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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. A-1-CA-35044 4 LORENZO ALONZO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Lisa B. Riley, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Laurie Blevins, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Nina Lalevic, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 ZAMORA, Judge. 192 {1} Defendant appeals his convictions for re sisting, evading, obstructing an officer 1 (resisting), and two counts of battery on a peace officer. Onappeal, Defendant claims 2 that: (1) the evidence was in sufficient to support his convi ctions; (2) he was entitled 3 to an instruction on simple battery; (3) hi s conviction for resisting an officer should 4 be vacated based on double jeopardy violations; (4) the district court erred in allowing 5 testimony and questioning about prior and s ubsequent bad acts by Defendant; and (5) 6 he received ineffective assistance from hi s trial counsel. We affirm Defendant’s 7 convictions. 8 {2} Because this is a memorandum opinion and the parties are familiar with the 9 facts and procedural background of the case, we reserve discussion of the pertinent 10 facts for our analysis. 11 DISCUSSION 12 A. Sufficiency of the Evidence 13 {3} Defendant argues that the evidence was insufficient to support his conviction 14 for resisting or abusing an officer, as we ll as his convictions for battery on a peace 15 officer. See NMSA 1978, § 30-22-1(D) (1981) (provi ding that resisting, evading, or 16 obstructing an officer consists of “resisting or abusing any . . . peace officer in the 17 lawful discharge of his [or her] dutie s”); NMSA 1978, § 30-22-24 (1971) (providing 18 that battery on a peace officer involves the unlawful, intentional touching or 193 application of force to the peace officer whilein the lawful discharge of his or her 1 duties, when done in a rude, insolent, orangry manner). Defendant also argues that 2 he was entitled to a simple battery instru ction. For both of these issues, Defendant 3 argues that the officers were not acting with in the lawful discharge of their duties 4 because they had no reason to forc ibly detain him. We disagree. 5 1. Officers Were Acting Within Lawful Discharge of Their Duties 6 {4} Police officers responded to two separatecalls. All of the responding officers 7 were in uniform, displaying their badges, and driving marked poli ce cars. The first call 8 was based on a report that a male and female were observed arguing in a car; the male 9 exited the car and appeared to be bleeding. Officer Ryan Rodriguez learned that the 10 male seemed to have sustained an injury in a physical altercation, and had a noticeable 11 amount of blood on his face. Officer Rodri guez could not locate the male subject, but 12 encountered a female who had seen the male and described where he was headed. 13 Officer Rodriguez also spoke with a sec ond person who had witne ssed the altercation 14 between the male and female and had observed blood on the face of the male. 15 {5} Around ten minutes after the first dispatch, the officers received the second 16 dispatch concerning an unwanted male. Th e description of th e male matched the 17 description from the first caller. Officer Rodriguez found the male, who turned out to 18 be Defendant, sitting on the pr operty of the second caller’s residence. Upon seeing the 194 officer, Defendant stood up and walked away while using obscene gestures and 1 language toward the officer . Defendant appeared agitated and sweaty, and had a 2 noticeable amount of blood on a substantial part of his face. Officer Rodriguez spoke 3 with the second caller who told him that Defendant had bange d on her door wanting 4 to use the phone. After speaking with the re sident, Officer Rodriguez searched for 5 Defendant and found him walking in an alle y. Defendant entered a backyard of a 6 residence and emerged on the other side, between two houses. 7 {6} Lieutenant Tommy Barnett observed De fendant coming from between the two 8 houses, and gave several commands for him to stop. Defendant responded with rude 9 gestures and comments, and increased his walking speed. When Defendant continued 10 to refuse to comply with his commands, Li eutenant Barnett used an arm bar maneuver 11 to take Defendant to the ground. When Officer Albert Castillo arrived on the scene, 12 Lieutenant Barnett stood up from his kneeling position in order to allow Officer 13 Castillo to help with Defendant . Defendant fought to the point that Lieutenant Barnett 14 and Officers Castillo and Rodriguez were struggling to subdue Defendant, who was 15 thrashing, kicking, and cursing. In the pr ocess, Defendant directed separate kicks at 16 Lieutenant Barnett and Officer Castillo. 17 {7} The fact that Defendant had a substantial amount of blood on his face, and 18 based on Defendant’s demeanor, appearance, and behavior, the officers had a 195 reasonable belief that Defendant was involve d in an altercation, in some capacity. 1 Thus, the officers had the right to investig ate the cause of Defendant’s injury. This 2 included the possibility that he was the vic tim or perpetrator of a battery or other 3 crime. See State v. Ryon , 2005-NMSC-005, ¶ 25, 137 N.M. 174, 108 P.3d 1032 4 (describing the “community caretaker exception” as broad and encompassing 5 situations, where the officers’ actions ar e motivated by “a desire to aid victims” 6 (internal quotation marks and citation omitted)); State v. Fairres , 2003-NMCA-152, 7 ¶ 8, 134 N.M. 668, 81 P.3d 611 (stating that the officer may detain a person to 8 investigate possible criminal activity “bas ed on reasonable suspicion that a crime is 9 being or has been committed”). Based on th e possibility that Defendant was involved 10 in a criminal activity in somecapacity, whether as a victim or perpetrator, the officers 11 had the right to approach him and command him to stop. See Fairres , 2003-NMCA12 152, ¶ 8 (stating that “reasonable suspicion is subject to an objective test based upon 13 specific articulable facts and reasonable inferences from those facts”). 14 {8} Defendant claims that the officers did not express “real concern” for his safety, 15 and they did not believe Defe ndant committed a crime. Contrary to Defendant’s claim, 16 Officer Rodriguez stated that they were i nvestigating the incident in response to the 17 information from the first call to police and conducting a welfare check. Nevertheless, 18 what the officers expressed or did not express is not dispositive, because in 196 determining whether there are grounds for reasonable suspicion or for application of 1 the community caretakerexception, we apply an objective test. See State v. Hubble , 2 2009-NMSC-014, ¶ 23, 146 N.M. 70, 206 P.3d 579; Ryon , 2005-NMSC-005, ¶ 30. 3 {9} Defendant claims that the facts in this case are similar to those in State v. 4 Frazier , 1975-NMCA-074, 88 N.M. 103, 537 P.2d 711, because the defendant in that 5 case was not suspected of committing any crime. We disagree. In Frazier , officers 6 were called about a non-violent dispute be tween a motel manager and a guest over an 7 unpaid motel bill. There was nothing that even suggested the commission of a 8 criminal offense. Id. ¶¶ 4-6. In this case, officers were called to investigate reports of 9 a fight in a vehicle, a bloodied male who exited the vehicle, and a bloodied male who 10 had banged on a nearby resident’s door, all of which suggested the possibility of 11 criminal behavior. 12 {10} Defendant cites to State v. Phillips , 2009-NMCA-021, 145 N.M. 615, 203 P.3d 13 146, for the proposition that punishment for re sisting an officer is authorized only if 14 the officers had probable cause to seize him. Defendant argues that the officers neither 15 articulated concern for Defendant’s safety nor did they have reas on to believe he was 16 a perpetrator of any crime. Defendant’s reliance on Phillipsis misplaced. One critical 17 distinguishing fact from this case is the officer in Phillipsmistakenly relied on a 18 repealed statute that had given him authorityto transport an intoxicated person to his 197 home when he took the defendant into protective custody. See id. ¶ 22. In clarifying 1 recent appellate decisions interpreting the phrase “lawful discharge of his duties,” the 2 word “lawful” and our Supreme Court’s abr ogation of the privilegeto forcibly resist 3 an illegal search or seizure, the Phillipscourt discussion noted that where an officer 4 lacks the actual legal authority to place a defendant in protective custody and the 5 defendant resists seizure, the defendant may be convict ed only of a simple battery 6 misdemeanor. Id. ¶¶ 17-19 (internal quotation marks and citation omitted). Phillips 7 further noted that the lawful authority requirement was in keeping with the 8 Legislature’s clearly expressed intent to justify a felony conviction for battery on a 9 peace officer. See id. ¶ 19. This discussion in Phillips is not controlling authority 10 because it was not necessary to the disposition in that case. Phillipsfound that the 11 officer acted in the lawful discharge of his duties, and affirmed the defendant’s 12 conviction. See id. ¶¶ 23-24. “It is obvious that this statement, since it was 13 unnecessary to [the] decision of the issue before the Court, was dictum, no matter how 14 deliberately or emphatically phrased.” Dictum is not a controlling authority. Ruggles 15 v. Ruggles , 1993-NMSC-043, ¶ 22 n.8, 116 N.M. 52, 860 P.2d 182. 16 {11} Based on the facts of this case, we hold that the officers were acting within the 17 lawful discharge of their duties for purposes of Defendant’s convictions for resisting 18 an officer and battery on a peace officer. 198 2. Standard of Review 1 {12} “The test for sufficiency of the evid ence is whether substantial evidence of 2 either a direct or circumstantial nature exists to support a verdict of guilty beyond a 3 reasonable doubt with respect to every element essential to a conviction.” State v. 4 Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and 5 citation omitted). The reviewing court “v iew[s] the evidence in the light most 6 favorable to the guilty verdict, indulging all reasonable inferences and resolving all 7 conflicts in the evidence in favor of the verdict.” State v. Cunningham , 8 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and 9 inferences that support a different result. See State v. Rojo , 1999-NMSC-001, ¶ 19, 10 126 N.M. 438, 971 P.2d 829. 11 3. Resisting an Officer 12 {13} Defendant claims that the evidence was insufficient to support his conviction 13 for resisting an officer, which consists of “resisting or abusing any . . . peace officer 14 in the lawful discharge of his [or her] duties.” Section 30-22-1(D). Since we have 15 already determined that the officers in this case were acting within the lawful 16 discharge of their duties, weare left to decide whether there was sufficient evidence 17 to support the jury’s determination that Defendant resisted or abused any peace 18 officer. 199 {14} Here, the officers had their badges displayed, were in uniform, and were driving 1 patrol cars. Officer Rodriguez ordered Defe ndant to stop, but he refused and walked 2 away. While leaving, he directed profanity and rude gestures toward the officer. When 3 Lieutenant Barnett later encountered Defe ndant, he gave seve ral commands to stop, 4 which Defendant ignored. Defe ndant knew it was wrong to de fy the officers’ orders. 5 We hold that the evidence was sufficien t to support Defendant’s conviction for 6 resisting or abusing an officer. 7 4. Battery on a Peace Officer 8 {15} Defendant was convicted of two counts of battery on a peace officer involving 9 Lieutenant Barnett and Officer Castillo, which consists of the “unlawful, intentional 10 touching or application of force to the . . . peace officer while he is in the lawful 11 discharge of his [or her] duties, when donein a rude, insolentor angry manner.” 12 Section 30-22-24. Punishment for battery on a peace officer is warranted only if the 13 battery rises to the level of an actual injury, an actual threat to the officer’s safety, or 14 a meaningful challenge to the officer’s authority. See State v. Padilla , 1997-NMSC15 022, ¶ 7, 123 N.M. 216, 937 P.2d 492. 16 {16} Again, we have determined that the offi cers were acting in the lawful discharge 17 of their duties, therefore our attention is focused on Defendant ’s actions. Defendant 18 does not claim that his actions in kicking the officers did not involve unlawful 1910 application of force, or that he did not ki ck the officers in a rude, insolent, or angry 1 manner. Instead, Defendant argues that kicking the officers did not meet the 2 requirement under Padillathat the actions result in a meaningful challenge to the 3 officers’ authority. 4 {17} Defendant contends that there is no meaningful method of evaluation for 5 determining what constitutes a “meaningf ul challenge to authority.” Defendant 6 suggests that we determine whether or not his actions caused “some actual impact on 7 the officer’s ability to control or command the situation or carry out his duties.” 8 Parties in other cases have similarly urged this Court to provide boundaries for 9 determining the “meaningful challenge to authority.” State v. Martinez , 2002-NMCA10 036, ¶ 38, 131 N.M. 746, 42 P.3d 851; State v. Jones , 2000-NMCA-047, ¶ 14, 129 11 N.M. 165, 3 P.3d 142. This Court has declinedto do so, and we have pointed out that 12 juries must make that determination base d on the circumstances and context in which 13 the battery occurred to decide if the contact was merely offensive, or whether it rose 14 to the level of unlawfulness. See Jones , 2000-NMCA-047, ¶¶ 10, 14. On appeal, we 15 must determine whether there was sufficien t evidence for the jury to decide that 16 Defendant’s actions constituted a meaningfulchallenge to the officers’ authority. 17 {18} Here, Lieutenant Barnett and Officer Cas tillo were in the process of conducting 18 a welfare check, and investigating the report of a fight in a vehicle and a man with a 1911 bloodied head exiting the vehicle. When th e officers were exercising their authority 1 by attempting to subdue Defe ndant, he struggled and fought them. At one point, 2 Defendant kicked Lieutenant Barnett, and at another point, kicked Officer Castillo. 3 Each time, his conduct indicated that the ki cks were deliberately aimed at the officers. 4 When kicking Lieutenant Barnett, he leanedonto his shoulder, drew his leg back and 5 kicked. Before he kicked Officer Castillo, Defendant took a moment to locate the 6 officer’s position. 7 {19} Viewing the evidence in th e light most favorable to the verdict, Defendant’s 8 kicks in his attempt to free himself were not merely offensive. Defendant’s conduct 9 was unlawful and constituted a meaningful challenge to the officers’ authority. We 10 hold that there was sufficien t evidence to support both of Defendant’s convictions for 11 battery on a peace officer. 12 B. A Simple Battery Instruction Was Not Appropriate 13 {20} We also reject Defendant’s claim of en titlement to a lesser-included instruction 14 for simple battery. Simple battery is a lesser-included offense to battery on a peace 15 officer. State v. Kraul , 1977-NMCA-032, ¶¶ 13, 15, 90 N.M. 314, 563 P.2d 108. 16 “Battery on a peace officer differs from si mple battery, by including an additional 17 requirement that the victim have been a peace officer while he[or she] is in the lawful 18 discharge of his [or her] duties.” Phillips , 2009-NMCA-021, ¶ 10 (internal quotation 1912 marks and citation omitted). Ou r determination that Lieu tenant Barnett and Officers 1 Rodriguez and Castillo were in the lawful discharge of their duties automatically 2 excludes any consideration of a simple battery instruction. See, e.g. , State v. 3 Melendrez , 1977-NMCA-131, ¶ 19, 91 N.M. 259, 572 P.2d 1267. 4 C. No Violation of Double Jeopardy 5 {21} Defendant argues that his convictions for battery on a peace officer and 6 resisting arrest constitute doubl e jeopardy and asks this C ourt to vacate his conviction 7 for resisting an officer. Defendant claims that, while the three officers were subduing 8 him, his “resisting behavior” and his “kic king” of the two officers was unitary. As 9 noted by Defendant, we must first determine whether the conduct underlying the 10 offenses of resisting an officer and battery on a peace officer is unitary. See State v. 11 Lopez , 2008-NMCA-111, ¶ 9, 144 N.M. 705, 191 P. 3d 563. In order to decide that 12 question, we look at whether the two events were sufficiently separated by space or 13 time, and whether the nature of the acts can be distinguished. See id. 14 {22} Officer Rodriguez found Defendant at the home of the second caller. When 15 Officer Rodriguez asked to speak to him, Defendant got up and walked away. Despite 16 commands to stop, Defendant kept walking away. After the Officer spoke with the 17 resident, he left in his vehicle to find De fendant. After locating De fendant in an alley, 18 Officer Rodriguez called out but receive d no response. When Defendant emerged 1913 from between two houses, Lieutenant Barnett commanded Defendant to stop, but 1 again Defendant refused. During the struggle to subdue Defendant, the officers were 2 kicked by Defendant. 3 {23} After Defendant was first located and ignored Officer Rodriguez’s commands 4 to stop, there was some passage of time during which Officer Rodriguez spoke with 5 the homeowner and De fendant walked to another location. Lieutenant Barnett 6 encountered Defendant emerging from betweentwo houses at a completely different 7 location. At that time, Defendant was agai n commanded to stop, but he refused, and 8 the officers attempted to forcib ly detain him. Defendant’s refusal to stop after ordered 9 to do so by Officer Rodriguez was sepa rated by time and space from the struggle to 10 subdue him. Furthermore, his refusal to obey Lieutenant Barnett’s command to stop 11 was separated by time and space from the struggle to subdue De fendant. Therefore, 12 Defendant’s conduct was not unitary, and his convictions do not violate double 13 jeopardy. 14 D. Prior and Subsequent Bad Acts 15 {24} Defendant argues that the district court erred in allowing the State to question 16 Defendant regarding prior and subsequent bad acts. Defendant does not provide 17 specific factual information in support of this claim other than a statement that, during 18 his testimony, he explained that “he had committed prior offenses.” Although defense 1914 counsel did not object, Defendant claims thatthe failure by the district court to stop 1 him from testifying at that point amounted to plain error. 2 {25} This Court is given no information in support of the accusation that the State 3 was allowed to question Defe ndant regarding prior and subsequent bad acts. This 4 Court is under no obligation to review unclear or undeveloped arguments. See State 5 v. Guerra , 2012-NMSC-014, ¶ 21, 278 P.3d 1031; State v. Fuentes , 2010-NMCA-027, 6 ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that th is Court will “not review unclear or 7 undeveloped arguments [that] require us to guess at what [a party’s] arguments might 8 be”). We decline to address Defendant’s argument. 9 {26} Notably, the State provides us with citations to the record and specific 10 information about Defendant’s testimony, and it is clear that any comments that may 11 have concerned prior or subsequent bad acts by Defendant were actually volunteered 12 by him on direct examination. See State v. Reynolds , 1990-NMCA-122, ¶ 20, 111 13 N.M. 263, 804 P.2d 1082 (“A party cannot complain of prejudice possibly resulting 14 from a situation[,] which he created by his ow n remarks during the course of the trial.” 15 (internal quotation marks and citation omitted)). 16 E. Ineffective Assistance of Counsel 17 {27} Defendant contends that his trial counselwas ineffective. Defendant argues that 18 his counsel did not object to questions regarding gang affiliation, but instead persisted 1915 in questioning the officers about the matter. Defendant also contends that his counsel 1 was ineffective in failing to call a polygraph expert to support Defendant’s claim that 2 the officers were untruthful in stating thatthey did not handcuff his ankles, which 3 would have also supported his claim that he could not have kicked the officers. 4 {28} Defense counsel’s performance is deficien t if his or her conduct falls below that 5 of a reasonably competent attorney. See State v. Grogan , 2007-NMSC-039, ¶ 11, 142 6 N.M. 107, 163 P.3d 494. “We indulge a str ong presumption that counsel’s conduct 7 falls within the wide range of reasonable pr ofessional assistance; that is, the defendant 8 must overcome the presumption that, under the circumstances, the challenged action 9 might be considered sound trial strategy.” State v. Hunter , 2006-NMSC-043, ¶ 13, 140 10 N.M. 406, 143 P.3d 168 (internal quotation marks and citation omitted). Although 11 Defendant claims that his counsel should have objected to certain questions, the 12 decision to object or not object is “a matter of trial tactics.” State v. Jacobs , 13 2000-NMSC-026, ¶ 49, 129 N.M. 448, 10 P.3d 127. In addition, Defendant cannot 14 claim that his case was prejudiced unless, as a result of his counsel’s performance, 15 “there was a reasonable probability that the result of the trial would have been 16 different.” State v. Dylan J. , 2009-NMCA-027, ¶ 38, 145 N.M.719, 204 P.3d 44 17 (omission, internal quotation marks, and citation omitted). Other than favorable 18 generalized statements that a polygraph expert would have supported Defendant’s 1916 claims that the officers were untruthful, Defendant does not pr ovide any factual or 1 legal authority to support his contention thathis attorney’s failure to call a polygraph 2 expert would amount to ineffective assistan ce of counsel. This Court will not address 3 Defendant’s undeveloped argument. See Fuentes , 2010-NMCA-027, ¶ 29 (explaining 4 that this Court does not review unclear or undeveloped arguments that would require 5 this Court to guess at what the party’s argument might be). 6 {29} We have previously expressed a prefer ence for habeas corpus proceedings over 7 remand in cases where the record does not demonstrate a prima facie case of 8 ineffective assistance of counsel. See State v. Martinez , 1996-NMCA-109, ¶ 25, 122 9 N.M. 476, 927 P.2d 31. In this case, we have determined that Defendant has failed to 10 present a prima facie case of ineffective assistance of couns el, and therefore, we reject 11 his claim. However, our decision does not preclude Defendant from pursuing post12 conviction relief to which he may be entitled. 13 CONCLUSION 14 {30} Based on the forgoing, we affirm Defendant’s convictions. 15 {31} IT IS SO ORDERED. 16

17 M. MONICA ZAMORA, Judge 18 WE CONCUR: 1917 1 MICHAEL E. VIGIL, Judge 2

3 JULIE J. VARGAS, Judge 4