State v. Akers

• Court: New Mexico Court of Appeals
• Decided: February 21, 2011
• Docket: 29,064
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 29,064

10 DARRELL AKERS,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 13 Frank K. Wilson, District Judge

14 Gary K. King, Attorney General 15 Ann M. Harvey, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee

18 Law Offices of Nancy L. Simmons, P.C. 19 Nancy L. Simmons 20 Albuquerque, NM

21 for Appellant

22 MEMORANDUM OPINION

23 WECHSLER, Judge.

24 Defendant appeals the judgment and suspended sentence of the district court 1 adjudicating him guilty of fraud over $250, a fourth degree felony, after a jury trial.

2 He contends on appeal that the evidence was insufficient to support his conviction.

3 When reviewing for sufficiency of the evidence, we determine whether

4 substantial evidence of either a direct or circumstantial nature exists to support the

5 verdict beyond a reasonable doubt as to each element essential for conviction. State

6 v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988); State v. Kent, 2006-

7 NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86. We view the evidence in the light

8 most favorable to the verdict, resolving all conflicts and indulging all reasonable

9 inferences in favor of the verdict. State v. Apodaca, 118 N.M. 762, 766, 887 P.2d

10 756, 760 (1994).

11 “Fraud consists of the intentional misappropriation or taking of anything of

12 value that belongs to another by means of fraudulent conduct, practices or

13 representations.” NMSA 1978, § 30-16-6(A) (2006). The district court instructed the

14 jury that to convict Defendant of fraud, the State was required to prove the following

15 elements beyond a reasonable doubt: (1) Defendant, “by words or conduct, made a

16 promise he had no intention of keeping, intending to deceive or cheat Darlene

17 Lang[];” (2) “[b]ecause of the promise,” and Lang’s “reliance on it,” Defendant

18 obtained $2500 (3) that did not belong to him.

19 Defendant contends that the evidence of guilt was insufficient because the

2 1 evidence did not demonstrate his criminal intent to defraud Lang when he promised

2 to make the repairs. Specifically, Defendant contends that the State failed to present

3 evidence that at the time he received the $2500 check, he did not intend to purchase

4 and install the heating/cooling unit. However, when we review the evidence

5 supporting the jury’s verdict under our standard of review, we reach the opposite

6 conclusion.

7 Defendant had been performing duct, heating, and cooling work on a house

8 being built by Lang and Michael White. He had been paid for portions of the duct

9 work. Lang and White testified that Lang gave Defendant a check in the amount of

10 $2500 to purchase the heating and cooling units for the house. Lang wrote “‘HVAC

11 equipment’” on the check. She left the payee portion of the check blank because she

12 did not know if the check should have been made payable to Leonard Meeks,

13 Defendant’s employer, or whether Defendant was planning to purchase the equipment

14 in another manner. Lang did acknowledge that she understood that Defendant was not

15 performing the work for Meeks but rather as a job on his own. Both Lang and White

16 testified that Defendant never installed the heating and cooling units and never

17 returned the money. Lang stated that the check was cashed the same day as she

18 delivered it to Defendant and that Defendant’s name had been inserted as the payee

19 of the check. White testified that Defendant’s family contacted White to inform him

3 1 that Defendant had been arrested in California. Defendant’s teenage son offered to

2 perform the work. The son was not licensed, and the district attorney’s office had

3 advised White and Lang not to have further contact with Defendant’s family.

4 From this evidence, the jury could reasonably have concluded that Defendant

5 promised that he would purchase and install the heating and cooling equipment, did

6 not intend to do so, and obtained the check from Lang because she relied on his

7 promise. Indeed, the jury could reasonably infer the necessary intent to deceive from

8 Defendant’s actions of immediately cashing the check, leaving for California, failing

9 to notify Lang and White, and failing to purchase the equipment, perform the work or

10 return the money. Although Defendant’s son offered to perform the work, he did so

11 after Lang and White had notified the authorities. The jury had the prerogative to

12 reject Defendant’s interpretation of the facts. Sutphin, 107 N.M. at 131, 753 P.2d at

13 1319.

14 We note that Defendant cites the Louisiana cases of State v. Hoffer, 420 So. 2d

15 1090 (La. 1982), and State v. Saucier, 485 So. 2d 584 (La. Ct. App. 1986), in support

16 of his position. Saucier relies on Hoffer. Saucier, 485 So. 2d at 586. As addressed

17 in Hoffer, however, a statute in Louisiana requires that when circumstantial evidence

18 is used to convict of a crime, “it must exclude every reasonable hypothesis of

19 innocence.” Hoffer, 420 So. 2d at 1092 n.6. In New Mexico, circumstantial evidence

4 1 is sufficient to support a guilty verdict, particularly as to the issue of intent. See State

2 v. McGee, 2004-NMCA-014, ¶ 15, 135 N.M. 73, 84 P.3d 690.

3 CONCLUSION

4 There was sufficient evidence to support Defendant’s conviction. We affirm.

5 IT IS SO ORDERED.

6 ______________________________ 7 JAMES J. WECHSLER, Judge

8 WE CONCUR:

9 __________________________________ 10 CELIA FOY CASTILLO, Chief Judge

11 __________________________________ 12 LINDA M. VANZI, Judge