State v. Brooks

• Decision Date: 25 June 1993
• Docket Number: No. 13720,13720
• Citation: 862 P.2d 57,1993 NMCA 78,116 N.M. 309
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Larry BROOKS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 57

862 P.2d 57

116 N.M. 309

STATE of New Mexico, Plaintiff-Appellee, v. Larry BROOKS, Defendant-Appellant.

No. 13720.

Court of Appeals of New Mexico.

June 25, 1993.

Certiorari Granted Sept. 14, 1993.

Tom Udall, Atty. Gen. and Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender and Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

ALARID, Judge.

I. INTRODUCTION

Defendant appeals his conviction of, and sentence on, seven counts of embezzlement. He raises six issues on appeal: (1) whether the single larceny doctrine applies in this case; (2) whether the court erred when it allowed a defense witness to be cross-examined about a subsequent uncharged allegation of embezzlement; (3) whether Defendant's confessions should have been excluded; (4) whether the court erred in denying the motion for directed verdict because the State had not proved entrustment; (5) whether the court erred by denying the Defendant's jury instruction defining entrustment; and (6) whether the restitution ordered by the judge is authorized by statute. We affirm.

II. FACTS

Defendant was the bookkeeper for RMS, a property management service. He shared an office and desk with the president of the company. His responsibilities included keeping track of receipts, checking credit, making deposits, balancing check books, and other general financial matters. In particular, it was Defendant's responsibility to make out deposit slips and reconcile the deposits with the accounts receivable ledger. Rental payments were sometimes made by cash, check, or money order. When rent was paid in cash, a receipt was given and the money was placed in an envelope, which was sealed, and stored in a desk drawer. The money was logged in on a worksheet and also in an accounts receivable book.

Sometime in August of 1989, the president of RMS discovered over $3000 missing from rental monies. He hired a private investigator to look into the matter. The private investigator began his inquiries with Defendant. Defendant was given a polygraph test and acknowledged taking the money. In addition, Defendant wrote a confession admitting that he took the money.

III. DISCUSSION

Defendant was convicted of seven separate embezzlements (two misdemeanors and five fourth degree felonies) with regard to the taking of seven separate amounts of money from different clients of RMS. He contends here that he should have been convicted of only one third degree felony embezzlement. Defendant relies on State v. Pedroncelli, 100 N.M. 678, 675 P.2d 127 (1984), and State v. Brown, 113 N.M. 631, 830 P.2d 183 (Ct.App.), cert. denied, 113 N.M. 636, 830 P.2d 553 (1992), in support of his argument.

A. Single Larceny Doctrine

As an initial matter, we note that "[e]mbezzlement is admittedly distinguishable from larceny." Pedroncelli, 100 N.M. at 680, 675 P.2d at 129. "Embezzlement consists of the embezzling or converting to [one's] own use of anything of value, with which [one] has been entrusted, with fraudulent intent to deprive the owner thereof." NMSA 1978, Sec. 30-16-8 (Cum.Sup.1992). Thus, larceny involves an original wrongful taking or trespass, whereas embezzlement involves lawfully possessed property that an offender later converts to his own use. See State v. Peke, 70 N.M. 108, 115, 371 P.2d 226, 230, cert. denied, 371 U.S. 924, 83 S.Ct. 293, 9 L.Ed.2d 232 (1962); State v. Bryant, 99 N.M. 149, 150, 655 P.2d 161, 162 (Ct.App.1982). The differences between these crimes do not preclude reliance upon "single larceny" decisions in embezzlement cases. However, the fact finder is required in both circumstances to "evaluate the evidence to determine if one protracted intention accompanies the several takings or conversions [so] that [they] may be implicated within a single charge." Pedroncelli, 100 N.M. at 681, 675 P.2d at 130. In Pedroncelli, the New Mexico Supreme Court explained that "[t]he nature of the entrustment involved in a particular case should be considered in ascertaining the number of crimes committed and the permissible unit of prosecution employed in that case." Id. Thus, whether a series of successive takings from the same owner constitutes one single embezzlement or a series of separate embezzlements depends upon the particular facts and circumstances of a given case.

In Pedroncelli, the defendant was convicted of a single count of embezzlement over $2500, a third degree felony. The defendant was the custodian of credit union funds and was also a union official. The evidence supporting the conviction was the negotiation of thirty-six checks or cash withdrawals over a six-month period. Each of the thirty-six acts involved less than $2500; however, the total of the thirty-six acts was more than $2500. The defendant was charged with one count of embezzlement over $2500, in violation of Section 30-16-8. The Supreme Court stated that "[t]he evidence adduced at Pedroncelli's trial sufficiently showed her continuing intention to violate her ongoing entrustment as an elected union official." Pedroncelli, 100 N.M. at 681, 675 P.2d at 130.

In the present case, although Defendant was acting in his capacity as an employee for RMS at the times the monies were taken, the nature of his entrustment as an employee is distinguishable from that of union official taking monies from union funds. Defendant's embezzlements occurred on separate dates, they occurred randomly, they involved separate clients, and separate dollar amounts. Therefore, since the prosecutor chose to charge separate embezzlements based on separate takings, it was required to present evidence to prove a separate intent for each taking. Pedroncelli does not mandate that a single count of embezzlement is appropriate under the given facts of this appeal, nor do we believe it stands for such proposition. Thus, we are not persuaded that Pedroncelli supports Defendant's argument.

Likewise, we are not persuaded that Brown supports Defendant's position. In Brown, this Court set out factors to use in determining whether multiple thefts must be punished as one larceny. Those factors include "the time between the criminal acts, the location of the property when it was taken, the existence of any intervening events, distinctions in the manner of committing the thefts, the defendant's intent, and the number of victims." Brown, 113 N.M. at 633, 830 P.2d at 185.

Utilizing these factors, this Court in Brown recognized "the validity of the single larceny doctrine in New Mexico" and merged two convictions for larceny under $100. Id. at 632, 830 P.2d at 184. The defendant in that case was accused of entering an apartment at night and taking gloves and a briefcase from one roommate, and a backpack from another roommate who shared the apartment. We stated:

There was no evidence that a significant period of time separated the thefts, that the items were taken from locations in which the other owner had no substantial rights, that the thefts were accomplished in diverse manners, that Defendant's intent in committing the two thefts was different, or that the larcenies were separated by an intervening event. The only factor weighing in favor of separate offenses is the number of victims.

Id. at 633-34, 830 P.2d at 185-86. However, in the present case, and as we noted above, Defendant's embezzlements occurred on separate dates, they occurred randomly, they involved separate clients, and separate dollar amounts. Thus, we believe under the facts of this appeal that the takings were independent and reflected distinct intents to deprive RMS of separate rental monies.

Therefore, we conclude that the State could properly charge Defendant with seven separate embezzlement counts. The single larceny doctrine does not apply, and we affirm Defendant's convictions for seven counts of embezzlement.

B. Cross-examination of Defendant's Wife

Defendant contends that the trial court erred in allowing the prosecutor to suggest that Defendant's wife had been fired from a job because she took money. In the present case, Defendant's wife was called to testify on his behalf. She testified about her accounting experience and how she had helped Defendant with his job at RMS. On cross-examination, the prosecutor asked her about why she was no longer working as the manager of an apartment complex. She responded that the owner of the complex reported that she was not fulfilling part of the contract to his satisfaction. The prosecutor pursued that point by stating: "And that part was that you weren't, in fact, turning over the monies that you get--that tenants gave you; isn't that true?" Defendant objected on the basis that the question went beyond direct examination and that the prosecution was asking about an uncharged crime, which Defendant argued was improper under SCRA 1986, Section 11-608. The objection was overruled and Mrs. Brooks answered that the allegation was untrue.

Defendant relies on State v. Robinson, 99 N.M. 674, 662 P.2d 1341, cert. denied, 464 U.S. 851, 104 S.Ct. 161, 78 L.Ed.2d 147 (1983), in support of his argument that the State's line of questioning was improper and constituted reversible error. In Robinson, an eyewitness to an armed robbery and murder was accused by his former employer of embezzling money after shortages were discovered during an inventory audit, but no criminal action was taken against the eyewitness. During the trial of the armed robbery and murder charges, the prosecutor impeached the eyewitness by suggesting, through the testimony of another employee of the former employer, that the eyewitness had been fired for embezzlement. There, as here, the only evidence of the alleged misconduct was the unsubstantiated belief of the former employer. The Supreme Court in Robinson stated that "[t]he impeachment of a witness by insinuations based on unsubstantiated allegations of prior misconduct provides the trier of fact with no...