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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. 35,936

 5 CHRISTOPHER SCHMITT,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
 8 Fernando R. Macias, District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 GARCIA, Judge.

18   {1}    Defendant appeals from the district court’s judgment and sentence, convicting
 1 him for resisting, evading or obstructing an officer and sentencing him to probation,

 2 following a jury trial. We were unpersuaded that Defendant’s docketing statement

 3 demonstrated error and issued a notice of proposed summary disposition, proposing

 4 to affirm. Defendant filed a response to our notice. We have considered Defendant’s

 5 response and remain unpersuaded. We, therefore, affirm.

 6   {2}   Defendant initially pursued the appeal under the demands of State v. Franklin,

 7 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982; and State v. Boyer, 1985-NMCA-

 8 029, ¶ 24, 103 N.M. 655, 712 P.2d 1, challenging the sufficiency of the evidence to

 9 support his conviction. [DS unnumbered 4] Our notice proposed to hold that the

10 combined evidence of Defendant’s belligerent and menacing behavior toward the

11 officers and Defendant’s actions showing his physical resistence against the officers

12 attempting to arrest him, which forced the officers to carry him to the patrol car, was

13 sufficient to support his conviction under NMSA 1978, Section 30-22-1(B) (1981).

14 Our notice relied on State v. Wilson, 2007-NMCA-111, ¶ 43, 142 N.M. 737, 169 P.3d

15 1184, for its holding that the evidence was sufficient to convict the defendant for

16 resisting or evading an officer under Section 30-22-1(B), where the defendant pulled

17 away from the officer when the officer had handcuffed one of the defendant’s hands,

18 was attempting to secure the defendant’s other hand, and had to forcibly apply the

19 handcuffs onto the defendant.


                                              2
 1   {3}   In response to our notice, Defendant contends that there was no evidence that

 2 he was “intentionally fleeing, attempting to evade or evading an officer[,]” as required

 3 by Section 30-22-1(B), and relies on dictionary definitions of the terms “flee” and

 4 “evade.” [MIO 4] We note that definitions of “flee” and “evade” upon which

 5 Defendant relies are so similar as to be effectively redundant. [MIO 4] It is an

 6 axiomatic rule of statutory interpretation that we will not construe a statute to render

 7 any portion of it surplusage or superfluous. See State v. Javier M., 2001-NMSC-030,

 8 ¶ 32, 131 N.M. 1, 33 P.3d 1. We construe the Legislature’s meaning of attempted

 9 evading in Subsection (B) to encompass more behavior than merely staying or

10 slipping away, as Defendant asks us to define it. [MIO 4]

11   {4}   Significantly, Defendant does not address our holding in Wilson regarding

12 Section 30-22-1(B), nor does he attempt to distinguish that case. In Wilson, this Court

13 broadly construed the offense of resisting, evading or obstructing an officer under

14 Section 30-22-1(B) and held that the defendant’s act of pulling his arm away from the

15 officer trying to handcuff him, causing the officer to forcibly finish handcuffing the

16 defendant, was a sufficient act of attempting to “resist or evade” the officer during an

17 arrest. Wilson, 2007-NMCA-111, ¶ 43. We believe Defendant’s act of “planting his

18 feet [on] the ground to keep the officers from walking him” to the patrol car, and

19 Defendant’s act of continually dropping his weight, causing officers to forcibly carry


                                              3
1 him to the patrol car, [RP 13-14] are sufficiently akin to the defendant’s act of pulling

2 his arm away from the officer handcuffing the defendant in Wilson to support a similar

3 finding of attempting to evade.

4   {5}   For the reasons stated in our notice and in this opinion, we affirm the district

5 court’s judgment and sentence convicting Defendant of resisting, evading or

6 obstructing an officer.

7   {6}   IT IS SO ORDERED.

8                                                 ________________________________
9                                                 TIMOTHY L. GARCIA, Judge

10 WE CONCUR:


11 _______________________________
12 JAMES J. WECHSLER, Judge


13 _______________________________
14 JONATHAN B. SUTIN, Judge




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