State v. Hearne

• Decision Date: 25 April 1991
• Docket Number: No. 12377,12377
• Citation: 112 N.M. 208,813 P.2d 485,1991 NMCA 46
• Parties: , 68 Ed. Law Rep. 899 STATE of New Mexico, Plaintiff-Appellee, v. Terry HEARNE, a/k/a Terrill B. Hearne, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 485

813 P.2d 485

112 N.M. 208, 68 Ed. Law Rep. 899

STATE of New Mexico, Plaintiff-Appellee, v. Terry HEARNE, a/k/a Terrill B. Hearne, Defendant-Appellant.

No. 12377.

Court of Appeals of New Mexico.

April 25, 1991.

Certiorari Denied June 3, 1991.

[112 N.M. 209] Tom Udall, Atty. Gen. and Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender and Gina Maestas, Asst. App. Defender, Santa Fe, for defendant-appellant.

OPINION

ALARID, Chief Judge.

Defendant appeals his conviction for making or permitting a false public voucher. He raises three issues on appeal: (1) whether the funds from which payment to defendant was made were public or private; (2) assuming the funds were private, whether there was sufficient evidence supporting the conviction; and (3) whether the trial court erred in denying defendant certain discovery. Our second calendar notice proposed summary affirmance. Defendant has filed a memorandum in opposition to the second calendar notice. Not persuaded by the memorandum, we affirm.

FACTS

Defendant is a former associate athletic director at the University of New Mexico (the University). He was charged with eight counts in an indictment that also included charges against his former boss, Athletic Director John Koenig, and Michael Dill, another associate athletic director. On November 20, 1987, defendant was in San Diego attending a football game between UNM and San Diego State University. He was given $30.00 for meal money by the athletic department. Defendant had received permission from Dr. Koenig to take his family to dinner in San Diego as a reward for his hours. The meal was not an expenditure normally authorized by statute or University policy. The meal expense of $82.44 was charged to the athletic director's "discretionary account," with Dr. Koenig's approval.

The discretionary account is an account funded by donations received from the "Lobo Club," an organization of boosters who primarily support University athletics through fund raising. At that time, the athletic director had authority to use funds from the discretionary account and there were no guidelines concerning how the account was to be used. At the time of the San Diego trip, Dr. Koenig had sole authority for approval of expenditures from the account. Traditionally, the discretionary account was used to fund overages in travel expenses and per diem allotments that were not otherwise permitted by state statute or by University policy. Evidence at trial indicated that the discretionary account was used for such diverse purposes as liquor, Christmas decorations, and shoes for the cheerleaders. There was also evidence that funds from the account were used to offset overages for travel expenses.

Defendant attended dinner at a restaurant in San Diego with his wife, Cheryl, and his parents, Wayne and Gladys Hearne. On December 8, 1987, defendant submitted a voucher requesting reimbursement of $82.44 for the meal. The voucher was approved by Dr. Koenig, to be paid from the discretionary account. On the back of the credit card slip for the meal, defendant placed the following notation: Terry Hearne, Cheryl Hearne, Wayne and Gladys Hicks--San Diego, Gabe Ortiz and Vicki Fisher--San Diego State University. Ortiz and Fisher were employees of the athletic department of San Diego State University. They did not attend the dinner in San Diego. Wayne and Gladys Hicks are defendant's parents. Hicks is defendant's mother's maiden name. Defendant testified that the reason he placed the names of Fisher, Ortiz, and the Hicks on the meal receipt was to avoid problems with personnel in the accounting department with whom the athletic department had disagreements concerning payment of vouchers. Defendant testified that he did not intend to defraud, inasmuch as he had already received approval for the expense. Defendant was convicted of one count of making or permitting a false public voucher and was given a deferred sentence.

DISCUSSION

Initially, defendant has informed this court that, during the pendency of this appeal, the trial court entered an order of dismissal of the charge based on defendant's having completed the requirements in the order deferring sentence. Nevertheless, defendant argues that his appeal is not affected. We agree. Notwithstanding the dismissal, defendant's conviction may be used in future habitual offender proceedings. Padilla v. State, 90 N.M. 664, 568 P.2d 190 (1977).

I. WERE THE DISCRETIONARY ACCOUNT FUNDS "PUBLIC MONEY?"

NMSA 1978, Section 30-23-3 (Repl.Pamp.1984), provides in part:

Making or permitting false public voucher consists of knowingly, intentionally or willfully making, causing to be made or permitting to be made, a false material statement or forged signature upon any public voucher, or invoice supporting a public voucher, with intent that the voucher or invoice shall be relied upon for the expenditure of public money. (Emphasis added.)

Defendant challenges the trial court's finding that the funds in the discretionary account are public money within the contours of the statutory proscription. The trial court's finding will be upheld if it is supported by substantial evidence. See State v. Anderson, 107 N.M. 165, 754 P.2d 542 (Ct.App.1988).

Defendant advances three arguments in support of his contention. First, he argues the source of the funds placed in the discretionary account demonstrates that the funds are not public money. Second, he argues the evidence established at trial demonstrates that expenditures from the discretionary account were used for purposes contrary to controlling University policy and for this reason cannot be considered public money. Third, he argues that because the athletic director maintained sole signatory authority over the discretionary account and no review of the propriety of expenditures from the account was performed by the University's general accounting department, the funds it contained were not public funds. We address each contention separately.

We note at the outset that defendant asserts that public money, as it appears in Section 30-23-3, is not defined by the legislature. Because the record reveals no challenge as to the constitutionality of the statute on vagueness grounds, we must only consider whether substantial evidence supports the finding below that the funds in the discretionary account are public money for purposes of Section 30-23-3.

Where the legislature fails to define a term in the criminal code, and nothing to the contrary appears, the legislature is presumed to have given the term its normal meaning. State v. Benny E., 110 N.M. 237, 243, 794 P.2d 380, 386 (Ct.App.1990). We have previously discussed misuse of public money and the purchasing of liquor with federal funds, where such funds were not made available for that purpose, and noted such purchases, dependent on proof at trial, may be a misuse of public funds. See Vigil v. Arzola, 102 N.M. 682, 690, 699 P.2d 613 (Ct.App.1983) (where plaintiff's cause of action required a showing that his discharge from employment contravened public policy, a showing that "unauthorized payment of salaries and the purchase of food and liquor from federal funds" was committed by the superiors discharging plaintiff, the alleged misuse of public funds constitutes a prima facie contravention of public policy and raises a legitimate issue for resolution at trial). Discussions such as appeared in Arzola indicate our courts have not found "public money" to present other than a normal usage. The ordinary meaning of "public money" would have allowed defendant to conclude that the expenditures for which the discretionary fund was used might be impermissible. We conclude the term "public money," as used in the criminal code and discussed by our cases, is sufficiently specific to not require a person of ordinary intelligence to guess at the conduct the statute proscribes. See State v. Najera, 89 N.M. 522, 554 P.2d 983 (Ct.App.1976).

A. Source of the Funds.

In State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 370, 524 P.2d 975, 986 (1974), our supreme court noted that our Universities receive funds from sources other than our state legislature, including private individuals, and such funds are unlike funds appropriated by the state legislature because the state legislature has no authority to control the use of such funds through its appropriation power. The University Board of Regents has the authority to expend the funds as they see fit in order to, "do all the things, * * * which will be in the best interests of the institutions in the accomplishment of their purposes or objects."

The Sego opinion does not purport to curtail the legislature's police power authority to constrain the Board of Regents or other University officials from misappropriating public funds (which may arise from any source) or otherwise falsifying the nature of their expenditures. Sego limited the direct legislative control over University expenditures, as expressed through the appropriation power, to those funds the legislature itself had appropriated. Funds derived from other sources are the property of the University and are to be expended consistent with the regents' duties. Id. at 370, 524 P.2d 975. "The matter of expenditure or disbursement of these funds rests with the Boards of Regents, subject to applicable law." Id. In New Mexico, as a matter of law, funds made available to the University become public funds to be expended consistently with all of the regents' applicable legal duties, regardless of the original source of the funds. We conclude defendant may not rely on the source of the funds in this case to distinguish these funds from public funds. See Storen v. Sexton, 209 Ind. 589, 200 N.E. 251 (1936); AG Op. No. 67-128 (1967); AG Op. No. 62-9 (1962).

Having concluded the source of the funds in the discretionary account may not be relied upon to distinguish the...