State v. Penman

                                                         Office of the
                                                             Director                      New Mexico
                                                                                           Compilation
                                                          2022.12.05                       Commission
                                                     '00'07- 09:07:26
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: June 23, 2022

No. A-1-CA-39025

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

KENTOINE JWAYNE PENMAN,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Mark Terrence Sanchez, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Kennedy Kennedy & Ives
Joseph P. Kennedy
Laura Schauer Ives
Albuquerque, NM

for Appellant

                                       OPINION

MEDINA, Judge.

{1}    Defendant Kentoine Penman entered a conditional plea of no contest to two
counts of possession of a controlled substance (NMSA 1978, § 30-31-23(A) (2011,
amended 2021)); one count of battery upon a peace officer (NMSA 1978, § 30-22-24
(1971)); one count of assault on a peace officer (NMSA 1978, § 30-22-21(A)(1) (1971));
one count of resisting, evading or obstructing an officer (NMSA 1978, § 30-22-1(D)
(1981)); one count of pedestrians on roadways (NMSA 1978, § 66-7-339 (1978,
amended 2018)); and one count of possession of marijuana (Section 30-31-23(B)(1)).
Defendant reserved the right to appeal the denial of two pretrial motions (1) to dismiss
the criminal information, pursuant to State v. Foulenfont, 

, 

, 

 (Foulentfont Motion), and to suppress all evidence and statements
obtained as a result of an unlawful seizure; and (2) to suppress all evidence and
testimony obtained in violation of the Fourth Amendment of the United States
Constitution and Article II, Section 10 of the New Mexico Constitution, pursuant to State
v. Ochoa, 

, 

, 

 (Ochoa Motion). We reverse
the denial of the motion to dismiss as to the count of the pedestrians on roadways
charge, but affirm the denial of the counts of battery, assault, and resisting, evading or
obstructing an officer charges. We also affirm the district court’s denial of Defendant’s
Ochoa Motion , holding that under the new crime exception, evidence of the battery;
assault; resisting, evading or obstructing an officer; controlled substances; and
marijuana charges are admissible.

BACKGROUND

{2}      The following facts are based on testimony presented during an evidentiary
hearing on Defendant’s State v. Ware, 

, 

, 

(Ware Motion), and Foulenfont motions, and the statement of probable cause
supporting the criminal complaint. On an evening in June 2018 following completion of a
traffic stop in a residential neighborhood, Hobbs Police Department Officers Jaimes,
Martinez, and Gastelum drove further down the street from that traffic stop with their
emergency lights activated, in order to detain and question two men, one of whom was
Defendant, who were standing in the middle of the street. As the officers approached in
their vehicles, the two men walked back toward the sidewalk. Once there, Officer
Jaimes questioned Defendant on the sidewalk near where he was standing in the road.

{3}     Although Officer Jaimes had not seen the men walking on or along the road, he
testified that he had “reasonable suspicion to believe that at some point [the two men]
walked and got in the middle of the road” and that “[s]tanding in the middle of the road
was good enough” to detain and investigate the two men for violating the pedestrians on
roadways statute. See § 66-7-339(A) (“Where sidewalks are provided it shall be
unlawful for any pedestrian to walk along and upon an adjacent roadway.”). 1

{4}    Officer Jaimes asked Defendant for his identification during the stop and then
communicated with a dispatch officer in order to ascertain whether Defendant had any
outstanding warrants. Officer Jaimes explained that his standard operating procedure is
to not cite individuals for violating Section 66-7-339 if they are “polite,” but he will cite
them if he discovers they have previously been warned. While Officer Jaimes spoke
with Defendant, Officer Martinez interacted with a group of people who were standing
nearby, and Officer Gastelum investigated the second man who was seen standing in
the middle of the street for a violation of Section 66-7-339.


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, 

, 

 (“[T]he law in effect at the time a criminal offense
is committed is controlling.”).
{5}    Shamus Wright, an onlooker (and the defendant in a related case, City of Hobbs
v. Wright, A-1-CA-39028, mem. op. (N.M. Ct. App. Feb. 16, 2022) (nonprecedential)),
verbally objected to Officer Jaimes’s investigation of Defendant, causing Officers
Martinez and Gastelum to focus on Mr. Wright. Soon thereafter, Officer Jaimes told
Defendant to “hang on,” and walked away from Defendant to assist in the arrest of Mr.
Wright. Officer Jaimes did not recall if he had given Defendant his identification back
when he left to assist in the arrest.

{6}     Defendant did not remain where Officer Jaimes left him, but instead walked
toward the officers and began filming the arrest of Mr. Wright on his phone. Defendant
was standing less than two to three feet away from the officers when Officer Jaimes
ordered Defendant to step back in order to increase the space between Defendant and
Officer Martinez. Although not immediately, Defendant ultimately complied with the
order, but then circled around Officer Jaimes and continued filming as Officer Martinez
placed Mr. Wright in his patrol vehicle. At this time, Defendant was approximately four to
five feet behind Officer Martinez. Officer Martinez told Defendant that he was placing
him under arrest because “he was already told once to back away.”

{7}     Officer Martinez attempted to grab Defendant by the wrist to arrest him, but
Defendant pushed Officer Martinez away and fled. Officer Martinez chased Defendant
and physically forced Defendant to stop. Interpreting Defendant’s stance as an act of
aggression, Officer Martinez tackled Defendant to the ground and placed him under
arrest.

{8}    A baggy containing a white powdery substance was found where Defendant was
arrested, and baggies containing a green leafy substance and a white crystalline
substance were found in the patrol vehicle where Defendant was placed. The contents
of the baggies tested positive for cocaine, marijuana, and methamphetamine,
respectively. Defendant admitted the cocaine and marijuana were his, but denied
possession of the methamphetamine.

{9}   Defendant was charged with two counts of possession of a controlled substance;
one count of battery upon a peace officer; one count of assault upon a peace officer;
one count of resisting, evading or obstructing an officer; one count of pedestrians on
roadways; and one count of possession of marijuana.

{10} Defendant moved to dismiss the criminal information, in which he argued that the
pedestrians on roadways; battery upon a peace officer; assault upon a peace officer;
and resisting, evading or obstructing an officer charges were subject to dismissal under
Foulenfont. Defendant additionally argued that all evidence and statements flowing from
the stop should be suppressed because Officer Jaimes lacked reasonable suspicion to
investigate him for violating Section 66-7-339. Defendant also moved to suppress all
evidence under Ware because of the lack of lapel camera footage. The State
responded that dismissal under Foulenfont would be inappropriate because the
evaluation of the stop was not a purely legal question, but instead involved questions of
fact. The State argued in addition that the investigatory stop was supported by
reasonable suspicion, and if not, given “Defendant’s use of force against [Officer
Martinez],” evidence of Defendant’s drug offenses, battery, assault, and resisting,
evading or obstructing an officer charges were admissible under the new crime
exception to the exclusionary rule citing State v. Tapia, 

, 

. Defendant did not file a written reply responding to the State’s new crime
exception argument.

{11} The district court held an evidentiary hearing on the Foulenfont and Ware
motions. At the close of evidence, Defendant argued that the officers were not acting in
the lawful discharge of their duties because they lacked reasonable suspicion to believe
Defendant violated Section 66-7-339. The State argued the officers had reasonable
suspicion and reiterated that if the court found the officers lacked reasonable suspicion,
the evidence of Defendant’s crimes, not including pedestrians on roadways, should be
admitted under the new crime exception because the facts of the case were sufficient to
satisfy the attenuation doctrine factors. Defendant did not address the State’s new crime
exception argument. The district court announced that it would deny the Ware and
Foulenfont motions and set a deadline for the parties to file requested findings of fact
and conclusions of law. Although the State timely filed requested findings of fact and
conclusions of law as to both motions, Defendant did not do so. The district court then
entered findings of fact and conclusions of law for Defendant’s Foulenfont and Ware
motions. The following day Defendant untimely filed proposed findings of facts and
conclusions of law.

{12} Defendant next moved to suppress all evidence under Ochoa, arguing that the
initial stop was pretextual. Defendant argued first that Officer Jaimes lacked reasonable
suspicion to stop Defendant; and second that the stop was pretextual because (1) the
purpose of the stop was “to run random wants and warrants checks on people living in
the area”; (2) Defendant was ultimately charged with offenses unrelated to the stop; (3)
the officers failed to follow proper body camera procedures; and (4) there was no actual
threat to traffic safety. The district court summarily denied Defendant’s Ochoa Motion,
finding that the motion was “not well taken and should be denied.” Five months after the
denial of Defendant’s Ochoa Motion, Defendant filed an offer of evidentiary proof
regarding racial demographics and pedestrians on roadways stops over a two-year
period in Hobbs, as well as excerpts from a deposition taken of a fellow Hobbs police
officer regarding Officer Jaimes’s police practices. With his offer of proof, Defendant did
not renew or request the district court to reconsider the denial of his Ochoa Motion.

{13}   Defendant then entered a conditional plea, and this appeal followed.

DISCUSSION

I.     Defendant’s Motion to Dismiss Under Foulenfont

{14} Defendant contends the district court erred in denying his motion to dismiss the
charges of pedestrians on roadways; battery upon a peace officer; assault upon a
peace officer; and resisting, evading or obstructing an officer under Foulenfont. We hold
that the district court erred in denying Defendant’s motion to dismiss the pedestrians on
roadways charge, but affirm the district court as to Defendant’s remaining charges.

{15} “In Foulenfont, we stated that it was proper for a district court to decide purely
legal matters and dismiss a case when appropriate before trial.” State v. LaPietra, 2010-
NMCA-009, ¶ 7, 

, 

. “Questions of fact, however, are the
unique purview of the jury and, as such, should be decided by the jury alone.” 

 A
Foulenfont motion “may not be used to test the sufficiency of the [s]tate’s evidence to
establish the elements of the charged crime.” State v. Platero, 

, ¶ 8,

. Instead, “the underlying question is whether the undisputed facts—
whether stipulated to by the state or alleged in the indictment or information—show that
the state cannot prove the elements of the charged offense at trial, thereby making a
trial on the merits unnecessary.” Id. ¶ 9 (alterations omitted) (citing State v. Pacheco,

, 

); see also Rule 5-601(C) NMRA (“Any defense,
objection or request which is capable of determination without a trial on the merits may
be raised before trial by motion.”). Stated “[m]ore succinctly, [the question is] whether
the state could reasonably assert the availability of additional evidence.” Platero, 2017-
NMCA-083, ¶ 9 (internal quotation marks and citation omitted). Whether a district court
properly grants or denies a defendant’s motion to dismiss under Foulenfont presents a
question of law that we review de novo. State v. Winn, 

, ¶ 9, 

.

{16} We first address whether Defendant was entitled to pretrial dismissal of his
pedestrians on roadways charge and, relatedly, whether the officer had reasonable
suspicion to stop and investigate Defendant for this offense. We then address whether
Defendant was entitled to pretrial dismissal of his battery, assault, and resisting,
evading or obstructing an officer charges.

A.     Pedestrians on Roadways

{17} Defendant contends he was entitled to dismissal of his pedestrians on roadways
charge because (1) the plain language of Section 66-7-339(A) requires a pedestrian to
walk “along and upon an adjacent roadway” to a sidewalk, and merely standing in the
middle of a residential street without more, as a matter of law, was insufficient to
establish a violation of Section 66-7-339; and (2) “[a]ny other reasonable officer . . .
would not have asserted reasonable suspicion that [Defendant] was doing anything
wrong by standing in [the middle of the] residential street.” The State responds that (1)
the purpose of Section 66-7-339 is “to prohibit pedestrians from being in the middle of
the street where they could impede traffic and thereby endanger themselves and
drivers”; (2) whether a person is standing or walking in the street is irrelevant; (3) “in any
event [the officer] could reasonably infer that Defendant walked into the road”; and (4)
Defendant’s interpretation of the statute would lead to an absurd result. Defendant
replies that the statute does not intend to criminalize standing in a roadway based on
the plain language of Section 66-7-339 and that the Motor Vehicle Code contemplates a
lawful use of roadways by pedestrians.
{18} Defendant’s argument that standing in the middle of a residential street without
evidence of walking along the street, as a matter of law, was insufficient to establish a
violation of Section 66-7-339 involves an issue of statutory interpretation. Issues of
statutory interpretation are issues of law that we review de novo. State v. Holt, 2016-
NMSC-011, ¶ 9, 

. “The plain language of the statute is the primary
indicator of legislative intent, so we look first to the words the Legislature used and their
ordinary meaning.” State v. Gutierrez, 

, 

, 

. “Under the plain meaning rule, when a statute’s language is clear and
unambiguous, we will give effect to the language and refrain from further statutory
interpretation.” State v. Hubble, 

, 

, 

(internal quotation marks and citation omitted). In applying the plain meaning rule, we
additionally consider the “context surrounding a particular statute, such as its history, its
apparent object, and other [related] statutes.” State v. Cleve, 

, 

, 

.

{19}   Section 66-7-339 states:

       A.    Where sidewalks are provided it shall be unlawful for any
       pedestrian to walk along and upon an adjacent roadway.

       B.     Where sidewalks are not provided any pedestrian walking along
       and upon a highway shall when practicable walk only on the left side of
       the roadway or its shoulder facing traffic which may approach from the
       opposite direction.

{20} The plain language of Subsection (A) prohibits pedestrians from “walk[ing]” along
a roadway where sidewalks are provided, and does not include the word “standing.” In
addition the term “walk” is modified by the term “along,” meaning “in a line parallel with
the length or direction.” Webster’s Third New Int’l Dictionary (2002); see State v. Boyse,

, 

 (recognizing that we use the dictionary for
guidance when determining the plain meaning of statutory language). Reading
Subsection (A) together with Subsection (B), which requires a pedestrian, in the
absence of sidewalks, to walk along the left side of the roadway or its shoulder facing
traffic when practicable, we conclude that Section 66-7-339(A) prohibits the act of
walking “along and upon an adjacent roadway” when sidewalks are provided. As such,
we find the State’s argument that whether Defendant was “walking” or “standing” is
irrelevant under the statute unpersuasive.

{21} Furthermore, construing the statute to prohibit standing in the middle of the
roadway, as urged by the State, would require this Court to read language into
Subsection (A) that is not there, and ignore the explicit prohibition of “walking along and
upon,” neither of which we will do. See State v. Trujillo, 

, 

, 

 (“We will not read into a statute any words that are not there,
particularly when the statute is complete and makes sense as written.”); see also State
v. Montoya, 

, 

 (noting that “a statute must be
construed so that no part of the statute is rendered surplusage or superfluous”
(alteration, internal quotation marks, and citation omitted)).

{22} To the extent the State also argues that the purpose of Section 66-7-339 is “to
prohibit pedestrians from being in the middle of the street where they could impede
traffic and thereby endanger themselves and drivers,” we note that Officer Jaimes
testified there was no other traffic in the area other than the vehicle he had previously
stopped. And although we agree that a general purpose of the statute is safety, we do
not agree that the Legislature intended for anyone who is observed standing in the
middle of the roadway; however briefly, for any possible reason, to be subject to
punishment under the statute. Such an interpretation fails when “viewed under the lens
of practicality” and when the statute clearly identifies that the conduct subject to
penalty—walking along and upon an adjacent roadway when a sidewalk is otherwise
available for that purpose. State v. Goodman, 

, 

. As
this case illustrates, such an interpretation would be absurd given that Section 66-7-339
and other statutes included in the Motor Vehicle Code contemplate lawful use of
roadways by pedestrians, including pedestrians crossing a roadway at points other than
marked crosswalks. See, e.g., NMSA 1978, § 66-7-333(A) (1978) (stating that
“[p]edestrians shall be subject to traffic-control signals at intersections” and “at all other
places pedestrians shall be accorded the privileges and shall be subject to the
restrictions stated in [Sections] 66-7-333 [to] . . . -340 [(1978, as amended through
2018)]”); § 66-7-335(A) (requiring pedestrians to yield the right of way to vehicles on the
roadway while crossing at any point other than within a marked crosswalk); § 66-7-337
(stating drivers must exercise due care to avoid accidents with any pedestrian on a
roadway).

{23} We, therefore, hold that the elements the State must show to prove a violation of
Section 66-7-339(A) are (1) defendant was walking along and upon an adjacent
roadway; and (2) a sidewalk was provided. We now apply Section 66-7-339(A) to the
facts of this case.

1.     Defendant Was Entitled to Pretrial Dismissal of His Pedestrians on
       Roadways Charge

{24} In reviewing rulings on motions to dismiss under Foulenfont, we look to the facts
as alleged in the indictment and presented at the pretrial hearing to determine if the
State could not prove these elements, making a trial unnecessary. See Platero, 2017-
NMCA-083, ¶ 11. Officer Jaimes testified at the preliminary hearing and reaffirmed
during the later evidentiary hearing that he did not see Defendant walking on the road.
Rather, he testified that Defendant was only standing. And in the proceedings below
and on appeal, the State does not contest that the officers did not see Defendant
walking along the road. Instead, the State asserts that the officer “could reasonably infer
that Defendant walked into the road” and that showing Defendant was walking is
unnecessary.
{25} As discussed above, Section 66-7-339(A) makes it unlawful for a defendant to
walk along and upon an adjacent roadway when a sidewalk is provided. Testimony at
both the preliminary hearing and at the later evidentiary hearing indicates no officer
observed Defendant walking along and upon the road when Officer Jaimes stopped
him. In light of the uncontradicted facts presented, the State is unable to show as a
matter of law that Defendant violated Section 66-7-339(A), and a trial was unnecessary.
See Platero, 

, ¶ 11. We, therefore, reverse the district court’s denial of
Defendant’s motion to dismiss the pedestrians on roadways charge under Foulenfont. 2

2.      The Officer Lacked Reasonable Suspicion to Stop and Investigate
        Defendant

{26} Despite having reversed the district court as to Defendant’s pedestrians on
roadways charge under Foulenfont, we address Defendant’s contention that the officers’
observation of Defendant standing in the middle of the road without more did not
amount to reasonable suspicion that he was or had been violating Section 66-7-339(A).
We do so as it is relevant to our later analysis of the district court’s denial of Defendant’s
motion to suppress under Ochoa.

{27} Defendant contends Officer Jaimes lacked reasonable suspicion to stop and
investigate him for violating Section 66-7-339(A) because Officer Jaimes did not see
him walking in the street. “Questions of reasonable suspicion are reviewed de novo by
looking at the totality of the circumstances to determine whether the detention was
justified.” Hubble, 

 (internal quotation marks and citation omitted).
“A reasonable suspicion is a particularized suspicion, based on all the circumstances
that a particular individual, the one detained, is breaking, or has broken, the law.” Id. ¶ 8
(internal quotation marks and citation omitted). “We will find reasonable suspicion if the
officer is aware of specific articulable facts, together with rational inferences from those
facts, that, when judged objectively, would lead a reasonable person to believe criminal
activity occurred or was occurring.” Id. (internal quotation marks and citation omitted).

{28} The State does not dispute that there was no testimony or evidence of Defendant
walking, and instead contends that “Officer Jaimes could reasonably infer that
Defendant walked into the road.” But, as we concluded above, the elements of Section
66-7-339(A) are “walk[ing] along and upon an adjacent roadway” when “sidewalks are
provided.” Thus, the question is not whether Officer Jaimes had reasonable suspicion to
believe Defendant had walked into the road, but rather along and upon the road.

{29} Our review of New Mexico law reveals that no case has addressed whether an
officer’s observation of a pedestrian standing in the middle of a road is sufficient to
provide reasonable suspicion to believe the pedestrian “walk[ed] along and upon” the
road in violation of Section 66-7-339. However, the Washington Court of Appeals, in an


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.
unpublished opinion, 3 recently rejected an argument that a Terry stop was supported by
reasonable suspicion of a pedestrian on the roadway, where the pedestrian was
standing in the middle of the road. See State v. J.Y.A.-V., 

, *5-6
(Wash. Ct. App. 2021) (unpublished) (rejecting the state’s argument that the officer
could reasonably expect the defendant “would have to move at some point” when
attempting to justify a stop under Wash. Rev. Code Ann. Section 46.61.250 (2019,
amended 2022), 4 which is substantially similar to Section 66-7-339 when the officer
testified that the defendant “was standing next to the pickup truck, not that she was
walking or otherwise moving along and upon a highway” and “[t]here was no evidence
to support a reasonable suspicion that [the defendant] was about to start walking down
the prohibited right side of the roadway”).

{30} And jurisdictions with similarly worded statutes 5 have found reasonable suspicion
or probable cause when there is evidence or testimony that a defendant was walking or
running in the street at the time of the stop. See, e.g., People v. Binet, 

 (N.Y. App. Div. 2017) (affirming the trial court’s denial of the defendant’s motion
to suppress for lack of reasonable suspicion and concluding the officers had reasonable
suspicion to stop the defendant for violating New York Vehicle and Traffic Law Section
1156 (pedestrians on roadway) because the officers witnessed the defendant walking in
the street); State v. Landers, No. A-09-587, 

, at *1-3 (Neb. Ct. App.
Dec. 8, 2009) (affirming the trial court’s denial of the defendant’s motion to suppress
finding that the officers had probable cause to arrest the defendant for violating Neb.
Rev. Stat. Section 60-6, 156(1) because the evidence showed the defendant walking in
the middle of the street when sidewalks were provided and reasonable suspicion that
other criminal activity was afoot); State v. Darling, No. 0607014245, 

,
at *4, *7 (Del. Super. Ct. July 3, 2007) (order) (finding that the stop of the defendant was
constitutionally reasonable and denying the defendant’s motion to suppress because
the officer observed a clear violation of Del. Code Ann. tit. 21, Section 4146(c) (similar
to Section 66-7-339(B)) when the defendant walked eastbound in the eastbound lane of
the street).

{31} Here, as stated above, there was no testimony that Defendant was walking along
and upon the road when Officer Jaimes stopped him. Nor did Officer Jaimes articulate
any facts that would support a reasonable inference that Defendant had walked along
and upon the adjacent road prior to the officer’s arrival. Therefore, we hold that Officer

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., 

, ¶ 11 n.1, 

, 

.
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.”).
5See, e.g., 

(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.”); 

, 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.”); 

(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.”).
Jaimes lacked reasonable suspicion to stop Defendant for a violation of Section 66-7-
339.

B.      Battery and Assault Upon a Peace Officer and Resisting, Evading or
        Obstructing an Officer

{32} Defendant argues that the district court improperly denied his Foulenfont Motion
on the battery upon a peace officer, assault upon a peace officer, and resisting, evading
or obstructing an officer charges. Specifically, Defendant maintains the officers were not
acting in the lawful discharge of their duties and lacked reasonable suspicion for the
stop, and as such “there can be no charge of resisting or obstructing an officer” or
“[f]elony assault and felony battery charges.” Defendant additionally contends the
officers were not acting in the lawful discharge of their duties because he did not resist
the officers before the officers decided to arrest him and he was “engaging in protected
First Amendment activity.” 6

{33} The statutes identifying the crimes of battery upon a peace officer, assault upon
a peace officer, and resisting, evading or obstructing an officer require, in relevant part,
that the officer be “in the lawful discharge of his duties” when the crime is committed.
See § 30-22-21(A)(1) (defining assault upon peace officer); § 30-22-24(A) (defining
battery upon peace officer); § 30-22-1(D) (defining resisting, evading or obstructing an
officer).

{34} In analyzing whether an officer was acting within his or her lawful discharge of
duties, the question “is whether the officer was performing his or her official duties.”
State v. Nemeth, 

, 

, 

 (internal quotation
marks and citation omitted), overruled on other grounds by State v. Ryon, 2005-NMSC-
005, ¶ 28, 

, 

. 7 Whether the officers are acting in the lawful

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, 

, ¶ 55, 

 (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, 

, 

, 

.
7To the extent Defendant relies on State v. Phillips, 

, 

, 

,

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
discharge of their duties is a question of fact. See State v. Mares, 

, ¶
15, 

, 

 (holding that the “trial court could not properly decide the
question of lawfulness” and the trial court’s “decision concerning lawfulness was error
because it usurped the jury’s function to decide the facts”). “When an issue involves a
specific determination or finding, especially when it is an element of the offense, it is a
question that is within the unique purview of the jury.” LaPietra, 

.
Even in instances where a defendant’s seizure is determined to be unlawful, a jury
could still find that the officers acted in the lawful discharge of their duties. See State v.
Tapia, 

, ¶ 16, 

, 

 (“[T]he fact that an arrest was
unlawful does not preclude a finding that an officer acted in the ‘lawful discharge’ of his
duties.”). Because the question of whether an officer was acting in the lawful discharge
of his or her duties is a question of fact, Defendant was not entitled to dismissal of his
remaining charges as a matter of law under Foulenfont. We, therefore, affirm the district
court’s denial of Defendant’s motion as to these charges.

II.     Defendant’s Motion to Suppress All Evidence Under Ochoa

{35} Finally, Defendant argues that the district court improperly denied his motion to
suppress, contending Officer Jaimes lacked reasonable suspicion for the stop, and that
the district court erred in failing to hold an evidentiary hearing to determine whether
Officer Jaimes instigated the stop as a pretext to search for further criminal activity, in
violation of the United States Constitution, the New Mexico Constitution, and Ochoa.
The State responds that Defendant was not seized until arrest, 8 and even if Defendant
was seized, Defendant’s physical altercation with Officer Martinez constituted a new
criminal act, therefore making the evidence admissible. “Appellate review of a motion to
suppress presents a mixed question of law and fact. We review factual determinations
for substantial evidence and legal determinations de novo.” State v. Paananen, 2015-
NMSC-031, ¶ 10, 

 (internal quotation marks and citation omitted).

{36} Ochoa provides a three-step approach the district court must follow when
determining whether a pretextual stop has occurred. First, the district court must
determine if there was reasonable suspicion or probable cause for the stop, and as
usual the state bears the burden of proof. Ochoa, 

. Second, if the

Ruggles v. Ruggles, 

, ¶ 22 n.8, 

, 

 (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, 

, ¶¶ 12-13,
15, 

, 

, which we are bound to follow as controlling authority. See Aguilera v.
Palm Harbor Homes, Inc., 

, 

, 

 (stating that the Court of
Appeals remains bound by our Supreme Court precedent).
8Although 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, 

, 

, 

 (“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.
stop can be “justified objectively on its face,” and the defendant continues to assert that
the stop was pretextual, the district court must decide whether the motive for the stop
was “unrelated to the objective existence of reasonable suspicion or probable cause.”

 (internal quotation marks and citation omitted). The defendant bears the burden
based upon the totality of the circumstances and must place substantial facts in dispute.

 Third, if the defendant places substantial facts in dispute, there is a rebuttal
presumption that the stop was pretextual, and the burden shifts to the state to show that
the officer would have stopped the defendant, regardless. 

{37} At the outset, we observe that Ochoa involved a vehicle traffic stop and
specifically discussed pretextual stops in that context. See id. ¶¶ 4, 38. In addition, no
New Mexico case has decided that Ochoa applies to a pedestrian stop, and neither
party argues the applicability of Ochoa to pedestrian stops on appeal. Rather, both
parties assume that Ochoa applies. We conclude however, that we need not address
whether Ochoa applies because, assuming without deciding that Ochoa applies to
pedestrian stops, the evidence of Defendant’s battery, assault, and resisting, evading or
obstructing, controlled substances, and marijuana charges are admissible under the
new crime exception. As such, we affirm the district court as right for any reason. See
State v. Gallegos, 

, 

, 

 (holding that the
appellate court will affirm the district court’s decision if it is right for any reason, so long
as it is not unfair to the appellant); State v. Rector, 

, 

,

 (affirming a district court’s denial of a motion to suppress that was based
on the finding of reasonable suspicion on the alternative grounds of attenuation).
Because we affirm on this ground, we need not address Defendant’s argument that the
district court should have held an evidentiary hearing to determine the motive for the
stop. We explain.

{38} Indeed, our analysis under Ochoa would end at the first step, our having already
concluded that the officer lacked reasonable suspicion to stop and investigate
Defendant under Section 66-7-339. See Ochoa, 

. Evidence found
as a result of an unconstitutional seizure would be suppressed unless an exception to
the exclusionary rule applies. See Tapia, 

. Here, as the State
contends, Defendant’s physical altercation with Officer Martinez creates such an
exception as a new crime, allowing the evidence of Defendant’s other charges to be
admissible.

{39} A brief discussion of the new crimes exception will be helpful to our analysis. We
originally adopted the new crime exception for violent crimes, although not by name, in
State v. Travison B., 

, 

, 

; see also Tapia,

 (discussing our adoption of the new crime exception). In
Travison B., this Court assumed officers unlawfully entered an apartment while
responding to a domestic disturbance, who then encountered an angry juvenile who
battered an officer. 

. We held that even though the battery was
precipitated by the unlawful entry, “[the c]hild’s actions against the officers constituted
new criminal activity that is not subject to the exclusionary rule.” Id. ¶ 9. We held that
“even if there is a causal connection between [the c]hild’s actions and the officer’s
presence, [the c]hild’s actions were sufficiently separate and distinct from the officer’s
entry that the exclusionary rule . . . does not extend to suppress the officer’s testimony
about [the c]hild’s acts of a new crime against the officers.” Id. ¶ 11.

{40} Our Supreme Court further discussed and clarified the new crime exception in
Tapia. In Tapia, the defendant was a passenger in a vehicle stopped for going 40 miles
per hour in a 55 mile per hour zone and because the officers could not read the license
plate. 

. One of the officers involved in the stop noticed the
defendant was not wearing a seatbelt, and the officer asked for the defendant’s license.

 The defendant stated he did not have a license, and instead gave the officer his
brother’s identifying information and signed as his brother for the seat belt citation. Id.
¶¶ 1-3.

{41} At the same time, a second officer was notified of the defendant’s real identity by
a second passenger. Id. ¶ 4. When asked to clarify his identity, the defendant again
gave his brother’s information. Id. The officers arrested the defendant and charged him
with concealing identity, forgery, and the seat belt violation. Id. ¶¶ 4-5. The defendant
moved to suppress all evidence, arguing that the traffic stop was unlawful. Id. ¶ 6. The
district court granted the motion to suppress with regard to the seat belt violation, but
denied the motion with respect to the forgery and concealing identity charges. Id.

{42} Our Supreme Court affirmed, agreeing with the state that the new crime
exception applied. Id. ¶¶ 9, 50. In Tapia, our Supreme Court expanded the new crime
exception to apply to both violent and nonviolent crimes committed in response to
unlawful police action, even when the evidence obtained as a direct result of the
unlawful activity is suppressed. Id. ¶ 50. The Court held that “[a]pplication of the threepart federal attenuation analysis comports with our preference to assess the
reasonableness of law enforcement by considering the totality of the circumstances of
each case” under the federal or state Constitution when applying the new crime
exception. Id. ¶ 47. Therefore, we look to “(1) the lapsed time between the illegality and
the acquisition of the evidence, (2) the presence of intervening circumstances, and (3)
the purpose and flagrancy of the official misconduct.” Id. ¶ 15 (citing Brown v. Illinois,

 (1975)). Analyzing the facts through the attenuation factors, our
Court held the “[d]efendant’s attempts to conceal his identity after the unlawful traffic
stop sufficiently purged the taint of the initial illegality so as to render the exclusionary
rule inapplicable.” Id. ¶ 50.

{43} We turn to the three-factor attenuation analysis outlined in Tapia. For the first
factor, there was no evidence presented at the evidentiary hearing regarding the
amount of time between Officer Jaimes’s stop of Defendant and the arrest of Defendant
by Officer Martinez. Generally, we weigh this factor in favor of suppression unless
substantial time has passed. See id. ¶ 35. Because we lack the information here that
would assist in determining this factor, we will weigh it in favor of suppression. See
State v. Edwards, 

, 

.
{44} In contrast, the second factor, the presence of intervening circumstances such as
the commission of new or independent criminal acts, weighs in favor of admission of the
evidence. The commission of a new crime may create an intervening circumstance
sufficient to purge the taint of the initial illegality. See Tapia, 

(concluding that the defendant’s new criminal activity created an intervening
circumstance because the criminal act was “an unprompted act of his own free will”).
Defendant’s physical altercation with Officer Martinez was not part of Defendant’s initial
stop and interaction with Officer Jaimes and was not “a natural or predictable
progression” of his interaction with Officer Jaimes. See id. ¶ 37. Rather Defendant
engaged in combative behavior with Officer Martinez when Officer Martinez attempted
to place Defendant under arrest. Thus the altercation did not progress from Defendant’s
“unlawful seizure [by Officer Jaimes] but rather [was] an unprompted act of his own free
will.” See id. Therefore, we weigh this factor in favor of attenuation.

{45} Ending with the third factor, the purpose and flagrancy of the police misconduct,
“[t]o be flagrant, more severe police misconduct is required than the mere absence of
proper cause for the seizure.” State v. Ramey, 

, 

(quoting Edwards, 

). A defendant must demonstrate purposeful
and flagrant official misconduct where “(1) the impropriety was obvious, or the official
knew his conduct was likely unconstitutional but continued nonetheless; or (2) the
misconduct was investigatory in design and purpose.” Ramey, 

(internal quotation marks and citation omitted). Although Defendant argues on appeal
that Officer Jaimes lacked reasonable suspicion under the statute to stop him for a
violation of Section 66-7-339 and that the stop was pretextual, the record does not
indicate police conduct that would rise to the level of flagrant during the initial traffic
stop. Officer Jaimes testified that he believed Defendant violated Section 66-7-339, and
that was the sole reason for the stop. Our analysis of Section 66-7-339 above shows
Officer Jaimes was mistaken in both his belief that Defendant had violated Section 66-7-
339 and in his belief that he had reasonable suspicion to stop and investigate
Defendant, but we view this conduct as negligent, rather than flagrant. See Edwards,

 (describing the process of asking questions and asking for
identity as negligent when the officer lacked reasonable suspicion for the stop).

{46} With respect to Defendant’s contention that the officers’ conduct was flagrant
because they were not in the lawful discharge of their duties when Defendant was
arrested, we disagree. When an officer is in the scope of their duty “societal interests
dictate the protection of the officer from attack by someone who may question, albeit
reasonably, the legality of the officer’s actions.” Travison B., 

.
Regardless of the illegality of the officer’s action of stopping and investigating Defendant
for violating Section 66-7-339, Defendant did not have a license to physically attack a
law enforcement officer when he himself was being placed under arrest. See Doe,

, ¶ 11 (holding that a private citizen may not use force to resist a
search by an officer engaged in the performance of their duties whether or not the arrest
was illegal). Even if the arrest was unlawful, it does not preclude a finding that an officer
acted in the lawful discharge of their duties to establish the elements of the charged
crimes. See Tapia, 

, ¶ 16. “The aggrieved person’s rights lie in a civil
action, not in a physical attack,” when faced with unlawful police conduct. Travison B.,

.

{47} Finally, to the extent that Defendant argues that the stop was pretextual because
his offer of proof demonstrates that Hobbs police officers target minority communities
and Officer Jaimes has a history of stopping individuals without reasonable suspicion,
therefore creating flagrant police conduct, our review of the record reveals that
Defendant did not file his offer of poof until five months after the district court denied his
Ochoa Motion, and he did so without a motion to reconsider the denial of his Ochoa
Motion or other effort to bring these alleged facts before the district court. Therefore we
do not address these grounds further. See State v. Goss, 

, ¶¶ 8-14,

, 

 (declining to address the defendant’s constitutional
challenge on appeal to suppress evidence where the challenge was not included in the
defendant’s motion to suppress before the district court and there was no indication in
the record that the defendant brought factual information supporting it before the district
court). In sum, the third attenuation factor weighs against suppression.

{48} Applying the three attenuation factors for the new crime exception, we hold that
the evidence of Defendant’s battery, assault, and resisting, evading or obstructing
charges were sufficiently attenuated and therefore admissible. 9 See Tapia, 2018-
NMSC-017, ¶¶ 35, 37-38 (concluding that exclusion of the evidence is unnecessary
when the first factor weighs in favor of suppression but the second and third factors
weigh in favor of attenuation). Further, the subsequent discovery of controlled
substances and marijuana where Defendant was arrested and in the patrol vehicle
where Defendant was placed are also admissible. 10 Because the State argued the
application of the new crime exception and Defendant was given an opportunity to
respond, we, therefore, affirm the district court’s denial of Defendant’s motion to
suppress under Ochoa as right for any reason.

CONCLUSION

{49} We reverse the district court’s denial of Defendant’s Foulenfont Motion to dismiss
the pedestrians on roadways charge, but affirm the denial with respect to the battery,
assault, and resisting, evading or obstructing charges. Further, we affirm the district
court’s denial of Defendant’s Ochoa Motion. We remand to the district court for further
proceedings consistent with this opinion.

{50}    IT IS SO ORDERED.




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.” 

. 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.
JACQUELINE R. MEDINA, Judge

WE CONCUR:

J. MILES HANISEE, Chief Judge

JENNIFER L. ATTREP, Judge