August 14, 2019- State of New Mexico v. Robert Apodaca, No. A-1-CA-36409

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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. A-1-CA-36409
5 ROBERT APODACA,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
8 Matthew J. Wilson, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	Charles J. Gutierrez, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 Kennedy, Hernandez & Associated, P.C.
15 	Paul J. Kennedy
16 Elizabeth A. Harrison
17 Albuquerque, NM
18 	for Appellant
19
20 	DUFFY, Judge.
MEMORANDUM OPINION
21 	{1} 	Defendant appeals his conviction for evading an officer, contrary to NMSA
22 	1978, Section 30-22-l(B) (1981). He argues that the district court erred by refusing
23 	to 	instruct 	the 	jury 	that 	conviction 	requires 	evidence 	of more 	than 	"mere
Court of Appeals of New Mexico
Filed 8/14/2019 10:40 AM

1 forestallment" and that his conviction is not supported by sufficient evidence. We
2 affirm.
3 BACKGROUND
4 	{2} 	This case began with an argument between Defendant and his then-girlfriend,
5 Valerie Huizar, at her parents' house. Huizar called 911. Defendant left the house
6 	on foot, and Huizar followed him on foot and in her car. At one point, she drove past
7 Defendant and told him she had called the police to have him arrested on an
8 outstanding warrant.
9 	{3} 	Officer 	Michelle 	Ortega, 	a 	patrol 	officer 	with 	the 	Espanola 	Police
10 Department, was dispatched to make contact with Defendant. Officer Ortega was in
11 	full uniform, displaying a badge, and drove her marked police car to the scene, where
12 she found Defendant walking down a road. She pulled up next to Defendant and
13 	said, "I need to talk to you, keep your hands out of your pockets." Officer Ortega
14 asked him to
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stand where he was at. [Defendant] basically told me no. [He] continued
walking. [I] told him to take his hands out of his pockets. Again he told
me no. He continued walking, at which time I let dispatch know what
was happening. At which time he turned down [a road].
19 Officer Ortega followed, parked her patrol car and got out of the vehicle. Once
20 outside the car, she again "asked [Defendant] to stop where he was walking," but
21 	Defendant continued walking away from her. Although Officer Ortega testified that
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1 she did not remember her exact words, she confirmed on cross-examination that she
2 remembered "telling [Defendant] to stop," both before and after she exited her
3 vehicle.
4 	{4} 	Officer Ortega stated that she "started walking towards [Defendant] a little
5 bit, at which time [Defendant] completely turned around [and] started coming
6 towards me." Officer Ortega asked him multiple times to stop and to remove his
7 hands from his pockets, and when Defendant did not comply, Officer Ortega pulled
8 out her gun. Defendant started "trotting" toward her, took something out of his
9 pocket and "flung" it toward her. Officer Ortega shot Defendant in the leg, and
10 Defendant finally stopped momentarily to examine his wound before getting up and
11 	walking away again.
12 {5} 	In an interview with a police officer at the hospital, Defendant said he "was
13 	kind of confused with the relationship [with Huizar]," and he decided to walk away.
14 Defendant said that as he was walking, Ms. Huizar "passed me and said I'm gonna
15 	put you in jail, because ... she knows I have a warrant, so she's threatening[.]"
16 Defendant said he texted his brother, saying he was "afraid that [Ms. Huizar was]
17 gonna put me in jail." Defendant also called Ms. Huizar's parents and said, "I think
18 	she's calling the cops on me," but they said they did not think she would. De:fendant
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1 said that when Officer Ortega arrived, Defendant "tried to walk away from" the
2 officer because he was "afraid."
3 	{6} 	The jury instructions required the State to prove:
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1. 	[Officer] Ortega was a peace officer in the lawful discharge of
duty;
2. 	[D]efendant knew [Officer] Ortega was a peace officer;
3. 	[D]efendant, 	with 	knowledge 	that 	[Officer] 	Ortega 	was
attempting to apprehend or arrest [D]efendant, fled, attempted to evade
or evaded [Officer] Ortega;
4. 	This happened in New Mexico, on or about the 30th day of
November, 2014.
12 The jury submitted two questions to the district court during its deliberations: "Does
13 	the officer legally need to explicitely [sic] state that [D]efendant is under arrest?"
14 and "[w ]hat is the legal definition of apprehend?" The district court stated that it
15 	cannot answer those questions and instructed the jury to rely on the jury instructions
16 as given, as well as their collective understanding of the word "apprehem;l." The jury
17 found Defendant guilty of evading arrest.
18 	DISCUSSION
19 I.
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21 	{7}
The District Court Correctly Gave the Uniform Jury Instruction Without
Modification
Defendant argues that the district court erred by refusing to instruct the jury
22 that evading requires more than "mere forestallment" of an arrest, relying on State
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1 v. Jimenez, 2017-NMCA-039,, 37,392 P.3d 668, cert. denied2017-NMCBRT-004
2 (No. S-1-SC-36346, Apr. 6, 2017). The State responds that there was no error
3 because the jury received .the applicable uniform jury instruction, UJI 14-2215
4 NMRA, which provided the jury with an accurate rendition of the relevant law. See
5 State v. Parish, 1994-NMSC-073,, 26, ,118 N.M. 39, 878 P.2d 988 (stating that the
6 New Mexico Supreme Court's adoption of uniform jury instructions "establishes a
7 presumption that the instructions are correct statements of law" (internal quotation
8 marks and citation omitted)). Defendant's brief in chief failed to provide any citation
9 to the record showing where his argument was preserved below, contrary to Rule
10 	12-318(A)(4) NMRA.
11 	{8} 	Notwithstanding the apparent agreement of the parties that this issue was
12 preserved, it is clear from our review of the jury instruction conference that it was
13 	not. At trial, Defendant objected to using UJI 14-2215 based on Jimenez. 	He
14 tendered no instructions of his own and requested only that the word "intentionally"
15 	be added to the third element such that he could be convicted only if he "intentionally
16 fled, attempted to evade[,] or evaded [Officer] Ortega." He now argues that the
17 district court should have modified the. jury instruction to require that the State
18 "prove beyond a reasonable doubt that [Defendant] intended to move and/or stay
19 away from Officer Ortega in order to avoid capture altogether, and not merely
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1 forestall being arrested." Defendant's objection to the instruction and his request to
2 include the word "intentional" does not in any way preserve the instruction he now
3 requests on appeal. See State v. Montoya, 2015-NMSC-010, , 	45, 345 P.3d 1056.
4 ("In order to preserve an issue for appeal, a defendant must make a timely objection
5 that specifically apprises the trial court of the nature of the claimed error and invokes
6 an intelligent ruling thereon." (internal quotation marks and citation omitted)); see
7 also Rule 12-321(A) NMRA ("To preserye an issue for review it must appear that a
8 ruling or decision by the district court was fairly invoked.").
9 {9} 	Because Defendant failed to preserve this issue at trial, we review for
10 fundamental error. See Rule 12-321(B)(2)(c); State v. Barber, 2004-NMSC-019,, 8,
11 	135 N.M. 621, 92 P.3d 633 (stating that unpreserved jury instruction issues are
12 reviewed only for fundamental error). Our fundamental error inquiry "begins at the
13 	same place as our analysis for reversible error. We must determine whether a
14 reasonable juror would have been confused or misdirected by the jury instruction."
15 Barber, 2004-NMSC-019, , 	19. "If we find error, our obligation is to review the
16 entire record, placing the jury instructions in the context of the individual facts and
17 circumstances of the case, to determine whether the [d]efendant's conviction was
18 the result of a plain miscarriage of justice." Id. (internal quotation marks and citation
19 omitted).
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1 {10} 	As an initial matter, "[u]niformjury instructions are presumed to be correct."
2 State v. 	Ortega, 2014-NMSC-017, ,-r 32, 327 P.3d 1076. "When a uniform jury
3 instruction is provided for the elements of a crime, generally that instruction must
4 be used without substantive modification." Jackson v. State, 1983-NMSC-098, ,-r 5,
5 100 N.M. 487, 672 P.2d 660. "[A]n elements instruction may only be altered when
6 the 	alteration 	is 	adequately 	supported 	by 	binding 	precedent 	or 	the 	unique
7 circumstances of a particular case, and where the alteration is necessary in order to
8 accurately convey the law to the jury." UJI Crim. General Use Note NMRA. In this
9 case, 	the 	district 	court 	gave 	the 	applicable 	uniform jury 	instruction without
10 modification and it is presumed to be correct. With this presumption in mind, we
11 	evaluate whether a reasonable juror would have been confused or misdirected such
12 that the instructions, "through omission or misstatement, fail to provide the juror
13 	with an accurate rendition of the relevant law." State v. Samora, 2016-NMSC-031,
14 ,-r 27, 387 P.3d 230 (internal quotation marks and citation omitted).
15 	A. 	No Binding Precedent Supported Modification
16 	{11} 	Defendant argues that we recently commented that the word "evade" has
17 "facial ambiguity" in Jimenez, 2017-NMCA-039, ,-r 32, and therefore, modification
18 was necessary to prevent juror confusion or misdirection. In Jimenez, we noted that
19 the word "evade" was susceptible of multiple meanings and therefore ambiguous
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1 when considered alone, but held that its meaning is reasonably understood based on
2 the "notion that 'a word may be known by the company it keeps.' " Id. ,-r,-r 31-34
3 (quoting Russell Motor Car Co. v. United States, 261 U.S. 514, 519 (1923)). We
4 concluded that because "the Legislature made 'evade' the 'linguistic neighbor' of
5 'flee' in [Section 30-22-l](B) ... we are to give 'evade' the meaning that most
6 closely and logically associates it with its neighbor, 'flee.' " Id. 	,-r 36 (citation
7 omitted). Put more simply, "evade" must be read in the 	context 	of the jury
8 instruction.
9 	{12} 	In this case, the uniform jury instruction given at trial stated that the element
10 	of evasion was satisfied if Defendant "fled, attempted to evade or evaded" Officer
11 	Ortega. Because the jury was not asked to consider "evade" in a vacuum, but rather
12 in the context of its "linguistic neighbors," the jury instruction as a whole was not
13 	facially ambiguous and thus, a reasonable juror would not have been confused. See
14 State v. Cabezuela, 2011-NMSC-041, ,-r 21, 150 N.M. 654,265 P.3d 705 (stating that
15 	"[j]ury instructions are to be read and considered as a whole and when so considered
16 they are proper if they fairly and accurately state the applicable law" (internal
17 quotation marks and citation omitted)). A reasonable juror could look to the word's
18 	linguistic neighbors to understand that "evade" does not refer to the act of merely
19 forestalling arrest. See Jimenez, 2017-NMCA-039, ,-r,-r 36-37. As such, Defendant
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1 does not persuade us, nor does our analysis in Jimenez compel us to hold that the
2 UJI given at trial resulted in juror confusion or misdirection.
3 B. 	No Unique Circumstances of This Case Supported Modification
4 	{13} . 	Defendant also argues that his theory of the case supported modification of
5 the uniform jury instruction. 	On appeal,· Defendant contends that he was not
6 attempting to evade arrest, but rather, merely attempting to "forestall" arrest. This
7 theory is based on our discussion in Jimenez, which distinguished evading, as it is
8 used in Section 30-22-l(B) from resisting, as it is used in Section 30-22-l(D):
9 	In sum, understood temporally and geospatially, violations of [Section
10 	30-22-l(B), (D)] are distinguishable based on at what point in an
11 	encounter a defendant first begins to exhibit resistant conduct. A
12 	defendant who is not yet physically capable of being apprehended and
13 	who attempts to avoid apprehension by trying to evacuate himself from
14 	the presence of an officer is more likely to be in violation of Subsection
15 · 	(B). By contrast, a defendant who is effectively "cornered," i.e., whose
16 	apprehension is imminent, but who, nonetheless, chooses to challenge
17 	or forestall his arrest-either by physical battery, refusing to comply
18 	with 	orders, 	or 	verbally-violates 	Subsection 	(D) 	[prohibiting 	a
19 	defendant from "resisting or abusing ... a peace officer in the lawful
20 	discharge of his duties].
21 	Jimenez, 2017-NMCA-039, 140. Defendant's forestallment theory, however, is not
22 	supported by the evidence; he admits on appeal that he walked away from Officer
23 	Ortega and in light of this admission, we conclude there are no unique circumstances
24 presented in this case that justify .Defendant's proposed instruction.
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1 {14} 	Because neither binding precedent nor any special circumstances support the
2 modification that Defendant requests, we detect no error, much less fundamental
3 error.
4 II. 	Sufficiency of the Evidence
5 {15} 	Defendant further challenges the sufficiency of the evidence supporting his
6 conviction. "The test for sufficiency of the evidence is whether substantial evidence
7 of either a direct or circumstantial nature exists to support a verdict of guilty beyond
8 a reasonable doubt with respect to every element essential to a conviction." State v.
9 Montoya, 2015-NMSC-010, ,r 52, 345 P.3d 1056 (internal quotation marks and
10 citation omitted). We "view the evidence in the light most favorable to the guilty
11 	verdict, 	indulging all reasonable inferences and resolving all 	conflicts in the
12 evidence in favor of the verdict." State v. Guerra, 2012-NMSC-027, ,r 10, 284 P.3d
13 	1076 (alteration, internal quotation marks, and citation omitted). We disregard all
14 evidence and inferences that support a different result. State v. Rojo, 1999-NMSC-
15 	001, ,r 19, 126 N.M. 438, 971 P.2d 829.
16 {16} 	Substantial evidence is defined as "such relevant evidence as a reasonable
17 mind might accept as adequate to support a conclusion." State v. Franco, 2019-
18 NMCA-_, _ 	P.3d _ 	(No. A-1-CA-35470, June 13, 2019) (internal quotation
19 marks and citation omitted). "[J]ury instructions become the law of the case against
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1 which the sufficiency of the evidence is to be measured." State v. Arrendondo, 2012-
2 NMSC-013,, 18,278 P.3d 517 (internal quotation marks and citation omitted).
3 A. 	Defendant Was Not Free to Leave
4 {17} 	Defendant argues that he "had the right to walk away" from Officer Ortega,
5 and thus was not "evading." In State v. Gutierrez, 2007-NMSC-033,, 32, 142 N.M.
6 	1, 162 P.3d 156, our Supreme Court held that in order to sustain a conviction for
7 evading apprehension during a Terry stop, the officer must have had at least
8 reasonable suspicion that the defendant "had committed or was about to commit a
9 crime," and there must have been a "show of authority" sufficient to convey to a
10 reasonable person that they "were not free to leave." Id. ,, 32, 34-35. Defendant
11 	does not argue that Officer Ortega lacked reasonable suspicion to detain him or
12 probable cause to arrest him, and so we address only whether Officer Ortega made
13 	a show of authority sufficient for a seizure. "[W]hether there was a show of authority
14 	sufficient for a seizure, ... is an objective test and depends on whether the officer's
"'
15 	words or actions would have conveyed to a reasonable person that he was being
16 ordered to restrict his movement." Id. , 	34 (internal quotation marks and citation
17 omitted).
18 	{18} 	Officer Ortega ordered Defendant to stand where he was at and to stop where
19 he was walking, all following her introductory remarks stating that she needed to
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1 talk to Defendant. She also followed Defendant in her marked police car, stopped
2 the car, and got out while wearing her uniform. Evaluating the evidence in the light
3 most favorable to the guilty verdict, we hold that Officer Ortega's words and actions
4 would convey to a reasonable person that he or she was being ordered to remain in
5 one place and was not free to leave. See Gutierrez, 2007-NMSC-033, 134 (holding
6 that there was a show of authority sufficient for a seizure where an officer "asked
7 [the d]efendant to stop because he needed to talk to him" and the officer followed
8 the defendant into his house).
9 B. 	Defendant Evaded by Walking Away
10 {19} 	Defendant also argues that there was insufficient evidence that he "fled,
11 	attempted to evade or evaded" Officer Ortega for purposes of the third element of
12 the jury instructions. Defendant argues that "[t]hefacts presented simply do not align
13 	with the definition of evading described by the Court of Appeals in Jimenez, [2017-
14 NMCA-039, 137], and do not support an inference that [Defendant] was attempting
15 	to avoid capture." In support of this argument, Defendant argues that his refusal to
16 speak with Officer Ortega and to take his hands out of his pockets do not constitute
17 evading. We disagree, as evidence that Defendant walked away satisfies the element
18 	of evading.
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1 {20} 	As Defendant acknowledges, our cases upholding convictions under Section
2 30-22-l(B) have "involved an affirmative physical act to move and/or stay away
3 from an officer in order to avoid capture altogether." Jimenez, 2017-NMCA-039,
4 ,-r 37. Contrary to Defendant's suggestion, the State was not required to prove that
5 Defendant "ran, hid, veered off the road, holed up so as to be inaccessible to the .
6 officer, 	or attempted to 	trick the 	officer in order to 	effect an escape." 	Any
7 "affirmative physical act to move and/or stay away from an officer" is sufficient,
8 even "backing away." Jimenez, 2017-NMCA-039, ,-r 37; State v. Diaz, 1995-NMCA-
9 	137, ,-r 17, 121 N.M. 28, 908 P.2d 258 (stating that "the evidence that [the d]efendant
10 was backing away from the officers ... would have supported a finding that [the
11 	d]efendant was ... attempting to evade arrest in violation of Section 30-22-l(B)");
12 see Gutierrez, 2007-NMSC-033, ,-r 31 ("While a person has the constitutional right
13 	to walk away from an officer who lacks reasonable suspicion and simply wants to
14 question the person, a person who walks away from an officer attempting to detain
15 	that person based on reasonable suspicion can be charged with evading and eluding
16 an officer under Section 30-22-l(B)."). Officer Ortega testified that Defendant
17 walked away from her after she told him to "stop where he was walking." This is
18 	sufficient to support a finding that Defendant evaded Officer Ortega.
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1 III. 	CONCLUSION
2 	{21} 	We affirm Defendant's conviction.
3 	{22} 	IT IS SO ORDERED.
4
5
6 WE CONCUR:
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