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State v. Jim10/18/1988
>. "Constitutional vagueness is based on notice and applies when a potential actor is exposed to criminal sanctions without a fair warning as to the nature of the proscribed proceedings." State v. Segotta, 100 N.M. 498, 499-500, 672 P.2d 1129, 1130-1131 (1983); see also Bokum Resources Corp. v. New Mexico Water Quality Control Comm'n. Nevertheless, this court presumes that a statute is constitutional and will construe it so that it is not void for vagueness if reasonable and practical construction can be given to its language. State v. Segotta. Simply because a term is not defined within the statute does not necessarily render it unconstitutional. Gruschus v. Bureau of Revenue, 74 N.M. 775, 399 P.2d 105 (1965). "The statute must be read and considered as a whole so as to ascertain its legislative intent, and the statute's words and phrases are to be considered in their generally accepted meaning." State v. Segotta, 100 N.M. at 500, 672 P.2d at 1131.
Neither the word "protracted" nor the word "impairment" has a technical meaning. Therefore, both words should be used in their ordinary sense. Defendant's concern is with the term "protracted." He claims that the word is capable of several meanings. However, "protracted" is defined as extended in time; long drawn out. Webster's Third New International Dictionary 1826 (1966). The term is capable of reasonable application to varying fact
patterns. See State v. Mentola, 691 S.W.2d 420 (Mo. App. 1985); People v. Obertance, 105 Misc.2d 558, 432 N.Y.S.2d 475 (1980). Other courts interpreting the same word in similar statutes have determined that what is considered protracted depends on the circumstances and is not so vague as to be unconstitutional. Walker v. State, 742 P.2d 790 (Alaska App. 1987); State v. Welton, 300 N.W.2d 157 (Iowa 1981); People v. Obertance. We agree.
In its ordinary, common usage, protracted means a "lengthy or unusually long time under the circumstances." People v. Obertance, 105 Misc.2d at 432 N.Y.S.2d at 476. The concept of protracted is not beyond the grasp of the jury nor so indefinite that it allows unstructured discretion in applying it. The fact finder must consider the circumstances and determine whether there was a protracted impairment.
This interpretation of the term "protracted" in the definition of great bodily harm comports with the supreme court's interpretation of the terms "serious disfigurement" in this same statute. State v. Ortega, 77 N.M. 312, 422 P.2d 353 (1966). In Ortega, the supreme court held that the terms "disfigurement" and "serious" were to be used in their ordinary sense. The supreme court went on to say that it is a question of fact for the jury to determine whether the injuries sustained were sufficiently substantial to come within the definition of the statute.
The statute under which defendant was charged is not unconstitutionally vague. The term "protracted impairment" is capable of reasonable application by a jury of common intelligence after consideration of the circumstances involved.
Defendant's conviction and sentence are affirmed.
IT IS SO ORDERED.
DONNELLY, C.J., and MINZNER, J., concur.
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