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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 35,936
5 CHRISTOPHER SCHMITT,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
8 Fernando R. Macias, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 GARCIA, Judge.
18 {1} Defendant appeals from the district court’s judgment and sentence, convicting
1 him for resisting, evading or obstructing an officer and sentencing him to probation,
2 following a jury trial. We were unpersuaded that Defendant’s docketing statement
3 demonstrated error and issued a notice of proposed summary disposition, proposing
4 to affirm. Defendant filed a response to our notice. We have considered Defendant’s
5 response and remain unpersuaded. We, therefore, affirm.
6 {2} Defendant initially pursued the appeal under the demands of State v. Franklin,
7 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982; and State v. Boyer, 1985-NMCA-
8 029, ¶ 24, 103 N.M. 655, 712 P.2d 1, challenging the sufficiency of the evidence to
9 support his conviction. [DS unnumbered 4] Our notice proposed to hold that the
10 combined evidence of Defendant’s belligerent and menacing behavior toward the
11 officers and Defendant’s actions showing his physical resistence against the officers
12 attempting to arrest him, which forced the officers to carry him to the patrol car, was
13 sufficient to support his conviction under NMSA 1978, Section 30-22-1(B) (1981).
14 Our notice relied on State v. Wilson, 2007-NMCA-111, ¶ 43, 142 N.M. 737, 169 P.3d
15 1184, for its holding that the evidence was sufficient to convict the defendant for
16 resisting or evading an officer under Section 30-22-1(B), where the defendant pulled
17 away from the officer when the officer had handcuffed one of the defendant’s hands,
18 was attempting to secure the defendant’s other hand, and had to forcibly apply the
19 handcuffs onto the defendant.
2
1 {3} In response to our notice, Defendant contends that there was no evidence that
2 he was “intentionally fleeing, attempting to evade or evading an officer[,]” as required
3 by Section 30-22-1(B), and relies on dictionary definitions of the terms “flee” and
4 “evade.” [MIO 4] We note that definitions of “flee” and “evade” upon which
5 Defendant relies are so similar as to be effectively redundant. [MIO 4] It is an
6 axiomatic rule of statutory interpretation that we will not construe a statute to render
7 any portion of it surplusage or superfluous. See State v. Javier M., 2001-NMSC-030,
8 ¶ 32, 131 N.M. 1, 33 P.3d 1. We construe the Legislature’s meaning of attempted
9 evading in Subsection (B) to encompass more behavior than merely staying or
10 slipping away, as Defendant asks us to define it. [MIO 4]
11 {4} Significantly, Defendant does not address our holding in Wilson regarding
12 Section 30-22-1(B), nor does he attempt to distinguish that case. In Wilson, this Court
13 broadly construed the offense of resisting, evading or obstructing an officer under
14 Section 30-22-1(B) and held that the defendant’s act of pulling his arm away from the
15 officer trying to handcuff him, causing the officer to forcibly finish handcuffing the
16 defendant, was a sufficient act of attempting to “resist or evade” the officer during an
17 arrest. Wilson, 2007-NMCA-111, ¶ 43. We believe Defendant’s act of “planting his
18 feet [on] the ground to keep the officers from walking him” to the patrol car, and
19 Defendant’s act of continually dropping his weight, causing officers to forcibly carry
3
1 him to the patrol car, [RP 13-14] are sufficiently akin to the defendant’s act of pulling
2 his arm away from the officer handcuffing the defendant in Wilson to support a similar
3 finding of attempting to evade.
4 {5} For the reasons stated in our notice and in this opinion, we affirm the district
5 court’s judgment and sentence convicting Defendant of resisting, evading or
6 obstructing an officer.
7 {6} IT IS SO ORDERED.
8 ________________________________
9 TIMOTHY L. GARCIA, Judge
10 WE CONCUR:
11 _______________________________
12 JAMES J. WECHSLER, Judge
13 _______________________________
14 JONATHAN B. SUTIN, Judge
4