State v. Ortiz

• Decision Date: 19 September 2016
• Docket Number: 34,017
• Parties: State of New Mexico, Plaintiff–Appellee, v. Omar Ortiz, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

387 P.3d 323

State of New Mexico, Plaintiff–Appellee,

v.Omar Ortiz, Defendant–Appellant.

34,017

Court of Appeals of New Mexico.

Filing Date: September 19, 2016

Certiorari Denied, November 14, 2016, No. S-1-SC-36150

Hector H. Balderas, Attorney General, Santa Fe, NM, Charles J. Gutierrez, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

KENNEDY, Judge.

I. INTRODUCTION

{1} Defendant was charged with concealing his identity and attempting to disarm a peace officer. The district court convicted him of both charges in a bench trial. Defendant appeals, arguing that the evidence produced at trial was insufficient to support a guilty verdict beyond a reasonable doubt with respect to each element of each charge. We conclude that the evidence was sufficient to support Defendant's convictions, and we affirm.

II. BACKGROUND

{2} Officer Standridge was dispatched to the Grand Motor Inn in Deming, New Mexico at approximately 6:00 a.m. When she arrived on the scene, she observed Defendant "jumping back and forth over the fence" of a nearby auto center. She testified that such behavior was "pretty suspicious in the area for that hour of the day." She approached Defendant and informed him that she was investigating reports of a male subject acting suspiciously. She then asked for Defendant's name and identification, which Defendant declined to give. Officer Standridge conducted a pat-down of Defendant, during which she discovered a temporary paper ID card issued by the state of New Mexico in his pocket.¹ Throughout Officer Standridge's encounter with Defendant, his behavior was "bizarre," and he kept trying to pull away from her. Officer Standridge then placed Defendant in the back of her patrol car and took him to the Deming Police Department.

{3} Officer Robert Chavez came into contact with Defendant at the Deming Police Department when Defendant began hitting his head against the wall and door of the holding cell. Defendant did not heed orders to stop this behavior, and he eventually developed a large, bleeding lump on his head. When several officers entered the holding cell to prevent him from causing any more injury to himself, Defendant became aggressive toward the officers, and he was subdued only after he was tasered and restrained by multiple officers.

{4} Officer Chavez, accompanied by an officer trainee, then took Defendant to the hospital to address Defendant's injuries. Defendant was transported in the back seat of Officer Chavez's patrol car with his hands handcuffed behind his back. The clear partition separating the front seat from the back seat was open to allow air to flow from the front seat to the back seat. Officer Chavez's shotgun lock had been removed after causing an electrical fire in his patrol car. Officer Chavez had his shotgun, which was not locked in place, propped up against the seat so that the barrel of the shotgun was visible and accessible to Defendant in the back seat through the partition.

{5} When they arrived at the hospital, the officer in training exited the patrol car and went to remove Defendant from the back seat. The officer in training yelled out to Officer Chavez stating, "he has your gun!" At that point, Officer Chavez exited the car. He observed Defendant grasping the barrel of Officer Chavez's shotgun through the open partition with both hands—while both hands were still handcuffed behind Defendant's back—and attempting to pull it through the partition. The officers struggled with Defendant, ultimately removing the gun from his hands, extracting him from the car, and taking him into the hospital.

{6} Defendant was charged with concealing identity contrary to NMSA 1978, Section 30–22–3 (1963),² as well as attempting to commit the felony of disarming a peace officer contrary to NMSA 1978, Section 30–22–27(A)(1) (1997) and NMSA 1978, Section 30–28–1 (1963). The district court held a bench trial on August 2, 2013. At the close of the State's case, Defendant moved for a directed verdict on the grounds that the State did not proffer evidence sufficient to sustain a conviction for attempting to disarm a peace officer. In response, the State acknowledged that Section 30–22–27(A)(1) was inapplicable, but maintained that the evidence was sufficient to sustain a conviction under Section 30–22–27(A)(2). Later in this opinion we discuss the difference between these two sections.

{7} Noting that it was clear that Officer Chavez was acting in the scope of his duties and that the shotgun was intended for Officer Chavez's use, the district court found that Defendant was "going after" the shotgun through the open partition. Accordingly, the district court denied Defendant's motion for directed verdict. Defendant then testified on his own behalf. During his testimony, Defendant admitted that he was under the influence of alcohol and methamphetamine when he encountered Officers Standridge and Chavez. Defendant nonetheless claimed that he remembered giving Officer Standridge his name and informing Officer Standridge that he had only a temporary paper copy of his identification. Defendant also claimed that he never requested to be taken to the hospital and that he never wanted to be transported to the hospital. Because of this reluctance to go to the hospital, Defendant claimed that he grabbed on to anything that he could reach in order to try and prevent the officers from removing him from the patrol car. Defendant insisted that he was not trying to use the shotgun against anyone and insinuated that at the time of the incident, he was not actually aware that what he was grabbing on to was a shotgun.

{8} During closing arguments, both parties argued the merits of the concealing identity charge as well as whether the evidence proffered was sufficient to sustain a conviction under Section 30–22–27(A)(2). The parties argued for two opposing sets of facts. The State argued that Defendant gave no identification and intended to grab the shotgun thereby depriving Officer Chavez of its use. Defendant insisted that he gave his identification when asked and that he did not have the requisite intent to deprive Officer Chavez of the use of the shotgun when he grabbed it. The district court acknowledged the conflicting evidence. It discounted Defendant's testimony due to his intoxication and found Defendant guilty of concealing his identity. With regard to the attempt to disarm a police officer charge, the district court noted that it was appalled by the fact that Defendant was transported in a unit in which the partition was open and the shotgun was unsecured and acknowledged that once Defendant laid hands on the shotgun, "that changed the picture entirely." The district court held that, whether Defendant availed himself of the opportunity to grab the gun in order to prevent removal from the car or for other reasons, the State proved beyond a reasonable doubt that Defendant attempted to remove the shotgun from its place in the front seat, thereby depriving Officer Chavez of its use. Thus, the district court found Defendant guilty of attempting to disarm a police officer under Section 30–22–27(A)(2). Defendant appealed.

III. DISCUSSION

A. Standard of Review

{9} On appeal, Defendant challenges the sufficiency of evidence in support of his convictions. Whether evidence is sufficient to support a verdict requires an inquiry into whether direct or circumstantial evidence exists "to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Sutphin , 1988–NMSC–031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. "In reviewing whether there was sufficient evidence to support a conviction, we resolve all disputed facts in favor of the State, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary." State v. Smith , 2016–NMSC–007, ¶ 19, 367 P.3d 420 (internal quotation marks and citation omitted).

B. Concealing Identity

{10} Defendant was convicted of concealing his identity contrary to Section 30–22–3. Section 30–22–3 requires proof of three elements: (1) the defendant concealed his name or identity, (2) with intent to obstruct, hinder, interrupt, or intimidate, (3) any public officer or person acting in legal performance of his duty.

1. Officer Standridge's Legal Performance of Duty

{11} Defendant argues on appeal that we must look to whether Officer Standridge had reasonable suspicion that Defendant had committed or was about to commit a crime in order to determine whether sufficient evidence establishes that Officer Standridge was engaged in "a legal performance of [her] duty." Section 30–22–3. The State suggests that Defendant's argument in this regard actually raises an unpreserved Fourth Amendment issue that we should not address on appeal.

{12} An officer detaining a suspect for the purpose of requiring him to identify himself, has conducted a seizure subject to the requirements of the Fourth Amendment. Brown v. Texas , 443 U.S. 47, 50–52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) ("In the absence of any basis for suspecting [the defendant] of misconduct, the balance between the public interest and [the defendant]'s right to personal security and privacy tilts in favor of freedom from police interference."). Without reasonable suspicion, the officer would have no legal authority to detain the defendant for questioning. See State v. Gutierrez , 2007–NMSC–033, ¶ 29, 142 N.M. 1, 162 P.3d 156 (citing Florida v. Royer , 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion)); see also State v. Dawson , 1999–NMCA–072, ¶ 21, 127 N.M. 472, 983 P.2d 421 (concluding that unless there is reasonable suspicion to believe the defendant was involved in criminal activity, it violates the Fourth Amendment to require the defendant to produce identification). We therefore agree with Defendant...