State v. Mirabal

779 P.2d 126, 108 N.M. 749
CourtNew Mexico Court of Appeals
DecidedJuly 13, 1989
Docket11272
StatusPublished
Cited by9 cases

This text of 779 P.2d 126 (State v. Mirabal) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mirabal, 779 P.2d 126, 108 N.M. 749 (N.M. Ct. App. 1989).

Opinion

OPINION

APODACA, Judge.

Defendant appeals his conviction for attempting to obtain a controlled substance contrary to NMSA 1978, Section 30-31— 25(A)(3) (Repl.Pamp.1987). Two issues are raised on appeal: whether Section 30-31-25(A)(3) is unconstitutionally vague and whether the state failed to prove jurisdic-. tion. Because we decide these issues against defendant’s arguments, we affirm the conviction.

Defendant’s conviction was based on his attempt to fill an invalid prescription for Percodan. He moved for a directed verdict at the close of the state’s case-in-chief, arguing that the state failed to prove jurisdiction by not presenting evidence that the crime occurred in New Mexico. The vagueness issue was raised for the first time on appeal, but, since it is jurisdictional, we consider the issue on appeal. State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969).

Vagueness

Section 30-31-25(A)(3) reads as follows: “A. It is unlawful for any person: ____(3) to intentionally acquire or obtain, or attempt to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.”

Defendant argues the statute is unconstitutionally vague for two reasons. First, he contends the words deception and subterfuge are common words with very general meanings, unlike fraud, forgery, and misrepresentation, such that Section 30-31-25(A)(3) creates amorphous, catch-all crimes tending to sweep up virtually anyone. He next contends that the general attempt statute, NMSA 1978, Section 30-28-1 (Repl.Pamp.1984), which proscribes attempted felonies as misdemeanors, is in hopeless conflict with Section 30-31-25(A)(3), which proscribes both the attempt and the completed crime, resulting in a variety of possible crimes such that people of common intelligence will differ over the statute’s application. As an example, defendant suggests that his act of passing a prescription slip to a pharmacist may be deemed as both an attempted forgery, or a completed forgery, resulting in no meaningful way to distinguish a felony attempt to violate the statute and a misdemeanor attempt to do the same. See State v. Linam, 90 N.M. 729, 568 P.2d 255 (Ct.App.1977); State v. Tooke, 81 N.M. 618, 471 P.2d 188 (Ct.App.1970).

We disagree with defendant’s rationale. Whether a person intentionally acquires or obtains, or attempts to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge, we hold the statute is specific enough to provide a person with notice and fair warning of the nature of the proscribed act. See State v. Segotta, 100 N.M. 498, 672 P.2d 1129 (1983).

We believe the statute proscribes the intentional acquisition or attempted acquisition of a controlled substance by false means, whether it be by misrepresentation, fraud, forgery, deception, or subterfuge. See SCRA 1986, 14-3113, Committee Commentary (to the effect that the terms fraud, forgery, and subterfuge are included in the term misrepresentation or deception). It is true that the statute’s inclusion of deception and subterfuge may expand the types of conduct proscribed by the statute; however, we disagree that the additional terms are too general or that they are overly sweeping in nature.

In scrutinizing the constitutionality of a statute, we must read it as a whole to ascertain its legislative intent, and the statute’s words and phrases are to be considered in their generally accepted meaning. See State v. Segotta. Webster’s Third New International Dictionary 585 (1986), defines deception as the act of deceiving, cheating, hoodwinking, misleading, or deluding; or a characteristic, arrangement, or situation that deceives or deludes with or without calculated intent. Subterfuge is defined in the same dictionary to mean deception by artifice or stratagem to conceal, escape, avoid, or evade; or a deceptive device or stratagem. Id. at 2281. We believe these terms are capable of reasonable application to varying fact patterns. See State v. Jim, 107 N.M. 779, 765 P.2d 195 (Ct.App.1988). Additionally, they are specific enough to provide a person with fair warning of the proscribed act’s nature. See State v. Segotta.

The law is clear that where a special law covers the same matter as a general law, the special law controls. See City of Albuquerque v. Chavez, 91 N.M. 559, 577 P.2d 457 (Ct.App.1978). This rule gives effect to a consistent legislative policy. See State v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936). This court disregards a defendant’s actual ignorance of the law when considering a vagueness contention. State v. Kenneman, 98 N.M. 794, 653 P.2d 170 (Ct.App.1982); State v. Montoya, 91 N.M. 262, 572 P.2d 1270 (Ct.App.1977). Section 30-31-25(A)(3) proscribes both the attempt to acquire and the actual acquisition of a controlled substance. Both offenses are fourth degree felonies. See § 30-31-25(B). Section 30-28-1 proscribes the general attempt to commit a felony.

Since Section 30-31-25(A)(3), on the other hand, proscribes an attempt of a specific act and is thus more specific than Section 30-28-1, the former section controls. See City of Albuquerque v. Chavez. We thus hold that the legislature intended to punish attempts under Section 30-31-25(A)(3) specifically as felonies and consequently, that Section 30-28-1 does not apply to such attempts covered by Section 30-31-25(A)(3). See City of Albuquerque v. Chavez; § 30-31-25(B). For this reason, irrespective of whether a defendant’s act is a completed forgery or an attempted forgery, Section 30-31-25(A)(3) is concerned with and proscribes the attempt to acquire a controlled substance, notwithstanding the subtleties of the general attempt statute.

We conclude that, since the statute provides a person with fair warning of the nature of the proscribed act, it is not impermissibly vague. See State v. Segotta; State v. Kenneman; City of Albuquerque v. Chavez.

Jurisdiction

In his docketing statement, defendant contended there was no affirmative evidence on the record that the crime was committed in New Mexico. In particular, he argued there was no evidence that the mall where the crime was allegedly committed was located in the state. This issue is raised pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967). On this basis, defendant claimed the state failed to prove jurisdiction. In so claiming, he relied on State v. Losolla, 84 N.M. 151, 500 P.2d 436 (Ct.App.1972) (a crime must be prosecuted in the jurisdiction where it was committed).

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Bluebook (online)
779 P.2d 126, 108 N.M. 749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mirabal-nmctapp-1989.