State v. Glascock

• Decision Date: 25 October 2007
• Docket Number: No. 26,337.,26,337.
• Citation: 2008 NMCA 006,176 P.3d 317
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joseph A. GLASCOCK, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

176 P.3d 317

2008 NMCA 006

STATE of New Mexico, Plaintiff-Appellee, v. Joseph A. GLASCOCK, Defendant-Appellant.

No. 26,337.

Court of Appeals of New Mexico.

October 25, 2007.

Certiorari Granted, No. 30,755, January 7, 2008.

Gary K. King, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} Defendant appeals his convictions for four counts of forgery and one count of conspiracy to commit forgery, arising from several checks taken from his employer and signed in the employer's name. All of Defendant's convictions were based on making false signatures. See NMSA 1978, § 30-16-10(A) (1963). On appeal, Defendant argues that his forgery convictions violate double jeopardy. He asserts that, under a multiple punishment unit of prosecution theory, the New Mexico Legislature did not intend a separate conviction for each forged check. He also contends that, under the dual sovereignty doctrine, he should be immune from prosecution in New Mexico because he has previously been convicted of forgery of the same checks in a Texas court. Finally, Defendant argues that the trial court erred by allowing the State to introduce into evidence two additional checks that were not used to obtain money, arguing that the additional checks were impermissibly used as evidence of uncharged, prior bad acts. We reject Defendant's contentions, but nonetheless reverse one of Defendant's forgery convictions for insufficient evidence that the crime occurred in New Mexico.

FACTS

{2} On March 31, 2003, Defendant was a trainee at Henderson Tire Company in Chaparral, New Mexico, when he took six checks from the company checkbook without permission. It is undisputed that Defendant forged the account holder's signature on four of these checks, and gave three of them to his co-conspirator, John Dowd, to cash at a Wal-Mart in El Paso, Texas. Defendant himself cashed the fourth check at a cash checking service also located in El Paso. Defendant was convicted by a New Mexico jury of four counts of forgery for falsely signing the four negotiated checks, as well as one count of conspiracy to commit forgery. Defendant now appeals his convictions.

{3} For purposes of our review, the critical questions of fact posed to the jury in this case were (1) whether Defendant signed each of the four checks at one time or on separate occasions and (2) whether Defendant signed each of the four checks in New Mexico. No direct evidence was introduced at trial on either of these issues. The trial testimony of the State's witnesses is susceptible to conflicting inferences.

{4} A detective who investigated the stolen checks and took the voluntary statement of Defendant testified that Defendant told her that he took a total of six checks and forged four of them while sitting in Dowd's automobile outside Henderson Tire. Also testifying for the State, Dowd testified that Defendant gave him all of the checks in the office of Henderson Tire. Either version of events would tend to support an inference that the four checks were forged by Defendant in New Mexico in a single episode.

{5} However, evidence was offered at trial which would support an inference that each check was signed on a separate day. Each check bears a different date, ranging from March 31, 2003, to April 24, 2003. Dowd testified that he made several trips to Chaparral to socialize with Defendant over the course of a year. During one of these visits, on or about March 31, 2003, Defendant asked him if he had a checking account. When Dowd responded in the affirmative, Defendant gave him one of the forged checks and asked Dowd to cash it for him. This check bears the date March 31, 2003. Dowd testified that he filled in the "Pay to the Order of line in his name, endorsed the check, cashed it in El Paso, and gave Defendant the full proceeds. Dowd did not ask any questions of Defendant about this check, but Defendant told him that his employer was "trying to help him out." He "totally believed" Defendant's story.

{6} Dowd continued to return to Chaparral to visit Defendant after the first check was forged and cashed. During this time, Dowd cashed a second check in the same manner as the first, and Dowd gave Defendant the full proceeds. This check bears the date April 1, 2003. Dowd testified that he still believed Defendant's story when he cashed this second check. He testified that he never saw Defendant forge a check in front of him.

{7} Dowd was asked by Defendant to cash another check, dated April 24, 2003. Dowd testified that, unlike the first two checks, this check was already made out to him when Defendant transferred it, and Defendant gave Dowd a portion of the proceeds of the check. It was at this point that Dowd "figured something out." When later questioned by police, Dowd made a statement to the effect that he "got caught up in something." He told the investigating officer that "when [he] found out," he was "already in too deep." In summary, Dowd described an epiphany that runs contrary to an inference that he was given all four forged checks on March 31, 2003, either in his car outside Henderson Tire, or in the office of the same establishment. Dowd's testimony suggests that the more reasonable inference is that Defendant was forging the stolen checks one at a time in a series of events in which Dowd was progressively more involved.

{8} Defendant himself cashed one of the stolen checks, dated April 4, 2003, at a check cashing service in El Paso. The police detective testified that Defendant, upon taking the checks from the company checkbook on March 31, 2003, had proceeded to write them out both to Dowd and to himself, supporting an inference that this check was written in New Mexico at the same time as the others. However, no additional evidence was introduced that would support this inference. Dowd was apparently not aware of this forgery, and testified that he had never seen Defendant forge a check in his presence.

{9} The remaining two checks were never negotiated. However, the "Pay to the Order of" line was completed in Dowd's handwriting on at least one of these checks, and at least one of these uncharged checks was endorsed by Dowd. The State never charged Defendant with forgery of these two checks, but introduced them at trial over defense counsel's objection as evidence of conspiracy.

DISCUSSION

A. Double Jeopardy—Unit of Prosecution

{10} Defendant contends that his convictions on four counts of forgery violate double jeopardy because the New Mexico Legislature never intended for Defendant's acts to give rise to multiple convictions. We disagree.

{11} This Court recently had occasion to consider a similar double jeopardy challenge in State v. Turner, 2007-NMCA-105, ¶ 25, 142 N.M. 460, 166 P.3d 1114. We explained that the "constitutional prohibition against double jeopardy protects against both successive prosecutions and multiple punishments for the same offense." Id. ¶ 10 (internal quotation marks and citation omitted). In multiple punishment cases, there are two types of potential issues: "(1) multiple violations of the same statute, referred to as `unit of prosecution' cases; and (2) violations of multiple statutes, referred to as `double-description' cases." Id. ¶ 10 (internal quotation marks and citation omitted). Because Defendant is challenging his four convictions for forgery under the same statute, we are presented with a "unit of prosecution" case. See id. ¶ 25. Double jeopardy challenges raising the issue of the unit of prosecution are reviewed de novo. State v. Boergadine, 2005-NMCA-028, ¶ 12, 137 N.M. 92, 107 P.3d 532.

{12} Unit of prosecution problems are analyzed in two steps. State v. Bernal, 2006-NMSC-050, ¶ 14, 140 N.M. 644, 146 P.3d 289. "First, we review the statutory language for guidance on the unit of prosecution." Id. If we are unable to ascertain the unit of prosecution from the statutory language, "we move to the second step, in which we determine whether a defendant's acts are separated by sufficient `indicia of distinctness' to justify multiple punishments under the same statute." Id.

{13} This Court recently conducted the first step of this analysis, in Turner, 2007-NMCA-105, 142 N.M. 460, 166 P.3d 1114, concluding that "the language in the forgery statute is sufficiently ambiguous such that we cannot resolve the unit of prosecution simply by examining the language of the statute." Id. ¶ 28. Although we cited the 2006 version of the statute in Turner, id, ¶ 26, the pertinent language was carried forward verbatim from the earlier version of the statute, and no issue was raised in Turner concerning the effect of the 2006 statute. To the extent that Defendant in this case argues the effect of the 2006 statute, we need only say that Defendant's conduct occurred in 2003, Defendant was formally charged in 2003, and article IV, section 34 of the New Mexico Constitution would preclude the 2006 statute from applying in this case. See State v. Lucero, 2007-NMSC-041, ¶¶ 14-15, 142 N.M. 102, 163 P.3d 489. We therefore proceed with the second step of the analysis. See Turner, 2007-NMCA-105, ¶ 29, 142 N.M. 460, 166 P.3d 1114.

{14} Under the second step, "we determine whether a defendant's acts are separated by sufficient `indicia of distinctness' to justify multiple punishments under the same statute." Bernal, 2006-NMSC-050, ¶ 14, 140 N.M. 644, 146 P.3d 289. "Such indicia include the timing, location, and sequencing of the acts, the existence of an intervening event, the defendant's intent as evidenced by his conduct and utterances, and the number of victims." State v. DeGraff, 2006-NMSC-011, ¶ 35, 139 N.M. 211, 131 P.3d 61 (citing Herron v. State, 111 N.M. 357, 361, 805 P.2d 624, 628 (1991)). These are flexible factors intended to guide appellate courts in unit of prosecution analyses....