September 27, 2010 – State of New Mexico v. Darrell Akers, No. 28,674

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	September 27, 2010
NO. 28,674
STATE OF NEW MEXICO,
Petitioner-Appellee,
v.
DARRELL AKERS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Corey J. Thompson, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant appeals his conviction for resisting, evading, or obstructing an
officer. See NMSA 1978, § 30-22-1(B) (1981). He raises three issues on appeal. We
reverse and remand, holding that Defendant was entitled to a jury instruction requiring
the State to prove that Defendant knew that the persons seeking to detain him were
law enforcement officers.
BACKGROUND
{2} 	Otero County Narcotics Enforcement Unit Agents were investigating potential
drug manufacturing by following persons suspected of buying suspiciously large
amounts of cold medication containing pseudoephedrine. 	The manager of an
Albertsons grocery store alerted Agent Lee Wilder of potentially suspicious behavior
exhibited by Defendant’s son, Kevin, who was seen purchasing cold medication
containing pseudoephedrine and who had been seen in the store a few weeks earlier
for the same purpose. Wilder watched Kevin leave Albertsons and get into a truck
driven by Defendant. He followed the truck to monitor any suspicious behavior.
{3} 	Wilder alerted Agents John Anderson and Richard Henley, who began
following Defendant and Kevin in their own vehicles. 	The agents were in plain
clothes and driving unmarked vehicles. There was nothing about the make or model

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of the vehicles to suggest the agents were officers, and the vehicles were not equipped
with flashing lights.
{4} 	The agents followed Kevin and Defendant to another grocery store where Kevin
walked into the aisle containing pseudoephedrine and then went into the bathroom;
the agents were unable to determine if he purchased anything. After Kevin left that
store, the agents continued to follow Defendant’s truck while it stopped at a gas
station and continued on. At trial, Wilder testified that he and the other agents did not
originally plan to contact Defendant, but only to follow him.
{5} 	Henley testified that at some point Defendant appeared to realize he was being
followed, and he made a U-turn and pulled over facing oncoming traffic. 	Henley
radioed this information to the two other agents, and he then drove by Defendant’s
truck. After passing Defendant’s stopped truck, Henley made a U-turn and pulled up
about fifty to sixty feet behind Defendant in an open area.
{6} 	Wilder had also pulled over so that he was facing Defendant’s truck, also
approximately fifty to sixty feet away. Wilder opened the door to his vehicle, stepped
outside, displayed his badge, and tried to communicate with Defendant and Kevin. He
stated loudly his identification as an officer, said he wanted to talk to Defendant about
the incident at Albertsons, and asked Defendant to please step out of the truck. He
testified that, at this point, he did not have his gun out. He did not call for uniformed

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back-up because he did not, at that time, intend to perform a traffic stop or arrest
Defendant; he only wanted to talk to Kevin and Defendant about his suspicions.
Defendant eventually stuck his head out of the window of his truck and asked what
was going on. 	Wilder again identified himself as an officer. 	He testified that he
wondered why Defendant did not want to talk to him. 	Wilder did not consider
Defendant to be under arrest.
{7} 	Wilder testified that Defendant began creeping toward him, leaving ten to
fifteen feet between Defendant’s truck and Wilder’s vehicle and causing him to
question Defendant’s intentions. Henley had previously radioed Wilder and Anderson
that he saw an assault-type rifle on a gun rack in the back of Defendant’s truck.
Wilder testified that as Defendant’s truck drew near, he did not see the rifle in the gun
rack. 	He became increasingly nervous as Defendant’s truck drew nearer and
continued to loudly identify himself as an officer and to hold his badge in the air, as
well as requesting that Defendant show his hands.
{8} 	When Defendant failed to stop or to show his hands, Wilder drew his gun to
show that he “meant business” and because he was afraid. He held his badge in one
hand and the gun in his other hand yelling for Defendant to display his hands and
telling him that he was under arrest.
{9} 	At some point, Defendant briefly pulled to a stop near Wilder’s vehicle, but

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Defendant did not say anything; he just looked at Kevin. 	Wilder testified that,
assuming Defendant was prepared to speak with him, he put his badge down and
prepared to walk toward Defendant’s truck when Defendant drove off.
{10} 	While Defendant was stopped, Henley took out his badge and gun, approached
Defendant’s truck from the rear passenger, opened the door, and told the occupants
to show their hands. 	Defendant then started to accelerate and swerved his truck
around Wilder’s vehicle. 	As the truck sped off, Henley was thrown across the
passenger seat into Kevin’s lap. While the truck gained speed, Henley was thrown
from the truck and struck his head on the ground. 	Wilder continued to pursue
Defendant, and Defendant was stopped some distance down the road by Deputy
Norbert Sanchez. Sanchez was in uniform with lights flashing.
{11} 	Defendant was initially charged with aggravated battery upon a peace officer;
tampering with evidence; and resisting, evading, or obstructing an officer. See § 30-
22-1; NMSA 1978, § 30-22-5 (2003); NMSA 1978, § 30-22-25 (1971). In the first
trial, Defendant was acquitted of the tampering charge, but the jury hung on the
remaining charges. A second trial resulted in convictions for aggravated assault upon
a peace officer with a deadly weapon, a lesser-included offense to aggravated battery
upon a peace officer, and resisting, evading, or obstructing an officer. 	See NMSA
1978, § 30-22-22(A)(1) (1971); § 30-22-25. This Court reversed the convictions in

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a memorandum opinion for failure to instruct the jury on Defendant’s claim of self-
defense and remanded for a new trial.
{12} 	Defendant was tried a third time and acquitted of aggravated assault upon a
peace officer. He was convicted of resisting, evading, or obstructing an officer, and
this appeal followed. Additional facts are discussed as relevant to Defendant’s issues.
JURY INSTRUCTIONS
{13} 	Defendant claims that the district court erred in instructing the jury on the law
regarding resisting, evading, and obstructing an officer because it refused to instruct
the jury that Defendant needed to know that the persons pursuing him were law
enforcement officers. “The propriety of jury instructions given or denied is a mixed
question of law and fact” that we review de novo. State v. Salazar, 1997-NMSC-044,
¶ 49, 123 N.M. 778, 945 P.2d 996; see State v. Nozie, 2009-NMSC-018, ¶ 33, 146
N.M. 142, 207 P.3d 1119. “A defendant is entitled to an instruction on a theory of the
case where the evidence supports the theory[, and f]ailure to give an instruction which
is warranted by the evidence is not harmless error.” Salazar, 1997-NMSC-044, ¶ 50
(citations omitted).
{14} 	As previously discussed, Wilder and Henley were working undercover and
driving unmarked vehicles, which did not have police lights and in no way indicated
any affiliation with law enforcement. Both men admitted that they were wearing jeans

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and sweatshirts and did not want to be identified as officers. Furthermore, Wilder had
long hair and earrings.
{15} 	Even though there was testimony that Wilder and Henley identified themselves
as officers, there was ample evidence supporting Defendant’s defense that he did not
know that the persons pursuing him were officers including the agents’ manner of
dress and the unmarked character of their vehicles. 	See State v. Romero, 2009-
NMCA-012, ¶ 22, 145 N.M. 594, 203 P.3d 125 (filed 2008) (stating that a defendant
“is entitled to a jury instruction that supports his theory of the case, but only when that
theory is supported by the evidence presented at trial” (internal quotation marks and
citation omitted)). Defendant’s testimony, if believed, would establish that he did not
know he was being pursued by law enforcement and he acted in a manner to save
himself and his son. Defendant testified that (1) he was being followed by a car with
tinted black windows, which caused him to turn around to go the other way; (2) he
saw a man holding a gun, but did not see the badge; (3) he did not recognize either
Wilder or Henley, they looked like unsavory individuals, and Wilder was holding the
gun and shaking; (4) he did not hear Wilder yell “police” because he had music
playing loudly; and (5) he never saw Wilder’s badge, and he never saw Henley.
Defendant further testified that he drove off due to fear for his and his son’s lives. He
claimed he was afraid that if he tried to turn down the radio, the persons pursuing him

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might shoot if he started reaching under the dash.
{16} 	At trial, Defendant requested two instructions modeled after UJI 14-2216
NMRA, which is the mistake-of-fact instruction for crimes against law enforcement
officers. See Nozie, 2009-NMSC-018, ¶ 33. On the aggravated assault upon a peace
officer charge, Defendant requested the following instruction:
Evidence has been presented that [D]efendant did not know that
Agent Richard Henley was a peace officer.
The burden is on the state to prove beyond a reasonable doubt that
[D]efendant knew that Agent Richard Henley was a peace officer. If you
have a reasonable doubt as to whether [D]efendant knew that Agent
Richard Henley was a peace officer, you must find [D]efendant not
guilty of the crime of aggravated assault on a peace officer with a deadly
weapon.[]
A “peace officer” is any . . . public [official] or public officer
vested by law with a duty to maintain public order or to make arrests for
[a] crime, whether that duty extends to all crimes or is limited to specific
crimes.
{17} 	On the resisting, evading, and obstructing an officer charge, Defendant
requested the following:
Evidence has been presented that [D]efendant did not know that
Sgt. Lee Wilder was a peace officer.
The burden is on the [S]tate to prove beyond a reasonable doubt
that [D]efendant knew that Sgt. Lee Wilder was a peace officer. If you
have a reasonable doubt as to whether [D]efendant knew that Sgt. Lee
Wilder was a peace officer, you must find [D]efendant not guilty of the
crime of resisting[,] evading[,] or obstructing an officer.

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A “peace officer” is any public official or public officer vested by
law with a duty to maintain public order or to make arrests for [a] crime,
whether that duty extends to all crimes or is limited to specific crimes.
The district court refused these instructions. 	On the resisting, evading, and
obstructing an officer charge, the district court instructed the jury in accordance with
the elements set forth in Section 30-22-1(D), which require the State to prove beyond
a reasonable doubt that
1. 	Richard Henley and/or Lee Wilder were peace officers in
the lawful discharge of their duties;
2. 	. . . Defendant resisted or abused Richard Henley and/or Lee
Wilder while in the lawful discharge of their duties;
3. 	. . . Defendant did not act in self[-]defense.
See id.; UJI 14-2215 NMRA. 	Defendant contends that the instructions given
erroneously failed to require the State to prove Defendant’s knowledge that the agents
were law enforcement officers.
Preservation
{18} 	The State claims that Defendant failed to preserve this issue. It argues that even
though Defendant requested an instruction requiring the State to prove that Defendant
knew the persons pursuing him were law enforcement officers, the issue was not
adequately preserved because Defendant did not object when the district court refused
his requested instruction and decided to only issue one instruction patterned after UJI

9
14-2216. We disagree.
{19} 	The record reveals an extensive discussion on jury instructions with the district
court acknowledging that Defendant was presenting a defense to both charges based
on his claim that he did not know the agents were police officers. Our review of the
record indicates that the district court recognized that lack of knowledge is one of the
cornerstone issues of the case, and based upon the defense of lack of knowledge, the
court opined that UJI 14-2216 was appropriate.
{20} 	Addressing Defendant’s requested instruction requiring the State to prove his
knowledge of the officer’s status for purposes of the aggravated assault on a peace
officer charge, the district court indicated its concern that the requested instruction did
not include the step-down portion set forth in the uniform jury instruction. See UJI
14-2216. 	Defendant explained that he believed the step-down language was
unnecessary, but the district court opted to give the State’s requested instruction
patterned after UJI 14-2216 on the aggravated assault charge. However, it refused to
give a similar instruction on the resisting, evading, and obstructing charge, which it
found to be merely directed at a different officer. Defendant did not state an objection
to the district court’s ruling.
{21} 	The purpose of the preservation requirement is “to alert the trial court to the
defendant’s argument.” State v. Jernigan, 2006-NMSC-003, ¶ 10, 139 N.M. 1, 127

10
P.3d 537 (filed 2005). Defendant’s request of an instruction patterned after UJI 14-
2216 for purposes of the resisting, evading, and obstructing charge was sufficient to
alert the district court to his argument. See State v. Hill, 2001-NMCA-094, ¶ 7, 131
N.M. 195, 34 P.3d 139 (holding that an issue is adequately preserved if the district
court is generally aware of the issue and the record reflects that the court clearly
understood the type of instruction requested by the defendant). Because the record
demonstrates that the district court understood Defendant’s argument, Defendant did
not need to object to the district court’s refusal to give his tendered instruction.
Moreover, we are not persuaded that Defendant’s failure to point to a case requiring
an instruction similar to UJI 14-2216 in a charge for resisting, evading, or obstructing
an officer warrants a conclusion that he failed to preserve this issue because this issue
appears to be one of first impression, and thus there are no New Mexico cases
considering this issue.
{22} 	Finally, to whatever extent Defendant’s requested instruction did not comport
with UJI 14-2216 because it did not include step-down language, this exclusion does
not warrant a finding that Defendant failed to preserve the issue. See Rule 5-608(D)
NMRA (requiring the submission of a correct written instruction prior to the
instruction of the jury); cf. Jernigan, 2006-NMSC-003, ¶¶ 9-15 (holding that an issue
was preserved by an incorrect tendered jury instruction when the record indicated that

11
the district court understood the type of instruction that was wanted and that the
tendered jury instruction would need to be modified). Step-down provisions in the
context of a charge of aggravated assault upon a peace officer are based on the
rationale that assaulting a private person is still a crime. 	Cf. State v. Nozie,
2007-NMCA-131, ¶ 4, 142 N.M. 626, 168 P.3d 756 (recognizing that an assault or
battery against a peace officer necessarily includes an assault or battery of another
person, and, thus, “if the jury has a reasonable doubt as to whether the defendant knew
the victim was a peace officer,” it must “consider the parallel lesser-included offense
not involving a peace officer as the victim”), aff’d, 2009-NMSC-018. However, if a
defendant is unaware that the person attempting to restrain the defendant is a peace
officer, the defendant commits no crime by resisting the attempt because it is not
illegal to resist, evade, or obstruct a private citizen. Therefore, Defendant’s requested
instruction was sufficient to preserve this issue for appeal because it alerted the district
court to his argument that he was asserting a defense of lack of knowledge and that
he was claiming there was no need for step-down language in the requested
instruction. 	See Jernigan, 2006-NMSC-003, ¶ 10 (“[I]f the record reflects that the
judge clearly understood the type of instruction the [d]efendant wanted and
understood the tendered instruction needed to be modified to correctly state the law,
then the issue is deemed preserved for appellate review.”).

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Propriety of the Jury Instruction
{23} 	Turning to the merits, the Use Notes for the Uniform Jury Instruction on
resisting, evading, and obstructing an officer require the inclusion of UJI 14-2216
whenever there is a question of fact as to whether the defendant knew that the victim
was a law enforcement officer. See UJI 14-2215 Use Note 3. Yet, review of the jury
instructions given in this case, taken as a whole, fails to reveal any instruction
requiring the jury to find that the State proved that Defendant knew Henley and
Wilder were peace officers before convicting Defendant of the resisting, evading, and
obstructing charge. Apparently, the district court did not believe this instruction was
necessary for the resisting, evading, and obstructing charge because an instruction in
conformance with UJI 14-2216 was only given for purposes of aggravated assault on
a different officer.
{24} 	With respect to the aggravated assault charge, in accordance with the instruction
requested by the State, the jury was instructed, in part:
Evidence has been presented that . . . Defendant did not know that
Richard Henley was a peace officer.
The burden is on the State to prove beyond a reasonable doubt that
. . . Defendant knew that Richard Henley was a peace officer. 	If you
have a reasonable doubt as to whether . . . Defendant knew that Richard
Henley was a peace officer, you must find . . . Defendant not guilty of
the crime of aggravated assault of a peace officer (deadly weapon).

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. . . .
If after reasonable deliberation, you do not agree that . . .
Defendant is guilty of aggravated assault of a peace officer (deadly
weapon), you should move to a discussion of aggravated assault (deadly
weapon). 	If you unanimously agree that . . . Defendant is guilty of
aggravated assault (deadly weapon), you will return a verdict of guilty
of aggravated assault (deadly weapon).
. . . .
A “peace officer” is any public official or public officer vested by law
with a duty to maintain public order or to make arrests for [a] crime,
whether that duty extends to all crimes or is limited to specific crimes.
{25} 	As stated above, the resisting, evading, and obstructing instruction only
required the jury to find (1) that “Henley and/or . . . Wilder were peace officers in the
lawful discharge of their duties,” (2) that “Defendant resisted or abused . . . Henley
and/or . . . Wilder while in the lawful discharge of their duties,” and (3) that
“Defendant did not act in self[-]defense.” Additionally, the jury was instructed that
“[e]ach crime charged in the indictment should be considered separately.” 	The
aggravated assault instruction, however, does not discuss Wilder or the resisting,
evading, and obstructing charge. We determine, therefore, that the instruction does
not adequately inform the jury that in order to convict Defendant of resisting, evading,
and obstructing, it must find that Defendant knew Wilder was a peace officer. See UJI
14-2215 Use Note 3; cf. State v. Nieto, 2000-NMSC-031, ¶ 15, 129 N.M. 688, 12 P.3d
442 (recognizing that the district court need not give an instruction on an element of

14
a crime if it is adequately defined in other instructions given). The instruction given
regarding Defendant’s alleged knowledge that the victim was a peace officer
specifically pertains to Henley, whereas the resisting charge names both Henley and
Wilder. Furthermore, as the State admits, the instruction is specifically directed at the
crime of aggravated assault upon a peace officer and contains step-down language that
is only applicable to the aggravated assault charge. Therefore, the jury could have
been confused or misled as to whether it was necessary for the State to prove that
Defendant knew the persons pursuing him were officers in order to convict him of the
resisting, evading, and obstructing charge. 	See State v. Benally, 2001-NMSC-033,
¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating that, when reviewing the adequacy of jury
instructions, we determine “whether a reasonable juror would have been confused or
misdirected by the jury instruction” (internal quotation marks and citation omitted)).
{26} 	Although there are no previous appellate cases in New Mexico mandating that
an instruction patterned after UJI 14-2216 be given in a trial on resisting, evading, and
obstructing an officer, we are guided by our precedent addressing other crimes
perpetrated against peace officers. 	For example, in a plurality opinion in Reese v.
State, 106 N.M. 498, 499-501, 745 P.2d 1146, 1147-48 (1987), our Supreme Court
held that a defendant was entitled to an instruction requiring the jury to find that he
knew his victim was a peace officer in order to convict him of assault and battery

15
upon a peace officer because knowledge of the victim’s identity is a necessary element
of those crimes, and the defendant had introduced some evidence as to his lack of
knowledge. See State v. Ellis, 2008-NMSC-032, ¶ 17 n.1, 144 N.M. 253, 186 P.3d
245 (citing to the opinion in Reese with approval and construing it to hold that “with
respect to aggravated assault on a peace officer, . . . a defendant’s knowledge about
the identity of an officer is an element of the crime that the [s]tate is required to prove
beyond a reasonable doubt”).
{27} 	Recently, in Nozie, our Supreme Court held that the state must prove beyond
a reasonable doubt that the defendant knew that his victim was a peace officer because
this knowledge is an essential element of the crime of aggravated battery upon a peace
officer. 2009-NMSC-018, ¶¶ 17-32 (clarifying the holding in Reese and specifically
stating that knowledge of the victim’s identity as a peace officer is an essential
element of the crimes of aggravated assault, aggravated battery, and battery upon a
peace officer). Given that knowledge is an essential element, our Supreme Court held
that the uniform jury instructions defining aggravated battery upon a peace officer,
aggravated assault upon a peace officer, and battery upon a peace officer must be
amended to include the defendant’s knowledge that the victim was a peace officer by
including the phrase, “Defendant knew ____________ (name of peace officer) was
a peace officer.” Id. ¶ 31 (emphasis omitted) (internal quotation marks omitted).

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{28} 	After holding that the elements instructions must be amended to include the
defendant’s knowledge of the officer’s status, the Court declined to consider whether,
once those changes have been made, there will still be a need for UJI 14-2216 in
future cases or whether, at that point, the mistake-of-fact instruction will become
surplusage. Nozie, 2009-NMSC-018, ¶¶ 33-36. However, given that the instruction
tendered on aggravated battery upon a peace officer in the case before it did not
include the essential element of knowledge, the Court held that the jury should have
been given a mistake-of-fact instruction consistent with UJI 14-2216 as to the victim’s
identity as a peace officer. Nozie, 2009-NMSC-018, ¶¶ 34-35.
{29} 	Even though Nozie concerns aggravated battery upon a peace officer, and even
though resisting, evading, and obstructing an officer is not directly considered in
Nozie, the rationale expressed by our Supreme Court applies equally to the crime of
resisting, evading, and obstructing an officer, and thus a mistake-of-fact instruction
should have been given. See id. ¶ 30 (noting that all of the offenses codified under
Chapter 30, Article 22 of our statutes, entitled “Interference with Law Enforcement,”
are “intended to achieve the same fundamental purpose: protect peace officers in the
lawful discharge of their duties from unlawful assaults and batteries” and thus include
the element of knowledge of the victim’s identity); cf. Nozie, 2007-NMCA-131, ¶ 3
(recognizing that UJI 14-2216 was promulgated without limitation to any specific

17
offense).
{30} 	Based upon the foregoing, Defendant was entitled to a mistake-of-fact
instruction patterned after UJI 14-2216 to inform the jury that, in order to convict
Defendant of resisting, evading, and obstructing a peace officer, the State had the
burden to prove that Defendant knew Henley and Wilder were peace officers, and the
instruction given on aggravated assault was not sufficiently applicable to both crimes.
Cf. Nieto, 2000-NMSC-031, ¶ 15.
SUFFICIENCY OF THE EVIDENCE
{31} 	As this issue would give Defendant greater relief, we also address his claim that
there was insufficient evidence to support his conviction for resisting, evading, and
obstructing an officer. 	Defendant was convicted pursuant to Section 30-22-1(B),
which defines the offense as “intentionally fleeing, attempting to evade or evading an
officer of this state when the person committing the act of fleeing, attempting to evade
or evasion has knowledge that the officer is attempting to apprehend or arrest him.”
The State concedes that the statute requires it to prove that “an officer was a peace
officer engaged in the lawful discharge of his duty and that the defendant, with
knowledge that the officer was attempting to apprehend or arrest him, fled, attempted
to 	evade, 	or 	evaded 	the 	officer.” 	See 	§ 	30-22-1(B); 	State 	v. 	Gutierrez,
2007-NMSC-033, ¶ 27, 142 N.M. 1, 162 P.3d 156. However, in this case, the State

18
requested, and the district court gave, an instruction based on Section 30-22-1(D),
which required the State to prove beyond a reasonable doubt that (1) the officers were
“peace officers in the lawful discharge of their duties,” (2) “Defendant resisted or
abused Richard Henley and/or Lee Wilder while in the lawful discharge of their
duties,” and (3) Defendant “did not act in self[-] defense.”
{32} 	In a case such as this one in which an erroneous instruction was apparently
given, we nonetheless review the sufficiency of the evidence under the instructions
as given. See State v. Rosaire, 1996-NMCA-115, ¶ 20, 123 N.M. 250, 939 P.2d 597
(holding that, when the district court fails “to instruct the jury on an essential element
of the crime, retrial following appeal is not barred if the evidence below was sufficient
to convict the defendant under the erroneous jury instruction”), aff’d, 1997-NMSC-
034, 123 N.M. 701, 945 P.2d 66. In analyzing a sufficiency challenge on appeal, we
view the evidence in the light most favorable to the verdict, resolving all conflicts and
indulging all inferences in favor of the verdict. State v. Apodaca, 118 N.M. 762, 765-
66, 887 P.2d 756, 759-60 (1994). We do not weigh the evidence or substitute our
judgment for that of the factfinder. State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M.
346, 950 P.2d 789, abrogated on other grounds as recognized by Kersey v. Hatch,
2010-NMSC-020, ¶ 17, __ N.M. __, __ P.3d __. The jury is free to reject Defendant’s
version of the facts. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d

19
829 (filed 1998). We do not consider the merit of evidence that may have supported
a different result. State v. Kersey, 120 N.M. 517, 520, 903 P.2d 828, 831 (1995).
{33} 	Defendant contends that the evidence was insufficient to establish that he had
the requisite knowledge that Wilder and Henley were peace officers who were trying
to arrest or apprehend him. 	He claims the jury could not disregard his testimony
establishing that he did not know the agents were officers, he never saw the badge or
heard Wilder identify himself as an officer, and he feared Henley and Wilder were
private persons attempting to harm him. We understand Defendant to argue that this
lack of knowledge as to the officers’ identities must warrant a conclusion that the
State failed to prove that Defendant was not acting in self-defense or that it negates
the State’s attempt to prove that Defendant abused or resisted the officers while they
were in lawful discharge of their duties. We disagree.
{34} 	Although Defendant testified to his lack of knowledge, as previously discussed,
Wilder testified that he shouted five or six times that he was a police officer and that
he showed his badge. He continued to show his badge even after Defendant began
driving toward him and while ordering Defendant to exit from the truck. Henley also
testified that he told Defendant he was a police officer and displayed his badge.
Furthermore, Henley testified, contrary to Defendant’s testimony, that no loud music
was playing, and Wilder testified that Defendant apparently heard him when he was

20
much further away, so it seemed unlikely he could not hear him identify himself as a
police officer as Defendant approached Wilder’s vehicle and got much closer.
{35} 	The testimony of Wilder and Henley is sufficient for the jury to conclude that
Defendant knew the officers were trying to arrest or detain him. See State v. Caudillo,
2003-NMCA-042, ¶ 7, 133 N.M. 468, 64 P.3d 495 (filed 2002) (holding that, on
appeal, the question is whether substantial evidence supports the verdict, not whether
substantial evidence would have also supported acquittal); cf. Gutierrez, 2007-NMSC-
033, ¶ 36 (holding that the jury could infer that a defendant knew of an officer’s status
and purpose from evidence that the officer approached the defendant in an
authoritative manner with insignia of office clearly displayed, the officer indicated
that he needed to talk to the defendant, and the officer subsequently chased the
defendant when he failed to stop). 	Moreover, the jury was entitled to believe the
officers’ testimony despite Defendant’s protestations to the contrary. 	See State v.
Sosa, 2000-NMSC-036, ¶ 8, 129 N.M. 767, 14 P.3d 32 (stating that it is the jury’s
function to assess witnesses’ credibility, and we defer to their decision on such
matters); State v. Riggs, 114 N.M. 358, 362-63, 838 P.2d 975, 979-80 (1992) (stating
that the jury determines questions of credibility and the weight to be given to
evidence).
REASONABLENESS OF THE INITIAL STOP

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{36} 	Finally, Defendant contends that Wilder and Henley did not possess sufficient
facts to warrant detaining Defendant at the time of the seizure. 	He notes that the
quantity of cold medicine purchased by his son was “in a quantity so unremarkable”
that the record fails to quantify it as either unusually large or suspicious. Defendant
then claims that “the only other information from which the officers could have
formed reasonable suspicion was an unsupported hunch” of the store clerk who
suspected Kevin had been shoplifting. 	He concludes that the agents’ unsupported
suspicion of methamphetamine manufacture was not enough to warrant the stop and
detention.
{37} 	The State responds that this issue was not preserved because it was not raised
in district court, and we agree. Defendant failed to specifically challenge the initial
detention by filing a motion to suppress or by questioning the reasonableness of the
initial detention during trial. Cf. State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M.
454, 993 P.2d 1280 (noting that, in order to preserve an issue for appeal, the defendant
must specifically apprise the district court of the nature of the claimed error and
invoke an intelligent ruling thereon). Moreover, although Defendant’s brief in chief
cites numerous places in the record where Defendant elicited testimony regarding the
officers’ purported reasons for investigating him, he fails to inform this Court as to
when and how he invoked a ruling on whether the seizure should have been

22
suppressed because the officers were not justified in detaining him. Therefore, we
decline to address Defendant’s argument that the initial detention was illegal for lack
of preservation. 	See generally Rojo, 1999-NMSC-001, ¶ 44 (stating that the Court
will not search the record to find whether an issue was preserved when the defendant
did not refer the Court to appropriate transcript references).
{38} 	To the extent we interpret Defendant’s argument as an assertion that there was
insufficient evidence to support his conviction because the officers were not justified
in attempting to detain him, we are unpersuaded. 	See generally Gutierrez,
2007-NMSC-033, ¶¶ 31-32 (noting that “a person who walks away from an officer
attempting to detain that person based on reasonable suspicion can be charged with
evading and eluding an officer under Section 30-22-1(B),” but that the officer must
have reasonable suspicion to have the legal authority to detain the defendant).
Reasonable suspicion must exist at the inception of the stop and cannot be based on
facts that arise as a result of the encounter. See State v. Jason L., 2000-NMSC-018,
¶ 20, 129 N.M. 119, 2 P.3d 856; State v. Williams, 2006-NMCA-062, ¶ 22, 139 N.M.
578, 136 P.3d 579. Unsupported hunches and intuition are insufficient. 	Williams,
2006-NMCA-062, ¶ 25. “A reasonable suspicion of criminal activity can arise from
wholly lawful conduct.” State v. Urioste, 2002-NMSC-023, ¶ 10, 132 N.M. 592, 52
P.3d 964 (internal quotation marks and citation omitted).

23
{39} 	Even in the absence of reasonable suspicion, the officers were entitled to follow
Defendant and Kevin once they saw Kevin purchase the cold medicine. See State v.
Walters, 1997-NMCA-013, ¶ 15, 123 N.M. 88, 934 P.2d 282 (filed 1996) (holding
that the defendant was not seized as a consequence of being followed by an officer).
Moreover, the officers were entitled to identify themselves and attempt to get
Defendant to answer some questions although Defendant may have initially had the
right to ignore their requests for him to stop. Cf. Jason L., 2000-NMSC-018, ¶¶ 14-21
(recognizing that, while officers could approach the defendant to question him, they
had no right to stop and detain, or seize, him in the absence of a reasonable suspicion
that he was involved in criminal activity). Again, we review the evidence in the light
most favorable to the verdict. Apodaca, 118 N.M. at 765-66, 887 P.2d at 759-60.
{40} 	While Wilder, Henley, and Anderson were following Defendant, circumstances
evolved justifying the agents’ suspicion to detain and then to arrest Defendant.
Defendant pulled off the road and turned his truck around so that it was facing
Wilder’s vehicle. He then refused to respond and refused to show his hands when
Wilder identified himself as an officer and indicated that he wanted to speak with
Defendant. 	While Wilder continued to attempt to question Defendant, Defendant
began to drive forward toward where Wilder was standing in his vehicle. Defendant
continued to refuse to show his hands, and Wilder noticed that a gun was missing

24
from the rack in the rear of Defendant’s truck. At this point, Wilder was justified in
detaining Defendant, and when Defendant refused to submit to his authority, Wilder
was 	justified 	in 	attempting 	to 	place 	him 	under 	arrest. 	See 	Gutierrez,
2007-NMSC-033, ¶ 35 (recognizing that the defendant may have had the right to not
answer the officer’s questions, “but he did not have the right to walk away
immediately”); State v. Maez, 2009-NMCA-108, ¶¶ 5, 16-23, 147 N.M. 91, 217 P.3d
104 (holding that officers had reasonable suspicion to stop and detain the defendant
based upon the defendant’s actions in running away from the officer and continuing
to run even after the officer identified himself by yelling loudly “[p]olice, stop” when
the defendant was no more than forty-five to fifty feet from the officer, and the
defendant’s actions in continuing to approach even after the officer told him to stop
and get on the ground), cert. denied, 2009-NMCERT-008, 147 N.M. 395, 223 P.3d
940; cf. State v. Harbison, 2007-NMSC-016, ¶¶ 17-22, 141 N.M. 392, 156 P.3d 30
(noting the United States Supreme Court’s observation that headlong flight “is not
necessarily indicative of wrongdoing, but it is certainly suggestive of such” and
holding that “unprovoked flight upon noticing the police” can create reasonable
suspicion) (internal quotation marks and citations omitted)); State v. Jacobs, 2000-
NMSC-026, ¶ 15, 129 N.M. 448, 10 P.3d 127 (recognizing that evidence of flight is
relevant and admissible because it tends to show a consciousness of guilt). Therefore,

25
we reject Defendant’s argument that he was illegally detained.
CONCLUSION
{41} 	For the foregoing reasons, we reverse Defendant’s conviction and remand for
further proceedings in accordance with this opinion.
{42} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
______________________________
ROBERT E. ROBLES, Judge
______________________________
LINDA M. VANZI, Judge