State v. Wade, No. 7038

Docket NºNo. 7038
Citation100 N.M. 152, 1983 NMCA 84, 667 P.2d 459
Case DateJuly 12, 1983
CourtCourt of Appeals of New Mexico

Page 459

667 P.2d 459
100 N.M. 152
STATE of New Mexico, Plaintiff-Appellee,
v.
Mark WADE, Defendant-Appellant.
No. 7038.
Court of Appeals of New Mexico.
July 12, 1983.

Paul Bardacke, Atty. Gen., Ida M. Lujan, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Janet E. Clow, Chief Public Defender, Henry R. Quintero, Asst. Appellant Defender, Santa Fe, for defendant-appellant.

OPINION

NEAL, Judge.

What is the meaning of "abusing any * * * peace officer" in NMSA 1978, Sec. 30-22-1(D) (Cum.Supp.1982.)? The defendant, convicted

Page 460

[100 N.M. 153] of abusing a policeman, contends that "abusing any * * * peace officer" in Sec. 30-22-1(D) is void for vagueness or, alternatively, overbroad. We reverse because the evidence is insufficient to support the conviction, and do not reach the constitutional issues.

On March 24, 1982, two Bernalillo County Sheriff's Department deputies were dispatched to the defendant's home. There had been a family fight, and the defendant's wife had called the police. The defendant's wife had been drinking and the defendant told her to leave the house. She was going to take their infant daughter with her. The defendant, sober, objected. The defendant's wife, testifying as a witness for the State, said that the defendant had not threatened her or become violent with her or the child.

The deputies stated that when they arrived they were invited into the house by the defendant's wife. When they entered the house the defendant started yelling at them. He tried to walk past the officers and one of them grabbed his arm. He ten stepped up on the couch, screaming and yelling that he wanted to see the patrol commander and that he wanted the officers to "get the hell out of the house." He was upset because he had not called them. There was evidence that he used obscenities. One of the officers, Deputy Garcia, testified that the defendant made no threatening gestures. Deputy Garcia testified that the defendant's yelling and screaming interfered with their investigation, but on cross-examination he admitted that he could hear what the defendant's wife said to him.

At the close of the evidence the trial judge found the defendant guilty of "abuse of a police officer", and sentenced him to a ninety-day deferred sentence. The written judgment and sentence, however, finds the defendant guilty of "Interfering with a Peace Officer." Section 30-22-1 is entitled "Resisting, evading or obstructing an officer." Interfering with a peace officer is not a crime. On remand this error should be corrected. NMSA 1978, Crim.P.R. 57.1 (Repl.Pamp.1980).

"ABUSING"

"[A]busing any * * * peace officer" is a misdemeanor under Sec. 30-22-1(D), supra. As used in this statute, what does "abusing" mean?

A review of Sec. 30-22-1, supra, in its entirety, indicates that "Resisting, evading or obstructing an officer" primarily consists of physical acts of resistance. "Abuse", however, also refers to speech, since one of the primary meanings of the word is " 'to attack or injure with words.' " See State v. Boss, 195 Neb. 467, 238 N.W.2d 639 (1976), quoting Webster's Third International Dictionary (Unabr.1961).

By using the word "abusing" the Legislature has prohibited certain speech. This it may do so long as the statute does not offend the First and Fourteenth Amendments, Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), and Art. II, Sec. 17 of our New Mexico Constitution.

The right of 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.

In Boss,...

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31 practice notes
  • McGarry v. Bd. of Cnty. Commissioners for the Cnty. of Lincoln, No. CIV 16–0483 JB/GJF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 28, 2018
    ...emphasized that the statutory phrase envisions ‘primarily ... physical acts of resistance.’ ")(quoting State v. Wade, 1983-NMCA-084, ¶ 6, 100 N.M. 152, 667 P.2d 459, 460 )(alterations in Youbyoung Park v. Gaitan ). They diverge, however, because a suspect may also resist an officer by refus......
  • Benavidez v. Shutiva, 33,300.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 31, 2015
    ...son-of-a-bitch,” this Court stated, “A trained police officer is not an average person.” Finally, in State v. Wade, 1983–NMCA–084, ¶ 17, 100 N.M. 152, 667 P.2d 459, “[t]he defendant was upset at what he thought was an unwelcomed intrusion into a family argument [by police officers]. He scre......
  • State v. Gattis, No. 9176
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 26, 1986
    ...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 Several courts have considered constitutional challenges to statutes similar to Section 30-20-12. See Annot., 95 A.L.R.3d 411 ......
  • Corona v. City of Clovis, No. 2:17-cv-805 JCH/CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 12, 2019
    ...an officer primarily consists 406 F.Supp.3d 1199 of physical acts of resistance.’ " Keylon , 535 F.3d at 1216 (quoting State v. Wade , 100 N.M. 152, 667 P.2d 459, 460 (Ct. App. 1983) ). Defendants do not contend that Mr. Corona "physically resisted" Officer Aguilar prior to his arrest.2 New......
  • Request a trial to view additional results
31 cases
  • McGarry v. Bd. of Cnty. Commissioners for the Cnty. of Lincoln, No. CIV 16–0483 JB/GJF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 28, 2018
    ...emphasized that the statutory phrase envisions ‘primarily ... physical acts of resistance.’ ")(quoting State v. Wade, 1983-NMCA-084, ¶ 6, 100 N.M. 152, 667 P.2d 459, 460 )(alterations in Youbyoung Park v. Gaitan ). They diverge, however, because a suspect may also resist an officer by refus......
  • Benavidez v. Shutiva, 33,300.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 31, 2015
    ...son-of-a-bitch,” this Court stated, “A trained police officer is not an average person.” Finally, in State v. Wade, 1983–NMCA–084, ¶ 17, 100 N.M. 152, 667 P.2d 459, “[t]he defendant was upset at what he thought was an unwelcomed intrusion into a family argument [by police officers]. He scre......
  • State v. Gattis, No. 9176
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 26, 1986
    ...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 Several courts have considered constitutional challenges to statutes similar to Section 30-20-12. See Annot., 95 A.L.R.3d 411 ......
  • Corona v. City of Clovis, No. 2:17-cv-805 JCH/CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 12, 2019
    ...an officer primarily consists 406 F.Supp.3d 1199 of physical acts of resistance.’ " Keylon , 535 F.3d at 1216 (quoting State v. Wade , 100 N.M. 152, 667 P.2d 459, 460 (Ct. App. 1983) ). Defendants do not contend that Mr. Corona "physically resisted" Officer Aguilar prior to his arrest.2 New......
  • Request a trial to view additional results

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