State v. Hicks2/7/2002
ail bond. However, Defendant points out that the exclusive penalty under Section 31-3-2(A) is that the court "may issue a warrant for his arrest" and modify the conditions of release, which in fact occurred in this case. In sum, Defendant takes the position that the only "appearance" actually required by the magistrate court was the appearance of money. Although his failure to post bond did violate his conditions of release, he argues that it did not amount to a felony under Section 31-3-9.
In arguing for the inclusion of this case within the statute, the State asserts that the language of Section 31-3-9 is clear and unambiguous, necessitating only a common sense reading without statutory construction. See Levario v. Ysidro Villareal Labor Agency, 120 N.M. 734, 736, 906 P.2d 266, 268 (Ct. App. 1995) (stating that, absent a clear and express legislative intention to the contrary, a court should "presume that the legislature intended the ordinary and common meanings of words to apply"); State v. Richardson, 113 N.M. 740, 741, 832 P.2d 801, 802 (Ct. App. 1992) (stating that a common-sense reading will suffice where language is clear and unambiguous). However, where the language of a statute is ambiguous, courts must resort to statutory construction, to search for and effectuate the legislative intent. See State ex rel. Helman v. Gallegos, 117 N.M. 346, 347-48, 871 P.2d 1352, 1353-54 (1994). The principal command of statutory construction is that the court should determine and effectuate the intent of the legislature. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (stating that main goal of statutory construction is to give effect to legislative intent); State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) (same). It is also a principal tenet of criminal jurisprudence that ambiguity in criminal statutes is strictly construed against the State. "It has long been part of the common law that penal statutes are strictly construed against the state, and that ny doubts about the construction of penal statutes must be resolved in favor of lenity." State v. Sung, 2000-NMCA-031, 15, 128 N.M. 786, 999 P.2d 430 (quoting Santillanes v. State, 115 N.M. 215, 221, 849 P.2d 358, 364 (1993)) (internal quotation marks omitted).
We cannot agree with the State's characterization of either the statute or the facts. One thing that was "clear" below is just how difficult the trial court found it to discern the legislative intent behind the phrase "to appear." The record indicates the court's reservations about the applicability of Section 31-3-9 to Defendant's conduct. The trial court admitted its misgivings about whether or not the phrase "to appear" would apply to Defendant's conduct. When considering a defense motion for a directed verdict, the court "d dn't know what to make of [the Failure to Appear statute]," finding it "pretty vague" as to what meaning the legislature intended for the phrase "to appear." At trial, the jury also asked for clarification regarding the proper procedure associated with insuring that a defendant understands the conditions of release, such as the requirement that a defendant post bond.
The State, rather creatively, maintains that "it could be argued" that Defendant was, in effect, released on his own recognizance to obtain the $100 for bond money. The State points out that NMSA 1978, Section 31-1-2(G) (1979), defines "recognizance" as "any obligation of record entered into before a court requiring the accused to appear at all appropriate times or forfeit any bail and subject himself to criminal penalty for failure to appear." According to the State, this was an obligation of record entered into before the magistrate court that effectively rel
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