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                                                                      New Mexico Compilation
                                                                    Commission, Santa Fe, NM
                                                                   '00'05- 15:05:48 2016.02.10

Certiorari Granted, January 19, 2016, No. S-1-SC-35614

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-016

Filing Date: October 26, 2015

Docket No. 33,084

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

PETER CHAVEZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
H.R. Quintero, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Sri Mullis, Assistant Attorney General
Albuquerque, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

WECHSLER, Judge.

{1}     Defendant Peter Chavez appeals his convictions for the crimes of aggravated fleeing
a law enforcement officer (aggravated fleeing), contrary to NMSA 1978, § 30-22-1.1 (2003),
and resisting, evading, or obstructing an officer, contrary to NMSA 1978, § 30-22-1(B)
(1981). Defendant argues that under his interpretation of the aggravated fleeing statute, § 30-

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22-1.1, the evidence was insufficient to prove that he endangered the life of another person.
Additionally, Defendant challenges his conviction for aggravated fleeing on the grounds that
the jury instruction failed to include an essential element of the crime. He further contends,
in the alternative, that his convictions violate the double jeopardy protection against multiple
punishments for the same offense. Because we are persuaded that a conviction under the
aggravated fleeing statute requires a finding of actual endangerment, and that the direct and
circumstantial evidence at trial was insufficient to support a finding of actual endangerment
beyond a reasonable doubt, we need not address his jury instruction and double jeopardy
challenges. Accordingly, we reverse Defendant’s conviction for aggravated fleeing.

BACKGROUND

{2}     At approximately 10:00 p.m. on November 6, 2012, Silver City police officer Joseph
Arredondo was patrolling in Grant County when he observed a dirt bike traveling eastbound
on Highway 180 without any lights illuminated. Officer Arredondo caught up with the dirt
bike at an intersection and noticed that the vehicle did not have a license plate. The officer
activated his emergency lights and followed the dirt bike as it turned into a Wal-Mart
parking lot. The driver looked back over his shoulder at the officer, but instead of pulling
over, he accelerated through the parking lot. Defendant jumped the curb of the Wal-Mart
parking lot, drove onto a dirt path, and entered the parking lot of the Tractor Supply Store.
Officer Arredondo followed the dirt bike in his police cruiser toward the Tractor Supply
Store and activated his emergency siren while pursuing Defendant through the parking lots.
Two cars, one traveling eastbound and one traveling westbound on Highway 180, were
forced to slow down as Defendant and Officer Arredondo exited the parking lot. No other
vehicles were in the area.

{3}     As Defendant and Officer Arredondo traveled along the highway, approximately five
cars pulled over to the side of the highway to avoid the chase. Officer Arredondo testified
that Defendant’s speed on Highway 180 reached approximately sixty-five miles per hour,
which was ten miles over the highway’s posted speed limit. At least three other police units
joined the pursuit before Defendant turned from the highway onto a side street, slowed down
to approximately forty to forty-five miles per hour, and then proceeded onto another side
street where he accelerated back to speeds of approximately sixty miles per hour. While
traveling on these side streets Defendant ran through three stop signs. Defendant and the
pursuing officers did not encounter any other traffic after leaving Highway 180. Defendant
then turned onto a dirt road, crossed a cattle guard, drove off-road into an open pasture, and
went up a hill. Grant County Sheriff’s Office deputy, Manuel Galaz, continued the chase
over the hill after Officer Arredondo blew a tire and disengaged from the pursuit. Deputy
Galaz was driving approximately fifteen to twenty miles per hour during the off-road pursuit.
As he crested the hill in his patrol car, Deputy Galaz saw the dirt bike stopped on the other
side. Deputy Galaz hit the brakes to stop his cruiser and slid downhill into the back of the
dirt bike. The impact caused Defendant to fall off the dirt bike, at which point Defendant
attempted to flee on foot. Officer Galaz gave chase and arrested Defendant shortly thereafter.
At trial, Silver City Police Department officers Arredondo and Rascon testified that no

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public safety issue arose during the pursuit and that no person was endangered by
Defendant’s conduct.

AGGRAVATED FLEEING A LAW ENFORCEMENT OFFICER

{4}     The aggravated fleeing statute reads, in pertinent part, that a person commits
aggravated fleeing by “willfully and carelessly driving [a] vehicle in a manner that
endangers the life of another person after being given a visual or audible signal to stop . .
. by a uniformed law enforcement officer in an appropriately marked law enforcement
vehicle[.]” Section 30-22-1.1(A) (emphasis added). A violation of Section 30-22-1.1(A) is
a fourth degree felony. Section 30-22-1.1(B). Endangerment of another person is an essential
element of the aggravated fleeing statute. See UJI 14-2217 NMRA (“[T]he state must prove
to your satisfaction beyond a reasonable doubt . . . [that t]he defendant drove willfully and
carelessly in a manner that endangered the life of another person[.]”).

{5}     We view the aggravated fleeing statute as evincing legislative intent to more severely
punish people who jeopardize the safety of others while fleeing from law enforcement
officers. Historically, conduct intended to thwart the efforts of an arresting officer
constituted the misdemeanor crime of resisting, evading, or obstructing an officer. Section
30-22-1. As noted by our Supreme Court, “[t]he legislative decision to create the crime of
aggravated fleeing suggests a hierarchy of criminal liability based on the aggravated nature
of a defendant’s conduct.” State v. Padilla (Padilla II), 2008-NMSC-006, ¶ 14, 143 N.M.
310, 176 P.3d 299. This aggravated nature exists specifically “when the person flees in a
manner that endangers the lives of others[.]” Id. Importantly, the Legislature chose not to
repeal any portion of Section 30-22-1 upon the enactment of Section 30-22-1.1. Instead, the
resisting, evading, or obstructing an officer statute remains in effect and criminalizes conduct
related to vehicular flight from law enforcement.1 The logical inference to be drawn from
the Legislature’s decision not to repeal any portion of Section 30-22-1 is that an individual
may flee from law enforcement, even in a vehicle, without triggering prosecution under the
aggravated fleeing statute so long as the fleeing individual does not endanger others in the
process. See generally State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022
(“We examine the overall structure of the statute and its function in the comprehensive
legislative scheme.”).

PRINCIPLES OF STATUTORY INTERPRETATION

{6}     In order to determine the merits of Defendant’s sufficiency of evidence challenge,


        1
         The pertinent text of Section 30-22-1 reads “[r]esisting, evading or obstructing an
officer consists of . . . willfully refusing to bring a vehicle to a stop when given a visual or
audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other
signal, by a uniformed officer in an appropriately marked police vehicle[.] . . . Whoever
commits resisting, evading or obstructing an officer is guilty of a misdemeanor.”

                                               3
we must first address the contrasting interpretations of the aggravated fleeing statute
presented by the parties. Defendant contends that the statute’s essential element of
endangerment requires that the State prove that a defendant actually endangered the life of
another person while willfully and carelessly driving a vehicle. In this regard, Defendant
argues that the Legislature did not intend to punish conduct that merely creates the potential
for endangerment. Conversely, the State argues that the statute’s essential element of
endangerment is satisfied when a defendant’s conduct either places an identifiable person
in actual danger or creates the potential for placing any other person in danger. Insofar as
these arguments present a question of statutory interpretation, we apply de novo review. See
State v. McWhorter, 2005-NMCA-133, ¶ 5, 138 N.M. 580, 124 P.3d 215 (“The meaning of
language used in a statute is a question of law that we review de novo.”).

{7}      Our goal when interpreting statutes is to ascertain and effectuate legislative intent.
Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047. We first look to the statute’s
plain language, which is “the primary indicator of legislative intent.” State v. Young, 2004-
NMSC-015, ¶ 5, 135 N.M. 458, 90 P.3d 477 (internal quotation marks and citation omitted).
“If the language of the statute is clear and unambiguous, we must give effect to that language
and refrain from further statutory interpretation.” State v. Wilson, 2010-NMCA-018, ¶ 9, 147
N.M. 706, 228 P.3d 490 (internal quotation marks and citation omitted). “[Appellate courts]
will not read into a statute any words that are not there, particularly when the statute is
complete and makes sense as written.” State v. Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M.
14, 206 P.3d 125. In the event that our application of the plain meaning rule does not
indicate the true legislative intent, we may look to the history and purpose of the statute to
aid our statutory construction analysis. See State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M.
768, 82 P.3d 939 (“In performing our task of statutory interpretation, not only do we look
to the language of the statute at hand, we also consider the history and background of the
statute.”). When this expanded review is necessary, we examine the language in the context
of the statutory scheme, legislative objectives, and other statutes in pari materia in order to
determine legislative intent. State v. Cleve, 1999-NMSC-017, ¶ 8, 127 N.M. 240, 980 P.2d
23.

The Plain Language of the Statute

{8}      Neither the aggravated fleeing statute nor the associated uniform jury instruction
defines the term “endangers” as used in the statute. “When a term is not defined in a statute,
we must construe it, giving those words their ordinary meaning absent clear and express
legislative intention to the contrary.” State v. Tsosie, 2011-NMCA-115, ¶ 19, 150 N.M. 754,
266 P.3d 34 (internal quotation marks and citation omitted). Our courts often use dictionary
definitions to ascertain the ordinary meaning of words that form the basis of statutory
construction inquiries. State v. Boyse, 2013-NMSC-024, ¶ 9, 303 P.3d 830. “Endangerment”
is defined as “[t]he act or an instance of putting someone or something in danger; exposure
to peril or harm.” Black’s Law Dictionary 644 (10th ed. 2014). Non-legal dictionaries offer
similar definitions of both “endanger” and “endangerment.” See The American Heritage
Dictionary of the English Language 588 (5th ed. 2011) (“To expose to harm or danger;

                                              4
imperil.”); 5 The Oxford English Dictionary 225 (2d ed. 1991) (“The action of putting in
danger; the condition of being in danger.”). Each of these definitions indicates that the
exposure to peril or harm is an actual or current condition facing the impacted person. None
of these definitions indicates a potential or future condition. Since the plain language of the
statute does not contemplate potential or future harm in its use of the word “endanger,” and
the statute “makes sense”—with respect to who is subject to prosecution—as written,
Trujillo, 2009-NMSC-012, ¶ 11, we will not read the statute to include potential harm absent
direction from the Legislature. Clark v. Lovelace Health Sys., Inc., 2004-NMCA-119, ¶ 14,
136 N.M. 411, 99 P.3d 232 (“When language in a statute enacted by the [L]egislature is
unambiguous, we apply it as written, and any alteration of that language is a matter for the
[L]egislature, not for this Court.”).

Expansion of the Scope of the Statute by Judicial Opinion

{9}     The State argues that the word “potential” was effectively added to the statute by our
Supreme Court as part of its holding in Padilla II. In Padilla II, our Supreme Court
reinstated a conviction for aggravated fleeing following a reversal by this Court. 2008-
NMSC-006, ¶ 1. The Padilla II Court was not asked, and did not offer, an opinion as to the
definition of endangerment under the aggravated fleeing statute. However, a portion of the
opinion detailed the defendant’s conduct as follows:

       [The d]efendant drove in a willful and careless manner that endangered the
       lives of others—he ran ten stop signs, he exceeded the speed limit, there was
       at least one other motorist, apart from the officer, potentially placed at risk
       because of [the d]efendant’s conduct, and the passengers in the car were
       placed at risk when [the d]efendant careened around corners causing the door
       with the faulty lock to open.

Id. ¶ 17 (emphasis added).

{10} Based upon these facts, our Supreme Court held that “the defendant’s conduct gives
rise to the imposition [of the aggravated fleeing statute].” Id. ¶ 14. However, we do not
believe that the Court’s use of the word “potentially” was intended to indicate that anyone
who flees from law enforcement necessarily endangers all persons in the vicinity during any
police pursuit.

{11} A comprehensive review of the factual background reveals that the defendant “ran
a stop sign while going fifty miles per hour in a twenty-five mile per hour zone [and] barely
missed colliding with another motorist.” State v. Padilla (Padilla I), 2006-NMCA-107, ¶ 5,
140 N.M. 333, 142 P.3d 921, rev’d, Padilla II, 2008-NMSC-006. On review, this Court held,
“We think a rational jury could have found that [the d]efendant endangered another
person . . . [including] another motorist on the road, whom [the d]efendant came close to
striking.” Id. ¶ 23. A near collision—that is, one in which the defendant “barely missed
colliding with another motorist”— constitutes an actual, rather than a potential risk. Id. ¶ 5.

                                              5
{12} Because the facts of Padilla I support a finding of actual endangerment to the other
motorist, we believe that our Supreme Court’s use of the word “potentially” in this context
was chosen to express that a collision nearly occurred, rather than to express that another
motorist was simply in the vicinity while the pursuit was taking place. Because, in Padilla
I, other persons, including passengers and other motorists, were actually endangered, we
assume that the plain language of the statute remains in effect and that only those who
actually endanger others while fleeing from law enforcement are subject to punishment
under the statute.2

SUFFICIENCY OF THE EVIDENCE

{13} Having decided that the aggravated fleeing statute requires that the State prove actual
endangerment to another person, we now turn to Defendant’s argument that the evidence
presented at trial was insufficient to support his conviction. Defendant advances a
sufficiency of evidence claim only as to the essential element of endangerment inasmuch as
he argues that there was insufficient evidence to prove that he endangered the life of another
person.

{14} “The test for sufficiency of the evidence is whether substantial evidence of either a
direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Duran, 2006-NMSC-035,
¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). “[W]e must
view the evidence in the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.” Id. (internal
quotation marks and citation omitted). “Contrary evidence supporting acquittal does not
provide a basis for reversal because the jury is free to reject Defendant's version of the
facts.” Id. (internal quotation marks and citation omitted). The function of an appellate court
with respect to challenges to the sufficiency of evidence is to “ensure that a rational jury
could have found beyond a reasonable doubt the essential facts required for a conviction.”
Id. (internal quotation marks and citation omitted). We apply these principles to determine
if Defendant’s conviction for aggravated fleeing is supported by sufficient evidence.

{15} As a threshold matter, we note that drawing inferences from the previous published
opinions of our courts related to aggravated fleeing is not entirely useful given that, in those
cases, passengers were present in the vehicles while the drivers were fleeing from law
enforcement. See Padilla II, 2008-NMSC-006, ¶ 4 (“[T]here were two passengers in the
car[.]”); State v. Coleman, 2011-NMCA-087, ¶ 22, 150 N.M. 622, 264 P.3d 523 (“The lives


       2
        The State also argues that officers were endangered when engaged in the pursuit of
fleeing suspects. This argument appears foreclosed by our Supreme Court’s holding in
Padilla II that “[t]he aggravated fleeing statute does not focus upon the officer as a victim.
The statute appears to be designed to protect the general public from the dangers of a high
speed chase.” 2008-NMSC-006, ¶ 21.

                                               6
of his passengers . . . were placed in jeopardy[.]”); State v. Ross, 2007-NMCA-126, ¶ 2, 142
N.M. 597, 168 P.3d 169 (“There were four passengers still in the vehicle.”). In the present
case, Defendant was operating a dirt bike without a passenger. Because of this distinction,
comparisons between the willful and careless behavior exhibited by the drivers/defendants
in our previous cases3 and the willful and careless conduct exhibited by Defendant in the
present case are of limited value. Within those same cases, however, there are descriptions
of conduct that demonstrate endangerment of other motorists who encountered defendants
on the roadways. See Padilla I, 2006-NMCA-107, ¶ 5 (“[The d]efendant barely missed
colliding with another motorist.”); Ross, 2007-NMCA-126, ¶ 2 (“Another vehicle had to
abruptly stop in order to avoid colliding with [the d]efendant.”). It is to this conduct that we
look to determine whether Defendant endangered another person within the meaning of the
aggravated fleeing statute.

{16} Even when viewing the evidence in the light most favorable to the guilty verdict, the
State has not presented sufficient evidence to prove that Defendant endangered another
person as required by the statute. The uncontroverted testimony of two participating officers
was that the pursuit did not create a public safety concern or place anyone in danger. While
other vehicles on the roadway were required to slow down or pull over in response to the
emergency lights and sirens, no evidence of near collisions was presented at trial. We do not
believe that merely taking simple, evasive maneuvers in response to emergency lights and
sirens constitutes endangerment to motorists on a roadway. As such, no reasonable jury
could have found beyond a reasonable doubt that Defendant endangered another person
within the meaning of the aggravated fleeing statute.

{17} This is not to say that endangerment requires that a fleeing motorist pass within
inches of another vehicle or that an accident is avoided only through extraordinary evasive
maneuvering by another driver. When a jury returns a verdict based on evidence indicating
actual endangerment, that verdict should not be disturbed. However, when, as here, the
record is completely devoid of evidence of actual endangerment to passengers or other
motorists, the verdict cannot stand.

CONCLUSION

{18} For the foregoing reasons, we reverse Defendant’s conviction for aggravated fleeing
a law enforcement officer, contrary to Section 30-22-1.1. As a result, we do not reach
Defendant’s alternative double jeopardy claim, which constituted Defendant’s sole challenge
to his conviction for resisting, evading, or obstructing an officer, contrary to Section 30-22-
1(D). That conviction therefore stands.



        3
        These willful and careless behaviors include speeding, running through stop signs,
crossing the center line, and crashing into curbs or other stationary objects. See, e.g., Padilla
II, 2008-NMSC-006, ¶ 3; Coleman, 2011-NMCA-087, ¶ 4; Ross, 2007-NMCA-126, ¶ 2.

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{19}   IT IS SO ORDERED.

                                    ____________________________________
                                    JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
CYNTHIA A. FRY, Judge




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