State v. Hickey, 34,938

Background

Defendant William Hickey was charged and convicted by a jury of battery on a peace officer, resisting/evading/obstructing an officer, and disorderly conduct after a street altercation and interaction with Farmington police where an officer grabbed Hickey’s wrists and Hickey allegedly kicked the officer in the right thigh while resisting handcuffing.
Witnesses (neighbors) and police body/video/audio evidence were admitted; defendant did not present witnesses at trial.
Officer Lillywhite testified he detained Hickey, gave repeated commands to sit/comply, used a hands-on hold when Hickey resisted, and was kicked in the thigh by Hickey during the restraint.
The jury found Hickey guilty on all counts; Hickey appealed on five grounds: double jeopardy, sufficiency of evidence for battery on a peace officer, need for a definitional jury instruction for “meaningful challenge to authority,” sufficiency for disorderly conduct, and ineffective assistance of counsel.
The State conceded the double jeopardy issue. The Court of Appeals affirmed convictions for battery on a peace officer and disorderly conduct, reversed the resisting/obstructing conviction on double jeopardy grounds, and remanded for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double jeopardy — multiplicity of punishments for battery on an officer and resisting an officer	State concedes convictions are duplicative and should not both stand	Hickey argued multiple punishments violated double jeopardy	Court accepted State’s concession; reversed and vacated resisting/obstructing conviction and remanded for resentencing
Sufficiency — battery on a peace officer ("meaningful challenge to authority")	State: substantial evidence supports that Hickey’s resistance and kick constituted a meaningful challenge and threat to officer safety	Hickey: conduct did not harm or impair the officer; a mere kick without disabling effect is insufficient to prove a meaningful challenge	Court applied substantial-evidence review and held evidence (resistance, kicking, refusal to comply) was sufficient for jury to find a meaningful challenge; conviction affirmed
Jury instruction — need to define "meaningful challenge to authority"	State: UJI language suffices; no definitional instruction required	Hickey: court should have given a definitional or clarifying instruction sua sponte; absence was fundamental error	Court declined to define the term; held question is context-dependent and properly left to jury common sense; no fundamental error
Sufficiency — disorderly conduct (tend to disturb the peace)	State: Hickey’s loud, profane, public fighting and pursuit by neighbors tended to disturb the peace	Hickey: his yelling/profanities did not rise to conduct likely to incite a breach of the peace	Court held the conduct, in time/place/manner, could be found to tend to disturb the peace; substantial evidence supported conviction
Ineffective assistance of counsel	N/A (State rebutted)	Hickey: trial counsel failed to call key witnesses (e.g., girlfriend) which would have changed outcome	Court found defendant made no record showing who witnesses would be or what testimony/prejudice would be; failed to make prima facie showing; claim rejected (noting habeas is available if facts outside record exist)

Key Cases Cited

State v. Ford, 141 N.M. 512, 157 P.3d 77 (N.M. Ct. App. 2007) (analyzing overlap between battery-on-officer and resisting-officer convictions and concluding double jeopardy concerns)
State v. Martinez, 131 N.M. 746, 42 P.3d 851 (N.M. Ct. App. 2002) (refusing to define "meaningful challenge" and holding various resisting acts could constitute a meaningful challenge for battery-on-officer)
State v. Jones, 129 N.M. 165, 3 P.3d 142 (N.M. Ct. App. 2000) (spitting on an officer held a meaningful challenge; context-driven inquiry for the term)
State v. Correa, 147 N.M. 291, 222 P.3d 1 (N.M. 2009) (defining disorderly conduct as requiring conduct that "tends to disturb the peace" and identifying categories of such conduct)
State v. Barber, 135 N.M. 621, 92 P.3d 633 (N.M. 2004) (noting omission of a definitional instruction does not usually rise to fundamental error)