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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            NO. 33,242

 5 MARTIN MARTINEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, Jr., District Judge


 9 Gary K. King, Attorney General
10 Albuquerque, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 KENNEDY, Chief Judge.
 1   {1}   Martin Martinez (Defendant) appeals his conviction for battery on a peace

 2 officer, and he raises two challenges to his sentencing on other offenses. We issued

 3 a notice of proposed summary disposition proposing to affirm. Defendant has filed

 4 a timely memorandum in opposition, which we have duly considered. We remain

 5 unpersuaded that our initial proposed disposition was incorrect. We therefore affirm

 6 Defendant’s conviction and sentence.

 7   {2}   In his memorandum in opposition, Defendant continues to challenge the

 8 sufficiency of the evidence to support his conviction for battery on a peace officer.

 9 [MIO 2-6] “In reviewing the sufficiency of the evidence, we must view the evidence

10 in the light most favorable to the guilty verdict, indulging all reasonable inferences

11 and resolving all conflicts in the evidence in favor of the verdict.”          State v.

12 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. The question is

13 whether the trial court’s “decision is supported by substantial evidence, not whether

14 the trial court could have reached a different conclusion.” In re Ernesto M., Jr., 1996-

15 NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. “The reviewing court does not weigh

16 the evidence or substitute its judgment for that of the fact finder as long as there is

17 sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124

18 N.M. 346, 950 P.2d 789.




                                              2
 1   {3}   Battery on a peace officer is defined as “the unlawful, intentional touching or

 2 application of force to the person of a peace officer while he is in the lawful discharge

 3 of his duties, when done in a rude, insolent[,] or angry manner.” Section 30-22-24(A)

 4 (1971). In State v. Padilla, 1997-NMSC-022, ¶ 11, 123 N.M. 216, 937 P.2d 492, our

 5 Supreme Court held that conviction under Section 30-22-24 requires proof of injury

 6 or conduct that threatens an officer’s safety or meaningfully challenges his or her

 7 authority. In this case, the jury was instructed that Defendant’s conduct caused a

 8 “meaningfully challenge” to Detective Tim Nyce’s authority. [CR-2012-624 [RP 66]

 9 See UJI 14-2211 NMRA (defining battery on a peace officer). We considered

10 whether the act of spitting on a peace officer violates Section 30-22-24. See State v.

11 Jones, 2000-NMCA-047, ¶ 15, 129 N.M.165, 3 P.3d 142. We held that the act of

12 spitting on a peace officer could constitute a threat to the officer’s safety or a

13 meaningful challenge to his authority, depending on the context in which it occurred.

14 See id. ¶¶ 15, 18; see also State v. Martinez, 2002-NMCA-036, ¶ 38, 131 N.M. 746,

15 42 P.3d 851.

16   {4}   We conclude that the evidence in this case is sufficient. The record indicates

17 that Detective Nyce testified that he tried to collect a DNA sample from Defendant

18 pursuant to a search warrant while Defendant was being held at the county jail. [CR-

19 2012-634 44-45] Defendant was uncooperative and began to kick the door with the

20 back of his heel. [CR-2012-624 RP 45] Defendant then turned and spit at Detective

                                               3
 1 Nyce and stated: “There is your [DNA] sample.” [CR-2012-624 RP 45] Four other

 2 officers testified to a substantially similar version of events. [CR-2012-624 RP 45-47]

 3 There was also evidence that Defendant was unruly when the officers came to collect

 4 the DNA sample. He kicked the door, cursed at the guards, and tried to kick them.

 5 [CR-2012-624 RP 45-46] He held his mouth shut when the officers tried to collect

 6 the DNA sample, and he tried to bite at the swab. [CR-2012-624 RP 47] We propose

 7 to hold that this evidence is sufficient to allow the jury to find that Defendant’s

 8 conduct created a meaningful challenge to Detective Nyce’s authority. See Martinez,

 9 2002-NMCA-036, ¶ 40 (holding that there was sufficient evidence from which the

10 jury could find that the defendant’s act of spitting presented a meaningful challenge

11 to the officer’s authority where the incident began with the defendant attempting to

12 reject the officer’s authority by pulling away from him while the officer led him to his

13 cell and, after spitting, he continued to resist the officers trying to restrain him and

14 kicked another officer).

15   {5}   Defendant next argues that the district court violated his right to be free from

16 double jeopardy by imposing consecutive sentences for his three convictions for

17 aggravated assault on a peace officer. [MIO 7-9] Defendant pleaded guilty to three

18 counts of aggravated assault on a peace officer with a deadly weapon based on three

19 different victims. [CR-2012-634 RP 1-3, 126, 129-131, 150]



                                               4
 1   {6}   Defendant raises a “unit of prosecution” double jeopardy challenge because he

 2 argues that he was convicted of multiple violations of the same criminal statute for the

 3 same offense. See State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d

 4 61 (stating that the “unit of prosecution” category of double jeopardy prohibits

 5 charging a defendant with multiple violations of a single statute based on a single

 6 course of conduct). We employ a two-step analysis in unit of prosecution cases. See

 7 State v. Boergadine, 2005-NMCA-028, ¶ 15, 137 N.M. 92, 107 P.3d 532. We first

 8 inquire whether the statute clearly defines the unit of prosecution. See State v. Soto,

 9 2001-NMCA-098, ¶ 13, 131 N.M. 299, 35 P.3d 304.                “If a statute’s unit of

10 prosecution is clearly defined, we must look no further than the face of the statute.”

11 Boergadine, 2005-NMCA-028, ¶ 15, 137 N.M. 92, 107 P.3d 532.

12   {7}   In our notice of proposed summary disposition, we proposed to hold that

13 NMSA 1978, Section 30-22-22 (1971), reflects a legislative intent to make each

14 victim the subject of a separate charge. Assault, including aggravated assault, is an

15 offense committed against the person of another. The interest protected by the assault

16 statute is the mental harm to the victim caused by the threat of violence. See State v.

17 Roper, 2001-NMCA-093, ¶ 12, 131 N.M. 189, 34 P.3d 133 (stating that it is

18 permissible to convict or sentence a defendant for two counts of assault for pointing

19 a gun at two persons at the same time because the legislative focus of the assault

20 statutes is the protection of victims from mental harm); see also NMSA 1978, § 30-3-

                                              5
 1 1(B) (1963) (stating that assault consists of “any unlawful act, threat[,] or menacing

 2 conduct which causes another person to reasonably believe that he is in danger of

 3 receiving an immediate battery”).

 4   {8}   In his memorandum in opposition, Defendant does not dispute our proposed

 5 holding that the Legislature intended to make each victim the subject of a separate

 6 charge under Section 30-3-1. Rather, Defendant argues that the evidence only

 7 supports one count of aggravated assault because his conduct with respect to the three

 8 officers was unitary. [MIO 8-9] However, where the statute clearly defines the unit

 9 of prosecution, as in this case, we do not look further to determine whether the

10 Legislature intended punishment for the entire course of conduct or for each discrete

11 act. See Boergadine, 2005-NMCA-028, ¶ 15 (“If a statute’s unit of prosecution is

12 clearly defined, we must look no further than the face of the statute.”). We therefore

13 reject Defendant’s argument that his right to be free from double jeopardy was

14 violated by the district court’s imposition of consecutive sentences for his three

15 convictions for aggravated assault on a peace officer.

16   {9}   Finally, Defendant argues that the sentence imposed constitutes cruel and

17 unusual punishment. [MIO 9-11] “Whether a particular sentence amounts to cruel

18 and unusual punishment raises a constitutional question of law that we review de novo

19 on appeal.” State v. Ira, 2002-NMCA-037, ¶ 17, 132 N.M. 8, 43 P.3d 359. “In

20 general, a lawful sentence does not constitute cruel and unusual punishment.” State

                                             6
 1 v. Wacey C., 2004-NMCA-029, ¶ 9, 135 N.M. 186, 86 P.3d 611. The test for cruel

 2 and unusual punishment is “[w]hether in view of contemporary standards of elemental

 3 decency, the punishment is of such disproportionate character to the offense as to

 4 shock the general conscience and violate principles of fundamental fairness.” In re

 5 Ernesto M., Jr., 1996-NMCA-039, ¶ 22 (internal quotation marks and citation

 6 omitted). “When the length of a sentence is disproportionate to the crime that is

 7 charged, it may constitute cruel and unusual punishment.”         State v. Castillo,

 8 2011-NMCA-046, ¶ 31, 149 N.M. 536, 252 P.3d 760. However, in the absence of a

 9 compelling reason to do so, courts will not impose their own view in place of the

10 Legislature’s regarding the appropriate punishment for crimes. See State v. Rueda,

11 1999-NMCA-033, ¶ 6, 126 N.M. 738, 975 P.2d 351.

12   {10}   In his memorandum in opposition, Defendant recognizes that the sentence

13 imposed in this case is authorized by the sentencing statutes enacted by the

14 Legislature. [MIO 10] Defendant argues that the seven-year sentence in this case is

15 cruel and unusual because four and a half years of the sentence were for the

16 aggravated assault on a peace officer convictions, and he only fired two shots.

17 Defendant argues that he is being sentenced as if he fired three shots. [MIO 12]

18 However, as discussed above, we believe that separate convictions and consecutive

19 sentences for the aggravated assault on a peace officer convictions were appropriate.

20 We therefore hold that Defendant’s seven-year sentence does not constitute

                                             7
1 punishment so disproportionate to the character of the offenses as to “shock the

2 general conscience or violate principles of fundamental fairness.” Id. ¶ 16 (internal

3 quotation marks and citation omitted).

4   {11}   For these reasons, we affirm the district court.

5   {12}   IT IS SO ORDERED.



6                                           ____________________________________
7                                           RODERICK T. KENNEDY, Chief Judge


8 WE CONCUR:



 9 _________________________________
10 JAMES J. WECHSLER, Judge



11 _________________________________
12 MICHAEL D. BUSTAMANTE, Judge




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