State v. Upchurch
| Decision Date | 15 December 2014 |
| Docket Number | NO. 33,240,33,240 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. SHANE UPCHURCH, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Gary K. King, Attorney General
Paula E. Ganz, Assistant Attorney General
for Appellee
Law Works LLC
John McCall
Albuquerque, NM
for Appellant
{1} Defendant Shane Upchurch appeals his convictions for larceny, burglary, receiving stolen property, conspiracy to commit larceny, conspiracy to commit burglary, and conspiracy to commit receiving stolen property. He challenges his convictions on double jeopardy grounds, and he argues that there was insufficient evidence to support his convictions. We affirm in part and reverse in part.
{2} At the end of October 2010, a building in San Juan County was burglarized at least twice within a few days. The building was owned by Jerry Dalla and included a jewelry-making workshop and a lapidary room, which was used for polishing stones, silver, and jewelry. Dalla rented space in the workshop to two other jewelry-makers, Roy Kinney and Raymond Rhodes. On October 27, 2010, Kinney noticed that some items seemed out of place or missing, but because it was a shared space, he was uncertain whether items had been moved or if they were actually missing. The next morning, Kinney noticed that more items were missing, so he called the police to report the burglaries.
{3} Prior to Defendant's jury trial, Defendant's identical twin brother, Aaron Upchurch, was convicted of larceny, burglary, conspiracy to commit larceny, and conspiracy to commit burglary for his involvement with the aforementioned burglaries. See State v. Upchurch, No. 31,671, mem. op. (N.M. Ct. App. July 18,2012) (non-precedential). During Defendant's trial, Aaron testified that he acted alone when he committed the burglaries. Therefore, there is no dispute that the burglaries occurred. The critical issue that was tried to the jury was whether Defendant was involved in committing the burglaries and related crimes with Aaron.
{4} The jury found Defendant guilty of larceny (over $20,000), a second degree felony; burglary, a fourth degree felony; receiving stolen property (retain) (over $500), a fourth degree felony; conspiracy to commit larceny, a third degree felony; conspiracy to commit burglary, a fourth degree felony; and conspiracy to commit receiving stolen property, a fourth degree felony. Defendant now appeals each of his convictions.
{5} Defendant raises two double jeopardy issues. First, Defendant argues that his convictions for larceny and receiving stolen property violate double jeopardy. Second, Defendant argues that his multiple conspiracy convictions violate double jeopardy. In both instances, Defendant asserts that he is subject to multiple punishments for the same conduct contrary to the Fifth Amendment of the United States Constitution and Article II, Section 15 of the New Mexico Constitution.
{6} Double jeopardy claims are not subject to waiver and can be raised at any time before or after entry of a judgment. NMSA 1978, § 30-1-10 (1963). However, topreserve a claim under the state constitution, Defendant would have had to raise this claim in the district court and provide a basis to interpret the state constitution differently. See State v. Vaughn, 2005-NMCA-076, ¶¶ 6-7, 137 N.M. 674, 114 P.3d 354. Defendant did not preserve his claim under the New Mexico Constitution. Therefore, we will limit our review of Defendant's double jeopardy claims to federal double jeopardy principles. Double jeopardy is a question of law, and we apply a de novo standard of review. State v. Montoya, 2013-NMSC-020, ¶ 22, 306 P.3d 426.
{7} The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, which was made applicable to the states by the Fourteenth Amendment of the United States Constitution, "protects against multiple punishments for the same offense." Swafford v. State, 1991-NMSC-043, ¶ 6, 112 N.M. 3, 810 P.2d 1223 (internal quotation marks and citation omitted). There are two general categories of multiple punishment cases: (1) those in which a defendant is charged with violations of multiple statutes for the same conduct, referred to as "double description" cases; and (2) those in which a defendant is charged with multiple violations of the same statute based on a single course of conduct, referred to as "unit of prosecution" cases. State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61. In this case, Defendant has raised both types of claims.
{8} Defendant argues that his convictions for larceny and receiving stolen property arise from the same conduct, but under different statutes. See NMSA 1978, § 30-16-1(A) (2006) (); NMSA 1978, § 30-16-11(A) (2006) (). Therefore, this is a double description claim.
{9} Generally, we analyze double description claims under the two-part test set forth in Swafford, 1991-NMSC-043, ¶ 25. See id. (). When the conduct in question is found to be unitary there is a double jeopardy violation unless the Legislature intended to create separate punishments for the conduct found to be unitary. Id. However, this analysis is not necessary because our case law has already addressed the issue in this case—whether a person can be convicted of both stealing and receiving the same stolen property.
{10} In State v. Tapia, 1976-NMCA-042, ¶ 1, 89 N.M. 221, 549 P.2d 636, this Court addressed whether a defendant who was convicted of larceny could also be convicted of receiving stolen property by disposing of the stolen property. We held that becausestealing and disposing of stolen property are two separate actions, a defendant could be convicted of both crimes. Id. ¶¶ 1, 9-14. In reaching this conclusion, we discussed larceny and the three ways in which a defendant may be convicted of receiving stolen property: (1) receiving or acquiring possession of stolen property, (2) retaining or keeping the stolen property, or (3) disposing of stolen property. Id. ¶ 12; see § 30-16-11(A) (); UJI 14-1650 NMRA ().
{11} In Tapia, we stated that a defendant who is convicted of larceny may not be convicted of receiving stolen property if he receives or acquires possession of the same stolen property. 1976-NMCA-042, ¶ 12 (). Likewise, a defendant who is convicted of larceny may not be convicted of receiving stolen property if he retains or keeps the stolen property. Id. (). However, a defendant who commits larceny and then disposes of the stolen property may be convicted of both larceny and receiving stolen property. Id. ().
{12} Defendant contends that his convictions for larceny and receiving stolen property violate double jeopardy because he could not be both a thief of stolen property and a receiver of that same property. See id.; State v. Gleason, 1969-NMCA-054, ¶ 8, 80 N.M. 382, 456 P.2d 215 (); Territory v. Graves, 1912-NMSC-027, ¶ 9, 17 N.M. 241, 125 P. 604 (). The State, on the other hand, argues that Defendant stole the property and then disposed of the stolen property, thereby committing separate and distinct acts. See Tapia, 1976-NMCA-042, ¶¶ 1, 9-14.
{13} We do not base our holding on the argument of either Defendant or the State. In this case, the jury was instructed that in order to find Defendant guilty of receiving stolen property, the State was required to prove that Defendant "kept" the stolen property. This instruction became the law of the case. See State v. Quihones, 2011-NMCA-018, ¶ 38, 149 N.M. 294, 248 P.3d 336 (). Thus, the jury was not asked to determine whether Defendant disposed of the property. Consistent with our reasoning in Tapia, 1976-NMCA-042, ¶ 12, we hold that a thief cannot be convicted of receiving stolenproperty by retaining or keeping the stolen property, because larceny is a continuing offense. See also State v. Meeks, 1919-NMSC-015, ¶ 2, 25 N.M. 231, 180 P. 295 (). Because the jury did not make a determination that Defendant disposed of the property, and the conviction was based on the...
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