This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,698 9 DUSTY BAKER, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 12 Karen Parsons, District Judge 13 Gary K. King, Attorney General 14 Ann M. Harvey, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Mary Barket, Assistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21

MEMORANDUM OPINION 22 BUSTAMANTE, Judge. 232 Defendant appeals from the judgment and order revoking his probation. The 1 district court determined that Defendant was “an absconder” from June 27, 2006 to 2 December 23, 2008, and therefore he was not entitled to credit for time served on 3 probation during that time. Defendant c ontends the State presented insufficient 4 evidence to support the district court’s findi ng that he was “a fugitive,” because the 5 State did not meet its burden of showi ng reasonable diligence in serving a bench 6 warrant on Defendant. We agree with Defendant and reverse. 7 Procedural and Factual Background 8 On July 1, 2005, Defendant was charged w ith one count of burglary of a vehicle 9 and one count of possession of drug paraphe rnalia. Defendant entered a no contest 10 plea on October 22, 2005. On December 8, 2005, the district court entered a 11 conditional discharge order placing Defendant on probation for a period of two and 12 a half years. The order of probati on filed on January 24, 2006, provided that 13 Defendant was to remain under probati on supervision until April 20, 2008. As 14 conditions of probation, among others, De fendant was prohibited from possessing a 15 firearm and using illegal substances. OnMay 4, 2006, the State filed a petition to 16 revoke Defendant’s probation, asserting that Defendant was in possession of a firearm, 17 possessed a marijuana pipe and other drug paraphernalia, had tested positive for 18 marijuana, and had admitted to using marijuana. On May 8, 2006, a bench warrant 193 was issued for Defendant’s arrest, with 108 Chelsea, Ruidoso, New Mexico, listed as 1 Defendant’s address. Defe ndant was arrested on May 9, 2006. A teletype printout 2 copy shows that this arrest warrant was en tered into the National Crime Information 3 Center (NCIC) database. 4 At the hearing on May 17, 2006, Defendant pled no contest to violating his 5 parole. On June 5, 2006, th e district court filed the j udgment and order, vacating the 6 conditional discharge and continuing Defendant’s probation, which was, as mentioned 7 above, to expire on April 20, 2008. As one of the conditions of probation, the district 8 court ordered Defendant to enter an in-patient drug treatment program called Villa De 9 Esperanza in Carlsbad, New Mexico. Defendant testified that on June 8, 2006, prior 10 to traveling to Carlsbad, he reported to Lincoln County Probation Officer John Lund 11 in Ruidoso and gave him an address wher e he planned to stay after completing 12 rehabilitation, his future mother-in-law’s address at 912 Sandia Street, Carlsbad, New 13 Mexico. Ms. Katie Cuellar, another probatio n officer in Ruidoso, testified that the 14 inter-office computer system showed that prior to going to Villa De Esperanza on June 15 8, 2006, Defendant checked in with the Car lsbad probation office. Defendant testified 16 that he gave the Carlsbad o ffice the 912 Sandia, Carlsbad, New Mexico address. That 17 same day at about 2 p.m., De fendant checked into the V illa De Esperanza program in 184 Carlsbad. Later that same day, at about 7 p.m., Defendant checked himself out of 1 Villa De Esperanza, leaving a handwritten note: 2 I apologize for wasting your valuable time checking me in. I 3 appreciate you trying to help me. I ju st feel that th e reason I haven’t 4 gotten stoned since I got out of jail is because of my family, the people 5 who love me and care about me. I think this is a great place. I think you 6 are doing wonderful jobs by helping people get there [sic] lives 7 straightened out[,] but it is not for me . I have all the support I need with 8 my daughter and fiancee and [G]od. I am on my way back to Ruidoso 9 to check back in with my probation officer. Thank you again. [Signature 10 of Defendant] P.S. Everything thatwas yours is still here thanks again 11 wish me luck. 12 The next day, June 9, 2006, Defendant called the V illa De Esperanza program 13 and asked to be readmitted, but he was told he had forfe ited his place. Defendant also 14 indicated that he wa s waiting to hear back from his attorney. On June 12, 2006, an 15 employee of Villa De Esperanza faxed a copy of Defendant’s letter and a summary 16 of his contact with the program to the pr obation department in Ruidoso, attention 17 Katie Cuellar and John Lund. The cover page of the fax contains a handwritten 18 address and telephone number at the upper right corner: 912 Sandia Street, 885-6617. 19 On June 13, 2006, Ms. Cue llar and Mr. Lund went to Defendant’s listed address 20 in Ruidoso: 108 Chelsea, Ruidoso, New Mexico. The residence was vacant and Ms. 21 Cuellar requested a bench warrant. On J une 22, 2006, the State filed a petition to 22 revoke Defendant’s probation. The petition attaches Ms. Cuellar’s probation violation 23 report, which shows Defendant’s listed address as 108 Chelsea, Ruidoso, New 245 Mexico, and states that Defendant had le ft the court-ordered treatment program at 1 Villa De Esperanza. Ms. Cuellar al so reported her impressions that: 2 The Defendant is clearly unconcerne d regarding the status of his 3 probation. The Defendant violated conditions of his probation with no 4 regard. He clearly is not a good candi date for probation as he refuses to 5 comply with court orders. 6 On June 26, 2006, a bench warrant for Defendant’s arrest wa s issued. The return page 7 is blank. After leaving the court-ordere d treatment program, Defendant did not check 8 in with the probation office in Ruidoso or Carlsbad. 9 The next entry in the record proper af ter the bench warrant dated June 26, 2006, 10 is Defendant’s letter file d pro se in this case on December 22, 2008, requesting 11 discovery. In the letter, De fendant lists his address as P.O. Box 339, Carrizozo, New 12 Mexico 88301. On December 23, 2008, Defe ndant was arrested for violating his 13 probation. At the initial hearing on Decem ber 31, 2008, Defendant denied violating 14 his probation. At the hearing on th e petition to revoke on February 13, 2009, 15 Defendant admitted that he left the treatment program, and he pled no contest to 16 violating his probation, reserving for a later hearing the issue of whether Defendant 17 had been a fugitive and whether the Stat e had made reasonable efforts to locate 18 Defendant and serve the s econd bench warrant on him during the period from June 27, 19 2006 to December 23, 2008. On March 20, 2009, these issues were addressed. On 20 May 8, 2009, a sentencing heari ng was held. On June 8, 2009, the district court filed 216 a judgment and order imposing sentence, but suspending incarceration and placing 1 Defendant back on probation with the add itional term of “Zero Tolerance.” The 2 district court expressly found that Defe ndant “was an absconder from June 27, 2006 3 to December 23, 2008[.]” Defendant receive d no probation credit for that period and 4 he received incarceration credit of one day. [Id.] Defendant appeals. 5 The Parties’ Arguments 6 Defendant argues there was insufficient evidence for the district court to 7 determine that he was a fugitive, that the St ate did not make reasonable efforts to serve 8 the bench warrant on him or show that any attempt to serve th e warrant would have 9 been futile, and therefore the district court erred in denying him credit for time served 10 on probation from June 27, 2006 to Decem ber 23, 2008. In addition, Defendant 11 contends that the district court erred in focusing on Defendant’s failure to report and 12 in concluding that the State had shown reas onable efforts at service when the record 13 before it established that the State had c ontact information that it ignored and there 14 was no evidence that the warrant was entered into th e NCIC database. The State 15 contends that sufficient evidence was presente d for the district court to determine that 16 Defendant had absconded, becau se he had not fulfilled hi s probation requirements and 17 therefore he had not earned probation credit for the time from June 27, 2006 to 18 December 23, 2008. 197 Standard of Review and Applicable Law 1 NMSA 1978, Section 31-21-15(C) (1989) provides as follows: 2 If it is found that a warrant for the return of a probationer cannot 3 be served, the probationer is a fug itive from justice. After hearing upon 4 return, if it appears that he has violat ed the provisions of his release, the 5 court shall determine whether the time from the date of violation to the 6 date of his arrest, or any part of it, shall be counted as time served on 7 probation. 8 “[T]he district court’s decision regarding whether the defendant is entitled to credit 9 or is instead a fugitive will be affirmed onl y if the decision is supported by substantial 10 evidence.” State v. Jimenez , 2004-NMSC-012, ¶ 14, 135 N.M. 442, 90 P.3d 461. 11 Under Section 31-21-15(C), “[i]f it is f ound that a warrant for the return of a 12 probationer cannot be served, the probationer is a fugitive from justice.” “A fugitive 13 is not entitled to probation credit from the date of the violation to the date of arrest.” 14 State v. Neal , 2007-NMCA-086, ¶ 30, 142 N.M. 487, 167 P.3d 935. The state bears 15 the burden of proving that the defendant is a fugitive. Id. Thus, “[a] defendant is 16 entitled to credit for any time on probation, unless the State can show either (1) it 17 unsuccessfully attempted to serv e the warrant on the defendant or (2) any attempt to 18 serve the defendant would have been futile.” Id. ¶ 30 (internal quotation marks and 19 citation omitted). This test balances the competing policy goals of preventing 20 defendants from avoidi ng the consequences of thei r probation by absconding, and 21 requiring the state to act with due diligen ce in prosecuting defendants who violate the 228 terms of their probation. Jimenez , 2004-NMSC-012, ¶ 8; see State v. Murray , 81 1 N.M. 445, 450, 468 P.2d 416, 421 (Ct. App. 1970)). 2 Our case law recognizes the importance of the state’s entry of the warrant into 3 the NCIC database, which allows participating law enfo rcement agencies nationwide 4 to check the criminal history of any person stopped, as important evidence that the 5 state acted with due diligence in attempting to locate and serve the warrant on a 6 defendant. Thus, we have a ffirmed the district court’s conclusion that Defendant was 7 a fugitive when “the trial court found that the arrest warrant was issued and placed in 8 the normal channels for service.” State v. Apache , 104 N.M. 290, 292, 720 P.2d 710, 9 711 (Ct. App. 1986). One of the normal cha nnels for service is the entry of the 10 warrant into the NCIC database. Id. at 291, 720 P.2d at 710. In Jimenez , moreover, 11 our Supreme Court confirmed that the state’ s failure to enter the warrant into the 12 NCIC database “weighs heavily against a finding that the State acted with due 13 diligence.” 2004-NMSC-012, ¶ 15. In Neal , however, where the defendant’s 14 probation officer testified that “the retakewarrant was issued out of the Interstate 15 Compact Office of the parole division[,]” and she said she “believe[d] it [was] entered 16 into NCIC just like any other normal warrant would be[,]” we concluded that there 17 was substantial evidence from which the distri ct court could conclude that the warrant 189 was entered in the NCIC database. 2007-NMCA-086, ¶ 32 (alterations in original) 1 (internal quotation marks omitted). 2 Besides showing that the warrant was ente red into the NCIC database, the state 3 must show that it attempted to serve the defendant with the warrant, or that any 4 attempt to serve the defendant would have been futile. Jimenez , 2004-NMSC-012, 5 ¶ 15; see, e.g. , State v. McDonald , 113 N.M. 305, 307, 825 P. 2d 238, 240 (Ct. App. 6 1991) (holding that a defendant was a fugitive within the meaning of Section 7 31-21-15(C), and properly denied credit ag ainst his sentence when the defendant 8 could not be taken into custody under authority of the warrant because he was 9 incarcerated in Arizona). In Apache , for example, the state’s efforts were sufficient 10 where the probation officer testified that th e warrant was listed with the NCIC; there 11 was specific evidence of record concerning th e state’s efforts to locate the defendant, 12 such as testimony from the probation offi cer concerning attemp ts to locate the 13 defendant at his sister’s house and at hi s last known address; and a police officer 14 testified that, after the warrant was issued , a bulletin was sent to the most recent 15 address available for the de fendant, and, when no res ponse was received, a second 16 bulletin was sent to the sametown six months later. Apache , 104 N.M. at 291-92, 720 17 P.2d at 710-11. 1810 In contrast, in State v. Thomas , we held that the state did not sustain its burden 1 of proving that the defendant was a fugitiv e, because the state made “absolutely no 2 showing concerning what efforts, if any, were made to locate [the] defendant or to 3 serve the warrant at any time during a period exceeding one year.” 113 N.M. 298, 4 302, 825 P.2d 231, 235 (Ct. App. 1991), overruled on other grounds by Jimenez , 5 2004-NMSC-012. We pointed out that the mere issuance of a warrant, without any 6 evidence that the warrant was entered in the NCIC databa se, and without any showing 7 that the state made any effort to locate or serve the defendant, was insufficient. Id. 8 We observed that “the mere issuance of a warrant, coupled with a lack of service, for 9 whatever reason, [does not] raise[] a reasonable inference that the warrant could not 10 be served with reasonable diligence.” Id. 11 Similarly, in Neal , we agreed with the defendant that the state had not made 12 sufficient efforts to locate him and serve the warrant. 2007-NMCA-086, ¶ 29. The 13 state had merely asserted, without making anevidentiary showing, that “attempts were 14 made to contact the [d]efendant at his last known address and telephone number.” Id. 15 ¶ 33 (internal quotation marks omitted). The State also asserted that “the State had 16 no idea where [the d]efendant was becau se he had change d addresses without 17 informing his probation officer.” Id. (internal quotation marks omitted). We noted, 18 in particular, that “the record is silent on the question of whether the probation officer 1911 was aware of [the d]efendant’s location, or made any attempt to determine [the 1 d]efendant’s location, during the period in question.” Id. ¶ 33. “At a minimum, the 2 state must present some evid ence that raises a reasonabl e inference that the warrant 3 could not be served with reasonable diligence.” Id. ¶ 34 (internal quotation marks and 4 citation omitted). Since the state had not shown that it even attempted to serve the 5 defendant with the warrant or that his location was unknown, we held that the State’s 6 showing was insufficient to support a finding that it would have been futile for the 7 state to attempt to serve the defendant. Id. ¶¶ 32-34. 8 In summary, our case law provides that in order to support a finding of fugitive 9 status, the state must show that it issueda warrant for the probationer’s arrest and 10 entered it into the NCIC database, and that the state unsu ccessfully attempted to serve 11 the warrant on the defendant or that any attempt to serve the defendant would have 12 been futile in the sense thatthe warrant could not be served with reasonable diligence. 13 Id. ¶¶ 31-34. We do not believe that the St ate has sustained its burden of making such 14 a showing in this case. 15 Analysis 16 In this case, the parties dispute whether the State entered this second bench 17 warrant into the NCIC databa se. Defendant points out, and we have confirmed, that 18 at the hearing on Defendant’s fugitive status, Ms. Cuellar testified only that the 1912 warrant was entered into CMIS, an intern al record-keeping system utilized by the 1 Probation and Parole Department, and th at the State presented no testimony or 2 evidence that it was entered into the NCIC database. As menti oned above, the record 3 proper includes a teletyped printout of anNCIC report showing entry of the warrant 4 issued on Defendant’s first probation viol ation into the database. The State 5 acknowledges the record proper does not cont ain an NCIC report showing that the 6 second warrant was entered into the NCIC database. In the answer brief, appellate 7 counsel argues that the language of the s econd warrant shows that the State intended 8 to extradite Defendant “anywhe re in the [c]ontinental Un ited States” and, therefore, 9 the State intended that the warrant would beentered into the NC IC system. Appellate 10 counsel also contends that the district court could reasonably infer that the second 11 warrant was entered into the NC IC database, or that, in any case, there is no indication 12 that routine procedures of entering an arre st warrant into NCIC were not followed. 13 At the hearing on Defendant’s fugitive status, however, the State’s only witness, 14 Ms. Cuellar, Defendant’s probation officer inRuidoso, presented no evidence that the 15 second warrant was entered into the NCIC database. As mentioned above, no printout 16 copy of an NCIC entry for the second warrant appears inthe record proper, and none 17 was provided to the district court, or to the defense. Our review of the testimony 18 confirms that Ms. Cuellar testified that she referred to an inter-office computer 1913 system, not the NCIC database, to determin e that Defendant had checked in at the 1 Carlsbad probation office prior to reporting to Villa De Esperanza. Unlike in Neal , 2 there was no testimony or other evidence from which the district court could 3 reasonably infer that the sec ond warrant had been entered into the NCIC database, in 4 fact or in the regular course of business. Argument of appellate counsel in the answer 5 brief about the State’s intentions and assertion by appellate counsel that there is no 6 indication that routine procedures of ente ring an arrest warrant into NCIC were not 7 followed, is not sufficient when it is the State’s burden to show Defendant’s fugitive 8

status. See, e.g. , State v. Cochran , 112 N.M. 190, 192, 812 P.2d 1338, 1340 (Ct. App. 9 1991) (“Argument of counsel is not evidence.”) . The lack of evidence regarding entry 10 of the second warrant into the NCIC database weighs heavily against the State. 11 Ms. Cuellar testified that prior to requesting a bench warrant, she went to 12 Defendant’s listed address in Ruidoso and found it vacant. After the warrant was 13 issued on June 26, 2006, un til Defendant’s arrest on D ecember 23, 2008, however, the 14 State made no efforts to locate Defendant or serve him with the warrant, other than to 15 occasionally ask Defendant’s mother, a secret ary in Ruidoso, if he was around. Thus, 16 the State made no showing that it attempted to serve the warrant, after the warrant was 17 issued, over the following year and a half. 1814 The record does indicate, however, thatthe Ruidoso probation officers had an 1 address and telephone number fo r Defendant in Carlsbad. The Villa De Esperanza fax 2 cover sheet sent to Ms. Cuellar and Mr . Lund on June 12, 2006, noted the Carlsbad 3 address and telephone num ber in the upper right corner. Ms. Cuellar received the fax 4 and knew about the fax cover sheet information and the handwritten note is evident, 5 because she referred to them and their contents in her June 13, 2006, probation 6 violation report. Neverthele ss, in response to defense questions as to whether she 7 made any efforts, or asked Carlsbad probati on officers to make any efforts to locate 8 Defendant at the Carlsbad a ddress and telephone number, Ms . Cuellar simply testified 9 that she did not work in Eddy County and did not do field contacts in Eddy County. 10 She also testified, however, that she knew that Defendant had family in Ruidoso and 11 had reported in at the Carlsbad office prior to going to Villa De Esperanza on June 8, 12 2006. Under the circumstances, reasonable diligence required that after issuing the 13 bench warrant, the Ruidoso probation offi ce personnel would at least telephone the 14 Carlsbad probation office personnel and ask th em to attempt to locate Defendant and 15 serve the warrant at the Carlsbad address, as well as periodically attempt to locate 16 Defendant and serve the warrant in Ruidoso and in Carlsbad over the following year 17 and a half. 1815 It was the State’s burden to prove that it made reasonable efforts to locate and 1 serve Defendant with the warrant or that any attempt woul d have been futile. We hold 2 that one visit to Defendant ’s address in Ruidoso—befo re a warrant was issued—and 3 informal inquiries directed to Defendant’s Mother is not sufficient evidence to support 4 the district court’s decision that the State met its burden. 5 Finally, the district court’s oral ruling and the district court’s judgment indicate 6 that the district court judgewas persuaded that Defendant was an “absconder,” i.e., 7 he had violated the conditions of his probati on, rather than that the State had provided 8 substantial evidence that Defendant wa s a “fugitive,” as required by Section 9 31-21-15(C), and the New Mexico case law discussed above. 10 He’s already admitted to the viol ation by pleading no contest. I’m going 11 to find that although the department could have done more to try to 12 locate him, they did enough. It wa s his obligation to—he knew he was 13 on probation—it’s his obligation to check in. He said he was going to 14 check in. I think maybe had he not done that, said he was coming back 15 to Ruidoso, it might be a little bit toughe r to decide. But he said he was 16 coming back to Ruidoso, they check in Ruidoso. Any representation he 17 made where he might be was before he was supposed to be at Villa De 18 Esperanza, so I’m going to find that the Bench Warrant should stand and 19 that he should be considered an absconder as of the date it was issued. 20 See Jimenez , 2004-NMSC-012, ¶ 10 (discussing that “[t]he State’s use of the word 21 “absconder” refers to [the d]efendant’s failure to report for probation”). As such, 22 while the initial sentence of the district court’s ruling indicates that the district court 23 was aware that it is the State’s burden to show Defendant’s fugitive status, the facts 2416 the district court relied upon in determining that the State “did enough” all relate to 1 what Defendant did not do , rather than how what the State did that was “enough .” 2 As such, these facts support the conclusion that Defendant violated his probation by 3 checking himself out of the court-orde red Villa De Esperanza program without 4 completing it, and by not reporting to the probation office in Ruidoso or Carlsbad 5 thereafter. See, e.g. , Jimenez , 2004-NMSC-012, ¶ 12 (rejecting the state’s argument 6 that for a defendant’s probation to be legally effective, he had to report to the 7 probation office, open his file, and sign a probation order, and not having performed 8 these acts, the defendant did not serve any time on probation and is not entitled to any 9 credit for time served; and holding instead that the defendant was constructively on 10 probation from the date of his sentencing). These facts do not i ndicate, however, that 11 the State provided substantial evidence th at it attempted to serve the warrant on 12 Defendant or that it was futile to do so. Merely going to Defendant’s listed residence 13 in Ruidoso and finding it vacant prior to requesting a bench warrant is not enough. 14 We hold that under the circumstances of this case the State failed to show that 15 Defendant was a “fugitive” during his probationary period within the meaning of 16 Section 31-21-15(C). 17 CONCLUSION 1817 Since the State failed to meet its burden and Defendant ’s probation period 1 ended on April 20, 2008, prior to the most recent December 31, 2008 to June 8, 2009, 2 probation revocation proceedings in districtcourt, the district court no longer had 3 jurisdiction to determine thatDefendant violated his probation in these proceedings. 4 See Neal , 2007-NMCA-086, ¶ 17; see also State v. Lara , 2000-NMCA-073, ¶ 12, 129 5 N.M. 391, 9 P.3d 74 (“[T]he [district] court is without jurisdiction to enter an order 6 of unsatisfactory completion afte r the probation period ends.”). 7 Accordingly, we reverse and remand this case to the district court to vacate the 8 June 8, 2009, judgment, and issue Defendant a certificate of satisfactory completion 9 of probation. 10 IT IS SO ORDERED. 11

12 MICHAEL D. BUSTAMANTE, Judge 13 WE CONCUR: 14

15 CELIA FOY CASTILLO, Judge 16

17 ROBERT E. ROBLES, Judge 18