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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-35196 4 DAVID GONZALES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Douglas R. Driggers , District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Charles J. Gutierrez, Assi stant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chie f Public Defender 14 C. David Henderson, Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 ATTREP, Judge. 192 {1} Defendant David Gonzales appeals hi s convictions for aggravating fleeing a 1 law enforcement officer, contrary to NMSA 1978, Section 30-22-1.1 (2003), and 2 resisting, evading or obstructing an offi cer, contrary to NMSA 1978, Section 30- 3 22-1 (1981). Defendant raises the foll owing issues on appeal—whether (1) 4 “pursuit” by a law enforcement officer is an essential element of aggravated 5 fleeing and the district court’s failure to instruct the jury on this element resulted in 6 reversible error; (2) there was suffi cient evidence to support Defendant’s 7 aggravated fleeing conviction; and (3) De fendant’s convictions for aggravated 8 fleeing and resisting, evading or obstructi ng an officer violate double jeopardy. We 9 conclude that Defendant’s convictions fo r both aggravated fleeing and resisting, 10 evading or obstructing an officer violat e the prohibition against double jeopardy. 11 Accordingly, we remand to the district c ourt to vacate Defenda nt’s conviction for 12 resisting, evading or obstructing an officer. Otherwise, we affirm. 13 BACKGROUND 14

{2} While on duty in a marked patrol car, Officer Veronica De La O of the Las 15 Cruces Police Department received a be- on-the-lookout (BOLO) alert for a large 16 blue truck with a flatbed traveling north. Three to five minutes after receiving the 17 BOLO, Officer De La O saw a vehicle ma tching the description and observed the 18 driver (later identified as Defendant) dr inking what she believed to be a beer. 19 Officer De La O then observed Defendant tu rn left in front of oncoming traffic, 203 causing several cars to slam on their brak es to avoid a collision. Officer De La O 1 engaged her lights, signaled Defendant to pull over, and activated her air horn. 2 Defendant drove into a congested shoppi ng center parking lot, weaving through 3 parking spaces and vehicles, and n early crashing into a light pole. 4

{3} Defendant then stopped his vehicle but ne ver shifted out of drive. Officer De 5 La O left her emergency lights on, ex ited her patrol car, and approached 6 Defendant’s vehicle. Defendant looked briefly at Officer De La O, then drove off 7 at a high rate of speed through the dr op-off area of Goodwill Industries without 8 yielding to pedestrians or traffic. Officer De La O had to jump out of the way to 9 avoid being hit by the flatbed attached to Defendant’s truck. Officer De La O 10 testified that she then “immediately got back into [her] unit and began to follow 11 [Defendant].” She estimated it took her about five seconds to get back into her 12 patrol car and another “couple of seconds” to engage her sirens. Officer De La O 13 alerted other officers via radio that she “was going to be in a pursuit” of Defendant. 14

{4} Officer De La O then drove after Defe ndant but did not directly follow him 15 through the drop-off area. She chose inst ead to go around the store and onto the 16 street in order to leave the parking lot area “as safely as [she] could.” Although 17 Officer De La O could not see Defendant, she knew his general trajectory because 18 several pedestrians and driv ers were gesturing in the direction Defendant had gone, 19 and she could see a large cloud of dust in that direction. Within two to three 204 minutes of leaving the parking lot, Offi cer De La O found Defendant’s unoccupied 1 truck crashed in the front yard of a resi dence. Officer De LaO continued on foot 2 and located Defendant in the yard of a residence two or three houses down from 3 the crash. 4

{5} Officer Julian Gomez joined Officer De La O in attempting to apprehend 5 Defendant soon after being alerted by radi o that Officer De La O had observed a 6 truck matching the BOLO description. As he approached the parking lot, however, 7 Officer Gomez saw Defendant take off at a high rate of speed. Officer Gomez then 8 activated his lights and sire ns and made a U-turn in an attempt to apprehend 9 Defendant. Officer Gomez followed the pa th he believed Defe ndant had taken and 10 eventually caught a glimpse of the tail end of Defendant’s vehicle as it turned onto 11 a side street. Officer Gomez cam e upon Defendant’s crashed vehicle 12 approximately thirty to sixty seconds later. 13

{6} Ana Marie Aldaz, a pedestrian walking in the area at the time Defendant fled 14 from Officer De La O, testified that she obs erved a truck “fl[y] past” her, driving 15 around the corner “in a dangerous fashion.” Ms. Aldaz was scared that the truck 16 was going to “keel over on top of [her]” because of its speed as it went around the 17

corner. A minute after seeing the truck, Ms. Aldaz heard sirens and saw two police 18 cars drive past, describing that the o fficers “were on [Defendant’s] heels.” 195 {7} Defendant was charged with aggravat ed fleeing; resisting, evading or 1 obstructing an officer; aggravated drivi ng while under the infl uence; no proof of 2 insurance; and driving with a suspended li cense. Prior to the conclusion of trial, 3 Defendant pleaded guilty to the charge of driving with a suspended license. The 4 jury found Defendant guilty on all rema ining charges. Defendant appeals his 5 convictions for aggravated fleeing and resis ting, evading or obstructing an officer. 6 DISCUSSION 7 I. Instructional Error 8

{8} With respect to his aggravated fleeing conviction, Defendantargues that the 9 district court erred in refusing to give an instruction that the officer was “in 10 pursuit” of Defendant. The relevant por tion of the aggravated fleeing statute 11 provides: 12 Aggravated fleeing a law enforcemen t officer consists of a person 13 willfully and carelessly driving his ve hicle in a manner that endangers 14 the life of another person after bei ng given a visual or audible signal 15 to stop, whether by hand, voice, em ergency light, flashing light, siren 16 or other signal, by a uniformed law enforcement officer in an 17 appropriately marked la w enforcement vehicle in pursuit in 18 accordance with the provisions of the Law Enforcement Safe Pursuit 19 Act. 20 Section 30-22-1.1(A) (emphasi s added). At trial, the State proposed to instruct the 21 jury using the uniform jury instructio n for aggravated fleeing, UJI 14-2217 22 NMRA. In response, Defendant asked the district court to modify the instruction to 23 include “pursuit” as an element. The dist rict court denied Defendant’s request and 246 instructed the jury in acco rdance with the uniform jury instruction for aggravated 1 fleeing as follows: 2 For you to find [D]efendant guilt y of aggravated fleeing a law 3 enforcement officer as charged in C ount 1, the [S]tate must prove to 4 your satisfaction beyond a reasonabl e doubt each of the following 5 elements of the crime: 6 1. [D]efendant operate d a motor vehicle; 7 2. [D]efendant drove willfu lly and carelessly in a manner 8 that endangered the life of another person; 9 3. [D]efendant had been given a visual or audible signal to 10 stop by a uniformed law enforcemen t officer in an appropriately 11 marked law enforcement vehicle; 12 4. [D]efendant knew that a law enforcement officer had 13 given him an audible or visual signal to stop; 14 5. This happened in New Mexico on or about the 21st day 15 of February, 2011. 16 See UJI 14-2217. 17

{9} Because Defendant preserve d his challenge to the jury instructions, our 18 review on appeal is for reversible error. 1 See State v. Benally , 2001-NMSC-033, ¶ 19 12, 131 N.M. 258, 34 P.3d 1134. “Reversible error arises if a reasonable juror 20 would have been confus ed or misdirected.” State v. Montoya , 2015-NMSC-010, 21 ¶ 25, 345 P.3d 1056 (omission, internal quotation marks, an d citation omitted). 22 “Failure to instruct the jury on an essen tial element of the charged offense has been 23

1 To the extent our review involves the interpretation of our criminal statutes, “that presents a question of la w which is reviewed de novo on appeal.” State v. Chavez , 2009-NMSC-035, ¶ 10, 146 N.M. 434, 211 P.3d 891.7 held to be reversible error.” Santillanes v. State , 1993-NMSC-012, ¶ 32, 115 N.M. 1 215, 849 P.2d 358. “When ther e can be no dispute that the essential element was 2 established, however, failure to instruct on that element does not require reversal of 3 the conviction.” Id. 4

{10} Because we conclude th at there can be no dis pute that “pursuit” was 5 established in this case, we need not decide whether “pursuit” is an element 6 essential to aggravated fleeing that must be instructed to th e jury. Instead, for 7 purposes of this opinion, we assume that “a law enforcement officer . . . [being] in 8 pursuit” of the accused is an essential el ement of the crime of aggravated fleeing. 9 Section 30-22-1.1(A); see State v. Romero , ___-NMSC-___, ¶¶ 53, 55, ___ 10 P.3d___ (No. S-1-SC-36229, De c. 27, 2018) (noting that “[t]he absence of 11 ‘pursuit’ in the jury instruction is not dispositive of whether pursuit is an element 12 essential to aggravated fl eeing” and proceeding with sufficiency of the evidence 13 analysis by treating “pursuit” as an esse ntial element of aggravated fleeing). 14

{11} In support of his argument that “pursu it” was contested, Defendant contends 15 that aggravated fleeing “cannot be comm itted when there was no direct pursuit.” 16 Defendant elaborates that th ere was no “pursuit” in this case because Officer De La 17 O “decided not to follow [Defendant] directly and lost sight of him for up to three 18 minutes.” Defendant’s contention that “pursuit ” can only be established when the 19 officer followed the defendant’s direct path without losing visual contact is made 208 without citation to any authority, and we can fairly assume that none exists. See 1 State v. Vigil-Giron , 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts 2 will not consider an issue if no authority is cited in support of the issue and that, 3 given no cited authority, we assume no such authority exists[.]”). Further, under 4 Defendant’s construction of the aggravated fleeing statute, a defendant who flees 5 quickly and dangerously enough would be insulated from prosecution for 6 aggravated fleeing. Such a construction seems directly contrary to what the 7 Legislature had in mind when it enacted th e aggravated fleeing statute and would 8 lead to absurd and unreasonable results. See State v. Padilla ( Padilla II ), 2008- 9 NMSC-006, ¶ 21, 143 N.M. 310, 176 P.3d 299 (“The statute appears to be 10 designed to protect the general public fro m the dangers of a high speed chase.”); 11 State v. Davis , 2003-NMSC-022, ¶ 13, 134 N.M. 172, 74 P.3d 1064 (“No rule of 12 construction necessitates our ac ceptance of [a statutory] interpretation resulting in 13 patently absurd consequences.” (interna l quotation marks and citation omitted)). 14

{12} Accordingly, we decline Defendant’s in vitation to read the word “directly” 15 into the aggravated fleeing statute, and in stead give the words in the statute their 16 plain meaning. See State v. Trujillo , 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 17 P.3d 125 (“In discerning legislative intent, we look first to the language used and 18 the plain meaning of that language. . . . We will not read into a statute any words 19 that are not there, particularly when th e statute is complete and makes sense as 209 written.” (citations omitted)). The term “pur suit” is not define d in the relevant 1 criminal statutes, and we thus look to the dictionary definition of the term. See 2 State v. Lindsey , 2017-NMCA-048, ¶ 14, 396 P.3d 199 (“[O]ur courts often use 3 dictionary definitions to ascertain the or dinary meaning of words that form the 4 basis of statutory construction inquiries .” (internal quotation marks and citation 5 omitted)). “Pursuit” is define d as the act of “follow[ing] in order to overtake [or] 6 capture[.]” Merriam-Webster Dictionary , https://www.merriam7 webster.com/dictionary/pursue (last visited on Feb. 8, 2019); cf. NMSA 1978, § 8 29-20-2 (2003) (defining a “high spee d pursuit” as “an attempt by a law 9 enforcement officer in an authorized emer gency vehicle to apprehend an occupant 10 of a motor vehicle, the driver of which is actively attempting to avoid apprehension 11 by exceeding the speed limit”). 12

{13} In view of the plain meaning of “pur suit,” there can be no dispute that the 13 evidence at trial established that Office r De La O was in continuous pursuit of 14 Defendant throughout the relevant events. See Santillanes , 1993-NMSC-012, 15 ¶¶ 32-34 (holding that there was no revers ible error when the court failed to 16 instruct on an element that was clearly esta blished by the evidence at trial). During 17 the initial traffic stop, Officer De La O engaged her lights and air horn in an 18 attempt to get Defendant to stop his vehicl e. At that time, De fendant drove through 19 a congested parking lot, weaving throug h parking spaces and vehicles. Defendant 2010 stopped only briefly, waited for Officer De La O to approach Defendant’s truck, 1 and then sped off from the parking lot, again failing to yield to pedestrians and 2 traffic. It took Officer De La O mere seconds to get back into her patrol car, 3 engage her sirens, and take chase after De fendant. Officer De La O then proceeded 4 to follow Defendant in the direction of the cloud of dust cr eated by Defendant’s 5 truck and with the assistance of onlooke rs. Officer Gomez also gave chase and 6 observed Defendant’s fleeing vehicle in his attempt to locate Defendant. Both 7 officers came upon Defendant’s wrecked truck shortly after Defendant fled the 8 shopping center parking lot. 9

{14} During this entire episode, Defendant e ngaged in a continuous flight from 10 Officer De La O and Officer De La O engaged in a con tinuous pursuit of 11 Defendant. Cf. Romero , ___-NMSC-___, ¶¶ 54-56 (determining there was a 12 continuous course of aggravated fleei ng under analogous circumstances where the 13 defendant continued to flee after an initial tr affic stop). Under the facts of this case, 14 “no rational jury could have concluded” that Officer De La O was not “in pursuit” 15 of Defendant. See Santillanes , 1993-NMSC-012, ¶ 34. Thus, even assuming 16 “pursuit” is an essential elem ent of aggravated fleeing, as we have in this case, the 17 district court’s failure to instruct on that element did not amount to reversible error. 18 See id. 19 II. Sufficiency of the Evidence 2011 {15} Defendant does not contest that there wa s sufficient evidence to support the 1 aggravated fleeing elements submitted to th e jury. Instead, Defendant’s sufficiency 2 argument hinges on his claim that there wa s insufficient evidence of “pursuit” as 3 set forth above. Because we have held that no rational jury could have concluded 4 that there was no pursuit, Defendant’s su fficiency of the ev idence argument is 5 likewise without merit. See State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 6 N.M. 711, 998 P.2d 176 (“The relevant ques tion is whether, after viewing the 7 evidence in the light most fa vorable to the prosecution, any rational trier of fact 8 could have found the essential elements of the crime beyond a reasonable doubt.” 9 (alteration, internal quotation marks, and citation omitted)). 10 III. Double Jeopardy 11

{16} Relying on this Court’s holding in State v. Padilla ( Padilla I), 2006-NMCA12 107, 140 N.M. 333, 142 P.3d 921, overruled on other grounds by Padilla II, 2008- 13 NMSC-006, Defendant argues that his convi ctions for aggravated fleeing (Section 14 30-22-1.1) and resisting, evading or ob structing an officer (Section 30-22-1(B)) 15 stem from unitary conduct a nd violate double jeopardy. 2 “A double jeopardy claim 16

2 The jury was instructed in the a lternative under both Subsections (B) and (C) of the resisting, evading or obstructin g an officer statute, Section 30-22-1. The parties, however, analyze Defendant ’s double jeopardy claim under Section 30-22-1(B) alone, and we do the same. See State v. Foster , 1999-NMSC-007, ¶ 28, 126 N.M. 646, 974 P.2d 140 (“[W]e must presume that a conviction under a general verdict requires reversal if the jury is instru cted on an alternative basis for the conviction that would result in do uble jeopardy, and the record does not12 is a question of law that we review de novo.” State v. Bernal , 2006-NMSC-050, ¶ 1 6, 140 N.M. 644, 146 P.3d 289. 2

{17} The double jeopardy clause “protects defendants from receiving multiple 3 punishments for the same offense.” State v. Ramirez , 2018-NMSC-003, ¶ 38, 409 4 P.3d 902 (internal quotation marks and citation omitted); see U.S. Const. amend. 5 V; N.M. Const. art. II, § 15. Defendant raises what is commonly referred to as a 6 double-description double jeopardy claim, “i n which a single act results in multiple 7 charges under different criminal statutes[.]” Bernal , 2006-NMSC-050, ¶ 7. We 8 previously determined in Padilla I that “there are no indications of any legislative 9 intent to allow multiple punishments for misdemeanor resisting/evading and 10 aggravated fleeing when there is unitary conduct.” 2006-NMC A-107, ¶ 35. Thus, 11 we held “that resisting/evading under Section 30-22-1(B) is a lesser included 12 offense of aggravated fleeing and that [a d]efendant may not be convicted of both 13 crimes for the same course of conduct.” Id. 14

{18} The State concedes that the conduct at issue here is unitary and we agree. 15 While acknowledging that this concession compels the conclusion that Defendant’s 16 convictions for both aggravated fleeing and the lesser included offense of resisting, 17 evading or obstructing an officer violate double jeopardy under Padilla I, the State 18

disclose whether the jury relied on this legally inadequate alternative.”), abrogated on other grounds by Kersey v. Hatch , 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.13 nonetheless urges us to revisit Padilla I and abandon its holding. In support of this, 1 the State posits that while our “Supreme C ourt ultimately reversed this Court in 2 Padilla II on different grounds, . . . its reas oning gutted this Court’s opinion [in 3 Padilla I ].” The State thus contends, “[s]tare decisis does not mandate continued 4 adherence to Padilla I because it is unsoundly reasoned and contrary to Padilla II .” 5 We disagree. 6

{19} We first note that this Court’s holding in Padilla I —that convictions for both 7 aggravated fleeing and resisting, evadi ng or obstructing an officer (Section 30-22- 8 1(B)) violate double jeopardy—was not disturbed by our Supreme Court in Padilla 9
II and has not been disturbed in th e intervening eleven years since Padilla II

. See 10 2008-NMSC-006, ¶ 34 (“We remand this case to the district court to vacate [the 11 d]efendant’s conviction for resisting, evading or obstructing in accordance with 12 that part of the Court of Appeals opini on which is not the subject of review 13 herein.”); see also State v. Velarde , No. A-1-CA-33812, mem. op. ¶ 11 (N.M. Ct. 14 App. Nov. 20, 2017) (non-pr ecedential) (recently applying Padilla I and vacating 15 the defendant’s resisting, evading or obstructing convic tion on double jeopardy 16 grounds). 17

{20} Moreover, the State has not satisfied the high burden our courts adhere to 18 before overturning prior precedent. “Stare decisis is the judicial obligation to 19 follow precedent, and it lies at the very core of the judicial process of interpreting 2014 and announcing law.” Trujillo v. City of Albuquerque , 1998-NMSC-031, ¶ 33, 125 1 N.M. 721, 965 P.2d 305. “It promotes very im portant principles in the maintenance 2 of a sound judicial system: (1) stability of the law, (2) fairness in assuring that like 3 cases are treated similarly, and (3) judicial economy[.]” Id. (citations omitted). 4 Thus, “any departure from precedent demands special justification,” in light of the 5 following factors: 6 (1) whether the precedent is so unwor kable as to be intolerable; (2) 7 whether parties justifiably relied on the precedent so that reversing it 8 would create an undue hardship; (3) whether the principles of law 9 have developed to such an extent as to leave the old rule no more than 10 a remnant of abandoned doctrine; and (4) whether the facts have 11 changed in the interval from the old rule to reconsideration so as to 12 have robbed the old rule of justification. 13 Id. ¶ 34 (alteration, omission, internal quot ation marks, and citations omitted). The 14 State has not argued, let alone established, that any one of these factors has been 15 met here. Absent such a demonstration, we decline to c onsider overruling Padilla 16
I

. See State v. Riley , 2010-NMSC-005, ¶ 40, 147 N.M. 557, 226 P.3d 656 (Chávez, 17 J., specially concurring) (“[T he appellant] does not make a case for us to overrule 18 our precedent by applying the factors releva nt to a stare deci sis analysis. [The 19 appellant] simply asks us to reconsider [our] holding[.] . . . This unilluminating 20 request lacks the disciplined approach we have required in numerous opinions on 21 the subject of stare decisis.” (citation omitted)), overruled on other grounds by 22 State v. Montoya , 2013-NMSC-020, ¶ 54, 306 P.3d 426. 2315 {21} Applying Padilla I, we conclude that Defe ndant’s convictions for 1 aggravated fleeing and resisting, evadi ng or obstructing an officer (Section 30-22- 2 1(B)) for the same course of conduct violate double jeopardy. See 2006-NMCA3 107, ¶¶ 35-36. Accordingly, Defendant’s conviction fo r the lesser offense of 4 resisting, evading or obstructin g an officer must be vacated. See id. ¶ 36. 5 CONCLUSION 6

{22} We hold that Defendant’s convicti ons for aggravated fleeing a law 7 enforcement officer and resi sting, evading or obstructing an officer violate the 8 prohibition against double jeopardy. We th erefore remand to the district court to 9 vacate the lesser offense of resisting, ev ading or obstructing an officer and to 10 resentence Defendant accordingly. Ha ving concluded Defe ndant’s remaining 11 claims of error are without merit, we otherwise affirm. 12

{23} IT IS SO ORDERED. 13

_________________________________ 14 JENNIFER L. ATTREP, Judge 15 WE CONCUR: 16

_________________________________ 17 LINDA M. VANZI, Judge 1816 _________________________________ 1 J. MILES HANISEE, Judge 2