State v. Wynne

• Citation: 1988 NMCA 106,767 P.2d 373,108 N.M. 134
• Decision Date: 06 December 1988
• Docket Number: No. 10353,10353
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jacquelyn WYNNE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 373

767 P.2d 373

108 N.M. 134

STATE of New Mexico, Plaintiff-Appellee, v. Jacquelyn WYNNE, Defendant-Appellant.

No. 10353.

Court of Appeals of New Mexico.

Dec. 6, 1988.

Certiorari Denied Jan. 10, 1989.

[108 N.M. 135] Hal Stratton, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

DONNELLY, Chief Judge.

Defendant appeals from convictions for conspiracy to traffic by manufacture of a controlled substance and conspiracy to commit racketeering. We discuss defendant's claims of error as to: (1) denial of change of venue; (2) sufficiency of the evidence to support the convictions; (3) merger of the offenses of conspiracy to traffic and conspiracy to racketeer; (4) denial of a requested instruction; and (5) admission of documentary evidence. We affirm in part and reverse in part.

Defendant and three other individuals were arrested on charges involving the manufacture of methamphetamine or phenyl-2-propanone (a precursor of methamphetamine). Defendant was charged with and subsequently convicted for conspiracy to traffic a Schedule II controlled substance and conspiracy to commit racketeering. Defendant received consecutive sentences for these convictions and appeals each of her convictions and the sentences imposed thereon.

I. REQUEST FOR CHANGE OF VENUE

Defendant contends the trial court erred in denying her motion for change of venue. Defense counsel, after orally requesting a change of venue because of extensive media coverage, agreed to wait until the voir dire of prospective jurors in order to determine if an impartial jury could be selected. During jury selection, the trial court inquired of the prospective jury panel whether anyone had heard about the case or the incident giving rise to the charges against defendant. Ten members of the prospective jury panel indicated that they had some knowledge of the case, and each was questioned separately in chambers in the presence of the judge, defendant, and counsel. Following the questioning of the prospective jurors, the trial court found no basis to excuse these jurors for cause or to grant the motion to change venue.

In examining this issue, the pertinent inquiry is whether defendant properly presented and preserved it for appellate review. The record does not reflect that defendant filed a written motion for change of venue supported by an affidavit, as required by NMSA 1978, Section 38-3-3 (Repl.Pamp.1987), nor has defendant presented evidence indicating that she was deprived of a fair and impartial jury. The burden of proof to establish a basis for change of venue is on the movant. See State v. Montoya, 80 N.M. 64, 451 P.2d 557 (Ct.App.1968). Mere arguments of counsel, unsupported by evidence, do not constitute evidence in support of a motion, see State v. Jacobs, 102 N.M. 801, 701 P.2d 400 (Ct.App.1985); State v. Foster, 83 N.M. 128, 489 P.2d 408 (Ct.App.1971), nor did defendant make a written request for findings of fact and conclusions of law or tender specific findings and conclusions pursuant to SCRA 1986, 1-052(B)(1)(f). See State v. Fernandez, 56 N.M. 689, 248 P.2d 679 (1952) (denial of motion for change of venue which was rendered without submission of findings of fact is not open to appellate review); see also State v. Mosier, 83 N.M. 213, 490 P.2d 471 (Ct.App.1971). Based on the record before us, there is no indication that the trial court abused its discretion in denying the oral request for change of venue. See Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969) (fact of extensive media coverage does not necessarily establish grounds for a change of venue); McCauley v. Ray, 80 N.M. 171, 453 P.2d 192 (1968).

II. SUFFICIENCY OF EVIDENCE

Defendant challenges the sufficiency of the evidence underlying each of her convictions. Defendant also argues that her conviction for conspiracy to commit racketeering was not grounded on proper proof of an "enterprise" as required by this state's Racketeering Act, NMSA 1978, Sections 30-42-1 through -6 (Repl.Pamp.1987). Section 30-42-4(C) provides that "[i]t is unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs by engaging in a pattern of racketeering activity." This alleged absence of the "enterprise" element is also a basis for defendant's claim that a directed verdict should have been entered on this charge.

In pertinent part, the definition of "enterprise" contained in Section 30-42-3(C) of the Racketeering Act, includes "any group of individuals associated in fact although not a legal entity, and includes illicit as well as licit entities[.]" Defendant does not deny the fact of her association with others who manufactured methamphetamine, nor on appeal has she sought to refute or discredit the testimony of Israel de la Rosa. Israel de la Rosa was an admitted participant in the manufacturing operation and a friend of defendant. He testified that defendant was the manager of the manufacturing business (although defendant's boyfriend was the actual "cook" and was "running the show") and that defendant purchased plane tickets, traveled to other localities in order to obtain materials used in the manufacturing process, and was present when the methamphetamine was made. Also, Laura de la Rosa testified that defendant was present during drug manufacturing operations and assisted in the process. The testimony of these witnesses provides substantial evidence to support the finding that defendant did associate in an "enterprise" as defined in the Racketeering Act.

Defendant, relying in part upon United States v. Anderson, 626 F.2d 1358 (8th Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981), argues that an "enterprise" as used in the racketeering statute exists only when there is an association above and beyond the acts which form the pattern of racketeering activity. Defendant also asserts there was no evidence of her association in this case other than that involved in the manufacture of methamphetamine and thus no evidence of an "enterprise." Defendant pursues this position, despite conceding that Section 30-42-3(C) expressly provides that the term "enterprise" encompasses illicit entities, including any group of individuals associated in fact, as well as licit entities. The interpretation which defendant urges us to adopt in defining "enterprise" appears contrary to the clear import of the Racketeering Act. See Secs. 30-42-1 to -6.

The interpretation of the term "enterprise" urged by defendant, although recognized in some jurisdictions, is the minority view. A number of other circuits have reached a contrary result. United States v. Mazzei, 700 F.2d 85 (2d Cir.), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1304 (1983); United States v. Cagnina, 697 F.2d 915 (11th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983) (citing United States v. Griffin, 660 F.2d 996 (4th Cir.1981), cert. denied sub nom., Garonzik v. United States, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 313 (1982)); United States v. Qaoud, 777 F.2d 1105 (6th Cir.), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 899 (1985); United States v. Diecidue, 603 F.2d 535 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). We align ourselves with these authorities as to this issue.

Anderson, relied on by defendant, noted that its opinion placed it in "direct opposition to the views of the Second, Fifth, Seventh, and Ninth Circuits" in construing the meaning of the term "enterprise." United States v. Anderson, 626 F.2d at 1372. New Mexico's Racketeering Act has been held constitutional, see State v. Johnson, 105 N.M. 63, 728 P.2d 473 (Ct.App.1986), cert. denied, --- U.S. ----, 107 S.Ct. 2185, 95 L.Ed.2d 841 (1987), and the Act expressly includes any group of individuals associated in fact, as well as illicit entities in its definition of "enterprise." The court in Johnson found that New Mexico's Racketeering Act was patterned after the federal statute, 18 U.S.C., Sections 1960 to 1968, (1983) (RICO) and because of the similarity of the two enactments, federal decisions interpreting the federal RICO Act are instructive. We find no contravention of constitutional double jeopardy protections in applying the majority rule.

Citing Mazzei, the state contends that defendant's view of what constitutes an "enterprise" for purposes of the racketeering statute would insulate from racketeering prosecution those enterprises which exist solely for the purpose of engaging in the two or more crimes constituting the pattern of racketeering. The state argues that the scope of the New Mexico statute is sufficient to encompass defendant's activities. We agree.

The record indicates substantial evidence to support the jury's determination that defendant agreed to participate with others in an enterprise to traffic by manufacture of a controlled substance and also that there was substantial evidence indicating the existence of an "enterprise" as required under the Racketeering Act. See generally State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978) (in reviewing a judgment of conviction, the appellate court views the evidence in a light most favorable to the verdict, resolving all conflicts therein, and viewing all reasonable inferences flowing therefrom in the light most favorable to the judgment); see also Samora v. Bradford, 81 N.M. 205, 465 P.2d 88 (Ct.App.1970) (substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion). Thus, we find no merit to defendant's claim that she was deprived of due process by the trial court's failure to direct a verdict on the conspiracy to commit racketeering charge.

Defendant also challenges the sufficiency of the...