State v. Ramon O.

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 34,386 5 RAMON O., 6 Child-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 John J. Romero, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Steven H. Johnston, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender 15 J.K. Theodosia Johnson, Assistant Appellate Defender 16 Santa Fe, NM

17 for Appellant 18 MEMORANDUM OPINION 19 GARCIA, Judge.

1 {1} This appeal arises from the events that followed Albuquerque Police 2 Department’s (APD) attempt to execute a warrant on Ramon O.’s (Child) uncle 3 (Uncle). As a result of Child’s interactions with APD, the State charged Child with 4 disorderly conduct, in violation of NMSA 1978, § 30-20-1(A) (1967), defining 5 “disorderly conduct”, in relevant part, as “engaging in violent, abusive, indecent, 6 profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends 7 to disturb the peace[.]” The Children’s Division of the Second Judicial District Court 8 held a bench trial, and the State presented two witnesses, APD Officers Russell Parea 9 and Cassandra Bailey. Following the bench trial, the district court found that Child 10 committed the delinquent act of disorderly conduct. Child was placed on supervised 11 probation for a period of approximately one year. Child appeals his conviction 12 asserting that: (1) the district court misapplied Section 30-20-1(A); (2) there was 13 insufficient evidence to support his conviction ; (3) his conviction is unconstitutional; 14 and (4) the district court erred in denying his motion for a directed verdict. As 15 explained herein, we determine: (1) the district court improperly applied Section 30- 16 20-1(A), and (2) there was insufficient evidence to sustain Child’s conviction. 17 Accordingly, we reverse the conviction. 18 BACKGROUND

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1 {2} At the time APD arrived to execute the warrant on Uncle, Child and his brother 2 were located inside the residence with Uncle. While Child and his brother voluntarily 3 exited the premises, Uncle refused to comply with APD orders to exit the residence. 4 Law enforcement established a perimeter around the residence, and the two brothers 5 were escorted by officers outside the established perimeter. Law enforcement utilized 6 a public announcement system to order Uncle to exit the residence and to instruct 7 neighborhood residents to remain inside their homes. Eventually, APD dispatched a 8 SWAT team to oversee the scene. The SWAT team was forced to utilize tear gas and 9 loud equipment that the officers stated could have been “flash bangs.” 10 {3} At trial, Officer Parea testified that once the brothers were escorted outside the 11 established perimeter, he observed Child and his brother ignoring the orders of Officer 12 Bailey. The officer testified the boys used profanity toward her, “flipped her off”, 13 refused to remain outside the perimeter, ran around the neighborhood yelling, 14 persisted in trying to enter the residence, and invariably distracted law enforcement. 15 While Officer Parea stated that he had no direct contact with the two brothers and 16 testified that he heard, “f— you. . . . Get the f— out of here,” he was not entirely 17 certain which one of the brothers made the remark. 18 {4} Officer Bailey confirmed much of Officer Parea’s testimony, and she elaborated 19 that Child, his brother, and another family member were yelling and screaming in a

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1 proximity close enough to her that they made her uncomfortable as they “could have 2 run up on [her] or thrown something at [her].” She stated that they were 3 argumentative, cussing, and “flipped her off” as well. Officer Bailey testified that 4 Child and his brother were yelling to neighbors saying, “Look what they’re doing!” 5 In an attempt to de-escalate the situation, Officer Bailey moved Child and his brother 6 around the corner, but Child and his mother returned with a group of eight to ten 7 individuals. The group of people were “getting each other upset” and communicating 8 amongst themselves that they should refuse to cooperate with law enforcement. 9 Officer Bailey testified that while she never needed to restrain Child, the situation 10 with the larger group became so serious and “concerning” that she was forced to call 11 backup officers. 12 {5} Officer Bailey stated that while she had cause to place Child under arrest for his 13 behavior at the scene, she chose not to because she did not want to escalate the general 14 situation. She stated that the behavior of Child and his brother caused a small child to 15 “pretend[] like he was shooting police officers with a pump action shotgun” and 16 caused another child to throw a bag of chips. When asked to characterize Child’s 17 language at the scene, she recalled that Child “flipped her off” but could not recall 18 specific statements he made, just that he was cussing and yelling. On cross

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1 examination, however, Officer Bailey stated that she could not recall if Child “flipped 2 her off.” 3 {6} Once the State rested its case, Child moved for a directed verdict, arguing that 4 the State must prove two elements in order to obtain a conviction for disorderly 5 conduct. Child argued that the State failed to prove: (1) the second legal element of 6 “tend[s] to disturb the . . . peace,” especially given the intensity of the police situation; 7 and (2) that the acts engaged in by Child were sufficient to meet the proscribed 8 conduct for disorderly conduct. The district court denied the motion, finding that there 9 was sufficient evidence on the record to continue with the trial. Child did not present 10 any further witnesses. 11 {7} Following closing arguments, the district court orally held that “the reading of 12 the statute is clear that not all of the elements [of the statute] need to be proved.” The 13 court found that there was insufficient evidence that Child engaged in violent 14 behavior, boisterous or abusive conduct, and stated that it was not sure what 15 “unreasonably loud” conduct meant in the context of the situation without actually 16 being present at the scene. However, the district court found that there was “plenty of 17 testimony that [established] that a lot of profanity was being used” and Child “was 18 identified . . . as engaging in cursing and in flipping off [the officers].” As such, the

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1 court found that Child “engaged in profanity and in behavior and in language that 2 could otherwise be defined as profane.” 3 {8} The district court continued, holding that whether Child’s conduct “tended to 4 disturb the peace is hard to distinguish, hard to define [because] arguably there was 5 very little peace at the time [of the incident]. It was chaotic at best.” The court noted, 6 without making a ruling as to Child’s guilt, that it was not “sure how [this fell] into 7 the [statutory] definition” of disorderly conduct, because Child “wasn’t contributing 8 to establishing or maintaining peace.” It then clarified that this failure to contribute to 9 establishing or maintaining peace was “not the same as tending to disrupt the peace.” 10 The district court nonetheless found that there was “evidence beyond a reasonable 11 doubt that . . . [Child be] adjudicated a delinquent child as to [Section] 30-20-1 in that 12 he did engage in profane and indecent conduct.” 13 {9} Counsel for Child pressed the court to clarify its ruling as to the “tend[s] to 14 disturb the peace” element of the statute, noting that the court’s ruling only addressed 15 the first “conduct” element. The district court stated that it was “not persuaded that 16 there [were] two elements.” It explained that it understood “tends to disturb the peace” 17 solely to modify the wording “otherwise disorderly conduct.” Defendant’s counsel 18 directed the court to caselaw again explaining that there are two elements to the statute 19 and “in order to [have] disorderly conduct, you have to satisfy both.” The court

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1 responded, stating “I made my ruling counsel.” As a result of the conviction, the 2 district court placed Child on probation “for a full term not to exceed [one] year.” 3 Child timely appealed his conviction.

4 DISCUSSION 5 I. Disorderly Conduct: Section 30-20-1(A) 6 {10} Child first argues that the district court misapplied Section 30-20-1(A), the 7 statute defining disorderly conduct. Child contends that the district court erred in 8 finding that the statute solely contains one element and in failing to consider the 9 second of the two statutory elements. The “State concedes that Child is correct that 10 the district court misunderstood and misapplied the law governing disorderly conduct 11 by holding that it was unnecessary to find that Child’s behavior had a tendency to 12 disturb the peace.” “Although the [s]tate concedes this issue, we are not bound to 13 accept the [s]tate’s concession.” State v. Palmer, 1998-NMCA-052, ¶ 12, 125 N.M. 14 86, 957 P.2d 71. We review this issue of statutory interpretation de novo. State v. 15 Smith, 2009-NMCA-028, ¶ 8, 145 N.M. 757, 204 P.3d 1267.

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1 {11} This is not the first time we have been called upon to consider the elements of 2 this statute, and we have previously determined that the disorderly conduct statute 3 “has two elements: the conduct itself and the tendency of the conduct to disturb the 4 peace.” State v. Salas, 1999-NMCA-099, ¶ 12, 127 N.M. 686, 986 P.2d 482. Our 5 Supreme Court recently reiterated this Court’s conclusion, and articulated that in order 6 to sustain a conviction for disorderly conduct, both of the above stated elements must 7 be present. State v. Correa, 2009-NMSC-051, ¶ 21, 147 N.M. 291, 222 P.3d 1. Thus, 8 it is clear and undisputed that the district court erred in ruling that: (1) not all of the 9 elements of the statute need to be proved and (2) only one element, the improper 10 conduct element, meets the requirements to establish disorderly conduct under the 11 statute. 12 {12} When the fact finder fails to address all the elements of a criminal offense, the 13 remedy on appeal would require a remand for retrial, unless double jeopardy 14 principles prevent retrial. See State v. Consaul, 2014-NMSC-030, ¶ 41, 332 P.3d 850 15 (“ To avoid any double jeopardy concerns, [our appellate courts] review the evidence 16 presented at the first trial to determine whether it was sufficient to warrant a second 17 trial.”); State v. Dowling, 2011-NMSC-016, ¶ 18, 150 N.M. 110, 257 P.3d 930 18 (recognizing that retrial is appropriate where the jury instructions were defective and 19 sufficient evidence was presented to support a conviction); State v. Rosaire, 1996-

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1 NMCA-115, ¶ 20, 123 N.M. 250, 939 P.2d 597 (holding “that where the [district] 2 court errs by failing to instruct the jury on an essential element of the crime, retrial 3 following appeal is not barred if the evidence below was sufficient to convict the 4 defendant”). The State asserts that retrial is the appropriate remedy so long as 5 sufficient evidence exists to establish all the elements of the crime. Defendant does 6 not dispute the State’s legal position regarding retrial but continues to argue that 7 insufficient evidence was presented to establish “that [Child’s] conduct constituted 8 disturbing the peace.” As a result, we shall now proceed to address whether the State 9 presented sufficient evidence to establish both elements of the disorderly conduct 10 statute. 11 II. Sufficiency of the Evidence: “Tends to Disturb the Peace” 12 {13} Child contends that there was insufficient evidence to sustain his conviction 13 regarding the second element of disorderly conduct—conduct that tends to disturb the 14 peace. “When reviewing a verdict for sufficiency of the evidence, our role is to 15 determine whether a rational fact[]finder could determine beyond a reasonable doubt 16 the essential facts necessary to convict the accused.” State v. Garcia, 2005-NMSC- 17 017, ¶ 12, 138 N.M. 1, 116 P.3d 72. “In reviewing the sufficiency of evidence used 18 to support a conviction, we resolve all disputed facts in favor of the [s]tate, indulge 19 all reasonable inferences in support of the verdict, and disregard all evidence and

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1 inferences to the contrary.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 2 P.2d 829. “This court does not weigh the evidence and may not substitute its judgment 3 for that of the fact finder so long as there is sufficient evidence to support the verdict.” 4 State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. However, 5 where the verdict is supported by substantial evidence, we will not disturb it on 6 appeal. Id. 7 {14} Again we point out that Section 30-20-1(A) contains two elements: (1) the 8 conduct is “violent, abusive, indecent, profane, boisterous, unreasonably loud or 9 otherwise disorderly[,]” and (2) the “conduct . . . tends to disturb the peace.” Correa, 10 2009-NMSC-051, ¶ 21. While the Legislature has not specifically defined “disturbing 11 the peace,” our Supreme Court has defined it as “a disturbance of public order by an 12 act of violence, or by any act likely to produce violence, or which, by causing 13 consternation and alarm, disturbs the peace and quiet of the community.” State v. 14 Florstedt, 1966-NMSC-208, ¶ 7, 77 N.M. 47, 419 P.2d 248 (internal quotation marks 15 and citation omitted). This Court determined that the appropriate standard for this 16 statutory analysis “is whether [the] defendant’s conduct tends to disturb the public 17 peace.” State v. James M., 1990-NMCA-135, ¶ 15, 111 N.M. 473, 806 P.2d 1063 18 (emphasis omitted). “Conduct which tends to disturb the peace is that conduct which 19 is inconsistent with the peaceable and orderly conduct of society.” Id. ¶ 14 (internal

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1 quotation marks and citation omitted). Our Supreme Court has instructed that we 2 construe the disorderly conduct statute narrowly and, “unless the acts [that are alleged] 3 fall clearly within the statute, they are not disorderly.” Correa, 2009-NMSC-051, ¶ 4 22 (alteration, internal quotation marks, and citation omitted). 5 {15} On appeal, Child does not dispute the district court’s finding that he engaged 6 in profane and indecent conduct under the first element of the statute but argues that 7 “there is no evidence [Child’s] conduct ‘tended to disturb the peace.’ ” Accordingly, 8 we are only called upon to analyze the sufficiency of the evidence with regard to the 9 second element of the statute. See § 30-20-1(A); Correa, 2009-NMSC-051, ¶ 21. We 10 first turn to the definition of “disturbing the peace” as adopted in Florstedt, 1966- 11 NMSC-208, ¶ 7. This definition was also identified in Correa, 2009-NMSC-051, ¶ 31, 12 and stated that there are three categories of conduct that may satisfy the second 13 element of disorderly conduct: “(1) an actual act of violence; (2) an act likely to incite 14 another to violence; and (3) an act that disturbs the peace and tranquility of the 15 community.” 16 {16} The district court explicitly found that there was insufficient evidence to prove 17 that Child engaged in violent behavior. The State does not contest this finding. Thus, 18 we must determine whether there was sufficient evidence presented at the trial to 19 establish that Child engaged in “an act likely to incite another to violence [or] an act

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1 that disturbs the peace and tranquility of the community.”Correa, 2009-NMSC-051, 2 ¶ 31. The State argues that Child disturbed the peace in his “consistent approach to 3 and breach of the police perimeter in order to make profane statements and indecent 4 gestures at police” as a reasonable fact finder could find that this conduct “had the 5 tendency to cause consternation and alarm among the police officers.” As we discuss 6 below, the evidence presented at trial was insufficient to support Child’s conviction 7 on this ground. 8 A. Child’s Conduct Toward Law Enforcement 9 {17} This Court has previously held that “[p]olice officers, by nature of their 10 training, are generally expected to have a higher tolerance for offensive conduct and 11 language.”James M., 1990-NMCA-135, ¶ 17. Our Supreme Court and this Court have 12 applied the rule that in most instances “arguing with a police officer, even when using 13 profane and insulting words, will not be enough to constitute disorderly conduct, 14 unless the words are coupled with threatening behavior.” Correa, 2009-NMSC-051, 15 ¶ 26 (internal quotation marks and citation omitted); see Salas, 1999-NMCA-099, ¶ 20 16 (affirming a conviction for disorderly conduct where the defendant’s profane language 17 was accompanied by the defendant approaching law enforcement with clenched fists); 18 State v. Hawkins, 1999-NMCA-126, ¶¶ 19-20, 128 N.M. 245, 991 P.2d 989 19 (distinguishing Salas and reversing the defendant’s disorderly conduct conviction

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1 where the defendant solely argued with law enforcement and did not verbalize threats 2 or exhibit any threatening behaviors). 3 {18} While it is undisputed that Child used profane and indecent language and 4 gestures toward police officers in their attempt to arrest Uncle, our review of the 5 record does not reveal, nor does the State point to, any threatening behavior or similar 6 conduct accompanying Child’s verbal assaults. Officer Parea testified that 7 accompanying the profane language, Child ignored Officer Bailey’s orders, refused 8 to respect the perimeter established by law enforcement, and caused a general 9 distraction to police officers attempting to execute their duties. However, there is no 10 evidence here to suggest any threatening conduct or behavior accompanied any 11 perimeter breach or distraction caused by Child. Additionally, the State does not argue 12 that Child’s disrespectful behavior had an effect on the others such that it rose to the 13 level of incitement of another. While Officer Bailey testified that Child’s yelling and 14 proximity to her caused discomfort, our Supreme Court has affirmed this Court in its 15 determination that an officer’s apprehension that an individual “might . . . become 16 combative” was insufficient to sustain a conviction for disorderly conduct. State v. 17 Doe, 1978-NMSC-072, ¶¶ 5-7, 92 N.M. 100, 583 P.2d 464 (internal quotation marks 18 and citation omitted). Additionally, Officer Bailey testified that she never needed to 19 restrain Child and while she believed there was cause to place Child under arrest, she

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1 did not to do so. Had the circumstances threatened Officer Bailey’s safety or the safety 2 of another, she testified that arresting Child would have been appropriate, yet no arrest 3 or other action was taken. 4 {19} As our Supreme Court eloquently pointed out in Correa, “We are not 5 indifferent to the officers in the case.” 2009-NMSC-051, ¶ 30. These officers play an 6 invaluable role in serving and protecting our community, and unfortunately, they are 7 often subjected, as they were here, to inappropriate verbal abuse and unsightly 8 gestures. We commend these officers for their restraint and their ability to carry out 9 their duties under taxing, distracting, and often debasing conditions. “However, it is 10 because of their degree of skill, training, and experience that we rely on officers,” not 11 only to complete their duties, but “not to react to verbal provocation, at the risk of 12 escalating a situation rife with conflict.” Id. Accordingly, without evidence of 13 anything more than profane remarks, gestures, and non-threatening refusal to comply 14 with the perimeter established by police, there is insufficient evidence to support 15 Child’s conviction with regard to his disrespectful conduct toward law enforcement. 16 B. Disturbing the Tranquility of the Community 17 {20} On appeal, the State does not explicitly argue that Child, through his conduct, 18 disturbed the tranquility of the community. Rather, the State takes issue with Child’s 19 argument that his “conduct was not disorderly because there was no peace in the

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1 neighborhood during the police standoff.” While the State theoretically could have 2 presented evidence to support this argument, it was not supported by the record below 3 and has not been addressed by any authority in the State’s brief. “On appeal, issues 4 not briefed are considered abandoned, and we do not raise them on our own.” Id. ¶ 31. 5 There is no evidence or argument below to dispute the district court’s finding that 6 “arguably there was very little peace at the time [of the incident, it] was chaotic at 7 best.” As such, we accept this undisputed finding and shall only briefly address the 8 State’s argument regarding the tranquility of the community at the time of the incident 9 involving Uncle. 10 {21} At trial, the State presented evidence through the testimony of Officers Parea 11 and Bailey that Child: ran around the neighborhood yelling, yelled to a neighbor, 12 brought a small group of people to the scene, yelled loud enough so that the neighbors 13 were able to hear, caused a child to pretend to shoot officers, and caused another child 14 to throw a bag of chips. However, the State does not argue that Child’s behavior 15 tended to disturb the “chaotic” atmosphere described as “very little peace” existing in 16 the surrounding neighborhood or community at the time of the incident. Rather, the 17 State asserts that Child’s disturbances irritated and bothered law enforcement while 18 they were carrying out their duties at this chaotic scene. As the State recognizes, the 19 district court never found that Child’s conduct tended to disturb the peace, especially

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1 within the chaotic atmosphere that existed at the time. No evidence was presented that 2 Child caused the chaotic and tense scene that developed around Uncle’s arrest or that 3 the neighbors or the community were disturbed by Child’s actions or conduct. While 4 there was evidence presented that Child yelled at a neighbor and may have brought 5 other individuals to the scene, it is unclear from the record whether the neighbor was 6 “negatively affected by or reacted in any way to the statements.” Hawkins, 1999- 7 NMCA-126, ¶ 13 (“The mere fact that people may have heard [Child’s] remarks, 8 however loud or offensive they may have been, is insufficient to support a charge of 9 disorderly conduct. There must be evidence that the remarks were likely to incite the 10 listeners to breach the peace.”). No evidence was presented that these other neighbors 11 breached the peace. The evidence presented did not indicate whether the individuals 12 that Child may have brought to the scene were family members concerned about 13 Uncle or simply unrelated neighbors reacting to Child’s behavior. See id. In fact, 14 Officer Bailey explicitly testified that she was unsure whether the individuals Child 15 brought over to the scene were neighbors. Because the evidence does not support the 16 State’s argument that Child’s behavior tended to disturb the peace of the 17 neighborhood, we decline to consider this argument any further. See Correa, 2009- 18 NMSC-051, ¶ 32 (declining to reach the argument of whether a defendant’s conduct

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1 tended to disturb the tranquility of the community where the State failed to present the 2 argument on appeal and such a “conclusion [was] not apparent from the record”). 3 {22} The State requests that we remand Child’s case to the district court for 4 reconsideration of the “tends to disturb the peace” element of the statute and for a new 5 trial. As we have determined that there is insufficient evidence as to the first 6 conviction, we need not remand for reconsideration or a new trial. See State v. Roper, 7 2001-NMCA-093, ¶ 23, 131 N.M. 189, 34 P.3d 133 (“If there was insufficient 8 evidence to support the [charge] for which [the d]efendant was convicted and 9 sentenced, the remedy would be a discharge, not a new trial.”). Accordingly, we 10 reverse and do not permit any retrial in this case. 11 III. Child’s Constitutional Arguments 12 {23} Finally, Child contends that his conviction was unconstitutional as his conduct 13 was protected under the First and Fourteenth Amendments of the United States 14 Constitution and Article II, Section 17 of the New Mexico Constitution. “[Our 15 appellate courts] will avoid deciding constitutional questions unless required to do 16 so.” State v. Sanchez, 2015-NMCA-084, ¶ 8, 355 P.3d 795 (internal quotation marks 17 and citation omitted). As we have already determined that there was insufficient 18 evidence to sustain Child’s disorderly conduct conviction, we need not reach Child’s 19 constitutional arguments. See Schlieter v. Carlos, 1989-NMSC-037, ¶ 13, 108 N.M.

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1 507, 775 P.2d 709. (“It is an enduring principle of constitutional jurisprudence that 2 courts will avoid deciding constitutional questions unless required to do so.”).

3 CONCLUSION 4 {24} For the foregoing reasons, we reverse Child’s conviction. We remand this 5 matter to the district court with instructions to dismiss Child’s disorderly conduct 6 conviction with prejudice. 7 {25} IT IS SO ORDERED.

8 _________________________________ 9 TIMOTHY L. GARCIA, Judge

10 WE CONCUR:

11 _________________________________ 12 MICHAEL E. VIGIL, Chief Judge

13 _________________________________ 14 JAMES J. WECHSLER, Judge