State v. Boergadine
| Decision Date | 14 January 2005 |
| Docket Number | No. 766, No. 23, No. 767. |
| Citation | 107 P.3d 532,2005 NMCA 28,137 N.M. 92 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. James Kyle BOERGADINE, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, James O. Bell, Santa Fe, NM, for Appellee.
John Bigelow, Chief Public Defender, Cordelia A. Friedman, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
Certiorari Denied, No. 29,061, March 2, 2005.
{1} In this case, we hold that Defendant's fraudulent taking of three payments in the course of completing work on one vehicle's transmission justifies convicting him of three counts of fraud pursuant to NMSA 1978, § 30-16-6 (1987). Defendant James Kyle Boergadine appeals his conviction of three counts of fraud. Defendant also appeals the resulting revocation of his probation in another case that is consolidated with this one for purposes of this appeal. Defendant asserts that: (1) the three fraud counts were for one course of conduct, so that his conviction for all three violated double jeopardy; (2) discovery violations and other prosecutorial misconduct warrant reversal on the basis of fundamental error; (3) his trial counsel was ineffective; (4) these errors are cumulative error; and (5) because his fraud convictions should be reversed, they could not be a basis for the revocation of his probation. Defendant's reliance on what he sees as a single course of conduct is misplaced, when it was he who requested further payments and changed the terms of the agreement without performing his obligations. Because we find no error below, we affirm Defendant's convictions for the reasons stated herein.
{2} On February 11, 2002, Cheyenne Redhouse (Redhouse) took her vehicle to Defendant for transmission repairs. Defendant told Redhouse that the repairs would cost $1000. Redhouse did not have this amount, and Defendant told her that she could put $400 down for parts. Defendant told her that she "can just give [him money] little by little." Defendant accepted a check for $350 from Redhouse, but instructed her not to make the check payable to him since he did not have any identification to cash it. The check was made payable to Defendant's fiancee and subsequently cashed.
{3} Redhouse came to see Defendant again on February 17, 2002. Nothing had been done on her car. Defendant told Redhouse that he needed more parts, and Redhouse's husband gave Defendant $300 in cash. Defendant told Redhouse that "he might need some more money if there's other parts that needs [sic] to be done," and that he would contact her.
{4} Almost two months later, Redhouse spoke to Defendant again. Defendant told her that he needed another $1200, but that this amount should "cover the whole thing." On April 18, 2002, Redhouse gave Defendant this amount in cash. Sometime later, when the vehicle repairs had not been done, Redhouse again spoke to Defendant. Defendant told Redhouse that he would not give her the parts she had paid for or repair the vehicle. Defendant took Redhouse's vehicle to a repair shop, which contacted Redhouse to do the repairs. Redhouse later testified that a note had been left in her vehicle saying the money she had paid to Defendant was for storage fees.
{5} In May 2002, Defendant was charged by complaint with only one count of fraud for the $350 check, although the attached affidavit described all three times that Redhouse gave Defendant money. Defendant pled not guilty to a subsequent criminal information containing three counts of fraud.
{6} A number of issues arose pre-trial, including untimely additions to the prosecution's witness list. The prosecution's initial witness list named Redhouse, Detective Wyatt, and Officer Marshall. The prosecution later sought to add five more witnesses, who were barred from testifying at trial.
{7} Defendant also sought production of an N.C.I.C. criminal report on Redhouse "just for credibility purposes." The trial court ordered the prosecution to disclose if Redhouse had any prior criminal convictions and to give Defendant an N.C.I.C. report if the State already had one. The court specifically relieved the prosecution of the need to obtain such a report if it did not already have one in its possession. The court later informed Defendant that a "[r]ap sheet" could be obtained from the sheriff's office, and that it would order one released to Defendant if necessary.
{8} Defendant was unable to obtain a copy of the cancelled check, and it was never produced, despite Defendant moving to compel discovery, sending a subpoena to Redhouse, and obtaining a court order compelling its production. Defendant had only seen a carbon copy of the front of the check, and not any indorsement on its back. Defendant further sought to prevent any mention of the check at trial based only on the non-disclosure of the cancelled check. The trial court allowed Redhouse to testify about the check while ruling that the cancelled check itself could not be introduced if found.
{9} In its opening statement at trial, the prosecution stated that three of the previously excluded witnesses were present, and that one, Redhouse's daughter, could testify "if necessary." The prosecutor also previewed "testimony" that the other excluded witnesses might give. At no point during this opening did Defendant's counsel object.
{10} In Defendant's opening statement, Defendant's counsel challenged whether Redhouse ever wrote the $350 check based on its absence from evidence. He told the jury that they were not going to see the check He would later reiterate this argument in closing statements.
{11} At trial, Officer Marshall, Redhouse, and Detective Wyatt testified. After the State rested, Defendant's counsel moved for a directed verdict, which was denied. Defendant's counsel presented no witnesses, going directly to closing arguments. The court then gave a separate instruction for each count of fraud without objection from Defendant. Each instruction described one of the times that Redhouse had given Defendant money, including the $350 check, the $300 in cash, and the final $1200 cash payment. The jury found Defendant guilty of all three charges of fraud. Defendant now appeals those convictions.
{12} Defendant argues for the first time on appeal that his convictions were in violation of the Double Jeopardy Clauses of the State and Federal Constitutions. This issue may be properly raised for the first time on appeal. State v. Soto, 2001-NMCA-098, ¶ 12, 131 N.M. 299, 35 P.3d 304. Double jeopardy challenges, which raise the issue of the unit of prosecution under a single statute, become questions of statutory construction, and are reviewed de novo. Id. ¶ 13. Under this standard, we approach the question of whether, on the facts above, Defendant's three convictions violated double jeopardy.
{13} Although Defendant invokes both the State and Federal Constitutions, we read and analyze these two provisions in the same manner. State v. Rogers, 90 N.M. 604, 606, 566 P.2d 1142, 1144 (1977). The Double Jeopardy Clause provides that no one will be "twice put in jeopardy" for the same crime. U.S. Const. amend. V; N.M. Const. art. II, § 15. This clause protects against three distinct dangers. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) (internal quotation marks and citation omitted). Second prosecution cases are analyzed differently than multiple punishment cases. Id.
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