State v. Green, 20251

CourtSupreme Court of New Mexico
Citation116 N.M. 273,1993 NMSC 56,861 P.2d 954
Docket NumberNo. 20251,20251
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Eldridge GREEN, Defendant-Appellant.
Decision Date21 September 1993
OPINION

BACA, Justice.

Defendant Eldridge Green was convicted of embezzlement and attempting to traffic cocaine after he failed to return $250 to an undercover police officer who, as a part of a police "sting," gave Defendant the money and requested that Defendant purchase cocaine for him. Green appealed his convictions to the Court of Appeals, which, pursuant to NMSA 1978, Section 34-5-14(C) (Repl.Pamp.1990), certified the appeal to this Court to address one issue: Whether the trial court erred by not giving a fraudulent intent instruction for the embezzlement charge. We accepted certification to decide that issue and, because our jurisdiction under Section 34-5-14(C) extends to the entire case, State v. Orosco, 113 N.M. 780, 781 & n. 2, 833 P.2d 1146, 1147 & n. 2 (1992), we address the following additional issues: (1) Whether convictions for both embezzlement and attempted trafficking in cocaine violate double jeopardy, and (2) whether substantial evidence supports Defendant's conviction for attempted trafficking in cocaine. For the reasons stated below, we affirm Defendant's conviction for attempted trafficking in cocaine, reverse his conviction for embezzlement, and remand to the district court for a new trial on the embezzlement charge.1

I

The following facts viewed in the light most favorable to sustaining Defendant's conviction, see State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988), were adduced at Defendant's trial. On the evening of October 14, 1990, Officer Alvidrez of the Clovis police department was involved in an undercover police operation. Alvidrez approached an individual known as "E.G." and discussed the possible purchase of cocaine. Shortly thereafter, E.G. introduced Alvidrez to Defendant for the explained purpose of Alvidrez obtaining cocaine from Defendant. Following their introduction, Alvidrez and Defendant discussed the proposed transaction in Alvidrez's car, Defendant quoted Alvidrez prices for several quantities of cocaine, and Alvidrez agreed to purchase an "eight ball" of cocaine from Defendant for $250. At Defendant's insistence, the two men proceeded to Defendant's apartment so that Defendant could pick up identification that Alvidrez could hold as security to ensure that the transaction would come to fruition.

The two men then drove back to where they had been introduced, an area in Clovis known for its illegal drug transactions. As they arrived on Upsilon Street, Defendant exclaimed "The main man is here. I'm going to need the money." After Alvidrez gave him $250, Defendant exited from Alvidrez's vehicle and walked behind that vehicle to another vehicle. While Alvidrez attempted to make a U-turn, Defendant disappeared. After parking his vehicle and waiting approximately two hours for Defendant to return, Alvidrez drove to Defendant's apartment and was informed that Defendant had not yet returned. Upon returning to Upsilon Street, Alvidrez was unable to locate Defendant.

On the next day, Alvidrez located Defendant at Defendant's apartment. Defendant told Alvidrez that he had been unable to procure the cocaine but reassured Alvidrez that he had "plenty of connections" and that he would be able to purchase the cocaine. Several nights later, Alvidrez again contacted Defendant and requested that Defendant supply him with either the money or the cocaine. In an attempt to procure cocaine, Alvidrez and Defendant then drove to Defendant's cousin's house. After requesting that Alvidrez remain in the car, Defendant exited from the vehicle and entered the house. Upon his return from the house, Defendant informed Alvidrez that he was unable to obtain any cocaine at that time.

Several weeks later, Alvidrez and Defendant met again. Defendant informed Alvidrez that he was looking for a job and requested that Alvidrez return his driver's license. Defendant told Alvidrez that upon return of the driver's license he would be able to find employment and either return the money or buy and deliver cocaine to Alvidrez. Defendant was subsequently charged with and convicted of embezzlement of $250 and attempted trafficking of cocaine. From these convictions, Defendant appeals.

II

The crime of embezzlement is a creation of statute that was unknown in the common law. Territory v. Maxwell, 2 N.M. 250, 267 (1882). The first statutes prohibiting embezzlement were enacted in England to eliminate a loophole in the larceny statute. 2 Wayne R. LaFave & Austin R. Scott, Jr., Substantive Criminal Law § 8.6, at 368 (1986). Because larceny required a trespass in the taking, a person who was lawfully in possession of property of another could not be convicted of larceny if the person converted the property to his or her own use. Id. To fill this void, the initial English statutes proscribing embezzlement listed persons, such as bank employees and store clerks, who might have lawful possession of the property of another and allowed such persons to be convicted of embezzlement if they fraudulently converted the property in their lawful possession to their own use. Id.

An early version of the New Mexico embezzlement statute, 1882 N.M. Laws, Chapter LII, Section 22, while similar to its English predecessors, was broader than the English statutes because our statute, unlike the English statutes, added "agent" to the list of persons (servants, clerks, and employees) who could be held accountable under the statute. Maxwell, 2 N.M. at 258-61. Later versions of our embezzlement statute, see, e.g., NMSA 1915, Section 1543, like those statutes in a majority of American jurisdictions, replaced the list of the types of persons who would be held accountable under the statute with the phrase similar to "a person in lawful possession of the property of another" or to "a person entrusted with the property of another." LaFave & Scott, supra § 8.6, at 368-69.

The current version of our statute proscribing embezzlement reads in pertinent part as follows:

Embezzlement consists of the embezzling or converting to his own use of anything of value, with which he has been entrusted, with fraudulent intent to deprive the owner thereof.

....

Whoever commits embezzlement when the value of the thing embezzled or converted is over one hundred dollars ($100) but not more than two hundred and fifty dollars ($250) is guilty of a misdemeanor.

NMSA 1978, § 30-16-8 (Repl.Pamp.1984). The issue certified to us in this appeal arises out of an alleged discrepancy between the above quoted statute and the instruction as charged to the jury. That jury instruction, which tracks the language of the uniform jury instruction on embezzlement, SCRA 1986, 14-1641, reads as follows:

For you to find the defendant guilty of embezzlement as charged in Count I, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. The defendant was entrusted with $250.00;

2. The defendant converted this $250.00 to his own use;

3. At the time he converted this the [sic] $250.00 to his own use, he intended to deprive the owner of his property 4. This happened in New Mexico on or about the 14th day of October, 1989.

"Converting something to one's own use" means keeping another's property rather than returning it, or using another's property for one's own purpose rather than for the purpose intended by the owner.

Defendant contends that this instruction omits the fraudulent intent element required by Section 30-16-8 and that this omission is contrary to the legislative intent as expressed in the plain language of that section. See Rutledge v. Fort, 104 N.M. 7, 9, 715 P.2d 455, 457 (1986), rev'd sub nom. on other grounds, Reese v. State, 106 N.M. 505, 745 P.2d 1153 (1987). Defendant argues that under this instruction the non-criminal breach of a sales contract would be punishable as embezzlement. Citing State v. Osborne, 111 N.M. 654, 808 P.2d 624 (1991); and Jackson v. State, 100 N.M. 487, 672 P.2d 660 (1983), Defendant concludes that this failure to instruct the jury on fraudulent intent, an essential element of embezzlement, mandates reversal even in the absence of a proper defense objection or a proffered correct instruction under the doctrine of fundamental error.

Quoting the committee commentary to SCRA 1986, 14-1641,2 the State finds nothing deficient with the instruction as given. As the State maintains, the trial court lacked the authority to declare a uniform jury instruction insufficient. State v. Chavez, 101 N.M. 136, 139, 679 P.2d 804, 807 (1984). The State further contends that because a uniform jury instruction for embezzlement is provided, the trial court would have erred had it altered that instruction. State v. Jackson, 99 N.M. 478, 660 P.2d 120 (Ct.App.), rev'd on other grounds, 100 N.M. 487, 672 P.2d 660 (1983). In the event that fraudulent intent is not adequately defined by the given jury instruction as an element of embezzlement, the State raises two points that it contends mandate an affirmance of the trial court. First, while conceding that the trial court is required to "instruct the jury upon all questions of law essential for a conviction of any crime submitted to the jury," SCRA 1986, 5-608(A) (Repl.Pamp.1992), the State asserts that Defendant has not preserved this issue for review because at trial he neither objected to the instruction given nor offered a correct instruction regarding fraudulent intent, SCRA 1986, 5-608(D); State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App.1975); State v. Garcia, 100 N.M. 120, 666 P.2d 1267 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 (1983). Second, the...

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