State v. Gee, 22937, 23345.

CourtCourt of Appeals of New Mexico
Citation2004 NMCA 42,135 N.M. 408,89 P.3d 80
Docket NumberNo. 22937, 23345.,22937, 23345.
PartiesState of New Mexico, Plaintiff-Appellee, v. Kevin GEE, Defendant-Appellant. consolidated with State of New Mexico, Plaintiff-Appellee, v. Richard Ernest DeGurski, Defendant-Appellant.
Decision Date18 February 2004

89 P.3d 80
135 N.M. 408
2004 NMCA 42

State of New Mexico, Plaintiff-Appellee,
Kevin GEE, Defendant-Appellant. consolidated with
State of New Mexico, Plaintiff-Appellee,
Richard Ernest DeGurski, Defendant-Appellant

No. 22937, 23345.

Court of Appeals of New Mexico.

February 18, 2004.

Certiorari Denied March 31, 2004.

89 P.3d 82
Patricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General, Albuquerque, for Appellee in No. 22,937

Patricia A. Madrid, Attorney General, Steven S. Suttle, Assistant Attorney General, Albuquerque, for Appellee in No. 23,345.

John B. Bigelow, Chief Public Defender, Jennifer Byrns, Assistant Appellate Defender, Santa Fe, for Appellants in Nos. 22,937 and 23,345.

Certiorari Denied, No.28,543, March 31, 2004.


WECHSLER, Chief Judge.

{1} We consolidate these appeals for opinion because they both raise issues of whether the district court committed fundamental error in giving the general intent jury instruction when a defendant is charged with a specific intent crime. Defendant Kevin Gee appeals his convictions for four counts of forgery. He argues on appeal that it was fundamental error for the district court to give both specific intent and general intent jury instructions when forgery is a specific intent crime. Gee additionally argues ineffective assistance of counsel. He contends that defense counsel was ineffective for allowing the jury to hear a highly prejudicial story of the attack on one of the victims. Defendant Richard Degurski appeals his convictions for larceny over $250.00 and receipt of stolen property. He contends on appeal that it was fundamental error for the district court to give the general intent instruction without instructing the jury that it did not apply to the specific intent crime. Because the instructions in each case substantially followed the applicable law, there was no fundamental error. We also conclude that Gee's counsel was not ineffective and therefore we affirm in both cases.

Background in Gee's Appeal

{2} Gee was indicted for four counts of forgery for passing forged checks written on the account of John C. or Frances Strader. At trial, Mike Hindi the owner of the Mini Mart convenience store at which Gee passed the checks, testified that he cashed the checks when he normally would not have done so because he had known Gee for over 30 years. When Hindi asked Gee about the origin of the checks, Gee responded that he had received them as payment from John Strader for yard work. At some point, Hindi realized that the maker's endorsements on the checks appeared to match Gee's handwriting and he became suspicious. Hindi then called the Straders, and they informed him that their checkbook had been stolen a few days earlier in a purse snatching. Upon the prosecutor's inquiry during direct examination as to whether Hindi had a conversation with the Straders regarding a vehicle, Hindi testified that he thought Gee drove a vehicle similar to the one that was used during the purse snatching.

{3} After the conversation with the Straders, Hindi telephoned the police. He contacted Gee and informed him that the checks were stolen from the Straders during a purse snatching, and Defendant stated he "would take care of it." Gee began to make small cash installment payments to cover the bad checks.

{4} The Straders testified at trial that Frances Strader's purse had been stolen in Albuquerque two days prior to Gee's passing the first check. According to Frances Strader, the checkbook was in her purse, and the four checks in question were stolen from her. Neither of the Straders had seen Defendant before trial. John Strader testified that the maker's signatures on the checks did not belong to him or his wife, that they never wrote any checks to Defendant, and that he did not own any property in the Espanola area. The Straders provided handwriting samples as evidence for the jury's comparison. Defendant did not call witnesses.

Background in Degurski's Appeal

{5} Degurski was charged with one count of larceny over $250.00 and one count of

89 P.3d 83
receiving stolen property over $250.00 for having stolen and pawned a Snap-On air hammer valued between $250.00 and $300.00, belonging to Carl Hooten. At trial, Hooten testified that he and Degurski worked together at Goodyear as the only two mechanics during Hooten's tenure. When Hooten left Goodyear for another job, he left his air hammer at Goodyear because he did not have time to pick it up

{6} When he had need for his air hammer at his new job, Hooten sent his wife, Shelley Hooten, to retrieve it from Goodyear. Shelley Hooten testified that she could not find the air hammer, so she asked Degurski about its whereabouts. Degurski responded that he had not seen the air hammer and did not have the time to help her look for it. A few months later, Hooten saw the air hammer for sale at a pawn shop. After going to the police, he was able to prove the air hammer was his and recover it. The owner of the pawn shop identified Degurski at trial as the person who pawned the air hammer, and Hooten testified that he had never given Degurski permission to pawn the air hammer.

Erroneous Jury Instruction Claims

{7} Both Gee and Degurski argue that when given together, the general intent and the specific intent instructions were inconsistent and confusing to the jury. They contend that general criminal intent is easier to prove than specific intent, and the general intent instruction enabled the jury to convict them of the specific intent crimes based on the general criminal intent of performing a purposeful act. There is, however, a difference in their positions. Gee faced only a specific intent crime. The general intent instruction was unnecessary in his case. Degurski, on the other hand, was defending a charge requiring only general intent, receiving stolen property, in addition to the specific intent charge of larceny. The general intent instruction was, therefore, necessary in Degurski's trial. Degurski contends that fundamental error occurred because the district court did not instruct the jury that the general intent instruction only applied to the receiving stolen property charge.

{8} Because neither Gee nor Degurski objected to the instructions given at trial, we review only for fundamental error. State v. Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998 P.2d 176; see also State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating that when issue concerning jury instructions has not been preserved, review is for fundamental error). The doctrine of fundamental error only applies "for the protection of those whose innocence appears indisputabl[e], or open to such question that it would shock the conscience to permit the conviction to stand." Cunningham, 2000-NMSC-009, ¶ 13, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted). We will reverse for fundamental error when the foundation or basis of a defendant's case or an essential right in a defense is affected. Id. When reviewing jury instructions for fundamental error, we apply the fundamental error standard of review to the same inquiry we perform for review for reversible error—whether the instruction or instructions would confuse or misdirect a reasonable juror due to contradiction, ambiguity, omission, or misstatement. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134.

{9} Based on Lopez v. State, 94 N.M. 341, 610 P.2d 745 (1980), and State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973), overruled on other grounds by State v. Bender, 91 N.M. 670, 671, 579 P.2d 796, 797 (1978), fundamental error did not occur in the cases on appeal. In Lopez, our Supreme Court examined the jury instruction for the specific intent crime of larceny given in connection with the general intent jury instruction. Lopez, 94 N.M. at 342, 610 P.2d at 746. The larceny instruction read:

For you to find the defendant guilty of larceny ..., the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant took and carried away ..., (describe property) belonging to another, (which had a market value over $ ...);
2. At the time he took this property, the defendant intended to permanently deprive the owner of it;
89 P.3d 84
3. This happened in New Mexico on or about the ... day of ..., 19 ...."

Id. (footnotes omitted). The general intent instruction read:

In addition to the other elements of ... (identify crime or crimes) the state must prove to your satisfaction beyond a reasonable doubt that the defendant acted intentionally when he committed the crime. A person acts intentionally when he purposely does an act which the law declares to be a crime, even though he may not know that his act is unlawful. Whether the defendant acted intentionally may be inferred from all of the surrounding circumstances, such as the manner in which he acts, the means used, [and] his conduct [and any statements made by him].

Id. (alteration in original). The Court affirmed the defendant's conviction, stating that the larceny statute and the general intent instruction, when read together, "correctly state the law applicable to larceny." Id.

{10} The defendant in Gunzelman was convicted of burglary. Gunzelman, 85 N.M. at 296, 512 P.2d at 56. The district court instructed the jury on burglary as follows:

The material allegations of the indictment necessary to be proven to your satisfaction and beyond a reasonable doubt before you can find the defendant guilty are that ...

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