text:
    STATE of Montana, Plaintiff and Appellee, v. Charles Geoffrey SANTORO, Defendant and Appellant.
    DA 17-0454
    Supreme Court of Montana.
    Submitted on Briefs: July 17, 2019 Decided: August 13, 2019
    For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Chad G. Parker, Catherine Truman, Assistant Attorneys General, Helena, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Appellant Charles Geoffrey Santoro (Santoro) appeals from the jury verdict finding him guilty of negligent homicide and subsequent written judgment entered by the Ninth Judicial District Court, Toole County, thereon on June 6, 2017. We reverse and remand for a new trial.

¶2 We restate the issues on appeal as follows:

1. Whether Santoro's trial counsel provided ineffective assistance of counsel by failing to serve a subpoena upon or otherwise preserve the testimony of a crucial defense witness for trial.
2. Whether the District Court erred in failing to deduct funds paid by Santoro's insurance to Justin Gallup and Tiffany Rowell from their restitution awards.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Santoro was charged with negligent homicide and two counts of felony criminal endangerment in connection with an incident occurring outside the VFW bar in Sunburst on August 18, 2013. At conclusion of his jury trial in August 2016, Santoro was convicted of all three offenses. On June 6, 2017, the District Court issued its written judgment in which it sentenced Santoro to 20 years MSP, 5 suspended on the negligent homicide offense and 10 years MSP, 5 suspended on each criminal endangerment offense. The District Court ran the criminal endangerment sentences concurrent with each other but consecutive to the negligent homicide sentence. The District Court also imposed restitution in the amount of $917,428.37-comprised of $57,640 to Justin Gallup (Gallup) and $859,788.37 to Tiffany Rowell (Tiffany). Santoro appeals only the negligent homicide conviction, and also asserts the District Court erred by failing to deduct the $50,000 paid by his insurance-$25,000 to each Gallup and Tiffany-from each's restitution award.

¶4 On August 18, 2013, Santoro and Richard Potter went to the VFW bar in Sunburst. While there he encountered Levi Rowell (Rowell), Levi's wife Tiffany, and Levi's friend Gallup. Santoro and Rowell knew each other as Santoro previously worked for Rowell for a brief time and they are neighbors-they lived across the road from one another. Santoro and Rowell had a couple drinks together and participated in the good-natured banter of those in the bar. Santoro's participation became crude and he was asked to leave the establishment. When he and Potter left, he commented something to the effect that none of the other patrons in the bar were veterans to which Rowell responded that neither was Santoro. This offended Santoro such that as he went to his truck, he slammed a beer bottle on the walkway.

¶5 Rowell, hearing the bottle smashing outside, became convinced Santoro had done something to Rowell's vehicle. He got up to follow Santoro, but his wife and Gallup precluded him from leaving by blocking the door. When Tiffany thought sufficient time had passed for Santoro to leave, she permitted Rowell to go outside and she and Gallup followed. When they got outside, Tiffany realized Santoro had not yet driven away but remained parked next to their vehicle. Santoro was sitting in the driver's seat, Potter was in the passenger seat, and the vehicle was running. Rowell, with Tiffany and Gallup trailing approached Santoro's vehicle-Santoro's driver's door was either open or Rowell opened it-and Santoro and Rowell began yelling at each other. Santoro asserts Rowell then grabbed him by the neck and began choking him. Santoro asserts he was starting to lose consciousness and as he could not drive forward because the bar was in front of his truck, he gassed the truck in reverse. The reversing truck's open door caught Rowell as well as Tiffany and Gallup. Rowell was dragged and pulled under the truck and Tiffany and Gallup were cast outward from the door. Santoro felt a bump as he reversed and turned the steering wheel to the right and then put the truck in forward gear and turned to the left and sped away.

¶6 Santoro consistently maintained a justifiable use of force defense, asserting his response of swiftly reversing was justified to get away from Rowell choking him. The State's theory of prosecution at trial was that Santoro drove over Rowell two times-once while reversing and again while going forward. The State did not present any testimony of investigating law enforcement officers or an accident reconstructionist in support of its theory, but instead relied on pictures taken of the scene and the testimony of Rowell's family and friends who were present during the incident. At trial, these witnesses-Tiffany, Billy Jean Scarbrough, and Sandra Owens-testified to Santoro running Rowell over both while backing up and again while going forward. Each, however, either admitted this to be inconsistent with what they related to law enforcement immediately after the incident or admitted on cross-examination that they really had not seen Rowell hit when Santoro drove forward.

¶7 On closing, the State argued extensively in promotion of its theory that regardless of whether Santoro was justified gassing his truck in reverse to get away from Rowell, he was not justified in then putting it in gear and driving over Rowell a second time:

• "Levi was dragged and then run over. As Sandy Owens said, she saw the defendant run Levi over in reverse and then run him over going forward. He never hesitated. He just boom and went forward."
• "Tiffany, as she was coming to her feet, looked out and saw Levi about 12 feet in front of the defendant in the headlights, and she said he put it in forward and gunned it forward and ran over Levi."
• "Jeah Scarbrough saw the pickup run over Levi as the defendant drove forward."
• "He peeled out in reverse and forward, never once slowed down. He used lethal, deadly force against all three."
• Defense claim of photos showing where Santoro's vehicle went don't match "eyewitnesses' reports."
• "The testimonial evidence and the physical evidence show he ran Levi over going backward and forward. But the defendant insinuates, No, you shouldn't trust the eyewitnesses."
• "Whatever excuse he's given for going backward, he's got no reasonable or rational explanation for why he went forward at all. Why is that? Because there isn't one."

¶8 Trooper Christopher Garza (Garza), then with the Montana Highway Patrol, responded to the scene shortly after the incident. Garza was the law enforcement individual responsible for investigation of the scene and reconstruction of the accident. Garza marked tire tracks as well as the location of items of physical evidence, took measurements, and prepared an accident reconstruction report. The ultimate findings of this report appear to be inconsistent with the State's theory of prosecution-based on the physical evidence of the scene, the report indicates that Rowell had been dragged under Santoro's truck while it was traveling in reverse and does not indicate that Rowell had been run over a second time when Santoro pulled forward. Needless to say, the State did not call Garza as a witness.

¶9 During its case-in-chief, Santoro's trial counsel, Max Battle, attempted unsuccessfully to admit Garza's accident reconstruction report through Sergeant Kukowski, asserting this to be appropriate as Garza was no longer a Montana Highway Patrolman, he had moved out of Montana, and counsel had only located him the evening before. Trial counsel asserted that Garza was an unavailable witness such that his report could be entered as an exception to the hearsay rule. During argument on the State's objection, it is abundantly clear that trial counsel recognized Garza to be an important material witness with relevant, direct evidence refuting the State's theory of prosecution and refuting the accounts of the witnesses presented by the State. From the argument, it is clear trial counsel did nothing on a pretrial basis to preserve Garza's testimony. Trial counsel indicated he obtained a subpoena for Garza approximately two weeks before trial, but when he tried to serve it, he was told Garza was in Washington. Trial counsel represented to the District Court that he did not then have an address or any contact information for Garza, he had his investigator searching for Garza since, and they had finally located him the prior evening. Trial counsel spoke with Garza who related that he was not willing to appear for trial in person or by telephone. In response, the State indicated it has had Garza's contact information since he left Montana and trial counsel failed to ever contact the State to obtain this information. The State argued Garza was at the very same telephone number he had always had and that he was very easy to find.

¶10 Post-trial, Santoro unsuccessfully filed a motion for a new trial alleging, among other bases, that the State should have been required to call Garza as a witness as the results of his investigation contained exculpatory evidence.

STANDARD OF REVIEW

¶11 Claims of ineffective assistance of counsel are mixed questions of law and fact that we review de novo. State v. Jefferson , 2003 MT 90, ¶ 42, 315 Mont. 146, 69 P.3d 641.

¶12 We review a district court's imposition of sentence for legality. State v. Herman , 2008 MT 187, ¶ 11, 343 Mont. 494, 188 P.3d 978.

DISCUSSION

¶13 1. Whether Santoro's trial counsel provided ineffective assistance of counsel by failing to serve a subpoena upon or otherwise preserve the testimony of a crucial defense witness for trial.

¶14 Article II, Section 24 of the Montana Constitution and the Sixth Amendment to the United States Constitution, as incorporated through the Fourteenth Amendment, guarantee a defendant the right to effective assistance of counsel. State v. Kougl , 2004 MT 243, ¶ 11, 323 Mont. 6, 97 P.3d 1095.

¶15 In assessing ineffective assistance of counsel (IAC) claims, we apply the two-pronged test set forth in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Kougl , ¶ 11. Under the Strickland test, the defendant must (1) demonstrate that "counsel's performance was deficient or fell below an objective standard of reasonableness" and (2) "establish prejudice by demonstrating that there was a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different." Kougl , ¶ 11 (quoting State v. Turnsplenty , 2003 MT 159, ¶ 14, 316 Mont. 275, 70 P.3d 1234 ). Courts determine deficient performance based on whether a defendant's counsel acted within the broad "range of competence demanded of attorneys in criminal cases." Schaff v. State , 2003 MT 187, ¶ 18, 316 Mont. 453, 73 P.3d 806 (citation omitted). A strong presumption exists that counsel's conduct falls within the wide range of reasonable professional conduct. Kougl , ¶ 11.

¶16 When defendants raise ineffective assistance of counsel claims on direct appeal, we first determine whether the claims are more appropriately addressed in a postconviction relief proceeding. Kougl , ¶ 14. "[A] record which is silent about the reasons for the attorney's actions or omissions seldom provides sufficient evidence to rebut" the strong presumption counsel's conduct falls within the wide range of reasonable professional conduct.

State v. Sartain , 2010 MT 213, ¶ 30, 357 Mont. 483, 241 P.3d 1032. If we cannot answer from the record "the question 'why' counsel did or did not take the actions constituting the alleged ineffective assistance, the claims are better raised by a petition for post-conviction relief where the record can be more fully developed, unless 'no plausible justification' exists for the defense counsel's actions or omissions." Sartain , ¶ 30 (quoting Kougl , ¶¶ 14-15 (internal citation omitted)). Trial counsel is afforded considerable latitude, and Santoro "must overcome the presumption that, under the circumstances," counsel's decision could be considered a sound strategy. Strickland , 466 U.S. at 689, 104 S. Ct. at 2065.

¶17 Santoro argues his trial counsel was ineffective because there was no justifiable reason to not subpoena Garza sufficiently in advance of trial to assure his attendance. Counsel clearly recognized Garza's importance in that he was the individual working for the State charged with investigating the scene and reaching conclusions based on the physical evidence. His findings directly controverted the State's theory of prosecution that Santoro drove over Rowell twice-once when backing away and again by pulling forward.

¶18 The State counters that this is not a record-based appeal and is better left to a petition for postconviction relief. The State further argues that Santoro cannot establish how Garza's testimony would have resulted in an acquittal as it is undisputed Santoro ran over Rowell and that once he asserted justifiable use of force the State did not have to prove Santoro purposely drove forward over Rowell.

Finally, the State asserts that Garza would likely, in essence, disregard his physical findings and the conclusions of his investigation and instead-when faced with the multiple witnesses' consistent recollection of seeing Santoro drive forward and over Rowell and the pervasive injuries suffered by Rowell-testify that there was, at the very least, a possibility that Santoro ran over Rowell twice.

¶19 There is ample evidence in the record to demonstrate trial counsel's ineffective assistance of counsel as it relates to securing Garza as a witness. He clearly recognized Garza was a material, crucial witness with evidence directly contesting the State's trial theory. Counsel attempted to subpoena Garza but his efforts at doing so were untimely and ineffective. Believing Garza's whereabouts unknown, trial counsel failed to ask the State if it had contact information for him. Recognizing the importance of Garza's evidence, trial counsel tried to correct his ineffectiveness. When he was not able to secure Garza's appearance at trial, trial counsel unsuccessfully attempted to at least enter Garza's report through another officer. Post-trial, trial counsel unsuccessfully sought a new trial arguing the importance of Garza's evidence and the need for him to appear in order for Santoro to have a fair trial. The record sufficiently supports the lack of any tactical or strategic reason or plausible justification for defense counsel's failure to secure Garza's presence at trial or otherwise preserve his testimony for trial.

¶20 In order for Santoro to succeed on direct appeal, he must rebut the strong presumption that counsel's conduct in failing to secure Garza as a trial witness or otherwise preserve Garza's testimony for trial falls within the wide range of reasonable professional conduct. Sartain , ¶ 30. The State asserts this "Court need not determine whether [trial counsel's] performance was deficient since Santoro has failed to demonstrate how the result of the proceedings would have been different had [counsel] successfully subpoenaed Trooper Garza." We do not agree. While selection of witnesses is usually within the discretion of trial counsel, under the particular situation herein-trial counsel recognized Garza was a material witness whose evidence contradicted the State's theory of the case and his failure to secure him as a witness was not planned or intentional-we cannot conclude trial counsel's failure to secure Garza as a trial witness or otherwise preserve Garza's testimony fell within the wide range of reasonable professional conduct. Trial counsel's failure to secure Garza as a trial witness or otherwise preserve Garza's testimony for trial constituted deficient performance and fell below an objective standard of reasonable conduct.

¶21 The second prong of the Strickland test requires Santoro show prejudice from counsel's deficient performance. It is clear from the record before us that, if presented with Garza's investigation and conclusion that Rowell was struck and killed while Santoro was driving in reverse, such would lend support to the defense Santoro presented at trial, while discounting the State's trial theory. As such, Santoro has demonstrated "a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Kougl , ¶ 11 (quoting Turnsplenty , ¶ 14 ). Trial counsel's deficient performance prejudiced Santoro such that it is appropriate to vacate his negligent homicide conviction and remand to the District Court for a new trial thereon.

¶22 2. Whether the District Court erred in failing to deduct funds paid by Santoro's insurance to Justin Gallup and Tiffany Rowell from their restitution awards.

¶23 The law entitles injured parties at a criminal sentencing hearing to restitution for "pecuniary loss," but pecuniary loss is defined to include only those "special damages ... that a person could recover against the offender in a civil action[.]" Section 46-18-243(1)(a), MCA. Restitution is a civil remedy, not a criminal punishment, which may not be ordered for damages not recoverable in a civil action. State v. McClelland , 2015 MT 281, ¶ 10, 381 Mont. 164, 357 P.3d 906. Criminal restitution permits parties injured by a criminal offense to use the criminal justice system to obtain the relief that would be available to them by filing a civil action, but without having to file a civil action. State v. Jent , 2013 MT 93, ¶ 12, 369 Mont. 468, 299 P.3d 332.

¶24 It is not disputed that Santoro's insurance paid $25,000 to each Justin Gallup and Tiffany Rowell. Santoro asserts that the District Court erred by not deducting these payments from the restitution awarded to them. The State argues that "there is no [statutory] provision requiring deduction of any such [insurance] reimbursement from the amount the offender must be ordered to pay." State v. Fenner , 2014 MT 131, ¶ 12, 375 Mont. 131, 325 P.3d 691.

¶25 Fenner is distinguishable from the situation here. Fenner assaulted a fellow motorist, Martin, who he believed had cut him off. As a result of the injuries caused by Fenner, Martin suffered medical and dental expenses which Fenner was ordered to pay as restitution to Martin. Martin's insurer paid for some portion of these expenses. Fenner argued his restitution to Martin should have been reduced by the amount paid by Martin's insurer. In affirming the district court, this Court concluded a defendant "is not entitled to benefit from an offset based on the insurance pay-out of his victim." Fenner , ¶ 10. We reasoned the "fact that [the injured party] had insured himself for medical expenses was due to good fortune and foresight; it should not benefit his attacker rather than himself or his insurance company." Fenner , ¶ 12. A defendant accordingly should "not benefit from an offset based on the insurance of the injured party." Fenner , ¶ 12.

¶26 Here, Santoro, not Gallup or Tiffany, paid insurance premiums for insurance coverage to be paid in the event Santoro injured someone while operating his motor vehicle. The insurance payouts came from Santoro's insurance and were paid on Santoro's behalf. In Fenner , the insurance payouts were from the victim's insurance for which the victim, not the defendant, paid insurance premiums. Where insurance payouts are derived from the offender's insurance, they should properly be deducted from any restitution award ordered against the offender. Failure to do so would provide double recovery constituting an unjust enrichment to the injured party. See Schuff v. A.T. Klemens & Son , 2000 MT 357, ¶ 89, 303 Mont. 274, 16 P.3d 1002. It is therefore, appropriate to remand to the District Court to properly deduct these insurance payments from the restitution award to Gallup and from any ultimate restitution award to Tiffany.

CONCLUSION

¶27 Based on the foregoing discussion we conclude Santoro's trial counsel rendered ineffective assistance of counsel by failing to serve a subpoena upon or otherwise preserve the testimony of former Trooper Garza for trial. The $25,000 insurance payouts paid to Gallup and Tiffany from Santoro's insurance shall be credited against the restitution award to Gallup and from any ultimate restitution award to Tiffany.

¶28 Reversed and remanded for a new trial.

We concur:

LAURIE McKINNON, J.

BETH BAKER, J.

DIRK M. SANDEFUR, J.

JAMES JEREMIAH SHEA, J.

      The State objected to the report as hearsay and the District Court sustained the objection.

      This argument is contrary to the State's trial theory where the State recognized a jury could reasonably conclude Santoro's action of driving in reverse to get away from Rowell was justifiable and thus concentrated heavily on, "Whatever excuse he's given for going backward, he's got no reasonable or rational explanation for why he went forward at all. Why is that? Because there isn't one."

      The State argues Santoro's failure to appeal his criminal endangerment convictions establishes he committed negligent homicide. We do not agree. The elements of criminal endangerment are distinct and separate from those of negligent homicide. The criminal endangerment convictions are not before us for consideration in this appeal. Further, we do not speculate as to why Santoro only appealed the negligent homicide and limit our consideration only to the issues presented in this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Montana, Plaintiff and Appellee, v. Bobby Francis LOWRY, Defendant and Appellant.
    DA 17-0413
    Supreme Court of Montana.
    Submitted on Briefs: June 26, 2019 Decided: August 13, 2019
    For Appellant: Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Robert Stutz, Assistant Attorney General, Helena, Montana, Martin D. Lambert, Gallatin County Attorney, Bjorn E. Boyer, Deputy County Attorney, Bozeman, Montana
   Justice Beth Baker delivered the Opinion of the Court.

¶1 Bobby Francis Lowry appeals from the order of the Eighteenth Judicial District Court, Gallatin County, to pay $25,835.37 in restitution to his former employer, Industrial Automation Consultants ("IAC"), after he pleaded no contest to theft of property by embezzlement in violation of § 45-6-301(7), MCA (2015). Lowry argues that § 46-18-243, MCA, does not authorize $13,989.31 of the ordered restitution. We agree with Lowry in part. We reverse a portion of the challenged award and remand for recalculation of restitution.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 Lowry began working as a senior project engineer for IAC in March 2015. IAC provided Lowry with a laptop, an external backup hard drive, and an adapter cable for his work. Lowry spent most of his time with IAC on a project to retrofit an existing control system to a new control platform for an IAC client. During his month-long tenure with IAC, Lowry recorded 112.5 hours on IAC client projects, 18.5 hours in internal training, 8 hours at a quarterly meeting and a conference, and 20 hours of paid time off. On or about April 14, Lowry stopped coming to work. Despite IAC's requests to return the laptop and accessories to IAC, Lowry did not return them. IAC reported the theft of the laptop and related equipment to the Gallatin County Sheriff in April 2015. The State charged Lowry with felony theft of property by embezzlement in violation of § 45-6-301(7), MCA (2015), in December 2015.

¶3 After Lowry left the company without returning the laptop, IAC refused to send him his last paycheck. Lowry filed a complaint with the Montana Department of Labor & Industry. In August 2016, the parties settled the wage dispute. In the settlement, IAC and Lowry agreed to deduct from Lowry's final paycheck the costs of a missing office key, the laptop, and an unpaid hotel bill that Lowry incurred during his employment and IAC paid on his behalf.

¶4 In September 2016, Lowry entered into a plea agreement with the State and pleaded no contest to the charged offense. He admitted that he refused to return the laptop to IAC. The court adjudged Lowry guilty of felony theft of property by embezzlement and scheduled a restitution hearing.

¶5 At the hearing, the State submitted an amended restitution request totaling $25,835.37. The request included the cost of the missing equipment not already deducted from Lowry's final paycheck, the cost of labor to recreate Lowry's work, the lost profits from Lowry's lost work, the cost of Lowry's training and paid time off, and the billable value of the hours the office administrator and president of IAC spent cooperating in the investigation and prosecution of the crime. Charles Wambeke, IAC's president, provided testimony to support the request and laid foundation for receipts for the missing equipment, as well as time sheets from Lowry and from the engineers who recreated Lowry's work.

¶6 Wambeke testified that IAC's standard operating procedures required engineers to upload their work product to IAC's server daily, but that Lowry had not done so. Because Lowry did not back up his work to the server or return the laptop, IAC essentially lost all of Lowry's work product when he left the company and had to recreate it. IAC pulled two engineers from other projects to complete the project by the client's deadline. Wambeke testified that the engineers would have been working on other billable projects during this time but for Lowry's theft of the laptop containing the saved work product. Wambeke requested reimbursement to IAC for the wages it paid Lowry for training, meetings, and paid time off, because "it turned out to be a bad investment" and "was of no value" to the company. He also testified that IAC was requesting the billable rate for the 31 hours that he and the office administrator each had spent on the case. He testified that his billable rate was $169 per hour. He did not testify to the office administrator's billable rate, but the restitution request charged her hours at $85 per hour. Wambeke testified that the hours he spent working on this case kept him from billing time to clients.

¶7 Lowry also testified during the hearing. Though he acknowledged taking the laptop, he claimed that he had not taken the cable or external hard drive. He further contended that he uploaded his work product to IAC's server and to the client and that IAC did not have to recreate it. In its Findings of Fact, Conclusions of Law, and Order for Restitution, the District Court found Wambeke credible and stated that it had "serious concerns" about Lowry's honesty. It ordered Lowry to pay the entire $25,835.37 restitution request. At a later sentencing hearing, Lowry was sentenced to ten years, with five suspended, to the Department of Corrections. The District Court included $25,835.37 restitution in the sentencing order.

STANDARDS OF REVIEW

¶8 A district court's determination of restitution is an issue of law, which we review for correctness. State v. Hill , 2016 MT 219, ¶ 8, 384 Mont. 486, 380 P.3d 768. We review for clear error a district court's findings of fact as to the amount of restitution. Hill , ¶ 8.

DISCUSSION

¶9 Lowry argues that § 46-18-243, MCA, does not authorize all the restitution that the District Court ordered. He maintains that the District Court had no authority to order restitution for (1) the cost of the wages paid to other employees to recreate his work, (2) the reimbursement of wages paid to him for time off and training, or (3) the billable value of the hours that IAC's office administrator and president worked with law enforcement on the case. These amounts add up to $13,989.31 of the ordered restitution.

¶10 Section 46-18-201(5), MCA, requires a sentencing court to "require payment of full restitution to the victim" of the crime for "a pecuniary loss." A sentencing court must "require an offender to make full restitution to any victim who has sustained pecuniary loss, including a person suffering an economic loss." Section 46-18-241(1), MCA. Section 46-18-243(1), MCA, defines "Pecuniary loss" in pertinent part to include:

(a) all special damages, but not general damages, substantiated by evidence in the record, that a person could recover against the offender in a civil action arising out of the facts or events constituting the offender's criminal activities, including without limitation out-of-pocket losses, such as medical expenses, loss of income, expenses reasonably incurred in obtaining ordinary and necessary services that the victim would have performed if not injured, expenses reasonably incurred in attending court proceedings related to the commission of the offense, and reasonable expenses related to funeral and burial or crematory services;
(b) the full replacement cost of property taken, destroyed, harmed, or otherwise devalued as a result of the offender's criminal conduct;
...
(d) reasonable out-of-pocket expenses incurred by the victim in filing charges or in cooperating in the investigation and prosecution of the offense.

¶11 Our case law establishes that restitution ordered under § 46-18-243(1)(a), MCA, "is clearly contingent upon the victim being able to recover the claimed damages in a civil action." State v. Barrick , 2015 MT 94, ¶ 22, 378 Mont. 441, 347 P.3d 241. When restitution is ordered under § 46-18-243(1)(a), MCA, we routinely consider " 'our precedent in the fields of tort and contract law' to determine whether the restitution award was appropriate." Barrick , ¶ 21 (quoting State v. Kalal , 2009 MT 103, ¶ 9, 350 Mont. 128, 204 P.3d 1240 ).

¶12 Lowry first challenges the District Court's order of $4,326.92 for "lost wages" to other engineers to recreate Lowry's work. Lowry argues on appeal that IAC could not recover the wages it paid to other engineers to recreate his work, because those engineers would have worked the exact same hours, albeit on different projects, regardless of his crime.

¶13 The District Court ordered $4,326.92 in restitution for the labor to recreate stolen work product and $11,648.08 for lost profits. Although the District Court characterized the $4,326.92 as "lost wages" for other engineers to recreate Lowry's work, the amount was calculated using the number of billable hours Lowry reported and Lowry's hourly wage of $38.46, not the number of hours other engineers worked on the project and their hourly wages. Timesheets and a payroll log admitted into evidence showed that other engineers spent more time than Lowry to recreate his work and that one engineer's wage rate was higher than Lowry's rate. The District Court then calculated $11,648.08 in lost profits by using the number of billable hours Lowry reported multiplied by Lowry's billable rate of $142 per hour and subtracting the $4,326.92 ordered as "lost wages" from that amount. Wambeke laid the proper ground work for lost profits, explaining that he was unable to bill the client for Lowry's work and that he had to pull engineers off other projects to recreate the work. The time these engineers spent recreating Lowry's work could have been spent on other billable projects. Thus, IAC lost the ability to bill for the hours that Lowry worked when he failed to upload his work product to the server and stole IAC's laptop.

¶14 The District Court erred in ordering $4,326.92 in "lost wages." As a general rule, wages an employer pays to a defendant are not recoverable as restitution. State v. Brewer , 1999 MT 269, ¶ 24, 296 Mont. 453, 989 P.2d 407. The District Court should not have ordered restitution in the amount IAC paid Lowry for wages. But Lowry's theft of the laptop and work product did prevent IAC from billing all 112.5 hours of Lowry's work to clients at $142 per hour. Lowry does not challenge that the District Court properly awarded IAC its lost income. IAC's lost income from Lowry's crime is the number of billable hours he reported multiplied by his billable rate, a total of $15,975. IAC was entitled to recover this full amount that it would have billed clients but for Lowry's theft of the laptop. Thus, the District Court should not have deducted the $4,326.92 of wages from the calculation for IAC's "lost profits."

¶15 Lowry next challenges the District Court's order that he pay $1,788.39 in restitution to reimburse IAC for the wages it paid Lowry for training, conferences, and paid time off. As we explained in Brewer , "wages paid to [the employee] over the course of [his] employment ... do not constitute pecuniary loss to [an e]mployer, and are not recoverable in a civil action against [the employee]." Brewer , ¶ 24. Whether Lowry was being paid to work or for some other authorized purpose, IAC paid him wages for that time. The State does not distinguish Brewer and cites no civil theory under which IAC could recover the wages it paid Lowry for training, conference attendance, and paid time off. The District Court erred in ordering $1,788.39 in restitution to reimburse IAC for the wages it paid Lowry for training, conferences, and paid time off.

¶16 We turn last to the restitution ordered for the billable value of the hours that IAC's office administrator and president worked with law enforcement on the case. Lowry maintains that the District Court improperly ordered these costs as restitution under § 46-18-243(1)(d), MCA, because they were not cash payments or outlays, but rather income IAC claimed it was prevented from earning. Lowry further maintains that the District Court also could not have ordered that amount in restitution under § 46-18-243(1)(a), MCA, because those costs would not be recoverable in a civil action for conversion or breach of contract.

¶17 The District Court ordered restitution pursuant to § 46-18-243(1)(d), MCA, for the billable value of the time the office administrator and president spent cooperating with law enforcement. Subsection (1)(d) allows for the recovery of "reasonable out-of-pocket expenses incurred by the victim in filing charges or in cooperating in the investigation and prosecution of the offense." Section 46-18-243(1)(d), MCA. Unlike restitution ordered under subsection (1)(a), subsection (1)(d) "provides for recovery of victim expenses involving a cash payment or outlay." Barrick , ¶ 17 (holding that a victim's lost wages resulting from defendant's killing of the family dog were not an out-of-pocket expense under the plain language of § 46-18-243(1)(d), MCA ).

¶18 The compensation IAC paid to the office administrator and president for the time they spent working with law enforcement is a "cash payment or outlay" that the company expended "cooperating in the investigation and prosecution of the offense." Section 46-18-243(1)(d), MCA ; Brewer , ¶ 17. But the billable value of those hours is not. The District Court erred in ordering $2,635 in restitution for the billable value of the office administrator's time and $5,239 for the billable value of the president's time spent cooperating with law enforcement under § 46-18-243(1)(d), MCA. Under subsection (1)(d), the out-of-pocket expense IAC incurred for the office administrator's and the president's time is limited to the amount of wages the company paid to them for the time spent cooperating in the investigation and prosecution. The only evidence at the restitution hearing was the billable hourly rate for each. We remand with instructions for the District Court to receive evidence regarding the wage rate of the office administrator and president at the time of their cooperation in the investigation and to recalculate the restitution based on their wage rates. See State v. Coluccio , 2009 MT 273, ¶¶ 45-46, 352 Mont. 122, 214 P.3d 1282 (holding that the district court's restitution figure was supported by insufficient information and remanding for the district court to "legally and factually reconsider[ ]"

the correct amount of restitution), overruled on other grounds by State v. Kim , 2012 MT 69, 364 Mont. 356, 274 P.3d 746.

CONCLUSION

¶19 We affirm in part and reverse in part. We remand with instructions for the District Court to receive evidence regarding the wage rates of the office administrator and president of the company at the time of their cooperation in the investigation and to recalculate restitution in accordance with this Opinion.

We Concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

DIRK M. SANDEFUR, J.

JAMES JEREMIAH SHEA, J.

      It does not matter that IAC agreed to pay Lowry his wages in the Department of Labor & Industry settlement. Lowry was entitled to be paid, and his employer was entitled to what it would have recovered from the client had Lowry turned in his work.


text:
    James Theodore SHARKEY, Appellant, v. Andrea STAPLETON, Respondent.
    No. 79413
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


text:
    Darryl Lloyd WHITE, an Individual, Appellant, v. Meghan Lynn WARD, M.D.; John Doe Ward, Husband and Wife, in Their Individual and Corporate Capacities, and their Marital Community; Michelle Doe, Medical Assistant, in Her Individual and Corporate Capacity ; Anthony Slonim, M.D. Dr. Ph, President and Chief Executive Officer, Renown Health; Jane Doe Slonim, Husband and Wife, in Their Individual and Corporate Capacities, and Their Marital Community; and Renown South Meadows Medical Center, Respondents.
    No. 79289
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


text:
    Blake Lawrence ANDERSON, Appellant, v. The STATE of Nevada; Clark County Public Defender's Office ; Patricia Denise Doyle (D.P.D.); and Philip J. Kohn, (C.C.P.D.), Respondents.
    No. 79209
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


text:
    LN MANAGEMENT LLC SERIES 7205 VISTA BONITA, Appellant, v. BANK OF AMERICA, N.A., a National Association, Respondent.
    No. 77406
    Supreme Court of Nevada.
    FILED AUGUST 16, 2019
    DISMISSED.


text:
    Isaac ZIMMERMAN, Appellant, v. CROSSROADS COMMONS, LTD., LLC; Crossroads Commons Management, L.L.C.; Peccole-Nevada Corporation; Peccole Nevada Corporation; Sports Chalet; and Sports Chalet, L.L.C.; Sport Chalet, LLC ; and Sport Chalet, Respondents.
    No. 79187
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


text:
    Charles Anthony SKAGGS, Appellant, v. The STATE of Nevada, Respondent.
    Charles Anthony Skaggs, Appellant, v. The State of Nevada, Respondent.
    No. 78845 No. 78847
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


text:
    Jonathan GOLDMAN, Appellant, v. The STATE of Nevada, Respondent.
    No. 79330
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


text:
    Archie Sarmiento ZAPANTA, Appellant, v. The STATE of Nevada, Respondent.
    No. 79046
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


text:
    Orluff OPHEIKENS; Slade Opheikens; Chet Opheikens; and Tom Welch, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Jerry A. Wiese, District Judge, Respondents, and Peter Gardner; Christian Gardner, on behalf of Minor Child L.G.; Henderson Water Park, LLC, d/b/a Cowabunga Bay Water Park; Shane Huish; Scott Huish; Craig Huish; William Patrick Ray, Jr.; and R&O Construction Company, Inc., Real Parties in Interest.
    No. 79426
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DENIED.


text:
    LN MANAGEMENT LLC SERIES MADREPERLA STREET, Appellant, v. PHH MORTGAGE CORPORATION, Respondent.
    No. 78019
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


text:
    Marlon Lorenzo BROWN, Appellant, v. Mike SLYMAN; Easy Bail, LLC; and American Surety Company, Respondents.
    No. 79340
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


text:
    LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Appellant, v. Yancey TAYLOR; Brian Arizmendi, Individually; and Las Vegas Police Managers and Supervisors Association, Respondents.
    No. 78400
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


text:
    TYRONE & IN-CHING, LLC, a California Limited Liability Company, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE on Behalf OF MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-HE5, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE5 (Incorrectly Named as "Deutsche Bank National Trust Company"), Respondent.
    No. 76367
    Supreme Court of Nevada.
    FILED AUGUST 27, 2019
    Dismissed.


text:
    LAHRS FAMILY TRUST, Appellant, v. JPMORGAN CHASE BANK, N.A., Respondent.
    No. 74059
    Supreme Court of Nevada.
    FILED AUGUST 27, 2019
    AFFIRMED.


text:
    Calvin Darnell MOTEN, Petitioner, v. CITY OF NORTH LAS VEGAS, Respondent.
    No. 79183
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    Dismissed.


text:
    Edward Joseph HONABACH, Appellant, v. The STATE of Nevada, Respondent.
    No. 78694
    Supreme Court of Nevada.
    FILED AUGUST 23, 2019
    DISMISSED.


author: VARGAS, Judge.

text:
    CITY OF SANTA FE EX REL. SANTA FE POLICE DEPARTMENT, Petitioner-Appellant, v. ONE (1) 1989 BLACK SAAB SEDAN V.I.N. Y53AT76LXK7020541 NEW MEXICO LICENSE NO. 312TNC, Respondent, and Robert H. Boulanger, Claimant-Appellee.
    No. A-1-CA-35944
    Court of Appeals of New Mexico.
    Filing Date: January 10, 2019 Certiorari Denied, May 15, 2019, No. S-1-SC-37524
    Kelley Brennan, City Attorney, R. Alfred Walker, Assistant City Attorney, Michael Prinz, Assistant City Attorney, Santa Fe, NM, for Appellant
    Robert H. Boulanger, New Orleans, LA, Pro Se Appellee
   VARGAS, Judge.

{1} The City of Santa Fe (the City) appeals the district court's order directing the return, upon stated conditions, of Robert Boulanger's (Claimant) car, which was seized pursuant to the City's forfeiture ordinance, Santa Fe, N.M., Code § 24-9 SFCC 1987 (1993, amended 2012) (Santa Fe Ordinance). This appeal requires us to determine whether the New Mexico Forfeiture Act (NMFA), NMSA 1978, §§ 31-27-1 to -11 (2002, as amended through 2015), preempts the Santa Fe Ordinance. Consistent with this Court's recent holding in Espinoza v. City of Albuquerque , 2019-NMCA-014, 435 P.3d 1270, 2018 WL 6381436 (No. A-1-CA-35908, Dec. 5, 2018), we conclude that it does and therefore vacate the district court's judgment and remand the matter to the district court with instructions to dismiss the City's forfeiture petition and unconditionally order the return of Claimant's vehicle.

BACKGROUND

{2} On April 22, 2016, law enforcement officials stopped Claimant for a traffic violation. The Santa Fe Police Department took custody of the car pursuant to the Santa Fe Ordinance, after determining that at the time Claimant was driving the car, his driver's license was revoked or denied as a result of a prior DWI arrest or conviction. Claimant sought a hearing on the forfeiture matter, and following a hearing on the merits, the district court ordered the return of Claimant's vehicle pursuant to the "safe harbor" provision of the Santa Fe Ordinance. See Santa Fe, N.M., Code § 24-9.6. The City appealed, and in assigning the case to the general calendar, this Court sought briefing from the parties regarding "the preemptive effect, if any, of the amendment to the [NMFA], to prohibit civil forfeiture."

DISCUSSION

A. The NMFA Preempts the Ordinance

{3} The City recognizes in its brief that the preemption issue in this case is the same as the one addressed by this Court in Espinoza , 2019-NMCA-014, ¶ 3, 435 P.3d 1270. In Espinoza , we characterized the NMFA as a general law that "applies generally throughout the state, relates to a matter of statewide concern, and impacts everyone across the entire state." Id. ¶ 17. We then compared the ordinance at issue therein, the Albuquerque, N.M. Rev. Ordinance ch. 7, art VI, § 7-6-1 to -7 (1992, as amended through 2017) (Albuquerque Ordinance), which purports to allow for civil forfeiture, with the NMFA, which was created to "make uniform the standards and procedures for the seizure and forfeiture of property subject to forfeiture" and "ensure that only criminal forfeiture is allowed in this state." Id. ¶ 19 (quoting Section 31-27-2(A)(1), (6) ) (emphasis added). We concluded that the Albuquerque Ordinance circumvented the NMFA, since the ordinance by its terms allowed the municipality "to accomplish precisely what the Legislature intended the NMFA to eliminate: civil forfeiture." Id. In fact, after highlighting the substantive and procedural differences between the NMFA and the Albuquerque Ordinance-conviction as a prerequisite to forfeiture, the availability of replevin hearings, allocation of the burden of proof, and the ability to contest the outcome of the proceedings-we concluded that the Albuquerque Ordinance was "so inconsistent with the terms of the NMFA that the NMFA is the equivalent of an express denial of the [municipality's] authority to enforce the [Albuquerque] Ordinance." Id. ¶ 24. At the heart of our conclusion in Espinoza was the fact that, while the NMFA "constrains the circumstances under which a person's property may be subject to permanent forfeiture," the Albuquerque Ordinance "simply-and far more strictly-deems the property associated with the named conduct forfeitable without further consideration." Id . We therefore held that the NMFA preempted the Albuquerque Ordinance "because the enforcement of the [Albuquerque] Ordinance frustrates, and, in fact, completely contradicts the Legislature's intent in amending the NMFA." Id. ¶ 31 ; see ACLU v. City of Albuquerque , 1999-NMSC-044, ¶ 13, 128 N.M. 315, 992 P.2d 866 (analyzing the preemption issue using the explicitly articulated purposes of the general law to determine whether the local law circumvents and thereby frustrates legislative intent in enacting the statute).

{4} Our task in this case, in light of Espinoza , is to determine whether the Santa Fe Ordinance suffers from the same fatal flaws as the Albuquerque Ordinance at issue in Espinoza , rendering it unenforceable, or whether it is sufficiently distinguishable to render Espinoza 's reasoning inapplicable. Given the substantial similarities between the two ordinances, as well as the City's acknowledgement that the Santa Fe Ordinance at issue here is based on the Albuquerque Ordinance that was subject to preemption in Espinoza , we conclude Espinoza applies here and the Santa Fe Ordinance is preempted by the NMFA.

{5} The Santa Fe Ordinance, like the Albuquerque Ordinance, is framed as a motor vehicle nuisance abatement tool aimed at reducing the risk of bodily injury, loss of life, and property damage generally associated with the use of motor vehicles in DWI. See Santa Fe, N.M., Code § 24-9.2; Albuquerque, N.M. Rev. Ordinance ch. 7, art VI, § 7-6-1 (recognizing that DWI presents a potential risk of "serious bodily injury and loss of life and property"). Both ordinances define as public nuisances the operation of motor vehicles by a person in the commission of a DWI offense or by a person whose license has been suspended or revoked as a result of a DWI arrest. See Santa Fe, N.M., Code § 24-9.3 (identifying motor vehicle as public nuisance if "[o]perated by a person who is arrested for a DWI offense" or "[o]perated by a person whose license is currently revoked or denied as a result of a DWI arrest or conviction"); Albuquerque, N.M. Rev. Ordinance ch. 7, art VI, § 7-6-2 (identifying motor vehicle as nuisance if "[o]perated by a person in the commission of a DWI offense" or if "[o]perated by a person whose license is suspended or revoked as a result of conviction for driving while intoxicated"). Like the Albuquerque Ordinance, the Santa Fe Ordinance allows for the seizure of the vehicle of a person who is arrested-but not convicted-of DWI, provides that the vehicle shall not be subject to replevin, and requires that the owner of the property carry the burden of proof-a burden which is distinct from that stated in the NMFA. See Santa Fe, N.M. Code § 24-9.5(B), (C), (E); § 24-9.7(A); Albuquerque, N.M. Rev. Ordinance ch. 7, art VI, § 7-6-5(B), (C), (D); Albuquerque, N.M. Rev. Ordinance ch. 7, art VI, § 7-6-7; see also Espinoza , 2019-NMCA-014, ¶¶ 20-23, 435 P.3d 1240. In all, the Santa Fe Ordinance is marred by the same features that the Espinoza court pointed as a basis for preemption in analyzing the Albuquerque Ordinance.

{6} As was the case in Espinoza , the City argues that the distinction between criminal and civil forfeiture renders the purpose of the NMFA different from that of the Santa Fe Ordinance and that the application of the NMFA is limited, based on the absence of an explicit provision incorporating the NMFA into the Santa Fe Ordinance. We flatly rejected both arguments in Espinoza . The municipality in Espinoza , like the City here, argued that because the Albuquerque Ordinance did not contain "language expressly providing that the NMFA applies," the NMFA could not preempt the Albuquerque Ordinance. Espinoza , 2019-NMCA-014, ¶ 27, 435 P.3d 1270. As we noted in Espinoza , such an approach "subverts the NMFA's clearly stated purpose" of ensuring that only criminal forfeiture exists in New Mexico; "[t]he inferior of two governing bodies ... cannot exempt itself from the application of the sovereign's laws." Id. ¶¶ 28-29.

{7} In light of the substantial similarities between the two forfeiture ordinances, and the considerable overlap between the legal questions and arguments at issue in Espinoza and in this case, we find no reasoned basis to depart from the analysis and conclusion of Espinoza . We therefore hold that the NMFA denies the City authority to seize and forfeit property under the Santa Fe Ordinance because the enforcement of the Santa Fe Ordinance not only frustrates, but contradicts, the Legislature's intent in enacting the NMFA. Given this conclusion, we have no occasion to address the remaining issue raised by the City on appeal.

CONCLUSION

{8} The judgment of the district court applying the provisions of the Santa Fe Ordinance is vacated and the matter is remanded to the district court with instructions to dismiss the City's petition and order the unconditional return of Claimant's vehicle.

{9} IT IS SO ORDERED.

WE CONCUR:

J. MILES HANISEE, Judge

DANIEL J. GALLEGOS, Judge Pro Tempore


author: GALLEGOS, Judge Pro Tempore.

text:
    STATE of New Mexico, Plaintiff-Appellee, v. Jennifer SIMPSON, Defendant-Appellant.
    NO. A-1-CA-35414
    Court of Appeals of New Mexico.
    Filing Date: January 22, 2019 Certiorari Denied, March 13, 2019, No. S-1-SC-37537
    Hector H. Balderas, Attorney General, Marko D. Hananel, Assistant Attorney General, Santa Fe, NM, for Appellee
    Bennett J. Baur, Chief Public Defender, Tania Shahani, Assistant Appellate Defender, Santa Fe, NM, for Appellant
   GALLEGOS, Judge Pro Tempore.

{1} Defendant Jennifer Simpson appeals from the district court's denial of her motion to suppress evidence that she contends was obtained as the result of an illegal seizure in violation of the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Following a hearing resulting in the denial of her suppression motion, Defendant entered a conditional guilty plea to driving while intoxicated (DWI) and driving on a revoked license, reserving her right to appeal the denial of her motion. Defendant contends that she was seized without reasonable suspicion when she stopped her moving vehicle in response to a police officer's tap on the vehicle's window and that the evidence discovered as a result of her illegal detention must be suppressed. We determine that the police officer's initial contact with Defendant was consensual. Accordingly, we affirm the district court's denial of Defendant's suppression motion.

BACKGROUND

{2} On June 17, 2015, in Farmington, New Mexico, Mark Kennedy, a park ranger and animal control officer, was going about his evening duties at a city park complex. At around 11:00 p.m., he noticed a car drive into a nearby parking lot. The parking lot was park property, partially paved, and poorly lit. The driver of the car-later identified as Defendant-parked and turned off her lights. Officer Kennedy found this suspicious because, while not posted as such, the park's official closing time was 10:00 p.m. He reported the suspicious vehicle to dispatch. Farmington Police Officer Nick Adegite arrived in uniform and in a marked patrol car at approximately 11:20 p.m. to investigate Officer Kennedy's suspicious vehicle report. He entered the parking lot and parked near Defendant's stationary vehicle. Officer Adegite at no time engaged his vehicle's emergency lights.

{3} As Officer Adegite approached Defendant's vehicle on foot, Defendant turned on her lights and started to drive away. Officer Adegite then reached out and tapped on the window of Defendant's moving vehicle. Defendant stopped and rolled down her window. Officer Adegite quickly detected the strong odor of alcohol, which led to a DWI investigation and Defendant's eventual arrest. Ultimately, Defendant entered a conditional guilty plea, reserving the right to appeal the district court's denial of her motion to suppress.

DISCUSSION

{4} On appeal, Defendant argues that she was illegally seized when she stopped her vehicle to comply with Officer Adegite's signal to stop because the police officer lacked sufficient reasonable suspicion to make an investigatory stop. For the reasons that follow, we hold that Officer Adegite's tap on Defendant's car window, without more, constituted only a consensual encounter between the officer and Defendant. Therefore, there was no seizure at the time Defendant rolled down her window and Officer Adegite observed a strong odor of alcohol emanating from inside the vehicle.

I. Standard of Review

{5} In reviewing a district court's ruling denying a motion to suppress, this Court draws all reasonable inferences in favor of the ruling and defers to the district court's findings of fact as long as they are supported by substantial evidence. State v. Jason L. , 2000-NMSC-018, ¶¶ 10-11, 129 N.M. 119, 2 P.3d 856. If the district court does not state on the record a disbelief of uncontradicted testimony, we "presume the court believed all uncontradicted evidence." Id. ¶ 11. "When a seizure occurred and whether it was based on reasonable suspicion are mixed questions of fact and law because they involve the mixture of facts and evaluative judgments." State v. Eric K. , 2010-NMCA-040, ¶ 14, 148 N.M. 469, 237 P.3d 771. We evaluate mixed questions de novo. Id.

II. The Initial Encounter Was Consensual and Did Not Constitute a Seizure

{6} Investigatory detentions and arrests are considered seizures for the purposes of the Fourth Amendment's protection against unreasonable searches and seizures. Jason L ., 2000-NMSC-018, ¶ 14, 129 N.M. 119, 2 P.3d 856. While both the State and Defendant acknowledge that Defendant was seized by Officer Adegite at some point during the encounter, they disagree as to when exactly the seizure occurred. Defendant contends that she was seized when she stopped her vehicle in response to Officer Adegite's tap on her window. The State argues that Defendant was not seized until sometime after Officer Adegite observed signs of intoxication, with all prior events being consensual in nature. "The point at which the seizure occurs is pivotal because it determines the point in time the police must have reasonable suspicion to conduct an investigatory stop." State v. Harbison , 2007-NMSC-016, ¶ 10, 141 N.M. 392, 156 P.3d 30.

{7} Under United States v. Mendenhall , 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), "a person is seized within the meaning of the [F]ourth [A]mendment when, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave." State v. Lopez , 1989-NMCA-030, ¶ 4, 109 N.M. 169, 783 P.2d 479. Whether a defendant has been seized "is a case-by-case determination balancing the intrusion into individual privacy against the [s]tate's interest in crime prevention, looking at the totality of the circumstances." State v. Murry , 2014-NMCA-021, ¶ 12, 318 P.3d 180.

{8} The police do not need justification to approach a person and ask that person questions, so long as the actions of the officers do not "convey a message that compliance with their requests is required." Jason L ., 2000-NMSC-018, ¶ 14, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted). Police contact is consensual so long "as a reasonable person would feel free to disregard the police and go about his business[ ] or to decline the officers' requests or otherwise terminate the encounter." State v. Scott , 2006-NMCA-003, ¶ 18, 138 N.M. 751, 126 P.3d 567 (internal quotation marks and citation omitted). "However, if an officer conveys a message that an individual is not free to walk away, by either physical force or a showing of authority, the encounter becomes a seizure under the Fourth Amendment." State v. Gutierrez , 2008-NMCA-015, ¶ 9, 143 N.M. 522, 177 P.3d 1096 (internal quotation marks and citation omitted). Additionally, for purposes of the Fourth Amendment, "a seizure based on a show of authority, as opposed to physical force, requires 'submission to the assertion of authority.' " Harbison , 2007-NMSC-016, ¶ 13, 141 N.M. 392, 156 P.3d 30 (quoting California v. Hodari D. , 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ). However, in State v. Garcia , 2009-NMSC-046, ¶ 35, 147 N.M. 134, 217 P.3d 1032, our Supreme Court held that our State Constitution does not require submission to authority, and instead, the "free-to-leave" test articulated in Mendenhall provides the standard for determining whether a person is seized for purposes of Article II, Section 10 of the New Mexico Constitution. We decide this appeal on state constitutional grounds, applying the Mendenhall "free-to-leave" test.

{9} In determining whether a person was seized, "we evaluate (1) the circumstances surrounding the contact, including whether police used a show of authority; and (2) whether the circumstances of the contact reached such a level of accosting and restraint that a reasonable person would have believed he or she was not free to leave." Scott , 2006-NMCA-003, ¶ 17, 138 N.M. 751, 126 P.3d 567 (internal quotation marks and citation omitted). The first of these determinations is a fact-based inquiry, which we review for substantial evidence. Jason L. , 2000-NMSC-018, ¶ 19, 129 N.M. 119, 2 P.3d 856. The second is a legal inquiry wherein we apply those facts to the law de novo. Id.

A. Circumstances Surrounding the Contact

{10} Evaluating the circumstances surrounding the police-citizen contact in this case, we initially observe that the district court did not make any factual findings, save for noting that Officer Adegite did not employ lights or sirens or otherwise make a show of force. A lack of factual findings "is a regular occurrence when we review decisions on motions to suppress evidence in criminal cases." State v. Gonzales , 1999-NMCA-027, ¶ 11, 126 N.M. 742, 975 P.2d 355. In these circumstances, we presume that the district court believed the uncontradicted testimony of the two witnesses, Officer Kennedy and Officer Adegite. See Murry , 2014-NMCA-021, ¶ 10, 318 P.3d 180 ("If the district court does not state on the record a disbelief of uncontradicted testimony, we presume the court believed all uncontradicted evidence."

(internal quotation marks and citation omitted) ).

{11} As indicated, Officer Adegite arrived after 11:00 p.m. at a poorly lit and partially paved parking lot behind a municipal public park to investigate a report of a suspicious vehicle. He was in uniform and entered the parking lot in a marked patrol vehicle without his emergency equipment activated. Other than Defendant's vehicle, the parking lot was empty and there were no other vehicles or members of the public in the vicinity.

{12} Officer Adegite parked his patrol vehicle in the parking lot. It is unclear from the record how close Officer Adegite parked to Defendant's car or whether Defendant saw the police vehicle as it entered the parking lot. Upon exiting his patrol car, Officer Adegite approached Defendant's vehicle on foot. As he neared the vehicle, Defendant began to drive away. Officer Adegite then tapped on the window of Defendant's moving vehicle (how slowly the vehicle was moving is also unclear from the record), without making any other statement, gesture, or signal. Defendant stopped her vehicle and rolled down the window. It was at that point that Officer Adegite could detect an odor of alcohol coming from inside the vehicle, ultimately leading to Defendant's arrest for DWI.

B. A Reasonable Person Would Have Felt Free to Leave

{13} The initial encounter between Officer Adegite and Defendant entailed little more than the officer's approach toward Defendant's vehicle and his ensuing tap on the car window. The linchpin of Defendant's suppression issue is whether this conduct constituted a "show of [police] authority" at such a level of "accosting and restraint" that it would have conveyed the message to Defendant that she was not free to leave. Scott , 2006-NMCA-003, ¶ 17, 138 N.M. 751, 126 P.3d 567. Three factors should be considered in determining whether a reasonable person would feel free to walk, or more accurately here, to drive away from an encounter with police: "(1) the conduct of the police, (2) the person of the individual citizen, and (3) the physical surroundings of the encounter." Jason L. , 2000-NMSC-018, ¶ 15, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted). Examples of circumstances that might indicate a seizure would be "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Lopez , 1989-NMCA-030, ¶ 3, 109 N.M. 169, 783 P.2d 479 (quoting Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870 ).

{14} Clearly, none of the circumstances enumerated in Lopez are present in this case. That is, although Officer Adegite was in uniform and drove into the parking lot in his marked patrol vehicle, there is no evidence that he displayed a weapon, physically touched Defendant, or used language or tone of voice that would indicate that compliance might be compelled. Further, as the district court found, Officer Adegite did not employ lights or sirens or otherwise make a show of force. He simply tapped on Defendant's window.

{15} A police officer's conduct in tapping on the window of a parked car, without more, is typically not enough to constitute a seizure. In County of Grant v. Vogt , 2014 WI 76, ¶¶ 4-5, 356 Wis.2d 343, 850 N.W.2d 253, the officer observed the defendant park in a lot next to a closed park. The officer parked his squad car behind but not blocking the defendant's stationary and idling vehicle, approached the vehicle on foot, and "rapped" on the window. Id. ¶¶ 6-7. Although the officer was in uniform, he did not activate his vehicle's overhead lights. Id. A majority of the Wisconsin Supreme Court held that this was not a seizure, concluding that "[a]lthough it may have been [the defendant's] social instinct to open his window in response to [the deputy's] knock, a reasonable person in [the defendant's] situation would have felt free to leave." Id. ¶ 53. This Court reached a similar holding in an unpublished opinion. See Padilla v. Motor Vehicle Div. , No. 30,646, 2012 WL 4434501, mem. op., at *2 (N.M. Ct. App. Aug. 14, 2012) (non-precedential) ("[W]e conclude that no seizure occurred where the officer parked his marked patrol unit fifteen feet away from [the d]efendant's vehicle, approached [the d]efendant's vehicle on foot, in uniform and displaying his badge, and tapped on the vehicle's window."). Likewise, courts in other jurisdictions have concluded that tapping on the window of a parked vehicle does not, in and of itself, constitute a seizure. See, e.g. , Rutledge v. State , 28 N.E.3d 281, 289 (Ind. Ct. App. 2015) (determining that a police officer who parked near the defendant's vehicle, approached on foot, and then "tapped on the driver side window and attempted to speak with [the defendant in the parked vehicle]" had not effectuated a seizure because "the degree of intrusion was minor"). But see State v. Patterson , 2005 ME 26, ¶¶ 15-16, 868 A.2d 188 (concluding that tapping on the window of a parked car, combined with a vocal request to open the window, constituted a seizure).

{16} Consistent with this line of authority, Professor LaFave notes in his search and seizure treatise that "if an officer merely walks up to a person standing or sitting in a public place (or, indeed, who is seated in a vehicle located in a public place) and puts a question to him, this alone does not constitute a seizure." 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment , § 9.4(a), at 574-77 (5th ed. 2012) (footnotes omitted). He explains that "[t]he result is not otherwise when the officer utilizes some generally accepted means of gaining the attention of the vehicle occupant or encouraging him to eliminate any barrier to conversation." Id. at 594. He goes on to state that, in order to make a basic inquiry, an officer may tap on the window of a car to get the person's attention without transforming the encounter into a seizure. Id. at 594-95.

{17} The communicative effect of an officer's tap or knock on a vehicle's window is to gain the attention of the occupant(s) of the vehicle; it does not necessarily indicate "that compliance with the officer's request might be compelled[,]" Lopez , 1989-NMCA-030, ¶ 3, 109 N.M. 169, 783 P.2d 479 (internal quotation marks and citation omitted), nor does it communicate that a person is otherwise not free to leave. Cf. Murry , 2014-NMCA-021, ¶ 24, 318 P.3d 180 (holding that a reasonable innocent person receiving an order to open his car door from a uniformed police officer "would perceive that he was not free to disregard the order, let alone free to leave"). Moreover, "[t]he critical factor is whether the policeman, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner which would be perceived as a nonoffensive contact if it occurred between two ordinary citizens." Garcia , 2009-NMSC-046, ¶ 38, 147 N.M. 134, 217 P.3d 1032 (internal quotation marks and citation omitted). Gaining the attention of a vehicle occupant by tapping on the vehicle's window would generally be perceived as nonoffensive contact if it occurred between two ordinary citizens.

{18} What makes this case different, at least in Defendant's view, is that her vehicle was in motion at the time Officer Adegite tapped on the window. Defendant likens this case to a traffic stop. See State v. Funderburg , 2008-NMSC-026, ¶ 13, 144 N.M. 37, 183 P.3d 922 (stating that "[w]hen an officer stops an automobile and detains the occupants for an investigatory stop, the officer has effected a seizure" (internal quotation marks and citation omitted) ). As a general rule, a traffic stop constitutes a seizure. See id. ; see also Delaware v. Prouse , 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (holding that "stopping an automobile and detaining its occupants constitute a seizure" under the Fourth Amendment, even where "the purpose of the stop is limited and the resulting detention quite brief" (internal quotation marks and citation omitted) ). However, we are not persuaded that we are dealing with a traffic stop in this case.

{19} That is to say, the circumstances of Officer Adegite's approach-on foot-toward Defendant's vehicle as it was idling in the parking lot, followed by a tap on the window as it started pulling away, appear to be more akin to an encounter with a pedestrian or with the occupant of a parked car than to a typical traffic stop. See United States v. Adegbite , 846 F.2d 834, 838 (2d Cir. 1988) (holding that where a vehicle "had barely started [driving] in a parking lot, moved only fifteen to twenty yards, and was waved to a halt by DEA agents on foot," the situation was "more analogous to the cases of pedestrians and parked cars to which the Mendenhall seizure test is applied[,]" and recognizing that the "normal circumstances of a vehicle stop," which "generally involve abundant displays of authority, including police uniforms, sirens and flashing lights, and signals to pull off the highway[,]" were not present). Given the conspicuous absence of the typical displays of authority attendant to a traffic stop-sirens, flashing lights, signals to pull off the highway-we decline to treat this case as one involving a typical traffic stop.

{20} Defendant also asserts that a reasonable person would have felt compelled to stop pursuant to NMSA 1978, Section 30-22-1(C) (1981), which prohibits resisting, evading, or obstructing an officer. The plain language of Section 30-22-1(C) prohibits "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 [.]" (Emphasis added.) In this case, along with the lack of typical displays of authority attendant to a traffic stop mentioned above, we also note that Officer Adegite was not in his police vehicle when he approached Defendant's vehicle and tapped on the window. Defendant has not provided us with any argument or authority as to how Section 30-22-1(C) applies here when Officer Adegite was not in his police vehicle. Where a party cites no authority to support an argument, we may assume no such authority exists. See In re Adoption of Doe , 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329.

{21} In the end, we view the fact that Defendant's vehicle was moving as but one of the myriad factors to be evaluated in our totality of the circumstances analysis. See Michigan v. Chesternut , 486 U.S. 567, 572-73, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (eschewing bright-line tests and describing the Mendenhall free-to-leave test as "necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation"). In this case, Officer Adegite, alone, in uniform, and on foot, approached a moving vehicle in a parking lot, and without displaying a weapon or making any gestures or uttering any commands for Defendant to stop, simply tapped on the vehicle's window. Had this window tap occurred in a similar situation involving a parked vehicle, the communicative effect would have been to gain the attention of the vehicle's occupant in order to initiate a consensual encounter and nothing more. We see no meaningful distinction in the communicative effect of the window tap-and surely not of constitutional dimension-on these facts, where the vehicle had barely begun to move after idling in a parking lot.

{22} Viewing the circumstances in their totality, and balancing the intrusion into Defendant's privacy against the State's interest in crime prevention, see Jason L ., 2000-NMSC-018, ¶ 14, 129 N.M. 119, 2 P.3d 856, we conclude that Officer Adegite's approach on foot and his minimally intrusive tap on Defendant's car window did not constitute a "show of authority" at such a level of "accosting and restraint" that it would have conveyed the message to Defendant that she was not free to leave. Therefore, there was no seizure at the point at which Defendant stopped and rolled down her window.

CONCLUSION

{23} Accordingly, we affirm.

{24} IT IS SO ORDERED.

WE CONCUR:

LINDA M. VANZI, Chief Judge

JULIE J. VARGAS, Judge

      We note that Defendant did not make this specific "traffic stop" argument at trial. However, Defendant did contend that the window tap caused her to stop her vehicle, and she presented the necessary evidence to support the legal principle. Therefore, we will consider the argument on its merits. See State v. Paananen , 2015-NMSC-031, ¶ 11, 357 P.3d 958 (determining that an issue was preserved where the state sufficiently asserted the issue and adduced the evidence necessary to support the legal principle, and where the defendant had an opportunity to respond).


author: VANZI, Judge.

text:
    STATE of New Mexico, Plaintiff-Appellee, v. Ricky QUINTANA, Defendant-Appellant.
    No. A-1-CA-36368
    Court of Appeals of New Mexico.
    Filing Date: February 5, 2019 Certiorari Granted, May 17, 2019, No. S-1-SC-37570
    Hector H. Balderas, Attorney General, Maha Khoury, Assistant Attorney General, Santa Fe, NM, for Appellee.
    Bennett J. Baur, Chief Public Defender, Nina Lalevic, Assistant Public Defender, J.K. Theodosia Johnson, Assistant Public Defender, Santa Fe, NM, for Appellant.
   VANZI, Judge.

{1} The unopposed motion for publication filed by the State was granted. The Memorandum Opinion filed in this case on January 14, 2019, is withdrawn and this Formal Opinion is substituted in its place.

{2} Defendant Ricky Quintana appeals the district court's order of commitment on the ground that the district court improperly extended the period of commitment based on aggravating circumstances from fifteen years to twenty years. We affirm.

BACKGROUND

The Facts Leading to Appeal

{3} Michael Grube (Decedent) was found dead on the floor of Defendant's residence. The State and Defendant stipulated that "Defendant ... took the life of Michael Grube on or about April 11, 2003, and amputated Mr. Grube's penis, scrotum and testes." Defendant was charged with an open count of murder and tampering with evidence.

{4} Roughly three years later, in June 2006, the parties stipulated that (1) Defendant was incompetent to stand trial and dangerous; (2) there was not a substantial probability that he would attain competency within a reasonable period of time; (3) there was clear and convincing evidence that he committed second degree murder; (4) aggravating circumstances existed; and (5) the court should enter an order of commitment for a period not to exceed eighteen years-a term based on the fifteen-year sentence for second-degree murder with an additional three years for aggravated circumstances. Defendant has been housed at the New Mexico Behavioral Health Institute from the date of arrest to the present.

{5} Approximately eight years later, Defendant was found competent to proceed to trial. However, shortly before trial was to begin, questions about Defendant's competency to stand trial were raised during a motion hearing. The district court vacated the trial setting and instead held an evidentiary hearing in April 2016 pursuant to NMSA 1978, Section 31-9-1.5 (1999) to determine the sufficiency of the evidence for the two charges in this case: an open count of murder and tampering with evidence. After the hearing, the parties stipulated that the evidence was clear and convincing that Defendant had committed the crime of second-degree murder.

{6} At a commitment hearing in February 2017, the district court took additional evidence regarding mitigating and aggravating circumstances. Based on evidence at the April 2016 and February 2017 hearings, the district court found that

4. The Defendant committed the murder of [Decedent] with extreme viciousness and brutality, as evidenced by testimony presented at the evidentiary hearing on April 11th, 2016 and the commitment hearing on February 24th, 2017; to include the near decapitation of the body, the removal of the genitals, the stabbing of the anus, as well as the numerous wounds to [Decedent]'s head and torso;
....
6. ... Defendant committed the murder of [Decedent] while in a state of psychosis as evidenced by expert testimony at the evidentiary hearing on April 11th, 2016 and the commitment hearing on February 24th, 2017. Based on evidence at those same hearings, ... Defendant had also previously attacked his brother while in a state of psychosis. If released without supervision, there is a danger that ... Defendant would be medically non-compliant and his psychosis would return, thereby creating a threat of harm to the community[.]

The district court also found that both "[t]he brutality and viciousness with which this crime was committed" and "[the] threat to community safety" were "valid aggravating factor[s] by which to increase Defendant's commitment to the New Mexico Behavioral Health Institute (NMBHI) [.]" Based on these findings, the district court ordered Defendant to be committed to NMBHI for fifteen years (the basic sentence for second-degree murder) plus five years for aggravating circumstances. See NMSA 1978, § 31-18-15(A)(4) (2016) (stating that the sentence for a second-degree felony resulting in death is fifteen years); NMSA 1978, § 31-18-15.1(A) (2009) (permitting alteration of a basic sentence up to one-third based on aggravating or mitigating circumstances).

The New Mexico Mental Illness and Competency Code (NMMIC)

{7} The NMMIC has two purposes: "to protect an incompetent defendant from indefinite and unjust commitment to a mental health institution without due process of law and to protect society from dangerous criminals." State v. Chorney , 2001-NMCA-050, ¶ 11, 130 N.M. 638, 29 P.3d 538. Upon a determination by the district court "that there is not a substantial probability that the defendant will become competent to proceed in a criminal case within a reasonable period of time ..., the district court may" conduct criminal commitment proceedings. Section 31-9-1.4. The process for criminal commitment under the NMMIC was described in State v. Rotherham , 1996-NMSC-048, ¶ 17, 122 N.M. 246, 923 P.2d 1131. "For criminal commitment, the State must establish by clear and convincing evidence that the defendant committed the criminal act charged." Id . "If the State ... prove[s] that the defendant committed the criminal act charged, the court is required to determine whether the defendant is dangerous." Id. ; see § 31-9-1.5(C). Section 31-9-1.2(D) states that, in part, " 'dangerous' means that, if released, the defendant presents a serious threat of inflicting great bodily harm on another." "If the court determines by clear and convincing evidence that [the] defendant committed the crime charged and [is] ... dangerous, the defendant must be detained in a 'secure, locked facility,' Section 31-9-1.5(D)(1), for a period not to exceed the maximum sentence available had he been convicted in a criminal proceeding, Section 31-9-1.5(D)(2)." Rotherham , 1996-NMSC-048, ¶ 17, 122 N.M. 246, 923 P.2d 1131.

{8} "The court is further required to conduct a hearing every two years on the issues of competency and dangerousness" and to continue with criminal proceedings if, at any point, the defendant is determined to be competent. Id . ; see § 31-9-1.5(D)(4).

DISCUSSION

{9} Defendant argues that the enhanced sentence based on aggravating circumstances is not permitted under the NMMIC. He does not argue that the commitment order is otherwise erroneous.

{10} Our review of this statutory construction question is de novo. See Chorney , 2001-NMCA-050, ¶ 4, 130 N.M. 638, 29 P.3d 538. "Our task is to ascertain and effectuate the intent of the [L]egislature as to whether the [aggravated circumstances] enhancement can be invoked to enhance a Section 31-9-1.5 commitment."

Chorney , 2001-NMCA-050, ¶ 4, 130 N.M. 638, 29 P.3d 538 (internal quotation marks and citation omitted). We strictly construe criminal statutes "providing for more than the basic punishment." Id . (internal quotation marks and citation omitted). When construing statutes, we "begin by looking at the language of the statute itself[,]" although "[t]he plain meaning rule must yield on occasion to an intention otherwise discerned in terms of equity, legislative history, or other sources." State v. Smith , 2004-NMSC-032, ¶ 9, 136 N.M. 372, 98 P.3d 1022 (internal quotation marks and citation omitted).

{11} Section 31-9-1.5(D)(1), (2) provides that, upon the district court's finding that the defendant committed the crime, and is incompetent and dangerous,

(1) the defendant shall be detained by the department of health in a secure, locked facility; [and]
(2) the defendant shall not be released from that secure facility except pursuant to an order of the district court which committed him or upon expiration of the period of time equal to the maximum sentence to which the defendant would have been subject had the defendant been convicted in a criminal proceeding ;

(emphasis added). To the extent Defendant argues that the phrase "maximum sentence" in Section 31-9-1.5(D) refers only to the basic sentences set out in Section 31-18-15, we disagree.

{12} The Criminal Sentencing Act, NMSA 1978, §§ 31-18-1 to -26 (1977, as amended through 2016), plainly distinguishes between basic sentences and enhanced or maximum sentences. The Legislature made clear that a sentence may consist of a "basic" sentence plus additional terms of imprisonment to be imposed after assessment of additional factors. For example, Section 31-18-15(A) defines the "basic sentences" for felonies and Section 31-18-15(B) provides for alteration of those basic sentences: "The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act." See § 31-18-15.1 ("The judge may alter the basic sentence as prescribed in Section 31-18-15" upon certain findings); § 31-18-17 (providing that a "basic sentence shall be increased" by given periods for habitual offenders). Our cases similarly distinguish between "basic" and "maximum" sentences. See, e.g. , State v. Guerra , 2001-NMCA-031, ¶ 3, 130 N.M. 302, 24 P.3d 334 ("[T]he maximum sentence that may be imposed upon a youthful offender convicted of a non-capital felony is the basic sentence prescribed by ... Section 31-18-15 ... plus any enhancements specifically made applicable to youthful offenders by the Legislature." (emphasis added) ); State v. Gonzales , 1981-NMCA-086, ¶ 15, 96 N.M. 556, 632 P.2d 1194 (discussing basic and maximum sentences).

{13} Further, our Court in Chorney recognized that the use of "maximum sentence" in the NMMIC encompassed not just the basic sentence set forth in Section 31-18-15(A) but also could include enhancements based on a defendant's dangerousness. See Chorney , 2001-NMCA-050, ¶¶ 12, 14, 130 N.M. 638, 29 P.3d 538. In particular, this Court held that "[t]he 'maximum sentence' ... addresses the possible dangerousness of an incompetent defendant and provides the outer limits for commitment for the purpose of protecting society[,]" id. ¶ 12, and that "it is reasonable to conclude that the 'maximum sentence' ... can consist ... of basic sentences for the crimes that trigger commitment, and any enhancements of those basic sentences that are expressly based on inherently dangerous criminal conduct as set out in Section 31-9-1.5(D) or defined in Section 31-9-1.2." Chorney , 2001-NMCA-050, ¶ 14, 130 N.M. 638, 29 P.3d 538 (emphasis added).

{14} In Chorney , the specific question before this Court was "whether the Legislature intended the habitual offender enhancement to be employed even where its application bears no reasonable relationship with dangerousness as defined in the [NMMIC]." 2001-NMCA-050, ¶ 13, 130 N.M. 638, 29 P.3d 538. The district court had enhanced the defendant's term of commitment beyond the basic sentence because the defendant was a "three-felony habitual offender." Id . ¶¶ 2, 13 ; Section 31-18-17 (providing for enhancement of a basic sentence where the defendant has prior felony convictions). The district court had also enhanced the defendant's term by one year for use of a firearm; on appeal, the defendant did not object to the firearm enhancement and this Court did not comment on the propriety of that enhancement. Id . ¶ 10 ; see § 31-18-16(A) ("When a separate finding of fact by the court or jury shows that a firearm was used in the commission of a noncapital felony, the basic sentence ... shall be increased by one year[.]"). As to the habitual offender enhancement, this Court observed that "[t]he eight-year enhancement in this case has a more punitive than treatment purpose" and held that the Legislature did not intend that a habitual offender enhancement apply where it did not relate to the NMMIC's treatment or protective purposes. Id . ¶¶ 14-16. Because the enhancement there was not related to conduct that was "a specific marker of dangerousness," this Court vacated the enhancement of the defendant's commitment. Id . ¶¶ 21-22 ; cf. State v. Lopez , 2009-NMCA-112, ¶ 8, 147 N.M. 279, 219 P.3d 1288 (stating that Chorney held that "application of a habitual offender enhancement to extend the duration of commitment was improper because it did not relate to provisions of the NMMIC").

{15} Here, the district court increased the commitment term by five years based in part on the "extreme viciousness and brutality" of Defendant's conduct. Generally, a district court may properly consider the brutality of a defendant's conduct in assessing aggravating circumstances. See State v. Kurley , 1992-NMCA-105, ¶ 7, 114 N.M. 514, 841 P.2d 562 ("[T]he brutality of the crime was ... a circumstance surrounding the crime that could be considered by the trial court in aggravating [the] defendant's sentence."). "The manner in which a crime is committed can bear on a number of factors relevant to sentencing, including [the] defendant's propensity to repeat the crime, the potential for harm resulting from the crime, and [the] defendant's potential for rehabilitation." Id. These considerations are also highly relevant to the commitment of an incompetent defendant under the NMMIC, one purpose of which is "to protect society from dangerous [defendants]." Chorney , 2001-NMCA-050, ¶ 11, 130 N.M. 638, 29 P.3d 538 ; see Rotherham , 1996-NMSC-048, ¶ 53, 122 N.M. 246, 923 P.2d 1131 (noting that "the [s]tate cannot release into society an incompetent defendant who has demonstrated a capacity for serious, violent conduct"). Moreover, in the context of commitment proceedings, the circumstances surrounding the alleged criminal conduct, and prior violent conduct may demonstrate dangerousness. See State v. Gallegos , 1990-NMCA-104, ¶¶ 12-13, 111 N.M. 110, 802 P.2d 15 ("[T]he fact of guilt under the circumstances of a particular case may permit the trial court to find dangerousness."); cf . State v. Landgraf , 1996-NMCA-024, ¶ 23, 121 N.M. 445, 913 P.2d 252 ("A sentence may be properly aggravated based on events surrounding the crimes and the nature of a defendant's threat to society."). In Gallegos , where "the [district] court ... found that a defendant ha[d] cruelly treated a two-year-old child by holding her foot in hot water for half a minute and ha[d] injured his brother with a knife in the course of a family argument," the Court concluded that "the [district] court [could] properly draw an inference that [the] defendant [wa]s dangerous." 1990-NMCA-104, ¶ 13, 111 N.M. 110, 802 P.2d 15. In that case, the same evidence supported both the district court's finding that the defendant committed child abuse and aggravated battery and its finding that the defendant was dangerous. Id . ¶¶ 5, 6, 12.

{16} Defendant contends that his enhanced sentence cannot be justified on the ground that the circumstances surrounding the crime demonstrated that Defendant is dangerous because "dangerousness is a separate-and predicate finding-required before the incompetent defendant may be committed for treatment." Defendant provides no support for the idea that, having determined that a defendant is dangerous as a predicate to commitment, the district court may not also consider the circumstances of the defendant's conduct, and their bearing on defendant's future dangerousness, in determining the term of commitment. Contrary to Defendant's argument, Chorney held that a defendant's dangerousness relates directly to the term of commitment, stating, "The 'maximum sentence' ... addresses the possible dangerousness of an incompetent defendant and provides the outer limits for commitment for the purpose of protecting society." 2001-NMCA-050, ¶ 12, 130 N.M. 638, 29 P.3d 538. We conclude that the enhancement here was congruent with the NMMIC because the brutality of the conduct and prior violent conduct by Defendant are "specific marker[s] of dangerousness." Id. ¶ 21.

{17} Defendant makes one final argument: he argues that aggravating circumstances relate to a defendant's culpability and that a commitment term enhancement based on such culpability is inappropriately punitive and violates due process. The problem with this argument is that it fails to recognize that, in the criminal sentencing context, all sentences are based on the defendant's culpability. In other words, "as applied to sane defendants, all sentences of imprisonment, whether measured by an extended term or not, have as their goals punishment and deterrence." People v. Pastewski , 164 Ill.2d 189, 207 Ill.Dec. 316, 647 N.E.2d 278, 283 (1995). "If the punitive character of the [enhancement] precludes its use in determining the maximum commitment period for an [incompetent defendant]," as Defendant argues, "then one must also question whether the regular, nonextended sentencing statutes may be used for that purpose." Id . However, Defendant rightly does not argue that commitment for the period of the basic sentence is improperly punitive, as our Supreme Court has stated that "commitment pursuant to Section 31-9-1.5 is not punishment[.]" State v. Adonis , 2008-NMSC-059, ¶ 9, 145 N.M. 102, 194 P.3d 717 (alteration, internal quotation marks, and citation omitted). Hence, so long as the enhancement is consistent with the NMMIC under Chorney , the enhancement of a sentence under Section 31-18-15.1 also is not punitive in the commitment context. See Rotherham , 1996-NMSC-048, ¶ 53, 122 N.M. 246, 923 P.2d 1131 ("The fact that a criminal defendant is detained for a period of time does not inexorably mean the State has imposed punishment. Rather, because the State seeks to treat an incompetent and to protect the community from danger, detention serves a regulatory rather than a punitive function." (citation omitted) ); cf . Pastewski , 207 Ill.Dec. 316, 647 N.E.2d at 282 (stating that the district court's application of an enhancement "in determining an [incompetent defendant's] maximum period of commitment [does not] impermissibly alter[ ] the nature of his confinement, or introduce[ ] into the commitment an invalid punitive purpose"). We are also not persuaded by Defendant's due process argument which is not developed and lacks merit. See Headley v. Morgan Mgmt. Corp. , 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that we will not develop an unclear argument on behalf of a party).

CONCLUSION

{18} For the foregoing reasons, we affirm the district court's order of commitment.

{19} IT IS SO ORDERED.

WE CONCUR:

JULIE J. VARGAS, Judge

JENNIFER L. ATTREP, Judge