, Arturo Rueda. Mary Lou Amalla, Rueda's girlfriend, was also a passenger in the car.
Officer Holguin ordered the occupants of the car to exit with their hands up. Mr. Rueda and Ms. Amalla complied almost immediately; Defendant did not. Defendant finally exited the car after several minutes. During the time Holguin was ordering Defendant to put his hands up, Defendant kept them down and kept "shuffling" them. Defendant did not have the gun when he got out of the car.
After the occupants exited the car, Holguin looked inside. He found a brown bag containing, among other things, a handgun, a box of ammunition, a magazine for the gun, and a sales slip for the gun with Defendant's name on it. The gun and its magazine were in separate compartments of the bag. Both Mr. Rueda and Ms. Amalla testified that Defendant had a bag with him when they met him earlier outside the bar, and that the bag and gun found in the car did not belong to them. Ms. Amalla stated that Defendant took the bag inside and put it on the floor beside him. Neither Mr. Rueda nor Ms. Amalla could identify the bag in the car as Defendant's, and neither saw a gun in the bag, bar, or car.
Defendant contends that, under the facts of this case, his conviction for negligent use of a deadly weapon violates his right to bear arms under the state constitution. See N.M. Const. art. II, Sec. 6 (Repl.Pamp.1992). The State answers that the statute lawfully restricts Defendant's carrying a firearm while under the influence of alcohol.
Initially, we note that Defendant has not cited any authority supporting his contention. Thus, we need not consider it. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). Nevertheless, we address Defendant's argument and find it to be without merit. The right to bear arms under the state constitution is not absolute, and a defendant's right to bear arms is circumscribed by the conditions under which he or she seeks to assert the right. State v. Dees, 100 N.M. 252, 254, 669 P.2d 261, 263 (Ct.App.1983) (quoting United States v. Romero, 484 F.2d 1324, 1327 (10th Cir.1973)). In Dees, we entertained a similar challenge to NMSA 1978, Section 30-7-3 (Repl.Pamp.1984), which prohibits the unlawful carrying of a firearm in a licensed liquor establishment. We held that the legislative purpose of Section 30-7-3 was to " 'protect innocent patrons of businesses held out to the public as licensed liquor establishments.' " Id. at 255, 669 P.2d at 264 (quoting State v. Soto, 95 N.M. 81, 82, 619 P.2d 185, 186 (1980)). We upheld Section 30-7-3 as a valid regulation of the right to bear arms.
We agree with the State that the rationale of Dees is applicable to this case. "An act is within the state's police power if it is reasonably related to the public health, welfare, and safety." People v. Garcia, 197 Colo. 550, 595 P.2d 228, 230 (1979) (en banc) (). The State permissibly exercises its police power by prohibiting the possession of firearms by persons under the influence of alcohol or drugs. Id. Possession of firearms by intoxicated persons presents a clear danger to the public. The state constitution does not support a right to engage in this type of behavior. See id.; Dees, 100 N.M. at 255, 669 P.2d at 264.
The constitutionality of a statute is generally subject to challenge only by someone who demonstrates the unconstitutional application of the statute to him. State v. Casteneda, 97 N.M. 670, 678, 642 P.2d 1129, 1137 (Ct.App.1982). Here, the evidence indicated that Defendant was a potential danger to the public. There was evidence that Defendant was intoxicated. Officer Holguin saw Defendant pointing the gun at Mr. Rueda. Defendant appeared to be loading the gun. We conclude that Defendant's constitutional right to bear arms was not impermissibly infringed by his conviction under Section 30-7-4.
Defendant next contends that Section 30-7-4 is unconstitutionally vague and overbroad. Specifically, he argues that Section 30-7-4, when read with NMSA 1978, Section 30-7-1 (Repl.Pamp.1984), does not give fair notice of what conduct is prohibited. We disagree.
If a defendant challenges a statute as vague, the reviewing court presumes the statute is constitutional. State v. James M., 111 N.M. 473, 477, 806 P.2d 1063, 1067 (Ct.App.1990), cert. denied, 111 N.M. 529, 807 P.2d 227 (1991). We consider the statute in its entirety, giving words their ordinary meaning unless a contrary intent is indicated. Id. "To satisfy the constitutional requirements of due process, the statute must provide adequate warning to a person of ordinary intelligence that his [or her] conduct is prohibited." Id.
Section 30-7-4(A)(2) defines negligent use of a deadly weapon as "carrying a firearm while under the influence of an intoxicant or narcotic." While "carrying a firearm" is not defined in Section 30-7-4, Section 30-7-1 defines "carrying a deadly weapon" as "being armed with a deadly weapon by having it on the person, or in close proximity thereto, so that the weapon is readily accessible for use." (Emphasis added.) The definition of "deadly weapon" includes unloaded firearms. NMSA 1978, Sec. 30-1-12(B) (Repl.Pamp.1984). We understand Defendant to argue that the term "use" is not defined, thereby rendering the statute vague because persons can be convicted without any showing that the firearm was used or intended to be used. He further argues that the statute does not provide clear guidelines for law enforcement officers because "under the influence" is not defined. Thus, the statute requires a subjective determination by the officer, giving rise to the possibility of uneven enforcement.
We conclude that Section 30-7-4(A)(2) is not unconstitutionally vague. The terms of the statute give fair warning of the prohibited conduct. A person may not have a deadly weapon "readily accessible for use" while under the influence of intoxicants or narcotics. We give the terms "accessible" and "use" their ordinary meanings. See James M., 111 N.M. at 477, 806 P.2d at 1067. "Accessible" means "capable of being used." Webster's Third New International Dictionary 11 (1971). "Use" means "to put into action or service." Id. at 2523. A person of ordinary intelligence would understand what conduct is prohibited by the statute: having a firearm nearby, readily capable of being put into action or service, while under the influence of alcohol. The statute plainly does not require that the intoxicated person actually use or intend to use the firearm.
Further, an officer's determination that a person is "under the influence" is not entirely subjective. Officer Holguin gave several examples of objective indicators of impairment: odor of alcohol, bloodshot eyes, altered speech patterns, etc.
Defendant also contends the statute is overbroad, presumably based on his argument that his possession of the gun was protected under our state constitution. Generally, to have standing to challenge a statute as overbroad, a defendant must show that " 'his own conduct could not be regulated by a statute drawn with the requisite [narrow] specificity.' " State v. Brecheisen, 101 N.M. 38, 43, 677 P.2d 1074, 1079 (Ct.App.), cert. denied, 101 N.M. 11, 677 P.2d 624 (1984) (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965)).
Defendant cannot make this showing. As stated in the previous section, Defendant's conduct was dangerous. As such, it could be regulated even by a more narrowly drawn statute than the one at issue here.
Even if Defe...
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