1997 -NMSC- 18, State v. Baca

• Decision Date: 11 February 1997
• Docket Number: No. 23343,23343
• Citation: 123 N.M. 124,934 P.2d 1053,1997 NMSC 18
• Parties: , 1997 -NMSC- 18 STATE of New Mexico, Plaintiff-Respondent, v. Magdaleno BACA, Defendant-Petitioner.
• Court: New Mexico Supreme Court

Page 1053

934 P.2d 1053

123 N.M. 124, 1997 -NMSC- 18

STATE of New Mexico, Plaintiff-Respondent, v. Magdaleno BACA, Defendant-Petitioner.

No. 23343.

Supreme Court of New Mexico.

Feb. 11, 1997.

Monica D. Munoz, Albuquerque, for Defendant-Petitioner.

Tom Udall, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, for Plaintiff-Respondent.

OPINION

MINZNER, Justice.

¶1 This appeal is before the Court pursuant to our writ of certiorari to the Court of Appeals. Defendant Magdaleno Baca contends that: (1) he was deprived of effective assistance of counsel because his attorney did not request a jury instruction on the single criminal intent doctrine; and (2) insufficient evidence was adduced at trial to support his forgery conviction. We conclude that the facts of this case would not support or warrant an instruction to the jury on the single criminal intent doctrine; thus, the ineffective assistance of counsel claim is without merit. We also conclude that the State offered substantial evidence at trial to support the conviction. Accordingly, we affirm the Court of Appeals, which had affirmed Baca's conviction in an unpublished decision. State v. Baca, No. 16,222, slip op. (N.M.Ct.App. Nov. 20, 1995).

FACTS AND PROCEDURE

¶2 During Thanksgiving weekend in 1993, sometime between the time of closing on Wednesday, November 24, and the following Saturday, November 27, a number of blank checks were stolen from Danley Construction Company. During the next two weeks, five of the stolen checks were negotiated, each for a different amount. The checks appeared to bear the signature of a former owner of the company, Connie H. Danley, who had been deceased for some time. Two of the checks were negotiated on the same day, but at different locations. The other three checks were each negotiated at a different location and on a different date. All five checks were made payable to Magdaleno Baca and were endorsed with that name. Additionally, three of the five checks bore the notation "operator", as if they were for wages. Bill Danley reported the suspected crimes to the authorities and executed an affidavit of forgery. Baca was arrested and charged with one count of commercial burglary and five counts of forgery.

¶3 At trial, Bill Danley, the current owner of Danley Construction Company, testified that Baca had never worked for the company; that he did not recognize Baca in the courtroom; and that he knew of no reason why a company check would have been written to Baca. Further, the judge granted Baca's motion for a directed verdict on the commercial burglary charge, but denied his motion for directed verdict on the remaining forgery counts. The jury was instructed on five counts of forgery under NMSA 1978, Section 30-16-10(B) (Repl.Pamp.1994). Baca was convicted on all five counts.

ISSUES REVIEWED

¶4 Baca appealed his conviction to the Court of Appeals on the same two issues raised here. The Court of Appeals affirmed his convictions by memorandum opinion. We granted certiorari on both issues. Additionally, we asked the parties to provide supplemental briefs on a particular point not otherwise specifically addressed: whether the State produced substantial evidence at trial, sufficient to sustain a finding beyond a reasonable doubt, that Baca knew the checks were forged.

¶5 Forgery has been defined as a crime aimed primarily at safeguarding confidence in the genuineness of documents relied upon in commercial and business activity. Though a forgery, like false pretenses, requires a lie, it must be a lie about the document itself: the lie must relate to the genuineness of the document. 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.7(j)(5) (1986). Forgery requires an intent to defraud. Id. Knowledge is also an element. Our forgery statute states, "Forgery consists of ... knowingly issuing or transferring a forged writing with intent to injure or defraud." Section 30-16-10(B).

¶6 Some of the facts of this case are similar to those proved in Stallings v. Tansy, 28 F.3d 1018, 1023 (10th Cir.1994), in which the Tenth Circuit held that the State failed to prove beyond a reasonable doubt that the defendant knew the checks were forged, and that therefore his conviction deprived him of due process. See id. at 1020-21 (discussing the requisite intent for forgery). In Stallings, the Tenth Circuit emphasized that under the New Mexico statute, the element of requisite knowledge is distinct and different from the element of intent to injure or defraud. Id. at 1020-21 n. 2. The court also held that a jury cannot reasonably infer the requisite knowledge solely from the fact that a defendant requested a false notation on a check in order to encourage someone to cash it. See id. at 1022.

¶7 In this case Defendant Baca had not argued to the Court of Appeals that he lacked the requisite knowledge that the checks were forged. Nevertheless, we granted certiorari to ensure that the State had proven all of the elements of the crime, as required by due process. See id. at 1023 (discussing the constitutional importance of proving the elements of forgery).

Issue 1. Ineffective assistance of counsel

¶8 Baca contends that he was deprived of effective assistance of counsel because his attorney failed to ask the trial court to instruct the jury on the single criminal intent doctrine, i.e., whether the five forgeries were distinct and separate crimes or parts of a larger single criminal scheme. See State v. Brooks, 117 N.M. 751, 754, 877 P.2d 557, 560 (1994) (holding that whether acts constituted a single offense presented a factual question to be decided by the jury). In Brooks, we held that "factual questions of intent must be decided by the jury unless the trial court can say under the circumstances that, as a matter of law, the act is either a separate crime or part of a broader scheme or plan." Id. at 754, 877 P.2d at 560. Based on Brooks, Baca argues that his actions in negotiating each of the five checks constitute a single, continuous transaction pursuant to a single scheme to defraud one victim, Danley Construction Company. Alternatively, Baca contends that whether his actions constitute one single forgery violation or multiple violations is a factual matter properly to be decided by the jury. Baca also asserts that the omission of an instruction on the single criminal intent for separate transactions was fundamental error. We disagree.

¶9 Our cases have applied the single criminal intent doctrine to larceny, see, e.g., State v. Rowell, 121 N.M. 111, 116-18, 908 P.2d 1379, 1384-86 (1995); State v. Klasner, 19 N.M. 474, 477-78, 145 P. 679, 680 (1914), as well as to embezzlement cases, see, e.g., Brooks, 117 N.M. at 754-55, 877 P.2d at 560-61; State v. Pedroncelli, 100 N.M. 678, 680, 675 P.2d 127, 129 (1984). However, our forgery statute suggests a legislative intent to make each act of forgery, each forged instrument, a separate offense: "Forgery consists of ... knowingly issuing or transferring a forged writing with intent to injure or defraud." Section 30-16-10(B) (emphasis added). Opinions from the New Mexico Court of Appeals support the conclusion that Section 30-16-10 suggests a legislative intent to authorize multiple punishments based on each distinct act of forgery. See, e.g., State v. Orgain, 115 N.M. 123, 125, 847 P.2d 1377, 1379 (Ct.App.1993) (holding that "the legislature intended only one conviction for each forgery related to the same facts involving the same check"); cf. State v. Borja-Guzman, 121 N.M. 401, 404, 912 P.2d 277, 280 (Ct.App.) (holding that language of Controlled Substances Act indicates legislative intent to permit prosecution for each distinct act of delivery of a controlled substance), cert. denied, 121 N.M. 375, 911 P.2d 883 (1996).

¶10 The difference between our statutory law making forgery a crime and our statutory law making larceny and embezzlement crimes reflects a difference in the common law crimes our statutes codify. The common law of theft has evolved differently from the law of forgery. See generally Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 338-39 (3d ed. 1982) (discussing the trend of aggregating into a single crime a series of thefts from a single owner at a single location). In order to determine the highest grade of theft committed, the common law developed a principle for identifying a single offense of theft. Under that principle, the greater the total dollar amount of all the property stolen from a single location, the greater the degree of theft; thus, the taking of property during "a single continuing criminal impulse or intent pursuant to a general larcenous scheme or plan" was a single offense. State v. Barton, 28 Wash.App. 690, 626 P.2d 509, 512 (1981). Our courts have recognized the validity of the single larceny doctrine in State v. Brown, 113 N.M. 631, 632, 830 P.2d 183, 184 (Ct.App.1992). The Model Penal Code adopts a slightly different rule but with a similar objective. The amount involved in a theft shall be deemed to be the highest value, by any reasonable standard, of the property or services which the actor stole or attempted to steal. Amounts involved in thefts committed pursuant to one scheme or course of conduct ... may be aggregated in determining the grade of the offense.

Model Penal Code § 223.1(2)(c) (1980). Both the common-law rule and the Model Penal Code provision attempt to facilitate the fact-finder's exercise of authority to classify the degree of crime committed. See id. cmt. 3(b) (explaining how the Code facilitates the determination of the highest category of crime for which a defendant may be convicted).

¶11 In other states, there is authority to support an application of the single intent doctrine to forgery. Compare Wiseman v. State, 521 N.E.2d 942, 946 (Ind.1988) (holding that seven stolen checks presented to the bank at the same time, the same date, by the same person and all listed on the same...