State v. Ellis

905 P.2d 747, 120 N.M. 709
CourtNew Mexico Court of Appeals
DecidedSeptember 27, 1995
DocketNo. 16116
StatusPublished
Cited by13 cases

This text of 905 P.2d 747 (State v. Ellis) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ellis, 905 P.2d 747, 120 N.M. 709 (N.M. Ct. App. 1995).

Opinions

OPINION

APODACA, Chief Judge.

Rick Ellis (Defendant) appeals the trial court’s restitution order entered after Defendant’s guilty plea to two misdemeanors— attempted tampering with evidence and embezzlement. Defendant raises two issues on appeal. First, he challenges the trial court’s authority to enter its restitution order under NMSA 1978, Section 31-17-1 (Repl. Pamp.1994). This challenge is two-fold — Defendant argues that: (1) the two misdemean- or crimes he was convicted of cannot be a predicate for requiring restitution under Section 31-17-1 because of the absence of the required causal relationship between Defendant’s conduct underlying the two convictions and the damages incurred by the victim; and (2) the State1 is not a “victim” as that term is used in Section 31-17-1. Second, Defendant contends that, assuming the trial court had the authority to order restitution under Section 31-17-1, the court abused its discretion concerning the amount of restitution. We hold that the trial court did not: (1) err in determining that the two crimes Defendant was convicted of properly formed the basis for the trial court’s restitution order under Section 31-17-1; (2) err in determining that the police department (the Department) of the City of Clovis, a municipality, which is a political subdivision of the State, was a victim entitled to restitution under Section 31-17-1; and (3) abuse its discretion in arriving at the amount of restitution. We therefore affirm.

I. BACKGROUND

Defendant was an undercover narcotics officer of the Department. As such, Defendant made approximately forty-five controlled substance purchases. Sometime during these purchases, the Department became aware that Defendant was allegedly “stealing” some of the drugs he obtained during his undercover purchases. This information eventually led to the original criminal charges for which Defendant was indicted.

At the sentencing hearing, the State requested restitution, claiming that the Department had lost a considerable amount of money as a result of the State’s inability to prosecute the undercover cases on which Defendant had worked. Specifically, the State argued that, because of the indictment against Defendant, it was required to dismiss the cases on which Defendant was to be a material witness. The State requested restitution in the amount of $7,640.22, which represented $2,114.00 paid to Defendant as salary, $1,766.22 paid to Defendant as expense money required to “get close” to drug dealers, and $3,770.00 spent for the actual purchase of drugs. Defendant, on the other hand, argued that restitution should be limited to $211.00, a sum representing the actual amount embezzled.

The trial court, upon entering its judgment and sentence, ordered Defendant to pay $7,640.22 in restitution to the Department. In so doing, the trial court determined that, under the authority of Section 31-17-1 and State v. Madril, 105 N.M. 396, 733 P.2d 365 (Ct.App.1987), which the trial court believed controlled the question before it, there was a sufficient causal link between Defendant’s criminal activities, as defined in Section 31-17-1, and the Department’s claimed damages or losses.

II. DISCUSSION

A. The Trial Court’s Authority To Order Restitution Under Section 31-17-1

Relying on Section 31-17-1, Defendant first argues that the “general rule” in New Mexico and other jurisdictions “is that restitution may be ordered solely to compensate for the harm caused by the conduct forming the factual basis of the crime of conviction.” Second, Defendant claims that funds voluntarily expended by the Department, such as the sums comprising the $7,640.22 Defendant was ordered to pay, are not losses or damages of a “victim” as contemplated by Section 31-17-1 or New Mexico case law. We shall consider each of these arguments separately, discussing Defendant’s second argument first.

1. Was The Department A Victim Under Section 31-17-1?

“It is the policy of this state that restitution be made by each violator of the Criminal Code to the victims of his criminal activities____” Section 31-17-1(A). “Victim” is defined as “any person who has suffered actual damages as a result of the defendant’s criminal activities.” Section 31-17-1(A)(1). Defendant argues that the Department does not qualify as a “person” under Section 31-17-l(A)(l)’s definition of “victim.” Because the Department is not a person, Defendant argues, it cannot be a victim under the statute, and restitution therefore could not be ordered. We disagree.

In State v. Griffin, 100 N.M. 75, 77, 665 P.2d 1166, 1168 (Ct.App.1983), this Court directly addressed the meaning of “person” as used in Section 31-17-1. Griffin unequivocally held that the definition of “person” in Section 31-17-1 was the same as the definition of “person” appearing in the general provisions of the Criminal Code, specifically, in NMSA 1978, Section 30-l-12(E) (Repl. Pamp.1994). Section 30 — 1—12(E) defines “person” as “any human being or legal entity, whether incorporated or unincorporated, including the United States, the state of New Mexico or any subdivision thereof.” Municipal corporations, such as the City of Clovis, of which the Department is a part, are political subdivisions of the state. See City of Albuquerque v. Campbell, 68 N.M. 75, 79, 358 P.2d 698, 701 (1960). As a political subdivision of the state, the Department is a person under Section 30-l-12(E) and therefore is a person under Section 31-1-17.

Nevertheless, Defendant contends that, “for purposes of this appeal, the general definition of ‘person’ appearing in the criminal code is overbroad ... and cannot prevail over the specific definition of victim appearing in [Section 31-17-1] and achieve indirectly what is forbidden directly.” We disagree. Defendant’s generalized argument, without citation to authority, does not persuade us that Griffin’s definition of “person” is not applicable to this appeal. See SCRA 1986, 12-213(A)(3) (brief-in-ehief shall “contain the contentions of the appellant with respect to each issue presented and how preserved in the court below, with citations to authorities and parts of the record proper”) (emphasis added); Roselli v. Rio Communities Serv. Station, Inc., 109 N.M. 509, 512, 787 P.2d 428, 431 (1990) (issue briefed without cited authority will not be reviewed); Fenner v. Fenner, 106 N.M. 36, 41-42, 738 P.2d 908, 913-14 (Ct.App.) (commenting that this Court will not review issues unsupported by cited authority), cert. denied, 106 N.M. 7, 738 P.2d 125 (1987).

Defendant also argues that a political subdivision of the state cannot recover restitution under Section 31-17-1 for a voluntary expenditure of public funds previously budgeted, because such expenditures cannot be considered damages under the statute. In support of this argument, Defendant relies on numerous cases from other jurisdictions.

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905 P.2d 747, 120 N.M. 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ellis-nmctapp-1995.