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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. 33,806

 5 JACOB PUENTE,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 William G. Shoobridge, District Judge

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

11 for Appellee

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

15 for Appellant

16                                 MEMORANDUM OPINION

17 SUTIN, Judge.
 1   {1}   Defendant appeals from the district court’s judgment and sentence entered

 2 pursuant to a jury trial, convicting him of battery upon a peace officer contrary to

 3 NMSA 1978, Section 30-22-24 (1971). Unpersuaded by Defendant’s docketing

 4 statement, we entered a notice of proposed summary disposition, proposing to affirm.

 5 In response to our notice, Defendant has filed a memorandum in opposition and a

 6 motion to amend. We remain unpersuaded and therefore affirm. Additionally, the

 7 motion to amend the docketing statement is DENIED.

 8 SUFFICIENCY OF THE EVIDENCE

 9   {2}   Defendant challenges the sufficiency of the evidence to support his conviction

10 for battery on a peace officer. [MIO 6-19] In response to our notice, Defendant

11 argues that in order to convict him of battery upon a police officer, his conduct must

12 have actually interfered with the officer’s ability to carry out his duties or control or

13 command the situation. [MIO 6] In making this assertion, Defendant is attempting

14 to define what it means to meaningfully challenge an officer’s authority—something

15 we have declined to do. State v. Martinez, 2002-NMCA-036, ¶ 38, 131 N.M. 746, 42

16 P.3d 851 (“We specifically decline[] to define what types of behavior will be

17 sufficient to constitute a meaningful challenge to authority and what will not. Instead,

18 we stress[] that whether or not a defendant’s conduct constitute[s] a meaningful

19 challenge [will] depend on the context in which the battery occurred.” (citation


                                               2
 1 omitted)); State v. Jones, 2000-NMCA-047, ¶ 14, 129 N.M. 165, 3 P.3d 142 (“While

 2 the parties urge us to define the legal boundaries of a ‘meaningful challenge’ to

 3 authority, we decline to do so. Because its definition demands knowledge of the

 4 context in which the battery arose, this question is best left to juries to decide using

 5 their collective common sense and wisdom as a guide.”).

 6   {3}   Further, while Defendant continues to argue that his conduct could not have

 7 constituted a meaningful challenge to authority, we are unpersuaded. In Jones, this

 8 Court examined two defendants’ conduct to determine whether a rational jury could

 9 find that each had meaningfully challenged an officer’s authority when they spit at law

10 enforcement officers. The first defendant spit on an officer from the back seat of a

11 patrol car after he had been arrested and was being transported to the police station.

12 Jones, 2000-NMCA-047, ¶ 2. The second defendant spit on a detention center officer

13 when the officer was performing a welfare check on the defendant through a food-tray

14 slot in the cell door. Id. ¶ 4. With respect to the first defendant, this Court concluded

15 that “a rational, properly instructed jury could find beyond a reasonable doubt that [the

16 defendant’s] spitting upon an officer from the rear seat of the officer’s car constituted

17 a “meaningful challenge” to the authority the officer was lawfully exercising over him

18 pursuant to his arrest for DWI.” Id. ¶ 15. Similarly, we concluded that the second

19 defendant’s conduct could constitute a meaningful challenge to authority. Id. ¶ 18.


                                               3
 1 In this case, as we explained in our notice, we conclude that there was sufficient

 2 evidence based on evidence that Defendant was ordered to the ground by police

 3 officers, and while the officer was attempting to place Defendant in handcuffs,

 4 Defendant resisted to some extent and spit in the officer’s face. [CN 3-4; MIO 2; RP

 5 25] While Defendant, again, points out that the officer did not personally feel that

 6 Defendant’s conduct impacted or impeded his authority, we continue to believe that

 7 it was the jury’s role to make that determination. See Martinez, 2002-NMCA-036, ¶¶

 8 40-41 (emphasizing that whether there was a meaningful challenge to authority is a

 9 question of fact for the jury to decide); Jones, 2000-NMCA-047, ¶ 14; see also

10 Charles v. Regents of N.M. State Univ., 2011-NMCA-057, ¶ 15, 150 N.M. 17, 256

11 P.3d 29 (“In reviewing a sufficiency of the evidence claim, this Court views the

12 evidence in a light most favorable to the prevailing party and disregards any

13 inferences and evidence to the contrary. We defer to the jury’s determination

14 regarding the credibility of witnesses and the reconciliation of inconsistent or

15 contradictory evidence. We simply review the evidence to determine whether there

16 is evidence that a reasonable mind would find adequate to support a conclusion.”

17 (alteration, internal quotation marks, and citation omitted)). Accordingly, for the

18 reasons set forth in this Opinion and in our calendar notice, we reject Defendant’s

19 argument with respect to the sufficiency of the evidence.


                                            4
 1 MOTION TO AMEND

 2   {4}   Defendant has also filed a motion to amend his docketing statement to include

 3 the issue of whether a definitional instruction regarding what constitutes a meaningful

 4 challenge to authority should have been supplied to the jury. [MTA 1] As Defendant

 5 recognizes, because he failed to preserve this issue, we will only reverse upon a

 6 finding of fundamental error.        [MIO 19-23 (arguing that failure to provide a

 7 definitional instruction resulted in fundamental error)]              State v. Benally,

 8 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (providing that the appellate

 9 courts review issues relevant to jury instructions for fundamental error when the issue

10 has not been preserved). Because we conclude that this issue is not viable, we deny

11 Defendant’s motion to amend. See State v. Moore, 1989-NMCA-073, ¶¶ 44-45, 109

12 N.M. 119, 782 P.2d 91 (providing that this Court will deny motions to amend that

13 raise issues that are not viable, even if they allege fundamental or jurisdictional error),

14 superseded by rule on other grounds as recognized in State v. Salgado, 1991-NMCA-

15 044, ¶ 2, 112 N.M. 537, 817 P.2d 730.

16   {5}   As we explained earlier, in the past we have specifically declined to define what

17 constitutes a meaningful challenge to authority. Martinez, 2002-NMCA-036, ¶ 38;

18 Jones, 2000-NMCA-047, ¶ 14. Secondly, even if we were to agree with Defendant

19 that a definitional instruction should have been supplied to the jury, our case law


                                                8
 1 indicates that the failure to include a definition in jury instructions typically does not

 2 rise to the level of fundamental error. State v. Barber, 2004-NMSC-019, ¶ 20, 135

 3 N.M. 621, 92 P.3d 633 (agreeing that the “failure to instruct on a definition . . . , even

 4 when called for in an official UJI Use Note, does not rise to the level of fundamental

 5 error” in most cases). This case does not present a situation that meets the exacting

 6 standard requiring reversal due to fundamental error. See id. ¶ 17 (providing that

 7 fundamental error only occurs in “cases with defendants who are indisputably

 8 innocent, and cases in which a mistake in the process makes a conviction

 9 fundamentally unfair notwithstanding the apparent guilt of the accused”). In

10 considering the foregoing, we conclude that Defendant has not presented a viable

11 issue in his motion to amend, and we therefore deny his motion.

12   {6}   For reasons set forth in our notice and in this Opinion, the district court is

13 affirmed, and Defendant’s motion to amend is denied.

14   {7}   IT IS SO ORDERED.




15                                          __________________________________
16                                          JONATHAN B. SUTIN, Judge



17 WE CONCUR:

                                               9
1 _______________________________
2 TIMOTHY L. GARCIA, Judge



3 _______________________________
4 M. MONICA ZAMORA, Judge




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