Tunnell v. State, 14664
| Decision Date | 02 February 1983 |
| Docket Number | No. 14664,14664 |
| Citation | 659 P.2d 898,1983 NMSC 13,99 N.M. 446 |
| Parties | Cody Ray TUNNELL, Petitioner, v. STATE of New Mexico, Respondent. |
| Court | New Mexico Supreme Court |
The Court of Appeals was asked to decide on interlocutory appeal the issue of whether the New Mexico gross receipts tax may be properly included within the value of an item of property alleged to have been shoplifted. This is a question of first impression in New Mexico.
The Court of Appeals, 659 P.2d 902, held that whether the New Mexico gross receipts tax should be included in the market value of the item is a factual issue for the jury to determine under the evidence presented in each case. We granted certiorari and reverse the Court of Appeals and the trial court.
Defendant was arrested and charged with shoplifting merchandise having a value of more than $100, in violation of Section 30-16-20(B)(2), N.M.S.A. 1978. Prior to trial, defendant filed a motion to dismiss the charge of fourth degree shoplifting on the ground that, as a matter of law, he was not guilty of the alleged criminal offense because the item of property alleged to have been taken had a value of less than $100 if the gross receipts tax was not added to the advertised price of the merchandise. The State and defendant agreed to the following stipulated facts:
1. The marked price of the shoplifted item was $99.99, exclusive of sales tax.
2. With sales tax included, the price of the shoplifted item was $103.95.
3. Magistrate Judge Donald Price bound the defendant over on shoplifting, Fourth Degree, on the basis that market value includes sales tax.
Section 30-16-20(B)(1), N.M.S.A. 1978, provides that a person convicted of shoplifting merchandise having a value of not more than $100 is guilty of a petty misdemeanor. Section 30-16-20(B)(2) provides that shoplifting of property with a value of over $100, but not more than $2,500, constitutes a fourth degree felony.
Defendant contends that the market value of the merchandise cannot include the New Mexico gross receipts tax since shoplifting of property is not a taxable event. Defendant also contends that permitting the tax to be included in the value of the property runs counter to the established principle of law that criminal statutes should be strictly construed, and further, that since some counties and municipalities levy a gross receipts tax while others do not, the penalty imposed for shoplifting merchandise varies according to the locality where the offense occurred, constituting an intrusion upon the prerogative of the Legislature to set criminal penalties.
In view of the result we reach, it is only necessary for us to consider defendant's first contention, that the...
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...evidence on the value of an item." State v. Tunnell, 99 N.M. 450, 659 P.2d 902 (1982), reversed on other grounds, 99 N.M. 446, 659 P.2d 898, 904 (1983); City of Albuquerque v. Martinez, 93 N.M. 704, 604 P.2d 842, 843 (1979). "In a shoplifting case, evidence that merchandise is offered for s......
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...See SCRA 1986, 14-1602. "Market value" is the equivalent of "retail price" and generally is a question of fact. Tunnell v. State, 99 N.M. 446, 659 P.2d 898 (1983). Mr. Smith's testimony was tantamount to an owner's opinion as to the value of the property in its condition at trial and also a......
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