State v. Bunce

• Decision Date: 27 September 1993
• Docket Number: No. 20231,20231
• Citation: 116 N.M. 284,1993 NMSC 57,861 P.2d 965
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jim BUNCE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 965

861 P.2d 965

116 N.M. 284

STATE of New Mexico, Plaintiff-Appellee, v. Jim BUNCE, Defendant-Appellant.

No. 20231.

Supreme Court of New Mexico.

Sept. 27, 1993.

[116 N.M. 285] Sammy J. Quintana, Chief Public Defender, Hugh W. Dangler, Amme M. Hogan, Asst. Appellate Defenders, Santa Fe, for defendant-appellant.

Hon. Tom Udall, Atty. Gen., Max Shepherd, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BACA, Justice.

In this case, we consider the propriety of the embezzlement jury instructions given and answer one question certified to us by the Court of Appeals: Whether the trial court erred when it refused to instruct the jury that mistake of fact was a defense to embezzlement. Holding that, under the facts of this case, failure to instruct the jury on a correct application of the mistake-of-fact defense is fundamental error, we reverse and remand for a new trial.

I

In December of 1988, Defendant Jim Bunce entered into several contracts with Dale Bigler. Under the terms of one of those contracts, Defendant, a licensed contractor doing business as Bunce Construction, was required to erect a metal building for Bigler's business, Melrose Tire Service. In return, Defendant would receive $96,200 to be paid as work progressed, with a lump sum of $45,000 to be paid upon receipt of the building from its manufacturer.¹

The embezzlement charges against Defendant arose out of two progress payments made by Bigler to him. On April 12, 1989, Bigler issued two checks to Defendant that totaled $16,000 (collectively referred to as "the April 12th payment"). The second payment in question, in the form of a single check for $6,000, was made by Bigler to Defendant on May 22, 1989 (the "May 22nd payment"). Sometime in June, Defendant discontinued work on the uncompleted building because Bigler who had established a pattern of late payments, had failed to pay $6,000 that Defendant believed was due on the contract. Bigler contacted the prosecutor, who initiated embezzlement and fraud charges against Defendant.

In March of 1990, Defendant was tried for two counts of fraud or, in the alternative, two counts of embezzlement. The State's theory of the case was that the April 12th payments were intended by Bigler to cover the cost of materials and installation of garage doors that were purchased for the building, that the May 22nd payment was intended to partially cover the cost of materials and construction yet to be done, and that the payments were not used as intended. At trial, Bigler testified that in March or April Defendant requested a payment of $16,000 to cover the cost of the garage doors. Bigler testified that when the doors arrived, he paid Defendant the April 12th payment of $16,000. Bigler testified that he later discovered that Defendant had paid the door manufacturer only a portion of the purchase price and that the door manufacturer filed a materialman's lien against the building. Bigler testified that the May 22nd payment was intended to cover the cost of materials and construction, that only $322 worth of materials were delivered to the building after the May 22nd payment, and that very little work was done.

Defendant's theory of the case was that April 12th payment of $16,000 was intended to apply to an outstanding balance owed by Bigler to Defendant of $20,000 and that the May 22nd payment of $6,000 was intended to apply to an outstanding balance owed by Bigler to Defendant of $11,000. Defendant's wife, Sherry Bunce, the bookkeeper for Bunce Construction, testified that Bigler's payment record had been poor, that several of Bigler's checks had been returned for insufficient funds, that Bigler had made and broken payment promises, and that Defendant had twice walked off of the job because of Bigler's payment problems. In addition, Sherry Bunce testified that the April 12th payment was a progress payment on the contract, that the payment was not intended to pay for the garage doors, and that the payment was intended to apply against a balance due of $20,000. She also testified that the May 22nd payment was intended to cover an outstanding balance of $11,000, that when he made the $6,000 payment Bigler promised to pay the remaining $5,000 in several days, and that Bigler never paid the $5,000. Defendant also testified in his own defense. He testified that Bigler had had payment problems throughout the entire contract. Defendant testified that approximately one week before the doors were to arrive, he told Bigler that he would not continue on the project unless Bigler brought his payments up to date. He testified that the April 12th payment was received against a balance owed of $20,000, that he never told Bigler that the $16,000 was intended to purchase the doors, and that the doors were delivered to the site several days after Bigler made the April 12th payment. Defendant also testified that the May 22nd payment was received against a balance owed of $11,000. Defendant testified that when Bigler failed to make the $5,000 payment as promised, he discontinued work on the job. Based on this evidence, Defendant proffered a mistake of fact instruction, which the trial court refused.

Defendant was found guilty of two counts of embezzlement.² Defendant appeals, contending that the trial court erred when it failed to give his requested mistake of fact jury instruction. We agree that, under the facts of this case, the trial court should have instructed the jury that mistake of fact was a defense to the embezzlement charges, and accordingly, we reverse.

II

The only issue that we address is whether the trial court erred when it failed to instruct the jury regarding mistake of fact. Defendant contends that he is entitled to an instruction on his theory of the case--mistake of fact--because he introduced sufficient evidence to support such an instruction. In addition, Defendant argues that mistake of fact is a defense when it negates the mental state essential to the crime charged. Defendant insists that he preserved this issue by submitting a correct instruction regarding mistake of fact. Defendant also asserts that, in the absence of the mistake of fact instruction, the jury was not fully apprised of the necessary elements of embezzlement and that this failure to instruct amounts to a violation of due process. In a related argument, Defendant asserts that, in the absence of a mistake of fact instruction, the intent element of the instructions given to the jury did not adequately define the intent required to support a conviction for embezzlement. Defendant concludes that we should reverse his conviction and remand for a new trial. We agree with that conclusion.

A defendant is entitled to have the jury instructed on his theories of the case if that theory is supported by the evidence. State v. Venegas, 96 N.M. 61, 62, 628 P.2d 306, 307 (1981). The trial court need not, however, offer duplicate instructions if the instructions given adequately apprise the jury of the controlling law. Id. at 63, 628 P.2d at 308. As the Court of Appeals has stated:

"Ordinarily, a defendant is not entitled to a specific instruction where the jury has already been adequately instructed upon the matter by other instructions." State v. Venegas, 96 N.M. 61, 628 P.2d 306 (1981) (citation omitted). Our reading of Venegas leads us to conclude that whenever an intent instruction involving the defendant's mental state is given, the mistake of fact concept is automatically included and does not merit a separate instruction.

State v. Griscom, 101 N.M. 377, 379, 683 P.2d 59, 61 (Ct.App.), cert. denied, 101 N.M. 362, 683 P.2d 44 (1984).

In Venegas, we held that the trial court did not err when it refused the defendant's requested mistake of fact instruction because that instruction would have duplicated the justified homicide instruction, which was given. 96 N.M. at 62, 628 P.2d at 307. In Griscom, the Court of Appeals upheld the defendant's fraud convictions in the absence of a mistake of fact instruction because each of the instructions on fraud required that the State prove that "defendant, by any words or conduct, made a promise she had no intention of keeping ..." and because six of the instructions included the language "intending to deceive or cheat." Griscom, 101 N.M. at 379, 683 P.2d at 61. The Court of Appeals reasoned that a mistake of fact instruction would merely restate what had been adequately covered by the other instructions and that the mistake of fact instruction was therefore unnecessary. Id. Taken together, Venegas and Griscom teach that the trial court need not give a mistake of fact instruction where the intent element of the crime is adequately defined by the other instructions given by the trial court.³ Thus, our task in this appeal is to examine the instructions given and compare those instructions with the essential elements of embezzlement as defined by NMSA 1978, Section 30-16-8 (Cum.Supp.1992).

In the instant case, the trial court gave the following instruction, patterned after SCRA 1986, 14-1641, regarding each of the two embezzlement counts:

For you to find the defendant guilty of embezzlement as charged in ... [Count I or II], the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. The defendant was entrusted with over $2500.00;

2. The defendant converted this money to his own use;; [sic]

3. At the time he converted this money to his own use, he intended to deprive the owner of his property;

4. This happened in New Mexico on or about the [date of the incident].

"Converting something to one's own use" means keeping another's property rather than returning it, or using another's property for one's own purpose rather than for the purpose intended by the owner.

In addition, the trial court instructed the jury on the element of general criminal intent, patterned after SCRA 1986, 14-141:

In addition to the other elements of ......