State v. Shepherd
| Decision Date | 28 May 2021 |
| Docket Number | No. A-1-CA-37658,A-1-CA-37658 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. CHRISTOPHER SHEPHERD, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
Meryl E. Francolini, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant Christopher Shepherd appeals his convictions for eight counts of embezzlement, contrary to NMSA 1978, Section 30-16-8(A) (2007). On appeal, Defendant argues: (1) there was insufficient evidence to support his convictions; (2) the district court abused its discretion in denying his request for a continuance; (3) the district court abused its discretion by admitting business records relating to the charge of embezzlement; and (4) the district court admitted documents in violation of his right to confrontation. We affirm.
{2} For approximately ten years, Defendant was employed as the general manager of a UPS store located in Clovis, New Mexico. Defendant was hired as general manager by Dinesh Kumar, owner of the Clovis UPS store. Kumar allowed Defendant to manage and operate nearly every aspect of the store; Defendant was permitted to purchase supplies for the store's operation, make bank deposits, and handle customer purchases/refunds. From the period of October 2014 to June 2015, Defendant made eight transactions in the form of customer refunds, in which funds were transferred into his personal checking account. Defendant made these transactions via the Clovis UPS Store's computer system, using the store's customer refund process to deposit the money.1
{3} The eight transactions sparked concern from Will Maguire, the regional manager for the Clovis UPS Store, because according to Maguire, the frequency and the dollar amount of the transactions were "suspicious." Maguire testified that "when you see refunds in excess of thousands of dollars, you know that's not common." Due to his concern, Maguire began investigating the matter. After receiving records that provided a detailed accounting of Defendant's eight transactions, Maguire concluded that "theft was going on at the store." Maguire informed Kumar who contacted the Clovis Police Department eventually leading the State to charge Defendant with eight counts of embezzlement for the transactions.
{4} At trial, the State presented evidence that as general manager of the Clovis UPS store, Defendant could process refunds through the store's computer system, and that the money from the transactions went directly into Defendant's personal checking account. All eight transactions contained Defendant's unique employee identification number indicating that it was Defendant who processed the transaction in the Clovis UPS Store's computer. As well, Defendant admitted to completing all eight transactions.
{5} Defendant testified that all eight of the transactions were intended to cover the costs associated with the use of his own money on UPS related expenditures. Defendant testified that he kept a record of all receipts associated with these expenditures, however Defendant never produced these receipts and/or any other documentation relating to the expenses incurred. Additionally, Defendant's daughter, Halena Shepherd, also a UPS store employee in 2015, testified that Defendant would spend his personal money on store-related expenses.
{6} Ultimately, a jury convicted Defendant on all eight counts of embezzlement. Defendant appeals.
{7} Defendant argues there is insufficient evidence to support his convictions for embezzlement because the State failed to prove the requisite element of entrustment. In reviewing a claim for sufficiency of the evidence, we view the evidence in the "light most favorable" to the state. State v. Faubion, 1998-NMCA-095, ¶ 12, 125 N.M. 670, 964 P.2d 834. We determine "whether substantial evidence, either direct or circumstantial, exists to support a guilty verdict beyond a reasonable doubt for every essential element of the crimes at issue." State v. Kalinowski, 2020-NMCA-018, ¶ 8, 460 P.3d 79 (internal quotation marks and citation omitted). "The jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (alterations, internal quotation marks, and citation omitted).
{8} The jury was instructed that to convict Defendant of embezzlement, the State had to prove in relevant part:
UJI 14-1641 NMRA. Defendant's argument is focused on whether the State proved he was entrusted with the funds that he was convicted of embezzling. Thus, we limit our analysis accordingly.
{9} The property in question must be "acquired lawfully by entrustment[.]" State v. Hornbeck, 2008-NMCA-039, ¶ 14, 143 N.M. 562, 178 P.3d 847. Entrustment does not have a "special or technical meaning" but rather it is "no more than holding [property] in trust or confidence." State v. Moss, 1971-NMCA-117, ¶ 8, 83 N.M. 42, 487 P.2d 1347. "Entrustment occurs when property is committed or surrendered to another person with certain confidence regarding the care, use, or disposal of that property." State v. Kovach, 2006-NMCA-122, ¶ 9, 140 N.M. 430, 143 P.3d 192 (emphases, internal quotation marks, and citation omitted).
{10} Our Supreme Court dealt with a factual scenario similar to this case in State v. Peke, 1962-NMSC-033, ¶ 15, 70 N.M. 108, 371 P.2d 226, where the defendant appealed his conviction for embezzlement and only contested the sufficiency of the state's evidence on the element of entrustment. There, the Court concluded there was substantial evidence supporting the jury's verdict that the defendant was entrusted withthe money because the defendant's employment duties included receiving and depositing checks. Id. ¶¶ 21-22. The office "was operated entirely under the direction and supervision" of the defendant and "practically all checks and deposits were handled by the defendant personally." Id. ¶ 23. Even though the defendant was never explicitly authorized to possess or control the funds associated with operating the office, the Court reasoned that "the record [was] replete with testimony showing that the defendant had implied authority[.]" Id. ¶ 22.
{11} Similarly, here, Defendant oversaw the daily operations of the Clovis UPS store. Defendant admitted when interviewed by law enforcement, that he "pretty much . . . ran everything that had to do with the store." Defendant explained that Kumar told him to "run [the Clovis UPS Store] like it was [his.]" Defendant testified that he routinely handled the cash intake in the store and routinely made bank deposits. And, importantly, Defendant had the authority to operate the store's computer system for the purpose of processing customer refunds. Defendant testified that not only was he trained in how to perform customer refunds but also that he routinely processed customer refunds during the course of his duties. In this respect, Kumar placed Defendant, as general manager, in a position of "trust and confidence" not only with the operation of the Clovis UPS Store but with the proper processing of customer refunds. See Moss, 1971-NMCA-117, ¶ 8. Similar to the defendant in Peke, Kumar's trust in Defendant demonstrated an authority sufficient to establish the element of entrustment. See 1962-NMSC-033, ¶ 20 ().
{12} Nevertheless, Defendant argues that Kumar never provided him with the authority to control the funds which he is accused of embezzling. To support his argument, Defendant relies on Kovach, 2006-NMCA-122, ¶ 16, and State v. Stahl, 1979-NMCA-054, ¶ 10, 93 N.M. 62, 596 P.2d 275. However, Defendant's reliance on these cases is misplaced. In Kovach, this Court held that there was insufficient evidence for the defendant's charge of embezzlement because she never had "discretion or authority" over the pre-signed checks that she stole. 2006-NMCA-122, ¶ 16. In Stahl, we reversed the defendant's conviction for embezzlement concluding that the money in a drop-box was never "committed or surrendered to [the] defendant's care." 1979-NMCA-054, ¶ 10. Key to both Kovach and Stahl, was that each defendant was provided access to the property they were accused of embezzling, but neither defendant had any authority over the property. See Kovach, 2006-NMCA-122, ¶¶ 15-16 (); Stahl, 1979-NMCA-054, ¶ 10 (). Unlike Kovach and Stahl, Defendant had more than mere access to the funds at issue—he had authority to process customer refunds.
{13} We conclude that the State...
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