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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 35,936 4 CHRISTOPHER SCHMITT, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY 7 Fernando R. Macias, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Kathleen T. Baldridge, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 GARCIA, Judge. 17 {1} Defendant appeals from the district c ourt’s judgment and sentence, convicting 182 him for resisting, evading or obstructing an officer and sentencing him to probation, 1 following a jury trial. We were unpersuaded that Defendant’s docketing statement 2 demonstrated error and issued a notice of proposed summary disposition, proposing 3 to affirm. Defendant filed a response to ournotice. We have considered Defendant’s 4 response and remain unpersuade d. We, therefore, affirm. 5 {2} Defendant initially pursued the appeal under the demands of State v. Franklin , 6 1967-NMSC-151, ¶ 9, 78 N.M . 127, 428 P.2d 982; and State v. Boyer , 1985-NMCA7 029, ¶ 24, 103 N.M. 655, 712 P.2d 1, challengi ng the sufficiency of the evidence to 8 support his conviction. [DS unnumbered 4] Our notice proposed to hold that the 9 combined evidence of Defendant’s belliger ent and menacing behavior toward the 10 officers and Defendant’s acti ons showing his physical resistence against the officers 11 attempting to arrest him, which forced the officers to carry him to the patrol car, was 12 sufficient to support his conviction under NMSA 1978, Section 30-22-1(B) (1981). 13 Our notice relied on State v. Wilson , 2007-NMCA-111, ¶ 43, 142 N.M. 737, 169 P.3d 14 1184, for its holding that the evidence was su fficient to convict the defendant for 15 resisting or evading an officer under Sec tion 30-22-1(B), where the defendant pulled 16 away from the officer when the officer had handcuffed oneof the defendant’s hands, 17 was attempting to secure the defendant’s other hand, and had to forcibly apply the 18 handcuffs onto the defendant. 193 {3} In response to our notice, Defendant c ontends that there was no evidence that 1 he was “intentionally fleeing, attempting to ev ade or evading an o fficer[,]” as required 2 by Section 30-22-1(B), and relies on dictionary definitions of the terms “flee” and 3 “evade.” [MIO 4] We note that definitions of “flee” and “evade” upon which 4 Defendant relies are so similar as to beeffectively redundant. [MIO 4] It is an 5 axiomatic rule of statutory interpretation th at we will not construe a statute to render 6 any portion of it surplusage or superfluous. See State v. Javier M. , 2001-NMSC-030, 7 ¶ 32, 131 N.M. 1, 33 P.3d 1. We construe the Legislature’s meaning of attempted 8 evading in Subsection (B) to encompass more behavior than merely staying or 9 slipping away, as Defendant asks us to define it. [MIO 4] 10 {4} Significantly, Defendant does not address our holding in Wilsonregarding 11 Section 30-22-1(B), nor does he attemp t to distinguish that case. In Wilson , this Court 12 broadly construed the offense of resisti ng, evading or obstructing an officer under 13 Section 30-22-1(B) and held that the defendant’s act of pulling his arm away from the 14 officer trying to handcuff him, causing the o fficer to forcibly finish handcuffing the 15 defendant, was a sufficient act of attempting to “resist or evade” the officer during an 16 arrest. Wilson , 2007-NMCA-111, ¶ 43. We believe De fendant’s act of “planting his 17 feet [on] the ground to keep the officers from walking him” to the patrol car, and 18 Defendant’s act of continually dropping his weight, causing officers to forcibly carry 194 him to the patrol car, [RP 13- 14] are sufficiently akin to the defendant’s act of pulling 1 his arm away from the officer handcuffing the defendant in Wilsonto support a similar 2 finding of attempting to evade. 3 {5} For the reasons stated in our notice and in this opinion, we affirm the district 4 court’s judgment and sentence convicting Defendant of resisting, evading or 5 obstructing an officer. 6 {6} IT IS SO ORDERED. 7

__________________ ______________ 8 TIMOTHY L. GARCIA, Judge 9 WE CONCUR: 10

_______________________________ 11 JAMES J. WECHSLER, Judge 12

_______________________________ 13 JONATHAN B. SUTIN, Judge 14