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 Comp., § 40A-20-8, enacted by Laws 1967, ch. 120, § 2.

Cross references. — For evidentiary rule relating to use of presumptions in criminal cases, see Rule 11-302 NMRA.

Severability. — Laws 1967, ch. 120, § 3, provides for the severability of the act if any part or application thereof is held invalid.

Constitutionality. — This section is not unconstitutionally overbroad, nor is it void for vagueness. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497.

Applicability of Subsection A. — The first sentence of Subsection A explicitly covers threats conveyed by telephone. The legislature did not intend that the later portion of the statute relating to malicious calls should duplicate that coverage. When a threat is the sole basis for finding that a call with an otherwise proper purpose is inexcusable, then the first sentence of Subsection A controls. State v. Stephens, 1991-NMCA-019, 111 N.M. 543, 807 P.2d 241.

"Threats" under this section include, at most, threats of criminal or tortious misconduct. State v. Stephens, 1991-NMCA-019, 111 N.M. 543, 807 P.2d 241.

"Telephoning another". — Evidence that a third party connected the victim to an existing call between defendant and the third party as a three-way call was sufficient to conclude that defendant violated this section because one can violate Subsection A without physically conducting the acts which initiate a telephone call. In re. Shaneace L., 2001-NMCA-005, 130 N.M. 89, 18 P.3d 330, cert. denied, 130 N.M. 154, 20 P.3d 811, overruled on other grounds by State v. Trossman, 2009-NMSC-034, 146 N.M. 462, 212 P.3d 350.

Determination of intent. — The language used in calls may be considered in determining defendant's intent in making the calls. Likewise, the time that the calls were made and the previous efforts to make defendant desist may be considered. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497.

The victim's testimony that defendant threatened to kill her and her baby shortly after the placing of the telephone call was sufficient evidence from which it could be inferred that defendant had the intent to annoy or harass the victim. In re. Shaneace L., 2001-NMCA-005, 130 N.M. 89, 18 P.3d 330, cert. denied, 130 N.M. 154, 20 P.3d 811, overruled on other grounds by State v. Trossman, 2009-NMSC-034, 146 N.M. 462, 212 P.3d 350.

Legitimate purpose. — When a caller has a legitimate purpose and the call communicates that purpose, only in extreme circumstance is the call inexcusable. Such a circumstance can be created by a variety of factors. One factor would be the language employed in the call. Other factors could be the frequency of calls, the time of day of the call, or the strength and frequency of the recipient's objections to such calls. State v. Stephens, 1991-NMCA-019, 111 N.M. 543, 807 P.2d 241.

Evidence insufficient. — Evidence was insufficient to sustain defendant's conviction, where defendant made telephone calls for the legitimate purpose of seeking assistance from the parents of her granddaughter's boyfriend to try to terminate what she saw as an unhealthy relationship. State v. Stephens, 1991-NMCA-019, 111 N.M. 543, 807 P.2d 241.

Evidence of the effect on the recipient of the calls cannot substitute for evidence of the defendant's misconduct. State v. Stephens, 1991-NMCA-019, 111 N.M. 543, 807 P.2d 241.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Misuse of telephone as minor criminal offense, 97 A.L.R.2d 503.

Right of telephone or telegraph company to refuse, or discontinue, service because of use of improper language, 32 A.L.R.3d 1041.

Validity, construction, and application of state criminal statute forbidding use of telephone to annoy or harass, 95 A.L.R.3d 411.

Telephone company's liability for disclosure of number or address of subscriber holding unlisted number, 1 A.L.R.4th 218.

Telephone calls as nuisance, 53 A.L.R.4th 1153.

Validity, Construction and Application of Telephone Consumer Protection Act (47 USCS § 227), 132 A.L.R. Fed. 625.

86 C.J.S. Telegraphs, Telephones, Radio and Television § 121.