State v. Akers, 35,523

Defendant convicted of aggravated assault on a peace officer (deadly weapon), tampering with evidence, and resisting/obstructing an officer.
Appeal filed; this Court issued a calendar notice proposing affirmance. Defendant moved to amend the docketing statement to add a new issue and filed a memorandum in opposition.
Defendant sought to add a double jeopardy/unitary-conduct challenge: tampering with evidence was allegedly a mere continuation of conduct underlying resisting/obstructing.
Tampering conviction rested on abandonment of a motor vehicle (the deadly weapon in the assault) in a different location; obstruction conviction rested on interfering with an officer attempting to arrest Defendant’s husband.
Evidence showed Defendant abandoned the vehicle with keys inside and hid nearby for two nights; jury found she intended to disassociate from the vehicle to avoid apprehension.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Motion to amend docketing statement to add double-jeopardy/unitary-conduct issue	Motion untimely or fails viability standard; Court reviews viability	Double jeopardy bars tampering conviction as unitary with resisting/obstructing	Denied: issue not viable because conduct was not unitary (separate time/place/objectives)
Jury instruction challenge	Instructions were proper	Claims abandoned on appeal	Abandoned by defendant; not considered
Sufficiency of the evidence for tampering with evidence	Evidence viewed most favorably to verdict supports elements	Evidence insufficient to prove intent to hide/place vehicle to avoid apprehension	Affirmed: rational jury could find intentional abandonment and dissociation from vehicle to avoid apprehension
Whether conduct was unitary (double jeopardy)	Separate convictions can stand if acts show distinctness	Acts were a single continuous episode, so double jeopardy bars second conviction	Rejected: tampering involved abandonment in a different area and different object/result from obstruction; not unitary

State v. Rael, 668 P.2d 309 (court will allow docketing amendments only when timeliness, factual detail, preservation, justification, and rule compliance are met)
State v. Moore, 782 P.2d 91 (court may deny amendment raising nonviable issues even if alleging fundamental error)
State v. DeGraff, 131 P.3d 61 (unitary-conduct test: look for indicia of distinctness)
State v. Silvas, 343 P.3d 616 (conduct is unitary when not separated by time/place and acts' object/result cannot be distinguished)
State v. Apodaca, 887 P.2d 756 (standard for sufficiency review: evidence viewed in light most favorable to verdict; whether any rational trier of fact could find each element beyond a reasonable doubt)
State v. Salgado, 817 P.2d 730 (noting procedural rule developments relevant to appellate practice)