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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 35,798 5 LISA ASHCRAFT, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Michael E. Martinez, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM
11 for Appellee
12 Lisa Torraco 13 L. Helen Bennett 14 Albuquerque, NM
15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge.
1 {1} Defendant appeals her convictions for forgery and embezzlement. We issued 2 a Notice of Proposed Summary Disposition proposing to affirm, and Defendant has 3 responded with a timely memorandum in opposition, which we have duly considered. 4 Because we remain unpersuaded that our initial proposed disposition was incorrect, 5 we affirm. 6 DISCUSSION 7 {2} Defendant continues to argue that the district court erred in refusing her 8 tendered jury instructions on forgery because the given instructions added the element 9 of “deceit,” which is not contained in the forgery statute. [MIO 2-5] We review this 10 issue de novo. See State v. Lucero, 2010-NMSC-011, ¶ 11, 147 N.M. 747, 228 P.3d 11 1167 (stating that the appellate court reviews the propriety of jury instructions de novo 12 as a mixed question of law and fact). 13 {3} The given jury instructions on forgery followed UJI 14-1643 NMRA (setting 14 out the essential elements of forgery and requiring a finding that “[a]t the time, the 15 defendant intended to injure, deceive or cheat [the victim] or another”). The 16 instructions stated in part that the jury had to find beyond a reasonable doubt that 17 Defendant “intended to injure, deceive or cheat Innerwork Psychotherapy & 18 Counseling and/or Eva Silva and/or another.” [RP 326-382] Defendant argues that this 19 instruction is inconsistent with the language of the forgery statute because it adds the
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1 perjorative terms “deceive” and “cheat,” which are not part of the forgery statute. 2 [MIO 2-4] 3 {4} We disagree. NMSA 1978, Section 30-16-10(A)(1) (2006) defines forgery as 4 “falsely making or altering any signature to, or any part of, any writing purporting to 5 have any legal efficacy with intent to injure or defraud.” The “intent to defraud” 6 means “intent to deceive or cheat.” See UJI 14-1643 Comm. Comment. (“The intent 7 to defraud is the same as the element in the crime of fraud, the intent to deceive or 8 cheat.”); see also State v. Curry, 2002-NMCA-092, ¶ 11, 132 N.M. 602, 52 P.3d 974 9 (stating that fraudulent intent is defined “as the intent to cheat or deceive”). The jury 10 instruction therefore defines the term “defraud” in accordance with its meaning. We 11 therefore reject Defendant’s argument that the jury instructions on forgery was 12 inconsistent with the forgery statute or that it changed the elements of the offense. See 13 State v. Green, 1993-NMSC-056, ¶ 11, 116 N.M. 273, 861 P.2d 954 (discussing 14 forgery and other statutes requiring that the defendant have intent to defraud the 15 victim and stating that where fraudulent intent is a statutory element of the offense the 16 uniform jury instructions require that the jury be instructed “that the defendant 17 intended to deceive or cheat the victim” (internal quotation marks omitted)). 18 {5} Defendant next argues that the district court erred in denying her motion to 19 dismiss for a speedy trial violation. [MIO 5-10] New Mexico has adopted the United 20 States Supreme Court’s balancing test set forth in Barker v. Wingo, 407 U.S. 514
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1 (1972) in analyzing a speedy trial claim. See State v. Fierro, 2012-NMCA-054, ¶ 33, 2 278 P.3d 541. Under the Barker framework, courts weigh “ ‘the conduct of both the 3 prosecution and the defendant’ under the guidance of four factors: (1) the length of 4 the delay; (2) the reasons for the delay; (3) the timeliness and manner in which the 5 defendant asserted his speedy trial right; and (4) the particular prejudice that the 6 defendant actually suffered.” State v. Smith, 2016-NMSC-007, ¶ 58, 367 P.3d 420 7 (internal quotation marks and citation omitted)). “In considering each of the factors, 8 we defer to the district court’s factual findings but review de novo the question of 9 whether [the d]efendant’s constitutional right to a speedy trial was violated.” State v. 10 Montoya, 2011-NMCA-074, ¶ 9, 150 N.M. 415, 259 P.3d 820. 11 {6} Defendant continues argue that this was a simple case, rather than a case of 12 intermediate complexity as the district court found. [RP 200-201; MIO 7] Defendant 13 argues that the only issues in this case were whether she had permission to sign the 14 checks and whether she signed the checks with the requisite mens rea, and did not 15 involve expert or scientific evidence. [MIO 7-8] However, the district court found the 16 case to be one of intermediate complexity based on the fact that trial was projected to 17 last five days, there were numerous counts to try, and the case involved a five-year 18 period of embezzlement and a two year period of forgeries. [RP 200-201] We agree 19 that this is sufficient to establish that the case was of intermediate complexity. See 20 State v. Wilson, 2010-NMCA-018, ¶ 24, 147 N.M. 706, 228 P.3d 490 (“Cases of
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1 intermediate complexity . . . involve numerous or relatively difficult criminal charges 2 and evidentiary issues, numerous witnesses, expert testimony, and scientific 3 evidence.”); see also State v. Coffin, 1999-NMSC-038, ¶ 57, 128 N.M. 192, 991 P.2d 4 477 (“[W]e have determined that the [district] court is in the best position to determine 5 the complexity of a case[.]”); State v. Flores, 2015-NMCA-081, ¶ 6, 355 P.3d 81 6 (stating that the appellate courts give deference to the district court as to the level of 7 complexity of the case). The delay in this case therefore became presumptively 8 prejudicial after fifteen months, not nine months as Defendant argues. [MIO 7] See 9 State v. Montoya, 2015-NMCA-056, ¶ 15, 348 P.3d 1057 (stating that the threshold 10 to establish presumptive prejudice in a case of intermediate complexity is fifteen 11 months). 12 {7} Defendant also again asserts that the delay was due to the State’s failure to 13 provide discovery. [MIO 7-9] In our notice of proposed summary disposition we 14 proposed to reject this argument because the district court found that no discovery 15 violation had occurred, and Defendant had not explained how this ruling was in error. 16 [RP 206-207] See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 17 1211 (recognizing that there is a presumption of correctness in the rulings of the trial 18 court, and the party claiming error bears the burden of showing such error). In her 19 memorandum in opposition, Defendant merely reasserts that significant delay in this
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1 case was due to discovery violations by the State. [MIO 7-9] For the reasons set forth 2 in our proposed notice, we reject this argument. We therefore agree with the district 3 court’s determination that this five month period weighed neutrally. See State v. 4 Taylor, 2015-NMCA-012, ¶ 11, 343 P.3d 199 (weighing neutrally a period of delay 5 when the case “was progressing in a normal fashion”). For these reasons, and those 6 stated in our notice of proposed summary disposition, we believe that Defendant’s 7 right to a speedy trial was not violated. See State v. Samora, 2013-NMSC-038, ¶ 27, 8 307 P.3d 328 (stating that where the length of delay, reason for the delay, and 9 assertion of the right factors do not weigh heavily in the defendant’s favor, the 10 defendant must show particularized prejudice). 11 {8} For the foregoing reasons, we affirm the district court. 12 {9} IT IS SO ORDERED.
13 _______________________________ 14 M. MONICA ZAMORA, Judge
15 WE CONCUR:
16 _________________________________ 17 STEPHEN G. FRENCH, Judge
18 _________________________________ 19 HENRY M. BOHNHOFF, Judge