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State v. Perea9/9/1999
ers.'" Id. (quoting Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) (footnote omitted)).
{23} Although considering what might constitute the "possible commission of a felony" in the abstract could be problematic, this Court does not decide the issue in the abstract. Instead, this Court considers the validity of the statute "in light of the facts of the particular case before us and in light of the prohibited act with which a defendant is charged." State v. Wood, 117 N.M. 682, 687, 875 P.2d 1113, 1118 (Ct. App. 1994). Defendant has the burden of demonstrating the invalidity of the statute. See id.
{24} We determine that any person of ordinary intelligence would know that the conduct charged against Defendant was proscribed by Section 30- 24-3(A). The charge was based on allegations that, during an argument in which Defendant held a knife to the victim's throat and committed other violent acts, Defendant taunted the victim to call the police, telling her that he would kill her before they arrived. Because the statute clearly applied to the charge made against Defendant in this case, Defendant did not meet his burden of proving the invalidity of the statute in light of the conduct charged.
Sufficiency of the Evidence
{25} Despite Defendant's contention that the jury discredited all of the victim's testimony, the jury did return a verdict on two of the counts against Defendant, evidencing that it believed at least some of the victim's testimony. In reviewing the sufficiency of the evidence, this Court does not reweigh the evidence or determine the credibility of the witnesses. See State v. Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). Instead, we view the evidence in the light most favorable to the verdict to determine if each element of the offense is supported beyond a reasonable doubt. See id.
{26} The evidence to support the conviction of threatening a witness was the victim's testimony that during the altercation, Defendant challenged the victim to call the police and threatened to kill her if she did. There was evidence that Defendant acted violently against the victim and that his threats were intended to prevent her from reporting the violence to the police. This evidence is sufficient to support the conviction of threatening a witness under Section 30-24-3(A)(3).
Conclusion
{27} We reverse Defendant's conviction for intimidating a witness because of error in the jury instructions and remand for a new trial. We affirm the constitutionality of the statute and the sufficiency of the evidence to support Defendant's conviction.
{28} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
A. JOSEPH ALARID, Judge
RICHARD C. BOSSON, Judge
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