     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     NO. 34,289

 5 JAHI D.,

 6          Child-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Gary L. Clingman, District Judge


 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12   Jorge A. Alvarado, Chief Public Defender
13   Sergio Viscoli, Appellate Defender
14   B. Douglas Wood III, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2   {1}   Child appeals the district court’s order finding Child to be a delinquent child

 3 and placing him on probation for two years. We issued a notice proposing to affirm,

 4 and Child has responded with a memorandum in opposition. Having carefully

 5 considered that memorandum, we are not persuaded and we therefore affirm.

 6   {2}   In our notice we addressed two issues: the officers’ alleged failure to give

 7 Miranda warnings to Child prior to his arrest, and the sufficiency of the evidence

 8 supporting the offense of resisting, evading, or obstructing an officer, which was the

 9 basis of the delinquency adjudication. In response to our notice Child has refined his

10 sufficiency-of-the-evidence argument. [MIO 3-9] He now argues that one element of

11 the offense, the requirement that the officer be acting in “the lawful discharge of his

12 duties,” was not satisfied in this case. See NMSA 1978, § 30-22-1(D) (1981). Child

13 argues that at the point the officer took hold of Child’s arm, there was no reasonable

14 suspicion or probable cause to support the seizure and the seizure was therefore

15 unconstitutional. According to Child, if an officer makes an arrest or seizure that is in

16 violation of the state or federal constitutions, that officer is not acting in the lawful

17 discharge of his duties and therefore an individual physically resisting such an arrest

18 or seizure cannot be found in violation of Section 30-22-1(D). Thus, Child’s acts of




                                               2
 1 resistance to the officer’s seizure of his arm did not, as a matter of law, violate the

 2 resisting-an-officer statute.

 3   {3}   This refined sufficiency argument was not made in the docketing statement, and

 4 there is no indication as to whether it was argued below. However, because it

 5 implicates the sufficiency of the evidence, it may be raised at any time, including for

 6 the first time on appeal, and we therefore address it. See State v. Sotelo, 2013-NMCA-

 7 028, ¶ 30, 296 P.3d 1232. Having reviewed the applicable case law, we determine that

 8 Child’s position is contrary to controlling authority and we therefore cannot agree

 9 with Child.

10   {4}   Our Supreme Court described what it means for an officer to be acting in

11 “lawful discharge of his duties” in State v. Doe, 1978-NMSC-072, ¶ 14, 92 N.M. 100,

12 583 P.2d 464. The Court stated that it does not matter whether an arrest made by the

13 officer is legal or illegal; he is acting in the lawful discharge of his duties if he is

14 acting within the scope of what he is employed to do, rather than engaging in a

15 personal frolic of his own. In addition, the Court expressly held that “a private citizen

16 may not use force to resist a search by an authorized police officer engaged in the

17 performance of his duties whether or not the arrest is illegal.” Id. ¶ 11. This standard

18 has been applied in several Court of Appeals cases, including State v. Nemeth, 2001-

19 NMCA-029, ¶¶ 51-57, 130 N.M. 261, 23 P.3d 936 (holding that jury instruction


                                               3
 1 stating that officer must have been performing the duties of a peace officer was simply

 2 another way to say the officer was acting in the lawful discharge of his duties and was

 3 not grounds for reversal), overruled on other grounds by State v. Ryon, 2005-NMSC-

 4 005, ¶ 28, 137 N.M. 174, 108 P.3d 1032, and State v. Tapia, 2000-NMCA-054, ¶ 13,

 5 129 N.M. 209, 4 P.3d 37 (defining “lawful discharge of his duties” as “acting in good

 6 faith and within the scope of what the officer is employed to do”). See also State v.

 7 Tapia, 2015-NMCA-055, ¶ 12, ___ P.3d ___ (discussing inapplicability of

 8 exclusionary rule to evidence of physical attacks on law enforcement officers

 9 following illegal arrests or entries into a home). All of these cases lead to the

10 conclusion that an officer is still acting within the lawful discharge of the officer’s

11 duties even if conducting a search or seizure that violates an individual’s

12 constitutional rights because it is not supported by reasonable suspicion or probable

13 cause. Thus, if the individual physically resists the officer, the individual may be

14 charged with and convicted of resisting, evading, or obstructing an officer.

15   {5}   Defendant understandably relies on an opinion written by this Court, State v.

16 Phillips, 2009-NMCA-021, 145 N.M. 615, 203 P.3d 146. We acknowledge that

17 language in Phillips supports Defendant’s argument; in Phillips we stated that, for

18 purposes of the battery-upon-a-peace-officer statute (NMSA 1978, Section 30-22-24

19 (1971), which also contains the lawful-discharge-of-his-duties element), an officer is


                                              4
 1 not acting within the lawful discharge of the officer’s duties if acting in violation of

 2 “common-law, statutory, or constitutional limitations on the officer’s authority.”

 3 2009-NMCA-021, ¶ 16. Under Phillips, Child would be free to make the argument,

 4 as he does in his memorandum in opposition, that the officer was acting

 5 unconstitutionally when he grabbed Child’s arm, and that this rendered non-criminal

 6 Child’s act of resistance to that seizure. However, the Phillips discussion is not

 7 controlling authority, as none of the discussion was necessary to the result of the case.

 8 Even under the more restrictive standard enunciated in the discussion, Phillips

 9 affirmed the defendant’s conviction for battery on a peace officer because we found

10 that the officer had acted in the lawful discharge of his duties. Therefore, the

11 discussion of the more restrictive standard was dictum that has no controlling force.

12 See Moses v. Skandera, 2015-NMCA-036, ¶ 19, 346 P.3d 396 (describing dictum as

13 a statement that is unnecessary to the outcome of the case, even if the statement is

14 emphatically or deliberately phrased), cert. granted, 2015-NMCERT-___ (No.

15 34,974, Jan. 26, 2015). Furthermore, the Phillips discussion is contrary to what we see

16 as controlling authority, which is the Supreme Court’s enunciation of the meaning of

17 “lawful discharge of his duties” in State v. Doe, 1978-NMSC-072, ¶ 14. We therefore

18 decline to follow Phillips in this case.




                                               5
 1   {6}   Defendant also relies on State v. Frazier, 1975-NMCA-074, 88 N.M. 103, 537

 2 P.2d 711. In Frazier a police officer, who admittedly had no suspicion that a crime

 3 had occurred, intervened in a non-violent private dispute, chased after one of the

 4 participants, and physically detained her. Id. ¶ 7. The participant resisted the officer

 5 by punching him and was arrested for resisting an officer. Id. ¶ 13. Following the

 6 arrest, the participant’s purse was searched and she was charged with possession of

 7 marijuana and heroin. Id. ¶ 8. Her motion to suppress the drugs was denied, and we

 8 reversed, holding that the officer was not acting in the lawful discharge of his duties

 9 when he detained the participant, so her resistance did not provide probable cause to

10 support her arrest. Id. ¶ 15. The Supreme Court in Doe distinguished Frazier on the

11 basis that in Frazier the officer had no legitimate reason for detaining the defendant

12 and knew this at the time he acted. Doe, 1978-NMSC-072, ¶¶ 12, 13.

13   {7}   In essence, the Supreme Court in Doe classified the officer’s action in Frazier

14 as a personal frolic. In this case, on the other hand, the officer who was transporting

15 Child home had detained Child as a suspect in a battery. Rather than charging Child

16 with a criminal offense, the officer decided to transport Child to his home. Given the

17 fact that Child was a juvenile and may have been engaged in an altercation of some

18 sort, it was not completely unreasonable for the officer to believe that he had the

19 authority to turn Child over to his parents by transporting him home, rather than


                                              6
 1 allowing him to freely wander the streets and perhaps resume the prior altercation.

 2 This case, therefore, is unlike Frazier, even assuming the officer had no actual

 3 statutory or constitutional authority to insist that Child remain in his vehicle to be

 4 transported home. We therefore remain convinced that there was sufficient evidence

 5 in this case to satisfy the “lawful discharge of his duties” element of the resisting-an-

 6 officer charge.

 7   {8}    Child again argues that he should have been given Miranda warnings and that

 8 the officer’s failure to do so rendered his subsequent arrest illegitimate. We fully

 9 addressed this argument in our notice of proposed disposition, and we are not

10 persuaded by Child’s memorandum in opposition. For the reasons stated in our notice,

11 therefore, we do not accept Child’s argument on this point.

12   {9}    Based on the foregoing, we affirm the order adjudicating Child as delinquent.

13   {10}   IT IS SO ORDERED.


14                                                 ________________________________
15                                                 JAMES J. WECHSLER, Judge


16 WE CONCUR:


17 ________________________________
18 MICHAEL D. BUSTAMANTE, Judge



                                               7
1 ________________________________
2 M. MONICA ZAMORA, Judge




                                     8
