State v. Villa
| Citation | 134 N.M. 679,82 P.3d 46 |
| Decision Date | 10 October 2003 |
| Docket Number | No. 23,229.,23,229. |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Hector VILLA III, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Appellee.
John D. Cline, Zachary A. Ives, Freedman, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Albuquerque, NM, for Appellant.
Patricia A. Madrid, Attorney General, Tannis L. Fox, Special Assistant Attorney General, Santa Fe, NM, for Amicus Curiae N.M. Environment Department.
Certiorari Granted, No. 28,352, December 2, 2003.
{1} Defendant appeals his convictions for violations of the Water Quality Act (WQA) for discharging in violation of a permit and for causing or allowing another to violate a permit. In this opinion we address whether, in the absence of proof that the permit was in effect at the time of the violations, attempt to commit the violations is a lesser included offense, and whether this Court can remand for sentencing on the lesser included offense. We hold that attempt to commit a violation of the WQA is a lesser included offense in this instance, and we remand to the trial court for adjudication of guilt on attempt and resentencing. We next address whether portions of the WQA are unconstitutionally vague and hold that they are not under the particular facts of this case. We also address whether the trial court erred in refusing Defendant's tendered jury instructions and whether the trial court erred in admitting certain documentary evidence. We hold that the trial court did not err in refusing the tendered jury instructions and that any error in admitting the documentary evidence was harmless. We reverse Defendant's convictions and remand to the trial court for resentencing and affirm the trial court in all other respects.
{2} Defendant was convicted by jury verdict of eight counts of violating NMSA 1978, § 74-6-10.2(A) and (B) (1993) of the WQA. Defendant was employed by Valley By-Products (VBP), a Texas rendering plant, to provide environmental expertise and consulting. VBP regularly discharged waste on a site in southern New Mexico (the Medina site) pursuant to a discharge permit (DP-854) issued in 1992. Pursuant to the WQA and Water Quality Control Commission regulations, DP-854 was to be in effect for five years and was due to expire on October 13, 1997. The actual holder of DP-854 was Henry Medina (Mr. Medina), who originally owned the land and maintained the discharge site. DP-854 was amended in 1995 to include larger quantities of discharge and to include other substances. The letter sent by the New Mexico Environment Department (NMED) approving the 1995 modification mistakenly stated that DP-854 would expire on October 16, 2000. In April 1998 NMED sent Mr. Medina two letters. The first notified him that he was not in compliance with DP-854 and listed the areas of noncompliance. The second letter, sent several days later, informed Mr. Medina of the mistake in calculating the expiration date, informed him that the correct expiration date was November 1997, and notified him that the permit had already expired. In the same letter, NMED informed Mr. Medina that he could apply to renew the permit.
{3} Defendant was indicted for 52 violations of the WQA and was convicted of eight counts of knowingly causing or allowing another to discharge sludge from VBP in violation of DP-854 and for causing or allowing another to violate DP-854 in the failure to conduct monitoring, testing, sampling, and record keeping as required by DP-854. Defendant appeals his convictions, arguing (1) that the trial court erred in denying his motion for directed verdict because the State failed to prove an essential element of the crime, (2) that Section 74-6-10.2(B) is impermissibly vague, (3) that the trial court erred in refusing to instruct the jury on the limitations in the WQA as they pertain to DP-854, and (4) that the trial court erred in admitting certain evidence. We address each argument in order.
{4} Defendant argues that DP-854 had expired and was not in effect during the relevant period. He argues that because all of the counts had, as a predicate, the existence of DP-854, the district court erred in denying his motion for a directed verdict. But for the existence of the permit, Defendant does not contend that any other element of the offenses of which he was convicted was not adequately proved.
{5} We review the trial court's denial of a directed verdict to determine whether substantial evidence supports the charge. State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct.App.1993). The trial court denied Defendant's motion for directed verdict because it made the legal determination that the question of DP-854's validity was a question of fact for the jury to decide. We review the trial court's interpretation and application of the law de novo. State v. Roman, 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P.2d 852.
{6} Defendant was convicted of counts two through six, all of which state, in part: "[D]efendant did, in Dona Ana County, New Mexico knowingly discharge, cause or allow another to discharge an unpermitted water contaminant onto the disposal site southwest of Las Cruces, operated by Henry Medina under NMED Discharge Plan # 854 contrary to Section 74-6-10.2(A)(1)." (Emphasis added.) These violations were alleged to have occurred in August 1998. Counts fifteen through seventeen, for which Defendant was also convicted, all state in part: "[D]efendant did, in Dona Ana County, New Mexico knowingly fail to monitor, sample or report, or knowingly caused or allowed another to fail to monitor, sample or report as required by permit, NMED Discharge Plan # 854, issued pursuant to a state law or regulation, contrary to Section 74-6-10.2(A)(4)." (Emphasis added.) These violations were alleged to have occurred in February 1999, August 1999, and February 2000. Though Section 74-6-10.2(A)(1) differentiates between discharging without a permit if a permit is required and discharging in violation of any condition of a permit, Defendant was charged, in all counts of which he stands convicted, with violating a permit. Similarly, the jury instructions for counts two through six include as an element of the crime that Defendant "discharge[d] a water contaminant in violation of any condition of a permit[.]" The jury instructions for counts fifteen through seventeen include as elements of the crime that Defendant "knowingly failed to monitor, sample, or report, or knowingly caused or allowed another to fail to monitor, sample, or report as required by a permit[.]"
{7} There was evidence introduced at trial concerning the validity of DP-854. The letter from NMED approving DP-854 was issued on November 13, 1992, and stated that the approval would expire on "October [sic] 13, 1997." The 1995 modification approval letter mistakenly stated that DP-854's approval would expire on October 16, 2000. However, in a letter to Mr. Medina dated April 20, 1998, NMED admitted its inadvertent mistake in earlier stating the 2000 expiration date and informed Mr. Medina that the permit had, in fact, expired on November 13, 1997. Two NMED officials testified that it had been the consistent position of NMED that DP-854 had expired in 1997.
{8} Though there may have been confusion as to the proper expiration date of the permit due to NMED's 1995 modification letter, there is no provision in the statute or the agency regulations indicating that a modification in a discharge permit extends the actual expiration date beyond five years. NMSA 1978, § 74-6-5(H) (1999) states, "Permits shall be issued for fixed terms not to exceed five years[.]" The only exception, which may extend a new permit by two more years if initial discharging is delayed, does not apply in this case. See id. The applicable agency regulation states that "[t]he secretary shall not approve a proposed discharge plan, modification, or renewal for ... a period longer than five years[.]" 20.6.2.3109(H)(4) NMAC. The only exception in the regulation is for the same two-year extension for new discharges, which does not apply in this case. See id. During oral argument amicus NMED confirmed that permit modification never extends a permit term.
{9} The State concedes that DP-854 had "technically" expired, but urges us to consider DP-854 as a de facto permit because NMED implicitly instituted a grace period. The State argues that all of the parties considered that DP-854 was an active permit and acted accordingly. The State also points out that NMED took no administrative action on the permit to contravene the continued efficacy of the permit during the time of the alleged offenses.
{10} Due process requires that the State must prove every element of an offense beyond a reasonable doubt. State v. Brown, 1996-NMSC-073, ¶ 31, 122 N.M. 724, 931 P.2d 69. We can determine no legal basis for holding that DP-854 was a valid permit at the time Defendant committed the acts for which he was convicted. Defendant, the State, and NMED all now agree that DP-854 expired on November 13, 1997, as a matter of law. Since Defendant was charged with violating a permit, and the jury was charged to consider violation of a permit as an element of the offenses, Defendant's convictions for violating the permit cannot stand. Consequently, we hold that, under the limited circumstances of this case in which the permit was technically not in effect, there was insufficient evidence to support the charges. We must therefore reverse Defendant's convictions. We reiterate that, in all other respects, apart from the existence of a permit, there was sufficient evidence of each and every element of the crimes on which the jury convicted, and Defendant does not contend otherwise.
{11}...
To continue reading
Request your trial
-
State v. Brown, 25863.
...day in court and his guilt of lesser included offense is implicit and part of jury's verdict on greater offense); State v. Villa, 134 N.M. 679, 82 P.3d 46, 53-55 (Ct.App.2003) (following Shields, supra, to hold that sentencing remand may be proper even though lesser included offense was not......
-
State v. Greenwood
...to straddle Defendant with any continuing responsibility based on an expired contract. See State v. Villa, 2003–NMCA–142, ¶ 10, 134 N.M. 679, 82 P.3d 46 (holding that there was insufficient evidence to charge the defendant with violation of a permit when the permit was technically not in ef......
-
State v. Villa
...because the permit at issue-the existence of which was an element of each offense-had expired. State v. Villa, 2003-NMCA-142, ¶ 10, 134 N.M. 679, 82 P.3d 46. We affirm the Court of Appeals' holding on this issue. The Court of Appeals, however, remanded to the district court to enter judgmen......
-
State v. Greenwood
...to straddle Defendant with any continuing responsibility based on an expired contract. See State v. Villa, 2003-NMCA-142, ¶ 10, 134 N.M. 679, 82 P.3d 46 (holding that there was insufficient evidence to charge the defendant with violation of a permit when the permit was technically not in ef......