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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO. 33,071 4 AARON RAMOS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 7 Jerry H. Ritter Jr., District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Acting Chief Public Defender 12 Kathleen T. Baldridge, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VIGIL, Judge. 172 Defendant, Aaron Ramos, appeals from his conviction for resisting, evading or 1 obstructing an officer. [RP Vol.1, 1, RP Vo l. 2, 411, RP Vol. 4, 824] He contends 2 that the evidence was insuffici ent to support his conviction and that the district court 3 erred in failing to instruct the jury regarding the definition of abuse. [DS 3] We 4 issued a notice proposing to summarily affirm and Defendant filed a memorandum in 5 opposition. We remain unpersuaded by De fendant’s arguments and affirm. 6 In our notice, we proposed to conclude that the evidence was sufficient to 7 support Defendant’s conviction. In his memorandum in opposition, Defendant 8 continues to argue that there was insufficien t evidence that he resisted or abused an 9 officer, which is a required element of the offense. [MIO 4, RP Vol. 2, 417] He 10 acknowledges, however, that he refused to be photographed or fingerprinted at the 11 police station and instead threw himself onto the floor. [MIO 4] We conclude that 12 this conduct was sufficient to constitute resistance and, to the extent that there was 13 conflicting testimony, we defer to the jury’s verdict. See State v. Salas , 1999-NMCA14 099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (“We defer to the [fact finder] when it weighs 15 the credibility of witnesses and resolv es conflicts in witness testimony.”). 16 In our notice, we also proposed to conclude that the district court did not 17 commit fundamental error by failing to provide a substantive response to the jury’s 18 question regarding the definition of abusi ng an officer. Defendant does not dispute 193 that our review is only for fundamental error, but argues that the district court 1 committed fundamental error because “the evidence showed only that [Defendant] 2 peacefully protested [the officer’s] attempt to book him post-arrest.” [MIO 5, 6] He 3 claims that “because he did not physically resi st [the officer], the jury must necessarily 4 have found that he abused [the officer].” [MIO 6] We disagree with Defendant’s 5
assessment. 6 The jury was instructed that to find De fendant guilty of resisting, evading or 7 obstructing an officer, the State had to prove, among other things, that Defendant 8 “resisted or abused [the officer] in the lawful discharge of [his] duties[.]” [RP Vol. 9 2, 417] This is consistent with the statutory definition of the offense. SeeNMSA 10 1978, § 30-22-1(D) (1981). In State v. Wade , we explained that the offense consists 11 primarily of physical acts of resistance, but that the reference to “abuse” reflects an 12 intent to also prohibit certain types of speech. 1983-NMCA-084, ¶¶ 6-7, 100 N.M. 13 152, 667 P.2d 459. As discusse d above, we have already concluded that there was 14 sufficient evidence that Defendant physically resisted an officer by refusing to be 15 photographed or fingerprinted and throwing himself on the floor. In light of this 16 evidence, we perceive no error, let alone f undamental error, in the district court’s 17 refusal to define the word abuse. 18 For the reasons discussed above and in our previous notice, we affirm. 194 IT IS SO ORDERED. 1

__________________________________ 2 MICHAEL E. VIGIL, Judge 3 WE CONCUR: 4

___________________________________ 5 CYNTHIA A. FRY, Judge 6

___________________________________ 7 LINDA M. VANZI, Judge 8