1997 -NMCA- 80, State v. Armijo

• Decision Date: 15 July 1997
• Docket Number: No. 17131,17131
• Citation: 123 N.M. 690,1997 NMCA 80,944 P.2d 919
• Parties: , RICO Bus.Disp.Guide 9349, 1997 -NMCA- 80 STATE of New Mexico, Plaintiff-Appellee, v. Tony ARMIJO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 919

944 P.2d 919

123 N.M. 690, RICO Bus.Disp.Guide 9349,

1997 -NMCA- 80

STATE of New Mexico, Plaintiff-Appellee, v. Tony ARMIJO, Defendant-Appellant.

No. 17131.

Court of Appeals of New Mexico.

July 15, 1997.

[123 N.M. 692] Tom Udall, Attorney General, Daniel J. Pearlman, Assistant Attorney General, Richard J. Klein, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Armando Torres, Thomas C. Garde, Torres & Garde, P.C., Los Lunas, for Defendant-Appellant.

OPINION

ALARID, Judge.

¶1 Tony Armijo (Defendant) appeals his convictions on one count of fraud in excess of $20,000 in violation of NMSA 1978, Section 30-16-6 (Repl.Pamp.1994); one count of fraud in excess of $250 in violation of Section 30-16-6; one count of making a false public voucher in violation of NMSA 1978, Section 30-23-3 (Repl.Pamp.1994); and one count of racketeering in violation ofNMSA 1978, Section 30-42-4(C) (Repl.Pamp.1989). We affirm.

I. FACTS

¶2 On September 29, 1992, the Santa Fe County Grand Jury indicted Defendant on eight counts, including charges of fraud, receiving a bribe, attempted fraud, and racketeering. These charges were brought as the result of actions taken by Defendant in his capacity as executive director of the New Mexico Public School Insurance Authority (Insurance Authority) and of the New Mexico Retiree Health Care Authority (Health Authority). The grand jury also indicted the third-party administrator of the insurance programs for the Insurance Authority and the Health Authority, Glen Slaughter and Associates (Slaughter), and one of Slaughter's employees, Allen Pufahl, on charges of bribing Defendant and fraud in excess of $20,000.

¶3 The district court severed the trial of Slaughter and Pufahl from that of Defendant. On April 15, 1993, Slaughter was convicted of both charges, while Pufahl was acquitted. Slaughter's convictions were affirmed by this Court in State v. Glen Slaughter & Assocs., 119 N.M. 219, 889 P.2d 254 (Ct.App.1994).

¶4 On October 15, 1993, the district court granted Defendant's motion to dismiss the indictment on grounds of prosecutorial misconduct, and entered an order quashing the indictment and disqualifying the New Mexico Attorney General's Office from prosecuting Defendant on those charges. A year later this Court reversed the quashing of the indictment and the disqualification, and remanded the cause to the district court for trial. See State v. Armijo, 118 N.M. 802, 887 P.2d 1269 (Ct.App.1994).

¶5 Defendant had a jury trial and was convicted on July 17, 1995, of fraud over $20,000, fraud over $250, filing false public vouchers, and racketeering. The jury acquitted Defendant of the charges of receiving a bribe and attempted fraud in excess of $250. On July 24, 1995, Defendant moved for a new trial "in the interest of justice," and on October 3, 1995, filed a second motion for a new trial based upon allegedly newly discovered evidence. Both motions were denied. This appeal follows.

¶6 On appeal, Defendant raises seven issues: (1) the trial court erred in denying his motion to sever the counts of receiving a bribe and fraud in excess of $20,000 from the remaining counts; (2) the trial court erred in denying his motion to dismiss the racketeering charge; (3) the trial court erred in denying his motion for directed verdict; (4) the trial court erred in denying his motion for new trial based on prosecutorial misconduct; (5) the trial court erred in denying his second motion for a new trial based on newly discovered evidence; (6) sufficiency of the evidence; and (7) cumulative error. We find Defendant's arguments unpersuasive.

II. MOTION TO SEVER

¶7 Defendant made a pretrial motion for severance pursuant to Rule 5-203(C) NMRA 1997. Rule 5-203(C) provides in part, "If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants by the filing of a statement of joinder for trial, the court may order separate trials of offenses, grant a severance of defendants, or provide whatever other relief justice requires." The standard of review for denial of a motion for severance is abuse of discretion. State v. Jones, 120 N.M. 185, 186, 899 P.2d 1139, 1140 (Ct.App.1995), cert. quashed, 121 N.M. 57, 908 P.2d 750 (1996). In considering a motion for severance, the court must balance "the possibility of prejudice against the interests of judicial economy." State v. Gammill, 102 N.M. 652, 655, 699 P.2d 125, 128 (Ct.App.1985) (decided under NMSA 1978, Crim.P.Rule 34 (Repl.Pamp.1980), containing language virtually identical to Rule 5-203(C)); see also Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 938-39, 122 L.Ed.2d 317 (1993) (stating that federal rules regarding joinder and severance, similar to New Mexico rules, are designed to promote judicial economy and efficiency and avoid multiplicity of trials, but only insofar as these goals can be achieved without substantial prejudice to defendant's right to a fair trial). In order to prove that the trial court abused its discretion, the defendant must show that joinder prejudiced his right to a fair trial. State v. Roybal, 115 N.M. 27, 31, 846 P.2d 333, 337 (Ct.App.1992).

¶8 Defendant contends that the trial court erred in denying his motion to sever the counts of fraud over $250, attempted fraud over $250, and making a false public voucher from the counts of fraud over $20,000 and receiving a bribe. The charges of fraud over $20,000 and receiving a bribe were based on allegations that Defendant had permitted Slaughter to host a birthday party for him costing approximately $3,400, and then a few days later had defrauded the Board of Directors of the Insurance Authority (Board) into granting increased contract payments to Slaughter worth more than $20,000. The remaining charges concerned Defendant's misuse of a credit card issued for the account of the Insurance Authority.

¶9 Defendant contends that the counts should have been severed and separate trials held because the credit card misuse allegations and the Slaughter fraud and bribery allegations each concerned events that were remote in time, did not establish a pattern, and were not provable by the same evidence. See State v. Gallegos, 109 N.M. 55, 64, 781 P.2d 783, 792 (Ct.App.1989) (discussing factors supporting holding of abuse of discretion). The multiplicity of charges brought against him, he argues, unfairly caused the jury to cumulate the evidence against him. He also argues that the crimes charged are specific intent crimes, and contends that the jury would be unable to separate his intent at the time he allegedly committed the credit card misuse from the intent he had some months later at the time of the birthday party and the renegotiation of the Slaughter contract. In other words, the multiplicity of charges confused the jury as to which evidence sufficed to prove which charges.

¶10 The trial court did not abuse its discretion in denying the motion to sever. First, there is no evidence that the multiplicity of charges confused the jury. The record indicates that the jury received proper instructions regarding the specific intent required for conviction under the pertinent statutes, and the evidence of Defendant's conduct on the separate occasions could readily be examined by the jury. The jury demonstrated that it could carefully apply the evidence to the multiplicity of charges by acquitting on the counts of receiving a bribe and attempted fraud. See State v. Orgain, 115 N.M. 123, 125, 847 P.2d 1377, 1379 (Ct.App.1993) (stating that defendant's acquittal on some charges and conviction on others showed that defendant had not been prejudiced by multiple charges). Defendant thus failed to demonstrate real prejudice.

¶11 Second, Defendant has not shown that the multiplicity of charges was cumulative and thus unfairly prejudicial. The charges in the indictment all concern crimes committed by Defendant against the Insurance Authority and the Health Authority within a period of thirteen months and were related to Defendant's dual position during this time as executive director of both entities. These facts alone provide strong support for the district court's exercise of discretion.

¶12 The fact that the other charges were predicate offenses for the racketeering charge make joinder particularly appropriate. In order to establish a pattern of conduct for purposes of the racketeering charge, it was necessary for the State to prove that Defendant had committed at least two predicate offenses--such as felony fraud, see NMSA 1978, § 30-42-3(A)(6) (Repl.Pamp.1989), and that these offenses constituted a prohibited pattern of racketeering activity--such as engaging in racketeering activity at least twice within a five-year period, see NMSA 1978, § 30-42-3(D) (Repl.Pamp.1989). It was not abuse of discretion for the district court to refuse to sever the racketeering predicate offenses from the trial on racketeering charges.

III. MOTION TO DISMISS THE RACKETEERING CHARGE

¶13 Defendant argues that because the Insurance Authority is a governmental agency, it is not an "enterprise" under the Racketeering Act, NMSA 1978, §§ 30-42-1 to -6 (Repl.Pamp.1989). He also argues that the Racketeering Act requires that there be co-conspirators in the enterprise, but this issue was not presented to the trial court and has not been preserved for review. See Graham v. Cocherell, 105 N.M. 401, 404, 733 P.2d 370, 373 (Ct.App.1987) (holding that appellate court's scope of review is limited to questions that were both presented to and ruled on by trial court). See also Rule 12-216(A) NMRA 1997 (to preserve an issue for appellate review, it generally must be raised in the trial court).

¶14 Defendant notes that the Racketeering Act is based on the Federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (1994) (RICO), and therefore federal cases interpreting RICO are instructive to New Mexico courts in interpreting our Act. See State...