State v. Ortiz

906 P.2d 734, 120 N.M. 743
CourtNew Mexico Court of Appeals
DecidedJanuary 27, 1987
DocketNo. 9217
StatusPublished

This text of 906 P.2d 734 (State v. Ortiz) 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. Ortiz, 906 P.2d 734, 120 N.M. 743 (N.M. Ct. App. 1987).

Opinions

OPINION

GARCIA, Judge.

Defendant appeals from his felony conviction of holding or using an altered license plate in violation of NMSA 1978, Section 66-8-3(D). He raises three issues: (1) whether the trial court erred in giving jury instructions that did not contain an essential element of the charge; (2) whether the trial court erred in refusing to submit defendant’s requested mistake of fact instruction; and (3) whether the conviction for using an altered plate was supported by substantial evidence. The issues raised in the docketing statement but not briefed are deemed abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). We affirm.

FACTS

On May 21, 1985, Clovis Police Detective Morgan saw defendant driving a motorcycle. Having personal knowledge that defendant’s driver’s license had been revoked, Morgan pursued defendant. While doing so, Morgan radioed for a check on the motorcycle’s license plate and was informed that the motorcycle was registered to Harry Vetterly and that the registration had expired in March 1985. Morgan noticed that the motorcycle’s license plate had a May 1985 registration sticker.

After stopping defendant, Morgan asked him for his driver’s license and registration papers. Defendant said that he had neither document and that the motorcycle was his. Morgan then saw that a small metal plate, bearing a May 1985 registration sticker, had been placed over the March 1985 registration sticker and was attached to the plate by a screw on one side and an alligator clip on the other.

Morgan commented to defendant that the plate appeared to have been altered. In response, defendant said that the motorcycle belonged to his brother and that the plate was in that condition since it was in defendant’s possession. Morgan testified that defendant told him the plate had been altered since his brother bought the motorcycle and that defendant had been driving it for approximately two months.

The motorcycle was registered to Vetterly. Vetterly purchased it in the early summer of 1984. In August 1984, Vetterly agreed to sell the motorcycle and transferred possession of it to Kenny Foster in exchange for partial payment. Vetterly testified that at the time of the transfer, the motorcycle had a valid registration that would expire in March 1985. Since Vetterly had not received payment in full for the motorcycle, he did not transfer title to Foster. In October 1984, Foster traded the motorcycle, which was then inoperable, to Moses Ortiz, defendant’s brother. Moses Ortiz was later incarcerated in an unrelated offense. In March or April 1985, during his brother’s incarceration, defendant had the motorcycle repaired and used it until his arrest on May 21, 1985.

Moses Ortiz testified that he did not recall whether the registration plate was in an altered condition and that his brother, defendant, was not involved in the trade with Foster for the motorcycle. Defendant testified that he did not alter the plate. Defendant also stated that he never noticed the month printed on the registration sticker, nor had he noticed the altered state of the plate until Detective Morgan mentioned it.

In closing argument, the defense expressly conceded that the state had shown that defendant had used an altered plate. The only issue the defense presented to the jury was whether defendant knew the plate had been altered.

DISCUSSION

Whether the Instructions Omitted an Essential Element.

Defendant’s primary argument on appeal is that the trial judge erred in failing to instruct the jury on an essential element of the charge. Since failure to instruct the jury on an essential element of the crime charged is jurisdictional, it may be raised for the first time on appeal. However, the failure to instruct on the definition or the amplification of an element is not error. State v. Stephens, 93 N.M. 458, 601 P.2d 428 (1979). The question is whether all the essential elements were contained in the jury instructions.

Defendant was charged with violating Section 66-8-3(D). The statute in its entirety provides:

It is a felony for any person to commit any of the following acts:
A. to alter with fraudulent intent any certificate of title, registration evidence, registration plate, validating sticker or permit issued by the division;
B. to forge or counterfeit any such document or plate purporting to have been issued by the division;
C. to alter or falsify with fraudulent intent or to forge any assignment upon a certificate of title; or
D. to hold or me any such document or plate, knowing the same to have been so altered, forged or falsified.

(Emphasis added.)

A reading of the statute indicates that in subsection D the legislature was concerned with the use of a plate that had been altered with fraudulent intent. Such is the significance of the language “so altered.”

Defendant maintains that fraudulent intent was an essential element of a violation of subsection D. Otherwise, he argues, the jury would be free to convict a defendant if the plate he used had been altered in any manner whatsoever.

There are no Uniform Jury Instructions approved for use with this statute. The trial court gave an instruction on the elements of a violation of subsection D without limiting the requirement of an underlying alteration to an alteration with fraudulent intent:

For you to find the defendant guilty of holding or using an altered license plate as charged in Count 1, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of a crime:
1. The defendant held or used a license plate which had been altered;
2. At the time he used or held the license plate, the defendant knew it had been altered;
3. This happened in New Mexico on or about the 21st of May, 1985.

The instruction given substantially followed the language of Section 66-8-3(D). Generally, instructions that substantially follow the language of a statute are sufficient, State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973), as long as the language of the statute adequately conveys what is required for conviction. State v. Puga, 85 N.M. 204, 510 P.2d 1075 (Ct.App.1973).

In the context of items with legal significance, the common meaning of an alteration is a change in the legal significance or effect of the item. Webster’s New International Dictionary, Unabridged, 76 (2d ed. 1955). Since this was a criminal prosecution, the jury would understand that there had to be a unilateral and unauthorized change in the legal effect of the plate and hence an illegal alteration.

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Related

State v. Puga
510 P.2d 1075 (New Mexico Court of Appeals, 1973)
State v. Buhr
482 P.2d 74 (New Mexico Court of Appeals, 1971)
State v. Pendley
593 P.2d 755 (New Mexico Court of Appeals, 1979)
State v. Walsh
463 P.2d 41 (New Mexico Court of Appeals, 1969)
State v. Griscom
683 P.2d 59 (New Mexico Court of Appeals, 1984)
State v. Gunzelman
512 P.2d 55 (New Mexico Supreme Court, 1973)
State v. Allen
423 P.2d 867 (New Mexico Supreme Court, 1967)
State v. Andrada
484 P.2d 763 (New Mexico Court of Appeals, 1971)
State v. Fish
701 P.2d 374 (New Mexico Court of Appeals, 1985)
State v. Bell
560 P.2d 925 (New Mexico Supreme Court, 1977)
Weiland Ex Rel. Weiland v. Vigil
560 P.2d 939 (New Mexico Court of Appeals, 1977)
State v. Brown
676 P.2d 253 (New Mexico Supreme Court, 1984)
State v. Stephens
601 P.2d 428 (New Mexico Supreme Court, 1979)
State v. Jennings
691 P.2d 882 (New Mexico Court of Appeals, 1984)
State v. Ortiz
433 P.2d 92 (New Mexico Court of Appeals, 1967)
State v. Collins
458 P.2d 225 (New Mexico Supreme Court, 1969)
Buzbee v. Donnelly
634 P.2d 1244 (New Mexico Supreme Court, 1981)
State v. Venegas
628 P.2d 306 (New Mexico Supreme Court, 1981)
State v. Foster
530 P.2d 949 (New Mexico Court of Appeals, 1974)
Blanton v. State
24 P. 439 (Washington Supreme Court, 1890)

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Bluebook (online)
906 P.2d 734, 120 N.M. 743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ortiz-nmctapp-1987.