State v. Cruz

• Decision Date: 27 October 2009
• Docket Number: No. 27,292.,27
• Citation: 228 P.3d 1173
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Debbie CRUZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

228 P.3d 1173

2010-NMCA-011

2010-NMCA-011

STATE of New Mexico, Plaintiff-Appellee, v. Debbie CRUZ, Defendant-Appellant.

No. 27,292.

Court of Appeals of New Mexico.

October 27, 2009.

Certiorari Granted, January 25, 2010, No. 32,130.

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

Hugh W. Dangler, Chief Public Defender, Carlos Ruiz de la Torre, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

FRY, Chief Judge.

{1} Defendant appeals from a conditional discharge order following jury convictions for four counts of issuing a worthless check over $25. See NMSA 1978, § 30-36-4 (1963). She initially raised four issues on appeal and added a fifth issue regarding ineffective assistance of counsel in her reply brief. We discuss Defendant's claims of error as to lack of jurisdiction and improper venue and affirm on those issues. However, we reverse the convictions on the worthless check charges because the evidence was insufficient to prove all of the elements necessary under Section 30-36-4. Based upon our decision to reverse, we do not address Defendant's remaining issues.

BACKGROUND

{2} Defendant was the president of DGM Construction, Inc. (DGM), a construction corporation based in Albuquerque, New Mexico. As president of DGM, Defendant paid the company's bills and signed the checks for all employees after those checks were prepared by an independent bookkeeping service.

{3} In June 2002, DGM performed work as a subcontractor at Zuni High School on the Zuni Indian Reservation in McKinley County (the Zuni project). George Mulvaney was the construction superintendent for DGM, and his duties included supervising the Zuni project construction site and reporting employees' hours to the independent bookkeepers. The bookkeepers prepared the payroll checks based on the hours reported by either Defendant or Mulvaney and submitted the prepared checks to Defendant, who then signed them. Defendant would then meet Mulvaney either in Albuquerque or halfway between Albuquerque and the Zuni Indian Reservation and give the checks to Mulvaney to forward to the employees.

{4} Leo Eracho, Vicki Kallestewa, and Benjamin Kallestewa (the laborers/payees), all enrolled members of the Zuni Tribe, were employed by DGM to work on the Zuni project. They were paid every Friday for work they performed during the week ending the previous Friday. They received the checks identified as State's Exhibits 1, 2, and 3, dated June 21 and June 27, 2002, in return for their labor.

{5} The three laborers/payees customarily went to Joe Milo's Trading Company (Milo's), a business located twenty miles south of Gallup, New Mexico, every Friday to cash their checks. Joe Milosevich, the owner of Milo's, cashed the checks identified as State's Exhibits 1, 2, and 3 for the laborers/payees. He then deposited the checks in his own account but was denied payment due to insufficient funds. Milosevich resubmitted the checks twice, only to have them returned for insufficient funds. He deposited the checks a third time, but they were returned because the account was closed.

{6} Milosevich then sent a certified letter to Defendant regarding the dishonored checks at the address listed on the checks, but the letter was returned as unclaimed. Milosevich testified that his attorney attempted to contact DGM, but to no avail.

{7} Based upon the dishonored checks issued to the laborers/payees which remained unpaid by Defendant, the State charged Defendant with four counts of issuing worthless checks in violation of Section 30-36-4. A jury convicted Defendant of all four counts, and the district court entered an order for conditional discharge. This appeal followed.

DISCUSSION

Subject Matter Jurisdiction

{8} Defendant claims that the district court erred in denying her motion to dismiss for lack of jurisdiction. She contends that because the laborers/payees were all members of the Zuni Tribe performing work on Zuni land and because the checks were delivered to the laborers/payees on Zuni land, New Mexico courts do not have jurisdiction over the criminal prosecution.

{9} On the question of whether a New Mexico court has criminal jurisdiction to prosecute Defendant, we review whether the law was correctly applied to the facts, viewing the facts in the light most favorable to the prevailing party. State v. Frank, 2002-NMSC-026, ¶ 10, 132 N.M. 544, 52 P.3d 404. We defer to the district court's findings of fact if they are supported by substantial evidence and review questions of law de novo. Id.; see State v. Dick, 1999-NMCA-062, ¶ 6, 127 N.M. 382, 981 P.2d 796.

{10} Defendant contends that the district court lacked criminal jurisdiction over her because the alleged crimes were committed against Indians in Indian country. It is undisputed that Defendant is not a member of an Indian tribe; however, she notes that Mulvaney delivered the checks to the laborers/payees on Indian land and argues that, because the crimes occurred on Indian land, prosecution is within the jurisdiction of the tribal court. See generally Dick, 1999-NMCA-062, ¶ 7, 127 N.M. 382, 981 P.2d 796 (recognizing the general principle that a state has no jurisdiction over crimes committed by or against an Indian in "Indian country" (internal quotation marks and citation omitted)).

{11} We disagree because the evidence does not establish that all of the elements of the crime took place on Indian land. See State v. Clark, 2000-NMCA-052, ¶¶ 5-7, 129 N.M. 194, 3 P.3d 689 (holding that the district court had jurisdiction to try a Native American defendant for the crimes of larceny and conspiracy when the crimes were initiated within Indian country but continued outside the boundaries of Indian country into New Mexico). Milo's is located in McKinley County. In addition, the checks were initially signed by Defendant in Albuquerque and delivered to Mulvaney at some point approximately halfway between Albuquerque and the construction site on the Zuni Indian Reservation. This evidence shows that at least some of the elements of the crimes took place in either Bernalillo County or McKinley County in locations that were not in Indian country. Therefore, New Mexico had jurisdiction to prosecute Defendant for these crimes.

{12} Defendant contends that the district court arguably exceeded its authority in taking judicial notice of the fact that Milo's was in McKinley County and, therefore, there is a question as to whether the laborers/payees cashed their checks on Indian land. We disagree. Milosevich testified, without contradiction, that he ran the trading post located approximately twenty miles south of Gallup. Furthermore, Benjamin Kallestewa testified that he and the other laborers/payees cashed their checks at Milo's because it cost less than cashing them on the Zuni Indian Reservation.

{13} The district court was authorized to take judicial notice of a generally known location in the absence of some evidence suggesting otherwise. See Rule 11-201(B)(1), (2) NMRA (stating that a trial court may take judicial notice of facts "not subject to reasonable dispute" that are either "generally known within the community," or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"); Trujillo v. Dimas, 61 N.M. 235, 244-245, 297 P.2d 1060, 1066 (1956) (observing that a court may take judicial notice of geographical facts which are provable by reference to maps); cf. State v. Tooke, 81 N.M. 618, 619, 471 P.2d 188, 189 (Ct.App.1970) ("New Mexico allows its courts to take judicial notice of boundaries of the state and counties therein."), overruled on other grounds by State v. Ruffins, 109 N.M. 668, 789 P.2d 616 (1990). Furthermore, even if Milo's is on Indian land, Defendant engaged in other activities that contributed to the crimes while not on Indian land, including signing the checks and delivering them to Mulvaney. Therefore, jurisdiction was proper in the New Mexico court. See Clark, 2000-NMCA-052, ¶¶ 5-7, 129 N.M. 194, 3 P.3d 689.

{14} Finally, even though Milosevich cashed the checks for the laborers/payees, his testimony indicates that he did not seek reimbursement from them after the checks were dishonored and, therefore, he was the ultimate victim of Defendant's wrongful acts. See UJI 14-1670 NMRA (requiring that the defendant intended to deceive someone by use of the worthless check but containing no requirement that the person injured be the person deceived by the defendant). Because there is no indication that Milosevich is Native American, New Mexico had jurisdiction to prosecute these crimes even if they occurred on Indian land. See generally State v. Warner, 71 N.M. 418, 422, 379 P.2d 66, 69 (1963) (concluding that "New Mexico state courts have jurisdiction over criminal offenses committed on an Indian reservation within this state, by non-Indians, which are not against an Indian nor involving Indian property").

{15} Based upon the foregoing, the New Mexico district court had jurisdiction over Defendant for these offenses.

Venue

{16} Defendant claims that venue was improper in McKinley County because none of the material elements of the crimes occurred there. "A motion to dismiss for improper venue involves questions of law that we review de novo." Gardiner v. Galles Chevrolet Co., 2007-NMSC-052, ¶ 4, 142 N.M. 544, 168 P.3d 116; State v. Roybal, 2006-NMCA-043, ¶ 25, 139 N.M. 341, 132 P.3d 598.

{17} We initially note that affirmance of the district court's refusal to dismiss for improper venue is justified based on untimeliness alone. Defendant entered a waiver of arraignment on January 27, 2006. She alerted the trial court that venue might be an issue, but did not move to dismiss for lack of proper venue until July 17, 2006, the day before trial was to commence. Pursuant to the Rules of Criminal Procedure, Defendant must file a motion to dismiss for improper venue within...