This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO , 7 Plaintiff-Appellee, 8

v. NO. 29,065 9 CODY LITTLE , 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 12 William G.W. Shoobridge, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Francine A. Chavez, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Mary Barket, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 222 MEMORANDUM OPINION 1 ROBLES, Judge. 2 Defendant appeals his convictions for battery on a peace officer and resisting, 3 evading, or obstructing an officer. On appeal , he contends that his convictions violate 4 double jeopardy principles and that the distri ct court erred in refusing to give a jury 5 instruction on self defense. For the reasons that follow, we revers e in part and affirm 6 in part. 7 I. BACKGROUND 8 Defendant’s convictions arose out of anincident that occurred in Lovington, 9 New Mexico on December 16, 2007. Offi cer Pete Honigmann responded to a 10 disturbance call at a private residence. While investigating, the officer spoke with 11 Holly Humble and David Sherman, who advised him Defendant had been at the 12 residence earlier that evening despite havi ng previously signed a criminal trespass 13 warning. Sherman, who appeared angry, got into his truck and left. Because the 14 officer was concerned that Sherman intende d to seek Defendant out, and he wished 15 to pursue the investigation further, the officerreturned to his patrol car to search for 16 either or both of them. 17 Officer Honigmann spotted Sherman’s truc k in the middle of the road near an 18 intersection. Sherman was sitting behind the wheel speaking to Defendant, who was 193 standing by the driver’s side window. Th e officer pulled over and parked under a 1 street light. He then got out of his patrolcar and shouted “[p]o lice” as he approached. 2 Defendant then stepped away from the truck and began walking north, and Sherman 3 drove away. The officer pur sued Defendant on foot and shouted: “Police! Come 4 back over here.” Defendant continued to walk away. Wh en the officer repeated his 5 previous command, Defendant threw up his hand, shouted an obscenity, and continued 6 walking away. Defendant then started runni ng. The officer pursued and, ultimately, 7 tackled Defendant on a lawn. He then atte mpted to gain control of Defendant and 8 handcuff him in order to take him into custody. Defendant physically resisted, 9 struggled, and then hit the officer on the n eck with his fist. Defendant once again 10 shouted an obscenity. The struggle continue d, despite the officer’s commands to stop 11 resisting. As a result of Defendant’s c ontinuing resistance, the officer dropped the 12 handcuffs and ended up lying on the ground w ith his feet up trying to defend himself. 13 While kneeling near his feet, Defendant reached behind his back and stated that he 14 was going to “fuck [Officer Honigmann] up. ” Believing that De fendant was going to 15 retrieve a weapon, the officer sprayed Defe ndant in the face with pepper spray. He 16 then placed a second pair of handcuffs on Defendant without further incident. 17 Based on the foregoing events, Defendant was charged with both battery on a 18 peace officer and resisting, evading, or obs tructing an officer. At trial, defense 194 counsel requested jury instructions on self defense. The court declined to give the 1 requested instructions, and the jury, ultim ately, returned guilty verdicts on both 2 counts. This appeal followed. 3 II. DISCUSSION 4 A. Double Jeopardy 5 Defendant contends that hi s convictions for resisting, evading, or obstructing 6 an officer and battery on a peace officer violate double jeopardy. Double jeopardy 7 presents a question of law, which we review de novo. State v. Bernal , 8 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289. 9 Insofar as Defendant was ch arged with violation of multiple statutes, we are 10 presented with a “double-description” issue. State v. Ford , 2007-NMCA-052, ¶ 8, 11 141 N.M. 512, 157 P.3d 77 (classifying a doubl e jeopardy challenge to separate 12 convictions for resisting, evading, or obstructing an officer and battery on a peace 13 officer as a double-description issue). We apply a two-part test to double-description 14

cases. Id. ¶ 9. “[F]irst, we determine whether the [underlying] conduct is unitary.” 15 Id. ¶ 10. “If the conduct is non-unitary, multiple punishments do not violate the 16 Double Jeopardy Clause, and our examination ends.” Id. However, “if the conduct 17 can reasonably be said to be unitary,” we proceed to determine “whether the 185 [L]egislature intended multiple punishments.” Id. (alteration in original) (internal 1 quotation marks and citation omitted). 2 The unitary conduct inquiry focuses on whether the defendant’s acts are 3 separated by sufficient “indicia of distinctness.” Swafford v. State , 112 N.M. 3, 13, 4 810 P.2d 1223, 1233 (1991)

. “[W]e consider such fact ors as whether the acts were 5 close in time and space, their similarity, the sequence in wh ich they occurred, whether 6 other events intervened, and [the] defendant’s goals for and mental state during each 7 act.” Ford , 2007-NMCA-052, ¶ 12. 8 Applying the foregoing factors, we observethat the entire in cident appears to 9 have occurred within a short period of time and within the limited space of 10 approximately one city block. Defendant’s convictions for both crimes were based 11 on his resistance to Officer Honigmann’s attempts to apprehend him, entailing acts of 12 struggling, grappling, and striking, whic h appear similar in character and quality. 13 With respect to sequencing, the blow to th e neck occurred in the midst of the larger, 14 continuous episode of resistance. No in tervening event or break in the action 15 occurred. Finally, the evidence suggests a si ngle object of continuing resistance to the 16 officer’s attempts to apprehend him. The foregoing considerations all support the 17 conclusion that Defendant’s conduct was unitary. 186 We note the similarity to the scenario addressed in Ford . In that case as in this 1 one, the defendant’s convictions for resisting, evading, or obstructing an officer and 2 battery on a peace officer werebased on his acts of struggling while the officers were 3 trying to effectuate an arrest. 2007-NMCA-052, ¶¶ 13-14. The acts occurred close 4 in time and, id. ¶ 14, although the struggling and kicking occurred in slightly different 5 places, they were in close proximity. Id. ¶ 15. The defendant’s acts of struggling and 6 kicking were also deemed si milar in quality and nature. Id. ¶¶ 14-16. Moreover, the 7 kicking occurred at the conclusion of the larger, continuous episode of struggling, 8 during which no intervening event or break in the action was suggested. Id. ¶¶ 13-14. 9 Finally, the defendant’s acts occurred in response to the officers’ attempts to 10 effectuate an arrest and, therefore, app eared to have the same object of resistance 11 thereto. Id. ¶ 14. Insofar as the conduct at issu e in this case is so analogous to the 12 conduct addressed in Ford , we conclude that the conduct is unitary for double 13 jeopardy purposes. See id. ¶ 16 (concluding that th e defendant’s conduct was 14 unitary). 15 The State contends that this case should be deemed more analogous to State v. 16 Lopez , 2008-NMCA-111, 144 N.M. 705, 191 P.3d 563. In Lopez , the defendant’s “act 17 of fleeing was punctuated by a distinct ch ange in character and quality when he 18 stopped fleeing, turned towardthe officer in an attack posture, came back to the 197 officer, and punched him twice inthe face, drawing blood.” Id. ¶ 10. Moreover, “at 1 the time [the d]efendant stopped fleeing and physically attacked the officer, [the 2 d]efendant’s purpose changed from simply trying to escape into physical violence 3 directed at the officer.” Id. Accordingly, both “the quality and nature of the 4 individual acts, and the objectives and resu lts involved, changed significantly,” such 5 that the conduct at issue was properly deemed non-unitary. Id. (internal quotation 6 marks and citation omitted). 7 In this case, by contrast, the quality and character of Defendant’s conduct did 8 not significantly change in the course of the episode. Unlike the facts presented in 9 Lopez , Defendant neither deliberately ceased fleeing nor turned to attack. To the 10 contrary, Defendant only stopped and came into physical contact with Officer 11 Honigmann because he was tackled. Although Defendant struck the officer, the blow 12 occurred in the course of the struggle that took place on the ground after Defendant 13 had been tackled, and it app ears to have been similar innature to his other acts of 14 physical resistance. See Ford , 2007-NMCA-052, ¶ 14 (characterizing a kick as 15 similar to other acts of resistance occurring in the course of a struggle to resist arrest). 16 Nor do we perceive any basis for aninference of altered purpose. As 17 previously stated, the object throughout the episode appears to have been resistance 18 to Officer Honigmann’s attempts to effectuate an arrest. Although the State contends 198 that Defendant’s menacing comment while kneeling at the officer’s feet should be 1 regarded as an indication of changed pur pose, the comment was made after the blow 2 had already occurred and at the conclusion of the struggle, immediately before the 3 officer sprayed Defendant withpepper spray. Insofar as no physical contact occurred 4 after the comment was made, the comment cannot be said to reflect an altered purpose 5 in aid of the battery conviction. 6 Finally, the State suggests that Defendant’s convictions can be upheld on the 7 theory that he completed the offense of resi sting, evading, or obstructing when he fled, 8 whereas, the battery occurred in the courseof the separate and subsequent physical 9 struggle. However, double jeopardy con cerns “cannot be avoided by the simple 10 expedient of dividing conduc t into a series of temporal and spatial units.” Lopez , 11 2008-NMCA-111, ¶ 10. As Ford and Lopezboth illustrate, we must consider the 12 entire uninterrupted episode, rather than artificially compartmentalizing the pertinent 13 events. See State v. Padilla , 101 N.M. 78, 79, 678 P.2d 706, 707 (Ct. App. 1983) 14 (indicating that an episode much like the one at bar could not be broken down into 15 discreet parts), rev’d in part on other grounds , 101 N.M. 58, 678 P.2d 686 (1984). 16 Because we have concluded th at the conduct at issue inthis case is unitary, we 17 must proceed to the second step of the double jeopardy analysis. Legislative intent 18 with respect to the offenses of resisting, evading, or obstructing an officer and battery 199 on a peace officer was evaluated in Ford . Comparing the applicable statutory 1 provisions, the Court observed that the elements of the former are subsumed within 2 the elements of the latter. 2007-NMCA-052, ¶¶ 18-21. 3 In this case, the offenses incorporate the same elements as those addressed in 4 Ford . Insofar as the elements of resisting are subsumed w ithin the elements of battery 5 on a peace officer, our inquiry is at an end. See State v. Lee , 2009-NMCA-075, ¶ 9, 6 146 N.M. 605, 213 P.3d 509 (observing that “[i]f . . . one statute is subsumed within 7 the other, the inquiry is over and the statutes are the same for double jeopardy 8 purposes—punishment cannot be had for both” (internal quotation marks and citation 9 omitted)), cert. denied , 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42. 10 The State suggests that the foregoing stri ct comparison of the elements of the 11 offenses is not controlling because the evid ence presented in this case could have been 12 parsed out to provide different factual predicates for each conviction. However, for 13 the reasons previously stated, we reject the State’s attempt to divide the underlying 14 conduct into discrete, temporal units and, instead, regard th e episode as a whole as the 15 appropriate unit of analysis. See generally Lopez , 2008-NMCA-111, ¶¶ 9-13 16 (illustrating this general approach); Ford, 2007-NMCA-052, ¶¶ 12-16 (same); Padilla , 17 101 N.M. at 79, 678 P.2d at 707 (same). Moreover, in this context, it is inappropriate 18 to consider the case-specific facts or evid ence when comparing th e elements of the 1910 offenses. See State v. Armendariz , 2006-NMSC-036, ¶ 21, 140 N.M. 182, 141 P.3d 1 526 (observing that the test of Blockburger v. United States , 284 U.S. 299 (1932) 2 “focuses strictly upon the elements of the st atutes. . . . [E]vidence and proof offered 3 at trial are immaterial” (internal quotation marks omitted)). 4 In summary, Defendant was convicted of two offenses arising out of unitary 5 conduct. Because the elements of one of these offenses are subsumed within the 6 elements of the other, Defendant’s right to be free from double jeopardy was violated. 7 Ford , 2007-NMCA-052, ¶ 23. Defe ndant’s conviction for re sisting—being the lesser 8 offense—must therefore be vacated. See id. 9 B. Self-Defense Instruction 10 Defendant contends that the trial court erred in rejecting his proposed jury 11 instructions on self defense. “When, as in this case, a challenge to the jury 12 instructions has been preserved, wereview for reversible error.” State v. Ellis , 13 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186 P.3d 245. “The trial court’s rejection of 14 [the d]efendant’s submitted jury instruc tions is reviewed by this Court de novo, 15 because it is closer to a determination of law than a determination of fact.” Id. 16 (internal quotation marks and citation omitted). 17 In Ellis , our Supreme Court explained thata person has only a qualified right 18 to assert self defense against a police o fficer because police officers have a duty to 1911 make arrests, and a right to use reasonable force when necessary. Id. ¶ 15 (citing State 1 v. Kraul , 90 N.M. 314, 319, 563 P.2d 108, 113 (Ct. App. 1977)). Generally, it is the 2 jury that is called upon to determine both the objective reasonableness of the officer’s 3 use of force and the reasonableness of th e defendant’s resort to self defense. Ellis , 4 2008-NMSC-032, ¶¶ 31-32. However, prior to sending the matter to the jury, “the 5 court must first be persuaded that reasonable minds could differ on whether the 6 officer’s use of force was ex cessive, such that a reasonable jury could so conclude.” 7 Id. ¶ 34. 8 In Ellis , in the course of a traffic stop, a police officer drew his weapon in 9 response to the defendant’s very aggressive and hostile behavior. Id. ¶ 37. Because 10 the officer had “increased his use of fo rce incrementally and in proportion to the 11 circumstances with which he was confronted,” and because he only drew his weapon 12 “when provoked and in an effo rt to control the situation and to subdue a hostile, 13 aggressive [d]efendant,” the Court conc luded that “[n]o reasonable jury could 14 conclude that [the officer] used exce ssive force under these circumstances.” Id. ¶ 41. 15 Turning to the facts at issu e in this case, as previous ly described, Defendant was 16 under investigation for violating a criminaltrespass warning. Officer Honigmann 17 approached and shouted “[p]olice.” Defendant proceeded to walk away. The officer 18 followed Defendant and shouted “[p]olice! Come back here.” Defendant continued 1912 to walk away. When Defendant shouted an obscenity and began to run, the officer 1 gave chase, overtook Defe ndant, and tackled him on a lawn. Once on the ground, 2 Defendant struck the officer. While struggling on the ground, the officer commanded 3 Defendant to stop resisti ng. Defendant ignored th e command and wound up kneeling 4 above the officer as he lay in a prone positi on. Defendant then stated that he was 5 going to “fuck [Officer Honigm ann] up,” and reached behind his back. Fearing that 6 Defendant was going to retrie ve a weapon, the officer th en sprayed Defendant with 7 pepper spray. 8 As in Ellis , the officer in this case increased his use of force incrementally and 9 in proportion to the circumstances with wh ich he was confronted. When he located 10 Defendant, Officer Honigmann issued several warnings to Defendant to stop. He 11 pulled Defendant to the ground only after se veral unheeded warnings to stop, and he 12 used pepper spray only after Defendant threatened him. As in Ellis , “we have little 13 difficulty concluding, as a matter of law, that[the officer in this case] used an amount 14 of force that was reasonably necessary gi ven the circumstances with which he was 15 faced.” Id. We therefore conclude that Defe ndant was not entitled to a self-defense 16 instruction. 17 III. CONCLUSION 1813 For the foregoing reasons, we reject Defendant’s challenge to the denial of his 1 requested jury instructions on self de fense. However, we further hold that 2 Defendant’s convictions for resisting, evading, or obstructing an officer and battery 3 on an officer violate double jeopardy. We therefore remand to the district court to 4 vacate Defendant’s conviction for resisting, evading, or obstructing an officer and to 5 resentence Defendant accordingly. 6 IT IS SO ORDERED. 7

_______________________________ 8 ROBERT E. ROBLES, Judge 9

WE CONCUR: 10

______________________________ 11 RODERICK T. KENNEDY, Judge 12

______________________________ 13 LINDA M. VANZI, Judge 14