State v. Caldwell

• Decision Date: 28 January 2008
• Docket Number: No. 26,322.,26,322.
• Citation: 2008 NMCA 049,182 P.3d 775
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Lawrence CALDWELL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

182 P.3d 775

2008 NMCA 049

STATE of New Mexico, Plaintiff-Appellee, v. Lawrence CALDWELL, Defendant-Appellant.

No. 26,322.

Court of Appeals of New Mexico.

January 28, 2008.

Certiorari Denied, No. 30,933, March 7, 2008.

Gary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender Nancy M. Hewitt, Appellate Defender Santa Fe, NM for Appellant.

OPINION

FRY, Judge.

{1} Defendant Lawrence Caldwell challenges his convictions for forgery (issuing or transferring), in violation of NMSA 1978, § 30-16-10(B) (1963) (amended 2006), and fraud over $250, contrary to NMSA 1978, § 30-16-6 (1987) (amended 2006). On appeal, Defendant claims that his convictions were (1) based on insufficient evidence, (2) violative of Defendant's protection against double jeopardy, and (3) based on improper jury instructions. We affirm Defendant's convictions.

BACKGROUND

{2} In January 2004, Benjamin Nieves reported the theft of approximately twenty checks associated with an account he held at Citizen's Bank for his company, New Mexico Roofing & Sheet Metal, Air Conditioning and Mechanical. One of the stolen checks, bearing a signature Nieves claimed was not his own, was made out to "Lawrence Caldwell" and was cashed at a Lowe's grocery store in Clovis, New Mexico. According to the notations on the front of the check, the check was payment for "Labor" in the amount of $860.49.

{3} The State filed a criminal complaint against Defendant charging one count of forgery stemming from the conduct identified above. The State later filed an amended complaint adding a second count against Defendant for the crime of fraud over $250. Defendant was convicted on both counts and appealed. We affirm his convictions.

DISCUSSION

{4} Defendant argues three bases for reversing his convictions for fraud and forgery. First, Defendant requests that his conviction for fraud be vacated because his convictions under both the fraud and forgery statutes, for the single unitary act of cashing a stolen check, violate his protection from double jeopardy. Second, Defendant contends that the non-uniform instruction given to the jury on the charge of forgery was erroneous because it affirmatively instructed the jury that the check was a forged writing and that Defendant knowingly transferred it, thus removing essential elements of the crime of forgery from the jury's consideration. Third, Defendant argues that the State presented insufficient evidence of the essential facts required for the jury to convict Defendant of either fraud or forgery, claiming that the State failed to prove that Defendant endorsed or cashed the check stolen from Nieves. We address each of these issues below.

I. Double Jeopardy

{5} The New Mexico Constitution protects criminal defendants against double jeopardy for the same offense. N.M. Const. art. II, § 15. "The right to be free from double jeopardy consist[s] of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." State v. Rodriguez, 2005-NMSC-019, ¶ 6, 138 N.M. 21, 116 P.3d 92 (alteration in original) (internal quotation marks and citation omitted). Defendant contends that his convictions for both fraud and forgery constitute multiple punishment for the same act in violation of the double jeopardy provision of the New Mexico Constitution. Whether Defendant's convictions for both fraud and forgery constitute "multiple punishment for the same offense as barred by the double jeopardy clause is a question of legislative intent, which we review de novo." State v. Franco, 2005-NMSC-013, ¶ 5, 137 N.M. 447, 112 P.3d 1104 (internal quotation marks omitted).

A. Multiple Punishments

{6} "We analyze a multiple punishment double jeopardy challenge under Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991), and its progeny." State v. Padilla, 2006-NMCA-107, ¶ 26, 140 N.M. 333, 142 P.3d 921, cert. granted, 2006-NMCERT-008, 140 N.M. 424, 143 P.3d 186. "Specifically, where a person is charged with violations of multiple statutes for the same conduct, we analyze the challenge as a so-called double-description issue." Id. "In a double-description case, double jeopardy bars a conviction if the conduct underlying the two offenses is unitary and the legislature has not indicated an intent to punish the same conduct separately." Id.

1. Unitary Conduct

{7} We begin our analysis by determining whether Defendant's conduct may reasonably be viewed as one distinct act or transaction. See id. ¶ 27. In making this determination, we evaluate "separations in time or space, the similarity of the acts, their sequence, intervening events, and [D]efendant's goals and mental state in the context of each act." Id.; see also Swafford, 112 N.M. at 14, 810 P.2d at 1234 (noting that conduct may be distinguished by looking at "[t]ime and space considerations," "the quality and nature of the acts," or "the objects and results involved"). If sufficient indicia of distinctness exist and a defendant's behavior may be viewed as two distinct acts, the inquiry ends because double jeopardy does not bar multiple convictions when the conduct is non-unitary. See id. (stating that a double jeopardy multiple punishment inquiry ends when conduct is "separate and distinct").

{8} In the present case, the State appears to concede that Defendant's conduct was unitary, focusing its argument solely on the legislative-intent prong of the double description analysis. This Court, however, is not bound by the State's concession and we conduct our own analysis as to whether Defendant's conduct was unitary. See State v. Montoya, 116 N.M. 297, 307, 861 P.2d 978, 988 (Ct.App.1993) (noting that the Court is not bound by the State's concession that double jeopardy had been violated), holding modified on other grounds by State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1; State v. Maes, 100 N.M. 78, 80, 665 P.2d 1169, 1171 (Ct.App.1983) ("The public interest in criminal appeals does not permit their disposition by party stipulation."), abrogated on other grounds by State v. Fuentes, 119 N.M. 104, 106, 888 P.2d 986, 988 (Ct.App. 1994). We conclude that Defendant's conduct was unitary.

{9} Defendant's fraud and forgery convictions are based on a discrete act, not separated by time or space, and not distinguishable based on the nature, quality, or result of the act, or Defendant's objective in performing the act. The conduct in question, the act of presenting the check to Lowe's to be cashed and carrying away the proceeds of the check-cashing, provides no basis for determining that Defendant's conduct was not unitary. See State v. Davis, 2000-NMCA-105, ¶ 6, 129 N.M. 773, 14 P.3d 38 (determining that rigging a five-dollar bill to trigger a change machine to release all its coins and carrying those coins away was unitary conduct, as it was close in time and space and the purpose of both acts was the same). When it can reasonably be said that the conduct at issue is unitary, we turn to the second prong of our double-description analysis. Swafford, 112 N.M. at 14, 810 P.2d at 1234.

2. Legislative Intent

{10} The second prong of our inquiry under a double-description analysis is to determine if the legislature intended for the unitary conduct in question to be punished as separate offenses. The "sole limitation on multiple punishments is legislative intent." Id. at 13, 810 P.2d at 1233; see State v. Edwards, 102 N.M. 413, 416, 696 P.2d 1006, 1009 (Ct.App.1984) ("Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses."). "If the legislature expressly provides for multiple punishments, the double jeopardy inquiry must cease." Swafford, 112 N.M. at 14, 810 P.2d at 1234.

Absent a clear expression of legislative intent, a court first must apply the Blockburger test to the elements of each statute. If that test establishes that one statute is subsumed within the other, the inquiry is over and the statutes are the same for double jeopardy purposes—punishment cannot be had for both.

Id.

{11} In applying the Blockburger test, if we conclude that each statute requires proof of an element that the other does not, then a presumption arises that our legislature intended for the conduct to result in separately punishable offenses. See id. at 9, 14, 810 P.2d at 1229, 1234. This presumption, however, is not conclusive and may be overcome by other indicia of legislative intent. See id. at 14, 810 P.2d at 1234 (indicating that the presumption can be rebutted by looking at the "language, history and subject of the statutes"). As there are no clear legislative expressions whether or not to impose multiple punishments in either the fraud or forgery statute, we turn to the Blockburger elements test.

a. Applying Blockburger

{12} The Blockburger test "focuses strictly upon the elements of the statutes." State v. Armendariz, 2006-NMSC-036, ¶ 21, 140 N.M. 182, 141 P.3d 526. Section 30-16-6 (1987), current version at Section 30-16-6(A), defines fraud as the "intentional misappropriation or taking of anything of value which belongs to another by means of fraudulent conduct, practices or representations." This statute requires the State to prove:

(1) that [the] defendant, by words or conduct, misrepresented a fact to the victim, intending to deceive or cheat the victim; (2) because of the misrepresentation and the victim's reliance on it, defendant obtained money or property; (3) the property belonged to someone other than [the] defendant; and (4) the property had a market value as specified.

State v. Higgins, 107 N.M. 617, 621, 762 P.2d 904, 908 (Ct.App.1988).

{13} The applicable version of the forgery statute provides for alternate means of prosecuting forgery based on:

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