State v. Windsor
| Decision Date | 27 March 2012 |
| Docket Number | NO. 29,440,29,440 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JERROD WINDSOR, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 VALENCIA COUNTY
Gary K. King, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
for Appellee
Jacqueline Cooper, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
A jury convicted Defendant Jerrod Windsor of unlawful issuance of a worthless check, contrary to NMSA 1978, Section 30-36-4 (1963). Defendant appeals, contesting the denial of his motions for a continuance and for a new trial, raising evidentiary issues, and challenging the sufficiency of the evidence. We affirm.
Because this is a memorandum opinion and the parties are familiar with the factual and procedural background, we do not provide a detailed summary herein. The factual information relevant to our conclusions will be discussed in connection with each issue addressed by this Court and is briefly summarized as follows.
Defendant contracted with Brad Hall & Associates (BHA) for the periodic delivery of gas to his gas station. Under the terms of the contract, Defendant was obligated to pay for the gas within ten days of delivery. On March 31, 2006, Defendant wrote check number 4157 to BHA for $20,327.98 to pay BHA's invoice number 782419. When BHA attempted to cash the check, it was returned due to a lack of sufficient funds. After BHA's attempts to obtain payment failed, BHA referred the matter to the police.
Defendant makes five arguments: (1) that the district court erred in denying his motion for a continuance, (2) that there was insufficient evidence to support his conviction, (3) that the court erred in denying his motion for a new trial, (4) that the court abused its discretion in sustaining several of the State's objections at trial, and (5) that the court abused its discretion in admitting a settlement agreement into evidence. We address each argument in turn.
Defendant first argues that the district court abused its discretion when it denied his request for a continuance in order to obtain Defendant and BHA's banking records. We review the grant or denial of a continuance for abuse of discretion. State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20.
There are a number of factors that trial courts should consider in evaluating a motion for continuance, including the length of the requested delay, the likelihood that a delay would accomplish the movant's objectives, the existence of previous continuances in the same matter, the degree of inconvenience to the parties and the court, the legitimacy of the motives in requesting the delay, the fault of the movant in causing a need for the delay, and the prejudice to the movant in denying the motion.
Id. The district court abuses its discretion when "the denial of the motion for continuance does not follow from a logical application of these factors." Id.
Defendant filed his motion for continuance on August 15, 2008, one and one half years after he was indicted and twelve days before trial. In it, he claimed that newdocuments caused him to believe that the check had been paid "in April of 2006, by way of two bank wire transfers." Defendant stated that "additional time is necessary for [Defendant] to obtain [BHA's] full and complete banking records" in order to determine whether BHA received the two wire transfers in question. Defendant asked for a continuance that would transfer his case "from the current docket and to allow this case to proceed to trial on the next trial docket." However, attached to Defendant's motion were various affidavits and filings from a related civil case that showed that Defendant and his expert were already in possession of the Wells Fargo statements.
Under these facts, several of the Torres factors weigh heavily against Defendant. Most significantly, we question the legitimacy of the request. The affidavits attached to the motion indicate that Defendant's expert possessed and had reviewed the documents in question. Defendant's expert confirmed this at trial. Granting the continuance would therefore not have aided Defendant, because Defendant already had access to the documents. For the same reasons, the fault of the delay would appear to be Defendant's. Defendant's expert appears to have had the records for almost an entire year before Defendant requested the continuance. Yet Defendant waited until twelve days before trial to request the continuance. Underthese circumstances we find no abuse of discretion. The denial of the motion for a continuance followed from a reasonable application of the factors in Torres.
Defendant argues that there was insufficient evidence to support his convictions because (1) "the check was not issued as part of a contemporaneous transaction," and (2) that evidence of wire transfers "shows that he did not have the requisite intent to defraud."
We begin with Defendant's contemporaneous transaction argument. Defendant bases this argument on our holdings in State v. Platt, 114 N.M. 721, 845 P.2d 815 (Ct. App. 1992) and State v. Cruz (Cruz I), 2010-NMCA-011, 147 N.M. 753, 228 P.3d 1173, rev'd, Cruz II, 2011-NMSC-038, 150 N.M. 548, 263 P.3d 890. In those cases, this Court read into Section 30-36-4 a requirement that the bad check be passed as part of a "contemporaneous transaction." See Cruz I, 2010-NMCA-011, ¶¶ 38-40; Platt, 114 N.M. at 723, 845 P.2d at 817. Our Supreme Court subsequently granted certiorari on Cruz, 2010-NMCERT-001, 147 N.M. 674, 227 P.3d 1056, and we stayed this case pending the outcome of that appeal.
The Supreme Court has now rejected the "contemporaneous transaction" requirement set forth in Platt and followed by this Court in Cruz. 2011-NMSC-038, ¶ 39. The Court held that the only limitation on Section 30-36-4 was that "there mustbe an exchange, a quid pro quo of some kind, involving 'anything of value.'" Cruz II, 2011-NMSC-038,¶ 35. In dicta, the Court suggested that perhaps only bad checks given as gifts would escape the scope of Section 30-36-4. Cruz II, 2011-NMSC-038, ¶ 35. In the instant case, check number 4157 was written in exchange for a shipment of gas BHA had delivered to Defendant. This is undoubtedly a sufficient exchange to fall within Section 30-36-4. Accordingly, Defendant's contemporaneous exchange arguments are unavailing.
We proceed to Defendant's second sufficiency argument: that his conviction cannot stand because the evidence of two wire transfers shows that he made good on check number 4157. "[T]he test to determine the sufficiency of evidence in New Mexico . . . is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). "In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We do not substitute our judgment for that of the jury. State v. Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656. "Contrary evidence supporting acquittal does not providea basis for reversal because the jury is free to reject Defendant's version of the facts." State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.
Defendant's argument regarding the wire transfers asks us to accept a theory which he argued below and which was rejected by the jury. According to Defendant, evidence of two wire transfers, one for $5000 and one for $15,587.08, shows that he made good on check number 4157, which was for $20,327.98. But there was sufficient evidence to support the jury's conclusion to the contrary.
The contested element in this case is intent. The State was required to prove that Defendant "knew that there were insufficient funds in the account" to cover check number 4157 and that he "intended to deceive or cheat someone by use of the check." The State introduced Defendant's bank records to show that, during the relevant period, Defendant never had sufficient funds in his account to make good on check number 4157. Logan Hall testified Defendant originally said he would pay the check, but that "a short time later he determined he wasn't going to pay the check." He testified that Defendant had "claimed to make multiple transfers into our accounts, none of which we ever received." Rather than pay the check, Defendant eventually sent a letter to BHA demanding that BHA pay Defendant $50,000 in return for Defendant's promise not to sue. The letter never mentioned having made payment via the wire transfers. Furthermore, the letter also indicated that Defendant had tried tomake a deposit into BHA's account but had discovered that BHA's Wells Fargo account was closed. Hall testified that BHA maintained a Wells Fargo account and had never closed it.
In support of his theory that he had already paid for check number 4157 via the wire transfers, Defendant presented testimony from his expert intended to show that the two wire transfers were received by BHA as payment for check number 4157. However, the wire transfers did not add up to the amount on check ...
To continue reading
Request your trial