State v. Pedroncelli

• Decision Date: 12 January 1984
• Docket Number: 15102,Nos. 15101,s. 15101
• Citation: 675 P.2d 127,100 N.M. 678,1984 NMSC 9
• Parties: STATE of New Mexico, Petitioner, v. Janet PEDRONCELLI, Respondent. Janet PEDRONCELLI, Petitioner, v. STATE of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 127

675 P.2d 127

100 N.M. 678

STATE of New Mexico, Petitioner, v. Janet PEDRONCELLI, Respondent.

Janet PEDRONCELLI, Petitioner, v. STATE of New Mexico, Respondent.

Nos. 15101, 15102.

Supreme Court of New Mexico.

Jan. 12, 1984.

Paul Bardacke, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for State of N.M

Scott McCarty, Albuquerque, for Janet Pedroncelli.

OPINION

PAYNE, Justice.

Janet Pedroncelli was elected Secretary-Treasurer of the union CWA Local 8611. In her official capacity, she was custodian of the credit union funds. She negotiated twenty-two checks and fourteen cash withdrawal vouchers over a six-month period, embezzling a total of $16,571.

Pedroncelli was charged by criminal information with one count of embezzlement over $2,500, in violation of NMSA 1978, Section 30-16-8, a third degree felony. She was found guilty by a jury. She appealed, alleging, inter alia, that the trial court erred in failing to direct a verdict of acquittal because each misappropriating act was under a $2,500 amount. The court of appeals reversed, but did not remand for acquittal. It held that the evidence "prove[d] 36 separate acts of embezzlement of over $100 but not more than $2,500, all fourth degree felonies." The court of appeals concluded:

The State could have charged defendant in 36 counts; it chose to charge in only one. See State v. Gurule, 90 N.M. 87, 559 P.2d 1214 (Ct.App.1977). We * * * reverse the conviction because numerous embezzlements could not be aggregated to increase numerous fourth degree felonies to the status of a third degree felony. See Sec. 30-16-8; Sanchez v. State, 97 N.M. 445, 640 P.2d 1325 (1982).

The matter was "remanded for correction of the judgment and sentence to reflect conviction on one count of embezzlement of more than $100 but less than $2,500."

We reverse the court of appeals and affirm the trial court.

Although the court of appeals relied on Sanchez, its decision lacks further explanation of why the jury could not conclude that only one crime had occurred. In Sanchez, we affirmed the trial court's determination that the indictment was faulty because it was vague. Defendants were charged with having " 'received, retained or disposed' of 72 different items that belonged to four separate parties." Id. at 446, 640 P.2d at 1326. The indictment accumulated these charges into one count, thereby elevating the crime to a third degree felony.

The controlling rationale of Sanchez was that an accused is entitled to be apprised of the crime(s) with which he is charged in sufficient detail to permit him to prepare his defense. While we continue to subscribe to this latter principle, as reflected in Sanchez, we observe that Pedroncelli is not aided by such reasoning. We are not here concerned or presented with a vague or otherwise defective charging instrument.

Nor do the circumstances presented in the case at bar implicate a double jeopardy problem. The "same evidence" test determines, for double jeopardy purposes, whether two or more offenses actually constitute a single offense. State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975); and Owens v. Abram, 58 N.M. 682, 274 P.2d 630 (1954), cert. denied, 384 U.S. 917, 75 S.Ct. 300, 99 L.Ed. 719 (1955). The "same evidence" test would preclude the State from bringing separate charges for any of the thirty-six isolated acts of embezzlement, along with the charge which formed the basis for Pedroncelli's conviction. The issue, though, is not whether Pedroncelli is subject to thirty-six (or one or more thereof) separate prosecutions for fourth degree embezzlement, in addition to her prosecution for third degree embezzlement. Rather, the salient question compelling our consideration is whether the jury could properly consider Pedroncelli's repeated defalcations, in toto, as a single crime. We conclude that the jury could so consider the evidence herein.

The "single larceny doctrine" has been addressed or some of its related aspects have been discussed in prior New Mexico appellate decisions. See State v. Allen, 59 N.M. 139, 280 P.2d 298 (1955); State v. Romero, 33 N.M. 314, 267 P. 66 (1928); State v. Klasner, 19 N.M. 474, 145 P. 679 (1914); State v. Boeglin, 90 N.M. 93, 559 P.2d 1220 (Ct.App.1977); and State v. Bolen, 88 N.M. 647, 545 P.2d 1025 (Ct.App.1976), cert. denied, 89 N.M. 5, 546 P.2d 70 (1976). In Allen, we held that the trier of fact could determine whether distinct or successive takings constituted single or multiple offenses. We quoted approvingly from 36 C.J. Larceny Sec. 219, at p. 798:

'Where the property is stolen from the same owner and from the same place by a series of acts, if each taking is the result of a separate, independent, impulse, each is a separate crime; but if the successive takings are all pursuant to a single, sustained, criminal impulse and in execution of a general fraudulent scheme, they together constitute a single larceny, regardless of the time which may elapse between each act.'

Allen, 59 N.M. at 140-41, 280 P.2d at 299.

We readopt the above-quoted reasoning and hold that where the State obtains an indictment or files an information or misdemeanor complaint that contains a single charge which is premised upon a series of takings or conversions from one victim, the factfinder may, upon the trial of that charge, determine if the successive takings or conversions are associated with a single, sustained criminal intent. Those convicted of such crimes may, on appeal, challenge the sufficiency of the evidence which supports the finding that the takings or conversions were allied with one common intent element. Compare State v. Lucero, 98 N.M. 311, 648 P.2d 350 (Ct.App.1982), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982) (sufficient evidence supported jury's finding that the defendant intended to commit a theft at the time he entered the burglarized premises).

Embezzlement is admittedly distinguishable from larceny. Unlike larceny it is purely a statutory crime which did not exist at common law. Territory v. Maxwell, 2 N.M. (Gild) 250 (1882); State v. Bryant, 99 N.M. 149, 655 P.2d 161 (Ct.App.1982). Larceny involves an original wrongful taking or trespass, whereas embezzlement involves lawfully possessed property that an offender later converts to his own use. State v. Peke, 70 N.M. 108, 115, 371 P.2d 226, 230 (1962), cert. denied, 371 U.S. 924, 83 S.Ct. 293, 9 L.Ed.2d 232 (1962); and Bryant, 99 N.M. at 150, 655 P.2d at 162; see also NMSA 1978, UJI Crim. 16.00 and 16.31 (Repl.Pamp.1982 and Supp.1983).

These differences do not, however, preclude reliance upon Allen or other "single larceny" decisions. Both of these crimes encompass the requirement that the taking or conversion occur contemporaneously with an intention to deprive the owner of the property. NMSA 1978, UJI Crim. 16.00 and 16.31 (Repl.Pamp.1982 and Supp.1983). Accordingly, the factfinder may, in either case, evaluate the evidence to determine if one protracted intention accompanies the several takings or conversions that may be implicated within a single charge.

The Legislature defines what behavior constitutes a unit of prosecution. United States v. Johnson, 612 F.2d 843, 845 (4th Cir.1979). The legislative intent is determined primarily by the language of the statute itself; the words are given their ordinary meaning unless a different intent is clearly indicated. Winston v. New Mexico State Police Board, 80 N.M. 310, 454 P.2d 967 (1969); State v. Tapia, 89 N.M. 221, 549 P.2d 636 (Ct.App.), cert. denied, 89 N.M. 206, 549 P.2d 284 (1976).

NMSA 1978, Section 30-16-8 states, "Embezzlement consists of the embezzling or converting to [one's] own use of anything of value, with which [one] has been entrusted, with fraudulent intent to deprive the owner thereof." According to the plain language of this statute, embezzlement is a betrayal or violation of one's entrustment. The nature of the entrustment involved in a particular case should be considered in ascertaining the number of crimes committed and the permissible unit of prosecution employed in that case. The evidence adduced at Pedroncelli's trial sufficiently showed her continuing intention to violate her ongoing entrustment as an elected union official. Thus, the proof was consistent with the third degree felony charge.

We agree with Judge Donnelly's dissent from the Court of Appeals' Opinion herein and order its publication. He correctly relies upon a case from another jurisdiction which closely resembles the instant case. See Nelson v. State, 208 Tenn. 179, 344 S.W.2d 540 (1960) (appropriation of union's funds by officers thereof who cashed a series of checks over several months was held to be pursuant to a single continuing intent and a general scheme).

We hereby reverse the court of appeals and the defendant's conviction as a third degree felon is affirmed.

IT IS SO ORDERED.

FEDERICI, C.J., SOSA, Senior Justice, and RIORDAN, J., concur.

STOWERS, J., not participating.

APPENDIX

No. 5988.

Court of Appeals of New Mexico.

Aug. 11, 1983.

OPINION

WALTERS, Chief Judge.

Janet Pedroncelli was charged by criminal information with one count of embezzlement over $2,500, in violation of NMSA 1978, Sec. 30-16-8, a third degree felony. Following a jury trial in which she was found guilty, she appeals. Her first point alleges error in the court's failure to direct a verdict of acquittal, on grounds that each of the series of defalcations proved was under a $2,500 amount.

The other two issues raised are whether defendant's counsel should have been allowed to testify regarding use of double-vouchering evidence, and whether certain jurors should have been discharged for cause.

We reverse on the first issue, and remand for correct sentencing.

I.

The criminal information charged that between October 17, 1979, and April 18, 1980, defendant "did embezzle or convert to Defendant's own use a thing of value, to wit: CWA Local 8611 Credit Union funds with which Defendant had been...