State v. Barr, 18,840.

• Decision Date: 17 May 1999
• Docket Number: No. 18,840.,18,840.
• Citation: 127 N.M. 504,984 P.2d 185
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. William BARR, Jr., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

984 P.2d 185

127 N.M. 504

STATE of New Mexico, Plaintiff-Appellee, v. William BARR, Jr., Defendant-Appellant.

No. 18,840.

Court of Appeals of New Mexico.

May 17, 1999.

Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, for Appellee.

Roger Michener, Michener Law Firm, L.L.C., Placitas, for Appellant.

OPINION

BOSSON, Judge.

{1} Defendant appeals from the trial court judgment and sentence convicting him after a jury trial of two counts of residential burglary, seven counts of contributing to the delinquency of a minor, one count of larceny (over $250 but not more than $2500), and one count of conspiracy to commit residential burglary. Defendant raises three issues on appeal: (1) whether Defendant's double jeopardy rights were violated and the trial court erred in convicting Defendant of seven counts of contributing to the delinquency of a minor (CDM), and consequently, whether all but one of the convictions should be vacated; (2) whether the trial court erred in refusing jury instructions as to a mistake of fact about the ages of the minors; and (3) whether the testimony of a witness with respect to the valuation of goods in the charge of larceny was inadmissible hearsay and should have been stricken. We affirm.

FACTS

{2} On the night of September 6-7, 1996, Defendant, a 31-year-old man, was at a party with some teenagers after a high school homecoming dance in Cloudcroft, New Mexico. At some point in the evening, Defendant and some of the juveniles discussed burglarizing homes and selling the property for cash and drugs. Defendant drove seven juveniles to a residence in Cloudcroft, where at least three of the juveniles and Defendant burglarized the home. Some of the teens stayed in the car. After the stolen items were loaded into Defendant's Suburban van, he drove the juveniles to another residence in Cloudcroft which they also burglarized. They took a flatbed trailer and hitched it up to the Suburban to carry the stolen property. Defendant then drove two or more of the juveniles to El Paso with the stolen property in the trailer and sold it.

{3} The allegations against Defendant were corroborated principally by testimony of several of the seven juveniles involved. Defendant's version of the facts was different; he denied any involvement. He maintained the juveniles were lying about him because it was the easy way out for them. At trial, Defendant presented an alibi defense. Defendant's wife testified that on the night of the burglaries, Defendant was home with her watching TV and sleeping until he left early Saturday morning. Defendant testified to the same effect. Defendant testified that when he got home from work that night there was a "bunch of kids" at his house. They asked if they could have a party at his house. He told them they could not because it would bother the neighbors and his small children. After about an hour and a half, according to Defendant, the teens left and went elsewhere for their party. Defendant also testified that he left early on Saturday morning to look for some of the teenagers that he believed had stolen his large-screen TV during the night. He later found that money was also missing from his house.

{4} At trial, defense counsel sought judicial permission to inquire into the ages of the teens and to put on a defense to the CDM charges arising out of his good-faith mistake of fact about their ages. The State objected on grounds of relevancy. The trial court denied this line of questioning, reasoning that it is not a defense to CDM in New Mexico whether Defendant intended to commit the CDM charges or whether Defendant had a good-faith, reasonable belief that some of the teens had reached their age of majority. In addition, the trial court pointed out that such a defense directly contradicted Defendant's alibi defense. Defendant was allowed to make an offer of proof.

{5} For similar reasons, the trial court refused Defendant's tendered jury instructions on the mistake-of-fact defense, which stated as to five of the juveniles that "[e]vidence ha[d] been presented" that Defendant reasonably "believed that [name of juvenile] was over 18 years of age." These instructions were also refused because the evidence at trial did not support them. For lack of legal support, the trial court also refused a tendered jury instruction putting the burden on the State to prove that Defendant acted intentionally when he committed the CDM crimes.

{6} Over defense counsel's arguments that the seven counts of CDM should be merged into one, the trial court submitted to the jury seven separate elements instructions on the CDM charges, each having a separate name of the respective juvenile and tailored to the different levels of activity Defendant had engaged in with each juvenile. Four of the CDM instructions charged Defendant with "taking [name of child] to the scene where a Residential Burglary was committed" and "caus[ing] or encourag[ing] the child to conduct [himself/herself] in a manner injurious to [his/her] morals[.]" The other three CDM instructions relate specifically to the three juveniles with whom Defendant is alleged to have entered the houses, the two juveniles with whom he drove to El Paso to dispose of the stolen property, and one juvenile to whom he allegedly distributed cocaine.

{7} The jury convicted Defendant on all seven counts of CDM, as well as two counts of residential burglary, one count of larceny (over $250 but not more than $2500), and one count of conspiracy to commit residential burglary. The trial judge sentenced Defendant to one and a half years for each CDM conviction plus one year prior felony enhancement on each (2½ years each), running three of Defendant's seven CDM convictions concurrently to each other (Counts III, IV and V) and running the four other CDM convictions concurrently to each other (Counts VI, VII, VIII and IX), and the two sets of concurrent sentences consecutive to each other, for a total of five years on all CDM charges.

{8} The trial judge disagreed with Defendant's merger argument. Because the jury had convicted Defendant of each of the seven CDM charges relating to seven separate individuals, the court found "that Defendant committed seven offenses" and that he chose "as a matter of his [sentencing] discretion to run three concurrent with one another and four concurrent with one another and those three and those four consecutively with one another." Defendant was sentenced to a total of eighteen years confinement, including the five years for the CDM convictions. The trial judge suspended six years of the sentence for a total of twelve years confinement, plus parole and probation periods.

DISCUSSION

The Seven CDM Convictions

{9} Relying on State v. Cuevas, 94 N.M. 792, 792, 617 P.2d 1307, 1307 (1980), overruled on other grounds by State v. Pitts, 103 N.M. 778, 780, 714 P.2d 582, 584 (1986),

Defendant contends that the trial court erred in convicting and sentencing him for seven counts of CDM, and therefore, all but one of the convictions and sentences should be vacated. In Cuevas, a high school teacher was invited to a party given by a minor student at her parents' house while her parents were away. See id. Liquor was provided by the student. See id. The teacher was charged, convicted, and sentenced to three counts of CDM for teaching a group of twenty students to drink tequila with a lemon and generally encouraging the group to imbibe. See id. at 794, 617 P.2d at 1309. The Supreme Court noted that it was unclear why the defendant had not been charged with and convicted of twenty counts, one for each member of the audience. See id. The Supreme Court relied on what it called "policy considerations" to conclude that three convictions were "excessive" for what amounted to one continuous act of CDM, perpetrated at one place and at one time, with a uniform intent and effect in regard to all twenty minors. See id. The rationale for the Court's holding is not clear. Applying the Cuevas "policy considerations," Defendant asks us to reduce his convictions for CDM from seven to one.

{10} The State responds that Cuevas does not control the outcome of this case because the policy analysis of Cuevas has been "overtaken" by the two-part double jeopardy test set forth in Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). Under Swafford, the double jeopardy clause prohibits multiple punishment in the same trial of a single defendant if (1) conduct underlying the offenses is unitary; that is, the same conduct violates both statutes, and (2) the legislature did not intend separately punishable offenses. See id. at 13, 810 P.2d at 1233. Applying the Swafford test to the facts of Cuevas today, the State argues, would lead to the same result, because there was unitary conduct in Cuevas (a single demonstration of illegal drinking to a group of twenty minors), and there was no evidence the legislature intended the "excessive" punishment of twenty separate convictions. In contrast, applying Swafford to the case before us, the State notes that Defendant's conduct was not unitary (two separate burglaries plus a trip to El Paso), and no "policy" supports merging Defendant's seven CDM convictions into one. We agree with the State's conclusion, but arrive at it through a somewhat different analysis.

{11} Swafford applied the two-part test to the "double-description cases"; that is, when a defendant is charged with violations of multiple statutes that may or may not be deemed the same offense for double jeopardy purposes. See id. at 7-8, 810 P.2d at 1227-28. In this case, Defendant was convicted of multiple counts of the same criminal statute, CDM. Thus, we are concerned with a different facet of the multiple punishment doctrine, the single-statute, "unit of prosecution" cases. See id. at 8-10, 810 P.2d at 1228-30. In such instance, the accused is charged with multiple violations of a single statute, committed...