 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 CITY OF ESPANOLA,

 8          Plaintiff-Appellee,

 9 v.                                                                                   No. 28,620

10 CHRISTOBAL ARCHULETA,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
13 Timothy L. Garcia, District Judge

14 Angela Rosalina Pacheco, City Attorney
15 Espanola, NM

16 for Appellee

17 Steven G. Farber
18 Santa Fe, NM

19 for Appellant

20                                 MEMORANDUM OPINION

21 KENNEDY, Judge.

22          Frustrated with repeated acts of vandalism perpetrated against his automotive

23 dealership, located in Espanola, New Mexico, Defendant-Appellant Christobal
 1 Archuleta decided to arm himself and stand guard at the lot to prevent further

 2 depredations. Earlier in the day, he’d talked to Sergeant Griego of the Espanola

 3 Police Department and told him that he would be standing guard. Sergeant Griego

 4 then gave this information to fellow officer Corporal Wright, who was working the

 5 graveyard shift that evening. As promised, Archuleta went to his lot just after ten in

 6 the evening that night, November 11, 2006, armed with a shotgun.

 7        About 4 a.m., Espanola police officers, including Corporal Wright, were

 8 dispatched to the car lot on a call involving a person with a gun. Upon arrival, they

 9 encountered Archuleta, armed with a shotgun and dressed in a dark, hooded

10 sweatshirt. The officers, unaware of Archuleta’s identity, got out of their cars with

11 guns drawn, and demanded Archuleta put his weapon down, and get on the ground.

12 Archuleta was slow to do so, but after a short time, he placed the shotgun on the hood

13 of a truck next to him. He then reached into his sweatshirt, retrieved a mobile phone,

14 and proceeded to place a call. He did not comply with several other demands to put

15 down the phone and get on the ground. A few seconds later, one police officer came

16 up to the truck and removed the shotgun from the hood without any reaction from

17 Archuleta, who continued to talk on the telephone. The officer who had taken the gun

18 then returned, and took Archuleta by the arm, and began to lead him away. Corporal


                                             2
 1 Wright then approached, holstering his own weapon, and took Archuleta’s other arm.

 2 Within seconds, the first officer executed a “take down” move, tripping Archuleta to

 3 the ground. This maneuver also inadvertently tripped Corporal Wright, who likewise

 4 fell down in the tangle. Officers then forcibly subdued Archuleta, pepper-sprayed him

 5 in the face, handcuffed, and arrested him.

 6        Corporal Wright testified that at no time did Archuleta point the shotgun at

 7 anyone, and that he had been told that someone would be present that night at

 8 Archuleta’s car lot, but that it was not mentioned that anyone would be armed.

 9        Archuleta was convicted in municipal court and appealed to the district court

10 for an appeal de novo. The district court convicted him of violating Espanola

11 Municipal Ordinance Section 70-211(a)(4), which proscribes “[r]esisting or abusing

12 any . . . peace officer in the lawful discharge of his duties.” Defendant now raises a

13 variety of arguments for reversal, but owing mostly to the specificity with which the

14 district court convicted him under that particular ordinance subsection, we hold that

15 his conviction was not supported by substantial evidence. Under the statutory scheme

16 chosen by the drafters of Espanola’s Municipal Code, Archuleta neither resisted nor

17 abused the police; we accordingly reverse.

18 PROCEDURAL BACKGROUND


                                             3
 1        The City of Espanola (City) filed a criminal complaint against Archuleta

 2 alleging four counts: “Refusing to Obey or Assist Officers [,] . . . Resisting, Evading,

 3 or Obstructing an Officer[,] . . . Disorderly Conduct[,] . . . [and] Battery.” The City

 4 later amended its complaint and dropped all counts except Resisting, Evading or

 5 Obstructing an Officer in violation of Ordinance Section 70-211. The municipal court

 6 convicted Archuleta, and he appealed to the district court for a trial de novo.

 7        Following trial the district court affirmed Archuleta’s conviction. It found that

 8 Archuleta’s identity was unknown to officers at the time of his detention and that his

 9 actions were insufficient to properly assert a constitutional right to defend his property

10 with a weapon. The district court went on to analyze Archuleta’s other actions and

11 found that he refused to obey police orders during a valid investigation. Such refusals,

12 the court concluded, constitute “resisting” but not abusing, under “Ordinance Section

13 70-211(a)(4).” The district court then remanded Archuleta’s case to the municipal

14 court for sentencing.

15        Archuleta appeals his conviction and argues that since our state constitution

16 guarantees his right to bear arms for security and for the defense of his property, the

17 police had no reason to detain him. He also argues that the ordinance, as applied, was

18 unconstitutional; that by its interpretation of the ordinance, the district court denied


                                               4
 1 him the rule of lenity; that he was not properly notified of the charges against him;

 2 that the ordinance, as applied, was both overbroad and void for vagueness; that the

 3 district court committed error by not considering his post-trial motions and by not

 4 publishing written findings of fact; and finally, that the evidence presented at trial

 5 does not support his conviction under Ordinance Section 70-211(a)(4) of the Espanola

 6 Municipal Code. We agree with this last assertion and hold that substantial evidence

 7 does not support Archuleta’s conviction under the scheme chosen by the drafters of

 8 the Espanola Municipal Code, specifically, Ordinance Sections 70-211(a)(4) and 70-

 9 212. We have no occasion to reach Archuleta’s other arguments.

10 DISCUSSION

11        In determining whether sufficient evidence supports a conviction, we consider

12 “the evidence in the light most favorable to the verdict.” State v. Prince, 1999-

13 NMCA-010, ¶ 15, 126 N.M. 547, 972 P.2d 859 (filed 1998). Interpretation of an

14 ordinance is a matter of law subject to our de novo review using the same rules of

15 construction applicable to statutes. Kirkpatrick v. Bd. of County Comm’rs, 2009-

16 NMCA-110, ¶ 11, 147 N.M. 127, 217 P.3d 613.

17        Neither party disputes that Espanola Municipal Ordinance Section 70-211(a)(4)

18 mirrors NMSA 1978, Section 30-22-1(D) (1981). Both the statutes and the ordinance


                                             5
 1 prohibit “resisting or abusing any . . . peace officer in the lawful discharge of his

 2 duties.” Id. The district court concluded that Archuleta’s behavior was insufficient

 3 to constitute “abusing” under the ordinance. We agree. State v. Wade 100 N.M. 152,

 4 153, 667 P.2d 459, 460 (Ct. App.1983) (“By using the word ‘abusing’ the Legislature

 5 has prohibited certain speech.”) (citation omitted).

 6        Accordingly, in reviewing Archuleta’s conviction, we ask two questions. First,

 7 can Archuleta’s behavior be classified as “resisting?” Second, were the police

 8 lawfully discharging their duties at the time of Archuleta’s alleged crime? Because

 9 we answer the first question in the negative, we do not reach the second.

10        In Wade, this Court interpreted Statute Section 30-22-1(D) within the

11 framework of Statute Section 30-22-1 as a whole. Although our case law has

12 suggested that resisting requires some physical act, we held in Diaz that resisting can

13 include the failure to obey lawful commands from law enforcement officers.

14        State v. Diaz, 121 N.M. 28, 32, 908 P.2d 258, 262 (Ct. App. 1995), would seem

15 to support the district court’s conclusion. Diaz holds that resisting, as that term is

16 used in Statute Section 30-22-1(D), refers not only to a defendant’s overt physical act,

17 but also to his failure to act when he refuses to obey lawful police commands. Diaz

18 is a different case. In Diaz, officers responded to a domestic violence report and


                                              6
 1 found an intoxicated defendant yelling and waving a knife at his wife. They drew

 2 their weapons and ordered the defendant to drop the knife, but he refused to do so.

 3 Id. When the five officers “repeatedly ordered [the d]efendant to ‘put down,’ ‘drop,’

 4 or ‘throw’ the knife,” he backed down the road away from them and refused their

 5 commands. Id. at 29-30, 908 P.2d at 259-60. Ultimately, Diaz was blocked from the

 6 rear by a sixth officer and then shot by the police when they felt he “made a move

 7 toward them.” Id. at 30, 908 P.2d at 260. He was subdued, arrested, and later

 8 convicted of aggravated assault on a police officer in violation of NMSA 1978,

 9 Section 30-22-22(A)(1) (1994), based on the allegation that he threatened the officers

10 with a knife. Id. at 29, 908 P.2d at 259.

11        On appeal, this Court agreed with the defendant that his jury should have been

12 instructed on Resisting an Officer under Section 30-22-1(D) and reversed his

13 conviction. In reaching that holding, we concluded, “[i]f the jury believed the

14 testimony that [the d]efendant challenged and directed profanity at the officers while

15 holding a weapon, but did not actively threaten or menace them, then [the d]efendant

16 could have been found guilty of resisting by abusing the officers.” Diaz, 121 N.M.

17 at 32, 908 P.2d at 262. This language also seems to incorporate an element of active

18 resistance including a physical element of resisting we recognized in Wade. This


                                               7
 1 Court’s attention in Diaz was not defining the offense, but ascertaining whether the

 2 facts present there could support resisting as a lesser-included offense. We also held

 3 that Diaz’s actions in backing away from officers while holding on to the knife could

 4 fulfill the element of “evading” the officers, further justifying giving an instruction

 5 rooted in Statute Section 30-22-1(B).

 6        This case is much different. In Diaz, when the first police officer arrived on the

 7 scene, the defendant was standing by a car whose windows he had just bashed out,

 8 yelling at his wife, and waving a knife. 121 N.M. at 30, 908 P.2d at 260. Based on

 9 appearances at the time defendant Diaz was first observed by an officer, there was

10 every reasonable belief that criminal behavior was afoot. In this case, Archuleta was

11 not intoxicated, nor did he engage in any verbal abuse or defiance of the officers when

12 they appeared. He also put down the gun when ordered, albeit not immediately. In

13 fact, the district court found that “the physical act here, and the only physical act here

14 that would be appropriately considered, is you have an unknown individual, at four

15 o’clock in the morning, standing on a piece of property, holding a gun, and [the

16 police] are there to investigate.” The district court concluded the crime was complete

17 the moment Archuleta refused to cooperate. When defense counsel suggested that a

18 mere failure to obey police orders was not resisting, the district court indicated that


                                               8
 1 failure to “comply with the orders given to secure the scene” was resisting. We agree

 2 with the dissent that two concerns are afoot: conduct with regard to police orders

 3 when a person is the subject of a criminal investigation, and conduct with regard to

 4 orders when a person is not. The statements made by the district court implicate both,

 5 but conclude that Archuleta’s conduct constituted “resisting”—conduct occurring

 6 when a person is the subject of criminal suspicion by the police—of which Archuleta

 7 was convicted.

 8 Refusing is not Resisting in Espanola

 9        Based on Diaz and Wade, we interpret Statute Section 30-22-1(D) to include

10 a prohibition of a defendant’s active and defiant refusal to comply with lawful officer

11 demands. But Archuleta was convicted under Ordinance Section 70-211(a)(4) of the

12 Espanola Municipal Code. The City, unlike the state, has chosen to more minutely

13 define its statutory scheme by enacting two municipal ordinances; Ordinance Section

14 70-211 prohibiting ‘Resisting, evading or obstructing an officer,” separating

15 “resisting,” and Ordinance Section 70-212 titled “Refusing to obey or assist officers,”

16 of which Archuleta was not convicted. The latter provides that “[n]o person shall fail

17 or refuse to obey or comply with a lawful order of any police officer in the

18 performance of his duty.” We must now determine the effect of this separation of


                                              9
 1 prohibited conduct, which has no state statutory analogue.

 2        The goal of statutory interpretation “is to give effect to the intent of the

 3 [L]egislature.” Lucero v. Richardson & Richardson, Inc., 2002-NMCA-013, ¶ 8, 131

 4 N.M. 522, 39 P.3d 739 (filed 2001). As our first step in that process, we look to the

 5 plain meaning of the statute. Id.; see U.S. Brewers Ass’n v. Dir. of N.M. Dep’t of

 6 Alcoholic Beverage Control, 100 N.M. 216, 219, 668 P.2d 1093, 1096 (1983). If the

 7 statute’s plain meaning is not readily discernable because of ambiguity, we then apply

 8 other relevant rules of statutory construction. See Martinez v. Cornejo, 2009-NMCA-

 9 011, ¶ 17, 146 N.M. 223, 208 P.3d. 443 (filed 2008) (concluding that a statute’s

10 meaning was unambiguous and application of other rules of construction was

11 therefore unnecessary). “[W]here two statutes pertain to the same general subject, the

12 court’s duty is to construe them so that effect is given to every provision of each[.]”

13 Johnson v. Francke, 105 N.M. 564, 566, 734 P.2d 804, 806 (Ct. App. 1987); see High

14 Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M.

15 413, 970 P.2d 599 (holding that different relevant statutory provisions should be read

16 together). A statute’s drafters are also “presumed to have avoided surplusage in words

17 and sentences.” Id.§ 46.7 at 265. Owing to the district court’s inclusion of refusing

18 to obey an officer in the idea of resisting, two ordinances are implicated though


                                             10
 1 Defendant was convicted under only one of them.

 2        As we stated above, Ordinance Section 70-211(a)(4), which prohibits resisting,

 3 is identical to our Statute Section 30-22-1(D). “[R]esisting” as that term is used in

 4 Statute Section 30-22-1(D), includes a defendant’s failure to follow police orders.

 5 Presumably then, Ordinance Section 70-211(a)(4) should likewise cover such conduct.

 6 However, the City has chosen to enact an additional provision within its statutory

 7 framework, Ordinance Section 70-212, which specifically prohibits refusing to obey

 8 an officer. This ordinance is analogous in part Statute Section 30-22-2. It is unclear

 9 whether Ordinance Section 70-212 in its entirety prohibits refusing to obey or comply

10 with a lawful police order as a separate matter, since it is separated by a disjunctive

11 “or” from a second complete idea, or as part of a conjunctive entirety that includes the

12 second idea in that ordinance of refusing to assist an officer when requested to help

13 prevent a breach of the peace, as suggested by the dissent. Either way, Espanola

14 clearly separated the act of merely failing or refusing to accede to an officer’s orders

15 from the much more dynamic act of resisting an officer of which Defendant stands

16 convicted.

17        It is well settled that courts should refrain from interpreting statutes in such a

18 way as to embrace redundancy or as to render another statutory provision unnecessary.


                                              11
 1 Martin v. Middle Rio Grande Conservancy Dist., 2008-NMCA-151, ¶ 10, 145 N.M.

 2 151, 194 P.3d 766 (holding that “the courts, when construing statutory language, must

 3 presume that the [L]egislature did not intend . . . to perform a useless act when

 4 enacting the statute”) (internal quotation marks and citation omitted); State v. Javier

 5 M., 2001-NMSC-030, ¶ 32, 131 N.M. 1, 33 P.3d 1 (holding that statutes must “be

 6 construed so that no part of the statute is rendered surplusage or superfluous”); City

 7 Comm’n of Albuquerque v. State ex rel. Nichols, 75 N.M. 438, 444-45, 405 P.2d 924,

 8 928 (1965) (holding that courts must “construe acts so that all of the acts of the

 9 [L]egislature will be operative”). As the authors of American Jurisprudence indicate,

10               In the construction of statutes, the courts start with the assumption
11        that the [L]egislature intended to enact an effective law, and the
12        [L]egislature is not to be presumed to have done a vain or futile thing in
13        the enactment of a statute. Thus, it is a general principle that the courts
14        should, if reasonably possible to do so, interpret the statute or the
15        provision being construed so as to give it efficient operation and effect
16        as a whole. A court will not interpret a statute in such a way as to make
17        a nullity of its provisions if a sensible construction is available.

18 73 Am. Jur. 2d Statutes § 164 (2009) (footnote omitted).

19        To hold that Ordinance Section 70-211(a)(4) prohibits a defendant’s refusal to

20 obey officer orders is either entirely separate from the next provision, Ordinance

21 Section 70-212, or renders it unnecessary. Both would proscribe the same conduct if

22 passive refusal to abide by an officer’s requests or orders were at issue. Therefore, in

                                              12
 1 order to avoid a tautological reading of the Espanola Municipal Code, we hold that

 2 Ordinance Section 70-211(a)(4) does not include a defendant’s mere refusal to obey.

 3 The City has chosen to prohibit refusing to obey in a separate provision, and

 4 accordingly, we must presume that the code’s drafters chose to make their resisting

 5 statute more narrow than its state counterpart. The district court rejected this notion,

 6 but we hold that it did so erroneously.

 7 CONCLUSION

 8        Archuleta was originally charged under both Ordinance Sections 70-211 and

 9 70-212. The charge for refusing to obey under Ordinance Section 70-212 was later

10 dropped. Analyzing Statute Section 30-22-1(D), the district court specifically found

11 that Defendant did not engage in any overt act of resistance or abusive conduct toward

12 the officers—the elements of resisting that would be required for conviction. It also

13 found that Archuleta refused to obey police and concluded that such behavior was

14 sufficient to constitute resisting under Ordinance Section 70-211(a)(4).           This

15 specificity in the court’s decision negates Defendant’s guilt under that ordinance

16 number based on these facts. This leap is unsupported by a close reading of the law.

17 The two provisions, though identical when read side by side, cannot be interpreted

18 identically because of the City’s choice to include a discrete refusing statute. Under


                                              13
 1 this statutory framework, viewing the district court’s findings in the light most

 2 favorable to the conviction, we hold that the evidence was insufficient to support

 3 Archuleta’s conviction. We reverse.

 4       IT IS SO ORDERED.


 5
 6                                       RODERICK T. KENNEDY, Judge

 7 I CONCUR:



 8
 9 ROBERT E. ROBLES, Judge


10 CYNTHIA A. FRY, Chief Judge (dissenting)




                                           14
 1 FRY, Chief Judge (dissenting).

 2        I respectfully dissent. The majority concludes that interpreting Ordinance

 3 Section 70-211(a)(4) (the resisting and evading ordinance) so that it is consistent with

 4 our interpretation of the identical provision in Statute Section 30-22-1(D) (the

 5 resisting and evading statute) in Diaz would render Ordinance Section 70-212

 6 unnecessary. I disagree. In my view, we can interpret the resisting and evading

 7 ordinance consistent with Diaz such that the ordinance includes Defendant’s conduct

 8 in this case while still recognizing that Ordinance Section 70-212 has continued

 9 vitality because it applies to different conduct.

10        Just as we looked to the resisting and evading statute in interpreting the

11 resisting and evading ordinance, we can find guidance in our interpretation of

12 Ordinance Section 70-212 by looking to Statute Section 30-22-2. That statute, while

13 not identical to Espanola Municipal Ordinance Section 70-212, is similar to it. Statute

14 Section 30-22-2 states: “Refusing to aid an officer consists of refusing to assist any

15 peace officer in the preservation of the peace when called upon by such officer in the

16 name of the United States or the state of New Mexico[]” and that anyone who

17 commits this violation is guilty of a petty misdemeanor. Case law cited in the

18 annotations suggests that this statute is meant to enforce a police officer’s right to ask

19 lay citizens for assistance in maintaining the peace. See Territory v. Taylor, 11 N.M.

20 588, 600, 71 P. 489, 492 (1903) (noting the existence of a predecessor to Statute


                                               15
 1 Section 30-22-2, which allowed “a sheriff, or his legally constituted deputy, [to] call

 2 on any citizen or citizens to assist him in the execution of his office”).

 3        Espanola Municipal Ordinance Section 70-212 seems to have a similar scope.

 4 It states: “No person shall fail or refuse to obey or comply with a lawful order of any

 5 police officer in the performance of his duty or refuse to aid or assist, without

 6 justifiable cause, any police officer in the execution of his office when called upon to

 7 do so in any criminal case, or in the preservation of the peace, or in the apprehending

 8 or securing of any person for the breach of the peace.” Ordinance Section 70-212.

 9 Thus, it seems reasonable to conclude that this ordinance and the corresponding

10 statute are directed at compelling the cooperation of people who are not the targets of

11 police action, while Statute Section 30-22-1 and Ordinance Section 70-211 are meant

12 to proscribe conduct by people who are the focus of police attention. Consequently,

13 we can construe Ordinance Sections 70-211 and 70-212 in a way that gives effect to

14 both without reversing Defendant’s conviction under Ordinance Section 70-211.

15        Defendant could properly be charged with violation of Ordinance Section 70-

16 212 if he were a bystander observing a confrontation between a police officer and a

17 suspect and if he refused to comply with a command directed at him by the officer

18 seeking assistance in maintaining order or in attempting to arrest the suspect. Because

19 those were not the circumstances in this case, it was appropriate to charge Defendant

20 with and convict him of resisting under Ordinance Section 70-211 because Defendant


                                              16
1 was the focus of the police activity; the officers knew only that they were dealing with

2 a man armed with a shotgun who was not responding to their commands to put his gun

3 down. The circumstances here are close to those in Diaz, and I cannot see any

4 reasonable basis for distinguishing Ordinance Section 70-211 from Statute Section 30-

5 22-1. I would affirm.




6
7                                         CYNTHIA A. FRY, Chief Judge




                                             17
