State v. Stettheimer

• Decision Date: 31 January 1980
• Docket Number: No. 4153,4153
• Citation: 607 P.2d 1167,1980 NMCA 23,94 N.M. 149
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joe STETTHEIMER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1167

607 P.2d 1167

94 N.M. 149

STATE of New Mexico, Plaintiff-Appellee, v. Joe STETTHEIMER, Defendant-Appellant.

No. 4153.

Court of Appeals of New Mexico.

Jan. 31, 1980.

Lynn Pickard, Pickard & Singleton, Santa Fe, Dan Buzzard, Clovis, for defendant-appellant

Jeff Bingaman, Atty. Gen., Walter G. Lombardi, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

Defendant appeals his conviction of fraud over $2,500 and attempted fraud over $2,500 contrary to §§ 30-16-6 and 30-28-1, N.M.S.A.1978, respectively. He asserts four grounds for reversal: (1) insufficient evidence as to fraud; (2) insufficient evidence as to attempted fraud; (3) failure of the trial court to give an appropriate requested jury instruction; and (4) that the trial court allowed improper impeachment of the defendant. We affirm.

Facts regarding fraud.

Defendant, a real estate agent, entered into a contract with a Ms. Melear which authorized the defendant to sell her house. A Mr. Mendez expressed interest in trading his apartments for Ms. Melear's house and defendant informed him that Ms. Melear would sell the house for $14,000. Defendant and Mr. Mendez closed that deal for $14,000 on December 10, 1977. On or about December 11, 1977, defendant telephoned Ms. Melear and offered to buy the house from her for $10,200. The substance of this conversation was contained in a letter from defendant to Ms. Melear dated December 12, 1977. In the letter and in the telephone conversation, defendant indicated that someone had expressed interest in her property but had all his cash tied up in apartments. At no time did the defendant inform Ms. Melear that Mr. Mendez had signed a contract offering $14,000 for her house. The property had been appraised at $11,400 and was listed for sale at that amount.

Facts regarding attempted fraud.

Defendant attempted to finance his purchase of property owned by Mr. and Mrs. Joiner. Defendant and the Joiners signed two contracts for the sale of property. One listed $16,000 as the purchase price and the other listed it as $20,300. Mr. Joiner testified that the contract with the lower sale price was their actual agreement and that the defendant told him that the other contract was merely a "presentation copy" and said it was for the loan. Mr. Joiner only received a copy of the $16,000 contract. When defendant applied for financing, he only presented the bank with the higher offer. The bank appraisal was $20,300. The bank's loan policy on the type of property in question was to give 80% financing on the lower of the appraisal value or the sale price. Defendant was to receive a loan commitment for $16,240. This was greater than the actual sale price. The loan, however, was never completed due to title problems.

INSUFFICIENT EVIDENCE FRAUD

Defendant contends that the State failed to establish all the requisite elements of the crime of fraud. Jury Instruction No. 3 reads:

For you to find the defendant guilty of fraud as charged in Count I, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. The defendant, by any words or conduct, misrepresented a fact to Robbie Melear, intending to deceive or cheat Robbie Melear;

2. Because of the misrepresentation and Robbie Melear's reliance on it, defendant obtained the sum of $2,960.00 ;

3. This sum of money belonged to someone other than the Defendant; and

4. This happened in New Mexico on or about the 12th day of December, 1977. (Emphasis added.)

Defendant correctly argues that this instruction becomes the law of the case with regard to the elements of the crime of fraud. State v. Martin, 90 N.M. 524, 565 P.2d 1041 (Ct.App.1977), held that "(s)ince these instructions were not objected to and were requested by the state they become the law of the case". See also, State v. Gutierrez, 75 N.M. 580, 408 P.2d 503 (1965); State v. Rayos, 77 N.M. 204, 420 P.2d 314 (1967).

Defendant asserts there is no evidence that he ever received any sum of money and that all he received from his alleged fraud was the house he purchased from Ms. Melear. Defendant further cites the fact that N.M.U.J.I. Crim. 16.30, N.M.S.A.1978, has a separate provision for fraud involving money and for fraud involving the misappropriation of property and that the submitted instruction was the version relating to money.

Defendant's view is unnecessarily restrictive. Defendant himself explains how the $2,960 figure was reached:

(I)t is of interest to note that the $2,960 figure was arrived at by subtracting the actual sale price of Ms. Melear's house ($10,200) from the potential sale price ($14,000), and by further subtracting from the result thereof ($3,800) a 6% commission on $14,000 ($840).

Accordingly, the issue becomes one of how much precision is required in an instruction.

It has long been the law in New Mexico that an instruction need not be drafted with scientific exactness, but it must merely apprise the jury of the substance of the matter covered as fully and intelligently as if it were properly worded. State v. Carabajal, 26 N.M. 384, 193 P. 406 (1920). Carabajal held that even if the instruction is not directly applicable to the facts of the case, there is no reversible error so long as there was no possibility that it caused confusion and contributed to the defendant's conviction.

A review of the record explains the factual predicate for the jury finding that defendant had fraudulently misappropriated $2,960. Under Carabajal, supra, the alleged factual inconsistency of calling the fraudulently acquired increased value money and not property is irrelevant.

Defendant also contends that silence, a non-disclosure, is not criminally actionable. The key to resolving this issue is to determine whether "misrepresentation" should be broadly or narrowly construed in the criminal context. Both sides recognize that the alleged omission would be sufficient to form the basis of an action in civil fraud since defendant, as Ms. Melear's real estate broker, had a fiduciary duty "to make a full, fair and prompt disclosure to his employer of all facts within his knowledge which are or may be material". Iriart v. Johnson, 75 N.M. 745, 411 P.2d 226 (1965).

It is over the application of this rule to the criminal sphere that presents a question of first impression in New Mexico and has led to a split of authority in other jurisdictions.

Defendant cites the court to three cases which hold that a non-disclosure is not a misrepresentation and, therefore, cannot be the basis of a criminal conviction sounding in either fraud or taking by false pretenses. People v. Baker, 96 N.Y. 340 (1884); Rogers v. People, 161 Colo. 317, 422 P.2d 377 (1966); and McCorkle v. State, 170 Ark. 105, 278 S.W. 965 (1926). Baker and Rogers rely on the general rule that omission may not be the basis of imposition of criminal sanctions, while McCorkle relies on an earlier Arkansas case, Maxey v. State, 85 Ark. 499, 108 S.W. 1135 (1908), which held that the act of presenting a bad check was not tantamount to making a misrepresentation, even though defendant knew the check was bad because there was no verbal communication.

McCorkle is, therefore, of no aid to defendant as its holding rests on a case completely inapposite to well-established New Mexico law. In State v. Kelly, 27 N.M. 412, 202 P. 524 (1921), the Supreme Court held that the presentment of bogus bonds was a sufficient misrepresentation upon which to find criminal fraud and that a misrepresentation may be established by either conduct or acts.

The modern trend is away from the approach cited by the defendant. Most recent cases, dealing with whether silence may form the basis for a criminal misrepresentation, have held it may where the defendant has a legal duty to speak or where such silence is calculated to deceive. For example, see People v. Etzler, 292 Mich. 489, 290 N.W. 879 (1940); Neece v. State, 210 So.2d 657 (Miss.1968); People v. Randono, 32 Cal.App.3d 164, 108 Cal.Rptr. 326 (1973); Bright v. Sheriff, Washoe County, 90 Nev. 168, 521 P.2d 371 (1974); State v. West, 252 N.W.2d 457 (Iowa 1977). See also Perkins, Criminal Law (1957), pp. 264-65.

Additionally, the criminal fraud statute (§ 30-16-6, N.M.S.A.1978) itself appears to adopt the modern approach by its broad definition of the requisite criminal conduct: "(f)raud consists of the intentional misappropriation or taking of anything of value which belongs to another by means of fraudulent conduct, practices or representations".

Defendant next contends that all affirmative representations made by defendant to Ms. Melear were merely statements of opinion and not misstatements of known fact. Since the State relies on defendant's silence coupled with his fiduciary duty to establish the required misrepresentation, this issue is without merit.

Defendant claims that even if there was a misrepresentation it was neither material nor relied upon by Ms. Melear, since Ms. Melear only wanted cash and had no desire to trade her property. Taking the facts in the light most favorable to the verdict, there is substantial evidence that the misrepresentation was both material and relied upon by the victim, Ms. Melear. State v. Schifani, 92 N.M. 127, 584 P.2d 174 (Ct.App.1978).

INSUFFICIENT EVIDENCE ATTEMPTED FRAUD

Defendant alleges three bases of insufficient evidence. In actuality, defendant raises three legal issues, rather than factual questions. Defendant first claims that acquiring borrowed money is not enough to invoke the criminal fraud statute, § 30-16-6, but that one must acquire complete title and dominion. Defendant next argues that the value of alleged attempted fraud is the value of a loan of $3,440 (the difference between $16,240 (80% of $20,300) and $12,800 (80% of $16,000)). Defendant lastly contends that his actions constituted mere preparation and that there was no overt act in furtherance of the alleged intended criminal act....