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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. 34,294

 5 THERESA S. BLAIR,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
 8 Grant L. Foutz, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Jane A. Bernstein, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14   Bennett J. Baur, Chief Public Defender
15   Matthew J. O’Gorman, Assistant Appellate Defender
16   Mary Barket, Assistant Appellate Defender
17   Santa Fe, NM

18 for Appellant

19                                 MEMORANDUM OPINION

20 SUTIN, Judge.
 1   {1}   Defendant Theresa Blair appeals her conviction for concealing her identity in

 2 violation of NMSA 1978, Section 30-22-3 (1963). Defendant makes four arguments

 3 on appeal: (1) there was insufficient evidence of her guilt because her refusal to tell

 4 the investigating officer her name occurred only after she was informed of her right

 5 to remain silent per Miranda v. Arizona, 384 U.S. 436 (1966), and because a post-

 6 Miranda refusal to provide one’s name is not “concealing” under Section 30-22-3; (2)

 7 there was insufficient evidence of her specific intent to hinder, intimidate, or interrupt

 8 the performance of a public officer’s duty as required by Section 30-22-3; (3) there

 9 was insufficient evidence of inconvenience or expense to the State as required by

10 Section 30-22-3; and (4) the prosecution’s decision to present evidence of Defendant’s

11 invocation of the right against self-incrimination was plain and/or fundamental error.

12 Because we agree that there was insufficient evidence of Defendant’s specific intent

13 to hinder, intimidate, or interrupt the performance of a public officer’s duty, we

14 reverse.

15 BACKGROUND

16   {2}   In the early morning hours of May 31, 2014, Sammy Chioda, a business owner

17 in Gallup, observed a person spray-painting the wall of the building across from his

18 business, Sammy C’s. Chioda rattled the door twice to scare the person, and the

19 person ran around the side of the building. Chioda called 911, locked the front door


                                               2
 1 of his business, got in his car, and drove to the back of the building. In the parking lot

 2 behind Sammy C’s, Chioda observed three people, including one individual who was

 3 sitting in the driver’s seat of a parked car. Officer Andrew Jorgenson, who was on

 4 patrol in the area, saw Chioda, who waved the officer down and directed him to the

 5 parking lot behind Sammy C’s.

 6   {3}   Officer Jorgenson observed a green Subaru in the parking lot with three

 7 females—Defendant was sitting in the driver’s seat. Officer Jorgenson approached the

 8 vehicle and initially made contact with Dana Eldridge who was sitting in the front

 9 passenger seat. Eldridge got out of the car, asserted that the officer had no reason to

10 detain them, and asked the officer to read the women their Miranda rights. Officer

11 Jorgenson complied. Officer Jorgenson then instructed the women to stay in their car

12 and informed them that they would be arrested for obstruction if they exited the car.

13   {4}   After making initial contact with the women, Officer Jorgenson requested an

14 additional officer to provide assistance, and Officer Christian Roman arrived on scene.

15 Officer Jorgenson asked Officer Roman to watch the car and instructed him not to let

16 the women out of the car while he questioned Chioda.

17   {5}   When Officer Jorgenson returned to the Subaru, he asked Defendant to step out

18 of the vehicle. This was the first time Officer Jorgenson spoke directly to Defendant.

19 Defendant complied with Officer Jorgenson’s instructions, and the officer and


                                               3
 1 Defendant walked toward the front of his police unit; Defendant asked about her right

 2 to remain silent; the officer advised Defendant that she did have a right to remain

 3 silent; and Defendant replied, “I like those rights. They make me feel safe.” All three

 4 women were ultimately arrested for criminal damage to property, unauthorized

 5 graffiti, concealing identity, and resisting, evading, or obstructing an officer.

 6   {6}   After a trial in magistrate court, Defendant was convicted of unauthorized

 7 graffiti under NMSA 1978, Section 30-15-1.1(B) (1995), and concealing her identity

 8 under Section 30-22-3. She appealed her convictions to the district court. During

 9 Defendant’s district court trial, Officer Jorgenson testified that he asked Defendant for

10 her identification after she was put in Officer Roman’s vehicle and that Defendant did

11 not provide her identification. He did not ask for her identification before she was

12 placed in the back of Officer Roman’s vehicle.1 However, Officer Jorgenson also

13 testified that, per New Mexico State Police policy, he conducted an inventory of the

14 vehicle prior to the vehicle being towed, and during the inventory, he found

15 Defendant’s driver’s license in the center console area. Officer Jorgenson testified that

16 he believed Defendant was concealing her identity because Defendant failed to give

17 him her name when asked, after she was placed into Officer Roman’s vehicle. He


         1
18         This testimony was somewhat inconsistent with Officer Roman’s account.
19 Officer Roman testified that Officer Jorgenson tried to ascertain Defendant’s identity
20 “a couple” of times and that Defendant stated that “it was none of his business.”

                                               4
 1 admitted that Defendant never gave a false name or attempted to disguise herself.

 2 Officer Roman also testified that Defendant provided identifying information once she

 3 was taken to the police station. Following a de novo bench trial in district court,

 4 Defendant was convicted of concealing her identity, and this appeal followed.

 5   {7}   The primary, reoccurring argument throughout Defendant’s briefs is that it

 6 would be unfair and a violation of due process to use Defendant’s post-Miranda

 7 silence as the basis for her concealing identity conviction. We need not address

 8 Defendant’s constitutional and equitable arguments, however, because there was

 9 insufficient evidence presented at trial to establish Defendant’s specific intent to

10 intimidate, hinder, or interrupt the officers’ investigation. See § 30-22-3.

11 DISCUSSION

12   {8}   To the extent this Opinion requires this Court to construe Section 30-22-3, we

13 review the matter de novo. State v. Dawson, 1999-NMCA-072, ¶ 8, 127 N.M. 472,

14 983 P.2d 421 (“The interpretation of a statute is a matter of law, which we review de

15 novo.”). As to Defendant’s argument that there was insufficient evidence of her

16 specific intent to intimidate, hinder, or interrupt the investigating officers under

17 Section 30-22-3, “we review the evidence to determine whether a rational fact[-]finder

18 could have been convinced beyond a reasonable doubt that the evidence established

19 the elements of the offense.” Dawson, 1999-NMCA-072, ¶ 13. We review the


                                              5
 1 evidence “in the light most favorable to the guilty verdict, indulging all reasonable

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

 3 Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (internal quotation

 4 marks and citation omitted).

 5   {9}    Section 30-22-3 states:

 6          Concealing identity consists of concealing one’s true name or identity,
 7          or disguising oneself with intent to obstruct the due execution of the law
 8          or with intent to intimidate, hinder[,] or interrupt any public officer or
 9          any other person in a legal performance of his duty or the exercise of his
10          rights under the laws of the United States or of this state.

11          Whoever commits concealing identity is guilty of a petty misdemeanor.

12 Defendant argues and the State does not dispute that, in order to convict a defendant

13 of concealing identity, there must be evidence of a specific intent to intimidate, hinder,

14 or interrupt an officer in the performance of his duties. This element must be proved

15 beyond a reasonable doubt to sustain Defendant’s conviction. See Garcia, 2011-

16 NMSC-003, ¶ 5 (holding that there must be substantial evidence “to support a verdict

17 of guilt beyond a reasonable doubt with respect to every element essential to a

18 conviction” (internal quotation marks and citation omitted)).

19   {10}   The notion that specific intent is required under Section 30-22-3 has been

20 looked upon favorably by this Court in Dawson, 1999-NMCA-072, ¶ 15. In Dawson,

21 the defendant appealed his conviction for concealing identity contrary to Section 30-


                                                6
 1 22-3. Dawson, 1999-NMCA-072, ¶ 1. The defendant was convicted after the

 2 prosecution presented evidence that he failed to initially identify himself to officers

 3 when the officers suspected that the defendant was trespassing on university property.

 4 Id. ¶¶ 2-5. On appeal, the defendant argued that the prosecution failed to prove that

 5 he “acted with the intent required by the statute[.]” Id. ¶ 13. In evaluating that

 6 argument on appeal, this Court stated that “[the d]efendant correctly points out that

 7 Section 30-22-3 requires an intent to obstruct the due execution of the law or . . . to

 8 intimidate, hinder[,] or interrupt a public officer in the legal performance of his duty.”

 9 Dawson, 1999-NMCA-072, ¶ 15 (omission in original) (internal quotation marks

10 omitted). Although the Court in Dawson ultimately held that there was substantial

11 evidence to support a finding of the requisite intent, the facts and circumstances in the

12 present case are significantly different. See id. ¶ 16.

13   {11}   Here, the State presented no evidence that Defendant intended to intimidate,

14 hinder, or interrupt Officer Jorgenson’s investigation. In fact, the video presented at

15 trial showed Defendant complying with Officer Jorgenson’s instructions and showed

16 that Defendant was told that she had a right to remain silent at least twice. Although

17 the statute does not require the State to show that Defendant actively misled officers

18 by providing a false name or otherwise disguising herself, Officer Jorgenson did

19 testify that Defendant did not actively mislead the investigation. Officer Jorgenson


                                               7
 1 also testified that he discovered Defendant’s driver’s license during the inventory

 2 search of the vehicle and thus knew Defendant’s identity before the vehicle was

 3 towed. Neither Officer Jorgenson nor any other witness offered testimony as to how

 4 the investigation was interrupted due to Defendant’s silence. There was no testimony

 5 that the investigation would have been straightforward or any less hindered had

 6 Defendant provided the officers with her name or identification prior to being taken

 7 to the police station. As stated earlier, Officer Roman testified that Defendant

 8 provided her information upon arriving at the police station, and there was no

 9 evidence of administrative issues before, during, or after booking.

10   {12}   Although we decline to delve into Defendant’s constitutional, due process, and

11 fairness arguments, we do note that the fact that Officer Jorgenson twice told

12 Defendant that she could be silent further undermines the State’s position that

13 Defendant intended to intimidate, hinder, or interrupt the officers’ investigation by

14 remaining silent. Officer Jorgenson’s statements to Defendant regarding her rights,

15 when considered in combination with the previously mentioned evidence, lead us to

16 the conclusion that a rational fact-finder would not have been convinced that the

17 evidence established Defendant intended to intimidate, hinder, or interrupt the

18 officers’ investigation. We agree with Defendant that her silence, after being told by

19 Officer Jorgenson that she had a right to remain silent, is too ambiguous by itself to


                                               8
 1 sustain a finding of specific intent in this case. See, e.g., State v. Gutierrez, 2007-

 2 NMSC-033, ¶ 12, 142 N.M. 1, 162 P.3d 156 (acknowledging the “dubious probative

 3 value of silence at the time of arrest, given its ambiguous nature” and recognizing that

 4 “[s]ilence in the face of accusation is an enigma and should not be determinative of

 5 one’s mental condition just as it is not determinative of one’s guilt” (internal quotation

 6 marks and citations omitted)); State v. Slade, 2014-NMCA-088, ¶ 14, 331 P.3d 930

 7 (“[E]vidence from which a proposition can be derived only by speculation among

 8 equally plausible alternatives is not substantial evidence of the proposition.” (internal

 9 quotation marks and citation omitted)). Without additional evidence of her specific

10 intent, there is insufficient evidence to sustain Defendant’s conviction for concealing

11 identity.

12   {13}   Because the State failed to prove beyond a reasonable doubt that Defendant

13 intended to intimidate, hinder, or interrupt the officers’ investigation in the

14 performance of their duties, we reverse.

15 CONCLUSION

16   {14}   For the foregoing reasons, we reverse the district court’s judgment and remand

17 the case with instructions to vacate it.

18   {15}   IT IS SO ORDERED.




                                               9
1                               __________________________________
2                               JONATHAN B. SUTIN, Judge

3 WE CONCUR:


4 _______________________________
5 LINDA M. VANZI, Judge


6 _______________________________
7 STEPHEN G. FRENCH, Judge




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