State v. Candelaria

• Citation: 446 P.3d 1205
• Decision Date: 01 April 2019
• Docket Number: NOS. A-1-CA-35193,A-1-CA-35225,S. A-1-CA-35193
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Karl CANDELARIA, Defendant-Appellant, and State of New Mexico, Plaintiff-Appellee, v. Nora Chee, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

446 P.3d 1205

STATE of New Mexico, Plaintiff-Appellee,

v.Karl CANDELARIA, Defendant-Appellant,andState of New Mexico, Plaintiff-Appellee,

v.Nora Chee, Defendant-Appellant.

NOS. A-1-CA-35193

A-1-CA-35225

Court of Appeals of New Mexico.

Filing Date: April 1, 2019

Certiorari Denied, May 9, 2019, No. S-1-SC-37644

Hector H. Balderas, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant Karl Candelaria

Jonathan Tsosie, Denver, CO, Ben A. Ortega, Albuquerque, NM, for Appellant Nora Chee

KIEHNE, Judge Pro Tempore.

{1} Defendants Nora Chee and Karl Candelaria each appeal from separate judgments and sentences following a jury verdict finding them both guilty of fraud, forgery, and conspiracy to commit fraud, and Defendant Chee guilty of embezzlement, arising from a scheme in which they stole over $200,000 from the franchisor of Defendant Chee’s business by writing unauthorized checks to themselves. Because the two cases arise from the same facts, and Defendants raise similar claims, we consolidate these cases for decision. See Rule 12-317(B) NMRA.

{2} Defendants make the following claims on appeal: (1) that the evidence was insufficient to support their convictions for forgery, because the checks and signature stamp that they used to carry out their scheme were authentic, even though their use of those items was unauthorized; (2) that the district court erred in denying their motions to dismiss the charges against them on speedy trial grounds on the stated basis that the motions were filed after the deadline for filing pretrial motions in the district court’s scheduling order; (3) that the district court erred when it allowed late-disclosed evidence to be used at trial and did not grant a continuance to allow Defendants to further investigate it; (4) that the district court erred when it allowed a substitute witness to testify as a records custodian; and (5) that the district court erred in allowing a variety of unfairly prejudicial evidence to be admitted at trial. Defendant Candelaria also challenges his two convictions for fraud, arguing that they violate his right to be free from double jeopardy. We agree that Defendant Candelaria’s two fraud convictions violate the prohibition on double jeopardy, and remand to the district court with instructions that one of the convictions be vacated. We affirm the district court’s judgments and sentences in all other respects.

BACKGROUND

{3} Defendant Chee owned a business called Care Connections, which was a franchise of Around the Clock Healthcare Services (ATC), a medical staffing company based in New York. Care Connections, as a franchisee of ATC, provided Registered Nurses (RNs), Licensed Practical Nurses (LPNs), and various other healthcare workers to healthcare facilities in need of temporary staff. Ms. Chee was also an RN. Chee’s boyfriend, Defendant Candelaria, was an employee of Care Connections, where he performed administrative tasks. He was not an RN, nor was he an employee of ATC.

{4} ATC offered a program called the "daily pay program" or "quick pay program," which allowed RNs to submit a timesheet verifying the work that they had done for a healthcare facility, and be paid by ATC that same day rather than having to wait until the end of the next pay period. ATC provided its franchisees, including Defendant Chee’s franchise, with check stock and the signature stamp of ATC’s Chief Financial Officer, David Kimbell, to facilitate the quick pay program. ATC placed firm restrictions on Defendant Chee’s ability to use the signature stamp and check stock: she was authorized to issue checks only to RNs, for amounts of $500 or less, with a limit of one check per person per day. As a principal of the franchise, Defendant Chee was not authorized to issue quick pay checks to herself, even for services she rendered as an RN. Defendant Candelaria was not entitled to receive quick pay checks, because he was not an RN, and thus could not have provided any services that would have entitled him to receive a quick pay check.

{5} Mr. Kimbell and David Savitsky, the Chief Executive Officer of ATC, discovered in 2009 that Care Connections had issued a number of quick pay checks to Defendants Chee and Candelaria in 2008 and 2009, in amounts totaling over $200,000. No documentation established that Defendants performed any work to justify the issuance of those checks. The checks were deposited into two different bank accounts that Defendant Chee had opened, and the money was often quickly withdrawn. Defendant Chee was the only person authorized to make withdrawals from those accounts. During the relevant time period, Defendant Chee also wrote checks for large amounts of money from those accounts to Defendant Candelaria.

{6} Both Defendants were arrested on June 3, 2011, and charged with multiple counts of forgery ($2500 or less), contrary to NMSA 1978, Section 30-16-10(A), (B) (2006) ; conspiracy to commit forgery, contrary to Section 30-16-10(A), (B) and NMSA 1978, Section 30-28-2 (1979) ; and fraud (between $2,500 and $20,000), contrary to NMSA 1978, Section 30-16-6 (2006) ; plus one count of conspiracy to commit fraud (between $2,500 and $20,000), contrary to Section 30-16-6 and Section 30-28-2. The State also charged Defendant Chee with multiple counts of embezzlement, contrary to NMSA 1978, Section 30-16-8 (2007), and Defendant Candelaria with one count of fraud (over $20,000), contrary to Section 30-16-6. The district court consolidated Defendants' cases for trial, and Defendant Chee was convicted of twenty-two counts of forgery, one count of embezzlement, one count of fraud, and one count of conspiracy to commit fraud. Defendant Candelaria was convicted of ten counts of forgery, two counts of fraud, and one count of conspiracy to commit fraud.

DISCUSSION

I. Substantial Evidence Supported Defendants' Forgery Convictions

{7} Defendants claim that substantial evidence did not support their forgery convictions. Specifically, Defendants contend that their conduct did not constitute the crime of forgery because the quick pay checks and signature stamp used in the scheme were genuine, and Defendant Chee endorsed the checks with her own genuine signature. We disagree.

{8} "Although framed as a challenge to the sufficiency of the evidence, Defendant[s'] argument requires us to engage in statutory interpretation to determine whether the facts of this case, when viewed in the light most favorable to the verdict, are legally sufficient to sustain" their convictions for forgery, and we therefore apply de novo review. See State v. Barragan , 2001-NMCA-086, ¶ 24, 131 N.M. 281, 34 P.3d 1157, overruled on other grounds by State v. Tollardo , 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.

{9} "Forgery consists of falsely ... making or altering any signature to, or any part of, any writing purporting to have any legal efficacy with intent to injure or defraud; or knowingly issuing or transferring a forged writing with intent to injure or defraud[.]" Section 30-16-10(A)(1). "Forgery has been defined as a crime aimed primarily at safeguarding confidence in the genuineness of documents relied upon in commercial and business activity." State v. Baca , 1997-NMSC-018, ¶ 5, 123 N.M. 124, 934 P.2d 1053. Forgery "requires a lie," but "it must be a lie about the document itself: the lie must relate to the genuineness of the document." Id. Indeed, as Defendants correctly observe, New Mexico case law interpreting our forgery statute has long recognized a distinction between a document "which is not genuine" (which can form the basis of a forgery conviction), and a genuine document "the contents or allegations of which are false" (which cannot). Territory v. Gutierrez , 1906-NMSC-003, ¶ 5, 13 N.M. 312, 84 P. 525. The Supreme Court of the United States has also recognized the same historic distinction in the law of forgery. See Gilbert v. United States , 370 U.S. 650, 658, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962) ("Where the ‘falsity lies in the representation of facts, not in the genuineness of execution,’ it is not forgery."); see also Moskal v. United States , 498 U.S. 103, 119, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990) (Scalia, J., dissenting) ("A forged memorandum is ‘falsely made’; a memorandum that contains erroneous information is simply ‘false.’ ").

{10} Attempting to seize upon that distinction, Defendants argue that the checks at issue in this case merely "told lies" by, in effect, falsely representing that Defendants were entitled to deposit the checks, but "were not lies in and of themselves" because both the checks and the signature stamp were genuine. In response, the State, while not disputing that the checks and the signature stamp were genuine, argues instead that Defendants' use of them beyond ATC’s authorization to do so constitutes forgery.

{11} We conclude that the jury could properly find that Defendants committed forgery. Although the checks themselves and the signature stamp were genuine, our appellate courts have long held that a defendant may commit forgery by signing another person’s name without authority and, conversely, that signing another’s name with authorization is not forgery. See State v. Smith , 1927-NMSC-012, ¶ 7, 32 N.M. 191, 252 P. 1003 (holding that an indictment’s allegation that the defendant committed forgery by "falsely" signing another’s name sufficiently alleged that the defendant signed the name without authority to do so); State v. Lopez , 1969-NMCA-115, ¶¶ 13-16, 81 N.M. 107, 464 P.2d 23 (concluding that the defendant was properly convicted of forgery for attempting to cash a check made out to another person and endorsing that person’s name without authorization), overruled on other grounds by State v. Ruffins , 1990-NMSC-035, ¶ 17, 109 N.M. 668, 789 P.2d 616 ; State v. Saavedra , 1979-NMCA-096, ¶¶ 10-12, 93 N.M. 242, 599 P.2d 395 (ho...