State v. Cearley

2004 NMCA 079, 92 P.3d 1284, 135 N.M. 710
CourtNew Mexico Court of Appeals
DecidedJuly 14, 2004
Docket23,707
StatusPublished
Cited by8 cases

This text of 2004 NMCA 079 (State v. Cearley) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cearley, 2004 NMCA 079, 92 P.3d 1284, 135 N.M. 710 (N.M. Ct. App. 2004).

Opinion

OPINION

PICKARD, Judge.

{1} This case presents the question of whether an inauthentic document that has been presented to opposing counsel during discovery in a civil matter and that has no legal efficacy apart from its potential evidentiary value can be the subject of a forgery prosecution. Interpreting the forgery statute, NMSA 1978, § 30-16-10 (1963), and surveying pertinent case law, we hold that it cannot. Accordingly, we reverse Defendant’s conviction for forgery. Defendant also appeals his conviction for attempted criminal fraud, contrary to NMSA 1978, § 30-16-6 (1987), arguing that (1) Defendant did not have the required specific intent, (2) Defendant had a valid defense of impossibility, (3) the State did not show reliance as the fraud statute requires, (4) the State did not show that Defendant attempted to take something of value as the fraud statute requires, and (5) the State cannot prosecute attempted fraud for actions that take place in the context of a judicial proceeding. Finding no merit in these arguments, we affirm Defendant’s conviction for attempted fraud.

FACTS AND PROCEEDINGS

{2} Defendant was involved in a child support dispute in which his ex-wife contended that Defendant owed $3584 in back payments. Defendant was ordered to appear at a hearing to show cause why he should not be cited for contempt of court for failing to pay child support. Defendant argued that he had fulfilled his child support obligation by issuing checks to his ex-wife, but that she had never deposited them. In a hearing before the district court, Defendant’s attorney told the court that he was prepared to offer the non-carbon records (NCRs) of twelve child support cheeks that Defendant had written to his ex-wife. Ex-wife’s attorney responded that he would contact the bank directly and obtain official documentation of any payments made.

{3} After the hearing, Defendant’s attorney delivered to ex-wife’s attorney photocopies of NCRs that indicated the twelve payments to ex-wife, despite the fact that ex-wife’s attorney had not wanted them. Ex-wife’s attorney contacted the bank to obtain information on the checks that matched the check numbers on the photocopied NCRs. Ex-wife’s attorney discovered that the original checks with those numbers had been made out to different payees and for different amounts, meaning that Defendant had altered the NCRs in order to make the photocopies. Ex-wife’s attorney turned over the photocopies to the police.

{4} Defendant was charged with twelve counts of forgery, contrary to Section 30-16-10. He was also charged with one count of attempted fraud over $2500, contrary to Section 30-16-6, based on the notion that he made misrepresentations with the intent to defraud his ex-wife of the amount of the child support owed.

{5} Defendant filed a motion to quash and dismiss the information, which the district court denied. Thereafter, Defendant entered a conditional plea of no contest to one count of forgery and one count of attempted fraud over $2500. The plea reserved Defendant’s “right to appeal all motions heard by [the] trial court.” Defendant now appeals from the judgment and sentence entered pursuant to the plea agreement.

DISCUSSION

1. Preservation

{6} Before we begin our discussion of the merits of the appeal, we address the issue of preservation in light of Defendant’s apparent attempt to rely on arguments made at the calendaring stage without further briefing. Defendant briefed only the issues relating to the attempted fraud conviction. As to the forgery conviction, his brief asks only “to reverse his conviction for [florgery for the reasons stated in the Summary Calendar Notice and in his Docketing Statement.”

{7} Once a ease is assigned to the general calendar, the appellant must brief all the issues that he or she wishes the court to review. The docketing statement alone does not provide a basis for review of an issue, and issues listed in the docketing statement but not briefed are deemed abandoned. State v. Gonzales, 111 N.M. 590, 593-94, 808 P.2d 40, 43-44 (Ct.App.1991) (detailing the requirements of the brief in chief), modified on other grounds by State v. Dominguez, 115 N.M. 445, 450, 853 P.2d 147, 152 (Ct.App. 1993). Similarly, once the ease has been assigned to the general calendar, previous calendar notices are a nullity and the issues raised by those notices are abandoned unless they are briefed. Id. at 594, 808 P.2d at 44.

{8} In the present case, Defendant preserved several issues in the district court through his motion to dismiss, including his argument that the photocopies of the NCRs did not have legal efficacy, as the forgery statute requires. On appeal, Defendant included the legal efficacy issue in his docketing statement, which we cited as the basis for proposed summary reversal of the forgery conviction in our first calendar notice. When the case was subsequently placed on the general calendar and Defendant submitted his brief in chief to this Court, he did not include the legal efficacy issue. Instead, he attempted to bootstrap the arguments made at the calendaring stage into his appeal with the statement quoted above.

{9} Because calendaring notices become a nullity once a case is assigned to the general calendar, this approach to briefing could have resulted in Defendant’s abandonment of the legal efficacy argument. Gonzales, 111 N.M. at 593-94, 808 P.2d at 43-44. However, this Court can review a question not preserved below if it involves fundamental error or fundamental rights of a party. Rule 12 — 216(B)(2) NMRA 2004; State v. Stein, 1999-NMCA-065, ¶ 9, 127 N.M. 362, 981 P.2d 295. “Fundamental error only applies in exceptional circumstances when guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand.” State v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066. We have held that when a defendant is convicted of an offense based on facts that do not meet the definitions of the elements required for that offense, this constitutes fundamental error. See Stein, 1999-NMCA-065, ¶¶8-9, 127 N.M. 362, 981 P.2d 295 (allowing for review of a conviction for battery of a household member to determine whether the victim fell within the statutory definition of “household member”). Thus, we will review Defendant’s forgery conviction for fundamental error based on Defendant’s contention that his actions did not constitute the elements of this crime as a matter of law.

{10} The State expresses concern that the issue of preservation is especially critical in this ease because Defendant entered a conditional plea that expressly waived his right to appeal any matters not presented in a motion to the trial court. See State v. Hodge, 118 N.M. 410, 416-17, 882 P.2d 1, 7-8 (1994) (explaining the steps necessary to reserve an issue for appeal through a conditional plea). We note that Defendant raised the legal efficacy issue to the trial court through his motion to dismiss, and, therefore, our review of this issue does not violate the terms of his conditional plea.

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Bluebook (online)
2004 NMCA 079, 92 P.3d 1284, 135 N.M. 710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cearley-nmctapp-2004.