A. It shall be unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to telephone another and use any obscene, lewd or profane language or suggest any lewd, criminal or lascivious act, or threaten to inflict injury or physical harm to the person or property of any person. It shall also be unlawful for any person to attempt by telephone to extort money or other thing of value from any other person, or to otherwise disturb by repeated anonymous telephone calls the peace, quiet or right of privacy of any other person at the place where the telephone call or calls were received, or to maliciously make a telephone call, whether or not conversation ensues, with intent to annoy or disturb another, or to disrupt the telecommunications of another.
B. The use of obscene, lewd or profane language or the making of a threat or statement as set forth in Subsection A shall be prima facie evidence of intent to terrify, intimidate, threaten, harass, annoy or offend.
C. Any offense committed by use of a telephone as set forth in this section shall be deemed to have been committed at either the place where the telephone call or calls originated or at the place where the telephone call or calls were received.
D. Whosoever violates this section is guilty of a misdemeanor, unless such person has previously been convicted of such offense or of an offense under the laws of another state or of the United States which would have been an offense under this section if committed in this state, in which case such person is guilty of a fourth degree felony.
HISTORY:
1953 40A-20-8, enacted by Laws 1967, ch. 120, § 2.
Notes to Decisions
Constitutionality.
30-20-12 NMSA 1978 is directed at conduct; the making of the call is the prohibited act, not the speaking of any particular words; therefore, 30-20-12 NMSA 1978 is not unconstitutionally overbroad. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Section 30-20-12 NMSA 1978 sets out terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, and therefore it is not void for vagueness. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Conversation.
If a telephone call is made maliciously with the intent to annoy or disturb, a crime has been committed even if no conversation ensues. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Elements.
30-20-12 NMSA 1978 requires specific intent to annoy or disturb. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
“Maliciously” denotes the intentional doing of a harmful act without just cause or excuse. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Evidence.
—Sufficient.
There was insufficient evidence to convict defendant of using a telephone to terrify, intimidate, threaten, harass, annoy, or offend when defendant called the mother of her minor granddaughter’s adult boyfriend to discuss the relationship between them because the calls were not made maliciously. It was not a threat for defendant to say that she would call the attorney general and the mother would lose her job. State v. Stephens, 1991-NMCA-019, 111 N.M. 543, 807 P.2d 241, 1991 N.M. App. LEXIS 120 (N.M. Ct. App. 1991).
Inference.
In a prosecution for use of a telephone to harass, annoy, or offend, the evidence supported a finding of malicious intent as to count one of the indictment where defendant called the victim after they had ended an affair, where the victim asked defendant to stop and sent a certified letter to him, asking him not to call or see her again, where defendant admitted receiving the letter, where the victim later received four or five telephone calls which she recognized as being from defendant, where one call was at 2:20 a.m., where another call was at 2:00 a.m., where the content of the calls included comments about the victim’s body, where the victim was a married woman, and thus, it was permissible to infer that when defendant called the victim on the date in question at 1:50 a.m., he intended to harass her without just cause or excuse. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Intent.
Language used in telephone calls may be considered in determining a defendant’s intent in making the calls; the time that the calls were made and the previous efforts to make the defendant desist may be considered; intent to harass may be shown by other harassing acts. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Requirements.
30-20-12 NMSA 1978 requires that a telephone call made with the intent to annoy or disturb must be made maliciously. This excludes a valid call made by a customer to express dissatisfaction with a product or service, a call by an irate citizen to a public official, and a call by an individual bickering over family matters, even if the calls are intended to cause minor annoyance, because “maliciously” is defined as the intentional doing of a harmful act without just cause or excuse, or in utter disregard of the consequences. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Retroactivity.
Former 40A-29-25, 1953 Comp. (now 30-20-12 NMSA 1978), enacted after defendant’s conviction, did not indicate a legislative intent that it be given retroactive effect; thus, the statute applied prospectively only and defendant could not avail himself of the benefits accorded by it. State v. Padilla, 1968-NMCA-004, 78 N.M. 702, 437 P.2d 163, 1968 N.M. App. LEXIS 431 (N.M. Ct. App. 1968).
Sentence.
—Excessive.
While defendant’s convictions for aggravated burglary and aggravated battery were upheld, it was necessary to remand the case because defendant was not given credit for presentence confinement in accordance with former 40A-29-25, 1953 Comp. (now 30-20-12 NMSA 1978). State v. Tafoya, 1969-NMCA-073, 80 N.M. 494, 458 P.2d 98, 1969 N.M. App. LEXIS 597 (N.M. Ct. App. 1969).