State v. Montano, 032918 NMCA, A-1-CA-35275

• Judge: WE CONCUR: LINDA M. VANZI, Chief Judge, STEPHEN G. FRENCH, Judge (dissenting) FRENCH, Judge (concurring in part and dissenting in part).
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. ROY MONTANO, Defendant-Appellant.
• Docket Number: A-1-CA-35275
• Date: 29 March 2018
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.

ROY MONTANO, Defendant-Appellant.

No. A-1-CA-35275

Court of Appeals of New Mexico

March 29, 2018

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Fred T. Van Soelen, District Judge.

Hector H. Balderas, Attorney General Santa Fe, NM John J. Woykovsky, Assistant Attorney General Albuquerque, NM for Appellee.

Attorney & Counselor at Law, P.A. Eric D. Dixon Portales, NM for Appellant.

OPINION

HENRY M. BOHNHOFF, Judge.

{¶1} Roy Montano (Defendant) was convicted of aggravated fleeing from a law enforcement officer in violation of NMSA 1978, Section 30-22-1.1(A) (2003). Defendant contends on appeal, as he argued below, that the Curry County Sheriffs Office deputy whose signals to stop Defendant refused to obey was neither "uniformed" nor in "an appropriately marked law enforcement vehicle" as required by the statute. See id. We conclude that, while the deputy's vehicle complied with the statutory requirement, the clothes that he was wearing did not constitute a uniform. We therefore reverse Defendant's conviction.

BACKGROUND

{¶2} On September 4, 2013, Deputy Glenn Russ with the Curry County Sheriffs Office was working as an "investigator." He was wearing the clothes that investigators were required to wear: "a dress shirt with tie, dress slacks, and dress shoes." His badge was displayed on the breast pocket of his shirt. He was driving a Ford Expedition that had no decals, striping, insignia, or lettering on the front, back, or sides of the vehicle. However, the vehicle had a government license plate, wigwag headlights, red and blue flashing lights mounted on the front grill and the top of the rear window, flashing brake lights, and a siren.

{¶3} Around noon that day, while Deputy Russ was driving within the Clovis, New Mexico city limits, he observed Defendant enter a vehicle and begin driving. Russ initially thought Defendant was someone else whom Russ believed had an outstanding warrant. Russ approached Defendant's vehicle from behind and checked the license plate. Russ determined that the vehicle was registered to Defendant, not the other person, but that the registration for Defendant's vehicle had expired. At that point Russ attempted to stop Defendant for the registration infraction by "utilizing the [red and blue flashing] lights" on his vehicle. Defendant then made a few turns and ran a stop sign, at which point Russ activated his vehicle's siren. Defendant continued driving through a residential neighborhood at speeds that exceeded the posted speed limits and failed to stop at additional stop signs and intersections. Defendant came to a stop after his vehicle jumped a curb and drove onto an adjacent easement after he attempted to turn by braking and sliding through an intersection. Russ then approached the vehicle, removed Defendant, placed him on the ground, and handcuffed him. The pursuit lasted "a couple of minutes" in total. Undersheriff Michael Reeves, also of the Curry County Sheriffs Office, arrived at the scene after Defendant was already in custody.

{¶4} Defendant was charged with aggravated fleeing, contrary to Section 30-22-1.1(A). Deputy Russ and Undersheriff Reeves both testified at Defendant's bench trial. During the trial, the district court took judicial notice that the vehicle Russ drove "was not a marked vehicle." The court denied Defendant's motion for directed verdict based on his uniform and "appropriately marked vehicle" arguments. The court determined that displaying a badge was enough to be in uniform; the vehicle was appropriately marked because motorists know they have to pull over and stop when they see emergency lights flash. The court found Defendant guilty of aggravated fleeing and imposed the maximum sentence of eighteen months imprisonment.

DISCUSSION

{¶5} In 2003, the Legislature enacted the Law Enforcement Safe Pursuit Act (LESPA), 2003 N.M. Laws, ch. 260, §§1-4. LESPA, which is codified at NMSA 1978, Sections 29-20-1 to -4 (2003), mandates the development and implementation of law enforcement agency policies and training to reduce the risk that uninvolved motorists and bystanders will be killed or injured by vehicles involved in high-speed pursuits conducted by law enforcement personnel. However, along with LESPA's establishment of standards for the conduct of high-speed pursuits, Section 5(A) of 2003 N.M. Laws, ch. 260, codified at Section 30-22-1.1(A), established the crime of aggravated fleeing from a law enforcement officer: Aggravated fleeing [from] a law enforcement officer consists of a person willfully and carelessly driving his vehicle in a manner that endangers the life of another person after being given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed law enforcement officer in an appropriately marked law enforcement vehicle in pursuit in accordance with the provisions of the [LESPA].

Section 30-22-1.1(B) provides that aggravated fleeing is a fourth degree felony.

{¶6} Section 30-22-1.1 (A) presumably is patterned after NMSA 1978, Section 30- 22-1(C) (1981). Section 30-22-1, which was first enacted in 1963, established the misdemeanor crime of resisting, evading, or obstructing an officer. As amended, see 1981 N.M. Laws, ch. 248, § 1(C), the crime is committed by, among other actions, "willfully refusing to bring a vehicle to a stop when given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed officer in an appropriately marked police vehicle[.]" Section 30-22- 1(C).

{¶7} Section 30-22-1(C) in turn appears to be patterned after a provision, Section 11-911(a), of the Uniform Vehicle Code that was added in 1968: Any driver of a motor vehicle who willfully fails or refuses to bring his or her vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor. The signal given by the police officer may be by hand, voice, emergency light or siren. The officer giving such signal shall be in uniform, prominently displaying the officer's badge of office, and the officer's vehicle shall be appropriately marked showing it to be an official police vehicle. *

Nat'l Comm. on Unif. Traffic Laws & Ordinances, Uniform Vehicle Code & Model Traffic Ordinance § 11-911(a) (2000). A number of states have laws similar to Section 30-22- 1(C) and Section 30-22-1.1 (A), see, e.g., Ga. Code Ann. § 40-6-395(a) (2012); N.D. Cent. Code § 39-10-71 (2011), although we are aware of none with identical language.

I. UNIFORMED LAW ENFORCEMENT OFFICER

{¶8} We first address whether Deputy Russ was "uniformed", i.e., wearing a uniform on September 4, 2013, within the meaning of Section 30-22-1.1 (A). Defendant generally argues that the street clothes Russ was wearing that day do not constitute a uniform. The State maintains that Russ's badge alone was a uniform. Alternatively, the State argues, because he was required to wear dress shoes, pants, and shirt with tie, those items combined with his badge, handcuffs, and firearm together constituted a uniform.

{¶9} "When an appeal presents an issue of statutory construction, our review is de novo." State v. Tafoya, 2010-NMSC-019, ¶ 9, 148 N.M. 391, 237 P.3d 693. Challenges to the sufficiency of the evidence supporting a conviction that raise an issue of statutory interpretation are subject to the same de novo review standard. See State v. Erwin, 2016-NMCA-032, ¶ 5, 367 P.3d 905, cert, denied, 2016-NMCERT-___ (No. S-1-SC-35753, Mar. 8, 2016).

A. The Plain Meaning of "Uniform"

{¶10} Section 30-22-1.1 (A) does not define "uniformed." Therefore, we interpret its meaning based on rules of statutory construction. "Our primary goal when interpreting statutory language is to give effect to the intent of the [Legislature." State v. Torres, 2006-NMCA-106, ¶ 8, 140N.M.230, 141 P.3d 1284. A court begins the search for legislative intent of a statute "by looking first to the words chosen by the Legislature and the plain meaning of the Legislature's language." State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064 (internal quotation marks and citation omitted).

{¶11}

Webster's Third New International Dictionary 2498 (Unabridged ed. 1986) defines "uniform" as "dress of a distinctive design or fashion adopted by or prescribed for members of a particular group . . . and serving as a means of identification[]" (Emphases added.); accord Uniform, New Oxford American Dictionary 1890 (3d ed. 2010) (defining a uniform as "the distinctive clothing worn by members of the same organization or body"). "Dress, " in turn, is defined as "utilitarian or ornamental covering for the human body: as . . . clothing and accessories suitable to a specific purpose or occasion[.]" Dress, Webster's Third New Int'l Dictionary 689 (Unabridged ed. 1986) (emphasis added).

{¶12} This definition of uniform is significant in two respects. First, a uniform consists of clothing, as distinguished from, for example, only a law enforcement officer's badge. Stated another way, equipment alone, without distinctive clothing, is not "dress of a distinctive design or fashion[, ]" i.e., it is not a uniform. Cf. 2.110.3.8(B)(2) NMAC (distinguishing between "holsters, ... uniforms, belts, badges and related apparatus" as items eligible for purchase with funds from the Law Enforcement Protection Fund Act, NMSA 1978, §§ 29-13-1 to -9 (1993, as amended through 2017)). Second, a uniform is clothing that distinguishes the wearer from the general public, i.e., identifies him or her as a member of a particular group.

{¶13} Deputy Russ's...