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IN THE COURT OF APPEALS FO R THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. A-1-CA-35054 4 ELIZABETH MORENO, a.k.a. 5 ELIZABETH PARTAIN; 6 ELIZABETH PARTAIN-SANCHEZ, 7 Defendant-Appellant. 8 APPEAL FROM THE DISTRICT CO URT OF BERNALILLO COUNTY 9 Alisa A. Hadfield, District Judge 10 Hector H. Balderas, Attorney General 11 Santa Fe, NM 12 Jane A. Bernstein, Assi stant Attorney General 13 Albuquerque, NM 14 for Appellee 15 Bennett J. Baur, Chie f Public Defender 16 Tania Shahani, Assistant Appellate Defender 17 Santa Fe, NM 18 for Appellant 19 MEMORANDUM OPINION 20 FRENCH, Judge. 212 {1} The memorandum opinion filed Septem ber 4, 2018, is hereby withdrawn 1 and this opinion is filed in its stead. In this appeal we are called upon to examine 2 the contours of New Mexico’s conceali ng identity statute, pursuant to NMSA 3 1978, Section 30-22-3 (1963). After a jury trial, Defendant was convicted of 4 battery upon a peace officer and conc ealing identity. Defendant appeals her 5 conviction for concealing identity. Defend ant makes six arguments on appeal: (1) 6 there was insufficient evidence to convict Defendant of concealing identity; (2) 7 concealing identity may not be predicated upon Defendant’s right to remain silent; 8 (3) instructional error; and (4) evidentiary error. We find there was insufficient 9 evidence to support Officer Audi Mirand a’s demand for Defendant’s identification 10 absent reasonable suspicion of criminal activity and insufficient evidence of 11 Defendant’s specific intent to interrupt a public officer in the legal performance of 12 his duty, we reverse her convi ction for concealing identity. As a result, we need not 13 address Defendant’s remaining arguments. 14 BACKGROUND 15

{2} The parties agree that the material facts are not in dispute. On New Year’s 16 Eve 2013, Pueblo of Sandia police Officer Miranda was called to investigate a 17 disturbance at the main en trance of the Sandia Casino. Officer Miranda turned on 18 his lapel camera. Defendant introduced herself to Officer Miranda, stating, “Hi, 19 I’m Elizabeth Moreno,” shook his hand and asked, “How are you?” Officer 203 Miranda responded, “Hi Elizabeth, what’s going on?” Officer Miranda and another 1 officer advised Defendant of their inve stigation. Because casino policy requires 2 guests to show identification to casino st aff members, and Defe ndant refused to do 3 so, Defendant was asked to leave the premises. Nevertheless, the officers 4 continued to discuss the dist urbance with Defendant. It is clear that Defendant was 5 impaired. As Defendant conti nued to speak with the offi cers, but before Defendant 6 was ever asked for her identification by eith er of the police offi cers, she searched 7 her purse for her identification to provide to the officers. Due to her impairment, 8 the officers failed to compre hend her words, and asked to see her “ID.” Defendant 9 responded, “give me a second” and attempted an incohe rent explanation of the 10 disturbance. Another officer advised Defe ndant that her explan ation did not matter 11 because the casino did not want her in side, so she would have to leave. In response 12 to the directive to leav e, Defendant attempted a nother explanation of the 13 disturbance. Simultaneously, Officer Mi randa asked for Defendant’s “ID” as 14 another officer told her she needed to le ave. After another a ttempt by Defendant to 15 explain herself, Officer Miranda requested her “ID” then her “identification.” In 16 response to Defendant’s statement of “no,” both officers instructed, “then you need 17 to leave.” One of the officers advised De fendant, “we’re not going to play this 18 game all night, you want to go to jail?” Howe ver, he then offere d to call Defendant 194 a cab. At this point, Defendant complied with the officer’s directive, and she 1 turned and left towards the casino exit. 2

{3} As Defendant was walking away, the officers discussed arresting her for 3 disorderly conduct, but decided to “give he r a chance to walk out of [t]here.” Out 4 of concern for her safety, the officers deci ded to follow her to “give her a ride.” 5 Seeing Defendant walk in the middle of th e road, Officer Miranda decided to take 6 enforcement action and seiz ed Defendant by grabbing he r arm. Officer Miranda 7 then handcuffed Defendant and performed a pat-down for weapons. The officers 8 located an item from Defendant’s bag cont aining her name. When asked for her 9 birthdate Defendant provided the accura te date; when asked if she had a New 10 Mexico license, she accurately stated she was from Texas. 11 DISCUSSION 12

{4} “On a challenge to the sufficiency of the evidence in a cr iminal case, we 13 review the evidence to determine whether a rational fact[-]finder could have been 14 convinced beyond a reasonable doubt that the evidence established the elements of 15 the offense.” State v. Dawson , 1999-NMCA-072, ¶ 13, 127 N.M. 472, 983 P.2d 16 421. We review the evidence “in the light most favorable to the guilty verdict, 17 indulging all reasonable inferences and re solving all conflicts in the evidence in 18 favor of the verdict.” State v. Garcia , 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 19 P.3d 1057 (internal quotation marks and citation omitted). Where, as is the case 205 here, “an issue to be de termined rests upon the inte rpretation of documentary 1 evidence, an appellate court is in as good a position as the trial court to determine 2 the facts and draw its own conclusions.” Maestas v. Martinez , 1988-NMCA-020, ¶ 3 15, 107 N.M. 91, 752 P.2d 1107; see State v. Martinez , 2018-NMSC-007, ¶ 12, 4 410 P.3d 186 (including video evidence with in the ambit of this principle). 5 Concealing identity requires “p roof of three elements: (1 ) the defendant concealed 6 [her true] name or identity[;] (2) with in tent to obstruct, hinder, interrupt, or 7 intimidate[;] (3) any public officer or pe rson acting in [the] legal performance of 8 his duty.” State v. Ortiz , 2017-NMCA-006, ¶ 10, 387 P.3d 323; see also § 30-22-3. 9

{5} Defendant argues that when she appro ached Officer Miranda she voluntarily 10 identified herself by giving her true full na me and shaking the officer’s hand. This 11 is evidenced by the fact that Officer Mi randa referred to Defe ndant by her first 12 name throughout the incident. Although the officers did request Defendant’s 13 identification, the request was coupled with the option of leaving the casino. 14 Defendant chose to leave. We are not c onvinced that Defendant was required to 15 disclose any further identification as it is not clear that the officers detained 16 Defendant or restricted her movements in any way when they first approached her 17 inside the casino and sought some form of identification from her. See Dawson , 18 1999-NMCA-072, ¶ 21 (noting the requirement of detention or restriction of 19 movement while seeking identity). Abse nt a detention, Defendant’s compliance 206 with a request for identification is not implicated under Section 30-22-3. We 1 therefore conclude that Defendant did no t conceal her identity before voluntarily 2 leaving the casino. 3

{6} We next review whether Officer Miranda, while acting in the legal 4 performance of his lawful duty, posse ssed reasonable suspicion to follow 5 Defendant into the parking area and to se ize her. We consider our decision in 6 Ortiz . “An officer detaining a suspect for th e purpose of requiring [her] to identify 7 [herself], has conducted a seizure subject to the requirements of the Fourth 8 Amendment.” Ortiz , 2017-NMCA-006, ¶ 12 (citing Brown v. Texas , 443 U.S. 47, 9 50-52 (1979)). “Reasonable suspicion must exist at the inception of the stop and 10 cannot be based on facts that aris e as a result of the encounter.” Ortiz , 2017- 11 NMCA-006, ¶ 13 (internal quotation ma rks and citation omitted). Defendant 12 argues that at the time the officers decided to follow her out of the casino, having 13 complied with their request to leave, they were no longer acting in an investigative 14 capacity and were without reasonable su spicion. We therefore agree with 15 Defendant “that if the [s]tate failed to pr oduce evidence that O fficer [Miranda] had 16 reasonable suspicion to detain Defenda nt, [his] seizure of Defendant was 17 unlawful.” Id. ¶ 12. 18

{7} Initially, we note that, once Defendant complied with Officer Miranda’s 19 instructions to leave, any reasonable susp icion he may have had while in the casino 207 dissipated. See State v. Figueroa , 2010-NMCA-048, ¶ 26, 148 N.M. 811, 242 P.3d 1 378 (recognizing that an officer termin ating an investigation and telling a 2 defendant that he was free to leave “cons titute[s] a recognition that [the officer’s] 3 suspicion about [the d]efendant’s involvem ent in the [suspected criminal activity 4 has] been dispelled, and it e nd[s the officer’s] authority to detain [the d]efendant or 5 to investigate further”). Here, Offi cer Miranda admitted that he followed 6 Defendant out of the casino, not based on any articulable reasonable suspicion to 7 believe that criminal activity occurred or was occurring, State v. Ochoa , 2008- 8 NMSC-023, ¶ 15, 143 N.M. 749, 182 P.3d 130, but rather out of his stated concern 9 for her safety and to offer her a ride. This concern implicates the community 10 caretaker exception to the Fourth Amendment, which arose from an 11 “understanding that police officers frequently interact with citizens without an 12 investigative purpose.” State v. Byrom , 2018-NMCA-016, ¶ 10, 412 P.3d. 1109. 13 This “caretaking function is totally divorced from the detection, investigation, or 14 acquisition of evidence relating to the violation of a criminal statute.” Id. (internal 15 quotation marks and citation omitted). As such, Officer Miranda’s concern for 16 Defendant’s safety or to secure her a ride necessarily cannot serve as the basis for 17 reasonable suspicion of criminal activity. 18

{8} “[A]s a matter of law, a person is seized when the facts show accosting and 19 restraint such that a reasonable person would believe he or she is not free to leave.” 208 State v. Jason L ., 2000-NMSC-018, ¶ 19, 129 N.M. 119, 2 P.3d 856 (alteration, 1 internal quotation marks, a nd citation omitted). Without reasonable suspicion, an 2 officer has no legal authority to de tain an individual for questioning. Ortiz , 2017- 3 NMCA-006, ¶ 12. In Jason L ., our Supreme Court, in reversing the Court of 4 Appeals and affirming the district cour t’s suppression of a handgun, held that 5 “[r]easonable suspicion must exist at the inception of the seizure” and “[t]he 6 officer cannot rely on fact s which arise as a result ofthe encounter.” 2000-NMSC7 018, ¶ 20. An officer must have a reasonabl e suspicion “that the law has been or is 8 being violated” and that “[r]easonabl e suspicion must be based on specific 9 articulable facts and the ra tional inferences that may be drawn from those facts.” 10 State v. Flores , 1996-NMCA-059, ¶ 7, 122 N.M. 84, 920 P.2d 1038. 11

{9} A seizure occurred when Officer Mira nda grabbed Defendant by the arm in 12 the parking area, restraining her free dom of motion. Officer Miranda then 13 handcuffed Defendant, a clear signal to a ny reasonable person that they are no 14 longer free to leave. For this seizure to be legal, Officer Mira nda must have been 15 able to draw rational inferen ces from specific articulable facts that the law has been 16 or is being broken. 17

{10} Under our analysis there was not suffici ent evidence at trial to support the 18 conclusion that Officer Mira nda had reasonable suspicion to seize Defendant in the 19 parking area while acting in the legal pe rformance of his duty. At trial, Officer 209 Miranda testified to his belief that, “[ a]ny time we make co ntact with somebody 1 that we’re either going to ta ke some action on or we ha ve some kind of reasonable 2 suspicion, of anything that’s going on, we can ask for ID . . . or just . . . for 3 documentation.” Yet Officer Miranda offe red no specific articulable facts that 4 Defendant had broken or wa s breaking the law after he allowed her to leave the 5 casino. Indeed, the officers’ stated concerns were based on community caretaking, 6 rather than reasonable suspicion. 7

{11} At the time Officer Miranda took “enforcement action” and seized 8 Defendant, he again asked her if she ha d an ID. Defendant responded, “No.” In 9 response to further questions by the officers and an offer to call someone for a ride, 10 Defendant responded, “[b]ecause I’m st upid and I’m dumb.” In reaffirming that 11 “New Mexico has not dispensed with the requirement of individualized, 12 particularized suspicion,” our Supreme Cour t noted that, “[s]ince [the d]efendant 13 was seized prior to the search of [Child], th e fruits of that search are not relevant to 14 the determination of whether there was reasonable and articulable suspicion to 15 support the seizure of [the d]efendant.” Jason L. , 2000-NMSC-018, ¶¶ 20-21 16 (alteration, internal quota tion marks, and citation omitte d). Here, Officer Miranda’s 17 lack of reasonable suspicion that Defendant was engaged in criminal activity prior 18 to her seizure cannot be cured by the fruits of her response—her refusal to identify 19 herself. 2010 CONCLUSION 1

{12} Because the State failed to prove beyond a reasonable doubt that Officer 2 Miranda possessed reasonable suspicion to follow Defe ndant to the parking area 3 and seize her, we co nclude that he was not acting in the legal performance of his 4 duty and there was, therefore, insufficient evidence of the elem ents of the crime. 5 We reverse Defendant’s convi ction for concealing identity. 6

{13} IT IS SO ORDERED. 7

________ _______________________ 8 STEPHEN G. FRENCH, Judge 9 WE CONCUR: 10

____________________________ 11 M. MONICA ZAMORA, Judge 12

____________________________ 13 JULIE J. VARGAS, Judge 14