{1} Defendant appeals his convictions for battery on a peace officer and resisting an officer. Both convictions arise out of a protracted ear and foot chase in which Defendant punched the officer in the face twice. Defendant contends that he may be convicted only of battery on a peace officer and that his conviction for resisting an officer violates double jeopardy. Defendant also contends that the evidence is insufficient to support his convictions. We hold that Defendant’s conduct was not unitary and reject his double jeopardy claim. We also reject his claim that the evidence is insufficient.
BACKGROUND
{2} Officer Roberto Gutierrez of the Las Cruces Police Department testified that on August 14, 2005, he saw a brown truck traveling 80 to 90 miles per hour in a 30-mile-per-hour zone. He turned on his lights and siren and pursued the truck for about a mile until it pulled into an apartment complex and stopped. He parked behind the truck. Defendant got out of the truck, and the officer told him to get back into the truck. Defendant ran away. The officer began chasing him on foot through the complex. Defendant lost his footing and fell on his hands. The officer instructed him to get on the ground, but Defendant caught himself and ran away. Defendant jumped over a rock wall with a four- to five-foot drop and landed face first on the pavement. The officer again instructed him to stay there, but Defendant attempted to get up and run away again. Defendant continued to run and the officer pursued him instructing him to stop. The officer drew his taser and tasered Defendant, but it did not affect him. The officer tasered Defendant again, and this time it did slow Defendant down.
{3} Defendant turned to face the officer, “taking a defensive attack posture,” meaning he blew his chest up, clenched his fists, and began walking toward the officer. Defendant then punched him twice in the face while wearing a horseshoe shaped ring, drawing blood. The officer dry tasered Defendant, which means that because the cartridge on his taser was empty, he used the residual electricity to control Defendant by driving it into his skin. The officer then attempted to physically maneuver Defendant to the ground, and they wound up wrestling on the ground.
{4} Defendant broke free, began running again, and at some point stopped, turned, and faced the officer a second time in an aggressive manner. Defendant walked toward the officer in a “very fast” and “hasty” manner. The officer drew his baton and held it in a show of force, struck Defendant on the leg, and yelled at him to get on the ground. Defendant again ran away. Defendant then faced the officer a third time. The officer attempted an “arm bar takedown,” which led to the two men wrestling and Defendant attempting to hit the officer. Once again, Defendant ran away.
{6} Defendant admitted running away from the officer because he had an active arrest warrant for failure to pay fines, but disputed other facts. He denied jumping walls and fences and denied punching the officer or wrestling with him. Defendant claimed that the blood on the officer was Defendant’s own blood, not the officer’s.
{7} With these facts in mind we turn to the analysis in this case.
DISCUSSION
Double Jeopardy
{8} We generally apply a de novo standard of review to the constitutional question of whether there has been a double jeopardy violation. State v. Andazola,
{9} In a double description ease, we first ask whether the conduct underlying the offenses is unitary. State v. LeFebre,
{10} Applying these factors, we conclude that Defendant’s conduct was not unitary. The facts indicate that Defendant’s act of fleeing was punctuated by a distinct change in character and quality when he stopped fleeing, turned toward the officer in an attack posture, came back to the officer, and punched him twice in the face, drawing blood. We recognize that the Double Jeopardy Clause is not fragile, and it cannot be avoided by the simple expedient of dividing conduct into a series of temporal and spatial units. State v. Frazier,
{11} Defendant relies on State v. Ford,
{12} Here, in contrast, we do not consider Defendant’s acts of resistance and battery to be similar. Kicking an officer in the leg while being arrested and handcuffed, as occurred in Ford, is significantly different in quality and nature from what we have here: Defendant engaged in protracted fleeing and then stopped, changed course, physically confronted the officer, and attacked the officer by punching him twice in the face. Moreover, while the contact in Ford can arguably be characterized as incidental contact during an arrest and part of the struggle that constituted the resisting of that arrest, the conduct here cannot be similarly characterized. In our view, Defendant’s conduct in returning to strike the officer in the face is significantly different from Defendant’s resistance, and therefore Defendant’s conduct is not unitary. Further, the protracted nature of Defendant’s resistance also distinguishes this case from Ford.
{13} For all of these reasons, we conclude that Defendant’s conduct was not unitary. Because we hold that Defendant’s acts did not constitute unitary conduct, we need not address the legislature’s intent. See Frazier,
Sufficiency of Evidence
{14} Defendant contends there is insufficient evidence to support his conviction for battery on a peace officer. A review for sufficiency of the evidence involves a two-step process. Initially, the evidence is viewed in the light most favorable to the verdict. Then the appellate court must make a legal determination of “whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.” State v. Apodaca,
{15} The evidence we have discussed adequately supports a conclusion that Defendant knowingly battered a police officer. Defendant relies on his own testimony that he did
CONCLUSION
{16} For all of these reasons, we hold that double jeopardy was not violated and that the evidence is sufficient to support Defendant’s convictions. We affirm.
{17} IT IS SO ORDERED.