July 20, 2011 • Volume 50, No. 28
Transcription
July 20, 2011 • Volume 50, No. 28
July 20, 2011 • Volume 50, No. 28 Inside This Issue Table of Contents................................................ 3 Fifth Judicial District Court Nominating Commission...............................5 Ninth Judicial District Court Nominating Commission............................... 5 Ask Pat: Committee on Women and the Legal Profession.................................. 6 40 Years on the Bench and Going Strong, by Judy Stuteville............................................ 7 A Time for Hope, by Judge Frank A. Sedillo................................8 From the New Mexico Supreme Court 2011-NMSC-025, No. 31,905: State v. Ramirez............................................. 17 2011-NMSC-026, No. 32,263: State v. Williams............................................ 21 From the New Mexico Court of Appeals 2011-NMCA-064, No. 29,884: State v. Maes................................................. 25 2011-NMCA-065, No. 30,399: State v. Lovato............................................... 27 2011-NMCA-066, No. 29,524: Romero v. Board of County Commissioners, Taos............................................................... 30 2011-NMCA-067, No. 29,956: State v. Rodarte............................................. 33 Metamorphosis XII, by Gail Factor (see page 3) ARTWORK International, Santa Fe 2011-NMCA-068, No. 29,716: State v. Leeson............................................... 36 2011-NMCA-069, No. 30,482: State v. Trevizo............................................... 40 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 1 A E S t a E L C 1 1 0 2 Call Ports of n, • San Jua SVI k r u T d Gran as, U St Thom • o ic R Puerto on Bay Half Mo CENTER FOR LEGAL EDUCATION 2 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 7-Day Eastern Caribbean Cruise aboard the Holland America ms Eurodam December 3-10, 2011 Departing /Arriving in Fort Lauderdale Cruise starting at $649.00 + tax per person/double occupancy Call Good Mood Cruises for details at (505) 296-6255 Table of Contents Officers, Board of Bar Commissioners Jessica A. Pérez, President Hans Voss, President-Elect Andrew J. Cloutier Vice President Erika Anderson, Secretary-Treasurer Stephen S. Shanor, Immediate Past President Board of Editors Kimberly L. Alderman Ian Bezpalko Cynthia A. Christ Jocelyn C. Drennan Jennifer C. Esquibel Autumn Gray Danny W. Jarrett Tiffany L. Sanchez Kelly A. Thomas Joseph Patrick Turk State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti Editor Dorma Seago (505) 797-6030 • notices@nmbar.org Graphic Designer Julie Schwartz jschwartz@nmbar.org Account Executive Marcia C. Ulibarri (505) 797-6058 • ads@nmbar.org Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo ©2011, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org. The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860. (505) 797-6000 • (800) 876-6227 • Fax: (505) 828-3765 E-mail: address@nmbar.org. • www.nmbar.org July 20, 2011, Vol. 50, No. 28 Notices .................................................................................................................................................................4 Ask Pat: Committee on Women and the Legal Profession.................................................................6 40 Years on the Bench and Going Strong, by Judy Stuteville...............................................................7 A Time for Hope, by Judge Frank A. Sedillo...............................................................................................8 Legal Education Calendar .......................................................................................................................... 11 Writs of Certiorari .......................................................................................................................................... 12 List of Court of Appeals’ Opinions............................................................................................................ 14 Recent Rule-Making Activity...................................................................................................................... 15 Opinions From the New Mexico Supreme Court 2011-NMSC-025, No. 31,905: State v. Ramirez........................................................................... 17 2011-NMSC-026, No. 32,263: State v. Williams........................................................................... 21 From the New Mexico Court of Appeals 2011-NMCA-064, No. 29,884: State v. Maes................................................................................ 25 2011-NMCA-065, No. 30,399: State v. Lovato............................................................................. 27 2011-NMCA-066, No. 29,524: Romero v. Board of County Commissioners, Taos.......... 30 2011-NMCA-067, No. 29,956: State v. Rodarte........................................................................... 33 2011-NMCA-068, No. 29,716: State v. Leeson............................................................................. 36 2011-NMCA-069, No. 30,482: State v. Trevizo............................................................................. 40 Advertising ...................................................................................................................................................... 43 State Bar Workshops Meetings July July 20 Committee on Women and the Legal Profession, noon, Lewis and Roca LLP 27 Consumer Debt/Bankruptcy Workshop 6–8 p.m., State Bar Center, Albuquerque 22 Indian Law Section BOD, 9 a.m., State Bar Center August 22 Trial Practice Section BOD noon, State Bar Center 26 Appellate Practice Section BOD, noon, Keleher & McLeod 10 Estate Planning/Probate Workshop 6–8 p.m., State Bar Center, Albuquerque 24 Consumer Debt/Bankruptcy Workshop 6–8 p.m., State Bar Center, Albuquerque 27 NREEL BOD, noon, State Bar Center 28 Health Law Section BOD, 7:30 a.m., via teleconference Cover Artist: For Gail Factor, painting is a means to access serenity, a calm soul. The unrelenting impulse to create something of beauty and personal truth has resulted in five decades of focused and committed painting, a daily offering of sorts, whereby the act itself generates luminosity and eradicates darkness. Harmonizing rich color, tone and texture, Factor strives for pure abstraction, but as images emerge, the past often makes an unwitting appearance. With only slight reference to the tangible world, she takes the viewer along on a journey through an altered reality, the unknown. Bar Bulletin - July 20, 2011 - Volume 50, No. 28 3 Notices Professionalism Tip Court News Lawyer’s Preamble NM Supreme Court Proposed Rule Revisions Proposed Revisions to the Children’s Court Rules The Children’s Court Rules Committee has recommended proposed amendments to the Children’s Court Rules for the Supreme Court’s consideration. Proposed Amendments to Uniform Jury Instructions—Civil The Committee on Uniform Jury Instructions for Civil Cases is considering whether to recommend proposed amendments to the committee commentary to UJI 13-2304 for the Supreme Court’s consideration. Proposed Amendments to Uniform Jury Instructions—Civil The Committee on Uniform Jury Instructions for Civil Cases is considering whether to recommend proposed amendments to the Uniform Jury Instructions— Civil for the Supreme Court’s consideration. Proposed Revisions to Uniform Jury Instructions for Criminal Cases The Committee on Uniform Jury Instructions for Criminal Cases is considering whether to recommend proposed amendments to the Uniform Jury Instructions—Criminal for the Supreme Court’s consideration. To comment on the proposed amendments before they are submitted to the Court for final consideration, either submit a comment electronically through the Supreme Court’s website at http:// As a lawyer, I will strive to make our system of justice work fairly and efficiently. In order to carry out that responsibility, I will comply with the letter and spirit of the disciplinary standards applicable to all lawyers, and I will also conduct myself in accordance with the Creed of Professionalism when dealing with my client, opposing parties, their counsel, the courts, and any other person involved in the legal system, including the general public. nmsupremecourt.nmcourts.gov/ or send written comments to: Kathleen J. Gibson, Clerk New Mexico Supreme Court PO Box 848 Santa Fe, NM 87504-0848 Comments must be received on or before Aug. 3 to be considered by the Court. Note that any submitted comments may be posted on the Supreme Court’s website for public viewing. For reference, see the July 13 (Vol. 50, No. 27) Bar Bulletin. Second Judicial District Court CLE in Family Court The 2nd Judicial District Court will present Death and Dissolution: Oldham, the Probate Code and Beyond (1.3 general CLE credits) from 11:30 a.m.–1 p.m., Aug. 1, at the Bernalillo County Courthouse, Courtroom 706, 400 Lomas NW, Albuquerque. The cost of $2 (cash only) includes CLE credit and administrative fee. Executive Officer to Retire The 2nd Judicial District Court invites the legal community to a program celebrating the retirement of Juanita M. Duran, court executive officer, from 4–6 p.m., July 26, in Ceremonial Courtroom 338. A reception will follow in the 4th Floor Atrium, Bernalillo County Courthouse, 400 Lomas NW, Albuquerque. Settlement Week 2011 The 2nd Judicial District Court’s 23rd Annual Settlement Week is Oct. 17–21. The deadline for requesting a referral of a civil or domestic relations case is July 29. For complete details regarding referral requests, refer to LR2-602, Section C, of the 2nd Judicial District Court’s Local Rules governing the Settlement Facilitation Program. Blank referral forms are available in the Clerk’s Office, Court Alternatives, and online at http:// www.nmcourts.gov/seconddistrictcourt/ calt2.html. All referrals should be filled out completely and sent directly to the assigned judge in the case. Include names, addresses and contact numbers of all parties/attorneys (especially pro se parties) involved and any other individuals requiring notice of the settlement facilitation. For more information, call Court Alternatives, (505) 841-7412. Judicial Records Retention and Disposition Schedules Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court. Court Exhibits/Tapes For Years May Be Retrieved Through 1st Judicial District Court Criminal, civil domestic relations, 1984–1996 September 19 (505) 455-8275 and children’s cases 10th Judicial District Court (575) 461-2764 Tapes in all criminal cases Tapes in incompetency, mental health and competency, guardianships/conservatorships, abuse/neglect, juvenile, adoption, and probate cases Tapes in grand jury cases Tapes in criminal preliminary cases 4 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 2001–July 2005 August 19 2002–July 2005 2004 August 2005–2008 August 19 August 19 www.nmbar.org Fifth Judicial District Court Nominating Commission Five applications have been received in the Judicial Selection Office as of 5 p.m., June 30, for the judicial vacancy on the 5th Judicial District Court due to the retirement of the Honorable Thomas A. Rutledge. The District Judicial Nominating Commission will meet at 9 a.m., July 25, at the Eddy County Courthouse, 102 N. Canal, Carlsbad, to evaluate the applicants for this position. The meeting is open to the public. Those wishing to make public comment are requested to be present at the opening of the meeting. The names of the applicants in alphabetical order are: Matthew T. Byers Mark Ray Horton Lisa B. Riley Raymond L. Romero Lesley S. Williams Ninth Judicial District Court Nominating Commission Four applications have been received in the Judicial Selection Office as of 5 p.m., July 8, for the judicial vacancy on the 9th Judicial District Court due to the death of the Honorable Robert S. Orlik. The District Judicial Nominating Commission will meet at 9 a.m., July 21, at the Curry County Courthouse, 700 N. Main Street, Clovis, to evaluate the applicants for this position. The meeting is open to the public. Those wishing to make public comment are requested to be present at the opening of the meeting. The names of the applicants in alphabetical order are: Donna J. Mowrer Wesley O. Pool Andrea Rowley Reeb Brian Scott Stover State Bar News Attorney Support Group •Aug. 15, 7:30 a.m.–Morning groups meet regularly on the third Monday of the month. •Aug. 1, 5:30 p.m.–Afternoon groups meet regularly on the first Monday of the month. Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more information, contact Bill Stratvert, (505) 242-6845. Young Lawyers Division Taos Luncheon The Young Lawyers Division will host a luncheon with Justice Edward Chávez from noon–1:30 p.m., July 28, at the Gorge Bar and Grill, 103 East Plaza, Taos. Join YLD for this ongoing series of informal discussions with Justice Chávez about the practice of law. Space is limited to the first 13 YLD members who respond, and preference will be given to those who have not previously attended. Lunch will be provided. R.S.V.P. by July 20 to Martha Chicoski, martha@ chicoskilaw.com. UNM Law Library Hours To August 21 Building & Circulation Monday–Thursday: Friday Saturday Sunday Reference Monday–Friday Saturday and Sunday 8 a.m.–9 p.m. 8 a.m.–6 p.m. 8 a.m.–5 p.m. noon–8 p.m. 9 a.m.–6 p.m. No reference New Mexico Law Review Seeking Articles for Special Issue As New Mexico prepares to celebrate a century of statehood, the New Mexico Law Review is seeking articles both historical and forward-looking regarding the development of New Mexico jurisprudence. Anyone interested in publishing under this broad umbrella should contact the publication with article ideas. Articles must be completed by Dec. 1. Contact Karen Chase, chaseka@law.unm.edu, or Lysette Romero, romeroly@law.unm.edu, for information or article submissions. Member Benefit of the Week Meeting Bridge • Easy to use teleconferencing designed for law firms. • Set up calls and notifications in one simple step. • No reservations are required. • Client codes provide for easy tracking. • Operator assistance is available on every call. Contact Dave Martin dmartin@meetingbridge.com or 1-888-723-1200 x627. Visit www.meetingbridge.com. Submit announcements for publication in the Bar Bulletin to notices@nmbar.org by noon Monday the week prior to publication. New Mexico Delegation to Cuba Under the leadership of State Bar President Jessica Pérez and President-elect Hans Voss, the State Bar will send a delegation of New Mexico lawyers to Cuba for an interactive, educational professional exchange program to learn about the Cuban legal system and share New Mexico information with Cuban lawyers. The trip is scheduled for Oct. 1–8. The cost is approximately $4,200 per person based on double occupancy and includes air from Miami, hotel accommodations, meals, transportation, etc. The cost does not cover the flight from New Mexico to Miami. Non-attorney guests are welcome. A oncein-a-lifetime opportunity. Contact Joe Conte, (505) 797-6099 or jconte@nmbar.org. Bar Bulletin - July 20, 2011 - Volume 50, No. 28 5 Ask Pat Committee on Women and the Legal Profession Dear Pat, I am a new attorney practicing in Albuquerque. My new job in the legal profession will require me to make regular appearances in court on behalf of my clients. Most of the clothing in my wardrobe is probably too trendy to wear in the courtroom. I need some advice on how to begin building my professional wardrobe without breaking the bank. Signed, Albuquerque Associate Dear Albuquerque Associate, The Local Rules of the Second Judicial District Court require attorneys appearing in court or in a judge’s office or chambers to “dress in a manner befitting the dignity of the court.” However, the Local Rules do not elaborate on specific dress requirements for attorneys. Most new attorneys in Albuquerque probably learn what to wear by observing their colleagues at work and in the courtroom. Last fall, I attended a Professional Attire Program presented by the Committee on Women and the Legal Profession, the Women’s Law Caucus, and the New Mexico Women’s Bar Association. The program featured a panel of judges from the federal and state benches who gave very helpful advice about appropriate professional attire for attorneys. The panelists, noting that an attorney’s appearance in the courtroom is very important to her clients and to jurors, recommended that attorneys should dress conservatively in the courtroom, and their appearance should convey confidence, preparedness and respect for the judicial process. Dressing professionally and conservatively is one way in which attorneys can demonstrate that we respect and value our clients and our profession. Conservative attire is also a good way for a new attorney to appear more experienced; whereas, dressing too trendy might highlight a new attorney’s inexperience. For attorneys who are beginning to build a professional wardrobe, I recommend purchasing classic suits in dark colors, readily available in local specialty stores and department stores. Lately, I’ve also seen affordable suits offered for sale in stores such as Target and Kohl’s. It is important that the suit fits properly. Ask your friends or colleagues to recommend a good tailor who can alter items and achieve a proper fit at a reasonable price. If possible, purchase the matching jacket, pants and skirt, which will enable you to change your look without having to purchase another suit. If you have difficulty finding or affording suits, then purchase separates. Men can purchase two or three jackets in dark colors and pair them with slacks and a variety of shirts and ties. Women can pair jackets with slacks, skirts and dresses. Women can also add variety to their wardrobes by purchasing shirts and blouses in various colors to wear beneath their jackets. Courtroom attire should always be clean and pressed. Necklines and hemlines should be conservative, and you should avoid distracting accessories. Always keep a jacket on hand in your office for emergency hearings. I also recommend visiting the Professional Clothing Closet, established by the Committee on Women and the Legal Profession and free for law students and members of the State Bar who are in need of professional attire. It contains a wide variety of new and gently used professional clothing. To schedule an appointment for the Professional Clothing Closet or to obtain a DVD of the Professional Attire Program, contact Jocelyn Castillo, jocelyn@moseslaw.com. Good luck as you begin to build your legal career and your professional wardrobe. Sincerely, Pat Ask Pat, provided by the Committee on Women and the Legal Profession, will answer questions about gender bias in the legal profession. Letters are loosely based on real events. Send comments or letters to Ask Pat, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860. 6 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 40 Years on the Bench and Going Strong ■■The Honorable Edmund “Ted” H. Kase III is the longest-serving district court judge in NM. By Judy Stuteville T he year was 1959, and a young Ted Kase was anxiously awaiting the results of the Colorado bar exam. During this period of uncertainty, Ted decided to visit his parents who had relocated to Socorro, where his father was employed at New Mexico School of Mines, now known as New Mexico Tech. Ted took the opportunity to meet Ganett Burks Sr., the presiding district court judge. Judge Ganett suggested that he take the threeday New Mexico bar exam. Ted learned that he passed the exam on the fourth day and serendipitously began what would become his lifelong career in Socorro. Other than those fateful decisions in 1959, there was little to indicate Ted would become the longest-serving district court judge in New Mexico. Born and raised in New Jersey then moving to Pennsylvania for high school, Ted graduated from Princeton in 1954. His first opportunity for government service soon arrived in the form of a draft notice and Ted was inducted into in the U.S. Army within two months of graduation. Although he had military occupation status as a German translator, he was stationed in southern France where his travel interests developed and evolved as he found himself watching the running of the bulls in Pamplona, Spain, for the first time in 1955. After his military service, he enrolled in the University of Pennsylvania Law School, graduating in 1959. The adventuresome young man then headed west for the mountains of Colorado. Ted opened his own private practice in Socorro and honed his legal skills for six years, working as an appointed public defender, doing land cases and divorces. When asked about the range of cases he handled as a young lawyer and sole practitioner, Ted quipped that he took “whatever came in the door,” which was typical The Honorable Edmund of rural attorneys practicing H. Kase III will be recognized in small towns at the time and is still the case to some for 40 years of service to degree today. the judiciary at 2 p.m., July 29, at the Socorro County In 1965, Ted moved to the district attorney’s office, then Courthouse Courtroom I. under Raymond Keithly. At A reception in his honor will that time, assistant district follow the ceremony. attorneys were permitted For further information, to also maintain their own private practice which Ted, contact Jason Jones, (575) always a hard worker, did 835-0050, ext. 20. until the rules changed. The 7th Judicial District Attorney’s Office then consisted of only Raymond and Ted, and Ted began the thousands of miles of travel throughout Socorro, Catron and Sierra counties that would be an enduring hallmark of his legal career. Interstate 25 had not yet been constructed, and the trips involved long hours of driving over two-lane roads. With his legal experience and his knowledge of the judicial district, Ted was selected by then-Governor Bruce King in 1971 to serve the remainder of Judge Burk’s term when the judge retired due to medical issues. It was a geographically large district with a unique personality, which was an excellent match for Judge Kase. And Ted Kase certainly knew his way around the district. He added Torrance County to his routes and continues to this day to log approximately 20,000 miles per year in the district. The newly appointed Judge Kase assumed responsibility, in addition to other matters, for the ongoing Tome Land Grant case, which had been in litigation for 16 years under Judge Burk. Judge Kase eventually ruled in favor of 200 plus heirs in the matter, only to have the case sent back to the 7th Judicial District by the New Mexico Supreme Court with instructions to open the case to all possible heirs. The case eventually expanded to more than 7,000 potential heirs before finally concluding in 2010. For six years, Judge Kase presided alone over the four-county district. In 1977 when his case load had grown from 600 to 1,300, the State Legislature approved a second judgeship. In 1995, the 3rd Judicial District judgeship was created. The 7th Judicial District was growing and changing as was much of the legal system in New Mexico. Judge Kase continued to demonstrate the adaptability and commitment that had led him to the bench. Judge Kase has been an active participant as the courts have adopted technology and automation. Commenting that he still likes to see continued on page 9 At its 2010 birthday celebration, the State Bar recognized Judge Kase as the “Longest Serving Judge” and for 50 years of practice. Shown with Judge Kase is Lauren Reed, who was recognized as the “Youngest Active Member.” Reed frequently appears before Judge Kase in the 7th Judicial District Court. Bar Bulletin - July 20, 2011 - Volume 50, No. 28 7 A time for Hope ■Over ■ 700 attorneys have given over 270,000 pro bono hours around the state By Judge Frank A. Sedillo G iven the many natural disasters and the grand changes occurring all over the world, many of us may be left with a feeling of helplessness. When these events are combined with the worst economic climate in generations, one might be left with a feeling of hopelessness. If we were one of the many unfortunate members of society that have been directly impacted by any one of these ill-fated occurrences, we could surely understand any feelings of desperation or despair. Is it not amazing then, that when we examine the manner in which those most affected by these adversities have endured, we find that, although it is a struggle, the human spirit continues to rise above all the encountered challenges. Those directly impacted begin to rebuild or reshape their environments and look forward to a better day. Many more, gazing on with shock and amazement, have found a way to help, a way to ease the pain, to restore the optimism, to foster a transition, to make it through one more day and onto a better day. While these world events dominate every news cycle, hope, faith and generosity still persist and still rule the day. Robert F. Kennedy once said, “It is from numberless diverse acts of courage and belief that human history is shaped.” He went on to say that “acts to improve the lot of others” can send forth “a tiny ripple of hope.” Hal Lindsey observed that we “can live about 40 days without food, about three days without water, about eight minutes without air, but only for one second without hope.” It is with these sentiments in mind that we recall the many acts of kindness and charity shared on a global and local level. It is also with these thoughts that we reflect on the efforts being made by the legal community here in New Mexico to help address the needs of those less fortunate and most in need. as direct representation, pro se clinics and courthouse booths, have provided assistance to over 10,000 New Mexicans. It should also be noted that the New Mexico Attorney General’s Office, along with many other civil legal service providers, typically attend the legal fairs. Their involvement has been extremely helpful in addressing the specific needs of those attending and in providing information and/ or assistance on an ongoing basis after the legal fairs are concluded. One of the civil legal service providers, Law Access New Mexico, has developed a database of volunteer attorneys or a Volunteer Attorney Pool (VAP). This database provides a way to connect the pro bono committee with a list of attorneys available to assist in a particular area or event. This in turn helps connect the person in need with an attorney available to help. On many occasions, VAP attorneys serve as the last resort for referrals from the state’s many legal service providers when either the legal service providers do not have available staff or available expertise or when there are conflicts of interest. It should also be noted that Law Access New Mexico provides malpractice coverage for services rendered by volunteer attorneys participating in the VAP. The efforts of the pro bono committees, attorneys, civil legal service providers and all the employees of the State Bar of New Mexico have been invaluable in ensuring that access to justice is available to all New Mexicans, even those that may not have the means to hire an attorney. Since the inception of the pro bono committees, countless ripples of hope have been created by members of the legal community who have selflessly and graciously given their time, knowledge and energies to assist. Through their efforts, they are helping to shape a new and better day for all New Mexicans and have helped restore and maintain—HOPE. In 2007, the New Mexico Supreme Court Access to Justice Commission developed a plan to establish district court pro bono committees in every judicial district in the state. The chief judge in every district was required to appoint a committee to develop a plan on how best to address the legal needs of the local community by involving the private bar, other legal service providers and the public. As a result of these efforts, several of the pro bono committees, made up of judges, attorneys, law students, paralegals and legal service providers, have decided to hold legal fairs in their respective communities. Through the present, Albuquerque, Alamogordo, Santa Fe, Los Lunas, Las Cruces, Roswell, Española, Silver City, Gallup, Ruidoso, Volunteer attorney Jay Hertz of Sutin Thayer & Browne answers Clovis and Lovington have all had legal fairs where volunteer probate law questions at the Law-La-Palooza Legal Fair conducted Legal fairs and legal professionals from each community have come together March 9, 2010, at the Westside Community Center in Albuquerque. other legal events are currently beto provide free legal information to low-income New Mexicans. Photo courtesy of Judge Clay Campbell. ing planned in In Farmington, week-long events have been scheduled where other communilaw students and local attorneys conduct training sessions and seminars. Legal information is provided free of charge to members of ties around the state. If any community and/or pro bono committee is interested in conducting a legal fair or providing other similar services, the local community during these week-long events. please feel free to contact Amy LaFaver, pro bono coordinator at It is estimated that over 700 attorneys have volunteered their time in alafaver@nmbar.org. If any attorney is interested in becoming a part these various endeavors. It is also estimated that attorneys have given of the Volunteer Attorney Pool, please contact Rosalie Fragosa, Law over 270,000 hours in pro bono efforts around the state in the year Access New Mexico, at rosalie@lawaccess.org. 2010 alone. These legal fairs, combined with other legal events such Let’s do our part to keep hope alive. 8 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 Judge Ted Kase continued from page 7 the paper copy of a brief to be able “to scribble in the margins,” he also acknowledges that “of course, there are those features available” that allow the same functionality in the Pegasus system. There have also been changes in the content of the cases coming before him. He is concerned about the high number of cases which involve illegal drug use and the effect those drugs have on our communities. He continues to support the use of drug courts to address issues created by illegal use. One of Judge Kase’s notable achievements has been his support of 1987 Family Protection Act, which addresses issues of domestic violence, including the establishment of domestic violence special commissioners. The special commissioners have allowed more time for district judges to address their ever-growing case load and have also provided more expedient hearings for domestic violence cases. Retirement does not seem to be in the plans for Judge Kase. He continues to hear cases in all four counties and commented that he still enjoys the job. He especially enjoys performing weddings and presiding over adoption cases. Judge Kase remains a formidable presence in courtrooms throughout the district, and he is respected throughout the legal system. The court staff continues to admire Kase, and they are openly pleased by their opportunity to work with him. He is a visible presence in each of the communities, where he is often seen in the local restaurants enjoying a meal and the companionship of many local residents. The 7th Judicial District has been fortunate to have had Judge Kase on the bench for these past 40 years. Both the citizens and legal community look forward with anticipation to many more years of his gracious service to the people of New Mexico. Judge Kase III has two children, Adam and Judy. Adam and his wife Karin live in Tijeras and have a daughter, Lauren, two. Judy and husband Joseph Cuttone live in Bernardsville, New Jersey, and Judge Kase (left) watches the enactment into law of a project which he worked hard and long for—better compensation for jurors. In this 70s newspaper file photo, Then-Gov. Bruce King signs House Bill 33, which raised juror compensation to $2.30 per hour and 17 cents per mile with future compensation being “at the highest prevailing state minimum wage rate.” On the right is David Gardner, then executive secretary of the Judicial Council of New Mexico. have two daughters, Grace, 12, and Mia, eight, and a son Giuseppe, five. Ted continues to enjoy travel and has managed to make a second trip to watch the running of the bulls, as well as many other journeys. He also enjoys gardening, walking and hiking and visiting with his family. About the Author Judy Stuteville is an associate professor at New Mexico Tech in Socorro. She is an attorney and has been a domestic violence special commissioner in the 7th Judicial District since 1998. ENews stay connected... MEET YOU AT THE INBOX! • Have you received your ENews yet? • It’s placed in your inbox every Friday. • Get the latest updates on CLE classes, member benefits, and other law-related activities around New Mexico. To subscribe to ENews free of charge, contact sbnm-enews@nmbar.org. Bar Bulletin - July 20, 2011 - Volume 50, No. 28 9 IF NOT FOR THE CONFIDENTIAL NATURE OF WHAT WE DO, YOU’D HEAR ABOUT SUCCESS STORIES ALL THE TIME. Lawyers are as vulnerable to personal and professional problems as anyone else. Competition, chronic stress, long hours, and high expectations can wear down even the most competent and energetic lawyer, often leading to depression, anxiety, relationship problems, gambling issues, alcohol or other drug abuse. If you are a lawyer, judge, or law student in New Mexico with a personal or professional problem, the New Mexico Lawyers and Judges Assistance Program (NMJLAP) can help. Since 1986, our program’s counselor and peer helpers (lawyers and judges) have helped hundreds of legal professionals deal with alcohol and other drug-related problems, mental illness, and emotional distress. Absolute confidentiality and highly professional service is our promise. If an issue in your life is beginning to cause problems, or someone you know is confronting difficulties, we can be the crucial first step in turning things around. Don’t wait for a problem to become a crisis, or a personal issue to become a professional one. You don’t have to manage alone. Help and Support are only a phone call away. Call (505) 228-1948 or 800-860-4914 10 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 Legal Education July 20 Handling a Social Security Disability Case 5.0 G, 1.0 E Albuquerque NBI Inc. (800) 930-6182 www.nbi-sems.com 21 Annual Rocky Mountain Mineral Law Institute 13.0 G, 1.0 E Santa Fe Rocky Mountain Mineral Law Foundation (303) 321-8100 www.rmmlf.org 26 Ethics of Using “Metadata” in Law Practice and Litigation 1.0 EP Teleseminar Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org 28 Tax Planning Issues in Divorce 1.0 G Teleseminar Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org 2 Workers’ Compensation to Social Security: Representing Claimants in Social Security Disability Appeals 3.4 G Video Replay Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org 16 5 16–17 Eminent Domain Practice, Parts 1 and 2 2.0 G Teleseminar Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org August 1 Death and Dissolution: Oldham, the Probate Code and Beyond 1.3 G Albuquerque Second Judicial District Court (505) 222-4575 2 Conflicts of Interest in Law Practice: A Practical Guide 1.0 EP Teleseminar Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org 2 Employment Law: The Basics and New Developments 6.1 G Video Replay Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org 2 Workers’ Compensation to Social Security: Assisting Clients to Avoid the Holes in the Social Safety Net 2.7 G Video Replay Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org When Agendas Collide: New Mexico’s Natural Resources and its Threatened and Endangered Species 4.5 G, 2.0 EP Video Replay Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org Screening and Assessing Intimate Partner Violence and Abuse 5.0 G, 1.0 E Albuquerque Samaritan Counseling Center (505) 842-5300 www.samaritannm.org 9–10 Business Torts, Parts 1 and 2 2.0 G Teleseminar Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org 16 2010 Intellectual Property Institute Video Replay 4.5 G, 2.0 EP Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org 23 Drafting Employee Handbooks 1.0 G Teleseminar Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org 30 Buying, Selling and Exchanging LLC and Partnership Interests 1.0 G Teleseminar Center for Legal Education of NMSBF (505) 797-6020 www.nmbarcle.org Bar Bulletin - July 20, 2011 - Volume 50, No. 28 11 Writs of Certiorari As Updated by the Clerk of the New Mexico Supreme Court Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860 Effective July 20, 2011 Petitions for Writ of Certiorari Filed and Pending: Certiorari Granted but not yet Submitted to the Court: No. 33,086 No. 33,107 No. 33,106 No. 33,103 No. 33,104 (Parties preparing briefs) Date Writ Issued No. 32,360 State v. Figueroa (COA 28,798) 6/2/10 No. 32,430 State v. Muqqddin (COA 28,474) 8/2/10 No. 32,483 State v. Jackson (COA 28,657) 8/19/10 No. 32,532 Gutierrez v. Hatch (12-501) 9/15/10 No. 32,548 State v. Robles (COA 30,118) 9/27/10 No. 32,602 State v. Marez (COA 30,233)10/18/10 No. 32,603 Holguin v. Fulco Oil (COA 29,149)10/18/10 No. 32,605 State v. Franco (COA 30,028)10/18/10 No. 32,510 State v. Swick (COA 28,316)10/28/10 No. 32,632 State v. Dominguez-Meraz (COA 30,382) 11/5/10 No. 32,696 Herbison v. Chase Bank (COA 30,630) 12/3/10 No. 32,697 State v. Amaya (COA 28,347) 12/3/10 No. 32,713 Bounds v. D’Antonio (COA 28,860) 1/27/11 No. 32,717 NM Farm and Livestock Bureau v. D’Antonio (COA 28,860) 1/27/11 No. 32,770 State v. Sneed (COA 30,467) 1/27/11 No. 32,789 Chatterjee v. King (COA 29,823) 1/27/11 No. 32,742 State v. Martinez (COA 30,637) 1/31/11 No. 32,804 State v. Servantez (COA 30,414) 2/7/11 No. 32,800 State v. Spearman (COA 30,493) 3/8/11 No. 32,791 Snider v. State (12-501) 3/14/11 No. 32,860 State v. Stevens (COA 29,357) 3/15/11 No. 32,844 Gonzalez v. Performance Paint, Inc. (COA 29,629) 3/23/11 (On Court’s own motion for reconsideration) No. 32,868 Nunez v. Armstrong General Contractors (COA 29,522) 3/23/11 (COA 29,731) 4/4/11 No. 32,882 State v. Little No. 32,895 State v. Gonzales (COA 30,541) 4/4/11 No. 32,876 Gonzales v. State (12-501) 4/7/11 No. 32,915 State v. Collier (COA 29,805) 4/7/11 No. 32,871 Bowen v. Mescalero Apache Tribe (COA 29,625) 4/27/11 No. 32,899 State v. Esparza (COA 28,911) 4/27/11 No. 32,937 SF Pacific Trust v. City of Albuquerque (COA 30,930) 5/3/11 No. 32,940 State v. Vest (COA 28,888) 5/3/11 No. 32,941 Titus v. City of Albuquerque (COA 29,461) 5/3/11 No. 32,942 Schuster v. Taxation & Revenue Dept. (COA 30,023) 5/3/11 No. 32,944 Freedom C. v. Brian D. (COA 30,041) 5/3/11 No. 32,939 United Nuclear Corp. v. Allstate Insurance Co. (COA 29,092) 5/4/11 No. 32,943 State v. Hall (COA 29,138) 5/11/11 No. 32,968 Sunnyland Farms, Inc. v. Central NM Electric (COA 28,807) 5/17/11 No. 32,976 State v. Olson (COA 29,010) 5/24/11 No. 32,985 Helena Chemical Co. v. Uribe (COA 29,567) 6/8/11 No. 33,077 No. 33,098 No. 33,019 No. 33,097 No. 33,094 No. 33,093 No. 33,096 No. 33,090 No. 33,089 No. 33,088 No. 33,084 No. 33,081 No. 33,080 No. 33,085 No. 32,984 No. 33,082 No. 33,076 No. 33,075 No. 33,070 No. 33,073 No. 33,068 No. 33,072 No. 33,064 No. 33,063 No. 33,062 No. 33,057 No. 33,060 No. 33,059 No. 33,017 No. 33,053 No. 33,046 No. 33,035 Date Petition Filed Lopez v. Bravo (12-501) 7/7/11 State v. Veronica L. (COA 30,736) 7/5/11 State v. Gutierrez (COA 28,754) 7/5/11 State v. Brazeal (COA 31,106) 7/1/11 Barron v. Evangelical Lutheran Good Samaritan Society (COA 29,707) 6/30/11 State v. Gonzales (COA 28,700) 6/30/11 State v. Chelsea S. (COA 30,352) 6/29/11 Chand v. Bravo (12-501) 6/29/11 State v. Perea (COA 31,122) 6/28/11 State v. Yazzie (COA 28,191) 6/28/11 State v. Mahsem (COA 29,671) 6/28/11 State v. Cofer (COA 29,717) 6/27/11 Widman v. City of Albuquerque (COA 31,168) 6/24/11 Sabatini v. Roybal (COA 29,804) 6/24/11 State v. Stacy C. (COA 30,987) 6/24/11 State v. Lavone (COA 29,266) 6/23/11 State v. Castillo (COA 29,270) 6/22/11 State v. Rivera (COA 29,118) 6/22/11 Chavez v. City of Rio Rancho (COA 31,070) 6/21/11 Response filed 7/8/11 Rivera v. Rivera (COA 30,882) 6/21/11 Rohlev v. Rohlev (COA 31,010) 6/20/11 State v. Diaz (COA 31,034) 6/20/11 State v. Marchiondo (COA 30,029) 6/17/11 Montoya v. City of Albuquerque (COA 29,838) 6/17/11 State v. Stinnett (COA 30,772) 6/16/11 State v. Stevens (COA 29,423) 6/16/11 Perry v. Pacheco (12-501) 6/14/11 State v. Begay (COA 31,076) 6/13/11 Duran v. Jaramillo (12-501) 6/10/11 Response due 7/14/11 State v. Sophia Z. (COA 30,982) 6/10/11 State v. Turrietta (COA 29,561) 6/9/11 State v. Otuafi (COA 30,332) 6/8/11 State v. Chavez (COA 30,997) 6/8/11 Trujillo v. State (12-501) 6/8/11 Response due 7/28/11 State v. Coleman (COA 29,143) 6/6/11 State v. Munoz (COA 30,837) 6/1/11 State v. Telles (COA 28,943) 5/25/11 12 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 Writs of Certiorari No. 32,987 No. 33,001 No. 33,008 No. 33,011 No. 33,013 No. 33,014 No. 33,023 Helena Chemical Co. v. Uribe (COA 29,567) State v. Rudy B. (COA 27,589) State v. Lasky (COA 28,782) Felts v. CLK Management, Inc. (COA 29,702/30,142) Felts v. CLK Management, Inc. (COA 29,702/30,142) State v. Crane (COA 29,470) State v. Gurule (COA 29,734) http://nmsupremecourt.nmcourts.gov. 6/8/11 6/8/11 6/8/11 6/8/11 6/8/11 6/8/11 6/8/11 Certiorari Granted and Submitted to the Court: (Submission = date of oral argument or briefs-only submission) Submission Date No. 31,100 Allen v. LeMaster (12-501) 2/15/10 No. 32,099 Wachocki v. Bernalillo Co. Sheriff’s Dept. (COA 27,761) 7/19/10 No. 32,131 Wachocki v. Bernalillo Co. Sheriff’s Dept. (COA 27,761) 7/19/10 No. 32,149 State v. Sandoval (COA 28,437) 8/30/10 No. 32,137 State v. Skippings (COA 28,324)10/13/10 No. 32,130 State v. Cruz (COA 27,292)10/14/10 No. 32,311 Rodriguez v. Permian Drilling Corp. (COA 29,435)11/15/10 No. 32,170 State v. Ketelson (COA 29,876)11/16/10 No. 32,344 Provencio v. Wenrich (COA 28,882)11/16/10 No. 32,447 Mendoza v. Tamaya Enterprises (COA 28,809) 1/10/11 No. 32,486 City of Rio Rancho v. (COA 28,709) 1/11/11 Amrep No. 32,489 City of Rio Rancho v. (COA 29,510) 1/11/11 Cloudview Estates No. 32,340 Rivera v. American General (COA 28,691) 1/12/11 No. 32,234 State v. Trujillo (COA 29,870) 2/23/11 No. 32,524 Republican Party v. (COA 28,292) 3/14/11 Tax & Revenue Dept. No. 32,594 Smith v. Durden (COA 28,896) 3/15/11 No. 32,505 Charley v. Franklin Corp. (COA 28,876) 3/22/11 No. 32,542 Quintero v. Department of Transportation (COA 28,875) 3/22/11 No. 32,545 State ex rel. CYFD v. Octavio F. (COA 29,469) 3/23/11 No. 32,534 Bustos v. Hyundai Motor Co. (COA 28,240) 4/11/11 No. 32,570 City of Albuquerque v. Montoya (COA 28,846) 4/11/11 No. 32,695 No. 32,690 No. 32,756 No. 32,388 No. 32,402 No. 32,577 No. 32,291 No. 32,677 No. 32,436 No. 32,716 No. 32,589 No. 32,776 No. 32,707 No. 32,704 Diamond v. Diamond (COA 30,009/30,135) Joey P. V. Alderman-Cave Milling & Grain Co. (COA 29,120) Lenscrafters, Inc. v. Kehoe (COA 28,145) State v. Harper (COA 27,830) State v. Harper (COA 27,830) May v. DCP Midstream LP (COA 29,331/29,490) State v. Torres (COA 29,603) State v. Rivera (COA 29,317) Estate of Gutierrez v. Meteor Monument (COA 28,799) Derizotis, Inc. v. Tomada (COA 30,679) State v. Ordunez (COA 28,297) Sais v. NM Department of Corrections (COA 30,785) Smith LLC v. Synergy Operating, LLC (COA 28,248/28,263) Tri-State v. State Engineer (COA 27,802) 5/10/11 5/11/11 7/18/11 7/27/11 7/27/11 8/15/11 8/16/11 8/16/11 8/17/11 8/31/11 8/31/11 9/12/11 9/12/11 9/26/11 Petition for Writ of Certiorari Denied: No. 33,040 No. 33,045 No. 33,047 No. 32,969 No. 32,973 No. 33,033 No. 33,031 No. 33,030 No. 33,037 No. 33,043 No. 33,044 No. 33,041 No. 33,038 No. 33,061 No. 33,072 No. 33,067 No. 32,972 State v. Telles (COA 30,936) State v. Brito (COA 30,718) State v. Cipriano (COA 29,105) Rascon v. Tapia (12-501) Clark v. Salayandia (12-501) State v. Jaime L. (COA 27,799) State v. Torres (COA 27,900) State v. Jimenez (COA 29,043) State v. Carrisa M. (COA 27,958) Sutin, Thayer & Brown v. Whitener Law Firm (COA 30,791) State v. Portillo (COA 29,564) Waterhouse v. Heredia (12-501) Marquez v. NM Regulation & Licensing Dept. (COA 31,171) Herrera v. Franco (12-501) Perry v. Pacheco (12-501) Derringer v. Baxter (COA 28,681) Trujillo v. Tapia (12-501) 6/23/11 6/23/11 6/23/11 6/28/11 6/28/11 6/28/11 6/28/11 6/28/11 6/28/11 6/28/11 6/28/11 6/28/11 6/28/11 6/28/11 6/28/11 6/30/11 6/30/11 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 13 Opinions As Updated by the Clerk of the New Mexico Court of Appeals Gina M. Maestas, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925 Effective July 8, 2011 Published Opinions Date Opinion Filed No. 29894 11th Jud Dist San Juan CR-08-1212, STATE v R SORRELHORSE (affirm) 7/5/2011 No. 30461 2nd Jud Dist Bernalillo LR-08-44, STATE v L OWELICIO (affirm) 7/5/2011 No. 29699 5th Jud Dist Chaves CR-07-302, STATE v F MONTANO (affirm in part, vacate in part and remand) 7/5/2011 No. 29822 1st Jud Dist Los Alamos CV-08-154, J HORNE v LOS ALAMOS NATIONAL (reverse and remand) 7/5/2011 No.30863 2nd Jud Dist Bernalillo DM-00-1849, B VAN DEN BRINK v J VAN DEN BRINK (affirm in part, dismiss in part) 7/5/2011 No. 31000 13th Jud Dist Sandoval DM-09-898, D BRUDEVOLD v D FULTON (affirm) 7/5/2011 No. 31115 2nd Jud Dist Bernalillo JQ-09-72, CYFD v KYLIE B (affirm) 7/5/2011 No. 31215 1st Jud Dist Santa Fe CV-10-4016, F GONZALES v DEPT OF WORKFORCE (reverse and remand) 7/5/2011 No. 29666 WCA-04-54327, P CALBERT v NATIONAL RESTAURANT (reverse) 7/6/2011 No. 30605 13th Jud Dist Valencia PB-09-35, ESTATE OF T LEHMAN (dismiss) 7/6/2011 No. 30912 9th Jud Dist Curry CV-10-8574, STANDAGE FARMS v LUSK ONION (reverse and remand) 7/6/2011 No. 30977 5th Jud Dist Chaves CR-09-550, STATE v T GONZALES (affirm) 7/6/2011 No. 30996 6th Jud Dist Grant CR-07-70, STATE v A GRIEGO (affirm) 7/6/2011 No. 31052 2nd Jud Dist Bernalillo JQ-09-17, CYFD v APOLONIO L (affirm) 7/6/2011 No. 31053 9th Jud Dist Roosevelt CR-05-88, STATE v D CASILLAS (affirm) 7/6/2011 No. 29212 8th Jud Dist Taos CV-06-208, B WINDHAM v L.C.I.2 (reverse) 7/8/2011 No. 30833 11th Jud Dist San Juan CR-07-453, STATE v J GARCIA (dismiss) 7/8/2011 Unpublished Opinions Slip Opinions for Published Opinions may be read on the Court’s website: http://coa.nmcourts.gov/documents/index.htm 14 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 Recent Rule-Making Activity As Updated by the Clerk of the New Mexico Supreme Court Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860 Effective July 20, 2011 Pending Proposed Rule Changes Open for Comment Comment Deadline 13-2304 Retaliatory discharge 08/03/11 13-832 Good faith and fair dealing [No instruction drafted.]08/03/11 10-111 Motions; how and when presented 08/03/11 10-341 Witness immunity 08/03/11 10-342 Admissions, including no contest pleas, and consent decrees 08/03/11 14-945 Criminal sexual penetration of a 13 to 18 year old in the second degree; use of coercion by person in position of authority; essential elements08/03/11 14-972 Aggravated criminal sexual penetration in the first degree; child under thirteen;1 essential elements 08/03/11 14-2241 Tampering with evidence; essential elements 08/03/11 6-503 Disposition without hearing 07/20/11 7-503 Disposition without hearing 07/20/11 8-503 Disposition without hearing 07/20/11 9-104B Appearance, plea and waiver 07/20/11 6-105 Assignment and designation of judges 07/20/11 6-507 Insanity or incompetency; transfer to district court 07/20/11 Return of the probation violator 07/20/11 6-802 8-507 Insanity or incompetency; transfer to district court 07/20/11 8-802 Return of the probation violator 07/20/11 9-212C Bench warrant 07/20/11 Recently Approved Rule Changes Since Release of 2011 NMRA Effective Date Rules of Civil Procedure for the District Courts 1-071.1 1-071.2 1-071.3 1-071.4 1-071.5 1-023 1-077 1-079 Statutory stream system adjudication suits; service and joinder of water rights claimants; responses06/08/11 Statutory stream system adjudication suits; stream system issue and expedited inter se proceedings06/08/11 Statutory stream system adjudication suits; annual joint working session 06/08/11 Statutory stream system adjudication suits; ex parte contacts; general problems of administration06/08/11 Statutory stream system adjudication suits; excusal or recusal of a water judge 06/08/11 Class actions 05/11/11 Appeals pursuant to Unemployment Compensation Law 04/18/11 Public inspection and sealing of court records 02/07/11 Rules of Civil Procedure for the Magistrate Courts 2-112 Public inspection and sealing of court records 02/07/11 Rules of Civil Procedure for the Metropolitan Courts 3-105 3-701 3-112 Assignment and designation of judges Appeal from metropolitan court on the record Public inspection and sealing of court records 05/27/11 05/27/11 02/07/11 Civil Forms 4-831 4-832 4-222 4-223 4-224 Petition for writ of certiorari in appeal pursuant to Unemployment Compensation Law04/18/11 Writ of certiorari in appeal pursuant to Unemployment Compensation Law 04/18/11 Application for free process and affidavit of indigency 02/09/11 Order for free process 02/09/11 Attorney’s certificate supporting indigency and free process 02/09/11 Rules of Criminal Procedure for the District Courts 5-123 5-805 5-604 Public inspection and sealing of court records 02/07/11 Probation; violation 01/31/11 Time of commencement of trial for cases of concurrent trial jurisdiction originally filed in the magistrate, metropolitan, or municipal court03/23/11 Rules of Criminal Procedure for the Magistrate Courts 6-701Judgment 6-114 Public inspection and sealing of court records 03/25/11 02/07/11 Rules of Criminal Procedure for the Metropolitan Courts 7-701Judgment 7-113 Public inspection and sealing of court records 03/25/11 02/07/11 Rules of Procedure for the Municipal Courts 8-701Judgment 8-112 Public inspection and sealing of court records 03/25/11 02/07/11 Children’s Court Rules and Forms 10-166 Public inspection and sealing of court records 10-409 Affidavit for Arrest Warrant 10-410 Arrest Warrant 10-412A Bench warrant 02/07/11 02/14/11 02/14/11 02/14/11 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 15 Rule-Making Activity 10-137 10-312 http://nmsupremecourt.nmcourts.gov. Continuing duty to disclose; failure to comply 01/31/11 Filing of petition; amendment of petition; appointment of guardian ad litem or attorney 01/31/11 Rules of Evidence 11-804 Hearsay exceptions; declarant unavailability 01/31/11 Rules of Appellate Procedure 12-215 12-306 12-302 Brief of an amicus curiae Number of copies of papers Appearance, withdrawal or substitution of attorneys 12-314 Public inspection and sealing of court records 12-210 Calendar assignments 12-309Motions 06/28/11 06/28/11 05/16/11 02/07/11 02/09/11 02/09/11 UJI Civil 13-110 13-305 13-306 13-1424 3-1424A Conduct of jurors Causation (Proximate cause) Independent intervening cause Causation; products liability Independent intervening cause; products liability 03/21/11 03/21/11 03/21/11 03/21/11 03/21/11 Rules Governing Discipline 17-309 17-105 Formal charges; designation of hearing officer or committee Disciplinary counsel 06/01/11 03/28/11 Rules for Minimum Continuing Legal Education 18-201 18-203 18-204 Minimum educational requirements Accreditation; course approval; provider reporting Earning credits; credit types 05/01/11 05/01/11 05/01/11 Supreme Court General Rules 23-114 23-110 Free process in civil cases Commission on Professionalism 02/09/11 04/06/11 Rules Governing the New Mexico Bar 24-109 24-110 Trust accounts; special requirements for IOLTA trust accounts “Bridge the Gap: Transitioning into the Profession” program 05/17/11 04/06/11 Rules for Review of JSC 27-104 27-106 Filing and service Form of papers 05/04/11 05/04/11 Local Rules for the Eleventh Judicial District UJI Criminal 14-5101 14-101 14-114 14-2215 Insanity; jury procedure Explanation of trial procedures Recess instructions Resisting; evading or obstructing an officer, essential elements 14-4511 “Operating” or driving a motor vehicle; defined 14-4512 Actual physical control; defined 04/25/11 03/25/11 03/25/11 LR11-120Service by electronic transmission; water rights adjudication proceedings 03/21/11 LR13-411Electronic filing and service pilot project Local Rules for the Thirteenth Judicial District 03/21/11 03/21/11 To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov. To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us. 16 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 02/21/11 06/13/11 Advance Opinions From the New Mexico Supreme Court and Court of Appeals From the New Mexico Supreme Court Opinion Number: 2011-NMSC-025 Topic Index: Constitutional Law: Due Process; Right to Confrontation; Self-Incrimination; Trial By Jury; and Waiver of Rights Criminal Law: Assault or Battery on a Peace Officer; Homicide; and Murder Criminal Procedure: Due Process; Guilty Plea; Plea and Plea Bargaining; Right Against Self-Incrimination; and Right to Trial by Jury Judges: Abuse of Discretion Juries: Right to Trial by Jury STATE OF NEW MEXICO, Plaintiff-Appellee, versus ALBERT JOSE RAMIREZ, Defendant-Appellant. No. 31,905 (filed: June 13, 2011) APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Teddy L. Hartley, District Judge Carlos Ruiz De La Torre Assistant Appellate Defender Santa Fe, New Mexico for Appellant Opinion Edward L. Chávez, Justice {1}The crux of this appeal is whether Defendant Albert Jose Ramirez (Defendant) knowingly, intelligently, and voluntarily entered into his plea agreement with the State. At Defendant’s plea hearing, Defendant expressed confusion about sentencing, the premeditation element of his first degree murder charge, and culpability for his assault and battery charges. Apparently recognizing Defendant’s hesitation and confusion, the prosecutor asked the district court to inquire further on the record whether Defendant understood the plea and that he was “willfully” entering into the plea agreement. Although the district court acknowledged the need to do so, the court failed to adequately confirm on the record Defendant’s understanding of the plea and its consequences as required by New Mexico law. Accordingly, we Gary K. King Attorney General Nicole Beder Assistant Attorney General Santa Fe, New Mexico for Appellee reverse and remand to allow Defendant to withdraw his plea. {2}Defendant reached an agreement with the State whereby he pled guilty to murder in the first degree (premeditated), contrary to NMSA 1978, Section 30-2-1(A) (1) (1994); battery upon a peace officer, contrary to NMSA 1978, Section 30-22-24 (1971); and assault upon a police officer, contrary to NMSA 1978, Section 3022-21 (1971). Defendant was sentenced to a term of life imprisonment for the murder charge with concurrent sentences of 18 months for the battery charge and 364 days for the assault charge. Because Defendant received a life sentence, we review Defendant’s appeal directly from the district court, pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA. See State v. Smallwood, 2007-NMSC-005, ¶ 6, 141 N.M. 178, 152 P.3d 821 (“[O]ur appellate jurisdiction extends to appeals from district court judgments imposing a http://www.nmcompcomm.us/ sentence of life imprisonment or death.”). {3}Defendant raises four issues for our review: (1) whether Defendant was competent to stand trial; (2) whether Defendant’s motion for additional competency evaluation was improperly denied; (3) whether the district court erred in denying Defendant’s motion to withdraw his plea; and (4) whether trial counsel’s performance constituted ineffective assistance of counsel. We reverse on the basis that the district court erred in denying Defendant’s motion to withdraw his plea. In particular, we conclude that Defendant’s plea was not “knowing, intelligent, and voluntary.” See Marquez v. Hatch, 2009-NMSC-040, ¶ 12, 146 N.M. 556, 212 P.3d 1110 (internal quotation marks and citation omitted). Because this finding is dispositive, we do not address Defendant’s other claims. {4}Defendant’s convictions arose from the July 12, 2007 killing of his mother’s boyfriend, Eladio Robledo (Victim), in Curry County. Defendant was indicted by the Ninth Judicial District grand jury on July 20, 2007. After being initially determined incompetent to stand trial, the district court adjudged that Defendant was restored to competency following approximately three months of treatment and evaluation at the New Mexico Behavioral Health Institute (Behavioral Health Institute) in Las Vegas. {5}Defendant’s trial began with jury selection on January 26, 2009. Following a break in that process, the parties informed the district court that a plea agreement had been reached in which Defendant pled guilty to three charges, including first degree premeditated murder. The court then conducted a twenty-minute plea hearing in which the judge concluded that Defendant had “knowingly, intelligently, and voluntarily” accepted the plea, despite statements made by Defendant to the contrary. Among Defendant’s contentions was that the act of killing Victim was not premeditated, undermining the validity of his plea to the first degree murder count. The district court deflected Defendant’s claims, declined to conduct additional inquiries of Defendant, and left the plea agreement intact. {6}A month later, Defendant filed a motion to withdraw his guilty plea, arguing that his plea was neither knowing nor intelligent due to the mental health prob- Bar Bulletin - July 20, 2011 - Volume 50, No. 28 17 lems that gave rise to his commitment to the Behavioral Health Institute. At the hearing regarding Defendant’s plea withdrawal motion, Defendant reiterated this argument and augmented it with others, including claims that he did not understand the elements of the crimes covered by the plea or the sentencing to be imposed under the agreement. The district court rejected the claims, concluding that Defendant had been adequately informed of the plea details by defense counsel. BECAUSE THE DISTRICT COURT FAILED TO ASCERTAIN ON THE RECORD THAT DEFENDANT’S PLEA WAS KNOWING, INTELLIGENT, AND VOLUNTARY, THE DISTRICT COURT’S ACTION CONSTITUTES AN ABUSE OF DISCRETION THAT WARRANTS REVERSAL {7}In this appeal, Defendant once again claims that the district court failed to ascertain whether Defendant “knowingly and voluntarily” entered his guilty plea. Defendant contends that his mental health problems undermined his capacity to enter the guilty plea and he “expressed considerable confusion and frustration” during the plea hearing. He also argues that the district court’s failure to clarify Defendant’s understanding of the plea and the court’s subsequent denial of Defendant’s motion to withdraw the plea constitute error. {8}A guilty plea in a state criminal court involves the waiver of “three important federal [constitutional] rights.” Boykin v. Alabama, 395 U.S. 238, 243 (1969). In addition to waiving the Fifth Amendment right against self-incrimination, a plea also implicates certain due process entitlements of the Sixth Amendment, including the right to a jury trial and the right to confront one’s accusers. Id. at 242-43; State v. Montler, 85 N.M. 60, 61, 509 P.2d 252, 253 (1973). In addition, “we review the trial court’s denial of a defendant’s motion to withdraw his guilty plea for an abuse of discretion.” State v. Barnett, 1998-NMCA-105, ¶ 12, 125 N.M. 739, 965 P.2d 323. The “trial court abuses its discretion when it acts unfairly or arbitrarily, or commits manifest error.” Id. “A denial of a motion to withdraw a guilty plea constitutes manifest error when the undisputed facts establish that the plea was not knowingly and voluntarily given.” State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 546, 915 P.2d 300, 302. {9}A plea is not knowing, intelligent, and voluntary unless the defendant “understand[s] his guilty plea and its con18 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 sequences.” Id. at 547, 915 P.2d at 303; see also Boykin, 395 U.S. at 243-44 (explaining that state trial courts should “make sure [a defendant] has a full understanding of what the plea connotes and of its consequence[s]”). Rule 5-303(F) NMRA codifies the matters our district courts must address to ascertain that a defendant grasps the contents and consequences of a plea. In relevant part, Rule 5-303(F) provides: The court shall not accept a plea of guilty or no contest without first, by addressing the defendant personally in open court, informing the defendant of and determining that the defendant understands the following: (1) the nature of the charge to which the plea is offered; (2) the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law for the offense to which the plea is offered, including any possible sentence enhancements. (Emphasis added.) In order to ensure that the defendant understands “the nature of the charge[s],” id., the district court must be satisfied that the defendant understands the essential elements of the charges that are subject to the plea. See Garcia, 121 N.M. at 548, 915 P.2d at 304. A related requirement directs the district court to “[make an] inquiry as shall satisfy it that there is a factual basis for the plea.” Rule 5-304(G) NMRA; State v. Willis, 1997NMSC-014, ¶ 9, 123 N.M. 55, 933 P.2d 854. Finally, the record must contain an “affirmative showing that [the] plea was knowingly and voluntarily given.” Garcia, 121 N.M. at 547, 915 P.2d at 303; see also Boykin, 395 U.S. at 242-43. {10} At the January 2009 plea hearing in this case, the district court tried to satisfy the requirements of Rules 5-303(F) and 5-304(G) by establishing, inter alia, a factual basis for the charges and engaging Defendant in an exchange intended to confirm the knowing, intelligent, and voluntary character of his plea. At the beginning of the plea hearing, the judge asked Defendant whether he understood the charges. The district judge then asked Defendant whether he understood the maximum prison sentence possible in the absence of the plea deal. The exchange proceeded as follows: DISTRICT COURT: Have you gone over this guilty plea agreement with your attorneys? DEFENDANT: Yes. DISTRICT COURT: Do you understand what it says? Do you understand what you’re charged with? DEFENDANT: Yes. DISTRICT COURT: Do you understand that in the absence of this agreement you could have life plus nine and a half years? DEFENDANT: What, what was that last thing? DISTRICT COURT: Life plus nine and a half years, in the absence of this agreement, that could, could have been the sentence that had been imposed. DEFENDANT: Oh. Okay, that’s not the . . . DISTRICT COURT: That’s not the one. That’s just what would have, that’s what could have happened. DEFENDANT: Okay. Sorry about that. At no point did the district court apprise Defendant of the mandatory minimum sentence as required under Rule 5-303(F) (2). See Montler, 85 N.M. at 60, 509 P.2d at 252 (“Ordinarily an accused should be advised of the maximum possible sentence and the minimum mandatory sentence which can be imposed.”). {11} After asking Defendant about a range of other requirements set forth in Rule 5-303(F) such as Defendant’s right to a trial before a jury, the district court asked the State and Defendant to address the factual basis for the charges included in the plea. Regarding the first degree murder count, the State offered an account of the evidence it intended to present at trial to prove that Defendant’s murder was “willful, deliberate and premeditated” as required by Section 30-2-1(A)(1). In particular, the State asserted that Defendant had prepared for the killing by acquiring a gun and ammunition, expressing his desire to kill Victim prior to the killing, and “lying in wait” for Victim. Further, the State conveyed that three witnesses saw Defendant shoot Victim. In response, defense counsel expressed “sharp disagreement” regarding the murder charge, suggesting that Defendant had not planned the crime and had forfeited prior opportunities to “go after the victim” if that was his design. However, defense counsel conceded that because Defendant had apparently chased Victim around a house and then shot Victim as Victim lay on his back, with his arms outstretched in surrender, the jury “most likely would find this to be a murder in the first degree.” {12} The district court then accepted the plea agreement, only asking Defendant whether it was voluntary and encouraging Defendant to answer “yes.” The exchange proceeded as follows: DISTRICT COURT: We’re going to find that the Defendant and the prosecutor have entered into this plea agreement, [Defendant] understand[s] it, [Defendant] consent[s], and it’s voluntary, that there’s nobody here—you’ve got, you’ve got a roomful of people who are family members, and you understand that this is voluntary. Why don’t you say “yes,” Albert. DEFENDANT: Yes. DISTRICT COURT: Thank you. (Emphasis added.) The judge then announced that it was a “reasonable plea under these circumstances” and “concluded that [Defendant] knowingly, voluntarily, and intelligently [pled] guilty to these charges, and [the district court will] accept your plea.” {13} However, Defendant then expressed confusion about the sentencing set forth in the plea agreement. After the district court enumerated the sentencing terms contained in the plea, Defendant asked, “How much do I have to do?” Defense counsel interjected that he had “explained” the sentencing framework in the plea. Moments later, Defendant expressed additional confusion about the concurrent nature of his sentences. The district court did not conduct any inquiry to confirm Defendant’s understanding of the agreement’s sentencing terms. See Rule 5-303(F)(2). {14} Soon thereafter, the district court permitted Defendant to make a series of statements where Defendant expressed doubt about his culpability for the charges contained in the plea. First, Defendant implied that his actions that gave rise to the assault and battery charge were the result of provocation by the law enforcement officers, asking the court if “there ain’t no justice for that . . . so they get away with that?” Next, Defendant turned to the first degree murder charge, exclaiming that “I don’t think, I don’t believe it was, uh, premeditated.” The district court responded by advising Defendant that the issue of premeditation “would have been up to the jury to decide.” The court did not ask Defendant whether he understood the “nature” of these charges. See Rule 5-303(F)(1). {15} Following a lengthy exchange between the district court, Defendant, and defense counsel regarding several issues, including Defendant’s complaints about his treatment in the criminal justice system, the State rose to ask the court to make additional inquiries regarding whether Defendant had “willfully” pled to the first degree murder charge. Citing Defendant’s “statement that he doesn’t feel like he committed the willful and deliberate murder,” the State asked the district court to “inquire [of Defendant] that he understands that he’s willfully giving up his claim and that he’s willfully making his plea.” Initially the district court agreed to “do that,” but the judge first complained that Defendant had already agreed that the plea was willful, and then asserted that Defendant’s comments were driven by a wish that “his life had been different.” Defendant responded with complaints about his family and his treatment in the foster care system. This exchange apparently exasperated the court and prompted the court to “wish [Defendant] well” and abruptly recess the hearing, instead of making further inquiries of Defendant regarding his understanding of the first degree murder charge. {16} Rule 5-303(F) requires the court to ascertain that a defendant understands the terms and charges set forth in a plea agreement, not merely engage in a formulaic exchange about the Rule 5-303 requirements. See Montler, 85 N.M. at 61, 509 P.2d at 253 (“Concerning what must be stated to an accused by the trial court in connection with a proffered plea of guilty, it is . . . difficult to establish a strict, unvarying formula of words.”); see also 2 Mark S. Rhodes, Orfield’s Criminal Procedure under the Federal Rules § 11.30, at 111 (2d ed. 1985) (“Simply asking the defendant if he understood the charges against him is insufficient.”). {17} In the plea hearing, the district court did little more than secure perfunctory one-word answers in addressing Defendant’s understanding regarding the content and consequences of the plea agreement. At the outset of the proceeding, the court asked Defendant, “Do you understand what you’re charged with?” prompting Defendant to reply, “Yes.” After running through various Rule 5-303(F) factors with Defendant and establishing a factual basis for the charges, the district court concluded that “Defendant and the prosecutor have entered into this plea agreement.” It was not until the end of this announcement that the court inquired whether the agreement was voluntary. When Defendant failed to volunteer a verbal response, the district court appeared to cajole Defendant into providing an affirmative response, a tepid “yes” after a pause lasting for several seconds. {18} It was only after the district court accepted the plea and allowed Defendant to make several statements that the inadequacy of this exchange between the court and Defendant became apparent. In these statements, Defendant protested his culpability for the assault and battery charges, expressed confusion about sentencing, and challenged the premeditation element of the first degree murder charge. The issue of premeditation was important enough that it caught the State’s attention when it solicited the court to revisit the “willful” aspect of Defendant’s plea and his understanding of the first degree murder charge. Despite both this overt invitation and the expression of concern by the State, the district court ultimately failed to ask Defendant any further questions regarding the murder charge, a crime carrying a term of life in prison. {19} In the past we have faced analogous circumstances, ruling that it is incumbent on the court to clarify the understanding of a defendant who demonstrates misunderstanding regarding the charges and sentencing set forth in a plea agreement. Garcia, 121 N.M. at 549, 915 P.2d at 305. In Garcia, the defendant pled guilty to felony murder and was asked by the court to provide a factual basis for the charge at a plea hearing. Id. at 545, 915 P.2d at 301. Following the defendant’s recitation of the facts, the State expressed concern that the defendant’s account was an inadequate factual basis. Id. The court “ascertained” that the defendant did not understand felony murder, and then recessed to allow the defendant’s counsel “to fully explain to [the defendant] all the elements of felony murder.” Id. During the recess, defense counsel “discussed with [the defendant] the leading case concerning the relevant element of felony murder.” Id. at 549, 915 P.2d at 305. However, following the recess, the court failed to independently ascertain whether the defendant’s “misunderstanding of the nature of felony murder had been sufficiently corrected.” Id. at 548, 915 P.2d at 304. We held that the court’s failure to set forth the defendant’s understanding of the elements of the felony murder charge on the record constituted error. Id. at 549-50, 915 P.2d at 305-06. We also held that the court’s failure to advise the defendant regarding the range of possible sentences associated with his plea constituted error. Id. We Bar Bulletin - July 20, 2011 - Volume 50, No. 28 19 reversed and remanded accordingly. Id. {20} We see no reason to depart from the reasoning of Garcia in this case, and the State did not urge us to distinguish Garcia in briefing this appeal. There are numerous parallels between Garcia and the case at hand. First, the defendants in both cases expressed confusion regarding the crimes subject to their pleas, with both unclear about the elements of their first degree murder charges. Second, neither defendant was fully apprised of the range of sentencing for the crimes subject to their pleas. Third, the prosecutor in each case alerted the district court to concerns regarding the adequacy of the defendant’s understanding. In addition, in the case at hand, defense counsel made it clear to the district court at the beginning of the proceeding that Defendant harbored “sharp disagreement” over the premeditation element for the murder charge. Finally, unlike Garcia, in this case there was nei- 20 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 ther a recess to allow defense counsel to address Defendant’s misunderstanding nor any claim by defense counsel that they had undertaken efforts to remedy Defendant’s apparent misunderstanding. Despite all these indicia of uncertainty on Defendant’s part, the district court failed to take any concrete steps to confirm Defendant’s understanding as to these issues on the record. Cf. Cross v. State, 964 So. 2d 535, 539 (Miss. Ct. App. 2007) (“When [the defendant] appeared to be uninformed of the consequences of her guilty plea . . . the trial court consistently continued to address the perceived point of confusion with [the defendant] until she stated that she understood the proceedings and until the trial court was satisfied that she understood the consequences of her guilty plea and the rights that she would waive if she did plead guilty.”); People v. Wilson, 692 N.E.2d 422, 427 (Ill. App. Ct. 1998) (“The record shows that each time defendant ex- pressed confusion, the trial court clarified or explained the issue, repeatedly inquired whether defendant understood, and did not continue until defendant confirmed that he understood.”). {21} As a result, we conclude that Defendant’s plea was not knowing, intelligent, and voluntary, and that the district court abused its discretion by denying Defendant’s motion to withdraw his plea. We reverse and remand for proceedings consistent with this Opinion. {22} IT IS SO ORDERED. EDWARD L. CHÁVEZ, Justice WE CONCUR: CHARLES W. DANIELS, Chief Justice PATRICIO M. SERNA, Justice PETRA JIMENEZ MAES, Justice RICHARD C. BOSSON, Justice From the New Mexico Supreme Court Opinion Number: 2011-NMSC-026 Topic Index: Constitutional Law: Fourth Amendment Criminal Procedure: Reasonable Suspicion; Search and Seizure; and Warrantless Search STATE OF NEW MEXICO, Plaintiff-Petitioner, versus TERRY WILLIAMS, Defendant-Respondent. No. 32,263 (filed: June 15, 2011) ORIGINAL PROCEEDING ON CERTIORARI Ross C. Sanchez, District Judge Gary K. King Attorney General Nicole Beder Assistant Attorney General Santa Fe, New Mexico for Petitioner Opinion Patricio M. Serna, Justice {1}We granted certiorari to resolve the question of whether the Fourth Amendment to the United States Constitution prohibits an under-clothing search as part of a search incident to arrest when the arresting officer has reason to suspect that the arrestee is concealing a weapon or contraband under his or her clothing. The State appeals the holding of the Court of Appeals that the roadside search of Defendant Terry Williams, incident to his arrest on an outstanding felony warrant, violated the Fourth Amendment. We adopt and apply the reasonableness factors articulated in Bell v. Wolfish, 441 U.S. 520 (1979), and conclude the officer had reasonable suspicion to conduct an under-clothing search and the search was reasonable under the Fourth Amendment. The Court of Appeals’ opinion is reversed. I.BACKGROUND {2}Defendant was stopped for a traffic violation and subsequently arrested on an outstanding felony warrant. The Second Judicial District Court held a suppression hearing at which both the arresting officer and Defendant testified. The district court ruled from the bench that it found the of- Jacqueline Cooper Chief Public Defender Eleanor Brogan Assistant Appellate Defender Santa Fe, New Mexico for Respondent ficer’s testimony credible. Because this Court defers “to the district court’s review of the testimony and other evidence presented,” State v. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861, unless otherwise noted, the factual background presented below is drawn from the testimony of the arresting officer at the suppression hearing. {3}The traffic stop occurred in Albuquerque, on University near Gibson, across the street from a church parking lot. As the officer who conducted the stop approached the vehicle, he saw through the open window that Defendant’s hands were removed from the steering wheel and his shoulders were moving as if he were “fumbling around” with an object. Based on his ten years of training and experience, the officer found these actions to be consistent with concealing contraband or searching for a weapon. After obtaining Defendant’s information and running a background check, the officer confirmed that an outstanding felony arrest warrant existed for Defendant. {4}A female backup officer arrived at the scene of the stop. The arresting officer asked Defendant to exit the vehicle; when Defendant did so, his pants were unzipped and his belt unbuckled. Pursuant to the warrant, Defendant was placed under arrest and handcuffed. Defendant was placed between the two police cars parked bumperto-bumper on the side of University, with the female officer standing between the two cars, facing away from Defendant, and Defendant standing between the two officers. The arresting officer patted Defendant down incident to the arrest, and then shook the waistband of Defendant’s pants. The officer pulled the waistband of Defendant’s pants and underpants outward six to eight inches, looked down, and saw a plastic bag underneath Defendant’s underpants. The officer, with a gloved hand, reached down and removed the bag; the bag’s contents later tested positive as illegal substances. {5}The female officer did not observe the search of Defendant. Although Defendant testified that the search occurred on a busy street, there was no testimony by either the officer or Defendant that any other individual, such as a pedestrian or passing driver, could see underneath Defendant’s clothing. {6}The district court concluded that the search of Defendant was a lawful search incident to arrest and denied the suppression motion. Defendant entered a plea of no contest to trafficking by possession with intent to distribute, reserving his right to appeal the denial of the motion to suppress. {7}To the Court of Appeals, Defendant alleged four points of error: (1) that the under-clothing search incident to his arrest was unreasonable under the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution; (2) that he received ineffective assistance of counsel; (3) that his plea agreement was not entered into knowingly or voluntarily; and (4) that his plea should be withdrawn and his case should proceed to trial. State v. Williams, 2010-NMCA-030, ¶ 5, 148 N.M. 160, 231 P.3d 616. The Court of Appeals determined that the search was unreasonable under the Fourth Amendment and did not reach Defendant’s other issues. Id. ¶¶ 1, 21. Judge Fry dissented on the grounds that Defendant had not preserved the argument that the search was unreasonable, but, if the issue was preserved, then the search did not run afoul of the Fourth Amendment because the officer had developed reasonable suspicion that Defendant had concealed a weapon in his pants and the search was limited in scope. Id. ¶ 30. II.DISCUSSION A. Standard of Review {8}The review of a denial of a motion to suppress presents a mixed question of fact Bar Bulletin - July 20, 2011 - Volume 50, No. 28 21 and law. Leyva, 2011-NMSC-009, ¶ 30. We review the factual basis of the court’s ruling for substantial evidence, deferring to the district court’s view of the evidence. Id. When, as here, there are no findings of fact and conclusions of law, we “draw all inferences and indulge all presumptions in favor of the district court’s ruling.” State v. Jason L., 2000-NMSC-018, ¶ 11, 129 N.M. 119, 2 P.3d 856. Our review of the legal conclusions of the district court, however, is de novo. State v. Rowell, 2008NMSC-041, ¶ 8, 144 N.M. 371, 188 P.3d 95. “Warrantless seizures are presumed to be unreasonable and the State bears the burden of proving reasonableness.” Id. ¶ 10 (internal quotation marks and citation omitted). B.Preservation {9}Under Rule 12-216(A) NMRA, “[t] o preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked[.]” In his pro se motion to suppress, on which we commend Defendant, Defendant argued that the search under his clothing violated the Fourth Amendment. Although the parties did not, as noted by Judge Fry in her dissent, “focus on the reasonableness of the search” at the suppression hearing, Williams, 2010-NMCA-030, ¶ 31, Defendant’s motion to suppress properly preserved the Fourth Amendment argument. See State v. Javier M., 2001-NMSC-030, ¶ 9, 131 N.M. 1, 33 P.3d 1. C. Fourth Amendment Reasonableness of Under-Clothing Searches {10} The Fourth Amendment requires all searches and seizures be executed in a reasonable manner. See Leyva, 2011NMSC-009, ¶ 9. Reasonableness depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Penn. v. Mimms, 434 U.S. 106, 109 (1977) (internal quotation marks and citation omitted). It is well established that the Fourth Amendment is not violated when an officer conducts a warrantless pat-down incident to arrest to ensure officer safety and prevent the destruction of evidence, and Defendant does not challenge the constitutionality of the initial pat-down he received. See United States v. Robinson, 414 U.S. 218, 234 (1973); Rowell, 2008-NMSC-041, ¶ 13. It is undisputed, however, that the search in this case extended beyond a patdown of Defendant’s outer clothing. When a more invasive search is conducted, it is not presumed to be reasonable simply because it occurs incident to an arrest. See Amaechi v. West, 237 F.3d 356, 361 (4th Cir. 2001); United States v. Scott, 987 A.2d 1180, 1195 (D.C. 2010). {11} To guide the reasonableness analysis of more intrusive searches, such as the under-clothing search that occurred in this case, courts review the factors articulated by the United States Supreme Court in Bell: “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” 441 U.S. at 559 (setting forth the factors to determine the reasonableness of strip and visual body cavity searches of detainees). See, e.g., Amaechi, 237 F.3d at 361; Hill v. Bogans, 735 F.2d 391, 393-94 (10th Cir. 1984); Scott, 987 A.2d at 1195; State v. Nieves, 861 A.2d 62, 71 (Md. 2004); People v. Hall, 886 N.E.2d 162, 166 (N.Y. 2008); State v. Battle, 688 S.E.2d 805, 812 (N.C. Ct. App. 2010). We approve the Court of Appeals’ incorporation of the Bell factors into New Mexico jurisprudence to consider whether the search of Defendant was reasonable under the Fourth Amendment. Williams, 2010-NMCA-030, ¶ 12. {12} Before discussing the Bell factors in the context of Defendant’s search, we resolve the question of the minimum quantum of suspicion required to justify an under-clothing search conducted incident to an arrest.1 Although the United States Supreme Court has not addressed directly the question of the level of proof necessary to justify a search more intrusive than a pat-down,2 the weight of authority supports a requirement of reasonable suspicion that the arrestee is concealing a weapon or contraband underneath his or her clothing before an under-clothing search is conducted. See State v. Jenkins, 842 A.2d 1148, 1156 (Conn. App. Ct. 2004) (adopting the requirement that an officer have reasonable suspicion “that the individual is carrying a weapon or contraband” prior to conducting a strip search); Scott, 987 A.2d at 1196-97 (stating that the majority of courts which have considered the issue require at least reasonable suspicion of an attempt to hide contraband or a weapon before permitting a strip search). {13} A search incident to arrest is a reasonable warrantless search because courts have long acknowledged that the societal interest in preventing the destruction of evidence and protecting the arresting officer outweighs the minimal intrusion of a pat-down. Rowell, 2008NMSC-041, ¶¶ 13-14 (stating that the search incident to arrest traditionally is limited by “the exigencies which justify its initiation” (quoting Terry v. Ohio, 392 U.S. 1, 26 (1968)). An under-clothing search, however, is different. See Safford United Sch. Dist. #1 v. Redding, ___ U.S. ___, ___, 129 S. Ct. 2633, 2641 (2009) (discussing an under-clothing search of a student and stating that “both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings”); see also Schmerber v. Cal., 384 U.S. 757, 769-70 (1966) (distinguishing a warrantless blood draw from a pat-down and stating that “[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained”). In the context of a strip search of a visitor to a prison, our Court of Appeals determined that reasonable suspicion of the presence of weapons or contraband on the visitor’s body was necessary to justify an “embarrassing and humiliating” strip search. State v. Garcia, 116 N.M. 87, 89, 860 P.2d 217, 219 (Ct. App. 1993) (quoting Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982)). The Court stated that the reasonable suspicion standard “is flexible 1The parties and the Court of Appeals, 2010-NMCA-030, ¶ 11, spend a good deal of time discussing the proper nomenclature for the search of Defendant. Although we cite cases that do so, we do not feel it necessary to label the search a “reach-in,” “strip search,” or something else, as the Bell test is inherently one of reasonableness under the circumstances. See Stanley v. Henson, 337 F.3d 961, 964 n.2 (7th Cir. 2003) (“Whether the procedure at issue here was a ‘strip search’ or just a ‘search’ more appropriately goes to the question of the scope or manner of the intrusion involved.”). 2In Bell, the searches were found to be permissible “on less than probable cause,” 441 U.S. at 560, though three dissents would have required a specific justification, see id. at 563 (Powell, J., concurring in part and dissenting in part) (“at least some level of cause, such as reasonable suspicion”); id. at 578 (Marshall, J., dissenting) (requiring a showing of compelling necessity); id. at 595 (Stevens, J., dissenting) (requiring a showing of probable cause). 22 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 enough to afford the full measure of fourth amendment protection without posing an insuperable barrier to the exercise of all search and seizure powers.” Id. (quoting Hunter, 672 F.2d at 674). {14} While we acknowledge that some courts have required probable cause before an invasive search is conducted, see, e.g., United States v. Bazy, 1994 WL 539300, *6 (D. Kan. 1994), aff ’d, 82 F.3d 427 (10th Cir. 1996); Battle, 688 S.E.2d at 815, we conclude that reasonable suspicion is the proper standard to justify an underclothing search. We hold that a search incident to arrest that involves an officer removing or looking under any part of an arrestee’s clothing requires, at a minimum, particularized reasonable suspicion that the arrestee is concealing a weapon or evidence that is susceptible to destruction before arriving at the police station. {15} We now apply the Bell factors to address the reasonableness of the underclothing search of Defendant. These factors—justification, scope, manner, and place—are reviewed within the context of the totality of the circumstances surrounding the under-clothing roadside search of Defendant. See State v. Sewell, 2009-NMSC-033, ¶ 1, 146 N.M. 428, 211 P.3d 885. The determination of whether a search was reasonable is based on what did happen, not whether the officers could have conducted the search differently. See United States v. Sharpe, 470 U.S. 675, 686-87 (1985) (“A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But the fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, itself, render the search unreasonable.” (internal quotation marks, citation, and alteration omitted)). {16} As discussed above, the minimum justification to conduct an under-clothing search as part of a search incident to arrest is reasonable suspicion that the arrestee is armed or hiding contraband.3 The Court of Appeals determined that the officer had reasonable suspicion that Defendant was hiding a weapon or contraband in his underpants based on the officer’s observations of Defendant’s furtive movements after stopping and Defendant’s exiting the car with his pants in disarray. Williams, 2010-NMCA-030, ¶ 14. After reviewing the record, deferring, as did the Court of Appeals, to the district court’s determination that the officer’s testimony was credible, we agree that substantial evidence supports this conclusion. Compare Jenkins v. State, 978 So. 2d 116, 127-28 (Fla. 2008) (deferring to the trial court’s factual findings, supported by the record, that the officer was justified in conducting a search of a suspect’s underpants for drugs after a pat-down revealed no drugs but the officer had reasonable suspicion that the defendant was secreting drugs on his body), with Paulino v. State, 924 A.2d 308, 319 (Md. 2007) (concluding the record did not contain sufficient evidence to support the existence of exigent circumstances justifying a more intrusive search, as there was no testimony that the defendant was attempting to destroy evidence or in possession of a weapon, particularly as the officers did not conduct a pat-down before proceeding to the strip search). {17} The Court of Appeals concluded that the scope of the search was narrowly tailored based on the officer’s reasonable suspicion that Defendant was concealing a weapon or contraband. Williams, 2010NMCA-030, ¶ 14. We agree. The officer had reasonable suspicion that Defendant was concealing an object in his underpants; the officer limited his under-clothing search to the specific area in which he suspected a weapon or contraband was hidden. See United States v. Williams, 477 F.3d 974, 975-76 (8th Cir. 2007) (concluding that the scope of the search was not unreasonably intrusive because the officers believed that the defendant was hiding something in his underpants and limited the search to that area of the body, and though the defendant’s genitals were touched in the search, “it involved no penetration or public exposure of genitals”). {18} The Court of Appeals determined that the State did not carry its burden to prove that the manner of the search was reasonable. Williams, 2010-NMCA-030, ¶ 21. The district court credited the officer’s testimony that he pulled Defendant’s waistband outwards, saw a plastic bag, and used a gloved hand to remove the bag, and that no other person saw down Defendant’s pants. The manner of the search was reasonable under the circumstances. See Williams, 477 F.3d at 977 (“[A] reach- in search of a clothed suspect does not display a suspect’s genitals to onlookers, and it may be permissible if police take steps commensurate with the circumstances to diminish the potential invasion of the suspect’s privacy.”); Bazy, 1994 WL 539300, *7 (finding a search reasonable when the officer wore gloves, pulled the defendant’s pants outward, and reached in to the underpants to remove drugs). We disagree with the Court of Appeals’ inference that “passers-by witnessed [the] search.” Williams, 2010-NMCA-030, ¶ 21. The evidence presented, viewed in the light most favorable to the district court’s ruling, supports the inference that no one other than Defendant and the searching officer saw underneath Defendant’s clothes; any occupant of a passing car would have caught a glimpse of a search incident to arrest, as the more invasive aspect of the search was conducted with adequate steps to preserve Defendant’s privacy. While we recognize that the Fourth Amendment analysis does not turn on whether a search had witnesses, see Battle, 688 S.E.2d at 814, the scope of the search of Defendant properly minimized the invasion of Defendant’s privacy. {19} The final Bell factor, the location of the search, also was found to be unreasonable by the Court of Appeals. Williams, 2010-NMCA-030, ¶ 20. Defendant was searched on the side of the road, protected from the public’s eye by the police cars and the officers themselves. In Bazy, a case relied upon by the Court of Appeals, Williams, 2010-NMCA-030, ¶ 18, the court determined that the location of the search was reasonable under the circumstances and properly limited the intrusion into the defendant’s privacy rights. Bazy, 1994 WL 539300, *7. The search in Bazy was conducted in a location similar to the one at issue in this appeal, and the officers acted to ensure that “[p]ublic view was blocked by the defendant’s clothes, a trooper, and the cars” on the side of the road where the stop occurred. Id. The justification for the search of Defendant, reasonable suspicion of destructible evidence or weapons, required an immediate search, and the officers took adequate steps to minimize the invasion of Defendant’s privacy. The Court of Appeals erred by concluding that further evidence of an exigent circumstance is necessary, Williams, 2010-NMCA-030, ¶ 21, when The justification for the initial stop is not necessarily a part of this analysis, though it may be. We reject Defendant’s suggestion that we never permit invasive searches when the initial stop was for a crime for which no evidence could be hidden, e.g., a traffic stop. Such a per se rule would ignore the fact that officers must be able to adjust their investigation as the circumstances of the stop evolve. See Leyva, 2011-NMSC-009, ¶ 10. 3 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 23 the arresting officers have reasonable suspicion that the arrestee is concealing weapons or evidence underneath her or his clothing and the search is conducted in a location that minimizes the invasion of the arrestee’s privacy interests. {20} While analysis of the Bell factors support the conclusion that the search of Defendant was reasonable, the ultimate determination of Fourth Amendment reasonableness depends on the balance between the public and private interests at stake. The public interest in this case is that which justifies the search incident to arrest power as a “reasonable preventative measure to eliminate any possibility of the arrestee’s accessing weapons or evidence.” Rowell, 2008-NMSC-041, ¶ 25 n.1; see also State v. Ketelson, 2011NMSC-023, ¶ 19, ___ N.M. ___, ___ P.3d ___ (No. 32,170, May 20, 2011) (concluding that the Fourth Amendment is not violated by an officer’s temporary removal of a gun from a vehicle when the officer possesses a reasonable belief that an occupant’s ready access to the gun during a traffic stop poses a danger to officer safety). Defendant’s interest is, of course, the expectation of privacy in his genitalia, and “the Fourth Amendment protects against the infringement of ‘an expectation of privacy that society is prepared to consider reasonable.’” State v. 24 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 Rivera, 2010-NMSC-046, ¶ 16, 148 N.M. 659, 241 P.3d 1099 (quoting United States v. Jacobsen, 446 U.S. 109, 113 (1984)); see Battle, 688 S.E.2d at 813 (“[D]eeply imbedded in our culture is the belief that people have a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have their private parts observed or touched by others.” (internal quotation marks, citations, and ellipsis omitted)). Based on our review of the Bell factors, the under-clothing search of Defendant protected the public interest at stake without unreasonably violating Defendant’s expectation of privacy under the Fourth Amendment. See Jenkins, 978 So. 2d at 128 (applying the Bell factors to conclude that “the very limited intrusion into [the defendant’s] clothing was clearly outweighed by the need for law enforcement to retrieve the contraband before it could be discarded or destroyed”). Although the district court ruled that the search was a reasonable search incident to arrest and did not review the underclothing search separately for reasonableness, the district court reached the correct result and must be affirmed. See State v. Wilson, 2011-NMSC-001, ¶ 20, 149 N.M. 273, 248 P.3d 315. {21} We hold that the under-clothing search of Defendant passes constitutional muster because the officer had particularized reasonable suspicion that Defendant was concealing a weapon or evidence, and the location, manner, and scope of the search were reasonable under the circumstances. Invasive, under-clothing searches remain the exception, and this Opinion is not to be read as an approval of the incorporation of an under-clothing search into the typical search incident to arrest. We reject any suggestion that our holding would permit invasive searches for all felony drug offenses, as such would be inconsistent with our preference for case-by-case reasonableness analyses based on the totality of the circumstances. See, e.g., Leyva, 2011-NMSC-009, ¶ 54. III.CONCLUSION {22} For the foregoing reasons, we reverse the opinion of the Court of Appeals. Because we granted certiorari only on the issue of whether the search violated Defendant’s rights under the Fourth Amendment, we remand this case to the Court of Appeals for consideration of the other issues Defendant raised on appeal. {23} IT IS SO ORDERED. PATRICIO M. SERNA, Justice WE CONCUR: CHARLES W. DANIELS, Chief Justice PETRA JIMENEZ MAES, Justice RICHARD C. BOSSON, Justice EDWARD L. CHÁVEZ, Justice Certiorari Denied, May 19, 2011, No. 32,864 From the New Mexico Court of Appeals Opinion Number: 2011-NMCA-064 Topic Index: Appeal and Error: Standard of Review Constitutional Law: Suppression of Evidence Criminal Law: Controlled Substances; and Motor Vehicle Violations Criminal Procedure: Motion to Suppress; and Pretextual Stop Statutes: Interpretation; and Legislative Intent STATE OF NEW MEXICO, Plaintiff-Appellant, versus DAVID MAES, Defendant-Appellee. No. 29,884 (filed: January 19, 2011) APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY Sheri A. Raphaelson, District Judge Gary K. King Attorney General Santa Fe, New Mexico M. Anne Kelly Assistant Attorney General Albuquerque, New Mexico for Appellant Opinion Celia Foy Castillo, Judge {1}This case requires us to determine whether a Basic Duty Uniform (BDU) constitutes a “uniform” as that term is used in NMSA 1978, Section 66-8-124(A) (2007), and NMSA 1978, Section 66-8-125(C) (1978), both of which require officers to be in “uniform” when carrying out an arrest for traffic and motor vehicle code violations. We conclude that a BDU is a uniform and reverse. I.BACKGROUND {2}In December of 2008, Defendant was charged with and indicted on one count of possession with intent to distribute an imitation controlled substance in violation of NMSA 1978, Section 30-31A-6 (1983), and one count of possession of drug paraphernalia in violation of NMSA 1978, Section 30-31-25.1 (2001). The events leading to these charges occurred in October of 2007 in the Chimayo area of New Mexico. The following facts are not disputed. {3}Two State police officers wearing BDUs Nancy L. Simmons Law Offices of Nancy L. Simmons, P.C. Albuquerque, New Mexico for Appellee and driving an unmarked vehicle were engaged in a law enforcement operation in the Chimayo area when they witnessed a driver commit traffic infractions and decided to conduct a traffic stop. Defendant was the owner and operator of that vehicle. After performing a license plate check, the officers learned that Defendant had outstanding warrants and arrested him. The officers performed a search incident to arrest and discovered imitation controlled substances and drug paraphernalia. {4}Defendant filed a pretrial motion to suppress all of the evidence underlying the charges. In that motion, Defendant cited Sections 66-8-124(A) and -125(C) and argued that these statutes require law enforcement officers to be in uniform when they make traffic stops and arrests. Defendant asserted that the officers violated these statutes, claimed that the officers were not in uniform when they stopped and arrested him, and argued that suppression was required. Alternatively, Defendant argued that the arrest was the result of a pretextual stop and that the evidence should be suppressed for this independent reason. The State responded that the statutes Defendant cited were inapplicable and countered that the stop was not pretextual. {5}In its order on Defendant’s motion, the district court concluded that Sections 66-8-124(A) and -125(C) were applicable and that these statutes required the officers be in uniform at the time they conducted the traffic stop and arrested Defendant. The district court then concluded that the BDUs the officers were wearing at that time did not constitute uniforms as contemplated by the statutes and granted the motion to suppress. The district court did not address Defendant’s pretext argument. The State appeals. II.DISCUSSION {6} This matter comes to us from the district court’s ruling on the Defendant’s motion to suppress. Our standard of review in that context is well settled—a trial court’s ruling on a motion to suppress presents us with a mixed question of fact and law whereby “[t]his Court reviews factual findings under a substantial evidence standard, viewing the facts in the light most favorable to the prevailing party, and we review de novo whether the district court correctly applied the law to the facts.” State v. Slayton, 2009NMSC-054, ¶ 11, 147 N.M. 340, 223 P.3d 337. In this case, the district court’s decision to grant Defendant’s motion was based on its interpretation of Sections 66-8-124(A) and -125(C). “Statutory interpretation is a question of law, which this Court reviews de novo.” State v. Torres, 2006-NMCA-106, ¶ 5, 140 N.M. 230, 141 P.3d 1284 (internal quotation marks and citation omitted). “The fundamental rule in construing statutes is to ascertain and give effect to the intention of the [L]egislature.” State v. Archuleta, 118 N.M. 160, 162, 879 P.2d 792, 794 (Ct. App. 1994) (internal quotation marks and citation omitted). {7}Section 66-8-124(A) provides that “[n]o person shall be arrested for violating the Motor Vehicle Code . . . or other law relating to motor vehicles punishable as a misdemeanor except by a commissioned, salaried peace officer who, at the time of arrest, is wearing a uniform clearly indicating the peace officer’s official status.” The portions of Section 66-8-125(C) pertinent here provide that “[m]embers of the New Mexico state police, sheriffs, and their salaried deputies and members of any municipal police force may not make arrest for traffic violations if not in uniform[.]” {8}Although the State argued below that these statutes are inapplicable because there was no arrest, on appeal, the State recognizes that the term “arrest” also includes temporary detentions. See Slayton, 2009- Bar Bulletin - July 20, 2011 - Volume 50, No. 28 25 NMSC-054, ¶¶ 18-20 (holding that the term “arrest,” as used in Section 66-8-124(A), includes temporary detentions). Consequently, the State’s contention is that the BDUs worn by the officers in this case are uniforms and that the district court erred in concluding otherwise. We therefore restrict our analysis to the narrow issue presented by the State’s argument: whether BDUs are uniforms as that term is used in Sections 66-8-124(A) and -125(C). The State also argues, in the alternative, that the exclusionary rule is inapplicable even if the statutes in question were violated. We do not reach the State’s second argument because, as we explain below, we hold that the BDU worn by the officers in this case is a “uniform.” {9}We previously examined the uniform requirement of Sections 66-8-124(A) and -125(C) in Archuleta, 118 N.M. at 16264, 879 P.2d at 794-96. The defendant in Archuleta was convicted of speeding. Id. at 161, 879 P.2d at 793. He appealed, asserting that the speeding citation he received was issued in violation of Sections 66-8-124(A) and -125(C). Archuleta, 118 N.M. at 161, 879 P.2d at 793. The defendant claimed that the off-duty officer who issued the citation was not wearing a uniform but only a windbreaker with the words “Albuquerque Police” printed on it. Id. Interpreting the statutes, we first discerned that the Legislature intended that officers wear uniforms plainly indicating their official status so as to enable motorists to be certain that any officers who stop them are, in fact, police officers. Id. at 162, 879 P.2d 795. Additionally, we concluded that the statutory history of Section 66-8-124 shows that “the [L]egislature intended the definition of ‘uniform’ to be less restrictive, no doubt recognizing that modern day police officers may have more than one uniform or may on occasion wear combinations thereof.” Id. at 163, 879 P.2d at 795. We then adopted two alternative and independent tests for determining whether an officer is in uniform. Id. The first of these tests is “whether there are sufficient indicia that would permit a reasonable person to believe the person purporting to be a peace officer is, in fact, who he claims to be[.]” Id. The second is “whether the person stopped and cited either personally knows the officer or has information that should cause him to believe the person making the stop is an officer.” Id. {10}In Archuleta, we concluded that both tests were satisfied. Id. First, we determined that a reasonable person would have understood that the off-duty officer was in fact a policeman because he was wearing a 26 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 windbreaker with clear police markings on it and was driving a marked police car. Id. As to the second test, we observed that it was clear the defendant understood that the offduty officer was a police officer because the defendant, who was himself a former police officer, confronted the off-duty officer at one point, asserted that he had familiarity with police procedures, and protested that the off-duty officer had no authority to issue a citation because the off-duty officer was not wearing a uniform. Id. We apply the Archuleta analysis to the present case. {11} Here, the district court made findings regarding the stop and described the BDU based on the exhibit of a photo of one of the arresting officers in this case wearing his BDU. The district court then concluded that the “uniform” referenced in the applicable statutes does not include the clothing the officer was wearing at the time of this incident—the BDU. The exhibit and the court’s description reflect that the BDU is comprised of the following: black pants; black boots; a black vest to which is attached an electronic communication device with a chord; a black long-sleeve shirt with the words “STATE POLICE” in large bold yellow lettering on the sleeves, the word “POLICE” in large bold white lettering on the right shoulder area, a smaller triangular cloth patch with the words “STATE POLICE” also on the right shoulder; and, on the back of the shirt, the word “POLICE” in large bold white lettering in two places; an equipment belt, holster, and firearm; and a metal police badge hung from one of the front pockets. Evaluating this outfit in light of Archuleta, we apply the first test and conclude that a reasonable person would believe that an individual wearing a BDU is, in fact, a police officer. The word police is printed in large lettering in several locations on the garments comprising a BDU and an individual donning a BDU has equipment on their person consistent with what a police officer would possess. Accordingly, we hold that a BDU is a uniform as that term is used in Sections 66-8-124(A) and -125(C) and that the district court erred in concluding otherwise. {12} Defendant contends that the time of day, in this case night, and the type of police vehicle, in this case an unmarked police vehicle, affect the analysis regarding the uniform. Defendant focuses on the difficulty in seeing black uniforms at night and that the flashing lights on the vehicle were not sufficient to lead a reasonable person to the conclusion that the people in the vehicle were law enforcement officers. While we agree that black uniforms might be difficult to see at night, it is the markings on the uniforms in yellow and white that indicate the status of the wearer. There is no evidence that the markings were not visible. Additionally, whether the vehicle was marked or unmarked does not affect our conclusion that the BDU is a uniform. {13} Further, it appears that the district court reached the conclusion that a BDU is not a uniform because it found the equipment belt and badge were not visible enough and because the uniform could, in the district court’s judgment, be easily manufactured by someone wishing to impersonate a police officer. As discussed above, the Legislature intended the definition of the term “uniform” to be unrestrictive. Archuleta, 118 N.M. at 163, 879 P.2d at 795 (observing that the Legislature intended the definition of “uniform” to be less restrictive). The district court’s analysis appears to have taken the opposite view and considered the term uniform in its most restrictive form. This was error. We also addressed the district court’s second concern—that a BDU could be fabricated— in Archuleta where the defendant argued that the term “uniform” must be construed narrowly so as to protect the public from potential police impersonators. Id. at 163-64, 879 P.2d at 795-96. We were unpersuaded and concluded that this argument did not withstand scrutiny. Id. Law enforcement uniforms, we explained, are now readily available and, thus, there is little reason to suspect that even a full officer’s attire could not be easily purchased. Id. In light of this precedent, we conclude that the district court erred to the extent that it decided that a BDU is not a uniform because part of the uniform was not sufficiently visible and because a BDU can be fabricated. {14} In conclusion, we hold that the district court erred in granting Defendant’s motion to suppress. A BDU is a uniform as that term is used in Sections 66-8-124(A) and -125(C). Neither statute was violated here. In light of this conclusion, we need not address the State’s argument concerning the applicability of the exclusionary rule. III.CONCLUSION {15} For the foregoing reasons, the district court’s order granting Defendant’s motion to suppress is reversed. {16} IT IS SO ORDERED. CELIA FOY CASTILLO, Judge WE CONCUR: JAMES J. WECHSLER, Judge LINDA M. VANZI, Judge Certiorari Denied, May 6, 2011, No. 32,956 From the New Mexico Court of Appeals Opinion Number: 2011-NMCA-065 Topic Index: Constitutional Law: Due Process; and Ex Post Facto Criminal Law: Accessory; Aiding or Abetting; and Vehicular Homicide Statutes: Interpretation STATE OF NEW MEXICO, Plaintiff-Appellant, versus ALFRED LOVATO, Defendant-Appellee. No. 30,399 (filed: March 18, 2011) APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY Michael E. Vigil, District Judge Gary K. King Attorney General Santa Fe, New Mexico Ralph E. Trujillo Assistant Attorney General Albuquerque, New Mexico for Appellant Opinion Linda M. Vanzi, Judge {1}The State appeals from the district court order dismissing with prejudice one count of homicide by vehicle, NMSA 1978, Section 66-8-101(C) (2004), and one count of accident involving death or personal injuries, NMSA 1978, Section 66-7-201(C) (1989). Although Defendant was not the driver of the vehicle, Defendant was charged pursuant to the parties to a crime provision of the Motor Vehicle Code. See NMSA 1978, § 668-120 (1978). In dismissing the charges against Defendant, the district court concluded that this Court’s decision in State v. Marquez, 2010-NMCA-064, 148 N.M. 511, 238 P.3d 880, cert. quashed, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182, was an unforeseeable interpretation of Section 66-8-120, could not be retroactively applied to Defendant, and passengers would not have had fair notice, prior to Marquez, that the conduct Defendant engaged in exposed him to criminal prosecution. On appeal, the State contends that Section 66-8-120 “provided a person Sam Bregman Eric Loman Bregman & Loman, P.C. Albuquerque, New Mexico for Appellee of ordinary intelligence fair notice that it was a crime to aid and abet vehicular homicide[,]” and application of Section 66-8-120 to the facts of Defendant’s case would not violate due process. Having considered the arguments raised by the State on appeal, we reverse the district court and remand for the charges against Defendant to be reinstated. BACKGROUND {2}The State alleges that on the evening of November 25, 2008, and in the early morning hours of November 26, 2008, Carlos Fierro and Defendant went out drinking. According to the State, it was Defendant’s idea to go out and get a few drinks and smoke a cigar. The two men first consumed alcohol at the Rio Chama Steakhouse, and then Fierro drove the two of them to Willie’s Blues Bar at Defendant’s encouragement. The two men consumed more alcohol at Willie’s Blues Bar—alcohol purchased by Defendant. After leaving the bar, Fierro struck William Tenorio with his vehicle as Tenorio was crossing the street outside of the bar. Witnesses testified that Fierro and Defendant drove away from the scene of the accident. Fierro was later identified as the driver, and Defendant was identified as the passenger of the vehicle that struck Tenorio. After Fierro’s car was stopped by police, the police concluded that Fierro was intoxicated. Tenorio later died from the injuries he sustained from being hit by Fierro’s vehicle. {3}On June 3, 2009, subsequent to this Court issuing its opinion in Marquez, the State filed charges against Defendant on a theory of accomplice liability under Section 66-8-120. The district court dismissed the charges on the basis that Marquez could not be retroactively applied to Defendant. The district court found that Defendant did not have fair notice that his conduct, which occurred prior to Marquez being decided, exposed him to the possibility of criminal prosecution. DISCUSSION This Court’s Decision in Marquez {4}We begin our analysis by first examining this Court’s decision in Marquez. In Marquez, we were presented with the issue of whether there was “such a charge as party to the crime of homicide by a vehicle and great bodily injury by a vehicle.” Marquez, 2010-NMCA-064, ¶ 1. We looked to the statutory language of Section 66-8-101(C) and Section 66-8-120, established case law regarding accessory liability under the criminal code, and case law and commentary defining the requisite mens rea for homicide by vehicle, and concluded that a defendant could aid and abet in the crime of homicide by vehicle or great bodily injury by vehicle. Marquez, 2010-NMCA-064, ¶¶ 8-15. {5}Section 66-8-101(C) provides: A person who commits homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or while under the influence of any drug or while violating [NMSA 1978, Section 66-8-113 (1987)] is guilty of a third degree felony. {6}Section 66-8-120 provides: Every person who commits, attempts to commit, conspires to commit or aids or abets in the commission of any act declared herein to be a crime, whether individually or in connection with one or more other persons or as a principal, agent or accessory, shall be guilty of such offense, and every person who falsely, fraudulently, forcibly or willfully induces, causes, coerces, requires, permits or directs another to violate any provision of Bar Bulletin - July 20, 2011 - Volume 50, No. 28 27 the Motor Vehicle Code [Section 66-1-1] or any other law of this state pertaining to motor vehicles is likewise guilty of such offense. {7}We pointed out in Marquez that Section 66-8-120 makes it a crime to aid or abet in violation of any provision of the Motor Vehicle Code. Marquez, 2010NMCA-064, ¶ 8. Further, in defining how a person goes about aiding or abetting in homicide by vehicle or great bodily injury by vehicle, our analysis relied on pre-existing case law discussing accessory liability. We stated that we had previously “interpreted the accessory provisions of the Criminal Code as requiring that the accessory share the criminal intent of the principal and that there be a community of purpose and partnership in the unlawful undertaking.” Id. ¶ 9 (internal quotation marks and citation omitted). We further noted that in order to constitute a “community of purpose and partnership” someone who aids and abets must do more than merely be present; instead, that person’s “[p]resence must be accompanied by some outward manifestation or expression of approval, or shared purpose.” Id. ¶¶ 11, 13. Finally, we acknowledged that prior case law identified the requisite criminal intent for homicide by vehicle as conscious wrongdoing or the “purposeful doing of an act that the law declares to be a crime.” Id. ¶ 12 (internal quotation marks and citation omitted). Consequently, in Marquez, this Court concluded that based on the defendant’s knowledge that the driver was intoxicated, evidenced by the fact that they were refused service at two bars and by the defendant’s admissions after the accident that he knew the driver was drunk, the defendant’s encouragement of the driver to drive his vehicle although intoxicated, and the defendant’s purchase of alcohol consumed in the vehicle just prior to the accident, the defendant had aided and abetted in the crime of homicide by vehicle or great bodily injury by vehicle. Id. ¶ 17. The District Court Erred in Dismissing the Charges Against Defendant {8}In the district court order granting Defendant’s motion to dismiss the charges against him, the district court concluded: [P]assengers simply could not have been on notice or had fair warning of the standards set forth in Marquez. Assuming for purposes of this [o]rder that Defendant’s actions were the same as those of the defendant in Marquez, that he shared the driver’s criminal intent, and that 28 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 all factual issues were resolved in favor of the State, he could not have had fair notice prior to Marquez of the criminal liability defined by the standards set forth in that case. In support of its ruling, the district court stated that, prior to Marquez, there were no established standards as to the requisite mens rea for homicide by vehicle or as to what level of participation would subject a passenger to criminal prosecution, and it was only by means of this Court’s decision in Marquez that these standards were established. {9}“We have previously considered the due process implications of retroactively applying the interpretation of a criminal statute to a defendant whose conduct, at the time of the alleged offense, did not fall under the statute.” State v. Myers, 2010NMCA-007, ¶ 16, 147 N.M. 574, 226 P.3d 673, cert. granted, 2010-NMCERT-001, 147 N.M. 674, 227 P.3d 1056; see also State v. Alderette, 111 N.M. 297, 298, 804 P.2d 1116, 1117 (Ct. App. 1990). In doing so, we have adhered to the basic principle that “a criminal statute must give a person of ordinary intelligence fair notice of the conduct that the statute criminalizes or it will violate the Due Process Clause of the Fourteenth Amendment.” Myers, 2010NMCA-007, ¶ 15. In Myers, we looked to Bouie v. City of Columbia, 378 U.S. 347 (1964), for guidance in determining whether a subsequent judicial interpretation applied retroactively can offend due process. Myers, 2010-NMCA-007, ¶ 15. There, we stated, “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids.” Myers, 2010-NMCA-007, ¶ 15 (internal quotation marks and citation omitted). “An ex post facto law has been defined . . . as one that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action, or that aggravates a crime, or makes it greater than it was, when committed.” Alderette, 111 N.M. at 300, 804 P.2d at 1119 (alteration in original) (internal quotation marks and citation omitted). Thus, we stated in Myers that “[i]f a state legislature is forbidden from passing such a law, it must follow that a [court] is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” 2010-NMCA-007, ¶ 15 (internal quotation marks and citation omitted). We further stated, If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect. Otherwise, a criminal defendant is deprived of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime. Id. (internal quotation marks and citations omitted). {10} In determining whether application of a new construction of a criminal statute would violate due process, our task is to determine whether the new interpretation was foreseeable. Id. ¶ 18; see State v. Johnson, 2001-NMSC-001, ¶ 14, n.4, 130 N.M. 6, 15 P.3d 1233 (“The test in determining whether such an interpretation and retroactive application of a statute offends due process is whether the construction actually given the statute was foreseeable.”). If this Court’s interpretation of Section 668-120 in Marquez was foreseeable, then Defendant was on notice that his conduct was arguably in violation of the law and there is no due process violation. On the other hand, if our interpretation was unforeseeable, the retroactive application of that interpretation to Defendant’s conduct would violate his right to due process. {11} The State argues that, unlike other cases in which a judicial interpretation has been held to violate due process if retroactively applied, this Court’s decision in Marquez neither overturned preexisting case law nor constituted a judicial enlargement of a criminal statute. We find the State’s argument persuasive. In Alderette, this Court overruled a previous judicial interpretation of the escape from jail statute. 111 N.M. at 298, 804 P.2d at 1117. The earlier decision of this Court had held that the escape from jail statute only applied to those persons committed on a criminal charge. Id. We subsequently overruled that decision and held that “[i]f a person is committed to a jail by lawful authority and thereafter escapes from that jail, he can be charged with escape from jail.” Id. at 299, 804 P.2d at 1118. Because this Court’s interpretation of the escape from jail statute in Alderette created a new base of conduct that fell within the statute, we held that its interpretation of the statute could not be retroactively applied to the defendant. Id. at 300, 804 P.2d at 1119. {12} Similarly, in Bouie, the United States Supreme Court held that the South Carolina Supreme Court’s interpretation of a statute regarding criminal trespass could not be retroactively applied to the defendants where the language of the statute did not proscribe the petitioner’s conduct. 378 U.S. at 362-63. The language prohibited persons from entering the property of another after notice not to enter, but the South Carolina court interpreted the statute as also criminalizing the act of remaining on the premises after being asked to leave. Id. at 355, 360. There, the United States Supreme Court held that “[t]he crime for which the[] petitioners stand convicted was not enumerated in the statute at the time of their conduct.” Id. at 363 (internal quotation marks omitted). Accordingly, the South Carolina Supreme Court’s interpretation of its criminal trespass statute acted as a judicial enlargement of the statute, criminalizing a new base of conduct, thus violating due process. Id. at 362-63. {13} Such a judicial enlargement did not occur in the present case. Here, the plain language of the statute indicates that it is a crime to aid and abet in a violation of the Motor Vehicle Code. This Court in Marquez neither changed a previous interpretation of Section 66-8-120 nor enlarged the scope of the conduct criminalized by our Legislature’s enactment of Section 66-8-120. Instead, this Court relied on pre-existing case law to define common terminology contained in the statute. Our interpretation of Section 66-8-120 was neither “unexpected” nor “indefensible by reference to the law which had been expressed prior to the conduct in issue[.]” Myers, 2010-NMCA-007, ¶ 15 (internal quotation marks and citation omitted). Thus, we conclude that this Court’s interpretation of Section 66-8-120 as set forth in Marquez was foreseeable. See Johnson, 2001-NMSC-001, ¶ 14, n.4 (“The Court engages in an impermissible interpretation of a statute when the interpretation is so unexpected, and so outlandish, that no reasonable person could have expected it.” (alteration, internal quotation marks, and citation omitted)). {14} To the extent the district court concluded that, prior to Marquez, passengers were not on “notice that they would be subject to criminal liability as a party to the crime of homicide by vehicle while under the influence of intoxicating liquor,” we construe the district court’s order as concluding that Section 66-8-120 was unconstitutionally vague. Similar to our analysis above of whether Marquez was a foreseeable interpretation of Section 66-8120, “[t]he vagueness doctrine is based on the principle of fair notice in that no one may be held criminally responsible and subject to criminal sanctions for conduct without fair warning as to the nature of the proscribed activity.” Santillanes v. State, 115 N.M. 215, 221 n.5, 849 P.2d 358, 364 n.5 (1993). “[A] statute denies constitutional due process if it is so vague that persons of common intelligence must necessarily guess at its meaning.” State v. Rogers, 94 N.M. 527, 529, 612 P.2d 1338, 1340 (Ct. App. 1980) (internal quotation marks and citation omitted). {15} Section 66-8-120 clearly sets out that it is a crime for a person to aid and abet in a violation of the Motor Vehicle Code. Section 66-8-101(C), which provides that it is a third degree felony to commit homicide by vehicle or great bodily injury by vehicle while under the influence of intoxicating liquor or drug, is contained in the Motor Vehicle Code. To the extent Marquez set forth standards for applying Section 66-8-120 by examining how we have interpreted accessory provisions under the Criminal Code, the Legislature’s failure to define these standards within Section 66-8-120 does not render the statute unconstitutionally vague. To the contrary, “[t]he [L]egislature is not required to write statutes for the understanding of persons who cannot or will not apply ordinary meanings to plain words[.]” Rogers, 94 N.M. at 529, 612 P.2d at 1340. “If the language used makes the statute understandable and sensible, that is all that is necessary to uphold it as valid.” Id. We therefore conclude that Section 66-8-120 provided fair notice that the conduct Defendant engaged in could expose him to criminal prosecution. {16} Finally, the fact that Marquez was the first time Section 66-8-120 had been interpreted by an appellate court in this state is of little consequence to our decision. “A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994). When this Court engages in the judicial construction of a statute “it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Id. at 313, n.12. Because we conclude that this Court’s interpretation of Section 66-8-120 in Marquez was foreseeable, we reverse the district court order dismissing the charges against Defendant with prejudice. CONCLUSION {17} For the foregoing reasons, we reverse and remand to the district court for the charges against Defendant to be reinstated. {18} IT IS SO ORDERED. LINDA M. VANZI, Judge WE CONCUR: CELIA FOY CASTILLO, Chief Judge JAMES J. WECHSLER, Judge Bar Bulletin - July 20, 2011 - Volume 50, No. 28 29 Certiorari Denied, May 11, 2011, No. 32,963 From the New Mexico Court of Appeals Opinion Number: 2011-NMCA-066 Topic Index: Associations and Societies: Associations, General Civil Procedure: Summary Judgment Government: Counties Insurance: Uninsured or Underinsured Motorist Statutes: Interpretation; Legislative Intent; and Rules of Construction CLARA ROMERO, Plaintiff-Appellant, versus BOARD OF COUNTY COMMISSIONERS OF COUNTY OF TAOS, and the NEW MEXICO ASSOCIATION OF COUNTIES, Defendants-Appellees. No. 29,524 (filed: March 21, 2011) APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY Sam B. Sanchez, District Judge Samuel M. Herrera The Herrera Firm, P.C. Taos, New Mexico for Appellant Opinion James J. Wechsler, Judge {1}We address in this appeal whether the requirements of NMSA 1978, Section 665-301(A) (1983), pertaining to uninsured and underinsured motorist (UM/UIM) coverage, apply to a group of counties that pool their financial resources under NMSA 1978, Section 3-62-1 (1986) and NMSA 1978, Section 3-62-2 (1986) to satisfy claims against the individual counties of the group. We hold that Section 66-5-301(A) does not apply and affirm the district court’s grant of summary judgment. BACKGROUND {2}Plaintiff Clara Romero, an employee of Defendant Taos County (the County), was injured in a motor vehicle accident while she was driving a vehicle belonging to the County in the course of her employment. She was struck by another vehicle and was not at fault. Plaintiff received a settlement for the policy limits of the insurance policy of the driver of the other vehicle. She also received workers’ compensation benefits. Plaintiff made a 30 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 William D. Slease Jonlyn M. Martinez Slease & Martinez, P.A. Albuquerque, New Mexico for Appellees claim for UM/UIM coverage against the County’s insurance coverage. {3}The County provided coverage for its losses through a coverage agreement with Defendant New Mexico Association of Counties (the Association of Counties). Through the Association of Counties, member counties pool contributions to a fund (the multi-line fund or pool) to provide coverage for property and liability losses. The coverage agreement specified the coverage provided by the Association of Counties through the multi-line pool. The coverage agreement did not include UM/UIM coverage. {4}Plaintiff filed a declaratory judgment action against the County and the Association of Counties, requesting in part a determination that, based on Section 66-5301(A), the County had coverage for, and the Association of Counties was obligated to pay, UM/UIM benefits to Plaintiff. Defendants filed a motion for summary judgment, arguing that the County did not have UM/UIM insurance and that the Association of Counties was immune from suit. Plaintiff filed a counter-motion, contending in part that Section 66-5-301(A) and public policy required the Association of Counties to provide UM/UIM coverage, and the County did not waive such coverage. The district court denied Plaintiff’s motion and granted Defendants’ motion. It stated that the County was neither obligated to purchase nor could it purchase UM/UIM coverage to compensate Plaintiff for her injuries. Plaintiff appeals from the district court’s order. APPLICATION OF SECTION 66-5301(A) TO THE ASSOCIATION OF COUNTIES {5}Plaintiff contends that the district court erred in granting Defendants’ motion for summary judgment and in denying her motion. We review the district court’s grant of a motion for summary judgment de novo to determine whether the district court was correct that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Tafoya v. Rael, 2008-NMSC-057, ¶ 11, 145 N.M. 4, 193 P.3d 551. {6}Plaintiff states that the issue in this case is whether the Association of Counties is obligated to offer UM/UIM coverage to the County and, if so, whether the County waived UM/UIM coverage. She argues that the law of New Mexico, as stated in Section 66-5-301(A), requires an insurance provider to offer UM/UIM coverage in all automobile insurance policies unless the named insured rejects such coverage. Thus, Plaintiff concludes that because the County did not reject UM/UIM coverage, the County had such coverage as a result of its coverage agreement with the Association of Counties. {7}Plaintiff is correct that Section 66-5301(A) generally requires an insurer to provide UM/UIM coverage as part of an automobile liability insurance policy unless rejected by the insured. See Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990) (stating that public policy embodies making uninsured motorist overage part of automobile liability insurance policies and that an insured may reject such coverage). We therefore agree with Plaintiff that our focus should be on whether Section 66-5-301 applies to the Association of Counties. Plaintiff made this argument to the district court, and, although the district court did not expressly rule on this issue, we can affirm if the district court was correct for any reason that was before it on the basis of the presentations of the parties. See Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (noting that an appellate court may “affirm a district court ruling on a ground not relied upon by the district court, but will not do so if reliance on the new ground would be unfair to appellant” (alteration, internal quotation marks, and citation omitted)). {8}We view the matter as one of legislative intent. See Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 15, 149 N.M.162, 245 P.3d 1214 (stating that the “primary goal when interpreting statutes is to further legislative intent”). To ascertain legislative intent, we look to the words used by the Legislature in the statutes at issue as “the primary indicator of legislative intent.” High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (internal quotation marks and citation omitted). We seek to harmonize our reading of the relevant statutes to give effect to each of them. See State v. Davis, 2003-NMSC-022, ¶ 12, 134 N.M. 172, 74 P.3d 1064 (“All of the provisions of a statute, together with other statutes in pari materia, must be read together to ascertain legislative intent.”). We interpret the UM/UIM statute liberally to implement its remedial purpose. Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 14, 147 N.M. 678, 228 P.3d 462. {9}The statutes relevant to our analysis are Section 66-5-301(A), Section 3-621, Section 3-62-2(A), and NMSA 1978, Section 66-5-207(A) (1998). Section 66-5-301(A) requires automobile liability insurance policies to provide UM/UIM coverage and reads, in relevant part: No motor vehicle or automobile liability policy insuring against loss . . . shall be delivered or issued for delivery in New Mexico with respect to any motor vehicle registered or principally garaged in New Mexico unless coverage is provided . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . . , according to the rules and regulations promulgated by, and under provisions filed with and approved by, the superintendent of insurance. Sections 3-62-1 and 3-62-2(A) address the manner in which public bodies, including counties, may provide for their insurance needs. Section 3-62-1 permits New Mexico counties to self-insure through self-insurance reserves as an alternative to, or in combination with, insurance se- cured by “any other method provided by law.” Section 3-62-2(A) permits two or more counties to pool their self-insured reserves, claims, or losses. Section 3-622(A) provides that such pooling “shall not be construed to be transacting insurance or otherwise subject to the provisions of the laws of this state regulating insurance or insurance companies.” Section 66-5207(A) exempts a motor vehicle owned by a political subdivision of a state, such as the County, from the Mandatory Financial Responsibility Act (MFRA), NMSA 1978, Sections 66-5-201 to -239 (1978, as amended through 2003). {10} Sections 3-62-1 and 3-62-2(A) are inconsistent with Plaintiff’s position that Section 66-5-301(A) requires the Association of Counties to provide the County UM/UIM coverage. The Association of Counties provides the mechanism by which its member counties self-insure through their pooled reserves. The Legislature recognized that this type of self-insurance coverage afforded by the Association of Counties is not the same as other liability insurance by exempting it from state laws that regulate insurance and insurance companies. Section 3-62-2(A). In the general sense, Section 66-5-301(A) is such a law because it regulates the terms of a motor vehicle or automobile liability policy by requiring insurance companies to provide UM/UIM coverage. With this reading of Section 66-5-301(A), the Association of Counties has no obligation to provide UM/UIM coverage to its selfinsuring members. {11} We acknowledge that the Legislature’s use of the word “regulating” with respect to laws regulating insurance and insurance companies may be ambiguous in that it might arguably only refer on its face to laws establishing administrative regulation. However, when we read Section 66-5-301(A) not only in conjunction with Sections 3-62-1 and 3-62-2(A) but also with the provisions of the MFRA, the legislative intent is clear that Section 66-5301(A) does not apply to the Association of Counties coverage. See Dewitt v. RentA-Ctr., Inc., 2009-NMSC-032, ¶ 29, 146 N.M. 453, 212 P.3d 341 (stating that to the extent statutory language is ambiguous, courts can consider principles of statutory construction to ascertain legislative intent). {12} The purpose of the MFRA “is to require residents of New Mexico who own and operate motor vehicles upon the highways of the state either to have the ability to respond in damages to accidents arising out of the use and operation of a motor vehicle or to obtain a motor vehicle insurance policy.” Section 66-5-201.1. The MFRA requires motor vehicle owners to have insurance in specified minimum amounts or evidence of financial responsibility in specified minimum amounts to permit anyone to operate a motor vehicle on the streets or highways of the state. Sections 66-5-205(A), -208, and -215(A). It specifically exempts motor vehicles owned by “any state or any political subdivision of a state.” Section 66-5-207(A). The County is a political subdivision of the state of New Mexico. El Dorado at Santa Fe, Inc. v. Bd. of Cnty. Comm’rs of Santa Fe Cnty., 89 N.M. 313, 317, 551 P.2d 1360, 1364 (1976) (“A county is but a political subdivision of the [s]tate, and it possesses only such powers as are expressly granted to it by the Legislature, together with those necessarily implied to implement those express powers.”). {13} By virtue of its exemption from the MFRA, the County is not required to purchase motor vehicle liability insurance or have evidence of financial responsibility in order to permit its vehicles to operate on New Mexico roads. Because the Legislature exempted the County from any obligation to purchase any motor vehicle liability insurance, the Legislature certainly did not intend that the County have any obligation to acquire UM/UIM coverage. {14} This conclusion, however, does not fully address Plaintiff’s argument because Section 66-5-301(A) places the burden on the insurance provider to include UM/ UIM coverage and, arguably, even though the County as the recipient of the coverage had no obligation to obtain UM/UIM coverage, the Association of Counties still had the obligation to provide it. To be sure, Section 66-5-301(A) does not contain an exemption for insurance policies issued to political subdivisions of the state. Nevertheless, when we construe Section 66-5-301(A) in connection with the MFRA, the County’s exemption under the MFRA indicates that the Legislature did not intend the Association of Counties to have any obligation under Section 66-5-301(A) to offer UM/UIM coverage to the County. {15} “The rule that statutes in pari materia should be construed together has the greatest probative force in the case of statutes relating to the same subject matter passed at the same session of the Legislature.” Davis, 2003-NMSC-022, ¶ 12. Even though Section 66-5-301(A) Bar Bulletin - July 20, 2011 - Volume 50, No. 28 31 is not part of the MFRA, both the MFRA and Section 66-5-301(A) were originally enacted in 1978 and address required motor vehicle liability insurance. Both are designed to protect persons who are injured in motor vehicle accidents. The MFRA requires insurance or evidence of financial responsibility for motor vehicle owners and drivers so that they will be able to respond in damages to those injured in motor vehicle accidents. Sections 66-5201.1, -205. Section 66-5-301(A) further fulfills the MFRA purpose by requiring insurance coverage for uninsured and underinsured motorists unless the insured rejects such coverage. {16} When we read these statutes together, we believe that the Legislature intended the requirement of Section 66-5301(A) to apply to the insurance required under Section 66-5-205. Indeed, Section 66-5-301(A), in stating the necessary UM/ UIM coverage, specifically references the minimum limits of the MFRA. Thus, Section 66-5-301(A) does not specifically exempt the County because it need not 32 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 do so. The Legislature focused on the actions of the insurance provider in Section 66-5-301(A), not on those of the insured. Because the County was exempt from the MFRA requirements, even if the Association of Counties was an insurance provider under Section 66-5-301(A), an issue we do not decide, it was not required to offer the County UM/UIM coverage. {17} Contrary to our conclusion, Plaintiff makes the additional argument that public policy requires the Association of Counties to provide UM/UIM coverage. As a general matter, the public policy stated in Section 66-5-301(A) is “to make uninsured motorist coverage a part of every automobile liability insurance policy issued in this state, with certain limited exceptions.” Romero, 111 N.M. at 156, 803 P.2d at 245. Indeed, Section 66-5-301(A) was “intended to expand insurance coverage and to protect individual members of the public against the hazard of culpable uninsured motorists.” Progressive Nw. Ins. Co. v. Weed Warrior Servs., 2010NMSC-050, ¶ 5, 149 N.M. 157, 245 P.3d 1209 (internal quotation marks and citation omitted). However, the Legislature stated in Section 66-5-301(A) that there were limited exceptions to the required coverage, and it set forth countervailing public policy with respect to governmental entities in the MFRA and Sections 3-62-1 and 3-62-2(A). In the context of this case, involving a political subdivision of the state, the Legislature did not intend the general policy of Section 66-5-301(A) to apply. CONCLUSION {18} Section 66-5-301(A) does not require the Association of Counties to provide UM/UIM coverage to the County. We affirm the district court’s grant of summary judgment to Defendants. {19} IT IS SO ORDERED. JAMES J. WECHSLER, Judge WE CONCUR: MICHAEL E. VIGIL, Judge LINDA M. VANZI, Judge Certiorari Denied, May 20, 2011, No. 32,970 From the New Mexico Court of Appeals Opinion Number: 2011-NMCA-067 Topic Index: Appeal and Error: Preservation of Issues for Appeal; and Standard of Review Criminal Law: Fraud Jury Instructions: Criminal Jury Instructions; and Improper Jury Instructions STATE OF NEW MEXICO, Plaintiff-Appellee, versus YVETTE RODARTE, Defendant-Appellant. No. 29,956 (filed: April 18, 2011) APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Carl J. Butkus, District Judge Gary K. King Attorney General Andrew S. Montgomery Assistant Attorney General Santa Fe, New Mexico for Appellee Opinion Celia Foy Castillo, Chief Judge {1}Defendant challenges her conviction for fraudulent refusal to return leased property, in violation of NMSA 1978, Section 30-16-40(A)(3) (2006), on grounds that the jury instructions did not include a definitional instruction clarifying the meaning of the term “intent to defraud.” We affirm. BACKGROUND {2}In June 2006, Defendant leased home furnishings from Aaron’s Sales & Lease Ownership (Aaron’s) in Albuquerque, New Mexico. Aaron’s delivered the furniture to Defendant but never received payment. A manager at Aaron’s contacted Defendant and instructed her to either provide payment or return the furniture. Defendant did neither. Aaron’s then attempted to repossess the furniture but discovered that Defendant had moved from the address she provided. Aaron’s contacted the police in July 2006 and reported the furniture as stolen or fraudulently taken. Chief Public Defender Karl Erich Martell Assistant Appellate Defender Santa Fe, New Mexico for Appellant {3}Defendant was indicted in June 2007 on one count of fraudulent acts to obtain or retain possession of leased personal property with a value over $500 but not exceeding $2,500, in violation of NMSA 1978, Section 30-16-39(C) (2006) and, in the alternative, one count of fraudulent refusal to return leased property with a value over $500 but not exceeding $2,500, in violation of Section 30-16-40(A)(3). Defendant was tried before a jury in May 2009 and was found guilty of fraudulent refusal to return leased property. Defendant was acquitted on the other charge. She was sentenced to a conditional discharge and now appeals her conviction. DISCUSSION {4}On appeal, Defendant “claims error with the jury instruction for the charge on which she was convicted.” That charge was based on Section 30-16-40(A)(3), which provides: A person who, after leasing . . . personal property under a written agreement that provides for the return of . . . property to a particular place at a particular time and who, with intent to defraud the lessor of the . . . property, fails to return the . . . property to the place within the time specified, is guilty of a: .... fourth degree felony if the property . . . has a value of over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500)[.] There is no uniform jury instruction for this offense. At Defendant’s trial, both parties proposed instructions purporting to set forth the essential elements of this offense. The court rejected Defendant’s proposed instruction and included the State’s instruction. That instruction directed the jury in the following manner: For you to find [D]efendant guilty of fraudulent refusal to return leased property . . . , the [S] tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime: 1. [D]efendant rented or leased furniture through a written agreement that provided for the return of the personal property to a particular place at a particular time; 2. [D]efendant with intent to defraud Aaron’s of the property failed to return the personal property to the place within a specified time; 3. The furniture had a value over $500 but not more than $2,500; 4. This happened in New Mexico on or about the 9th day of June, 2006. {5}Defendant argues on appeal that this instruction was insufficient because the term “intent to defraud” was not defined. She claims that a reasonable juror would have been confused by the meaning of that term. She asks that we reverse her conviction and remand for a new trial. {6}“The standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved[,] we review the instructions for reversible error. If not, we review for fundamental error.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (citation omitted). {7}The State contends that the arguments Defendant now makes on appeal were not preserved in the district court. According Bar Bulletin - July 20, 2011 - Volume 50, No. 28 33 to the State, Defendant did not ask the trial court to issue a definitional instruction. Rather, the State claims Defendant asked the court to graft elements associated with the crime of fraud, see NMSA 1978, Section 30-16-6 (2006), onto the instructions for the crime with which Defendant was charged. This request, the State claims, was properly rejected by the trial court and is different and distinct from Defendant’s argument on appeal. {8}Our review of the record reveals that the State’s assertions are correct. Defendant’s proposed instruction included language from UJI 14-1640 NMRA, the uniform jury instruction for the crime of fraud. Defendant’s proposed instruction included the following: For you to find [D]efendant guilty of fraudulent refusal to return leased property . . . , the [S]tate must prove . . . : 1. [D]efendant[,] by way of words or conduct[,] made a promise she had no intention of keeping or misrepresented a fact to Aaron’s . . . , intending to deceive or cheat Aaron’s . . . ; 2. Because of the promise and Aaron[’s] reliance on it, [D] efendant obtained the furniture[.] These are not elements of the offense of fraudulent refusal to return leased property but are elements of the crime of fraud. Compare Section 30-16-40 with UJI 14-1640. Discussing this proposed instruction, Defendant stated the following at trial: With intent to defraud, I don’t believe that is sufficient to suggest that there is a specific intent and I would ask you to use my . . . proposed instruction number 2 because it adds the elements of fraud . . . . So I believe that you need to add the fraud language because it is included in the statute. The trial court rejected this request and gave the following explanation: It seems to me that what the [d] efense is essentially asking is that we engraved [sic] common law fraud concepts onto what’s a statutory offense. And I think the best thing and safest thing to do when we’re dealing with a statutory offense is to track the language of the statute and the State’s instruction does essentially that[.] {9}We conclude that Defendant failed to preserve the argument she raises on 34 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 appeal. See State v. Jernigan, 2006NMSC-003, ¶ 10, 139 N.M. 1, 127 P.3d 537 (“Generally, to preserve error on a trial court’s refusal to give a tendered instruction, the Appellant must tender a legally correct statement of the law.”). We observe that Defendant’s tendered instruction requires the State to prove that she committed fraud in obtaining the property, as well as in refusing to return the property. The charge relates only to the failure of Defendant to return the property. Further, we find no support in the record that would allow us to conclude that the district court understood that Defendant wanted a definitional instruction clarifying the term “intent to defraud.” See id. (“[I]f the record reflects that the judge clearly understood the type of instruction the [d]efendant wanted and understood the tendered instruction needed to be modified to correctly state the law, then the issue is deemed preserved for appellate review.”). Accordingly, we review Defendant’s argument for fundamental error. Benally, 2001-NMSC-033, ¶ 12 (stating that, if an issue regarding jury instruction has not been preserved, we review for fundamental error). {10} We will not “uphold a conviction if an error implicated a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.” State v. Barber, 2004-NMSC-019, ¶ 18, 135 N.M. 621, 92 P.3d 633 (internal quotation marks and citation omitted). The specific issue before us is whether the absence of a definitional instruction as to the term “intent to defraud” caused such a “fundamental unfairness” in Defendant’s trial. Id. (internal quotation marks and citation omitted). To answer this question, we evaluate “whether a reasonable juror would have been confused or misdirected by the jury instruction.” Id. ¶ 19. {11} Before examining Defendant’s arguments, we express our doubts that a jury would be confused or misdirected by the term “intent to defraud.” In State v. Probert, 19 N.M. 13, 16, 140 P. 1108, 1109 (1914), superseded by statute as recognized by State v. Peke, 70 N.M. 108, 371 P.2d 226 (1962), our Supreme Court reached the unremarkable conclusion that “[t]o do an act fraudulently is to do it with intent to cheat and defraud.” Probert, 19 N.M. at 16, 140 P. 1109. This somewhat circular reasoning does not reveal an analytical flaw. Rather, it illustrates that the terms “fraud” and “defraud” are readily understandable. In our view, Probert supports the conclusions that a reasonable juror would understand what the term “defraud” means and would, therefore, understand what must be present to have an “intent to defraud.” See id. at 16, 140 P. at 1109. We find further support for this conclusion in the crime of fraud by worthless checks and the uniform jury instruction associated with that offense. Intent to defraud is an essential element of fraud by worthless checks. See NMSA 1978, § 30-36-4 (1963). The uniform jury instruction associated with that offense defines “intent to defraud” as, simply, “[intent] to cheat or deceive.” UJI 141670 NMRA. A reasonable juror would not struggle to discern what the phrase “intent to defraud” means. We now turn to Defendant’s arguments. {12} Defendant presents five arguments on appeal. First, she observes that the uniform jury instruction for the crime of embezzlement, UJI 14-1641 NMRA, includes the term “fraudulently intended” and provides a definition for this term. This observation does little to resolve the question before us: whether a reasonable juror would be confused by the term “intent to defraud.” Defendant has provided us no authority that the term “fraudulently intended” in the embezzlement statute was defined because jurors could not reasonably be expected to understand the meaning of that term. Defendant’s first argument is unavailing. {13} Defendant’s second argument is premised on State v. Clifford, 117 N.M. 508, 873 P.2d 254 (1994) and State v. Green, 116 N.M. 273, 861 P.2d 954 (1993). She argues that these cases support her claim that the district court’s failure to provide a definitional instruction for the term “intent to defraud” was error. These cases do not so hold. In both Clifford and Green, the defendants were charged with embezzlement. Clifford, 117 N.M. at 510, 873 P.2d at 256; Green, 116 N.M. at 274, 861 P.2d at 955. One of the essential elements of this offense is “fraudulent intent.” Green, 116 N.M. at 277-78, 861 P.2d at 958-59. The jury instructions issued in both cases failed to include any reference to this essential element. Clifford, 117 N.M. at 511, 873 P.2d at 257; Green, 116 N.M. at 277-79, 861 P.2d at 958-60. Our Supreme Court concluded, in both cases, that this was reversible error. Clifford, 117 N.M. at 511-12, 873 P.2d at 257-58; Green, 116 N.M. at 277-79, 861 P.2d at 958-60. Green and Clifford do not apply here. At Defendant’s trial, all of the essential elements of the crime of fraudulent refusal to return leased property were included in the jury instructions. Defendant does not argue to the contrary. She instead claims that a further definitional instruction clarifying the term “intent to defraud” should have been issued. Neither Clifford nor Green stands for the proposition. {14} Defendant’s final argument is that jurors are neither appellate judges nor lawyers and, therefore, cannot be expected to understand what the term “intent to defraud” means. We disagree. Our inquiry is whether a reasonable juror would have been confused or misdirected by the instruction proffered. Barber, 2004-NMSC-019, ¶ 19. For the reasons previously stated, we are persuaded that a reasonable juror would understand the meaning of these words. In addition, Defendant has failed to direct us to any concrete evidence that the jury at Defendant’s trial was confused by the instructions. CONCLUSION {15} For the foregoing reasons, Defendant’s conviction is affirmed. {16} IT IS SO ORDERED. CELIA FOY CASTILLO, Chief Judge WE CONCUR: JAMES J. WECHSLER, Judge LINDA M. VANZI, Judge Bar Bulletin - July 20, 2011 - Volume 50, No. 28 35 Certiorari Denied, May 20, 2011, No. 32,981 From the New Mexico Court of Appeals Opinion Number: 2011-NMCA-068 Topic Index: Appeal and Error: Standard of Review Constitutional Law: Confession; and Double Jeopardy Criminal Law: Sexual Exploitation of Children Criminal Procedure: Confession; Judgment and Sentence; Merger of Offenses; and Mistrial STATE OF NEW MEXICO, Plaintiff-Appellee, versus JOHN LEESON, Defendant-Appellant. No. 29,716 (filed: April 18, 2011) APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY Jane Shuler Gray, District Judge Gary K. King Attorney General Santa Fe, New Mexico James W. Grayson Assistant Attorney General Albuquerque, New Mexico for Appellee Opinion Celia Foy Castillo, Chief Judge {1} Defendant John Leeson was convicted of sixteen counts of sexual exploitation of children in violation of NMSA 1978, Section 30-6A-3(D) (2007). On appeal, he claims that the district court erred in denying his motion to merge the counts, that the district court wrongly determined his confession was voluntary, and that the district court should have granted his motion for mistrial. We find no error in the proceedings below and affirm. BACKGROUND {2}Between February and October 2007, Defendant took numerous digital photographs of his live-in girlfriend’s two daughters. The children were under the age of thirteen at the time the photographs were taken. The photographs were not admitted into the record proper, but we discern from the record that they were highly sexually suggestive and involved, in part, close-ups of the children’s genitalia and buttocks. Defendant’s girlfriend inadvertently discov36 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 Liane E. Kerr Albuquerque, New Mexico for Appellant ered several of the images and reported the matter to the police. Defendant was arrested and, during a police interview, confessed to taking the photographs and further admitted that he had a “problem” and needed “counseling.” A subsequent search of Defendant’s computer revealed that he possessed many other sexualized images of children. {3}The State brought two separate cases against Defendant. The matter before us concerns only the photographs that Defendant took of the child victims. As to those photographs, Defendant was charged by amended criminal information with twenty counts of “Sexual Exploitation of Children (Manufacturing),” in violation of Section 30-6A-3(D). This statute provides, in relevant part, that “[i]t is unlawful for a person to intentionally manufacture any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age.” Id. {4} Prior to trial, Defendant moved to have the twenty counts merged into one count citing the double jeopardy clauses of the United States and New Mexico Constitutions and also filed a motion calling into question the voluntariness of his confession. The court reserved ruling on the merger issue, apparently persuaded that the issue would be best addressed after trial, and denied Defendant’s motion concerning the confession, concluding that Defendant’s statements to the police were voluntary. {5} At trial, a video of Defendant’s confession was played for the jury. In that video, Defendant was heard making references to past drug use. This prompted Defendant to move for a mistrial, but the court denied that motion and instructed the jury to disregard any alleged criminal acts that were not charged. {6}At the close of trial, the district court denied Defendant’s motion to merge the counts and concluded that it was up to the jury to decide whether Defendant had committed each of the twenty violations charged. The jury determined that Defendant was guilty of only sixteen of the twenty counts. The court entered judgment and sentenced Defendant. Defendant appeals. DISCUSSION {7}On appeal, Defendant challenges the district court’s denial of his motion to merge the counts, asserts that the court erred in determining that his confession was voluntary, and claims that the court should have granted his motion for mistrial. We address these arguments in turn but first discuss a problem we have identified with the court’s judgment and sentence. Judgment and Sentence {8}Defendant was initially charged by criminal information with twenty counts of violating Section 30-6A-3(C). As noted, the State amended the criminal information and charged Defendant with twenty counts of violating Section 30-6A-3(D). At trial, the jury was properly instructed on the essential elements relating to Section 30-6A-3(D). However, for reasons that are not at all clear, the judgment and sentence indicates that Defendant was convicted of three counts of violating Section 30-6A-3(D) and thirteen counts of violating Section 30-6A-3(C). In addition, Defendant was sentenced on three counts of sexual exploitation (manufacturing), a violation of Section 30-6A-3(D), and thirteen counts of sexual exploitation (recording), a violation of Section 30-6A3(C). {9}The significance of the discrepancy between the charges and the judgment and sentence is unclear to us. We cannot determine whether the discrepancy between the charges and the judgment is merely a scrivener’s error or something more sig- nificant. The parties do not appear to have recognized the inconsistency and have not raised it in their briefs. Although remand is necessary to clarify the matter, this issue does not interfere with our ability to address the issues on appeal as they are unrelated to, and unaffected by, the discrepancy. Merger {10} Citing the double jeopardy clauses of the United States and New Mexico Constitutions, Defendant argues that the district court erred when it denied his motion to merge the counts. “A double jeopardy claim is a question of law that we review de novo.” State v. Bernal, 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289. {11} “The double jeopardy clause of the [F]ifth [A]mendment, made applicable to the states by the [F]ourteenth [A]mendment due process clause, provides: ‘[N] or shall any person be subject for the same offen[s]e to be twice put in jeopardy of life or limb[.]’” Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) (fifth alteration in original) (citation omitted). “Our courts long have held that the state and federal constitutional prohibitions against double jeopardy are of such similarity that they should be construed and interpreted in the same fashion.” Herron v. State, 111 N.M. 357, 358-59 n.2, 805 P.2d 624, 625-26 n.2 (1991). The United States Supreme Court has previously “stated a tripartite model of the double jeopardy clause: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Swafford, 112 N.M. at 7, 810 P.2d at 1227. Defendant has invoked the last of these three protections. {12} “In multiple punishment cases there are two types of potential issues: ‘(1) multiple violations of the same statute, referred to as ‘unit of prosecution’ cases; and (2) violations of multiple statutes, referred to as ‘double-description’ cases.’” State v. Collins, 2007-NMCA-106, ¶ 18, 142 N.M. 419, 166 P.3d 480 (citation omitted). We are concerned here with the former of these two types, a unit of prosecution case. {13} The relevant inquiry in a unit of prosecution case “is whether the [L]egislature intended punishment for the entire course of conduct or for each discrete act.” Swafford, 112 N.M. at 8, 810 P.2d at 1228. “For unit-of-prosecution challenges, the only basis for dismissal is proof that a suspect is charged with more counts of the same statutory crime than is statutorily authorized.” Bernal, 2006-NMSC-050, ¶ 13. This is because “the only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended.” Herron, 111 N.M. at 359, 805 P.2d at 626 (internal quotation marks and citation omitted). {14} The unit-of-prosecution analysis is done in two steps. “First, we review the statutory language for guidance on the unit of prosecution.” Collins, 2007-NMCA-106, ¶ 19 (internal quotation marks and citation omitted). “If a statute’s unit of prosecution is clearly defined, we must look no further than the face of the statute.” State v. Boergadine, 2005-NMCA-028, ¶ 15, 137 N.M. 92, 107 P.3d 532. A statute’s unit of prosecution is determined by the statutory definition of the crime; in other words, we ask “how the [L]egislature has defined the scope of conduct composing one violation of [the] statute.” State v. Thompson, 200 P.3d 22, 28 (Kan. 2009). This is essentially a matter of statutory construction. Herron, 111 N.M. at 359, 805 P.2d at 626. “If the statute does not clearly define the unit of prosecution, we must determine whether the different offenses are separated by sufficient indicia of distinctness[.]” State v. Castañeda, 2001-NMCA-052, ¶ 13, 130 N.M. 679, 30 P.3d 368 (alteration in original) (internal quotation marks and citation omitted). In doing so, we rely on the six factors set out in Herron. State v. Barr, 1999-NMCA081, ¶ 16, 127 N.M. 504, 984 P.2d 185. As described below, we conclude that the unit of prosecution for Section 30-6A-3(D) is clear from the face of the statute. {15} As previously stated, Section 30-6A3(D) states that “[i]t is unlawful for a person to intentionally manufacture any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age.” The Legislature has provided specific definitions for several of the terms within this statute, and our Supreme Court has previously discussed at least one of those specific definitions. {16} To “manufacture” is to engage in “the production, processing, copying by any means, printing, packaging or repackaging of any visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age.” NMSA 1978, § 30-6A-2(D) (2001) (internal quotation marks omitted). The term “obscene” refers to “any material, when the content if taken as a whole[] (1) appeals to a prurient interest in sex, as determined by the average person applying contemporary community standards; (2) portrays a prohibited sexual act in a patently offensive way; and (3) lacks serious literary, artistic, political or scientific value.” Section 30-6A-2(E) (internal quotation marks omitted). In State v. Myers, 2009NMSC-016, ¶ 39, 146 N.M. 128, 207 P.3d 1105, our Supreme Court explained that “[a]ll child pornography, not just hardcore child pornography, is unacceptable and intolerable to New Mexico citizens and, therefore, obscene under the [Sexual Exploitation of Children] Act.” (Emphasis omitted.) Finally, the terms “visual or print medium” means (1) any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer or electronically generated imagery; or (2) any book, magazine or other form of publication or photographic reproduction containing or incorporating any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer generated or electronically generated imagery[.] Section 30-6A-2(B) (internal quotation marks omitted). {17} We conclude, based on the foregoing, that the unit of prosecution for Section 30-6A-3(D)—the scope of conduct composing one violation of the statute—is readily discernible. A violation of the statute occurs where a criminal defendant intentionally produces or copies a photograph, electronic image, or video that constitutes child pornography. As applied in the present matter, it is clear to us that each photograph Defendant took of the child victims was a discrete violation of the statute. We observe that there has never been any question that the photographs Defendant took of the victims constituted child pornography. Accordingly, double jeopardy did not require the counts against Defendant to be merged. The State was free to charge Defendant for each photograph he manufactured of the child victims as this is exactly what Section 30-6A-3(D) permits. We cannot say exactly how many photographs were manufactured. Defendant did not include the photographs in the record proper, but it is clear that there were at least twenty photographs. {18} Defendant disagrees with our conclusion and relies on State v. Olsson, 2008NMCA-009, 143 N.M. 351, 176 P.3d 340, as support for his claim that the unit of Bar Bulletin - July 20, 2011 - Volume 50, No. 28 37 prosecution is not clear from the face of the statute. In Olsson, the defendant was charged with sixty counts of possession of child pornography in violation of Section 30-6A-3(A) after law enforcement discovered three binders in his vehicle which contained sixty photographs constituting child pornography. Olsson, 2008-NMCA-009, ¶ 1. As in the present matter, the defendant argued that double jeopardy concerns required that the counts merge. Id. On appeal, we laid out the unit of prosecution analysis and determined that we were unable to discern the Legislature’s intended unit of prosecution with respect to Section 30-6A3(A) from the face of the statute. Olsson, 2008-NMCA-009, ¶ 9. Section 30-6A-3(A) provides the following: It is unlawful for a person to intentionally possess any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts any prohibited sexual act or simulation of such act and if that person knows or has reason to know that one or more of the participants in that act is a child under eighteen years of age. {19} We are unpersuaded that the conclusion in Olsson applies here. Section 30-6A3(D) is significantly different from Section 30-6A-3(A). As explained above, the unit of prosecution for Section 30-6A-3(D) is apparent from the face of the statute— producing or copying a single image of child pornography is sufficient to constitute a violation of Section 30-6A-3(D). We were less confident in Olsson about the meaning of the statutory language in Section 30-6A3(A). Specifically, we were troubled by what the Legislature intended by the word “possess” and questioned whether the Legislature meant to criminalize the possession of a collection of child pornography or the possession of each individual image within that collection. Olsson, 2008-NMCA-009, ¶ 8. We see no similar complexity as regards Section 30-6A-3(D). Olsson is inapposite. {20} We hold that the unit of prosecution for Section 30-6A-3(D) is clear on its face and that double jeopardy was not violated when Defendant was charged with twenty counts. We reject Defendant’s arguments to the contrary and affirm the district court on this issue. Voluntariness of Confession {21} Defendant argues that his confession was involuntary because it was elicited by false or implied promises and threats. “We review de novo the voluntariness of confessions.” State v. Evans, 2009-NMSC027, ¶ 32, 146 N.M. 319, 210 P.3d 216. “In doing so, we examine the totality of the circumstances surrounding the confession in order to decide the ultimate question of voluntariness.” State v. Fekete, 120 N.M. 290, 298, 901 P.2d 708, 716 (1995) (internal quotation marks and citation omitted). {22} “Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” State v. Munoz, 1998NMSC-048, ¶ 21, 126 N.M. 535, 972 P.2d 847 (internal quotation marks and citation omitted). “For the confession to be involuntary, there must be an essential link between coercive activity of the State . . . and a resulting confession by a defendant.” Id. (alteration in original) (internal quotation marks and citation omitted). “If the state fails to prove voluntariness by a preponderance of the evidence, the trial court must rule that the confession was involuntary as a matter of law.” Aguilar v. State, 106 N.M. 798, 800, 751 P.2d 178, 180 (1988). “Evidence of express promises of leniency . . . renders a confession involuntary as a matter of law.” State v. Tindle, 104 N.M. 195, 199, 718 P.2d 705, 709 (Ct. App. 1986). “[T] hreats that merely highlight potential real consequences, or are ‘adjurations to tell the truth,’ are not characterized as impermissibly coercive.” Evans, 2009-NMSC-027, ¶ 43 (citation omitted). {23} On November 17, 2007, officers began investigating the incidents that gave rise to the charges against Defendant. Detective Scott London testified that, because he did not have a recording device at Defendant’s residence, he asked Defendant to come to the police department to be interviewed. Defendant agreed to do so, and another officer transported Defendant to the police department. He was not handcuffed either in the car or in the interview room and was not placed under arrest. Detective London did not consider Defendant to be in custody but, nonetheless, informed him of his Miranda rights. Defendant was not actually arrested until July 14, 2008. {24} Detective Chris Kohler interviewed Defendant on November 17, 2007, and again on July 14, 2008.1 The district court’s order on Defendant’s motion to determine the voluntariness of his admissions concluded that Detective Kohler made one express promise during the first interview when the officer promised Defendant that he would not be going to jail that night. At the hearing on the motion, Defendant testified that Detective Kohler had told him that, if he did not admit to anything, he would not go home that night. The district court, having reviewed the DVD of the November 17, 2007 interview, rejected Defendant’s assertion that avoiding jail that night was conditioned on his making admissions. The court quoted Detective Kohler as having stated, “[r]ight now, no matter what happens, no matter what you tell me, and I swear to this, I have no intentions of putting you in jail tonight.” The express promise did not concern long term leniency, only the avoidance of jail that night and provided no incentive or disincentive to make admissions. The district court noted that the detective kept this promise, even though Defendant made certain admissions. {25} The district court also concluded that Defendant could have inferred an implied promise to get help for him if he was cooperative. At the hearing on his motion, Defendant pointed to the following statements Detective Kohler made in the first interview as implied promises. “If you have a problem, we can help you. . . . I promise you, I will do everything I can to help you . . . . That might be something we can help you with.” We addressed similar statements regarding possible treatment in State v. Lobato, 2006-NMCA-051, ¶ 1, 139 N.M. 431, 134 P.3d 122, where the defendant was charged with criminal sexual penetration of a minor. We agreed that the statements in that case gave the impression that the defendant would get treatment if he confessed, but we did not find any promise that the defendant would get treatment instead of prison time or would get a lesser sentence of imprisonment. Id. ¶ 20. We concluded that the defendant’s confession was not rendered involuntary by the officer’s discussion of possible treatment. Id. We reach the same conclusion here. {26} Defendant also alleges that, in the course of the second interview, Detective Kohler made a statement to the effect that he (Detective Kohler) was the only thing standing between Defendant and the federal government. Defendant testified that 1The video recording of the November 17, 2007 interview was played for the jury, but is very difficult to understand on the recordings of the trial. The record proper does not contain a separate DVD of the interview alone. As mentioned below, the recording of July 14, 2008, was not played at trial due to difficulties with redaction. 38 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 he understood this as both a threat and a promise that, if he confessed, he would not be charged with violation of child pornography laws by the federal government. The context of Detective Kohler’s statement includes Defendant’s having already made admissions approximately eight months earlier at the first interview, his awareness that an arrest warrant had been issued, and his having turned himself in upon learning of the warrant. {27} On its face, Detective Kohler’s statement contains neither an implied promise nor a threat, although Defendant might have interpreted it as the detective’s opinion that prosecution by the State would result in a better outcome for Defendant than prosecution in the federal courts. “It is not per se coercive for police to truthfully inform an accused about the potential consequences of his alleged actions.” Evans, 2009-NMSC027, ¶ 43. Defendant does not argue that Detective Kohler’s comment, to the extent that it may be taken as an implied warning, was untruthful. Accordingly, we see no coercion. {28} As discussed above, the voluntariness of a confession is reviewed under a totality of the circumstances standard. Fekete, 120 N.M. at 298, 901 P.2d at 716. In its order on Defendant’s motion, the district court recited the following additional circumstances as the basis for its conclusion: “Defendant in this case is not a minor; his mental state has not been questioned; he was not under the influence of drugs or alcohol; and the length of the interview was not excessive[.]” We agree with the district court that, under the totality of circumstances, Defendant’s confession was not coerced, and his admissions were voluntary. Mistrial {29} Finally, Defendant argues that the district court should have declared a mistrial after the jury heard references to his past drug use. We begin by further discussing the facts underlying this claim. {30} The DVD video recording of Defendant’s November 17, 2007 interview was played at trial for the jury. Because Defendant was facing additional charges based on other images in a separate case and because the recording mentioned those other charges, the parties stipulated in limine that any reference to other misconduct would be redacted from the recording. Detective Kohler informed the court before trial that he had made the redactions, but had some technical difficulties in doing so regarding the match between the audio and video. {31} When the recording was played at trial, there was no mention of the charges in the separate case, but certain references to Defendant’s alleged past drug use remained and were heard by the jury. Upon the first of these, which apparently consisted of Detective Kohler’s observation that Defendant was not on drugs, Defendant asked for a bench conference and moved for a mistrial. Observing that the motion in limine had concerned the charges in the separate case and not Defendant’s past drug use, the district court denied the mistrial but, nevertheless, instructed the jury to disregard any mention of acts that might be a crime, but were not charged. Defendant did not immediately object after two more mentions of drug use but renewed his motion for mistrial based on the cumulative effect of the references. The context of these additional drug references was that Defendant had been clean since rehabilitation and that he had been falsely accused of drug dealing. The court denied the motion for mistrial but instructed Detective Kohler to redact any remaining drug references from the recording. Ultimately, the State was unable to show the DVD of the second interview, as redaction was not possible. {32} We review a district court’s denial of a motion for mistrial for an abuse of discretion. State v. McDonald, 1998-NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752. “An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case.” State v. Sutphin, 107 N.M. 126, 130, 753 P.2d 1314, 1318 (1988). “The overwhelming New Mexico case law states that the prompt sustaining of the objection and an admonition to disregard the answer cures any prejudicial effect of inadmissible testimony.” State v. Gonzales, 2000-NMSC-028, ¶ 37, 129 N.M. 556, 11 P.3d 131 (internal quotation marks and citation omitted). {33} We begin with the circumstances under which the purported evidence of prior misconduct was presented. First, it consisted of Defendant’s own prior statement and was not deliberately elicited by the State. Second, the circumstances in which the jury heard this evidence resulted in part from a failure of communication among the parties. There appears to have been no clear understanding between the State and Defendant as to what they agreed to redact, and Defendant did not specifically move for redaction of the drug references. Third, the State left the redaction process to Detective Kohler, who might reasonably have understood that he was to remove only the mention of the charges in the separate case. Fourth, Defendant did not review or request to review the redacted version of the interview before trial. Finally, the references were to Defendant’s denial of drug dealing and to his drug use in the past, including the fact that he had been through rehabilitation and was now clean. {34} The New Mexico Supreme Court addressed a similar factual setting in McDonald. 1998-NMSC-034. There, a witness in a murder trial testified that he had smoked a marijuana cigarette with the defendant. Id. ¶ 22. The trial court offered to give a cautionary instruction, which the defendant refused. Id. ¶ 25. The trial court denied the defendant’s motion for mistrial. Id. ¶ 28. Our Supreme Court cited two factors in holding that the trial court did not abuse its discretion. Id. ¶¶ 27-28. First, the mention of smoking marijuana was inadvertent and was not emphasized by either party. Id. Second, the defendant refused a cautionary instruction, which might have cured any potential prejudice. Id. {35} In the present case, the references to Defendant’s past drug use were not too emphasized by either party. In addition, after the first reference, the district court gave a cautionary instruction, which we conclude cured any prejudice that might have resulted. We base this conclusion in part on the fact that the first reference was Detective Kohler’s comment on Defendant’s non-use of drugs. As for the two subsequent references, we note that Defendant did not immediately object to them and that they also concerned Defendant’s non-use of drugs, which the jury had already been instructed to disregard. {36} For the reasons set out above, we conclude that the district court did not abuse its discretion in denying Defendant’s motion for mistrial. CONCLUSION {37} The district court did not err in rejecting Defendant’s request to merge the charges, in determining that Defendant’s confession was voluntary, and in denying Defendant’s motion for mistrial. However, this matter is remanded to the district court to correct the judgment and sentence. {38} IT IS SO ORDERED. CELIA FOY CASTILLO, Chief Judge WE CONCUR: JAMES J. WECHSLER, Judge LINDA M. VANZI, Judge Bar Bulletin - July 20, 2011 - Volume 50, No. 28 39 Certiorari Not Applied For From the New Mexico Court of Appeals Opinion Number: 2011-NMCA-069 Topic Index: Appeal and Error: Standard of Review; and Remand Courts: Metropolitan Court Criminal Law: Driving While Intoxicated; and Reckless Driving Criminal Procedure: Dismissal of Charges; and wStatute of Limitations Statutes: Interpretation; Legislative Intent; and Rules of Construction STATE OF NEW MEXICO, Plaintiff-Appellant, versus JAVIER TREVIZO, Defendant-Appellee. No. 30,482 (filed: May 10, 2011) APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Albert S. “Pat” Murdoch, District Judge Gary K. King Attorney General Andrew S. Montgomery Assistant Attorney General Santa Fe, New Mexico for Appellant Opinion James J. Wechsler, Judge {1}We consider in this appeal whether driving under the influence (DWI) (first offense), in violation of NMSA 1978, Section 66-8-102(E) (2005) (amended 2010), and reckless driving, in violation of NMSA 1978, Section 66-8-113 (1987), have an applicable statute of limitations of one, two, or three years. We conclude that the applicable statute of limitations for both crimes is one year. We therefore affirm the district court order remanding to the metropolitan court for dismissal of the charges against Defendant with prejudice. BACKGROUND {2}Defendant Javier Trevizo was arrested and charged with DWI (first offense), reckless driving, and other violations of the Motor Vehicle Code, NMSA 1978, Sections 66-1-1 to -8-141 (1978, as amended Chief Public Defender Lisa Bozone Assistant Appellate Defender Albuquerque, New Mexico for Appellee through 2010), that are not relevant to this appeal. Defendant’s arrest occurred on October 13, 2005. A criminal complaint was filed against Defendant in metropolitan court on April 12, 2007. The time between Defendant’s arrest and the filing of the criminal complaint was one day short of eighteen months. {3}Defendant moved to dismiss, arguing that the charges were barred because the complaint was filed outside the applicable limitations period. The metropolitan court denied Defendant’s motion, concluding that a two-year statute of limitations applied and, therefore, the charges against Defendant were not time-barred. Defendant was subsequently convicted of DWI (first offense) and reckless driving. He appealed his convictions to the district court. {4}The district court reversed the metropolitan court’s decision and remanded for the charges against Defendant to be dismissed with prejudice. The district court concluded that DWI (first offense) and reckless driving were petty misdemeanors and subject to a one-year statute of limitations. The State appeals. APPLICABLE STATUTE OF LIMITATIONS {5}This Court must determine whether a one, two, or three-year statute of limitations applies to the charges of DWI (first offense) and reckless driving. NMSA 1978, Section 30-1-8 (2005) (amended 2009) of the Criminal Code provides for the following relevant time limitations for commencing prosecution: C. for a misdemeanor, within two years from the time the crime was committed; D. for a petty misdemeanor, within one year from the time the crime was committed; .... G. for any crime not contained in the Criminal Code or where a limitation is not otherwise provided for, within three years from the time the crime was committed[.]1 {6}The State contends that the Legislature has designated all violations of the Motor Vehicle Code to be misdemeanors unless otherwise designated as a felony and, thus, a two-year statute of limitations applies. Alternatively, the State argues that because the crimes of DWI and reckless driving are found outside of the Criminal Code, the three-year statute of limitations provided for in Subsection (G) applies. Defendant contends that both DWI (first offense) and reckless driving are petty misdemeanors pursuant to NMSA 1978, Section 301-6(C) (1963) and, thus, the limitations period is only one year. {7}The limitations provisions relied on by the parties are statutory in nature. “Statutory interpretation is an issue of law, which we review de novo.” State v. Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. “Our primary goal when interpreting statutory language is to give effect to the intent of the [L]egislature.” State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. “We do this by giving effect to the plain meaning of the words of [the] statute, unless this leads to an absurd or unreasonable result.” State v. Marshall, 2004-NMCA-104, ¶ 7, 1The Legislature’s 2009 amendment to Section 30-1-8 added a provision providing a statute of limitations of five years for identity theft once discovered. The amendment did not change the substance of Section 30-1-8(G), but the numbering for the statute changed. The provision is now codified as Section 30-1-8(H). We refer to the provision herein as Section 30-1-8(G). 40 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 136 N.M. 240, 96 P.3d 801. We therefore engage in a de novo review of “whether a particular statute of limitations applies.” Jaramillo v. Gonzales, 2002-NMCA-072, ¶ 8, 132 N.M. 459, 50 P.3d 554. {8}In Robinson v. Short, 93 N.M. 610, 603 P.2d 720 (1979), our Supreme Court considered the applicability of the threeyear statute of limitations for crimes not contained in the Criminal Code. The Court determined that the crime of falsely obtaining unemployment benefits, contrary to NMSA 1978, Section 51-1-38 (1993), was subject to a one-year statute of limitations, not a three-year statute of limitations, even though it was “uncontroverted that the crimes with which [the defendant was] charged [were] not contained in the Criminal Code.” See Robinson, 93 N.M. at 611, 603 P.2d at 721. In making this determination, the Court looked to Section 30-1-8(G)2 and concluded that because the sentence authorized for a violation of Section 51-1-38 was consistent with characterizing the crime as a petty misdemeanor, a limitation was otherwise provided for, thus, making the three-year statute of limitations contained in Section 30-1-8(G) inapplicable. Robinson, 93 N.M. at 611, 603 P.3d at 721. The Court determined that, because the crime charged carried “an authorized penalty of imprisonment for not longer than thirty days, or a fine of not over one hundred dollars or both,” and Section 51-1-38 did not specifically delineate the degree of crime, the definition for petty misdemeanors provided by Section 30-1-6(C) should control. Robinson, 93 N.M. at 611, 603 P.2d at 721; see § 30-16(C) (providing that “[a] crime is a petty misdemeanor if it is so designated by law or if upon conviction thereof a sentence of imprisonment for six months or less is authorized”). The Court therefore held that the one-year statute of limitations for petty misdemeanors contained in Section 30-1-8(D) should apply. See Robinson, 93 N.M. at 611-12, 603 P.2d at 721-22. {9}Implicit in our Supreme Court’s treatment of Section 30-1-8(G) was its decision to read the provisions conjunctively. Thus, our Supreme Court determined that the fact that “the crimes with which [the defendant was] charged [were] not contained in the Criminal Code” was insufficient to make the three-year statute of limitations apply. See Robinson, 93 N.M. at 611, 603 P.2d at 721 (“It is uncontroverted that the crimes with which [the defendant was] charged [were] not contained in the Criminal Code. What we concern ourselves with is whether a limitation is ‘otherwise provided for.’”). To the extent the State argues that the three-year statute of limitations applies because the crimes charged are contained in the Motor Vehicle Code and not the Criminal Code, we are bound by our Supreme Court’s interpretation of Section 30-1-8(G) in Robinson. See State v. Travarez, 99 N.M. 309, 311, 657 P.2d 636, 638 (Ct. App. 1983) (stating that the Court of Appeals must follow applicable precedents of the Supreme Court). {10} Furthermore, to the extent the State contends that Robinson is no longer good law, we disagree. The State points out that, following the Supreme Court’s decision in Robinson, the Legislature amended Section 30-1-8 and included a section providing that violations of Section 511-38 are subject to a three-year statute of limitations. We agree that this amendment indicated a legislative intent contrary to what our Supreme Court had determined to have been the legislative intent in Robinson. See Robinson, 93 N.M. at 612, 603 P.2d at 722 (“To interpret the statutes [to apply a three-year statute of limitations] would result in an inconsistency we do not believe the Legislature intended. Crimes with an authorized maximum penalty of less than six months which do not expressly state the degree of the crime would have the same length of limitation as a third or fourth degree felony.”). However, although with the amendment the Legislature provided a specific statute of limitation for violations of Section 511-38, it chose not to alter the language in Section 30-1-8(G) interpreted by our Supreme Court. As a result, the Legislature’s subsequent amendment of Section 30-1-8 did not abrogate our Supreme Court’s reading of Section 30-1-8(G) in Robinson. {11} Moreover, to interpret Section 301-8(G) as the State suggests would result in a three-year statute of limitations for all violations of the Motor Vehicle Code. A three-year statute of limitations would therefore apply not only to DWI (first offense) and reckless driving, but to speeding violations, parking violations, failure to signal, following too closely, and other traffic violations. See NMSA 1978, § 66-7-301 (2002); NMSA 1978, § 66-7-352 (1978); NMSA 1978, § 66- 7-325 (1978); NMSA 1978, § 66-7-318 (1978). Thus, crimes generally subject to penalty assessments in the Motor Vehicle Code would have a statute of limitations longer than all crimes other than felonies. See generally § 30-1-8(C), (D). We do not believe that the Legislature intended such a result. For these reasons, we reject the State’s argument that a three-year statute of limitations should apply to all violations of the Motor Vehicle Code. {12} We now turn to the State’s argument that a two-year statute of limitations should apply to DWI (first offense) and reckless driving. The State relies on Section 30-1-6, which provides: B. A crime is a misdemeanor if it is so designated by law or if upon conviction thereof a sentence of imprisonment in excess of six months but less than one year is authorized. C. A crime is a petty misdemeanor if it is so designated by law or if upon conviction thereof a sentence of imprisonment for six months or less is authorized. {13} The State contends that Section 66-8-7(A) designates all violations of the Motor Vehicle Code as misdemeanors “unless the violation is declared a felony.” Section 66-8-7(A) provides that “[i]t is a misdemeanor for any person to violate any provision of the Motor Vehicle Code [Section 66-1-1] unless the violation is declared a felony.” The State argues that, in selecting between these two means of defining a misdemeanor or petty misdemeanor, the Legislature’s designation of violations of the Motor Vehicle Code as misdemeanors takes precedence over the authorized punishment for the violation. The State relies on cases holding that a statute must not be construed to render any part of it surplusage. See State v. Rivera, 2004-NMSC-001, ¶ 18, 134 N.M. 768, 82 P.3d 939 (“We are generally unwilling to construe one provision of a statute in a manner that would make other provisions null or superfluous.”). We understand the State to argue that, because all criminal violations will have a specific punishment associated with them, if this Court does not give the legislative designation priority, that provision of the statute will be rendered superfluous. The State therefore asserts that the Legislature’s classification of all violations of the Motor Vehicle 2At the time Robinson was decided, the three-year statute of limitations for crimes outside of the Criminal Code was codified as Section 30-1-8(F). We note that the language in Section 30-1-8(G) is the same as when the Court decided Robinson. To avoid confusion, we continue to refer to this provision as Section 30-1-8(G) in the text of the opinion. Bar Bulletin - July 20, 2011 - Volume 50, No. 28 41 Code as misdemeanors, unless specifically designated as felonies, results in the application of a two-year statute of limitations. {14} We disagree with the State that, if this Court were to rely on the Legislature’s designation of violations of the Motor Vehicle Code as “misdemeanors” in Section 66-8-7(A), our inquiry would be complete. Misdemeanor is defined as “[a] crime that is less serious than a felony and is usually punishable by fine, penalty, forfeiture, or confinement . . . in a place other than prison.” Black’s Law Dictionary 1089 (9th ed. 2009) (emphasis added). Based on this definition, a misdemeanor would encompass any crime that was not a felony, including petty misdemeanors. We read the Legislature’s use of “misdemeanor” in Section 66-8-7 as merely making this distinction and not as precluding treatment of violations of the Motor Vehicle Code as petty misdemeanors. Cf. Incorporated Cnty. of Los Alamos v. Johnson, 108 N.M. 633, 636, 776 P.2d 1252, 1255 (1989) (Baca, J., specially concurring) (“‘[M] isdemeanor’ . . . includes ‘petty misdemeanors’ as it historically always has.”). {15} Section 66-8-7(B) provides further support for our interpretation of these provisions: Unless another penalty is specified in the Motor Vehicle Code, every person convicted of a misdemeanor for violation of any provision of the Motor Vehicle Code shall be punished by a fine of not more than three hundred dollars ($300) or by imprisonment for not more than ninety days or both. The Legislature has therefore set the penalty for violations of the Motor Vehicle Code to be consistent with the classification of petty misdemeanors found in the Criminal Code. See § 30-1-6(C) (“A crime is a petty misdemeanor if it is so designated by law or if upon conviction thereof a sentence of imprisonment for six months or less is authorized.”). {16} To the extent the State argues that 42 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 there are “persuasive policy considerations based on which the Legislature could rationally treat the particular offenses of DWI and reckless driving as more serious than petty misdemeanors[,]” we agree. However, it does not appear that the Legislature has chosen to do so with respect to DWI (first offense) and reckless driving. Instead, the punishment designated by the Legislature for reckless driving and DWI (first offense) indicates the legislative intent to treat these crimes as petty misdemeanors. See § 66-8-113(B); § 66-8-102(E); cf. Lewis v. United States, 518 U.S. 322, 326 (1996) (stating that the maximum penalty attached to an offense “is considered the most relevant with which to assess the character of an offense, because it reveals the legislature’s judgment about the offense’s severity”); Frank v. United States, 395 U.S. 147, 148 (1969) (“The most relevant indication of the seriousness of an offense is the severity of the penalty authorized for its commission.”). {17} The State also relies on City of Santa Fe v. Martinez, 2010-NMSC-033, 148 N.M. 708, 242 P.3d 275. In Martinez, our Supreme Court recognized the compelling public interest in eradicating DWI occurrences and the potentially deadly consequences when DWI is committed. Id. ¶ 13. The State argues that the same interests support a limitations period longer than that of a petty misdemeanor. The misdemeanor arrest rule has its origins in the common law. State v. Ochoa, 2008NMSC-023, ¶ 11, 143 N.M. 749, 182 P.3d 130. As our Supreme Court explained, the original purpose of the [misdemeanor arrest] rule was to minimize the harm historically associated with lengthy custodial detentions for minor crimes. Ochoa, 2008-NMSC-023, ¶ 12 [(alteration in original) (internal quotation marks and citation omitted)]. Although the continued viability of the misdemeanor arrest rule has been questioned generally, see Cave v. Cooley, 48 N.M. 478, 483-84, 152 P.2d 886, 890 (1944), we conclude that DWI investigations, in particular, fall outside the original purpose of the rule. {18} The case before us, involves a criminal statute of limitations imposed by the Legislature. Criminal statutes of limitation “are to be liberally construed in favor of a defendant because their purpose ‘is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the [L]egislature has decided to punish by criminal sanctions.’” State v. Kerby, 2007-NMSC-014, ¶ 13, 141 N.M. 413, 156 P.3d 704 (quoting Toussie v. United States, 397 U.S. 112, 114 (1970)). Because the purposes of the misdemeanor arrest rule and criminal statutes of limitations are distinct, we decline the State’s invitation to use the reasoning in Martinez to expand the limitation period set by the Legislature. {19} If the State is correct and the Legislature intended to treat these crimes more seriously by providing for a longer limitations period, the Legislature may explicitly do so by providing a specific limitation period for these crimes in Section 30-1-8 as it did following our Supreme Court’s decision in Robinson. However, based on the current legislation, we conclude that the Legislature intended for these crimes to be treated as petty misdemeanors. We further conclude that, pursuant to Section 30-1-8(D), a one-year statute of limitations applies. CONCLUSION {20} We affirm the district court and remand to the metropolitan court to dismiss the charges with prejudice. {21} IT IS SO ORDERED. JAMES J. WECHSLER, Judge WE CONCUR: CELIA FOY CASTILLO, Chief Judge LINDA M. VANZI, Judge Please join us in celebrating David H. Kelsey’s retirement from the firm and 50 years of law practice The Albuquerque Country Club Thursday August 4th 2011 5:00 pm to 7:00 pm Hosted by: Little, Gilman-Tepper & Batley, P.A., Atkinson & Kelsey, P.A., Sanford Siegel Family Law, Walther Family Law RSVP by July 29th 2011 to 505.246.0500 MD Independent Review Christopher Miera MD AAFP,ABFP,AADEP IMEs • Record Reviews • Impairment Disability • Workers Comp. 4263 Montgomery NE #I – 120 Albuquerque, NM 87109 (505) 881-2429 Office (505)340-5901 Cell RobeRt P. tinnin, JR rtinnin@tinninlawfirm.com Available as a Mediator or Arbitrator Over 40 years experience representing employers and employees alike in employment law disputes, including breach of employment contracts, non-compete agreements, wrongful discharge, discrimination claims, sexual harassment and wage and hour matters and in representing management exclusively in traditional labor relation matters. Formal mediator training by Attorney-Mediators Institute. 505-768-1500 www.tinninlawfirm.com Bar Bulletin - July 20 2011 - Volume 50, No. 28 43 Process Serving Court Filing Skip Tracing Paralegal Services Private Investigation Record Retrieval grounds for Patrick J. griebel referral! our Turf Is fertile ground for Your referrals Plus, your turf is protected! We will not interfere with your long-standing client relationships. We’rethefirmtocallfor... www.served2perfection.com 505-554-2627 No need for another associate Bespoke lawyering for a new millennium ✓ Business formations ✓ Business litigation James Burns ✓ real estate THE BEZPALKO LAW FIRM Legal Research and Writing ✓ Construction ✓ Bankruptcy (505) 341-9353 www.bezpalkolawfirm.com Visit the State Bar of New Mexico’s web site www.nmbar.org 505.246.2878 • www.albuquerqueBusinesslaw.com Mustafa D. Chudnoff Consulting, LLC Providing Technical Support and Advice in Water Related Matters, including: Water Rights, Hydrology, Transactional Work and Litigation Support in New Mexico since 1988. 505.670.2028 • mustafa@chudnoffconsulting.com Member Benefit The New Mexico Black Lawyers Association cordially invites members of the New Mexico Bar to the retirement celebration of Mr. Raymond Hamilton Retired Assistant US Attorney credit card processing Recommended by over 60 bar associations! Call 866.376.0950 or visit www.affiniscape.com/nmbar “AffiniPay” is a registered ISO/MSP of Harris, N.A., Chicago, IL. 44 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 M , , , and Drinks Saturday, July 30, 2011 from 5 pm to 9 pm 1605 Los Alamos SW, Albuquerque NM 87104-1121 RSVP by Wednesday, July 21, 2011 to nmblacklawyers@gmail.com or (505) 552-2074 Classified Positions Attorney The civil litigation firm of Atkinson, Thal & Baker, P.C. seeks an attorney with strong academic credentials and 2-10 years experience for successful, established complex commercial and tort litigation practice. Excellent benefits. Tremendous opportunity for professional development. Salary D.O.E. All inquiries kept confidential. Send resume and writing sample to Atkinson, Thal & Baker, P.C., Attorney Recruiting, 201 Third Street NW, Suite 1850, Albuquerque, NM 87102. New Mexico Legal Aid Attorney Position (Grant Funded) New Mexico Legal Aid (NMLA) has an opening for a Staff Attorney in its Albuquerque Law Office. This position provides services to victims of domestic violence and will require the person to be physically present at the Family Advocacy Center. This position will be for the grant year beginning 7/11/11 thru 6/30/12. Continued employment with NMLA is contingent on continued funding by the grantor. Qualifications: NMLA seeks attorney to provide advice, brief service, and representation in domestic relations proceedings focusing on domestic violence to low income persons. Work: handling cases in family law; utilizing a computerized case management system; handling telephone intake; participating in community education and outreach to domestic violence victims and providers. Applicant must pass a background check to work in the Family Advocacy Center building. Candidates must be admitted to the State Bar of New Mexico or have admission pending. Candidates must possess excellent writing and oral communication skills, ability to manage a caseload and to build collaborative relationships with the community. Requirements: Dedication and commitment to serving the needs of domestic violence victims and persons living in poverty, excellent research, writing and interviewing skills. Proficiency in Spanish is a plus. New Mexico bar license required. Send letter of intent, resume, and two references to: Gloria A. Molinar, NMLA, PO Box 25486, Albuquerque, NM 87125-5486 or email to: jobs@nmlegalaid. org. Closing Date: 7/30/11; Salary: DOE Receptionist/Legal Assistant Martinez, Hart & Thompson, P.C. is a local personal injury law firm, looking for a motivated individual to function both as a receptionist and legal assistant. Past experience in a legal office preferred. Knowledge in Excel, Word and Outlook required. Must be courteous, organized, detail oriented and have strong communication skills. Offer competitive salary and benefits depending on experience. E-mail resume to David B. Martinez (davidm@osolawfirm.com) & Renée L. Diamond (reneed@ osolawfirm.com) or mail to 1801 Rio Grande Blvd. NW, Albuquerque, NM 87104. Request for Applications City of Albuquerque City Attorney Position Advertisement # 11345, extended expiration date: 08/17/2011 CITY ATTORNEY: Attorney shall communicate, meet and work closely with Mayor and City Council on matters of concern to the governing body; provides legal advice when requested or required on personnel matters; pending or potential litigation facing the City; during City Council meeting on matters listed on the agenda and also during executive session. Shall avoid all conflicts of interest and shall not practice law privately. Qualifications: Requires a Juris Doctorate Degree from an accredited law school; shall be licensed to practice law in the State of New Mexico; requires experience in Municipal Law with knowledge of City Ordinances; City personnel Rules and Regulations; City Purchasing Regulations; State Statutes; Experience in the area of public law, public speaking and negotiations. Prior applicants for this position will remain under consideration. Salary will be based upon experience and knowledge. All applicants must submit, by expiration date, a City Application. Resumes may attached to the application in Microsoft Word or PDF format. The On-line Application Process can be accessed at web site www.cabq.gov/jobs. Applications are also available at the City of Albuquerque Human Resources Department 400 Marquette NW 7th Floor Suite 703, Albuquerque NM 87102. Copies of required certifications, registrations, and /or licenses, if not attached on-line, must be provided at the time of interview Consumer Advocate The Consumer Protection Division of the NM Attorney General’s Office, an EEO employer, is accepting resumes for an “exempt” (not classified) Las Cruces Consumer Advocate position. The consumer advocate investigates consumer complaints and negotiates with businesses to resolve the complaint. Other responsibilities include: assisting with consumer telephone intake, review of consumer complaints for violations of the Unfair Practices Act, consumer education and outreach to the public, legal research and analysis of complaints, file maintenance in both electronic and hard copy files and document management. The ability to communicate clearly and effectively, both in writing and orally, is preferred. Experience working with the public, as a paralegal, advocate or mediator is preferred as are negotiations or dispute resolution. An Associate’s degree in an appropriate field is preferred or a certificate of completion from a recognized paralegal training program. Resume, writing sample and minimum of three professional references must be received at the Office of the Attorney General by 5 p.m. on July 29, 2011. Send all information to: Dennis Martinez, HR Manager, P.O. Drawer 1508, Santa Fe, NM 87504-1508. New Mexico Legal Aid Staff Attorney-Santa Fe Office NMLA has an opening for a Staff Attorney in its Santa Fe Law Office. NMLA represents low-income individuals and families in a wide variety of poverty law areas including family law, housing, public benefits, consumer and Native American issues. Expectation is that attorney will be active in local bar and community activities. NMLA seeks attorney to provide representation in domestic relations proceedings (with a focus in domestic violence), low income housing proceedings, tribal court matters, and other poverty law proceedings to low income persons. Work requires handling general poverty law cases, utilizing a computerized case management system, participating in community education and outreach to domestic violence victims and providers, to those in need of housing and other benefits, and participating in recruitment of pro bono attorneys. The position also includes work with Pueblo people on cases and matters involving Federal Indian and Tribal law issues, including representation of low income individuals in the northern Pueblo Courts. A percentage of the attorney’s time will be devoted to NMLA’s Native American Program issues. Requirements: Candidates must possess excellent writing and oral communication skills, ability to manage multiple tasks, skills sufficient to implement an array of advocacy strategies, ability to manage a caseload, and the ability to build collaborative relationships within the community. Proficiency in Spanish is a plus. Reliable transportation required. New Mexico bar license is preferred. Send letter of intent, resume, and two references to: Gloria Molinar, New Mexico Legal Aid, PO Box 25486, NM 87125-5486, or email jobs@nmlegalaid.org. Salary: DOE; NMLA is an EEO/AA employer. Deadline: July 30, 2011 Office of the State Engineer/Interstate Stream Commission (Ose/Isc) State of New Mexico The Litigation & Adjudication Program seeks two (2) New Mexico licensed attorneys to represent the State Engineer & the State in water rights adjudications & other matters in the federal & state courts & at administrative hearings. The positions are located in Santa Fe. The candidates must have a Juris Doctorate from an accredited law school & 5 years experience in the practice of law. A demonstrated interest in water law & experience in litigation, water rights, natural resources or Indian law preferred. Lawyer – Advanced: job id #26406 and #26408. Salary range - $43,056 to $76,544. Applications are being accepted by the State Personnel Office from July 20, 2011 to August 3, 2011. The OSE/ISC is an Equal Opportunity Employer Bar Bulletin - July 20 2011 - Volume 50, No. 28 45 Real Estate Paralegal Real Estate Paralegal with experience. Call Sylvain Segal at (505) 888-8888. Executive Legal Assistant Law firm in Albuquerque, NM seeks individual for Executive Legal Assistant position. Must have at least 3 years of law firm administration experience. Experience in defense litigation a must. Regular full time position. Competitive benefits offered. EOE. Please send resumes to rvelasquez@allenlawnm.com. Legal Secretaries / Paralegals High Desert Staffing seeks candidates with 2-5+ years experience for both permanent and temporary positions. Call for interview: (505) 881-3449 Legal Secretary Small busy law firm seeking full-time Legal Secretary, knowledge of Microsoft Word necessary. Salary negotiable. Send Resume to Margo Danoff, Office Manager, 604 Chama, NE, Albuquerque, NM 87108, Fax to (505) 266-4330 or email to michaeldanoff@qwestoffice.net. Legal Secretary/Assistant Legal secretary/assistant w/extensive commercial civil litigation and practice management experience for established law firm. Seeking professional, organized, and highly skilled individual with attention to detail. Excellent computer/word processing skills required. All inquiries confidential. Competitive benefits. Office Manager, Atkinson, Thal, & Baker, P.C. 201 Third Street NW, Suite 1850, Albuquerque, NM 87102 or Fax to 505-764-8374. Services Freelance Paralegal Paralegal with 20+ years experience in all aspects of civil litigation. Excellent references. (505) 503-6322. Email civilpara@yahoo.com. Briefs, Research, Appeals: Leave the writing to me. Experienced, Reasonable. Contact cpearlman7@comcast.net (505) 281 6797 Office Space www.nmbar.org Two Offices Available Best location in town, one block or less from the federal, state, metropolitan courts. Includes secretarial space, phones and service, parking, library, janitorial, security, receptionist, daily runner, etc. Contact Thomas Nance Jones, (505) 247-2972 Office Space for Rent Sun Valley Commercial Center, 320 Osuna NE. Office with separate secretarial area. Includes utilities, janitorial services, conference rooms, copier, scanner, fax, kitchenette & security system. Telephone & high-speed internet connections available. Call Sue @ 883-2702 or smcentee@kcleachlaw.com. Need Office Space Downtown, Uptown or on the Westside? Look No Further!!! Available immediately: **1250 sq. ft. brand new office space (4 offices, copy area and conference room) at the Whitener Building – 4110 Cutler Ave N.E. Office here and advertise your business on our 12’ X 24’ electronic billboards!! **1333 sq. ft. available at 9784 Coors Blvd., just north of Paseo del Norte…prime location! **Five individual offices available at 300 Central Ave. S.W. on the corner of Third Street and Central Avenue. Priced to fit any budget at $400-$600 per office. Call Russ, Leanne or Nichole at 505-242-3333 for more information. In the Heart of Nob Hill... SUBMiSSioN DeADliNeS All advertising must be submitted via e-mail by 4:00 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Wednesday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, 13 days prior to publication. For more advertising information, contact: Marcia C. Ulibarri at 505.797.6058 or e-mail ads@nmbar.org 46 Bar Bulletin - July 20, 2011 - Volume 50, No. 28 Office Building perfect for legal offices. Approximately 1500 Square feet at $15 per sq. ft. 5 to 8 offices. Reception Room, Conference Room, Library, Breakroom. Clerestory windows, refrigerated air. Building Signage Possible. Contact Monique Feldman (505) 220-5633. Professional Office Downtown Office with Separate Secretarial Area if Needed, Office Furnishings Optional, Free Client Parking, Library/Conference Room, Kitchen, Telephone, High-Speed Internet, Copier, Fax, Security System, Close to Courthouses. 715 Tijeras Ave. NW. Call Holly at 842-5924. State of the Art Professional Office Available now. Prime Uptown location with high visibility and easy access to I-40. Bank of America, companion restaurants, shopping, extensive landscaping, ample parking, fullservice lease. 2937SF, top floor, glass entry, exceptionally well improved and appointed reception, offices, kitchen, and conference room. Building signage available. 3 to 5 year lease. Comcast Business Class is now available at Uptown Square (includes High-Speed Internet, Telephone and Television). Ron Nelson 883-9662 - Uptown Square. CONSTITUTION DAY Seeking attorney volunteers across New Mexico to teach 5th graders about the Constitution! Constitution Day is designated by Public Law 108-447 Sec. 111 Division J - SEC. 111(b) which states that all levels of educational institutions receiving federal funds are required to educate students about the U.S. Constitution. Constitution Day is an event taking shape across the country designed to teach 5th graders about the Constitution. During the week of September 12-16, volunteer attorneys will be partnered with 5th grade teachers in their area to co-teach a lesson on the Constitution. Suggested course materials will be provided, as well as pocket-sized Constitutions. Each presentation should last 1–1.5 hours per classroom. Volunteer attorneys will be given the teacher’s name and contact information in advance so that specific planning may take place. ❏ YES! I’d like to be a Constitution Day Volunteer!* ($30 donation from each attorney to cover classroom materials requested from volunteers) ❏ I am unable to volunteer my time but I would like to donate toward the effort of putting a pocket-size constitution in the hands of all New Mexico fifth graders (Amount $________ ) NAME_____________________________________________________ Bar ID ____________ ADDRESS ___________________________________________________________________ ____________________________________________________________________________ (city) (state) (zip) ____________________________________________________________________________ (phone) (fax) (email) Send this completed form to Marilyn Kelley Email: mkelley@nmbar.org; or fax (505) 797-6074; or US mail: New Mexico State Bar Foundation, Public & Legal Services Department Attention Marilyn Kelley PO Box 92860, Albuquerque, NM 87199 Bar Bulletin - July 20 2011 - Volume 50, No. 28 47 For Attorneys Only Increase your visibility to the public Premium Listing Premium listings pop up first and are the most frequently viewed. For information on how you can set up your Premium Listing contact: Marcia C. Ulibarri Direct 505.797.6058 • Cell 505.400.5469 mulibarri@nmbar.org