{ "id": 4003176, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Oscar Cruz LOPEZ, Defendant-Appellant", "name_abbreviation": "State v. Lopez", "decision_date": "2008-06-05", "docket_number": "No. 27,143", "first_page": "705", "last_page": "709", "citations": [ { "type": "official", "cite": "144 N.M. 705" }, { "type": "parallel", "cite": "191 P.3d 563" }, { "type": "parallel", "cite": "2008-NMCA-111" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1999-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827383 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0438-01" ] }, { "cite": "118 N.M. 762", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563621 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "766", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "760", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0762-01" ] }, { "cite": "2007-NMCA-052", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668315 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 12-23" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0512-01" ] }, { "cite": "173 P.3d 764", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "143 N.M. 157", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2007-NMCERT-011", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2007-NMCA-045", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668540 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 22-23" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0434-01" ] }, { "cite": "2005-NMCA-126", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2550057 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 25" }, { "page": "\u00b6 23" }, { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0500-01" ] }, { "cite": "2007-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3691675 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 23" }, { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0120-01" ] }, { "cite": "111 N.M. 357", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715214 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "361-62" }, { "page": "628-29" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0357-01" ] }, { "cite": "2001-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352481 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 36" }, { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0227-01" ] }, { "cite": "112 N.M. 3", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720274 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "13" }, { "page": "1233" }, { "page": "13-14" }, { "page": "1233-34" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0003-01" ] }, { "cite": "2001-NMCA-009", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352368 ], "weight": 10, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 17" }, { "page": "\u00b6\u00b6 17-18" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0130-01" ] }, { "cite": "2006-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2544090 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0211-01" ] }, { "cite": "2003-NMCA-146", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77155 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0710-01" ] } ], "analysis": { "cardinality": 675, "char_count": 12951, "ocr_confidence": 0.692, "pagerank": { "raw": 6.212321879785256e-08, "percentile": 0.3846488733513035 }, "sha256": "10e97d0a650db4a3482386f99fd43ed5d5a06625e5df7b69d51bddc93a704564", "simhash": "1:fdecaf0331051567", "word_count": 2133 }, "last_updated": "2023-07-14T22:37:29.378104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: JONATHAN B. SUTIN, Chief Judge and RODERICK T. KENNEDY, Judge." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Oscar Cruz LOPEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nPICKARD, Judge.\n{1} Defendant appeals his convictions for battery on a peace officer and resisting an officer. Both convictions arise out of a protracted ear and foot chase in which Defendant punched the officer in the face twice. Defendant contends that he may be convicted only of battery on a peace officer and that his conviction for resisting an officer violates double jeopardy. Defendant also contends that the evidence is insufficient to support his convictions. We hold that Defendant\u2019s conduct was not unitary and reject his double jeopardy claim. We also reject his claim that the evidence is insufficient.\nBACKGROUND\n{2} Officer Roberto Gutierrez of the Las Cruces Police Department testified that on August 14, 2005, he saw a brown truck traveling 80 to 90 miles per hour in a 30-mile-per-hour zone. He turned on his lights and siren and pursued the truck for about a mile until it pulled into an apartment complex and stopped. He parked behind the truck. Defendant got out of the truck, and the officer told him to get back into the truck. Defendant ran away. The officer began chasing him on foot through the complex. Defendant lost his footing and fell on his hands. The officer instructed him to get on the ground, but Defendant caught himself and ran away. Defendant jumped over a rock wall with a four- to five-foot drop and landed face first on the pavement. The officer again instructed him to stay there, but Defendant attempted to get up and run away again. Defendant continued to run and the officer pursued him instructing him to stop. The officer drew his taser and tasered Defendant, but it did not affect him. The officer tasered Defendant again, and this time it did slow Defendant down.\n{3} Defendant turned to face the officer, \u201ctaking a defensive attack posture,\u201d meaning he blew his chest up, clenched his fists, and began walking toward the officer. Defendant then punched him twice in the face while wearing a horseshoe shaped ring, drawing blood. The officer dry tasered Defendant, which means that because the cartridge on his taser was empty, he used the residual electricity to control Defendant by driving it into his skin. The officer then attempted to physically maneuver Defendant to the ground, and they wound up wrestling on the ground.\n{4} Defendant broke free, began running again, and at some point stopped, turned, and faced the officer a second time in an aggressive manner. Defendant walked toward the officer in a \u201cvery fast\u201d and \u201chasty\u201d manner. The officer drew his baton and held it in a show of force, struck Defendant on the leg, and yelled at him to get on the ground. Defendant again ran away. Defendant then faced the officer a third time. The officer attempted an \u201carm bar takedown,\u201d which led to the two men wrestling and Defendant attempting to hit the officer. Once again, Defendant ran away.\n{5} Defendant tripped on a concrete walkway as he ran. Eventually, the officer caught up with him and struck him on the leg with his baton, ordering him to get on the ground. Defendant grabbed onto a five- or six-foot chain link fence as the officer continually struck him on the lower back and legs. Other officers arrived and one of them tasered Defendant as he ran away. It took five or six officers to eventually take him into custody.\n{6} Defendant admitted running away from the officer because he had an active arrest warrant for failure to pay fines, but disputed other facts. He denied jumping walls and fences and denied punching the officer or wrestling with him. Defendant claimed that the blood on the officer was Defendant\u2019s own blood, not the officer\u2019s.\n{7} With these facts in mind we turn to the analysis in this case.\nDISCUSSION\nDouble Jeopardy\n{8} We generally apply a de novo standard of review to the constitutional question of whether there has been a double jeopardy violation. State v. Andazola, 2003-NMCA-146, \u00b6 14, 134 N.M. 710, 82 P.3d 77. There are two types of double jeopardy cases involving potential multiple punishment: (1) when a defendant is charged with multiple violations of the same statute based on a single course of conduct, referred to as \u201cunit of prosecution\u201d cases, and (2) when a defendant is charged with violations of multiple statutes for the same conduct, referred to as \u201cdouble description\u201d cases. State v. DeGraff, 2006-NMSC-011, \u00b6 25, 139 N.M. 211, 131 P.3d 61. This is a double description case.\n{9} In a double description ease, we first ask whether the conduct underlying the offenses is unitary. State v. LeFebre, 2001-NMCA-009, \u00b6 16, 130 N.M. 130, 19 P.3d 825. If it is, then we ask whether the legislature intended to impose multiple punishment for the unitary conduct. Id. To determine whether conduct is unitary, we consider whether the defendant\u2019s acts are separated by sufficient \u201cindicia of distinctness.\u201d Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991). Indicia of distinctness are present when \u201ctwo events are sufficiently separated by either time or space (in the sense of physical distance between the places where the acts occurred).\u201d Id. at 13-14, 810 P.2d at 1233-34. \u201cConduct is unitary if it is not sufficiently separated by time or place, and the object and result or quality and nature of the acts cannot be distinguished.\u201d LeFebre, 2001-NMCA-009, \u00b6 17, 130 N.M. 130, 19 P.3d 825. If time and space considerations are not determinative, \u201cresort must be had to the quality and nature of the acts or to the objects and results involved.\u201d Id.; see State v. Barrera, 2001-NMSC-014, \u00b6 36, 130 N.M. 227, 22 P.3d 1177 (stating that \u201c[djistinctness may also be established by the existence of an intervening event, the defendant\u2019s intent as fvinced by his or her conduct and utterances, the number of victims, and the behavior of the defendant between acts\u201d (internal quotation marks and citation omitted)). Movement or relocation of a victim tends to establish that acts involved in a continuous criminal episode are separate and distinct. See Herron v. State, 111 N.M. 357, 361-62, 805 P.2d 624, 628-29 (1991).\n{10} Applying these factors, we conclude that Defendant\u2019s conduct was not unitary. The facts indicate that Defendant\u2019s act of fleeing was punctuated by a distinct change in character and quality when he stopped fleeing, turned toward the officer in an attack posture, came back to the officer, and punched him twice in the face, drawing blood. We recognize that the Double Jeopardy Clause is not fragile, and it cannot be avoided by the simple expedient of dividing conduct into a series of temporal and spatial units. State v. Frazier, 2007-NMSC-032, \u00b6 23, 142 N.M. 120, 164 P.3d 1; see LeFebre, 2001-NMCA-009, \u00b6\u00b6 17-18, 130 N.M. 130, 19 P.3d 825 (holding that where a defendant attempted to escape officers in his car and then on foot, the defendant\u2019s conduct was unitary because it all constituted an attempt to get away). However, in this case, we conclude that Defendant\u2019s conduct in returning to the officer and punching him in the face constituted a change from his act of fleeing sufficient to determine that the two offenses were not unitary. Additionally, at the time Defendant stopped fleeing and physically attacked the officer, Defendant\u2019s purpose changed from simply trying to escape into physical violence directed at the officer. These facts support our conclusion that \u201cthe quality and nature of the individual acts,\u201d and \u201cthe objectives and results\u201d involved, changed significantly and support our conclusion that the battery on the officer and the protracted chase were not unitary. See Barrera, 2001-NMSC-014, \u00b6 36, 130 N.M. 227, 22 P.3d 1177 (noting that change in behavior and intent can support separate crimes); State v. Stewart, 2005-NMCA-126, \u00b6 25, 138 N.M. 500, 122 P.3d 1269 (holding that, where the evidence demonstrated that punching a child in the chest was sufficiently distinct from another act of violence toward the child, the punch and the other acts of violence were distinct acts); cf. State v. Contreras, 2007-NMCA-045, \u00b6\u00b6 22-23, 141 N.M. 434, 156 P.3d 725 (holding that where the defendant separated cocaine, sold some to the undercover officer, and retained some for himself, the defendant\u2019s conduct was not unitary and supported convictions for selling cocaine and for possession of cocaine), cert. quashed, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d 764. Consequently, separate punishments for battery on a peace officer and resisting an officer under the circumstances of this case do not violate double jeopardy. See Frazier, 2007-NMSC-032, \u00b6 18, 142 N.M. 120, 164 P.3d 1 (holding that if conduct is not unitary, then a defendant may be convicted of multiple crimes); Stewart, 2005-NMCA-126, \u00b6 23, 138 N.M. 500, 122 P.3d 1269 (stating that if the conduct is separate and distinct, the inquiry is at an end).\n{11} Defendant relies on State v. Ford, 2007-NMCA-052, \u00b6\u00b6 12-23, 141 N.M. 512, 157 P.3d 77, in which we held that where a defendant chest-butted and kicked an officer in the leg while being arrested and handcuffed, he could only be convicted of battery on an officer. We hold that Ford is distinguishable. There, we considered the acts of resistance and battery to be \u201csimilar.\u201d Id. \u00b6 14. In Ford, we also considered that little time elapsed between events. See id. (quoting testimony that \u201c \u2018[e]verything happened so fast\u2019 \u201d).\n{12} Here, in contrast, we do not consider Defendant\u2019s acts of resistance and battery to be similar. Kicking an officer in the leg while being arrested and handcuffed, as occurred in Ford, is significantly different in quality and nature from what we have here: Defendant engaged in protracted fleeing and then stopped, changed course, physically confronted the officer, and attacked the officer by punching him twice in the face. Moreover, while the contact in Ford can arguably be characterized as incidental contact during an arrest and part of the struggle that constituted the resisting of that arrest, the conduct here cannot be similarly characterized. In our view, Defendant\u2019s conduct in returning to strike the officer in the face is significantly different from Defendant\u2019s resistance, and therefore Defendant\u2019s conduct is not unitary. Further, the protracted nature of Defendant\u2019s resistance also distinguishes this case from Ford.\n{13} For all of these reasons, we conclude that Defendant\u2019s conduct was not unitary. Because we hold that Defendant\u2019s acts did not constitute unitary conduct, we need not address the legislature\u2019s intent. See Frazier, 2007-NMSC-032, \u00b6 18, 142 N.M. 120, 164 P.3d 1 (holding that if conduct is not unitary, then a defendant may be convicted of multiple crimes); Stewart, 2005-NMCA-126, \u00b6 23, 138 N.M. 500, 122 P.3d 1269 (stating that if the conduct is separate and distinct, the inquiry is at an end). Accordingly, we hold that, on these facts, double jeopardy is not violated by convictions for battery on a peace officer and for resisting an officer.\nSufficiency of Evidence\n{14} Defendant contends there is insufficient evidence to support his conviction for battery on a peace officer. A review for sufficiency of the evidence involves a two-step process. Initially, the evidence is viewed in the light most favorable to the verdict. Then the appellate court must make a legal determination of \u201cwhether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.\u201d State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation omitted).\n{15} The evidence we have discussed adequately supports a conclusion that Defendant knowingly battered a police officer. Defendant relies on his own testimony that he did not strike the officer, on his unsupported conclusion that if he had struck the officer, the ring Defendant was wearing would have inflicted far more damage, and on his assertion that blood on the officer\u2019s face was Defendant\u2019s blood, not the officer\u2019s. The jury was free to reject Defendant\u2019s testimony, see State v. Rojo, 1999-NMSC-001, \u00b6 19, 126 N.M. 438, 971 P.2d 829, particularly in light of the evidence that the injury to the officer\u2019s face was in the shape of Defendant\u2019s ring.\nCONCLUSION\n{16} For all of these reasons, we hold that double jeopardy was not violated and that the evidence is sufficient to support Defendant\u2019s convictions. We affirm.\n{17} IT IS SO ORDERED.\nWE CONCUR: JONATHAN B. SUTIN, Chief Judge and RODERICK T. KENNEDY, Judge.", "type": "majority", "author": "PICKARD, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.", "John Bigelow, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2008-NMCA-111\n191 P.3d 563\nSTATE of New Mexico, Plaintiff-Appellee, v. Oscar Cruz LOPEZ, Defendant-Appellant.\nNo. 27,143.\nCourt of Appeals of New Mexico.\nJune 5, 2008.\nCertiorari Denied, No. 31,183, July 18, 2008.\nGary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.\nJohn Bigelow, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0705-01", "first_page_order": 737, "last_page_order": 741 }