State v. Neal

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 vs. NO. 31,737
5 JOHN MARCUS NEAL,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Lisa C. Schultz, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 for Appellant
15 MEMORANDUM OPINION
16 GARCIA, Judge.
1 Defendant appeals his sentence upon probation revocation. In particular, he
2 contends that the district court erred in failing to give him credit for time he
3 admittedly “absconded” from probation. In our notice, we proposed to affirm.
4 Defendant has timely responded. We have considered his arguments and, finding
5 them unpersuasive, affirm.
6 Defendant continues to argue that the State failed to prove that he was a
7 fugitive. He argues that the State only established that Defendant failed to report to
8 his probation officer and failed to appear for court on two different days. He argues
9 that the State alleged only that he could not be found. This, he argues, is insufficient
10 to show that the State was unsuccessful in any attempts to locate him.
11 As we pointed out in our notice, however, a warrant was issued for Defendant’s
12 arrest [RP 101] and was entered into the NCIC database. [RP 105] We have
13 previously concluded that such evidence is sufficient to support a finding of fugitive
14 status. State v. Neal, 2007-NMCA-086, ¶ 31, 142 N.M. 487, 167 P.3d 935.
15 Defendant recognizes that a warrant was issued and that it was entered into the NCIC
16 database. But, he argues, there was no evidence of an attempt to serve the warrant and
17 there must be some showing of an attempt to locate the Defendant in order to serve
18 the warrant.
2
1 Here, although there was no specific evidence presented that an attempt was
2 made to serve the warrant, there was an admission made by Defendant that he failed
3 to appear for court dates, that he could not be found and had not reported to his
4 probation officer. We believe that this evidence “raises a reasonable inference that the
5 warrant could not be served with reasonable diligence.” State v. Thomas, 113 N.M.
6 298, 302, 825 P.2d 231, 235 (Ct. App. 1991), overruled on other grounds by State v.
7 Jiminez, 2004-NMSC-012, 135 N.M. 442, 90 P.3d 461 (1994). Therefore, we
8 conclude that there was sufficient evidence to support the district court’s implicit
9 finding that Defendant was a fugitive so that it could deny him credit for time served
10 on probation.
11 For the reasons stated herein and in the calendar notice, we affirm.
12 IT IS SO ORDERED.
13
14 TIMOTHY L. GARCIA, Judge
15 WE CONCUR:
16
17 CELIA FOY CASTILLO, Chief Judge
3
1
2 J. MILES HANISEE, Judge
4