FROM THE DISTRICT COURT OF LINCOLN COUNTY Daniel A. Bryant,
H. Balderas, Attorney General Benjamin L. Lammons, Assistant
Attorney General Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender Nina Lalevic,
Assistant Appellate Defender Santa Fe, NM for Appellant
P. DUFFY, JUDGE.
Child appeals his conviction for violating NMSA 1978, Section
30-20-13(D) (1981), which criminalizes willful interference
with the educational process by threatening to commit any act
that would disrupt the lawful mission, processes, procedures
or functions of the school, arguing that the evidence is
insufficient to sustain his conviction and that the statute,
as applied to his speech in this case, violated his First
Amendment rights. Because the record demonstrates that the
mens rea element of this offense was evaluated under an
incorrect general intent standard, we reverse and remand for
a new trial.
Child, age fourteen, and J.E., age eleven, were students at
Capitan Middle School and High School. The school followed a
four-day school week, and during the school bus ride home for
the weekend on a Thursday afternoon, J.E. sat across the
aisle from Child. J.E. saw that Child had a camera and asked
Child to take his picture; Child did so. J.E. asked Child why
he brought his camera to school, and Child responded,
"I'm making a kill list."
J.E. was bothered by the statement and moved to a different
seat. The next morning, he told his mother what had happened,
and when school reconvened the following Monday morning, J.E.
arrived at 7:15 a.m. and told the school principal, Patti
Nesbitt, what Child had said on the bus. Ms. Nesbitt informed
the school counselor, Theresa Kennedy, and the two of them
spoke with Child that morning. Ms. Nesbitt informed Child
that school officials had received a report about his
"hit list"; Child corrected her and said that it
was a "kill list."
Child did not bring a weapon to school on Monday and when Ms.
Nesbitt searched his camera, laptop, and Kindle, she
discovered only four photos, all people Child stated were his
friends. The photos did not include a photo of J.E. Ms.
Nesbitt contacted Defendant's grandmother and Ms. Kennedy
called the police. Ms. Nesbitt further testified that the
police investigation took about four hours, which interfered
with her normal duties.
On January 31, 2018, the State filed a petition alleging that
Child was a delinquent child and asserted two counts against
him-Count 1 for attempt to commit aggravated assault with
intent to commit a violent felony, contrary to NMSA 1978,
Section 30-3-3 (1977) ("Assault with intent to commit a
violent felony consists of any person assaulting another with
intent to kill or commit any murder[.]"), and Count 2
for violation of the school interference statute, contrary to
Section 30-20-13(D). One day before trial, the State
dismissed Count 1, concluding that it did not have sufficient
evidence to prove that charge, and the parties proceeded with
a bench trial on Count 2. The State called four witnesses:
J.E., Ms. Nesbitt, Ms. Kennedy, and the police chief who
participated in the investigation on the date of the
incident. The defense called no witnesses. The district court
found that Child had committed the delinquent act of
violating Section 3 0-20-13(D) and sentenced him to two
Although Defendant challenges the sufficiency of the evidence
to support his conviction, his argument fundamentally
challenges whether the evidence in this case constitutes the
charged offense. See State v. Barragan,
2001-NMCA-086, ¶ 24, 131 N.M. 281, 34 P.3d 1157
("Although framed as a challenge to the sufficiency of
evidence, [the defendant's argument requires us to engage
in statutory interpretation to determine whether the facts of
this case, when viewed in the light most favorable to the
verdict, are legally sufficient to sustain a
conviction[.]"), overruled on other grounds by State
v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.
The parties disagree on the standard required for conviction
under Section 30-20-13(D), including what intent is required
and whether the statute itself is unconstitutional as applied
in this case because it criminally punishes speech. Thus, in
order to evaluate the sufficiency of the evidence to support
Child's conviction, we must first evaluate the statutory
standard required to sustain a conviction. "Interpreting
the relevant statute is a question of law, which we review
de novo." State v. Herbstman, 1999- NMCA-014,
¶ 16, 126 N.M. 683, 974 P.2d 177. "After reviewing
the statutory standard, we apply a substantial evidence
standard to review the sufficiency of the evidence at
trial." State v. Chavez, 2009-NMSC-035, ¶
11, 146 N.M. 434, 211 P.3d 891.
The Legislature enacted Section 30-20-13 in 1970, a time when
states across the country were adopting similar statutory
provisions in response to organized disturbances on college
campuses. See In re Jason W.,837 A.2d 168, 172-73
(Md. 2003) ("The broadening and focused application of
trespass, disorderly conduct, or school disturbance laws was
then a national phenomenon."); id. at 173
("The focus in 1970 ... was on riots and organized
demonstrations and disturbances that actually impeded the
schools from carrying out their administrative and
educational functions."); see also Sheldon R.
Shapiro, Annotation, Participation of Student in
Demonstration on or Near Campus as Warranting Imposition of
Criminal Liability for Breach of Peace, Disorderly Conduct,
Trespass, Unlawful Assembly, or Similar Offense, 32
A.L.R. 3d 551 (1970). The statute originally focused on
interference occurring in or at public buildings. See
State v. Silva,1974-NMCA-072, ¶¶ 2-3, 86 N.M.
543, 525 P.2d 903 (addressing the constitutionality of a
prior version of Section 30-20-13(C) ...