State v. Sparks

• Decision Date: 15 January 1985
• Docket Number: No. 7714,7714
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Seth SPARKS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1382

694 P.2d 1382

102 N.M. 317

STATE of New Mexico, Plaintiff-Appellee, v. Seth SPARKS, Defendant-Appellant.

No. 7714.

Court of Appeals of New Mexico.

Jan. 15, 1985.

Paul G. Bardacke, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee

Thomas J. Horne, Thomas J. Horne, P.C., Albuquerque, for defendant-appellant.

OPINION

ALARID, Judge.

Defendant, Seth Sparks, appeals from his convictions on nine counts of making false statements contrary to NMSA 1978, Section 7-1-73(A) (Repl.Pamp.1983). Each count relates to a New Mexico Individual Income Tax Return filed on behalf of other persons in 1981. In his appeal the defendant presents six issues for consideration by this court: first, whether there was sufficient evidence to show intent on each count; second, whether the trial court erred in allowing the introduction of tax returns which were not the subject of the indictments; third, whether the trial court erred in refusing to allow the introduction of a handwritten note prepared by the defendant; fourth, whether the trial court erred in giving an accomplice liability instruction for count nine; fifth, whether the trial court erred in failing to give certain instructions requested by the defendant; and sixth, whether the district court's sentence was authorized under NMSA 1978, Section 31-18-13(B) (Repl.Pamp.1981). We find that substantial evidence exists to support defendant's convictions, that the trial court did not err with regard to the evidentiary questions raised, and that the trial court properly instructed the jury. Defendant's convictions are affirmed. We do find, however, that the trial court imposed sentences which were not in accordance with the directive of Section 31-18-13(B) and, therefore, this case will be remanded for resentencing.

DISCUSSION

I. Sufficiency of the Evidence

Defendant's brief is clearly in violation of NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.Rule 501 (Repl.Pamp.1983). Rule 501(a)(3) requires a short resume "of all facts relevant to the issues presented for review, with appropriate references to the record proper and transcript of proceedings." Rule 501(a)(4) requires that the argument on each issue "shall contain * * * citations to the * * * parts of the record and transcript relied upon." See State v. Reese, 91 N.M. 76, 570 P.2d 614 (Ct.App.1977). Defendant argues in his brief that the evidence was insufficient without telling this court what the evidence was and where the evidence appears in the transcript. Normally, the consequence of the rule violation is that we will not review the evidence. City of Farmington v. Sandoval, 90 N.M. 246, 561 P.2d 945 (Ct.App.1977). However, in this case we briefly review the evidence as to each count to inform the reader concerning crimes of a type new to this panel.

A) Count I

In Count I, defendant was charged with willfully making and subscribing a New Mexico Individual Income Tax Return for Frederick Thompson which contained a written declaration that it was made under penalty of perjury, and which the defendant did not believe was true and correct, contrary to Section 7-1-73(A). Defendant was in the business of purchasing tax returns from taxpayers and preparing returns. In 1981, Frederick Thompson sold his (Thompson's) W-2 tax forms to the defendant with the agreement that the defendant would pay him cash, and that defendant would get any refund paid by the state. Thompson testified that the defendant did not ask him whether he had any dependents.

A tax return was filed with the state. The state's handwriting expert testified that the defendant filled out and signed this return. This return listed Thompson as having five dependent children. Thompson testified that he did not have five children and did not recognize the names of the children on the return. He testified that the address and the signature on the return were not his address and signature. An examination of State's Exhibit No. 18 reveals that it was signed under penalty of perjury. The signature line for a preparer other than the taxpayer is blank.

Section 7-1-73 requires a finding of willful conduct. "Willful conduct" involves the defendant's state of mind, which is covered in NMSA 1978, UJI Crim. 1.50 (Repl.Pamp.1982), the general criminal instruction. State v. Masters, 99 N.M. 58, 653 P.2d 889 (Ct.App.1982); State v. Aranda, 94 N.M. 784, 617 P.2d 173 (Ct.App.1980); compare State v. Martin, 90 N.M. 524, 565 P.2d 1041 (Ct.App.1977). The existence or nonexistence of such intent is a question of fact for the jury. State v. Roybal, 66 N.M. 416, 349 P.2d 332 (1960). Intent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence. State v. Frank, 92 N.M. 456, 589 P.2d 1047 (1979).

Substantial evidence, which is required to support a conviction, is defined as that evidence which is acceptable to a reasonable mind as adequate support for a conclusion. State v. Manlove, 79 N.M. 189, 441 P.2d 229 (Ct.App.1968). In determining the sufficiency of the evidence, the evidence is viewed in the light most favorable to the state, and all permissible inferences are drawn which support the verdict. State v. Parker, 80 N.M. 551, 458 P.2d 803 (Ct.App.1969). The weight and credibility of testimony, moreover, is determined by the jury. State v. Ortega, 79 N.M. 744, 449 P.2d 346 (Ct.App.1968).

The jury could reasonably have believed that defendant intentionally put false information on the return, and signed the name of Frederick Thompson, in order to increase the size of the refund which he was to receive. The evidence was sufficient to support the conviction as to Count I.

B) Count II

Count II related to a return filed on behalf of Merritt Austin. Austin had a tax return prepared by someone other than defendant. This return lists Austin as having one exemption--himself. Austin had no dependents and was not supporting anyone. Austin sold the return to the defendant. The agreement was that Austin was to receive some cash and that defendant would get the refund. His expectation was that defendant would submit the return he had already filled out. Austin testified that he did not tell the defendant to change the number of exemptions, and did not tell the defendant that he was the head of a household. Austin testified that the defendant did not ask him to sign the return and was not present when the defendant filled out the return.

A tax return was filed. The state's expert testified that defendant filled out and signed State's Exhibit No. 2. This return identified Austin as being an unmarried head of a household. This return listed Austin as having five dependent children. Austin did not have five dependent children. Austin testified that he did not tell the defendant that he had five dependent children. He did not know who the listed children were. Austin testified that he never saw this return until the grand jury investigation. State's Exhibit No. 2 was signed under penalty of perjury and the line provided for the signature of a preparer other than the taxpayer is blank.

The evidence was sufficient to support the conviction as to Count II.

C) Count III

This count relates to a return filed on behalf of Dennis Thompson. Dennis Thompson took his W-2 form to a tax preparer and had a return prepared. This return lists Thompson as having one exemption--himself. Thompson sold his return to the defendant. The defendant did not inquire as to his exemptions.

A return was filed on behalf of Thompson. The state's expert testified that defendant filled out and signed this return. This return lists Thompson as having five dependent children. Thompson had no dependents. The address on the return is not Thompson's. This return was signed under penalty of perjury and the line provided for the signature of a preparer other than the taxpayer is blank.

The evidence was sufficient to support the conviction as to Count III.

D) Count IV

Count IV relates to a return filed by Deborah Hudson. Ms. Hudson is married but has no children. Ms. Hudson testified that in 1981 she did not give her return to anyone; instead, she filled out her own return and received the refund. This return is State's Exhibit No. 6. This return lists two exemptions for Ms. Hudson--herself and her husband. Hudson testified that she did not even know the defendant.

In 1981, another return was filed on behalf of Hudson. The defendant admitted filling out this return. This return lists four dependent children. Hudson testified that the listed children are not her dependents. Hudson also testified that although her social security number on her return was correct, she never worked for the D C Company (the company whose W-2 form for Ms. Hudson is attached to State's Exhibit No. 7). This return was signed under penalty of perjury and the signature line for preparer other than the taxpayer is blank.

The evidence was sufficient to support the conviction as to Count IV.

E) Count V

Count V involves a return filed on behalf of Donald Evans. Evans received a W-2 form and sold it to Tony Bennett. A return was filed based upon this W-2 form. This return listed two exemptions. Evans testified that he claimed himself and his son who lived in California.

Evans later received two other W-2 forms. He sold these two returns to the defendant and gave the defendant his previously received W-2 form. The deal, again, was that Evans would be paid some cash and that the defendant would get the amount of the refund. Evans testified that he told the defendant he had only one dependent.

State's Exhibit No. 5 is a second return filed on behalf of Evans in 1981. Evans testified that he did not sign this return. This return also lists three dependent children. Evans testified that he did not have any children, had never heard of the names on the return, and that he did not supply the defendant with these names. Evans also testified that the defendant...