State v. Ramon O., 34,386

APD executed a warrant at a residence where Child, his brother, and Uncle were present; Uncle refused orders and a SWAT response (tear gas/flash-bangs) followed.
Child and his brother were escorted outside an established police perimeter but allegedly ignored officers, used profanity, made obscene gestures, ran around yelling, and tried to re‑enter the residence.
Officers Parea and Bailey testified about profanity, gestures ("flipping off"), crowding, and that Child’s conduct made Officer Bailey uncomfortable; she called backup but did not arrest Child to avoid escalation.
The State charged Child with disorderly conduct under NMSA 1978, § 30-20-1(A) (profane/indecent conduct that "tends to disturb the peace").
The district court found Child guilty based on profane/indecent conduct but misstated the law by treating the statute as a single‑element offense (failing to require a showing that the conduct tended to disturb the peace).
On appeal the Court of Appeals held the district court misapplied the statute and concluded the evidence was insufficient to prove the "tends to disturb the peace" element; conviction reversed and dismissed with prejudice.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Child)	Held
1. Proper statutory elements of § 30-20-1(A)	Only the wrongful-conduct descriptors need proof (district court interpreted so)	Section has two elements: wrongful conduct and that it tends to disturb the peace	Court: statute requires two elements; district court misapplied law (agreed with Child)
2. Sufficiency of evidence that conduct "tends to disturb the peace"	Child’s profanity, gestures, perimeter breaches, and drawing a crowd tended to cause consternation/alarm—sufficient	Evidence shows only profanity/gestures and non-threatening refusal to comply; officers’ discomfort alone insufficient	Court: evidence insufficient to prove tendency to disturb the peace; conviction unsupported
3. Whether Child’s conduct toward officers was threatening/inciting	Conduct distracted and irritated officers, tending to disturb peace at scene	Officers are trained to tolerate verbal abuse; absent threats or violent acts, conduct not disorderly	Court: verbal abuse and obscene gestures alone, without threatening behavior or incitement, insufficient
4. Remedy (retrial vs. dismissal) after prejudicial legal error	Remand for retrial because retrial permissible if sufficient evidence exists to establish all elements	Insufficient evidence; retrial barred—request dismissal	Court: insufficient evidence to support element; reversed and dismissed with prejudice (no retrial)

State v. Correa, 147 N.M. 291 (N.M. 2009) (statute has two elements; courts should construe disorderly conduct narrowly)
State v. Florstedt, 77 N.M. 47 (N.M. 1966) (definition of disturbing the peace: violence, likelihood to produce violence, or acts causing consternation/alarm)
State v. Salas, 127 N.M. 686 (N.M. Ct. App. 1999) (two-element formulation; profanity plus threatening approach supported conviction)
State v. James M., 111 N.M. 473 (N.M. Ct. App. 1990) (conduct that "tends to disturb the public peace" is the operative standard)
State v. Doe, 92 N.M. 100 (N.M. 1978) (officer apprehension that someone "might" become combative insufficient to convict)
State v. Roper, 131 N.M. 189 (N.M. Ct. App. 2001) (where evidence is insufficient to support conviction, remedy is discharge, not new trial)