State v. Johnson

• Decision Date: 19 August 1986
• Docket Number: No. 8904,8904
• Citation: 105 N.M. 63,1986 NMCA 84,728 P.2d 473
• Parties: , RICO Bus.Disp.Guide 6441 STATE of New Mexico, Plaintiff-Appellee, v. Richard JOHNSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 473

728 P.2d 473

105 N.M. 63, RICO Bus.Disp.Guide 6441

STATE of New Mexico, Plaintiff-Appellee, v. Richard JOHNSON, Defendant-Appellant.

No. 8904.

Court of Appeals of New Mexico.

Aug. 19, 1986.

Certiorari Denied Oct. 16, 1986.

[105 N.M. 65] Paul G. Bardacke, Atty. Gen., John M. Paternoster, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Warren F. Reynolds, P.A., Hobbs, Winston Roberts-Hohl, Santa Fe, for defendant-appellant.

OPINION

DONNELLY, Judge.

Defendant appeals his convictions of twelve counts of fraud, one count of conspiracy, and one count of racketeering. We discuss defendant's claims of error as to: (1) failure of proof; (2) denial of mistrial; (3) unconstitutionality of the Racketeering Act, NMSA 1978, Sections 30-42-1 to -6 (Repl.Pamp.1980); (4) propriety of jury instruction; and (5) mistake in sentencing. Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. Shafer, 102 N.M. 629, 698 P.2d 902 (Ct.App.), cert. denied, 102 N.M. 613, 698 P.2d 886 (1985). We affirm in part and reverse in part.

Defendant and his wife operated a used car and automotive repair business in Hobbs. A nineteen-count indictment charged defendant and his wife with fraud, conspiracy and racketeering arising out of allegations of overcharging for vehicle repairs, falsifying claims to insurance companies, charging for work not performed, billing for new automotive parts which were not installed, and falsifying documents regarding sales of vehicles.

I. SUFFICIENCY OF EVIDENCE

(A) Variance. Defendant contends that there was a failure of proof as to the offenses alleged in Counts I, III, V, VII, IX, XI, and XII because of a variance between the allegations of the indictment and the evidence presented at trial relating to the identification numbers of the motor vehicles. Each of these counts alleged that defendant had fraudulently obtained monies by filing false claims for automotive repairs with insurance companies.

At the close of the state's case-in-chief, defendant moved to dismiss the above counts on the ground of failure of proof. The trial court denied the motion. Defendant claims error because in five of the foregoing counts, there was a variance as to a single letter or number between evidence of the identification numbers presented at trial and the allegations of the indictment; in Counts III and IV, there was a two-character variance.

The state asserts that the differences in the vehicle identification numbers constituted harmless error arising from minor typographical mistakes constituting a one or two-character variance. We agree. See State v. Trujillo, 91 N.M. 641, 578 P.2d 342 (Ct.App.), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978); State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct.App.1968). Defendant does not contend that he was misled into thinking that other vehicles were involved, nor does defendant argue that the preparation of his case or the conduct of his defense at trial was prejudiced by the variance. Instead, defendant asserts that the variance constituted a failure of proof and, consequently, his convictions on these counts place him in double jeopardy.

NMSA 1978, Crim.P. Rule 7(c) (Repl.Pamp.1995), states:

(c) Variances. No variance between those allegations of a complaint, indictment, information or any supplemental pleading which state the particulars of the offense, whether amended or not, and the evidence offered in support thereof shall be ground for the acquittal of the defendant unless such variance prejudices substantial rights of the defendant. The court may at any time allow the indictment or information to be amended in respect to any variance to conform to the evidence. If the court finds that the defendant has been prejudiced by an amendment, the court may postpone the trial or grant such other relief as may be proper under the circumstances. [Emphasis added.]

Each of the challenged counts specified the type of car involved in the alleged fraud, the owner of the vehicle, the date of the offense, and the nature of the illegal conduct. At trial, the state presented evidence bearing upon each of these matters. The trial court's denial of the motion to dismiss was not error; there was no showing that any substantial right of defendant was affected, the convictions were supported by substantial evidence, and no prejudice has been demonstrated. See State v. Pina, 90 N.M. 181, 561 P.2d 43 (Ct.App.1977); Crim.P.R. 7(c). A variance is not fatal unless the accused cannot reasonably anticipate from the indictment what the nature of the proof against him will be. State v. Ross, 100 N.M. 48, 665 P.2d 310 (Ct.App.1983).

Defendant's contention that these errors have subjected him to double jeopardy is also without merit. Defendant asserts that he could be convicted again on these charges because of the variance in the vehicle identification numbers. Under Crim.P. Rule 7(c), the variance is not treated as a different offense; defendant would be able to preclude a second prosecution by demonstrating the variance. See State v. Kerr, 142 Ariz. 426, 690 P.2d 145 (App.1984); State v. Bird, 238 Kan. 160, 708 P.2d 946 (1985).

Defendant's reliance on State v. Foster, 87 N.M. 155, 530 P.2d 949 (Ct.App.1974), is misplaced. In Foster, defendant was charged with the commission of the offense of sodomy "[o]n or about August, 1973." At trial, a juvenile testified that three separate sexual acts occurred within a span of approximately one month. Under the circumstances the court held that defendant was not placed on notice as to the specific act charged and that the lack of notice prejudiced his defense. Unlike the factual situation in Foster, defendant here has failed to demonstrate prejudice. In the instant case, there is no doubt as to each of the vehicles which were the subject of proof at trial. Sufficiency of an indictment is measured by whether it adequately apprises the accused of the offense intended to be charged, what he must be prepared to defend against, and by whether it is specific enough to make a plea of double jeopardy possible. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Here, the variance was not prejudicial, and the indictment and proof were sufficient to avoid double jeopardy.

(B) Defendant also asserts that there was a variance between the indictment and the evidence at trial as to Counts V and XII (each alleging fraudulent claims for vehicle repairs). Count V of the indictment charged that defendant misappropriated or took money belonging to "T.B.A. Insurance Company" by filing a false claim with the "W.J. Agency" for alleged repairs on a 1977 Datsun 280 Z sold by Johnson Motor Company to Steve Patterson.

Count XII of the indictment alleged that defendant misappropriated or took money belonging to "T.B.A. Insurance Company" by filing a false claim with the "W.J. Agency" for alleged repairs on a 1979 Buick Regal sold by Johnson Motors Company to Plimpton Frailey.

Proof at trial and the instructions on Counts V and XII, indicated that defendant falsified repair estimates on the vehicles to the "T.B.A. Company." The variance omitting the word "Insurance" from the name of the corporate victim was not material.

When a variance between the indictment and proof at trial is claimed to constitute reversible error, the dispositive issue on appeal is whether the indictment sufficiently apprised the accused with sufficient specificity to allow him to prepare his defense and raise any resulting conviction as a bar to future prosecution arising out of the same conduct. State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963). See also England v. United States, 174 F.2d 466 (5th Cir.1949) (variance in name of victim of larceny held not prejudicial); People v. Montgomery, 96 Ill.App.2d 994, 52 Ill.Dec. 545, 422 N.E.2d 226 (1981) (variance in name of victim of aggravated assault held not reversible error); Bates v. State, 486 N.E.2d 574 (Ind.App.1985) (variance in name of owner of property burglarized did not vitiate conviction). Here, the variance complained of was not prejudicial and our review of the record indicates that defendant's convictions were supported by substantial evidence. Counts V and XII of the indictment specifically referred to the vehicles involved, the vehicle identification numbers, the owners of the vehicle, and the general dates the offenses were alleged to have been committed. Proof at trial conformed to the material allegations of the indictment.

Defendant also argues that Crim.P.Rule 7(c) is inapplicable because the state did not move to amend the indictment. We disagree. The fact that the state did not move to amend does not make Rule 7 inapplicable. Rule 7 states that, without a showing of substantial prejudice, defendant is not entitled to acquittal because of a variance, irrespective of whether the indictment is amended or not. Defendant relies on State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971), where it was held that when a criminal offense is charged in general terms and is followed by a detailed statement of facts concerning the offense, the state is restricted to establishing the facts so detailed. The result in Crump is distinguishable from the present case. Here, defendant did not seek or obtain a detailed statement of facts, the charges are supported by substantial evidence and there has been no prejudice demonstrated.

Defendant argues further that the variance between the indictment and the two instructions naming the alleged victim as "T.B.A. Insurance Company" constitutes a failure of proof and subjects him to double jeopardy. We disagree. This objection was not raised at trial. Instructions 7 and 14, given by the trial court, list "T.B.A. Company" as the victim of the alleged fraud as to Counts V and XII. Absent fundamental error that is jurisdictional, instructions not objected to by defendant become the law of the case. See State v. Dominguez, 91 N.M. 296, 573 P.2d 230...