State v. Leong

• Decision Date: 28 June 2017
• Docket Number: No. A-1-CA-33847.,A-1-CA-33847.
• Citation: 404 P.3d 9
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Gordon LEONG, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

404 P.3d 9

STATE of New Mexico, Plaintiff-Appellee,

v.Gordon LEONG, Defendant-Appellant.

No. A-1-CA-33847.

Court of Appeals of New Mexico.

Filing Date: JUNE 28, 2017

Certiorari Denied, August 18, 2017, No. S-1-SC-36576

Hector H. Balderas, Attorney General, Laura E. Horton, Assistant Attorney General, Santa Fe, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Josephine H. Ford, Assistant Appellate Defender, Albuquerque, NM, for Appellant.

OPINION

M. MONICA ZAMORA, Judge

{1} Gordon Leong (Defendant) was convicted of forgery (make or alter), contrary to NMSA 1978, Section 30-16-10(A)(1) (2006) ; forgery (issue or transfer), contrary to Section 30-16-10(A)(2) ; conspiracy to commit forgery (issue or transfer), contrary to NMSA 1978, Section 30-28-2(A) (1979) ; and making a false affidavit (perjury), contrary to NMSA 1978, Section 66-5-38 (1978), a fourth degree felony pursuant to NMSA 1978, Section 30-25-1(B) (2009). On appeal, Defendant raises four issues: (1) whether admission of an affidavit of residency with an affixed photocopy of Defendant's driver's license was in error when the driver's license photograph and the signature on the affidavit were not properly authenticated; (2) whether Defendant's act of signing his name on an affidavit of residency, which contained a false statement, constituted forgery (make or alter); (3) whether the district court erred in failing to include the specific language, "knowing it to be a false writing" in the instruction for forgery (issue or transfer); and (4) whether it was error to admit testimony on the conspiracy charge from two witnesses whose statements were not in furtherance of a conspiracy. We reverse in part and affirm in part.

I. BACKGROUND

{2} Defendant was charged with 386 counts relating to driver's license applications with the Motor Vehicle Department (MVD), and ultimately tried on 74 of those counts. The jury convicted Defendant of one count each of: (1) forgery (make or alter), (2) forgery (issue or transfer), (3) conspiracy to commit forgery (issue or transfer), and (4) perjury. All four convictions were based on events that occurred on February 16, 2010, and involved an MVD form titled "Affidavit of New Mexico Residency [ (the Affidavit) ] by a Relative, Friend, Employer or Other," signed by Defendant and which included a photocopy of Defendant's driver's license in the top right corner of the affidavit, in connection with the driver's license application of Tian F. Guo.

{3} On January 21, 2010, Defendant signed the Affidavit asserting that he was Guo's friend and that Guo lived with him at the Warren House Apartments at 7601 Lomas Boulevard Northeast, Apartment 69. The Affidavit included a copy of Defendant's driver's license. By submitting the Affidavit, Defendant was verifying that Guo was a New Mexico resident. Defendant provided the Affidavit to MVD thereby allowing Guo to obtain a New Mexico driver's license. MVD issued a driver's license for Guo based, in part, on this affidavit of residency. The onsite manager for the apartments testified that she executed a lease with Defendant and that Defendant was the only one allowed to live in that apartment between August 2009 and April 2010. At sentencing, the district court merged the convictions for forgery (make or alter) and perjury.

II. DISCUSSION

A. The Affidavit

{4} Defendant claims error in the admission of the Affidavit, arguing that it was not properly authenticated under Rule 11-901 NMRA. "We review the admission of evidence under an abuse of discretion standard and will not reverse in the absence of a clear abuse." State v. Sarracino , 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72.

{5} When authenticating an item of evidence, Rule 11-901(A) requires sufficient evidence be presented to show that the item is what the proponent claims it to be. Rule 11-901 provides various examples of what would be necessary to satisfy the requirement of authentication of evidence. Under Rule 11-901, sufficient evidence for authentication of a document can be provided by presenting the "[t]estimony of a [person] with knowledge[,]" by submitting evidence that the document is filed in a public office as authorized by law, or by submitting evidence that the document is "a purported public record or statement ... from the office where items of this kind are kept." Rule 11-901(B)(1), (7)(b).

{6} The State presented testimony from Mark Lucero, a manager with MVD with fifteen years of experience. Lucero testified that the Affidavit was the type of document that is kept in the regular course of business at MVD. Defense counsel attempted to elicit testimony from Lucero that copying a driver's license was not a typical practice with MVD. In response, Lucero testified that affidavits from different offices may or may not include a copy of a license because MVD offices have different policies and procedures, but it was his belief that an agent would have verified an affiant's driver's license in some manner. Lucero explained that when a person signs an affidavit of residency for another, as in this case, the MVD employee would ask for a driver's license or other form of identification for verification. A copy of the identification document would be made, and some agents would keep the copy separate from the affidavit, while other agents would put them together. Lucero agreed that an agent would "essentially card the person" who is vouching for a driver's license applicant. The district court found that Lucero had knowledge about the practices and procedures of MVD and that he provided testimony that a driver's license copy is made when one person is vouching for the residency of another.

{7} Defendant argues that the State should have done more to properly authenticate the Affidavit, including having an expert compare signatures and conducting a handwriting analysis. Defendant argues that Lucero worked in only one office and did not have sufficient knowledge of procedures at other MVD offices. As the State points out, however, Lucero processed 5,000 or more applications for foreign nationals, and he had personally assisted Defendant in dealing with other driver's license applications for foreign nationals. Lucero testified that whether or not a copy of a driver's license was attached or separate, a driver's license copy would be made of the person vouching for the applicant.

{8} Lucero's testimony established that he was a "person with knowledge" of the policies and procedures at MVD and that the Affidavit was a record from an MVD office in which documents such as the Affidavit are kept. Lucero's testimony was sufficient to lay a foundation that the document was what it was purported to be. We hold that the district court did not abuse its discretion in allowing admission of the Affidavit.

B. Forgery

{9} The main issue in this case is whether entering false information into a genuine affidavit amounts to forgery—in other words, whether forgery is committed when a defendant lies about a fact to which they are attesting in an affidavit. In the Affidavit, completed and signed by Defendant under penalty of perjury, Defendant declared that he was a friend of Guo and that Guo lived at 7601 Lomas Boulevard Northeast, Apartment 69 in Albuquerque, New Mexico. Defendant, the affiant, produced his driver's license, a copy of which was made and attached to the Affidavit. Guo did not, in fact, live at the address as attested to by Defendant in the Affidavit. The Affidavit was the basis for Defendant's convictions for forgery (make or alter) and forgery (issue or transfer).

{10} On appeal, the parties are in disagreement as to whether or not the Affidavit falls under our forgery statute. This raises an issue of statutory interpretation, which we review de novo. See State v. Herrera , 2001-NMCA-007, ¶ 6, 130 N.M. 85, 18 P.3d 326. "Our primary goal when interpreting statutory language is to give effect to the intent of the [L]egislature." State v. Torres , 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. "We do this by giving effect to the plain meaning of the words of [the] statute, unless this leads to an absurd or unreasonable result." State v. Marshall , 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801 ; see NMSA 1978, § 12-2A-2 (1997) ("Unless a word or phrase is defined in the statute or rule being construed, its meaning is determined by its context, the rules of grammar and common usage.").

{11} "Forgery consists of: (1) falsely making or altering any signature to, or any part of, any writing purporting to have any legal efficacy with intent to injure or defraud; or (2) knowingly issuing or transferring a forged writing with intent to injure or defraud." NMSA 1978, § 30-16-10 (2006). "Forgery has been defined as a crime aimed primarily at safeguarding confidence in the genuineness of documents relied upon in commercial and business activity. Though a forgery, like false pretenses, requires a lie, it must be a lie about the document itself: the lie must relate to the genuineness of the document." State v. Baca , 1997-NMSC-018, ¶ 5, 123 N.M. 124, 934 P.2d 1053.

{12} According to Defendant, his conduct in including false information in a sworn affidavit could only have supported a charge of perjury and not forgery. In 1906 our Supreme Court discussed the difference between the crime of forgery and the crime of perjury in a case involving a defendant who was indicted under a law similar to our current forgery statute. See Territory v. Gutierrez , 1906-NMSC-003, ¶ 8, 13 N.M. 312, 84 P. 525. In Gutierrez , the defendant, a notary public, made a certificate of acknowledgment of a written instrument, which contained false information. See id. ¶ 4. The applicable law in that case prohibited any person from falsely making, altering, forging, or counterfeiting any public record or certificate with intent to injure or defraud any person. Id. ¶ 3. The Court, referring to a variety of sources, determined that a forgery statute punishes...