State v. Brown

• Decision Date: 09 March 1992
• Docket Number: No. 12871,12871
• Citation: 830 P.2d 183,113 N.M. 631,1992 NMCA 28
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Carlton BROWN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 183

830 P.2d 183

113 N.M. 631

STATE of New Mexico, Plaintiff-Appellee, v. Carlton BROWN, Defendant-Appellant.

No. 12871.

Court of Appeals of New Mexico.

March 9, 1992.

Certiorari Denied April 15, 1992.

[113 NM 632] Tom Udall, Atty. Gen., Margaret McLean, Asst., Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Gina Maestas, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant appeals from his conviction of two counts of larceny under $100, contrary to NMSA 1978, Section 30-16-1 (Cum.Supp.1990) (petty misdemeanor), one count of larceny over $250, contrary to Section 30-16-1 (fourth degree felony), and one count of residential burglary, contrary to NMSA 1978, Section 30-16-3(A) (Repl.Pamp.1984) (third degree felony), contending (1) the two convictions for larceny under $100 merged, and (2) there was insufficient evidence to support the conviction for larceny over $250. We agree that the convictions for larceny under $100 merged and remand for resentencing. We affirm the conviction for larceny over $250.

I.

Julie Oliver and Vivian Adams lived at 611 Lead, S.W., Apartment 706, in Albuquerque. A little after 6:00 a.m. on March 17, 1990, Oliver awakened and discovered Defendant sleeping on the living room couch. She summoned the police. Defendant told the police that an acquaintance had let him in with a key and had then departed. Oliver's backpack was on the patio next to Defendant's bicycle. Inside the backpack were a Sony compact disc player and eight compact discs. Defendant said that the items on the patio belonged to him. Adams's gloves were found in Defendant's pocket and her briefcase was found outside on the lawn. Officer Trout found two screwdrivers lying under a front window of the women's apartment.

The police found several hundred dollars in Defendant's pockets. Officer Wood asked Defendant where he obtained the money, and he replied that he had been paid. He did not have any documentation.

James Molling and Chad Bridges lived at 611 Lead, S.W., Apartment 722. At approximately 9:00 a.m. on March 16, 1990, Molling noticed that a Sony compact disc player owned by Bridges and approximately $400 in $20 bills were missing. Bridges had purchased the player for $100. Bridges noticed later that six of his compact discs were missing. The police gave the money found in Defendant's pockets to Molling.

A grand jury indicted Defendant for two counts of residential burglary, one count of larceny over $250, and two counts of larceny under $100. One of the counts of larceny charged Defendant with taking Adams's gloves and briefcase; the other charged him with taking Oliver's backpack. The trial court directed a verdict regarding one count of residential burglary.

II.

Defendant argues that his two convictions for larceny of the items taken from Oliver and Adams must merge under the single larceny doctrine. Under that doctrine, the stealing of property from different owners at the same time and the same place constitutes only one larceny. See generally Daniel H. White, Annotation, Single or Separate Larceny Predicated upon Stealing Property from Different Owners at the Same Time, 37 A.L.R.3d 1407 (1971 & Supp.1991). We conclude that Herron v. State, 111 N.M. 357, 805 P.2d 624 (1991), controls the disposition of this appeal and that under the analysis adopted by the supreme court in Herron, Defendant's convictions do merge. We also conclude that as a result of Herron, we should now recognize the validity of the single larceny doctrine in New Mexico.

In Herron, the supreme court held that numerous convictions for criminal sexual penetration violated guarantees against double jeopardy because they subjected the defendant to multiple punishments for the same offense. In making this determination, the court first identified "the appropriate unit of prosecution" under the relevant statute. Id. at 359, 805 P.2d at 626. Absent legislative intent that non-distinct acts could be punished separately, the court required proof that each act charged was in some sense distinct from the others charged. See State v. Mares, 112 N.M. 193, 812 P.2d 1341 (Ct.App.1991) (adopting the approach used in Herron to allegations of multiple batteries). We apply the same analytical approach. Under that approach, the first inquiry is how the legislation has defined the crime.

Section 30-16-1 defines larceny as "the stealing of anything of value which belongs to another." This court has said that in prosecuting larceny, the state need not prove ownership in a particular person; proof that the property belonged to someone other than the defendant is sufficient. State v. Ford, 80 N.M. 649, 459 P.2d 353 (Ct.App.1969). Nothing in the statutory language indicates that the legislature intended to create a separate offense for each taking of property belonging to different persons during a continuous episode. Cf. State v. Callaghan, 33 Or.App. 49, 576 P.2d 14, 19-20 (1978) (where legislature had expressed its intent that where there were multiple victims, multiple counts were proper, evidence that the defendant at one time and in one place withheld property from twenty different victims supported his conviction of twenty separate theft offenses). We conclude that the legislative intent is ambiguous. Any doubt will be resolved against construing ambiguous legislative intent in favor of allowing multiple punishments for one act. Herron v. State. The remaining question is whether, under Herron, the two acts charged as larcenies under $100 were separate and distinct.

Herron set forth a number of factors to be considered in reviewing acts of criminal sexual penetration occurring during a single attack. Mares paraphrased those factors so they could be applied to allegations of multiple batteries. We further refine the factors for application in this multiple larceny case. They 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.

There was evidence that Adams's gloves were taken from her bedroom or the kitchen, that her briefcase was taken from her bedroom closet or the living room, and that Oliver's backpack was taken from the room in which she slept, which was the den, in the same apartment. The State argues that this evidence establishes that the items were taken from different locations and must have been taken at different times. However, a brief interval between thefts makes no difference if they were part of the same transaction. State v. Sampson, 157 Iowa 257, 138 N.W. 473 (1912) (theft of roommates' possessions from different places in the same room); cf. State v. Pedroncelli, 100 N.M. 678, 675 P.2d 127 (1984) (successive takings from a single owner pursuant to a single, sustained criminal impulse constitute a single larceny regardless of the time which may elapse between each act). Furthermore, the fact that Defendant took the items from different rooms in the apartment and that the items were separately owned by the two roommates does not establish that they were not part of the same transaction. See Hudson v. State, 9 Tex.App. 151 (1880) (thefts of items owned by different persons from different rooms in a family residence). There was no evidence, for example, that Adams and Oliver did not have common rights in the location from which the other's property was stolen. Cf. State v. Bolen, 88 N.M. 647, 545 P.2d 1025 (Ct.App.1976).

Adams's and Oliver's possessions were subsequently recovered from different locations in and near their apartment. The State contends that this evidence establishes two distinct criminal intents. We disagree. The fact that Defendant placed the items in different places after he seized them is not probative of two distinctive general intents when he committed the thefts.

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. Multiple ownership alone will not support multiple convictions. See State v. Klasner, 19 N.M. 474, 145 P. 679 (1914). At most, Defendant could be found guilty of one larceny under $100.

Bolen indicates that under the single larceny doctrine, " '[t]he stealing of property from different owners at the same time and at the same place constitutes but one larceny.' " 88 N.M. at 647, 545 P.2d at 1025 (quoting 2 Ronald A. Anderson, Wharton's Criminal Law and Procedure Sec. 451 (1957)). See generally 3 Charles E. Torcia, Wharton's Criminal Law Secs. 358, 359 (14th ed. 1980) (discussing "Single or multiple larcenies; same owner" and "--Different owners"). "The underlying theory is that there is only one taking." Id. Sec. 359, at 314-16. As we understand the doctrine, had we applied it rather than Herron, we would have reached the same result. Under these circumstances, w...