State v. Clifford

873 P.2d 254, 117 N.M. 508
CourtNew Mexico Supreme Court
DecidedApril 18, 1994
Docket21142
StatusPublished
Cited by98 cases

This text of 873 P.2d 254 (State v. Clifford) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clifford, 873 P.2d 254, 117 N.M. 508 (N.M. 1994).

Opinion

OPINION

BACA, Justice.

Defendants’ motions for rehearing to consider whether Defendants’ racketeering convictions should be reversed was considered but not granted. We withdraw our opinion filed March 8,1994 and substitute the following after reviewing Defendants’ motions for rehearing and the State’s reply.

Defendants Jack M. Clifford and Jack J. Clifford appeal their convictions on twelve counts of embezzlement, one count of fraud, and one count of racketeering. Pursuant to NMSA 1978, Section 34-5-14(0 (Repl.Pamp.1990), we accepted certification from the Court of Appeals to address one issue: Whether the trial court erred in instructing the jury on the elements of embezzlement. Because our jurisdiction under Section 34-5-14(C) extends to the entire case, State v. Orosco, 113 N.M. 780, 781, 781 n. 2, 833 P.2d 1146, 1147, 1147 n. 2 (1992), we address the following additional issues: (1) Whether the trial court erred when it allowed the testimony of two attorney witnesses and (2) whether substantial evidence supports the fraud conviction. 1 After considering Defendants’ motions for rehearing, we also address whether Defendants’ racketeering convictions should be reversed. We affirm in part, reverse in part, and remand for a new trial on the embezzlement and racketeering charges.

I

The following facts viewed in the light most favorable to sustaining the verdict, see State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988), were adduced at Defendants’ trial. Defendants Jack J. and Jack M. Clifford were involved in countless limited partnerships for the development of real estate. Defendants’ land development business consisted of obtaining investors who would advance money to acquire and develop real estate. The property would be improved, refinanced and sold at a profit with the proceeds being distributed to the investors and the Cliffords. At the center of activity was the Clifford Partnership. This partnership consisted of Defendants and acted as a clearinghouse for most of the Cliffords’ other entities.

This case centers around a particular limited partnership project known as Clifford Plaza II (CPII). In order to promote CPII, Defendants informed investors that excess funds from the project were to roll into an investment known as Clifford Plaza III (CPI-II). This was to be an office building adjacent to and similar to CPII.

During the latter part of 1986 and early 1987, fourteen limited partners invested a total of $1,016,000 in CPII. However, the funds being channeled into CPII were transferred into the Clifford Partnership. In fact, on twelve occasions between November 24, 1986 and May 6, 1988, the Cliffords signed checks which transferred a total of $1,049,000 from CPII to the Clifford Partnership. The Cliffords spent the transferred money on the ordinary operating expenses of the Clifford Partnership, in which none of the CPII limited partners had any interest. In 1988, the limited partners became suspicious when no financial statement for 1987 was released and the Cliffords would not explain why no statement would be released. The investors hired an attorney, Paul Fish, to investigate the Cliffords’ records. Once Fish discovered the transfer of over $1 million from CPII to Clifford Partnership, the Cliffords attempted to “cover their tracks” by assigning to CPII limited partnership interests in entities that owned an interest in land known as the Sehwartzman property. At the time of the assignment, however, the mortgage underlying the Sehwartzman property was about to be in default and the Cliffords lacked the resources to make the mortgage payments. Consequently, the property was repossessed by the mortgagee leaving CPII with nothing.

The transfers of money from CPII to the Clifford Partnership form the basis of the State’s embezzlement ease and each transfer was charged as a separate count of embezzlement.

The State’s fraud charges revolve around the last limited partner into CPII, an entity managed by Gary Swearingen and Valerie Ricks, a father and daughter partnership. Swearingen and Ricks invested $461,500 in CPII, made in two installments. They paid $255,000 on March 27, 1987 and $206,500 on May 5,1987. By the time of the first installment, the Cliffords had transferred over a half-million dollars from CPII. Before investing in CPII, Swearingen and Ricks were told by the Cliffords that CPII funds would be used to develop CPIII. They were not told that CPII money had been taken and spent by the Cliffords for their own enterprises, and while current CPII financial information was available, the Swearingens were sent the outdated and misleading 1986 financial statements. In fact, the same day Swearingen and Ricks paid $255,000 to CPII, the entire sum was transferred to the Clifford Partnership. All but $500 of the next installment of $206,500 was also diverted by the Cliffords, once again on the very day the funds arrived. Defendants were subsequently charged with and convicted of embezzlement in excess of $20,000 and $2,500, fraud in excess of $20,000, and racketeering. Defendants appealed their convictions to the Court of Appeals which certified the fraudulent intent jury instruction issue to this Court.

II

The first issue that we address is whether the trial court erred when it instructed the jury regarding the embezzlement charges. Both Defendants claim that the trial court erred in instructing the jury because the jury instructions as given omitted an essential element of embezzlement: fraudulent intent. They both contend that this deficiency in instructing the jury mandates reversal of their convictions for embezzlement. We agree.

In State v. Green, 116 N.M. 273, 861 P.2d 954 (1993), we considered the propriety of the uniform jury instruction for embezzlement, SCRA 1986, 14-1641. In Green, the trial court’s embezzlement instruction tracked the language of the uniform jury instruction. We held that the instruction failed to include fraudulent intent, an essential element required for a conviction under our embezzlement statute, Section 30-16-8 (Repl.Pamp.1984). Green, 116 N.M. at 277, 861 P.2d at 958. While the defendant in Green neither objected to the instructions as given nor tendered a correct instruction, we reversed his conviction for embezzlement because the trial court failed to instruct the jury on all elements essential for a conviction. Id. at 279, 861 P.2d at 960.

In the case at bar, the trial court gave a series of instructions regarding the numerous charges of embezzlement against Defendants. These instructions followed the language of SCRA 14-1641 and were identical in form to the embezzlement instruction given in Green. The trial court also charged the jury with a general intent instruction, which is patterned after SCRA 14-141. As in Green, the instructions as given did not instruct the jury that it needed to find that the defendants acted with fraudulent intent to convict them of the embezzlement charges. Moreover, the general intent instruction as given does not correct the error propagated by the failure to instruct on fraudulent intent. See State v. Bunce, 116 N.M.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Romero
New Mexico Court of Appeals, 2024
State v. Taylor
New Mexico Court of Appeals, 2022
State v. Sepulveda
New Mexico Court of Appeals, 2021
State v. Stevenson
2020 NMCA 005 (New Mexico Court of Appeals, 2019)
State v. Cavazos
New Mexico Court of Appeals, 2019
State v. Cain
450 P.3d 452 (New Mexico Court of Appeals, 2019)
State v. Burrows
New Mexico Supreme Court, 2019
Kakuska v. Roswell Independent School District
New Mexico Court of Appeals, 2019
State v. Trujillo
New Mexico Court of Appeals, 2019
State v. Montoya
New Mexico Court of Appeals, 2019
State v. Telles
New Mexico Court of Appeals, 2019
State v. Navarette
New Mexico Supreme Court, 2018
State v. James
New Mexico Court of Appeals, 2018
State v. Tapia
New Mexico Court of Appeals, 2017
State v. Simmons
New Mexico Court of Appeals, 2017
State v. Gonzales
New Mexico Court of Appeals, 2016
State v. Duttle
2017 NMCA 001 (New Mexico Court of Appeals, 2016)
PNC Mortgage v. Romero
2016 NMCA 064 (New Mexico Court of Appeals, 2016)
Mikeska v. Las Cruces Regional Medical Center, LLC
2016 NMCA 068 (New Mexico Court of Appeals, 2016)
State v. Ashley
New Mexico Court of Appeals, 2015

Cite This Page — Counsel Stack

Bluebook (online)
873 P.2d 254, 117 N.M. 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clifford-nm-1994.