The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is sele cted for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA , authenticated and formally published . The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: ________________ 2

Fi ling Date: July 25, 2023 3

No. A

- 1

- CA

- 39807 4
STATE OF NEW MEXICO, 5

Plaintiff

- Appellee, 6

v. 7
MICHAEL NIETO, 8

Defendant

- Appellant. 9

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Cindy Leos, District Court Judge 11
Raúl Torrez, Attorney General 12 Santa Fe, NM 13 Van Snow, Assistant Attorney General 14 Albuquerque, NM 15
for Appellee 16
Bennett J. Baur, Chief Public Defender 17 Mary Barket, Assistant Appellate De fender 18 Santa Fe, NM 19
for Appellant 20OPINION 1

YOHALEM , Judge. 2

{1} A jury convicted Defendant Michael Nieto of battery upon a peace officer, 3
contrary to NMSA 1978, Section 30

- 22

- 24 (1971); aggravated assault upon a peace 4
officer (deadly weapon), contrary to NMSA 1978, Section 30

- 22

- 22 (1971); 5
aggravated fleeing a law enforcement officer, contrary to NMSA 1978 , Section 30

- 6

22

- 1.1 ( 20 03, amended 2022) ; reckless driving, contrary to NMSA 1978, Section 7

66

- 8

- 113 (1987 ); resisting, evading or obstructing an officer (arrest), contrary to 8
NMSA 1978, Section 30

- 22

- 1 (1981) ; and leaving the scene of an accident (property 9
damage), contrary to NMSA 1978, Section 66

- 7

- 202 (1978 ) , based on an encounter 10
with police officers on June 16, 2019 , in Albuquerque, New Mexico. The district 11
court dismissed Defendant’s reckless driving conv iction on double jeopardy 12
grounds. Defendant claims on appeal that several of his six remaining convictions 13

are based on the same conduct and violate double jeopardy. Defendant also 14
challenges the sufficiency of the evidence to support his conviction for leaving the 15

scene of an accident. We ag ree that Defendant’s conviction s for resisting, evading 16
or obstructing an officer and for aggravated fleeing a police officer vio late double 17
jeopardy and must be vacated

. Otherwise, we affirm. 182 BACKGROUND 1

{ 2 } All of the charges in this case arose out of events that occurred on June 16, 2

2019 . That morning, Albuquerque P olice O fficers Mares and B riones responded to 3

a call about a man who was asleep behind the wheel of a pickup truck. Th at man was 4

later identified as Defendant

. Officer Mares arrived first and pulled up behind 5

Defendant’s truck. Officer Mares was in uniform , was driving a marked police 6
vehicle, and his emerge ncy lights were on

. Leaving his vehicle with its emergency 7
lights flashing, Officer Mares approached Defendant’s pickup truck. Through the 8
window, Officer Mares saw Defendant unconscious in the driver ’s seat. According 9
to Officer Mares, Defendant “kind of pop[ped] up, ” and Officer Mares identified 10

himself as a police officer

. At that time, Officer Mares saw a handgun in the 11

passenger seat. Officer Mares opened the driver’s side door, grabbed and held one 12

of Defendant’s hands to his side , and told Defendant to step out of his truck

. 13

Defendant refused

. By this time Officer Briones had arrived and was assisting 14

Officer Mares. Officer Briones was able to take the gun from the passenger seat and 15
place it on the hood of the truck, out of Defendant ’s reach. 16

{ 3 } Officer Mares testified that, at that point, Defendant put the truck in drive, 17
grabbed him , and pulled him into the truck

. Defendant then accelerated and 18

continued to drive for several miles with Officer Mares partially hanging out the 19

door , clinging to the headrest to keep himself from falling to the road , until 203 Defendant’s truck crashed head

- on into another vehicle driven by Joaquin Sisneros 1
and came to a stop , injurin g Sisneros and damaging his car

. 2

{4} Defendant thr ew Officer Mares out of his truck and began to run with Officer 3
Mares chasing him. Defendant was tackled 25 to 50 feet away from the impact with 4

Sisneros’s vehicle in a Burger King parking lot , after having crossed over a couple 5
of lanes of traffic, a sidewalk, and some landscaping

. 6

DISCUSSION 7

I. Double Jeopardy 8

{ 5 } T he double jeopardy clause “protects defendants from receiving multiple 9
punishments for the same offense.” State v. Ramirez , 2018

- NMSC

- 003, ¶ 38, 409 10
P.3d 902 (internal quotation marks and citation omitted); see U.S. Const. amend. V; 11
N.M. Const. art. II, § 15 . Defendant raises what is known as a double description 12
double jeopardy claim, “in which a single act results in multiple charges under 13

different criminal statutes.” State v. Bernal , 2006

- NMSC

- 050, ¶ 7, 140 N.M. 644, 14

146 P.3d 289. 15

{ 6 } In analyzing double description claims, we apply the two

- part test set forth in 16
Swafford v. State , 1991

- NMSC

- 043, ¶ 25, 112 N.M. 3, 810 P.2d 1223 , determining 17

first : (1) whether the conduct underlying the offenses is unitary ; and (2) if so, 18
whether the Legisl ature intended to punish the offenses separately. See State v. 19
Begaye ,

___ - NMSC

- ___, ¶ 13, ___ P.3d ___ (S

- 1

- SC

- 38797, Jan. 12, 2023). “ ‘ Only 204 if the first part of the test is answered in the affirmative, and the second in the 1
negative, will the double jeop ardy clause prohibit multiple punishment in the same 2

trial. ’ ” Id. ( quot ing Swafford , 1991

- NMSC

- 043, ¶ 25

. ) 3

{ 7 } A defendant’s conduct is unitary “if the acts are not separated by sufficient 4

indicia of distinctness.” State v. Porter , 2020

- NMSC

- 020, ¶ 12, 476 P.3d 1201 5
(internal quotation marks and citation omitted)

. Our Supreme Court in State v. 6

Barrera , 2001

- NMSC

- 014, ¶ 36, 130 N.M. 227, 22 P.3d 1177 stated , 7
The “indicia of distinctness” include the separation between the illegal 8 acts by either time or physical distance, “the quality and nature” of the 9 individual acts, and the objectives and results of each act. Distinctness 10 may also be established by the existence of an i ntervening event, the 11 defendant’ s intent as evinced by his or her conduct and utterances, the 12 number of victims, and the behavior of the defendant between acts. 13
(internal quotation marks and citation omitted)

. In d e t ermining whether conduct is 14
unitary, we consider “the elements of the charged offenses, the facts presented at 15
trial, and the instructions given to the jury

. ” State v. Sena , 2020

- NMSC

- 011, ¶ 46, 16

470 P.3d 227

. If we determine that the conduct was not unitary, there is no double 17
jeopardy violation and our analysis need not proceed further. If we determine, 18
however, that the conduct was unitary, then we must proceed to the second inquiry: 19

“w hether the [L] egislature intended multiple punishments for the u nitary conduct. ” 20

State v. Andazola , 2003

- NMCA

- 146, ¶ 15, 134 N.M. 710, 82 P.3d 77

. 21

{ 8 } In answering this second ques tion, we begin , as we always do wh en analyzing 22
legislative intent, by looking to the plain language of the statute. Begaye ,

___ - 235 NMSC

- ___, ¶ 21. If the statute do es not explicitly authorize multiple punishments, 1
we next apply the Blockburger test. Id. ¶ ¶ 21

- 22. We use the strict

- elements 2

Blockbu rger test if the statutory language is clear and provides only a single 3

alternative. If the statutory language is vague or states alternative bases for 4
conviction, we use the modified Blockb u rger test. Id. Both Blockbu rger tests

— 5

strict

- elements and modified

— operate as “a kind of surrogate for construing 6
legislative intent.” Id. ¶ 22 (internal quotation marks and citation omitted). The 7

strict

- elements test is applied directly to clear statutory language to determine 8
whether each statute requires proof of a fact that the other does not. See State v. 9

Silvas , 2015

- NMSC

- 006, ¶ 12, 343 P.3d 616 (describing the strict

- elements 10

B lockb urger test ). 11

{ 9 } Where the statutory language serves multiple purposes and can be violated in 12
multiple ways, we apply the modified Blockburger test and instead consider 13
“whether the statute, as applied by the [ s ] tate in a given case , overlaps with the other 14
criminal statutes so that the accused is being punished twice for the same offense.” 15
Begaye , ___ - NMSC

- ___, ¶ 2 2 (internal quotation marks and citation omitted)

. We 16
determine how a statute was applied by the s tate in a given case b y looking first to 17
the statutory language, the charging documents , and the jury instructions. See i d. 18
¶ ¶ 25

- 26 . If these sources, considered together, do not reveal the s tate’s legal theory, 19
we turn to the opening and closing statements and the evidence at trial to “establish 206 whether the same evidence supported” both convictions. Id. ¶ 26 (internal quotation 1
marks and citation omitted)

. Our focus is to ascertain not simply whether the 2
elements differ, “but whether the same evidence, that is, the same underlying 3
conduct, is used to support both charges. Id. ¶ 28. If the same evidence supports both 4
convictions, double jeopardy is violated and the lesser of fense must be vacated. See 5

i d. ¶¶ 28, 36. 6

{ 10 } We apply these legal principles to each of the co nvictions challenged by 7

Defendant as violating his right to be free of double jeopardy. 8

A. Defendant’s Convictions for Battery Upon a Peace Officer and 9 Aggravated Assault Upon a Peace Officer Do Not Violate Double 10 Jeopardy 11

{ 11 } We turn first to Defendant ’s argument that the conduct underlying his 12
convictions for battery upon a peace officer and aggravated assault upon a peace 13

officer is unitary and was not intended by the Legislature to be separately punishe d. 14
We conclude that the conduct was not unitary and therefore, there is no double 15
jeopardy violation. 16

{ 12 } In determining whether the conduct was unitary , we must determine whether 17
the offenses were separated by sufficient indicia of distinctness by looking at (1) the 18
temporal proximity of the acts , (2) the location of the victim during each act , (3) the 19
existence of an intervening act , (4) the sequencing of the acts , (5) the defendant ’ s 20
intent as evidenced by his conduct and utterances , and (6) the number of victims. 217 See Herron v. State , 1991

- NMSC

- 012, ¶ 15, 111 N.M. 357 , 805 P.2d 624; s ee also 1

Bernal , 2006

- NMSC

- 050, ¶¶ 15 , 16 (“[W]e attempt to determine, based upon the 2
specific facts of each case, whether a defendant ’ s activity is better characterized as 3
one unitary act, or multiple, distinct acts, consistent with legislative intent.”); State 4

v. Barr , 1999

- NMCA

- 081, ¶¶ 15 , 16, 127 N.M. 504, 984 P.2d 185 (recognizing that 5
acts separated by sufficient indicia of distinctness warrant separate punishments). 6
We consider whether the acts of a defendant were “performed independently of the 7
other acts in an entirely different manner , or whether such acts were of a different 8

nature.” State v. Boergadine , 2005

- NMCA

- 028, ¶ 21, 137 N.M. 92 , 107 P.3d 532 9
(internal quotation marks and citation omitted). 10

{ 13 } A conviction of battery on a peace officer requires the jury to find, in relevant 11
part, that the defendant intentionally and unlawfully touched or applied force to the 12
person of a peace officer in a rude, insolent, or angry manner. See § 30

- 22

- 24. In its 13
instruction to the jury on battery on a peace officer and in closing argument , the State 14

stated that it sought conviction solely on the basis that Defendant “intentionally 15
touched or applied force to [Officer] Mares by grabbing his body and pulling on it , ” 16

threaten ing the officer’s safety or challeng ing his authority. To charge and prove 17
aggravated assault on a peace officer, t he State argued that Defendant dr ove in a 18
manner that put Officer Mares in fear of being thrown to the road and injured. 198 { 14 } Defendant argues, based on this C ourt’s decisions in State v. Garcia , 2009

- 1

NMCA

- 107, ¶ 17, 147 N.M. 150 , 217 P.2d 1048, and State v. Mares , 1991

- NMCA

2
052, ¶ 25, 112 N.M. 193, 812 P.2d 1341 , that the conduct alleged occurred in one 3
location, and close in time and sequence, and thus involved a single event that cannot 4
be punished separately . We are not persuaded that Garcia and Mares are relevant to 5
our analysis in this case. Both Garcia and Mares involve convictions of multiple 6

batteries based on several blows of increasing severity delivered by a defendant to a 7
single victim during a single escalating incident. See Garcia , 2009

- NMCA

- 107, ¶ 6 8
( involving punching, pushing, and then stomping on the victim’s leg during a fight 9

between two inmates in the same cell ); Mares , 1991

- NMCA

- 052, ¶ ¶ 2

- 4 ( involving 10
punching, choking , pulling hair, and slapping of the vi ctim in the car, on the ground, 11
and in a nearby bush ). Although it is true that the battery as described by the State 12
was followed by the assault in what could be seen as an escalating sequence of 13

events, we also must consider whether there are sufficient indicia of distinctness 14

based on differences in “ ‘ the quality and nature ’ of the individual acts, and the 15
objectives and results of each act. ” Barrera , 2001

- NMSC

- 014, ¶ 36 (internal 16
quotation marks and citation omitted)

. We conclude that t here is a significant 17

difference in the “quality and nature” of an act of physically touching an officer, 18
using enough force to pull hi s body into a truck

— the battery established by the State 19

here

— and causing the officer , by driving recklessly , to fear falling to the road and 209 being injured. The battery happened at the location of the original encounter between 1
Defendant and police , and the assault began as Defendant accelerated away and 2

continued as Defendant drove recklessly , apparently trying to r id himself of Officer 3

Mares and avoid arrest. 4

{ 15 } Based on these distinctions, w e hold that the conduct underlying Defendant’s 5
convictions was not unitary and, t here fore , we need not reach the second part of the 6
double jeopardy analysis

. Se e Begaye ,

___ - NMSC

- ___, ¶ 13 ; see also Swafford , 7

1991

- NMSC

- 043, ¶ 38

. 8

B. Defendant’s Convictions for Aggravated Fleeing a Law Enforcement 9 Officer and Resisting, Evading or Obstructing an Officer V iolate D ouble 10 J eopardy 11

{ 16 } Defendant argues that his convictions for resisting, evading or obstructing an 12
officer and aggravated fleeing from an officer are based on unitary conduct, and that 13
resisting, evading or obstructing an officer, under the State’s legal theory, is a lesser 14

i ncluded offense subsumed within aggravated fleeing, violating double jeopardy. 15
We agree. 16

{ 17 } We understand the State’s argument on appeal to be that the jury could have 17

based the con viction for resisting, evading or obstructing an officer on Defendant’s 18
conduct in continuing to flee Officer Mares on foot after Defendant’s truck was 19
brought to a stop by the collision with Sisneros’s vehicle

. The State claims that 20
Defendant’s flight from Officer Mares in a motorized vehicle and his subsequent 2110 flight on foot are separate and distinct incidents of fleeing an officer, and are not 1
unitary conduct for double jeopardy purposes. See Sena, 2020

- NMSC

- 011, ¶ 54 2
(allowing the s tate to presume that the jury relied on different conduct to convict a 3
defendant of each crime if the record indicates there was separate and distinct 4
conduct). 5

{ 18 } Even assuming that the jury relied on Defendant’s conduct in fleeing on foot 6

from Officer Mares to convict Defendant of resisting, evading or obstructing an 7
officer, w e do not agree that this conduct was separate and distinct from Defendant’s 8
conduct in fleeing from Officer Mares by motor vehicle. Defendant relies on our 9

decision in State v. Padilla , 2006

- NMCA

- 107, 140 N.M. 333, 142 P.3d 921, 10
reversed on other grounds , 2008

- NMSC

- 006, 143 N.M. 310, 176 P.3d 299 , to argue 11

that there are insufficient indicia of distinctness between a defendant’s fleeing in a 12
motor vehicle, and then continuing tha t same flight from the same officer on foot

. In 13
a situation virtually identical to t his one, this Court held that “ i t is artificial to parse 14
conduct when a suspect flees from the police in one way and then immediately 15
continues to flee in another way .” Id. ¶ 30 ; see State v. French , 2021

- NMCA

- 052, ¶ 16
19, 495 P.3d 1198 (reaching the same result). Seeing no reason to deviate from this 17
established precedent, w e agree with Defendant that Defendant’s flight from police 18
was unitary. 1911 { 19 } Because all of the elements of resisting, evading or obstructing an officer by 1
fleeing Officer Mares on foot are subsumed within the greater offense of aggravated 2
fleeing an officer, Defendant’s conviction of both violates double jeopardy and his 3

convictio n for resisting, evading or obstructing an officer must be vacated. 4

C

. Defendant’s Convictions for Leaving the Scene of an Accident and 5 Aggravated Fleeing a Law Enforcement Officer Do Not Violate Double 6 Jeopardy 7

{ 20} Defendant contends that his conviction for leaving the scene of an accident is 8
subsumed within his conviction for aggravated fleeing a law enforcement officer. 9
We assume, without deciding, that much like Defendant’s conviction for resisting, 10
evading or obstructing a law enforcement officer, his conviction for leaving the 11
scene of an accident relies on Defendant’s conduct in running from Officer Mares 12
and the accident scene and is therefore unitary conduct. We next consider whether 13
the Legislature intende d to permit dual convictions. See Begaye , ___ - NMSC

- ___, ¶ 14

20. 15

{21} Our Supreme Court in Begaye directs us to first consider whether the 16
Legislature has explicitly stated an intent to allow multiple punishments. Neither of 17

the statutes at issue here include s such language. See § 30

- 22

- 1.1 (defining 18
aggravated fleeing) ; § 66

- 7

- 202 (defining leaving the scene of an accident). We look 19
next to whether these statutes are vague or can be violated in multiple ways. Because 20
both aggravated fleeing an officer and lea ving the scene of an accident can be 2112 committed in many ways, these statutes are vague and we, therefore, apply the 1

modified Blockburger test. In applying that test, we compare the conduct the State 2

relied on to prove aggravated fleeing a law enforcement of ficer and the conduct the 3
State relied on to prove leaving the scene of an accident. 4

{22} We conclude that the conduct necessary to prove aggravated fleein g as 5
presented by the State and argued to the jury, includes conduct different from the 6
conduct necessary to prove the crime of leaving the scene of an accident. Proof of 7
aggravated fleeing a peace officer in this case required that the State establish that 8
Defendant fled arrest by Officer Mares in a way that endangered the officer. Leaving 9
the scene of an accident, in contrast, required the State to establish that Defendant 10
was involved in an accident that damaged another vehicle and injured its occupant; 11

t hat Defendant ran from the scene, failing to stop or immediately return; and that 12
Defendant did not satisfy his obligations under the statute to assist the other driver. 13

See § 66

- 7

- 202 ; NMSA 1978, § 66

- 7

- 203 (1978). The State was thus required under 14

its th eory of the case to present proof of conduct for each crime that was different 15
and distinct from the conduct required under the State’s theory to establish the other 16
crime. We, therefore, presume the Legislature intended multiple punishments. There 17

is no d ouble jeopardy violation. 1813 D

. Defendant’s Convictions for Aggravated Assault Upon a Peace Officer 1 and Aggravated Fleeing a Law Enforcement Officer Violate Double 2 Jeopardy 3

{ 2 3 } Defendant contends that the conduct underlying his convictions for 4
aggravated assault upon a peace officer and aggravated fleeing a law enforcement 5
officer was unitary, and that the Legislature did not intend to punish the two crimes 6
separately. According to Defendant, the State’s theory of the case relied for both 7

convic tions on proof that Defendant drove recklessly with Officer Mares hanging 8

out of his truck , with the common intention of ejecting the officer from the truck. 9
The charging documents, the jury instructions, and the State’s closing argument 10
support Defendant’ s position that the State relied on the same conduct by Defendant 11
as the basis for both its charge of aggravated fleeing Officer Mares and aggravated 12
assault on Officer Mares. The State’s briefing does not meaningfully distinguish 13

Defendant’s conduct in fl eeing from Defendant’s conduct in assaulting Officer 14
Mares. We therefore agree that the conduct was unitary. 15

{ 2 4 } We proceed to the second part of the analysis, in which we ask “whether the 16
Legislature intended to permit multiple punishments” for this unit ary conduct, 17
violating separate statutes. Begaye , ____ - NMSC

- ____, ¶ 21 (internal quotation 18
marks and citation omitted) . Looking first to the language of the two statutes, 19
aggravated assault and aggravated fleeing, neither addresses whether multiple 20
punishment s are permitted. See §§ 30

- 22

- 1.1 , - 22. We next turn to the Blockburger 2114 test. See Begaye , ____ - NMSC

- ____, ¶¶ 21

- 22. Both of these statutes can be violated 1
in multiple ways so we apply the modified Blockburger test, looking to the State’s 2
theory o f the case to determine whether one offense subsumes the other. See i d. ¶ 3
24. Although aggravated fleeing a law enforcement officer can involve proving that 4
Defendant endangered the public by driving recklessly, the State in this case relied 5
on the danger to Officer Mares created by Defendant’s reckless driving as the officer 6
hung partially out of Defendant’s vehicle to prove aggravated fleeing. This was 7
exactly the same conduct the State relied on to prove aggravated assault on a peace 8

officer with a deadl y weapon. The deadly weapon described by the State to the jury 9
was the Defendant’s truck, and the deadly force Officer Mares feared was being 10
thrown from Defendant’s truck onto the roadway as Defendant twisted and turned 11

the vehicle in an effort to get fre e of Officer Mares and avoid arrest. Although 12
aggravated fleeing a law enforcement officer requires the State to also prove that 13
Defendant “had been given an audible signal to stop by a uniformed law enforcement 14
officer in an appropriately marked law enfor cement vehicle,” an additional element 15
does not prevent an offense from subsuming or being subsumed in another offense. 16

See id. ¶ 35 (explaining that a defendant’s double jeopardy rights are violated even 17
though one of the counts requires proof of an addit ional element). 18

{ 2 5 } Therefore, under the modified Blockburger test, given the theory of the case 19
advanced by the State, we conclude that our Legislature did not intend to allow 2015 separate punishment for these two offenses. The conviction for aggravated assault 1
on a peace officer is the greater offense, and so that con viction stands and the 2

conviction for aggravated fleeing a law enforcement officer must be vacated. 3

II

. Sufficient Evidence in the Record Supports Defendant’s Conviction f or 4 Leaving the Scene of an Accident 5

{ 26 } Defendant also argues the evidence was insufficient to support his conviction 6

for l eaving the scene of an accident. Defendant claims that, because Officer Mares 7

tackled him, he never got far enough away to be convicted of hav ing “ left the scene 8

of an accident

. ” Defendant relies on our Supreme C ourt’s decision in State v. 9

Almanzar , 2014

- NMSC

- 001, 316 P.3d 183. In response, the State argues that 10

Almanzar was rooted in a policy to protect victims of domestic violence by allowing 11
officers to arrest a perpetrator who had left the immediate location of the violence, 12
but remained nearby, and that our L egislature had different policy considerations in 13
referring to the scene of an accident in Section 66

- 7

- 202. We agree with the State. 14

{ 27 } “[W]e apply a substantial evidence standard to review the sufficiency of the 15

evidence at trial.” State v. Chavez , 2009

- NMSC

- 035, ¶ 11, 146 N.M. 434, 211 P.3d 16

891

. In doing so, we determine whether “any rational trier of fact could have found 17
the essential elements of the crime beyond a reasonable doubt.” State v. 18
Cunningham , 2000

- NMSC

- 009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (emphasis, 19
internal quotation marks, and citation omitted). We “view the evidence in the light 20
most favorable to the guilty verdict, indulging all reasonable inferences and 2116 resolving all conflicts in the evi dence in favor of the verdict.” Id. “Jury instruc tions 1
become the law of the case against which the sufficiency of t he evidence is to be 2

measured .” State v. Garcia , 2016

- NMSC

- 034, ¶ 17, 384 P.3d 1076 (alteration, 3
internal quotation marks, and citation omitted). To convict Defendant of leaving the 4
scene of an accident, the jury was instructed in relevant part , that the State must 5
prove “[D]efendant did not immediately stop, did not return to and did not remain at 6

the scene of the accident.” See § 66

- 7

- 202

. 7

{28} We first address Defendant’s argument that we should rely on Almanzar ’s 8

definition of “ at the scene” to construe leaving “ the scene ” of an accident. In 9

Almanzar , under NMSA 1978, Section 31

- 1

- 7(A) (1995), addressing a domestic 10
violence incident, our Supreme Court applied a test of reasonableness for 11
considering whether an officer is “at the scene” for purposes of making a warrantless 12

arrest. Almanzar

, 2014

- NMSC

- 001, ¶ 20

. Almanzar ’s holding is based on policy 13
considerations of protecting victims of domestic violence from aggressors who are 14
still close enough to reinitiate violence against the victim. See i d. ¶ 21. In contrast, 15
the policy considerations that led to prohibiting a driver from leavi ng the scene of 16

an accident were “to prohibit drivers from evading criminal or civil liability, to 17
ensure people receive necessary aid or medical attention, and to deter drivers from 18
thwarting or impeding investigations and avoiding liability for the harm they cause 19
by failing to stop or failing to comply with Section 66

- 7

- 203 [to render aid] .” State 2017 v. Montelongo Esparza , 2020

- NMCA

- 050, ¶ 13, 475 P.3d 815 (internal quotation 1
marks and citation omitted). Because the purposes served are different from the 2
purposes of the domestic violence statute at issue in Almanzar , we do not apply the 3

same test. 4

{ 29 } Here , the jury’s task was to determine whether Defendant had fulfilled the 5
requirements of the statute or intended to return and fulfill them. Defendant’s 6
testimony stating , “I was trying to flee the scene , ” along with the evidence of the 7

distance he ran befor e being tackled by an officer was sufficient to enable a 8
reasonable jury to infer that Defendant had left the scene of the accident without 9
fulfilling his statutory duty to provide reasonable assistance to the other driver. See 10
§ 66

- 7

- 20 2 (requiring a person to remain at the scene until t he requirements of 11

Section 66

- 7

- 203 are fulfilled .). 12

CONCLUSION 13

{ 30 } We vacate Defendant’s conviction s for resisting, evading or obstructing a law 14

enforcement officer and for aggravated fleeing a peace officer, and remand for 15
resentencing. Otherwise, we affirm. 16

{ 31 } IT IS SO ORDERED. 17

__________________________________ 18 JANE B. YOHALEM, Judge 1918 WE CONCUR: 1

_________________________________ 2 ZACHARY A. IVES , Judge 3

_________________________________ 4 KATHERINE A. WRAY , Judge 5