State v. Hughes

• Decision Date: 06 December 1988
• Docket Number: No. 10349,10349
• Citation: 1988 NMCA 108,767 P.2d 382,108 N.M. 143
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ray HUGHES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 382

767 P.2d 382

108 N.M. 143

STATE of New Mexico, Plaintiff-Appellee, v. Ray HUGHES, Defendant-Appellant.

No. 10349.

Court of Appeals of New Mexico.

Dec. 6, 1988.

Certiorari Denied Jan. 10, 1989.

[108 N.M. 145] Hal Stratton, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Hollis A. Whitson, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant was convicted of trafficking in controlled substances by manufacture, conspiracy to traffic controlled substances, racketeering, conspiracy to racketeer, receiving stolen property over $100, and possession of drug paraphernalia. On appeal, defendant contends that there was insufficient evidence to support his convictions of receiving stolen property, racketeering, and conspiracy to racketeer. He also contends that the trial court erred in failing to merge his convictions for conspiracy to traffic and conspiracy to racketeer. We affirm.

During the calendaring process, defendant moved to amend his docketing statement to add two new issues. Based on the factual and legal arguments made in the motion, we denied the motion because the issues sought to be raised were without merit. See State v. Rael, 100 N.M. 193, 668 P.2d 309 (Ct.App.1983). Despite that denial, defendant requests that we consider those issues at this point in the appeal process. We decline to do so. Cf. id.

DISCUSSION.

I. Receiving Stolen Property Conviction.

Defendant was convicted of receiving laboratory equipment stolen from a wastewater plant. Under the instruction given, the jury was required to find that the market value of the equipment was more than $100. Defendant maintains that there was insufficient evidence to support the finding.

The only evidence submitted as to the value of the equipment was the testimony of Joe Smith, an employee of the wastewater plant. Mr. Smith testified that he had worked for the wastewater plant for three and one-half years. He worked with the equipment, although another person had purchased most of it. He testified further that he had examined the equipment at trial and found it to be in working order, and it was his opinion that the equipment was worth far more than $100. He stated that, although he might be wrong about the specific value, there was not much doubt that it was worth over $100. However, he also testified that he was not familiar with the market value of used laboratory equipment.

Outside the presence of the jury, in an offer of proof, Mr. Smith testified as follows. He was familiar with new equipment prices from periodically reviewing equipment catalogs and replacing the stolen equipment. The equipment had been kept in good shape while it was at the laboratory and had shown little deterioration. The cost of a new analytical balance would be about $2,495, a pH meter $850, and a pH stick $250. Mr. Smith did not state the cost of a new microscope, which defendant was also accused of receiving. Mr. Smith stated that he would pay $1,000 for the analytical balance if it worked, over $100 for the microscope, a few hundred dollars for the pH meter, and $50-100 for the pH stick.

Following this offer of proof, the trial court allowed Mr. Smith to test the equipment to see if it was in working order. Mr. Smith found the equipment to be in working order, and the court allowed him to testify that, in his opinion, the equipment was worth far more than $100.

The sole basis for the jury's determination of market value was Mr. Smith's opinion. The issue in this case is whether that opinion is a sufficient basis to support defendant's conviction, despite Mr. Smith's avowed lack of knowledge of the market value of used laboratory equipment.

It is clear that an owner of personal property may testify concerning the value of the property and that such testimony is sufficient to support a jury's determination of value. State v. Dominguez, 91 N.M. 296, 573 P.2d 230 (Ct.App.1977); State v. Zarafonetis, 81 N.M. 674, 472 P.2d 388 (Ct.App.1970). The reason for this rule is that the owner necessarily knows something about the quality, cost, and condition of his or her property and consequently knows approximately what it is worth. See Annotation, Admissibility of Opinion of Non-Expert Owner as to Value of Chattel, 37 A.L.R.2d 967 (1954).

Mr. Smith had the same amount of knowledge about this property as any person has about his or her own property. He knew the age, the condition when stolen, the original cost, and the amount that he, as an informed buyer, would pay for each item in its condition at trial. His unfamiliarity with the actual market for used laboratory equipment merely placed him in the same position as similarly uninformed owners of property.

The jury was instructed that "market value" means the price at which the property could ordinarily be bought or sold at the time of the alleged receiving of the stolen property. See SCRA 1986, 14-1602. "Market value" is the equivalent of "retail price" and generally is a question of fact. Tunnell v. State, 99 N.M. 446, 659 P.2d 898 (1983). Mr. Smith's testimony was tantamount to an owner's opinion as to the value of the property in its condition at trial and also as to the cost of purchasing new replacement property. The jury could reasonably infer from this testimony that the price at which the property could ordinarily have been bought or sold was in excess of $100 at the time it became received stolen property. Cf. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978); State v. Williams, 83 N.M. 477, 493 P.2d 962 (Ct.App.1972).

II. Racketeering Conviction.

Testimony at trial established that defendant and three others participated in the manufacture of methamphetamines between February and September of 1986. Testimony of two of defendant's three associates, Israel and Laura de la Rosa, indicated that defendant was the only one who knew all the steps required in the manufacturing process, and that he was in charge of all aspects of manufacturing and distributing the methamphetamines. The de la Rosas also stated that they had seen defendant manufacture methamphetamines on at least six or seven occasions. Mr. de la Rosa testified that he had seen defendant in possession of an analytical balance, a pH meter, and other laboratory equipment. Another witness testified that the equipment had been stolen from the wastewater plant in July of 1986.

Defendant's contention that his racketeering conviction is not supported by substantial evidence has several parts. Defendant first argues that the jury had to find he committed the receiving stolen property offense in order to find that he had committed racketeering, because the jury instructions so stated. Cf. State v. Martin, 90 N.M. 524, 565 P.2d 1041 (Ct.App.1977) (instructions that are not objected to become the law of the case). Since he contends that there was insufficient evidence upon which to base the receiving stolen property offense, there would be insufficient evidence to support the racketeering conviction if defendant's conviction for receiving stolen property is overturned. Because the receiving stolen property conviction was supported by substantial evidence, defendant's argument on this issue is moot.

Next, defendant attacks the sufficiency of the evidence of his violation of New Mexico's Racketeering Act, NMSA 1978, Sections 30-42-1 to -6 (Repl.Pamp. 1987 & Supp.1988). Specifically, in Section 30-42-4(A), it is made unlawful for anyone who receives proceeds from a pattern of racketeering activity, in which the person has participated, to use or invest those proceeds in an enterprise. "Racketeering" means "any act which is chargeable or indictable under the laws of New Mexico and punishable for more than one year," including, among others, the offenses defendant was charged as having committed--trafficking in controlled substances by manufacture and receiving stolen property valued more than $100. See § 30-42-3(A)(13) & (8). Defendant claims the evidence is insufficient to establish two elements of the unlawful activity--the use or investment of proceeds, and the existence of an enterprise. We address these elements separately.

A. Proof of "Use or Investment" of Proceeds.

Defendant concedes there was evidence to support a finding that the proceeds of more than one act of manufacturing were invested in later acts of manufacturing. However, the state proceeded on the theory that the pattern of racketeering activity additionally included the act of receiving stolen goods, and the trial court's instruction required the jury to find that defendant received proceeds also from that act of receiving stolen goods and that he used or invested those proceeds in an enterprise. Under these circumstances, defendant contends that there was insufficient evidence to support his conviction. Defendant argues there was no proof that he used or invested proceeds obtained from his act of receiving stolen property.

There was testimony that defendant was in possession of the laboratory equipment, and that the pH meter and analytical balance would be useful in manufacturing or distributing controlled substances. From this testimony, the jury could have inferred that defendant used the equipment in the business of manufacturing methamphetamines.

Defendant's argument appears to be an attempt to limit the statutory definition of "proceeds" to monetary gain. We disagree with this limitation.

The statute prohibits "use or investment," see Section 30-42-4(A), which infers that the term "proceeds" is not limited to money. Common sense indicates that the proceeds of illegal activity will not always be limited to money. Rather, it includes tangible property that can be used. Therefore, we hold that "proceeds," as used in the racketeering act, includes non-monetary proceeds. We also hold that there was sufficient proof that defendant used the non-monetary proceeds of...