June 23, 2022- State of New Mexico v. Kentoine Jwayne Penman, No. A-1-CA-39025

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: June 23, 2022	3
No. A-1-CA-39025	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
KENTOINE JWAYNE PENMAN,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	10
Mark Terrence Sanchez, District Judge	11
Hector H. Balderas, Attorney General	12
Maris Veidemanis, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Kennedy Kennedy & Ives	16
Joseph P. Kennedy	17
Laura Schauer Ives	18
Albuquerque, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 6/23/2022 1:26 PM

OPINION	1
MEDINA, Judge.	2
{1} 	Defendant Kentoine Penman entered a conditional plea of no contest to two	3
counts of possession of a controlled substance (NMSA 1978, § 30-31-23(A) (2011,	4
amended 2021)); one count of battery upon a peace officer (NMSA 1978, § 30-22-	5
24 (1971)); one count of assault on a peace officer (NMSA 1978, § 30-22-21(A)(1)	6
(1971)); one count of resisting, evading or obstructing an officer (NMSA 1978, § 30-	7
22-1(D) (1981)); one count of pedestrians on roadways (NMSA 1978, § 66-7-339	8
(1978, amended 2018)); and one count of possession of marijuana (Section 30-31-	9
23(B)(1)). Defendant reserved the right to appeal the denial of two pretrial motions	10
(1) to dismiss the criminal information, pursuant to State v. Foulenfont, 1995-	11
NMCA-028, 119 N.M. 788, 895 P.2d 1329 (Foulentfont Motion), and to suppress	12
all evidence and statements obtained as a result of an unlawful seizure; and (2) to	13
suppress all evidence and testimony obtained in violation of the Fourth Amendment	14
of the United States Constitution and Article II, Section 10 of the New Mexico	15
Constitution, pursuant to State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d	16
143 (Ochoa Motion). We reverse the denial of the motion to dismiss as to the count	17
of the pedestrians on roadways charge, but affirm the denial of the counts of battery,	18
assault, and resisting, evading or obstructing an officer charges. We also affirm the	19
district court’s denial of Defendant’s Ochoa Motion , holding that under the new	20

2
crime exception, evidence of the battery; assault; resisting, evading or obstructing	1
an officer; controlled substances; and marijuana charges are admissible.	2
BACKGROUND	3
{2} 	The following facts are based on testimony presented during an evidentiary	4
hearing on Defendant’s State v. Ware, 1994-NMSC-091, 118 N.M. 319, 881 P.2d	5
679 (Ware Motion), and Foulenfont motions, and the statement of probable cause	6
supporting 	the 	criminal 	complaint. 	On 	an 	evening 	in 	June 	2018 	following	7
completion of a traffic stop in a residential neighborhood, Hobbs Police Department	8
Officers Jaimes, Martinez, and Gastelum drove further down the street from that	9
traffic stop with their emergency lights activated, in order to detain and question two	10
men, one of whom was Defendant, who were standing in the middle of the street. As	11
the officers approached in their vehicles, the two men walked back toward the	12
sidewalk. Once there, Officer Jaimes questioned Defendant on the sidewalk near	13
where he was standing in the road.	14
{3} 	Although Officer Jaimes had not seen the men walking on or along the road,	15
he testified that he had “reasonable suspicion to believe that at some point [the two	16
men] walked and got in the middle of the road” and that “[s]tanding in the middle of	17
the road was good enough” to detain and investigate the two men for violating the	18
pedestrians on roadways statute. See § 66-7-339(A) (“Where sidewalks are provided	19

3
it shall be unlawful for any pedestrian to walk along and upon an adjacent	1
roadway.”).1
2
{4} 	Officer Jaimes asked Defendant for his identification during the stop and then	3
communicated with a dispatch officer in order to ascertain whether Defendant had	4
any outstanding warrants. Officer Jaimes explained that his standard operating	5
procedure is to not cite individuals for violating Section 66-7-339 if they are “polite,”	6
but he will cite them if he discovers they have previously been warned. While Officer	7
Jaimes spoke with Defendant, Officer Martinez interacted with a group of people	8
who were standing nearby, and Officer Gastelum investigated the second man who	9
was seen standing in the middle of the street for a violation of Section 66-7-339.	10
{5} 	Shamus Wright, an onlooker (and the defendant in a related case, City of	11
Hobbs v. Wright, A-1-CA-39028, mem. op. (N.M. Ct. App. Feb. 16, 2022)	12
(nonprecedential)), verbally objected to Officer Jaimes’s investigation of Defendant,	13
causing Officers Martinez and Gastelum to focus on Mr. Wright. Soon thereafter,	14
Officer Jaimes told Defendant to “hang on,” and walked away from Defendant to	15
1Although both parties cite the 2018 version of Section 66-7-339, Defendant’s
June 2018 offenses predated the July 1, 2018, effective date of the 2018 amendment
to the statute. Therefore, references in this opinion to Section 66-7-339 refer to the
1978 version of the statute unless stated otherwise. See State v. Figueroa, 2020-
NMCA-007, ¶ 8, 457 P.3d 983 (“[T]he law in effect at the time a criminal offense is
committed is controlling.”).

4
assist in the arrest of Mr. Wright. Officer Jaimes did not recall if he had given	1
Defendant his identification back when he left to assist in the arrest.	2
{6} 	Defendant did not remain where Officer Jaimes left him, but instead walked	3
toward the officers and began filming the arrest of Mr. Wright on his phone.	4
Defendant was standing less than two to three feet away from the officers when	5
Officer Jaimes ordered Defendant to step back in order to increase the space between	6
Defendant and Officer Martinez. Although not immediately, Defendant ultimately	7
complied with the order, but then circled around Officer Jaimes and continued	8
filming as Officer Martinez placed Mr. Wright in his patrol vehicle. At this time,	9
Defendant was approximately four to five feet behind Officer Martinez. Officer	10
Martinez told Defendant that he was placing him under arrest because “he was	11
already told once to back away.”	12
{7} 	Officer Martinez attempted to grab Defendant by the wrist to arrest him, but	13
Defendant 	pushed Officer Martinez away and 	fled. Officer Martinez chased	14
Defendant and physically forced Defendant to stop. Interpreting Defendant’s stance	15
as an act of aggression, Officer Martinez tackled Defendant to the ground and placed	16
him under arrest.	17
{8} 	A baggy containing a white powdery substance was found where Defendant	18
was arrested, and baggies containing a green leafy substance and a white crystalline	19
substance were found in the patrol vehicle where Defendant was placed. The	20

5
contents 	of 	the 	baggies 	tested 	positive 	for 	cocaine, 	marijuana, 	and	1
methamphetamine, respectively. Defendant admitted the cocaine and marijuana	2
were his, but denied possession of the methamphetamine.	3
{9} 	Defendant was charged with two counts of possession of a controlled	4
substance; one count of battery upon a peace officer; one count of assault upon a	5
peace officer; one count of resisting, evading or obstructing an officer; one count of	6
pedestrians on roadways; and one count of possession of marijuana.	7
{10} 	Defendant moved to dismiss the criminal information, in which he argued that	8
the pedestrians on roadways; battery upon a peace officer; assault upon a peace	9
officer; and resisting, evading or obstructing an officer charges were subject to	10
dismissal under Foulenfont. Defendant additionally argued that all evidence and	11
statements flowing from the stop should be suppressed because Officer Jaimes	12
lacked reasonable suspicion to investigate him for violating Section 66-7-339.	13
Defendant also moved to suppress all evidence under Ware because of the lack of	14
lapel camera footage. The State responded that dismissal under Foulenfont would be	15
inappropriate because the evaluation of the stop was not a purely legal question, but	16
instead involved questions of fact. The State argued in addition that the investigatory	17
stop was supported by reasonable suspicion, and if not, given “Defendant’s use of	18
force against [Officer Martinez],” evidence of Defendant’s drug offenses, battery,	19
assault, and resisting, evading or obstructing an officer charges were admissible	20

6
under the new crime exception to the exclusionary rule citing State v. Tapia, 2018-	1
NMSC-017, ¶ 50, 414 P.3d 332. Defendant did not file a written reply responding to	2
the State’s new crime exception argument.	3
{11} 	The district court held an evidentiary hearing on the Foulenfont and Ware	4
motions. At the close of evidence, Defendant argued that the officers were not acting	5
in the lawful discharge of their duties because they lacked reasonable suspicion to	6
believe Defendant violated Section 66-7-339. The State argued the officers had	7
reasonable suspicion and reiterated that if the court found the officers lacked	8
reasonable suspicion, the evidence of Defendant’s crimes, not including pedestrians	9
on roadways, should be admitted under the new crime exception because the facts	10
of the case were sufficient to satisfy the attenuation doctrine factors. Defendant did	11
not address the State’s new crime exception argument. The district court announced	12
that it would deny the Ware and Foulenfont motions and set a deadline for the parties	13
to file requested findings of fact and conclusions of law. Although the State timely	14
filed requested findings of fact and conclusions of law as to both motions, Defendant	15
did not do so. The district court then entered findings of fact and conclusions of law	16
for Defendant’s Foulenfont and Ware motions. The following day Defendant	17
untimely filed proposed findings of facts and conclusions of law.	18
{12} 	Defendant next moved to suppress all evidence under Ochoa, arguing that the	19
initial stop was pretextual. Defendant argued first that Officer Jaimes lacked	20

7
reasonable suspicion to stop Defendant; and second that the stop was pretextual	1
because (1) the purpose of the stop was “to run random wants and warrants checks	2
on people living in the area”; (2) Defendant was ultimately charged with offenses	3
unrelated to the stop; (3) the officers failed to follow proper body camera procedures;	4
and (4) there was no actual threat to traffic safety. The district court summarily	5
denied Defendant’s Ochoa Motion, finding that the motion was “not well taken and	6
should be denied.” Five months after the denial of Defendant’s Ochoa Motion,	7
Defendant filed an offer of evidentiary proof regarding racial demographics and	8
pedestrians on roadways stops over a two-year period in Hobbs, as well as excerpts	9
from a deposition taken of a fellow Hobbs police officer regarding Officer Jaimes’s	10
police practices. With his offer of proof, Defendant did not renew or request the	11
district court to reconsider the denial of his Ochoa Motion.	12
{13} 	Defendant then entered a conditional plea, and this appeal followed.	13
DISCUSSION	14
I. 	Defendant’s Motion to Dismiss Under Foulenfont	15
{14} 	Defendant contends the district court erred in denying his motion to dismiss	16
the charges of pedestrians on roadways; battery upon a peace officer; assault upon a	17
peace officer; and resisting, evading or obstructing an officer under Foulenfont. We	18
hold that the district court erred in denying Defendant’s motion to dismiss the	19

8
pedestrians on roadways charge, but affirm the district court as to Defendant’s	1
remaining charges.	2
{15} 	“In Foulenfont, we stated that it was proper for a district court to decide purely	3
legal matters and dismiss a case when appropriate before trial.” State v. LaPietra,	4
2010-NMCA-009, ¶ 7, 147 N.M. 569, 226 P.3d 668. “Questions of fact, however,	5
are the unique purview of the jury and, as such, should be decided by the jury alone.”	6
Id. A Foulenfont motion “may not be used to test the sufficiency of the [s]tate’s	7
evidence to establish the elements of the charged crime.” State v. Platero, 2017-	8
NMCA-083, ¶ 8, 406 P.3d 557. Instead, “the underlying question is whether the	9
undisputed facts—whether stipulated to by the state or alleged in the indictment or	10
information—show that the state cannot prove the elements of the charged offense	11
at trial, thereby making a trial on the merits unnecessary.” Id. ¶ 9 (alterations	12
omitted) (citing State v. Pacheco, 2017-NMCA-014, ¶ 10, 388 P.3d 307); see also	13
Rule 5-601(C) NMRA (“Any defense, objection or request which is capable of	14
determination without a trial on the merits may be raised before trial by motion.”).	15
Stated “[m]ore succinctly, [the question is] whether the state could reasonably assert	16
the availability of additional evidence.” Platero, 2017-NMCA-083, ¶ 9 (internal	17
quotation marks and citation omitted). Whether a district court properly grants or	18
denies a defendant’s motion to dismiss under Foulenfont presents a question of law	19
that we review de novo. State v. Winn, 2019-NMCA-011, ¶ 9, 435 P.3d 1247.	20

9
{16} 	We first address whether Defendant was entitled to pretrial dismissal of his	1
pedestrians on roadways charge and, relatedly, whether the officer had reasonable	2
suspicion to stop and investigate Defendant for this offense. We then address	3
whether Defendant was entitled to pretrial dismissal of his battery, assault, and	4
resisting, evading or obstructing an officer charges.	5
A. 	Pedestrians on Roadways	6
{17} 	Defendant contends he was entitled to dismissal of his pedestrians on	7
roadways charge because (1) the plain language of Section 66-7-339(A) requires a	8
pedestrian to walk “along and upon an adjacent roadway” to a sidewalk, and merely	9
standing in the middle of a residential street without more, as a matter of law, was	10
insufficient to establish a violation of Section 66-7-339; and (2) “[a]ny other	11
reasonable officer . . . would not have asserted reasonable suspicion that [Defendant]	12
was doing anything wrong by standing in [the middle of the] residential street.” The	13
State responds that (1) the purpose of Section 66-7-339 is “to prohibit pedestrians	14
from being in the middle of the street where they could impede traffic and thereby	15
endanger themselves and drivers”; (2) whether a person is standing or walking in the	16
street is irrelevant; (3) “in any event [the officer] could reasonably infer that	17
Defendant walked into the road”; and (4) Defendant’s interpretation of the statute	18
would lead to an absurd result. Defendant replies that the statute does not intend to	19
criminalize standing in a roadway based on the plain language of Section 66-7-339	20

10
and that the Motor Vehicle Code contemplates a lawful use of roadways by	1
pedestrians.	2
{18} 	Defendant’s argument that standing in the middle of a residential street	3
without evidence of walking along the street, as a matter of law, was insufficient to	4
establish a violation of Section 66-7-339 involves an issue of statutory interpretation.	5
Issues of statutory interpretation are issues of law that we review de novo. State v.	6
Holt, 2016-NMSC-011, ¶ 9, 368 P.3d 409. “The plain language of the statute is the	7
primary indicator of legislative intent, so we look first to the words the Legislature	8
used and their ordinary meaning.” State v. Gutierrez, 2007-NMSC-033, ¶ 30, 142	9
N.M. 1, 162 P.3d 156. “Under the plain meaning rule, when a statute’s language is	10
clear and unambiguous, we will give effect to the language and refrain from further	11
statutory interpretation.” State v. Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206	12
P.3d 579 (internal quotation marks and citation omitted). In applying the plain	13
meaning rule, we additionally consider the “context surrounding a particular statute,	14
such as its history, its apparent object, and other [related] statutes.” State v. Cleve,	15
1999-NMSC-017, ¶ 8, 127 N.M. 240, 980 P.2d 23.	16
{19} 	Section 66-7-339 states:	17
A. 	Where sidewalks are provided it shall be unlawful for any	18
pedestrian to walk along and upon an adjacent roadway.	19
B. 	Where sidewalks are not provided any pedestrian walking along	20
and upon a highway shall when practicable walk only on the left side	21

11
of the roadway or its shoulder facing traffic which may approach from	1
the opposite direction.	2
{20} 	The plain language of Subsection (A) prohibits pedestrians from “walk[ing]”	3
along a roadway where sidewalks are provided, and does not include the word	4
“standing.” In addition the term “walk” is modified by the term “along,” meaning	5
“in a line parallel with the length or direction.” Webster’s Third New Int’l Dictionary	6
(2002); see State v. Boyse, 2013-NMSC-024, ¶ 9, 303 P.3d 830 (recognizing that we	7
use the dictionary for guidance when determining the plain meaning of statutory	8
language). Reading Subsection (A) together with Subsection (B), which requires a	9
pedestrian, in the absence of sidewalks, to walk along the left side of the roadway or	10
its shoulder facing traffic when practicable, we conclude that Section 66-7-339(A)	11
prohibits the act of walking “along and upon an adjacent roadway” when sidewalks	12
are provided. As such, we find the State’s argument that whether Defendant was	13
“walking” or “standing” is irrelevant under the statute unpersuasive.	14
{21} 	Furthermore, construing the statute to prohibit standing in the middle of the	15
roadway, as urged by the State, would require this Court to read language into	16
Subsection (A) that is not there, and ignore the explicit prohibition of “walking along	17
and upon,” neither of which we will do. See State v. Trujillo, 2009-NMSC-012, ¶ 11,	18
146 N.M. 14, 206 P.3d 125 (“We will not read into a statute any words that are not	19
there, particularly when the statute is complete and makes sense as written.”); see	20
also State v. Montoya, 2015-NMSC-010, ¶ 66, 345 P.3d 1056 (noting that “a statute	21

12
must be construed so that no part of the statute is rendered surplusage or superfluous”	1
(alteration, internal quotation marks, and citation omitted)).	2
{22} 	To the extent the State also argues that the purpose of Section 66-7-339 is “to	3
prohibit pedestrians from being in the middle of the street where they could impede	4
traffic and thereby endanger themselves and drivers,” we note that Officer Jaimes	5
testified there was no other traffic in the area other than the vehicle he had previously	6
stopped. And although we agree that a general purpose of the statute is safety, we do	7
not agree that the Legislature intended for anyone who is observed standing in the	8
middle of the roadway; however briefly, for any possible reason, to be subject to	9
punishment under the statute. Such an interpretation fails when “viewed under the	10
lens of practicality” and when the statute clearly identifies that the conduct subject	11
to penalty—walking along and upon an adjacent roadway when a sidewalk is	12
otherwise available for that purpose. State v. Goodman, 2017-NMCA-010, ¶ 15, 389	13
P.3d 311. As this case illustrates, such an interpretation would be absurd given that	14
Section 66-7-339 and other statutes included in the Motor Vehicle Code contemplate	15
lawful use of roadways by pedestrians, including pedestrians crossing a roadway at	16
points other than marked crosswalks. See, e.g., NMSA 1978, § 66-7-333(A) (1978)	17
(stating that “[p]edestrians shall be subject to traffic-control signals at intersections”	18
and “at all other places pedestrians shall be accorded the privileges and shall be	19
subject to the restrictions stated in [Sections] 66-7-333 [to] . . . -340 [(1978, as	20

13
amended through 2018)]”); § 66-7-335(A) (requiring pedestrians to yield the right	1
of way to vehicles on the roadway while crossing at any point other than within a	2
marked crosswalk); § 66-7-337 (stating drivers must exercise due care to avoid	3
accidents with any pedestrian on a roadway).	4
{23} 	We, therefore, hold that the elements the State must show to prove a violation	5
of Section 66-7-339(A) are (1) defendant was walking along and upon an adjacent	6
roadway; and (2) a sidewalk was provided. We now apply Section 66-7-339(A) to	7
the facts of this case.	8
1. 	Defendant Was Entitled to Pretrial Dismissal of His Pedestrians on	9
Roadways Charge	10
{24} 	In reviewing rulings on motions to dismiss under Foulenfont, we look to the	11
facts as alleged in the indictment and presented at the pretrial hearing to determine	12
if the State could not prove these elements, making a trial unnecessary. See Platero,	13
2017-NMCA-083, ¶ 11. Officer Jaimes testified at the preliminary hearing and	14
reaffirmed during the later evidentiary hearing that he did not see Defendant walking	15
on the road. Rather, he testified that Defendant was only standing. And in the	16
proceedings below and on appeal, the State does not contest that the officers did not	17
see Defendant walking along the road. Instead, the State asserts that the officer	18
“could reasonably infer that Defendant walked into the road” and that showing	19
Defendant was walking is unnecessary.	20

14
{25} 	As discussed above, Section 66-7-339(A) makes it unlawful for a defendant	1
to 	walk along and upon 	an adjacent roadway when a sidewalk is provided.	2
Testimony at both the preliminary hearing and at the later evidentiary hearing	3
indicates no officer observed Defendant walking along and upon the road when	4
Officer Jaimes stopped him. In light of the uncontradicted facts presented, the State	5
is unable to show as a matter of law that Defendant violated Section 66-7-339(A),	6
and a trial was unnecessary. See Platero, 2017-NMCA-083, ¶ 11. We, therefore,	7
reverse the district court’s denial of Defendant’s motion to dismiss the pedestrians	8
on roadways charge under Foulenfont.2
9
2. 	The 	Officer 	Lacked 	Reasonable 	Suspicion 	to 	Stop 	and 	Investigate	10
Defendant	11
{26} 	Despite having reversed the district court as to Defendant’s pedestrians on	12
roadways charge under Foulenfont, we address Defendant’s contention that the	13
officers’ observation of Defendant standing in the middle of the road without more	14
did not amount to reasonable suspicion that he was or had been violating Section 66-	15
7-339(A). We do so as it is relevant to our later analysis of the district court’s denial	16
of Defendant’s motion to suppress under Ochoa.	17
2Because we conclude the district court erred in denying Defendant’s motion
to dismiss the pedestrians on roadways charge under the language of the statute, we
do 	not 	reach 	Defendant’s 	alternative 	contention 	that 	Section 	66-7-339(A) 	is
unconstitutionally vague or overbroad.

15
{27} 	Defendant contends Officer Jaimes lacked reasonable suspicion to stop and	1
investigate him for violating Section 66-7-339(A) because Officer Jaimes did not	2
see him walking in the street. “Questions of reasonable suspicion are reviewed de	3
novo by looking at the totality of the circumstances to determine whether the	4
detention was justified.” Hubble, 2009-NMSC-014, ¶ 5 (internal quotation marks	5
and citation omitted). “A reasonable suspicion is a particularized suspicion, based	6
on all the circumstances that a particular individual, the one detained, is breaking, or	7
has broken, the law.” Id. ¶ 8 (internal quotation marks and citation omitted). “We	8
will find reasonable suspicion if the officer is aware of specific articulable facts,	9
together with rational inferences from those facts, that, when judged objectively,	10
would lead a reasonable person to believe criminal activity occurred or was	11
occurring.” Id. (internal quotation marks and citation omitted).	12
{28} 	The State does not dispute that there was no testimony or evidence of	13
Defendant walking, and instead contends that “Officer Jaimes could reasonably infer	14
that Defendant walked into the road.” But, as we concluded above, the elements of	15
Section 66-7-339(A) are “walk[ing] along and upon an adjacent roadway” when	16
“sidewalks are provided.” Thus, the question is not whether Officer Jaimes had	17
reasonable suspicion to believe Defendant had walked into the road, but rather along	18
and upon the road.	19

16
{29} 	Our review of New Mexico law reveals that no case has addressed whether an	1
officer’s observation of a pedestrian standing in the middle of a road is sufficient to	2
provide reasonable suspicion to believe the pedestrian “walk[ed] along and upon”	3
the road in violation of Section 66-7-339. However, the Washington Court of	4
Appeals, in an unpublished opinion,3 recently rejected an argument that a Terry stop	5
was supported by reasonable suspicion of a pedestrian on the roadway, where the	6
pedestrian was standing in the middle of the road. See State v. J.Y.A.-V., 20 Wash.	7
App. 2d 1008, *5-6 (Wash. Ct. App. 2021) (unpublished) (rejecting the state’s	8
argument that the officer could reasonably expect the defendant “would have to	9
move at some point” when attempting to justify a stop under Wash. Rev. Code Ann.	10
Section 46.61.250 (2019, amended 2022),4 which is substantially similar to Section	11
66-7-339 when the officer testified that the defendant “was standing next to the	12
pickup truck, not that she was walking or otherwise moving along and upon a	13
highway” and “[t]here was no evidence to support a reasonable suspicion that [the	14
3Although it is not our practice to cite unpublished opinions, we are presented
with an issue of first impression and the cases cited in this section provide useful
factual examples of either the existence or absence of reasonable suspicion when
analyzing stops for violating pedestrians on roadways statutes. See, e.g., Gormley v.
Coca-Cola Enters., 2005-NMSC-003, ¶ 11 n.1, 137 N.M. 192, 109 P.3d 280.
4Wash. Rev. Code Ann. § 46.61.250(1) (“Where sidewalks are provided . . . it
is unlawful for any pedestrian to walk or otherwise move along and upon an adjacent
roadway.”).

17
defendant] was about to start walking down the prohibited right side of the	1
roadway”).	2
{30} 	And jurisdictions with similarly worded statutes 5 have found reasonable	3
suspicion or probable cause when there is evidence or testimony that a defendant	4
was walking or running in the street at the time of the stop. See, e.g., People v. Binet,	5
47 N.Y.S.3d 184, 184-85 (N.Y. App. Div. 2017) (affirming the trial court’s denial	6
of the defendant’s motion to suppress for lack of reasonable suspicion and	7
concluding the officers had reasonable suspicion to stop the defendant for violating	8
New York Vehicle and Traffic Law Section 1156 (pedestrians on roadway) because	9
the officers witnessed the defendant walking in the street); State v. Landers, No. A-	10
09-587, 2009 WL 6472978, at *1-3 (Neb. Ct. App. Dec. 8, 2009) (affirming the trial	11
court’s denial of the defendant’s motion to suppress finding that the officers had	12
probable cause to arrest the defendant for violating Neb. Rev. Stat. Section 60-6,	13
156(1) because the evidence showed the defendant walking in the middle of the	14
street when sidewalks were provided and reasonable suspicion that other criminal	15
activity was afoot); State v. Darling, No. 0607014245, 2007 WL 1784185, at *4, *7	16
5See, e.g., N.Y. Veh. & Traf. Law § 1156(a) (1959) (“Where sidewalks are
provided and they may be used with safety it shall be unlawful for any pedestrian to
walk along upon an adjacent roadway.”); Neb. Rev. Stat. § 60-6, 156(1) (1993)
(“Where a sidewalk is provided and its use is practicable, it shall be unlawful for any
pedestrian to walk along and upon an adjacent roadway or shoulder.”); Del. Code
Ann. tit. 21, § 4146(a) (2014) (“Where a sidewalk is provided and is accessible, it
shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.”).

18
(Del. Super. Ct. July 3, 2007) (order) (finding that the stop of the defendant was	1
constitutionally reasonable and denying the defendant’s motion to suppress because	2
the officer observed a clear violation of Del. Code Ann. tit. 21, Section 4146(c)	3
(similar to Section 66-7-339(B)) when the defendant walked eastbound in the	4
eastbound lane of the street).	5
{31} 	Here, as stated above, there was no testimony that Defendant was walking	6
along and upon the road when Officer Jaimes stopped him. Nor did Officer Jaimes	7
articulate any facts that would support a reasonable inference that Defendant had	8
walked along and upon the adjacent road prior to the officer’s arrival. Therefore, we	9
hold that Officer Jaimes lacked reasonable suspicion to stop Defendant for a	10
violation of Section 66-7-339.	11
B. 	Battery and Assault Upon a Peace Officer and Resisting, Evading or	12
Obstructing an Officer	13
{32} 	Defendant argues that the district court improperly denied his Foulenfont	14
Motion on the battery upon a peace officer, assault upon a peace officer, and	15
resisting, 	evading 	or 	obstructing 	an 	officer 	charges. 	Specifically, 	Defendant	16
maintains the officers were not acting in the lawful discharge of their duties and	17
lacked reasonable suspicion for the stop, and as such “there can be no charge of	18
resisting or obstructing an officer” or “[f]elony assault and felony battery charges.”	19
Defendant additionally contends the officers were not acting in the lawful discharge	20

19
of their duties because he did not resist the officers before the officers decided to	1
arrest him and he was “engaging in protected First Amendment activity.”6
2
{33} 	The statutes identifying the crimes of battery upon a peace officer, assault	3
upon a peace officer, and resisting, evading or obstructing an officer require, in	4
relevant part, that the officer be “in the lawful discharge of his duties” when the	5
crime is committed. See § 30-22-21(A)(1) (defining assault upon peace officer);	6
§ 30-22-24(A) 	(defining 	battery 	upon 	peace 	officer); 	§ 	30-22-1(D) 	(defining	7
resisting, evading or obstructing an officer).	8
{34} 	In analyzing whether an officer was acting within his or her lawful discharge	9
of duties, the question “is whether the officer was performing his or her official	10
duties.” State v. Nemeth, 2001-NMCA-029, ¶ 54, 130 N.M. 261, 23 P.3d 936	11
(internal quotation marks and citation omitted), overruled on other grounds by State	12
6Based upon Defendant’s Foulenfont Motion below and briefing on appeal,
we view Defendant’s First Amendment argument as part of the overall argument that
the officers were not in the lawful discharge of their duties, and we treat it as such.
To the extent Defendant intends to raise a unique First Amendment challenge on
appeal, the argument is both undeveloped and unpreserved. Defendant only states he
“was engaging in protected First Amendment activity” along with citations to three,
unexplained federal cases in support. “Defendant does little to develop this argument
in his briefing and therefore, we do not address it.” State v. Aguilar, 2019-NMSC-
017, ¶ 55, 451 P.3d 550 (declining to address the defendant’s double jeopardy
argument on appeal because appellate courts will not review unclear arguments or
guess what a party’s arguments might be). Furthermore, Defendant’s Foulenfont
Motion below did not make a First Amendment challenge. “We do not address issues
that were not raised below. The trial court must be alerted to the problem and given
an opportunity to resolve it.” State v. Salazar, 2006-NMCA-066, ¶ 9, 139 N.M. 603,
136 P.3d 1013.

20
v. Ryon, 2005-NMSC-005, ¶ 28, 137 N.M. 174, 108 P.3d 1032. 7 Whether the	1
officers are acting in the lawful discharge of their duties is a question of fact. See	2
State v. Mares, 1979-NMCA-049, ¶ 15, 92 N.M. 687, 594 P.2d 347 (holding that the	3
“trial court could not properly decide the question of lawfulness” and the trial court’s	4
“decision concerning lawfulness was error because it usurped the jury’s function to	5
decide the facts”). “When an issue involves a specific determination or finding,	6
especially when it is an element of the offense, it is a question that is within the	7
unique purview of the jury.” LaPietra, 2010-NMCA-009, ¶ 10. Even in instances	8
where a defendant’s seizure is determined to be unlawful, a jury could still find that	9
7To the extent Defendant relies on State v. Phillips, 2009-NMCA-021, ¶ 16,
145 N.M. 615, 203 P.3d 146, in which this Court stated that “whether an officer is
acting lawfully is measured by his actual legal authority, including common-law,
statutory, or constitutional limitations on the officer’s authority,” his reliance on
Phillips is misplaced because Phillips is not controlling authority. In Phillips, the
defendant argued he could not be convicted of battery upon a peace officer because
the officer lacked probable cause to detain him. Id. ¶ 9. This Court held that the
officer did have probable cause. Id. ¶ 23. Despite so holding, this Court engaged in
an extensive discussion on whether the defendant could be convicted of battery upon
a peace officer if the defendant was unlawfully arrested. See id. ¶¶ 10-19. This
discussion, on which Defendant relies, was not necessary to this Court’s decision
and was therefore dicta. See Ruggles v. Ruggles, 1993-NMSC-043, ¶ 22 n.8, 116
N.M. 52, 860 P.2d 182 (stating that language unnecessary to the decision of the
issues before the Court is dicta “no matter how deliberately or emphatically
phrased”). Furthermore, this Court’s discussion in 	Phillips 	is contrary to our
Supreme Court’s articulation of the meaning of “lawful discharge of his duties” in
State v. Doe, 1978-NMSC-072, ¶¶ 12-13, 15, 92 N.M. 100, 583 P.2d 464, which we
are bound to follow as controlling authority. See Aguilera v. Palm Harbor Homes,
Inc., 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (stating that the Court of
Appeals remains bound by our Supreme Court precedent).

21
the officers acted in the lawful discharge of their duties. See State v. Tapia, 2000-	1
NMCA-054, ¶ 16, 129 N.M. 209, 4 P.3d 37 (“[T]he fact that an arrest was unlawful	2
does not preclude a finding that an officer acted in the ‘lawful discharge’ of his	3
duties.”). Because the question of whether an officer was acting in the lawful	4
discharge of his or her duties is a question of fact, Defendant was not entitled to	5
dismissal of his remaining charges as a matter of law under Foulenfont. We,	6
therefore, affirm the district court’s denial of Defendant’s motion as to these charges.	7
II. 	Defendant’s Motion to Suppress All Evidence Under Ochoa	8
{35} 	Finally, Defendant argues that the district court improperly denied his motion	9
to suppress, contending Officer Jaimes lacked reasonable suspicion for the stop, and	10
that the district court erred in failing to hold an evidentiary hearing to determine	11
whether Officer Jaimes instigated the stop as a pretext to search for further criminal	12
activity, in violation of the United States Constitution, the New Mexico Constitution,	13
and Ochoa. The State responds that Defendant was not seized until arrest,8 and even	14
8 Although the State argues on appeal that Officer Jaimes did not seize
Defendant, the district court found that “[o]n that evening [D]efendant was in the
roadway, . . . he was detained and questioned by Officer Jaimes about his presence
in the roadway.” We have additionally held a similar set of facts constituted a
seizure. See State v. Soto, 2008-NMCA-032, ¶ 17, 143 N.M. 631, 179 P.3d 1239
(“With that show of authority [approaching the defendant in a police vehicle], a
reasonable person would not have felt free to decline to answer the officer’s
questions and request for identification, nor would a reasonable person have felt free
to [leave] while the officers held the person’s driver’s license to check for
outstanding warrants.”). As such, we do not address this argument further.

22
if Defendant was seized, Defendant’s physical altercation with Officer Martinez	1
constituted a new criminal act, therefore making the evidence admissible. “Appellate	2
review of a motion to suppress presents a mixed question of law and fact. We review	3
factual determinations for substantial evidence and legal determinations de novo.”	4
State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal quotation marks	5
and citation omitted).	6
{36} 	Ochoa provides a three-step approach the district court must follow when	7
determining whether a pretextual stop has occurred. First, the district court must	8
determine if there was reasonable suspicion or probable cause for the stop, and as	9
usual the state bears the burden of proof. Ochoa, 2009-NMCA-002, ¶ 40. Second, if	10
the stop can be “justified objectively on its face,” and the defendant continues to	11
assert that the stop was pretextual, the district court must decide whether the motive	12
for the stop was “unrelated to the objective existence of reasonable suspicion or	13
probable cause.” Id. (internal quotation marks and citation omitted). The defendant	14
bears the burden based upon the totality of the circumstances and must place	15
substantial facts in dispute. Id. Third, if the defendant places substantial facts in	16
dispute, there is a rebuttal presumption that the stop was pretextual, and the burden	17
shifts to the state to show that the officer would have stopped the defendant,	18
regardless. Id.	19

23
{37} 	At the outset, we observe that Ochoa involved a vehicle traffic stop and	1
specifically discussed pretextual stops in that context. See id. ¶¶ 4, 38. In addition,	2
no New Mexico case has decided that Ochoa applies to a pedestrian stop, and neither	3
party argues the applicability of Ochoa to pedestrian stops on appeal. Rather, both	4
parties assume that Ochoa applies. We conclude however, that we need not address	5
whether Ochoa applies because, assuming without deciding that Ochoa applies to	6
pedestrian stops, the evidence of Defendant’s battery, assault, and resisting, evading	7
or obstructing, controlled substances, and marijuana charges are admissible under	8
the new crime exception. As such, we affirm the district court as right for any reason.	9
See State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828 (holding	10
that the appellate court will affirm the district court’s decision if it is right for any	11
reason, so long as it is not unfair to the appellant); State v. Rector, 2005-NMCA-	12
014, ¶ 9, 136 N.M. 788, 105 P.3d 341 (affirming a district court’s denial of a motion	13
to suppress that was based on the finding of reasonable suspicion on the alternative	14
grounds of attenuation). Because we affirm on this ground, we need not address	15
Defendant’s argument that the district court should have held an evidentiary hearing	16
to determine the motive for the stop. We explain.	17
{38} 	Indeed, our analysis under Ochoa would end at the first step, our having	18
already concluded that the officer lacked reasonable suspicion to stop and investigate	19
Defendant under Section 66-7-339. See Ochoa, 2009-NMCA-002, ¶ 40. Evidence	20

24
found as a result of an unconstitutional seizure would be suppressed unless an	1
exception to the exclusionary rule applies. See Tapia, 2018-NMSC-017, ¶¶ 13-14.	2
Here, as the State contends, Defendant’s physical altercation with Officer Martinez	3
creates such an exception as a new crime, allowing the evidence of Defendant’s other	4
charges to be admissible.	5
{39} 	A brief discussion of the new crimes exception will be helpful to our analysis.	6
We originally adopted the new crime exception for violent crimes, although not by	7
name, in State v. Travison B., 2006-NMCA-146, 140 N.M. 783, 149 P.3d 99; see	8
also Tapia, 2018-NMSC-017, ¶ 19 (discussing our adoption of the new crime	9
exception). In Travison B., this Court assumed officers unlawfully entered an	10
apartment while responding to a domestic disturbance, who then encountered an	11
angry juvenile who battered an officer. 2006-NMCA-146, ¶¶ 2, 9. We held that even	12
though the battery was precipitated by the unlawful entry, “[the c]hild’s actions	13
against the officers constituted new criminal activity that is not subject to the	14
exclusionary rule.” Id. ¶ 9. We held that “even if there is a causal connection between	15
[the c]hild’s actions and the officer’s presence, [the c]hild’s actions were sufficiently	16
separate and distinct from the officer’s entry that the exclusionary rule . . . does not	17
extend to suppress the officer’s testimony about [the c]hild’s acts of a new crime	18
against the officers.” Id. ¶ 11.	19

25
{40} 	Our Supreme Court further discussed and clarified the new crime exception	1
in Tapia. In Tapia, the defendant was a passenger in a vehicle stopped for going 40	2
miles per hour in a 55 mile per hour zone and because the officers could not read the	3
license plate. 2018-NMSC-017, ¶ 2. One of the officers involved in the stop noticed	4
the defendant was not wearing a seatbelt, and the officer asked for the defendant’s	5
license. Id. The defendant stated he did not have a license, and instead gave the	6
officer his brother’s identifying information and signed as his brother for the seat	7
belt citation. Id. ¶¶ 1-3.	8
{41} 	At the same time, a second officer was notified of the defendant’s real identity	9
by a second passenger. Id. ¶ 4. When asked to clarify his identity, the defendant	10
again gave his brother’s information. Id. The officers arrested the defendant and	11
charged him with concealing identity, forgery, and the seat belt violation. Id. ¶¶ 4-5.	12
The defendant moved to suppress all evidence, arguing that the traffic stop was	13
unlawful. Id. ¶ 6. The district court granted the motion to suppress with regard to the	14
seat belt violation, but denied the motion with respect to the forgery and concealing	15
identity charges. Id.	16
{42} 	Our Supreme Court affirmed, agreeing with the state that the new crime	17
exception applied. Id. ¶¶ 9, 50. In Tapia, our Supreme Court expanded the new crime	18
exception to apply to both violent and nonviolent crimes committed in response to	19
unlawful police action, even when the evidence obtained as a direct result of the	20

26
unlawful activity is suppressed. Id. ¶ 50. The Court held that “[a]pplication of the	1
three-part federal attenuation analysis comports with our preference to assess the	2
reasonableness of law enforcement by considering the totality of the circumstances	3
of each case” under the federal or state Constitution when applying the new crime	4
exception. Id. ¶ 47. Therefore, we look to “(1) the lapsed time between the illegality	5
and the acquisition of the evidence, (2) the presence of intervening circumstances,	6
and (3) the purpose and flagrancy of the official misconduct.” Id. ¶ 15 (citing Brown	7
v. Illinois, 422 U.S. 590, 603-04 (1975)). Analyzing the facts through the attenuation	8
factors, our Court held the “[d]efendant’s attempts to conceal his identity after the	9
unlawful traffic stop sufficiently purged the taint of the initial illegality so as to	10
render the exclusionary rule inapplicable.” Id. ¶ 50.	11
{43} 	We turn to the three-factor attenuation analysis outlined in Tapia. For the first	12
factor, there was no evidence presented at the evidentiary hearing regarding the	13
amount of time between Officer Jaimes’s stop of Defendant and the arrest of	14
Defendant by Officer Martinez. Generally, we weigh this factor in favor of	15
suppression unless substantial time has passed. See id. ¶ 35. Because we lack the	16
information here that would assist in determining this factor, we will weigh it in	17
favor of suppression. See State v. Edwards, 2019-NMCA-070, ¶ 11, 452 P.3d 413.	18
{44} 	In contrast, the second factor, the presence of intervening circumstances such	19
as the commission of new or independent criminal acts, weighs in favor of admission	20

27
of the evidence. The commission of a new crime may create an intervening	1
circumstance sufficient to purge the taint of the initial illegality. See Tapia, 2018-	2
NMSC-017, ¶¶ 36-37 (concluding that the defendant’s new criminal activity created	3
an intervening circumstance because the criminal act was “an unprompted act of his	4
own free will”). Defendant’s physical altercation with Officer Martinez was not part	5
of Defendant’s initial stop and interaction with Officer Jaimes and was not “a natural	6
or predictable progression” of his interaction with Officer Jaimes. See id. ¶ 37.	7
Rather Defendant engaged in combative behavior with Officer Martinez when	8
Officer Martinez attempted to place Defendant under arrest. Thus the altercation did	9
not progress from Defendant’s “unlawful seizure [by Officer Jaimes] but rather	10
[was] an unprompted act of his own free will.” See id. Therefore, we weigh this	11
factor in favor of attenuation.	12
{45} 	Ending with the third factor, the purpose and flagrancy of the police	13
misconduct, “[t]o be flagrant, more severe police misconduct is required than the	14
mere absence of proper cause for the seizure.” State v. Ramey, 2020-NMCA-041,	15
¶ 23, 473 P.3d 13 (quoting Edwards, 2019-NMCA-070, ¶ 12). A defendant must	16
demonstrate purposeful and flagrant official misconduct where “(1) the impropriety	17
was obvious, or the official knew his conduct was likely unconstitutional but	18
continued nonetheless; or (2) the misconduct was investigatory in design and	19
purpose.” Ramey, 2020-NMCA-041, ¶ 24 (internal quotation marks and citation	20

28
omitted). 	Although 	Defendant 	argues 	on 	appeal 	that 	Officer 	Jaimes 	lacked	1
reasonable suspicion under the statute to stop him for a violation of Section 66-7-	2
339 and that the stop was pretextual, the record does not indicate police conduct that	3
would rise to the level of flagrant during the initial traffic stop. Officer Jaimes	4
testified that he believed Defendant violated Section 66-7-339, and that was the sole	5
reason for the stop. Our analysis of Section 66-7-339 above shows Officer Jaimes	6
was mistaken in both his belief that Defendant had violated Section 66-7-339 and in	7
his belief that he had reasonable suspicion to stop and investigate Defendant, but we	8
view this conduct as negligent, rather than flagrant. See Edwards, 2019-NMCA-070,	9
¶ 12 (describing the process of asking questions and asking for identity as negligent	10
when the officer lacked reasonable suspicion for the stop).	11
{46} 	With respect to Defendant’s contention that the officers’ conduct was flagrant	12
because they were not in the lawful discharge of their duties when Defendant was	13
arrested, we disagree. When an officer is in the scope of their duty “societal interests	14
dictate the protection of the officer from attack by someone who may question, albeit	15
reasonably, the legality of the officer’s actions.” Travison B., 2006-NMCA-146, ¶ 9.	16
Regardless of the illegality of the officer’s action of stopping and investigating	17
Defendant for violating Section 66-7-339, Defendant did not have a license to	18
physically attack a law enforcement officer when he himself was being placed under	19
arrest. See Doe, 1978-NMSC-072, ¶ 11 (holding that a private citizen may not use	20

29
force to resist a search by an officer engaged in the performance of their duties	1
whether or not the arrest was illegal). Even if the arrest was unlawful, it does not	2
preclude a finding that an officer acted in the lawful discharge of their duties to	3
establish the elements of the charged crimes. See Tapia, 2000-NMCA-054, ¶ 16.	4
“The aggrieved person’s rights lie in a civil action, not in a physical attack,” when	5
faced with unlawful police conduct. Travison B., 2006-NMCA-146, ¶ 9.	6
{47} 	Finally, to the extent that Defendant argues that the stop was pretextual	7
because his offer of proof demonstrates that Hobbs police officers target minority	8
communities and Officer Jaimes has a history of stopping individuals without	9
reasonable suspicion, therefore creating flagrant police conduct, our review of the	10
record reveals that Defendant did not file his offer of poof until five months after the	11
district court denied his Ochoa Motion, and he did so without a motion to reconsider	12
the denial of his Ochoa Motion or other effort to bring these alleged facts before the	13
district court. Therefore we do not address these grounds further. See State v. Goss,	14
1991-NMCA-003, ¶¶ 8-14, 111 N.M. 530, 807 P.2d 228 (declining to address the	15
defendant’s constitutional challenge on appeal to suppress evidence where the	16
challenge was not included in the defendant’s motion to suppress before the district	17
court and there was no indication in the record that the defendant brought factual	18
information supporting it before the district court). In sum, the third attenuation	19
factor weighs against suppression.	20

30
{48} 	Applying the three attenuation factors for the new crime exception, we hold	1
that 	the 	evidence 	of 	Defendant’s 	battery, 	assault, 	and 	resisting, 	evading 	or	2
obstructing charges were sufficiently attenuated and therefore admissible. 9 See	3
Tapia, 2018-NMSC-017, ¶¶ 35, 37-38 (concluding that exclusion of the evidence is	4
unnecessary when the first factor weighs in favor of suppression but the second and	5
third factors weigh in favor of attenuation). Further, the subsequent discovery of	6
controlled substances and marijuana where Defendant was arrested and in the patrol	7
vehicle where Defendant was placed are also admissible.10 Because the State argued	8
the application of the new crime exception and Defendant was given an opportunity	9
to respond, we, therefore, affirm the district court’s denial of Defendant’s motion to	10
suppress under Ochoa as right for any reason.	11
CONCLUSION	12
{49} 	We reverse the district court’s denial of Defendant’s Foulenfont Motion to	13
dismiss the pedestrians on roadways charge, but affirm the denial with respect to the	14
battery, assault, and resisting, evading or obstructing charges. Further, we affirm the	15
9We would reach the same conclusion under the analysis set forth in Travison
B. Like the child in Travison B., Defendant’s physical altercation “constituted new
criminal activity that is not subject to the exclusionary rule.” 2006-NMCA-146, ¶ 9.
We consider the act sufficiently “separate and distinct” from the initial stop such that
the exclusionary rule does not apply. Id. ¶ 11.
10Defendant did not argue, and we, therefore, do not consider that the new
crimes exception should not extend to the discovery of the controlled substances and
marijuana subsequent to his arrest.

31
district court’s denial of Defendant’s Ochoa Motion. We remand to the district court	1
for further proceedings consistent with this opinion.	2
{50} 	IT IS SO ORDERED.	3
______________________________	4
JACQUELINE R. MEDINA, Judge	5
WE CONCUR:	6
______________________________	7
J. MILES HANISEE, Chief Judge	8
______________________________	9
JENNIFER L. ATTREP, Judge	10