March 11, 2020- City of Las Cruces v. Osbaldo Flores, No. A-1-CA-36660

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
CITY OF LAS CRUCES,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36660	4
OSBALDO FLORES,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	7
Marci E. Beyer, District Judge	8
Robert A. Cabello, Assistant City Attorney Sr.	9
Las Cruces, NM	10
for Appellee	11
Bennett J. Baur, Chief Public Defender	12
Caitlin C.M. Smith, Assistant Appellate Defender	13
Santa Fe, NM	14
for Appellant	15
MEMORANDUM OPINION	16
B. ZAMORA, Judge.	17
{1} 	Defendant appeals from his convictions, following a de novo bench trial in	18
the district court, of two counts of resisting, evading, or obstructing an officer,	19
contrary to Las Cruces Municipal Code of Ordinances (LCMC), Las Cruces, N.M.,	20
Code of Ordinances, art. V, § 19-296(a)(2) (1988), and one count of concealing	21
identity, contrary to Las Cruces, N.M., Code of Ordinances, art. I, § 19-4 (1988).	22
Court of Appeals of New Mexico
Filed 3/11/2020 10:04 AM

2
Defendant argues that the evidence was insufficient to support his convictions	1
because the arresting officers were without legal authority to detain him for	2
questioning or to require him to produce identification. We reverse.	3
BACKGROUND	4
{2} 	Defendant was charged under the LCMC for the offenses of evading an	5
officer1 and concealing identity. The evidence presented below is undisputed. The	6
trial testimony established that two officers were in Defendant’s neighborhood	7
investigating a report of a stolen car. Defendant, apparently believing the officers	8
were attempting to catch and ticket traffic violators just to generate revenue,	9
recorded the officers on his cell phone and yelled that they were wasting taxpayer	10
dollars and should go collect revenue elsewhere. At some point, Defendant’s	11
neighbor came outside and spoke with one officer while the other officer remained	12
with Defendant. The neighbor stated that he came outside because he heard his dogs	13
barking, not due to Defendant’s yelling. The neighbor testified that he saw	14
Defendant holding up his cell phone like he was recording the officers and verbally	15
criticizing the police about his belief that police waste taxpayer money. The neighbor	16
told the officer that Defendant was not bothering him but said that Defendant was	17
1 The crime of resisting, evading or obstructing an officer as set forth in Las
Cruces, N.M., Code of Ordinances, art. V, § 19-296 contains several alternative
means by which the offense may be committed. Defendant was charged under only
Las Cruces, N.M., Code of Ordinances, art. I, § 19-296(a)(2) for conduct alleged to
have constituted fleeing or evading.

3
“always yelling.” He further testified that Defendant was talking in a “high tone of	1
voice” and in an excited, but not agitated, manner. There were no complaints from	2
other neighbors.	3
{3} 	Following 	his 	conversation 	with 	the 	neighbor, 	the 	officer 	approached	4
Defendant, who was standing with another officer, and asked him for identification.	5
Defendant turned his phone toward the approaching officer, held up his other hand	6
in a gesture to stop and told the officer “step back.” As the officer continued to	7
approach, Defendant said “stay away from me.” The officer told Defendant “if you	8
keep yelling and you keep screaming, and you keep causing people to come outside,	9
you will be arrested for disorderly conduct.” The officers repeatedly demanded	10
Defendant provide his identification. Defendant responded, “I don’t need to identify	11
myself to you, because I have not committed [a] crime.” One of the officers replied,	12
“The crime is disorderly conduct.” According to the officers, Defendant was	13
obstreperous with them, denied their repeated request to produce identification, and	14
ultimately started to walk away into his yard. The officers ran after Defendant and	15
once in Defendant’s yard, pushed Defendant to his knees, tased him, and pepper	16
sprayed his face. Defendant was handcuffed and arrested. Following a bench trial,	17
Defendant was convicted of two counts of resisting, evading or obstructing an officer	18
and one count of concealing identity. Defendant now appeals.	19

4
DISCUSSION	1
{4} 	Defendant argues the evidence was insufficient to support his convictions	2
because the officers lacked reasonable suspicion to detain him and require him to	3
produce 	identification. 	Defendant 	also 	contends 	the 	district 	court 	abused 	its	4
discretion in denying him a continuance and that his two convictions for evading an	5
officer constitute double jeopardy. We agree there was insufficient evidence to	6
convict Defendant of the charges and, therefore, do not address Defendant’s	7
remaining contentions of error.2
8
Sufficiency of the Evidence to Support Defendant’s Convictions	9
{5} 	Defendant argues that reasonable suspicion is an element of the charges	10
against him and, therefore, our analysis of the sufficiency of the evidence must entail	11
whether the officers had reasonable suspicion to detain him. As a preliminary matter,	12
the City of Las Cruces (City) contends that Defendant’s argument was not preserved.	13
We disagree. Whether sufficient evidence exists to support a conviction may be	14
raised for the first time on appeal. See State v. Stein, 1999-NMCA-065, ¶ 9, 127	15
2 Defendant argued that he was engaged in conduct protected by the First
Amendment and had broken no laws when officers detained him and demanded he
produce 	identification. 	Because 	we 	conclude 	that 	the 	officers 	were 	without
reasonable 	suspicion 	to 	detain 	Defendant, 	we 	need 	not 	address 	Defendant’s
argument that his conduct was protected by the First Amendment. See Schlieter v.
Carlos, 1989-NMSC-037, ¶ 13, 108 N.M. 507, 775 P.2d 709 (“It is an enduring
principle 	of 	constitutional 	jurisprudence 	that 	courts 	will 	avoid 	deciding
constitutional questions unless required to do so.”).

5
N.M. 362. 981 P.2d 295 (concluding sufficiency of the evidence to meet the	1
elements of an offense may be raised for the first time on appeal). Moreover, defense	2
counsel argued below that the officers did not have reasonable suspicion to	3
investigate Defendant’s disorderly conduct and invoked a ruling from the district	4
court. Thus, Defendant’s argument was properly preserved.	5
{6} 	Whether evidence is sufficient to support a verdict requires an inquiry into	6
whether direct or circumstantial evidence exists “to support a verdict of guilt beyond	7
a reasonable doubt with respect to every element essential to a conviction.” State v.	8
Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. The reviewing court	9
“view[s] the evidence in the light most favorable to the guilty verdict, indulging all	10
reasonable inferences and resolving all conflicts in the evidence in favor of the	11
verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.	12
To justify a conviction, the evidence in the record must affirmatively establish every	13
essential element of an offense charged. State v. Losolla, 1972-NMCA-085, ¶ 4, 84	14
N.M. 151, 500 P.2d 436. As we explain below, reasonable suspicion is an element	15
of each of the charges against Defendant and therefore, we consider whether this	16
element was met in analyzing the sufficiency of the evidence.	17
A. 	Reasonable Suspicion as an Element of the Charges	18
{7} 	The elements of the LCMC charges for evading an officer and concealing	19
identity are identical to their state law counterparts, differing only in penalty.	20

6
Compare Las Cruces, N.M., Code of Ordinances, art. V, § 19-296(a)(2) (defining	1
evading an officer as “[i]ntentionally fleeing, attempting to evade or evading an	2
officer of this state when the person committing the act of fleeing, attempting to	3
evade or evasion has knowledge that the officer is attempting to apprehend or arrest	4
him”) 	with 	NMSA 	1978, 	Section 	30-22-1(B) 	(1981) 	(establishing 	identical	5
elements) and Las Cruces, N.M., Code of Ordinances, art. I, § 19-4 (defining	6
concealing identity as “concealing one’s true name or identity, or disguising oneself	7
with the intent to obstruct the due execution of the law or with intent to intimidate,	8
hinder or interrupt any public officer or any other person in a legal performance of	9
his duty or the exercise of his rights under the laws of the United States or of this	10
state.”) with NMSA 1978, § 30-22-3 (1963) (establishing identical elements). As	11
such, we apply our established jurisprudence to determine whether the City was	12
required to prove that the officers had reasonable suspicion to detain Defendant as	13
an element of both charges.	14
{8} 	Like its state statute counterpart, one of the essential elements of the LCMC	15
crime for evading an officer is that “the person committing the act of . . . evasion	16
has knowledge that the officer is attempting to apprehend or arrest him[.]”Las	17
Cruces, N.M., Code of Ordinances, art. V, § 19-296(a)(2). Our Supreme Court in	18
State v. Gutierrez, stated that the definition of “apprehend” in Section 30-22-1(B)	19
means a “seizure[] in the name of the law” and equated such an apprehension “to	20

7
include a situation in which an officer is attempting to briefly detain a person for	1
questioning based on reasonable suspicion.” 2007-NMSC-033, ¶ 30, 142 N.M. 1,	2
162 P.3d 156 (internal quotation marks and citation omitted). Hence, our Supreme	3
Court 	concluded 	that 	the 	presence 	of 	reasonable 	suspicion 	is 	crucial 	to 	a	4
determination of sufficiency of the evidence for evading and eluding an officer	5
because if the detaining officer lacked reasonable suspicion then he also lacked the	6
legal authority to detain the defendant.3 Id. ¶ 32.Further, like the state statute, one of	7
the elements of concealing identity pursuant to Las Cruces, N.M., Code of	8
Ordinances, art. I, Section 19-4 requires proof that the officer is acting “in a legal	9
performance of his duty.” See Las Cruces, N.M., Code of Ordinances, art. I, § 19-4;	10
Section 30-22-3. In Ortiz, this Court recognized well-established law that “[a]n	11
officer detaining a suspect for the purpose of requiring him to identify himself, has	12
conducted a seizure subject to the requirements of the Fourth Amendment.” 2017-	13
NMCA-006, ¶ 12. Reasonable suspicion is required for such a seizure. See id.; State	14
v. Dawson, 1999-NMCA-072, ¶ 21, 127 N.M. 472, 983 P.2d 421 (concluding that	15
3 We note that the City relies on the right to resist an unlawful arrest on appeal.
Defendant here, however, was charged only pursuant to Las Cruces, N.M., Code of
Ordinances, art. V, § 19-296(a)(2) for conduct alleged to have constituted fleeing or
evading, rather than conduct alleged to have constituted resisting. The reasonable
suspicion analysis for evading is different from the analysis undertaken when a
defendant is charged with resisting arrest through the use of force. See, e.g., State v.
Doe, 1978-NMSC-072, ¶ 14, 92 N.M. 100, 583 P.2d 464 (“An arrest undertaken
without probable cause does not vitiate all the authority of the arresting officer.”).

8
unless there is reasonable suspicion to believe the defendant was 	involved in	1
criminal activity, it violates the Fourth Amendment to require the defendant to	2
produce identification). Consequently, we held that absent reasonable suspicion to	3
detain, the seizure of the defendant was unlawful, and the prosecution failed to prove	4
that the officer was in the legal performance of her duty. See Ortiz, 2017-NMCA-	5
006, ¶ 12. Accordingly, to assess the sufficiency of the evidence for the crimes of	6
evading an officer and concealing identity, we must address whether the evidence at	7
trial established the existence of reasonable suspicion, giving the officers legal	8
authority to detain Defendant	9
B. 	The Officers’ Lacked Reasonable Suspicion to Detain Defendant	10
{9} 	“Reasonable suspicion exists where an officer can point to specific articulable	11
facts, 	together 	with 	rational 	inferences 	from 	those 	facts 	that, 	when 	judged	12
objectively, would lead a reasonable person to believe criminal activity occurred or	13
was occurring.” Id. ¶ 13 (internal quotation marks and citation omitted). Although	14
reasonable suspicion may be supported by “wholly lawful conduct, it may not be	15
based on unsupported intuition and inarticulate hunches.” Id. (alteration, internal	16
quotation marks, and citation omitted). It is necessary to review the degree of	17
suspicion that attaches to particular conduct and not whether the conduct itself is	18
“innocent” or “guilty” to analyze the existence of reasonable suspicion. Id.	19

9
{10} 	The district court—apparently without regard to the neighbor’s testimony—	1
concluded that the officers had reasonable suspicion to investigate disorderly	2
conduct based on the fact that Defendant loudly criticized police. Disorderly conduct	3
consists of: “[e]ngaging in violent, abusive, profane, boisterous, unreasonably loud	4
or otherwise disorderly conduct which tends to disturb the peace[.]” Las Cruces,	5
N.M., Code of Ordinances, art. III, § 19-87(a)(1) (1988); see also NMSA 1978,	6
Section 30-20-1(A) (1967) (establishing same elements). Conduct is not criminal, or	7
suspicious, simply because it is boisterous or unreasonably loud; the conduct must	8
also tend to disturb the peace. See State v. Salas, 1999-NMCA-099, ¶ 12, 127 N.M.	9
686, 986 P.2d 482 (determining that the offense of disorderly conduct “has two	10
elements: the conduct itself and the tendency of the conduct to disturb the peace”).	11
This is particularly true when the conduct at issue is comprised of words alone. New	12
Mexico courts have criminalized only limited classes of speech: “the lewd and	13
obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those	14
which by their very utterance inflict injury or tend to incite an immediate breach of	15
the peace.” State v. James M., 1990-NMCA-135, ¶ 11, 111 N.M. 473, 806 P.2d 1063	16
(internal quotation marks and citation omitted). The public’s sensibilities are tough	17
enough that, typically, the act of yelling alone does not shatter public order or	18
threaten to do so. See, e.g., State v. Hawkins, 1999-NMCA-126, ¶ 13, 128 N.M. 245,	19
991 P.2d 989 (“The mere fact that people may have heard [the d]efendant’s remarks,	20

10
however loud or offensive they may have been, is insufficient to support a charge of	1
disorderly 	conduct.”). 	Although 	the 	Legislature 	has 	not 	specifically 	defined	2
“conduct that tends to disturb the peace,” our Supreme Court has implicitly defined	3
it as “a disturbance of public order by an act of violence, or by an act likely to	4
produce violence, or which, by causing consternation and alarm, disturbs the peace	5
and quiet of the community.” State v. Florstedt, 1966-NMSC-208, ¶ 7, 77 N.M. 47,	6
419 P.2d 248 (internal quotation marks and citation omitted). Our Supreme Court	7
has instructed that we construe the disorderly conduct statute narrowly, and “unless	8
the acts [that are alleged] fall clearly within the statute, they are not disorderly. State	9
v. Correa, 2009-NMSC-051, ¶ 22, 147 N.M. 291, 222 P.3d 1 (alteration, internal	10
quotation marks, and citation omitted).	11
{11} 	In its ruling that Defendant’s conduct toward the officers provided reasonable	12
suspicion to investigate disorderly conduct, the district court explained:	13
[Y]ou’re not allowed to be so boisterous and so loud to police officers,	14
and accusing, and threatening—I think that was the disorderly conduct.	15
When police officers approach us and want to investigate something,	16
it’s “yes” or “no, sir”, or somebody can end up dead. . . . When a police	17
officer approaches you and asks you for ID, you give it to them. That’s	18
the way that goes. Now if you’re just standing on the street, I guess,	19
you know and doing absolutely nothing, which is not your situation, I	20
suppose you legally have a right not to give your ID, but then you	21
probably are making a judgment call that you need to let a judge make.	22
Contrary to the district court’s reasoning, our Supreme Court and this Court have	23
applied the rule that in most instances “arguing with a police officer, even when	24

11
using profane and insulting words, will not be enough to constitute disorderly	1
conduct, unless the words are coupled with threatening behavior.” Correa, 2009-	2
NMSC-051, ¶ 26 (internal quotation marks and citation omitted); see Salas, 1999-	3
NMCA-099, 	¶ 20 	(affirming 	a 	conviction 	for disorderly conduct 	where 	the	4
defendant’s profane language was accompanied by the defendant approaching law	5
enforcement 	with 	clenched 	fists); 	Hawkins, 	1999-NMCA-126, 	¶¶ 	19-20	6
(distinguishing Salas and reversing the defendant’s disorderly conduct conviction	7
where the defendant solely argued with law enforcement and did not verbalize	8
threats or exhibit any threatening behaviors). Merely yelling obscenities at an	9
officer, without more, does not create reasonable suspicion to investigate or probable	10
cause to arrest for disorderly conduct.4 See City of Alamogordo v. Ohlrich, 1981-	11
NMCA-028, ¶ 5, 95 N.M. 725, 625 P.2d 1242 (holding that the defendant who yelled	12
profanity at an officer did not violate city ordinance prohibiting disorderly conduct);	13
see also State v. Wade, 1983-NMCA-084, ¶ 17, 100 N.M. 152, 667 P.2d 459	14
(screaming obscenities and yelling “get the hell out of the house” do not constitute	15
fighting words, particularly when addressed to police officers who are expected to	16
exercise restraint).	17
4 Although the district judge implied that Defendant’s conduct was accusing
and threatening, our review of the record and lapel tape is devoid of evidence that
Defendant by word or action made any threats to the officers and neither party has
asserted on appeal that Defendant’s criticisms of the officers were threatening.

12
{12} 	“Police officers, by nature of their training, are generally expected to have a	1
higher tolerance for offensive conduct and language.” James M., 1990-NMCA-135,	2
¶ 17. As our Supreme Court pointed out in Correa: “We are not indifferent to the	3
officers in the case.” 2009-NMSC-051, ¶ 30. These officers play an invaluable role	4
in serving 	and protecting our community, and 	unfortunately, they are often	5
subjected, as they were here, to ill-advised behavior. “However, it is because of their	6
degree of skill, training, and experience that we rely on officers,” not only to	7
complete their duties, but “not to react to verbal provocation, at the risk of escalating	8
a situation 	rife with 	conflict.” 	Id. Without 	evidence of anything 	more than	9
Defendant’s loud remarks and cell phone recording of the officers, all of which	10
occurred in their presence, the testimony did not give rise to an objectively	11
reasonable suspicion that Defendant had committed or was committing the crime of	12
disorderly conduct. Id. (“[W]ithout evidence of anything more than profane and	13
vulgar remarks, the evidence is insufficient to support [the d]efendant’s [disorderly	14
conduct] conviction based on what he said to the officers.”); see Hawkins, 1999-	15
NMCA-126, ¶ 13 (“New Mexico is among the states that holds police officers to a	16
higher standard of tolerance for abuse or offensive language. In fact, New Mexico	17
decided this issue years ago[.]” (citation omitted)).	18
{13} 	We next address the City’s argument that, even in the absence of reasonable	19
suspicion to investigate disorderly conduct, Defendant’s repeated refusal to produce	20

13
identification or, following this refusal, to respond to officer commands not to walk	1
away justified Defendant’s detention and arrest. While the City is correct that	2
officers “do not need justification to approach a person and ask that person	3
questions,” this is true only so long as the person remains free to leave and is not	4
required to answer their questions. State v. Jason L., 2000-NMSC-018, ¶ 14, 129	5
N.M. 119, 2 P.3d 856 (“The police do not need any justification to approach a person	6
and ask that individual questions; however, the officer may not convey a message	7
that compliance with their requests is required.” (internal quotation marks and	8
citation omitted)). “[A] person has the constitutional right to walk away from an	9
officer who lacks reasonable suspicion and simply wants to question the person[.]”	10
Gutierrez, 	2007-NMSC-033, ¶ 	31. 	A defendant 	who 	flees 	a 	seizure that 	is	11
unsupported by reasonable suspicion cannot be punished for exercising his right to	12
end the encounter and walk away. See id. ¶ 35.	13
{14} 	In sum, the officers did not have reasonable suspicion to detain Defendant and	14
demand his identification, see id. ¶ 32 (explaining that when an officer approaches	15
a person without reasonable suspicion, “the person approached need not answer any	16
question put to him; indeed, he may decline to listen to the questions at all and may	17
go on his way” (omission, alteration, internal quotation marks, and citation	18
omitted)). Absent reasonable suspicion, there was no basis for the seizure of	19
Defendant. See Ortiz, 2017-NMCA-006, ¶ 13; Dawson, 1999-NMCA-072, ¶ 21.	20

14
{15} 	Lastly, to the extent the City argues that it was reasonable for the officers to	1
detain defendant to investigate his yelling and whether he was disturbing the	2
tranquility of the community, we disagree. See Florstedt, 1966-NMSC-208, ¶ 7. The	3
evidence does not support a conclusion that it was reasonable for the officers to	4
investigate Defendant’s conduct as tending to cause “consternation and alarm.” See	5
id. (holding that conduct which tends to disturb the peace must be an act of or likely	6
to produce violence or “which, by causing consternation and alarm, disturbs the	7
peace and quiet of the community” (internal quotation marks and citation omitted)).	8
Our review of the record does not reveal, nor does the City point to, any threatening	9
behavior or violent conduct accompanying Defendant’s verbal criticisms and cell	10
phone recording of the officers. Additionally, the record does not reflect that	11
Defendant’s behavior toward the officers tended to have any effect on others at all,	12
let alone that it rose to the level of tending to cause “alarm” amongst his neighbors.	13
While the testimony established that a neighbor came out of his home during the	14
encounter between officers and Defendant, Defendant was not the reason that the	15
neighbor came outside. The officers’ testimony did not articulate any objective facts	16
which would establish that Defendant’s conduct tended to disturb the peace. Indeed,	17
the record is void of any evidence that Defendant’s yelling and cell-phone recording	18
annoyed or bothered anyone other than the officers. See, e.g., Hawkins, 1999-	19
NMCA-126, ¶ 13 (holding that there must be evidence that those who heard a	20

15
defendant’s remarks were negatively affected by or reacted to the statements in order	1
to show that remarks were likely to incite listeners to breach the peace because “[t]o	2
hold otherwise would be to allow police routinely to add disorderly conduct charges	3
to any underlying charges because it is not uncommon for those being arrested to	4
become belligerent and for crowds to gather at the sight of an arrest”). Without more,	5
Defendant’s loud criticism of the police and his act of recording them on his cell	6
phone were not enough to provide an objectively reasonable suspicion to investigate	7
Defendant for disturbing the tranquility of the community.	8
{16} 	Absent reasonable suspicion establishing the officers’ legal authority to detain	9
Defendant, there was insufficient evidence to support Defendant’s convictions for	10
evading 	arrest 	and 	concealing 	identity. 	Accordingly, 	we do 	not 	address the	11
remaining elements of the charges.	12
CONCLUSION	13
{17} 	The evidence presented at trial was insufficient to support Defendant’s	14
convictions and therefore, we reverse Defendant’s convictions, remand for entry of	15
an amended order vacating his convictions with prejudice, and do not permit retrial	16
in this case. See State v. Roper, 2001-NMCA-093, ¶ 23, 131 N.M. 189, 34 P.3d 133	17
(“If there was insufficient evidence to support the [charge] for which [the d]efendant	18
was convicted and sentenced, the remedy would be a discharge, not a new trial.”);	19

16
Gutierrez, 2007-NMSC-033, ¶ 25 (stating that if there was insufficient evidence to	1
support a conviction, the double jeopardy clause bars retrial).	2
{18} 	IT IS SO ORDERED.	3
_____________________________	4
BRIANA H. ZAMORA, Judge	5
WE CONCUR:	6
_______________________________	7
LINDA M. VANZI, Judge	8
_______________________________	9
JACQUELINE R. MEDINA, Judge	10