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State v. Hicks2/7/2002
filed against Defendant on April 4, 2000, charging him with the felony offense of failure to appear, contrary to Section 31-3-9(A). Defendant appeals from a jury verdict on that charge.
DISCUSSION
The Meaning of "Failure to Appear"
The State argues that, when Defendant failed to post bond and fled, he committed an act violating the failure to appear statute, as contemplated by Section 31-3-9 (subsequently amended in 1999). The State contends that Defendant knew he was required to appear before the magistrate court to post bond, and committed the crime when he knowingly and willfully "failed to appear," without excuse or justification. As of the date of the underlying vehicular crime, Section 31-3-9 (1973) read, in part: "Any person released pending trial or appeal in any criminal action who willfully fails to appear before any court or judicial officer as required . . . is guilty of a fourth degree felony, if he was released in connection with a felony proceeding." Cf. § 31-3-9 (1999) (subsequently expanding the offense to include failure to appear at a probation revocation proceeding). The jury was instructed pursuant to UJI 14-2229 NMRA 1999. The jury instruction stated:
For you to find efendant guilty of Failure to Appear as required by conditions of release as charged in Count 1, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
[Defendant] was released pending trial in a criminal action on the conditions that [Defendant] appear as required by the court.[Defendant] failed to appear as required by the court;[Defendant's] failure to appear was willful, without sufficient justification or excuse.This happened in Taos County, New Mexico, on or about the 1st day of April, 1998.
The State argues that the jury found Defendant's conduct met the essential elements of the crime, including the element that Defendant "was released pending trial" on the condition that he "appear as required by the court." Id. After reviewing the arraignment sheet and the Release Order and Bond form, the magistrate judge testified that, to his recollection, Defendant was "required to appear" before the magistrate court by April 1, 1998, to post bond. He did not testify that he had given Defendant a clear verbal order to appear, independent of the requirement that he post bond. The State further argues that, because Defendant had signed the Release Order and Bond form, he knew that he was required to return to the magistrate court to post bond. The State argues that, under the executed Release Order and Bond form, Defendant was required to appear "by 4-1-98" with the money. His failure to do so constituted a failure to appear under the clear and unambiguous language of the statute.
Defendant argues that his failure to post bond does not constitute a failure to appear under Section 31-3-9. Defendant emphasizes that the magistrate judge left blank that portion of the Release Order and Bond form used to establish the time, place, and location of any appearance that would have been required of him. In pre-printed language, the form, partially completed by the magistrate judge, read exactly as follows with blank spaces left incomplete as indicated: "I agree to appear before the court on _______, 19 _____, at _______ located at _____________ and thereafter at such times and places required in this case by any court." As previously mentioned, the order form required Defendant to post $100 "by 4-1-98."
Defendant concedes that his failure to post bond may have violated NMSA 1978, Section 31-3-2 (1993), the statute concerning failure to appear as required under recognizance or b
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