State v. Cheung

Opinion

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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. A-1-CA-35827 5 TIN CHEUNG, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Judith K. Nakamura, District Judge

9 Hector H. Balderas, Attorney General 10 Maha Khoury, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Coberly & Martinez, LLLP 14 Todd A. Coberly 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 MEDINA, Judge. 19 {1} Defendant Tin Cheung challenges the sufficiency of the evidence supporting 20 his convictions for forgery, conspiracy to commit forgery, racketeering, conspiracy

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1 to commit racketeering, and making false affidavit perjury. The State concedes that 2 Defendant’s convictions for forgery, conspiracy to commit forgery, racketeering, 3 and conspiracy to commit racketeering cannot be sustained. We agree and reverse 4 and vacate those convictions. We disagree with the State, however, that sufficient 5 evidence supports Defendant’s sixteen convictions for false affidavit perjury. We 6 therefore reverse and vacate those convictions as well. 7 BACKGROUND 8 {2} Defendant, along with his co-defendant Gordon Leong (who was tried 9 separately, see State v. Leong, 2017-NMCA-070, 404 P.3d 9, cert. denied, 2017- 10 NMCERT-___ (No. S-1-SC-36576, Aug. 18, 2017), was charged with multiple 11 felony counts for selling New Mexico driver’s licenses or identification cards to 12 foreign nationals in 2009 and 2010. The State charged Defendant as follows: 13 forgery (make or alter), contrary to NMSA 1978, Section 30-16-10(A)(1) (2006); 14 conspiracy to commit forgery (make or alter), contrary to NMSA 1978, Section 30- 15 28-2 (1979) and Section 30-16-10(A)(1); forgery (issue or transfer), contrary to 16 Section 30-16-10(A)(2); conspiracy to commit forgery (issue or transfer), contrary 17 to Section 30-28-2 and Section 30-16-10(A)(2); making false affidavit perjury, 18 contrary to NMSA 1978, Section 66-5-38 (1978, amended 2018); conspiracy to 19 commit false affidavit perjury, contrary to Section 30-28-2 and Section 66-5-38; 20 altering, forging, or making a fictitious driver’s license, contrary to NMSA 1978,

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1 Section 66-5-18(B) (2004); conspiracy to alter, forge, or make a fictitious driver’s 2 license, contrary to Section 30-28-2 and Section 66-5-18(B); racketeering, contrary 3 to NMSA 1978, Section 30-42-4 (2002, amended 2015); and conspiracy to commit 4 racketeering, contrary to Section 30-28-2 and Section 30-42-4. 5 {3} After a jury trial, the jury convicted Defendant of seventy-seven counts 6 consisting of: seventeen counts of forgery (make or alter), nineteen counts of 7 forgery (issue or transfer), two counts of conspiracy to commit forgery (make or 8 alter), nineteen counts of conspiracy to commit forgery (issue or transfer), sixteen 9 counts of false affidavit perjury, two counts of conspiracy to commit false affidavit 10 perjury, one count of racketeering, and one count of conspiracy to commit 11 racketeering. The district court subsequently entered a stipulated order vacating 12 seventeen convictions of forgery (make or alter), two convictions of conspiracy to 13 commit forgery (make or alter), and two convictions of conspiracy to commit false 14 affidavit perjury. Defendant was ultimately sentenced on fifty-six counts. This 15 appeal followed. 16 {4} We discuss the pertinent facts as needed in the context of our legal analysis 17 below. 18 STANDARD OF REVIEW 19 {5} “The test for sufficiency of the evidence is whether substantial evidence of 20 either a direct or circumstantial nature exists to support a verdict of guilty beyond a

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1 reasonable doubt with respect to every element essential to a conviction.” State v. 2 Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and 3 citation omitted). We “view the evidence in the light most favorable to the guilty 4 verdict, indulging all reasonable inferences and resolving all conflicts in the 5 evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 6 128 N.M. 711, 998 P.2d 176. We “disregard all evidence and inferences” that 7 support a different result. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 8 P.2d 829. 9 DISCUSSION 10 {6} Defendant challenges all his convictions on sufficiency grounds. In its 11 answer brief, the State concedes that in light of our opinion in Leong, Defendant’s 12 forgery, racketeering, and conspiracy convictions must be reversed. As we explain 13 below, we agree. 14 A. Forgery and Racketeering 15 {7} “Forgery consists of: (1) falsely making or altering any signature to, or any 16 part of, any writing purporting to have any legal efficacy with intent to injure or 17 defraud; or (2) knowingly issuing or transferring a forged writing with intent to 18 injure or defraud.” Section 30-16-10. “Forgery has been defined as a crime aimed 19 primarily at safeguarding confidence in the genuineness of documents relied upon 20 in commercial and business activity.” Leong, 2017-NMCA-070, ¶ 11 (internal

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1 quotation marks and citation omitted). “Though a forgery, like false pretenses, 2 requires a lie, it must be a lie about the document itself: the lie must relate to the 3 genuineness of the document.” Id. (internal quotation marks and citation omitted). 4 “[W]hen a genuine document or writing contains false information, there is no 5 basis for a charge of forgery.” Id. ¶ 14. “[A] writing signed with a defendant’s 6 genuine signature is not a false endorsement and cannot support a conviction for 7 forgery.” Id. ¶ 17. 8 {8} In Leong, the defendant, (Defendant’s co-defendant) signed an MVD form 9 titled “Affidavit of New Mexico Residency . . . by a Relative, Friend, Employer, or 10 Other,” and asserted that the applicant for the driver’s license resided with him and 11 was a New Mexico resident. 2017-NMCA-070, ¶¶ 2-3. This Court reversed the 12 defendant’s forgery and related conspiracy convictions on the basis that “[the 13 d]efendant did not make or manufacture a false document.” Id. ¶ 16. Rather, “he 14 used a genuine MVD affidavit form and signed it with his actual name.” Id. 15 {9} Here, as in Leong, eleven of Defendant’s nineteen forgery (issue or transfer) 16 convictions stemmed from his genuine signature on MVD affidavits of residency 17 in which he attested to the residencies of applicants for driver’s licenses. Because, 18 as we have held, false statements in an affidavit that the person signs under oath 19 cannot be a basis for a forgery conviction, id. ¶ 12, Defendant’s convictions must 20 be reversed. To the extent that the remaining seven forgery convictions were based

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1 on Defendant having notarized Leong’s signature on five certificates of translation 2 for five driver’s license applications and having provided an unsworn letter on 3 official Asian Qigong Association of Albuquerque letterhead for one other driver’s 4 license application, and for one identification card application, those must also be 5 reversed because none relied upon an MVD document bearing Defendant’s 6 signature. We reverse and vacate Defendant’s nineteen convictions for forgery. 7 {10} Given our holding that Defendant’s convictions for forgery cannot stand, 8 Defendant’s convictions for conspiracy to commit forgery must necessarily be 9 reversed. See id. ¶ 19 (noting that to sustain a conspiracy conviction, the defendant 10 had to have committed the underlying crime). Finally, as with conspiracy to 11 commit forgery, racketeering requires proof of predicate offenses—in this case, 12 forgery—as part of a pattern of racketeering. State v. Loza, 2018-NMSC-034, ¶ 16, 13 426 P.3d 34. Here, without the predicate forgery convictions discussed above, 14 Defendant’s racketeering convictions must also be reversed and vacated. 15 B. Perjury 16 {11} The State opposes Defendant’s argument that there is not sufficient evidence 17 to support Defendant’s convictions for false affidavit perjury. In particular, the 18 State contends that circumstantial and documentary evidence can be sufficient for a 19 perjury conviction. We disagree with the State and decline its invitation to modify 20 New Mexico’s two-witness rule. We explain.

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1 {12} Defendant was convicted of sixteen counts of making false affidavit perjury 2 under Section 66-5-38. That section provides that “any person who makes any 3 false affidavit, or knowingly swears or affirms falsely to any matter or thing 4 required by the terms of the Motor Vehicle Code [NMSA 1978, § 66-1-1 (1978)] 5 to be sworn to or affirmed, is guilty of perjury and upon conviction shall be 6 punishable by fine or imprisonment as other persons committing perjury are 7 punishable.” Section 66-5-38 (1978). 8 {13} Eleven of Defendant’s convictions were based on Defendant having signed 9 affidavits of residency, attesting that the applicants resided with him. The evidence 10 supporting the other five convictions were based on Defendant having notarized 11 Leong’s signature on three certificates of translation for three driver’s license 12 applications and having provided an unsworn letter of support on official Asian 13 Qigong Association of Albuquerque letterhead for two other driver’s license 14 applications. Defendant challenges the sufficiency of the evidence for all sixteen 15 perjury convictions. 16 1. Eleven Affidavits of Residency 17 {14} In order to sustain a perjury conviction in New Mexico, our appellate courts 18 have long required “the testimony of two witnesses [or] . . . the testimony of one 19 witness supported by corroborating evidence or circumstances.” State v. Borunda, 20 1972-NMCA-018, ¶ 7, 83 N.M. 563, 494 P.2d 976; see State v. Naranjo, 1979-

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1 NMCA-150, ¶ 36, 94 N.M. 413, 611 P.2d 1107, aff’d in part and rev’d in part by 2 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101. Thus, “[the] evidence of one 3 witness alone, not corroborated by any other evidence, is insufficient to warrant a 4 conviction on a charge of perjury.” Naranjo, 1979-NMCA-150, ¶ 36. 5 “Requirements of proof in a perjury case are the strictest known to the law, outside 6 of treason charges.” Id. ¶ 43. “To meet this challenge, the [s]tate must begin with 7 the fact that an accused is clothed with a presumption that one will tell the truth 8 when under oath and until th[at] presumption is dispelled, one did tell the truth 9 under oath.” Id. “[T]o sustain a conviction for perjury, the evidence must be strong, 10 clear, convincing and direct, and based upon proof beyond a reasonable doubt.” Id. 11 ¶ 44 (citation omitted). “A heavy burden is placed upon the [s]tate to prove a 12 person guilty of perjury.” Id. ¶ 46. 13 {15} The State urges this Court to abandon the two-witness rule in favor of 14 reliance on circumstantial evidence alone. Given that we are bound by our 15 Supreme Court precedent, we decline to do so. See Aguilera v. Palm Harbor 16 Homes, Inc., 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993. Because the State 17 offered no evidence proving the falsity of the eleven affidavits of residency, 18 Defendant’s convictions cannot stand. 19 2. Five Accomplice Liability Convictions

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1 {16} Defendant argues that his remaining five perjury convictions lack sufficient 2 evidence because there was no evidence that he swore to, or affirmed falsely to 3 anything required by MVD to be sworn to or affirmed. 4 {17} Each of Defendant’s five convictions under an accomplice theory was 5 related to one of five distinct applications submitted with documents signed by 6 Leong. There was no testimonial evidence presented at trial that any of the 7 documents submitted to support these five applications contained false statements. 8 Under New Mexico’s two-witness rule, the State had the burden and failed to 9 prove the crime itself occurred through either two witness testimonies proving the 10 falsity of Leong’s statements contained in these applications or one witness 11 testimony proving the falsity supported by sufficient corroborating evidence. 12 Based on the foregoing, we conclude that the evidence presented by the State was 13 insufficient to reach a conclusion that the crime of making false affidavit perjury 14 was committed by Defendant’s co-conspirator. 15 CONCLUSION 16 {18} For the foregoing reasons, we reverse and vacate Defendant’s convictions. 17 {19} IT IS SO ORDERED.

18 _______________________________ 19 JACQUELINE R. MEDINA, Judge

20 WE CONCUR:

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1 ___________________________ 2 LINDA M. VANZI, Judge

3 ___________________________ 4 JULIE J. VARGAS, Judge