State v. Bernard

• Decision Date: 23 June 2015
• Docket Number: 33,287.
• Citation: 355 P.3d 831
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Eric BERNARD, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

355 P.3d 831

STATE of New Mexico, Plaintiff–Appellee

v.Eric BERNARD, Defendant–Appellant.

33,287.

Court of Appeals of New Mexico.

June 23, 2015.

Hector H. Balderas, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General Albuquerque, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender Nicole S. Murray, Assistant Appellate Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} A jury convicted Defendant Eric Bernard of four counts of receiving or transferring stolen vehicles or motor vehicles, contrary to NMSA 1978, Section 30–16D–4(A) (2009), for his unlawful possession of a stolen enclosed trailer, a snowmobile, and two side-by-side all-terrain vehicles (ATVs). Defendant appeals his convictions on various grounds. Defendant contends that, based on his interpretation of Section 30–16D–4(A), the jury instructions improperly omitted an essential element of the offense of possession of a stolen vehicle under the statute. Due to the omission of this essential element, Defendant also argues that the evidence presented at trial was insufficient to support his convictions. Defendant further contends that his four convictions based on a single statute violate the double jeopardy protection against multiple punishments for the same offense. Finally, Defendant raises claims of ineffective assistance of counsel. We hold that (1) the jury instructions accurately followed the language of the statute and contained all the essential elements of the offense of possession of a stolen vehicle, (2) Defendant's sufficiency of evidence argument is without merit due to his incorrect interpretation of the statute, (3) Defendant's four separate convictions do not violate his double jeopardy rights because Defendant's possession of each stolen vehicle constitute four distincts acts, and (4) Defendant failed to make a prima facie case of ineffective assistance of counsel. Accordingly, we affirm Defendant's convictions.

BACKGROUND

{2} Defendant received four convictions for the possession of four stolen vehicles, three of which were unlawfully taken in 2012 from Tim Kelley's property located near Durango, Colorado. At the time of the theft, Kelley and his family were away from the property recovering from multiple injuries they had sustained earlier that year when their home was destroyed by a propane leak explosion. Jerry Spinnichia, who was convicted in Colorado of the theft of Kelley's vehicles, testified at Defendant's trial that he, Defendant, and another person drove onto Kelley's property and located a twenty-seven foot enclosed trailer. According to Spinnichia's testimony, the perpetrators loaded some items in the trailer, hitched the trailer to their vehicle, and towed the trailer off the property. Included among the stolen items inside the trailer were Kelley's snowmobile and Polaris Ranger side-by-side ATV. Spinnichia also testified that he and Defendant then drove the enclosed trailer containing the snowmobile and the Polaris ATV to the home of Steven Murch near Aztec, New Mexico. Police officers testified that they later recovered the stolen vehicles from Murch's property. Inside the trailer, officers also found a Honda side-by-side ATV that had previously been reported stolen from a home located in San Juan County, New Mexico.

{3} Defendant was arrested and charged with four counts of receiving or transferring stolen vehicles or motor vehicles, in violation of Section 30–16D–4(A), for his possession of the stolen enclosed trailer, the snowmobile, the Polaris ATV, and the Honda ATV. The relevant text of the statute reads:

A. Receiving or transferring a stolen vehicle or motor vehicle consists of a person who, with intent to procure or pass title to a vehicle or motor vehicle as defined by the Motor Vehicle Code [66–1–1 NMSA 1978 ] that the person knows or has reason to believe has been stolen or unlawfully taken, receives or transfers possession of the vehicle or motor vehicle from or to another or who has in the person's possession any vehicle that the person knows or has reason to believe has been stolen or unlawfully taken[.]

Section 30–16D–4(A) (Emphasis added).

{4} After hearing the evidence at trial, the jury received instructions for the essential elements of the offense of possession of a stolen vehicle under the statute. The instructions given, which conformed with the uniform jury instructions, specified that the State must prove beyond a reasonable doubt that Defendant had possession of each stolen vehicle and “knew or had reason to know that [the] vehicle[s] had been stolen or unlawfully taken[.]” UJI 14–1652. The jury convicted Defendant on all four counts for his possession of the stolen enclosed trailer, the snowmobile, the Polaris ATV, and the Honda ATV, contrary to Section 30–16D–4(A). Defendant raises four issues on appeal that we address in turn.

JURY INSTRUCTIONS FOR POSSESSION OF A STOLEN VEHICLE, SECTION 30–16D–4(A)

{5} Although the trial court instructed the jury in accordance with the applicable uniform jury instructions in this case, Defendant first argues that the jury instructions were fundamentally flawed by failing to include an essential element of the offense of possession of a stolen vehicle. Defendant's argument hinges on his construction of Section 30–16D–4(A). Defendant claims that statutory changes passed by the Legislature in 2009 made the “intent to procure or pass title to a vehicle” an essential element of the offense of unlawful possession of a stolen vehicle under the statute. If, as Defendant asserts, the Legislature intended “intent to procure or pass title to a vehicle” to be an essential element, then the jury should have been instructed to that effect. See Rule 5–608(A) NMRA (“The court must instruct the jury upon all questions of law essential for a conviction of any crime submitted to the jury.”). Defendant failed to object to the instructions at trial, but he argues on appeal that omission of this essential element from the jury instructions constituted fundamental error that compels reversal of his convictions. State v. Barber, 2004–NMSC–019, ¶ 20, 135 N.M. 621, 92 P.3d 633 (“[F]ailure to instruct the jury on an essential element, as opposed to a definition, ordinarily is fundamental error even when the defendant fails to object or offer a curative instruction.”); see also State v. Swick, 2012–NMSC–018, ¶ 55, 279 P.3d 747 (“[W]hen the jury instructions have not informed the jury that the [s]tate had the burden to prove an essential element ... convictions have been reversed for fundamental error.”).

Standard of Review

{6} Our determination whether the “intent to procure or pass title to a vehicle” is an essential element of the offense of possession of a stolen vehicle under Section 30–16D–4(A) requires our interpretation of the statute and is a question of law that we review de novo. State v. Tafoya, 2010–NMSC–019, ¶ 9, 148 N.M. 391, 237 P.3d 693. “Our primary goal when interpreting statutory language is to give effect to the intent of the [L]egislature.” State v. Torres, 2006–NMCA–106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. We first examine the statute's plain language, “which is the primary indicator of legislative intent[.]” Gonzales v. State Pub. Emps. Ret. Ass'n, 2009–NMCA–109, ¶ 13, 147 N.M. 201, 218 P.3d 1249 (internal quotation marks and citation omitted). “In addition to looking at the statute's plain language, we will consider its history and background and how the specific statute fits within the broader statutory scheme.” Chatterjee v. King, 2012–NMSC–019, ¶ 12, 280 P.3d 283. When interpreting a statute that has been amended, “the amended language must be read within the context of the previously existing language, and the old and new language, taken as a whole, comprise the intent and purpose of the statute[.]” Vigil v. Thriftway Mktg.Corp., 1994–NMCA–009, ¶ 15, 117 N.M. 176, 870 P.2d 138. We must also “read the statute in its entirety and construe each part in connection with every other part to produce a harmonious whole.” Key v. Chrysler Motors Corp., 1996–NMSC–038, ¶ 14, 121 N.M. 764, 918 P.2d 350.

History and Plain Meaning of Section 30–16D–4

{7} Prior to 2009, the statute codifying the crime of receiving or transferring stolen vehicles or motor vehicles resided in the Motor Vehicle Code. That language read:

Any person who, with intent to procure or pass title to a vehicle or motor vehicle which he knows or has reason to believe has been stolen or unlawfully taken, receives, or transfers possession of the same from or to another, or who has in his possession any vehicle which he knows or has reason to believe has been stolen or unlawfully taken, ... is guilty of a fourth degree felony[.]

NMSA 1978, Section 66–3–505 (1978). In State v. Wise, 1973–NMCA–138, 85 N.M. 640, 515 P.2d 644, this Court settled the question of whether the statute defined one crime or two separate crimes. The defendant in Wise challenged his conviction under the statute for unlawful possession of a stolen vehicle by contending that the language specifically required “the vehicle [to] have been ... possessed by the accused with the intent to procure or pass title to it[.]” Id. ¶ 4 (internal quotation marks omitted). We disagreed with the defendant's construction of the statute and held that the phrase “with intent to procure or pass title to a vehicle” did not apply to the act of possession of a stolen vehicle. Id. Accordingly, this Court explained, the “statute defines two separate crimes: (1) taking, receiving, or transferring possession of a vehicle with knowledge or reason to believe it is stolen and with intent to procure or pass title, and (2) unlawful possession of a stolen vehicle.” Id. ¶ 3.

{8} In 2009, the Legislature amended the language of the crime of receiving or transferring stolen vehicles or motor vehicles and recompiled the statute in the Criminal Code as Section 30–16D–4. The amended text of the statute after ...