{ "id": 4186670, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL SOUTAR, Defendant-Appellant", "name_abbreviation": "State v. Soutar", "decision_date": "2012-02-10", "docket_number": "Docket No. 28,167", "first_page": "321", "last_page": "334", "citations": [ { "type": "official", "cite": "2012-NMCA-024" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2005-NMCA-045", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929193 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0339-01" ] }, { "cite": "103 N.M. 100", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711418 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "104" }, { "page": "881" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0100-01" ] }, { "cite": "2009-NMCA-003", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242256 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 72" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0451-01" ] }, { "cite": "2001-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183146 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0137-01" ] }, { "cite": "264 P.3d 1171", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "opinion_index": 0 }, { "cite": "150 N.M. 648", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2011-NMCERT-004", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2011-NMCA-046", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4248994 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0536-01" ] }, { "cite": "2008-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002756 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0184-01" ] }, { "cite": "2011-NMSC-021", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4251221 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0216-01" ] }, { "cite": "100 N.M. 479", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588584 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "481", "parenthetical": "\"When evidence at trial supports the giving of an instruction on a defendant's theory of the case, failure to so instruct is reversible error.\"" }, { "page": "654", "parenthetical": "\"When evidence at trial supports the giving of an instruction on a defendant's theory of the case, failure to so instruct is reversible error.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0479-01" ] }, { "cite": "2001-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183116 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0347-01" ] }, { "cite": "2008-NMCA-049", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3784375 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0792-01" ] }, { "cite": "94 N.M. 356", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573173 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "360" }, { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0356-01" ] }, { "cite": "328 U.S. 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 377246 ], "weight": 5, "year": 1946, "pin_cites": [ { "page": "294" }, { "page": "297" }, { "page": "299", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/328/0293-01" ] }, { "cite": "2004-NMCA-116", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224638 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 79" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0454-01" ] }, { "cite": "265 P.3d 717", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "150 N.M. 666", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2011-NMCERT-005", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2011-NMCA-067", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4249798 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 11-14" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0819-01" ] }, { "cite": "2004-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428026 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 19-20" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0621-01" ] }, { "cite": "2001-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183105 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0258-01" ] }, { "cite": "64 N.M. 175", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344608 ], "weight": 2, "year": 1958, "pin_cites": [ { "page": "178" }, { "page": "670-71" } ], "opinion_index": 0, "case_paths": [ "/nm/64/0175-01" ] }, { "cite": "2000-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106493 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0711-01" ] }, { "cite": "945 P.2d 996", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "123 N.M. 778", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 142224 ], "opinion_index": 0, "case_paths": [ "/nm/123/0778-01" ] }, { "cite": "1997-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 57" } ], "opinion_index": 0 }, { "cite": "2000-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217160 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0586-01" ] }, { "cite": "2007-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3691756 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0176-01" ] }, { "cite": "2010-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245851 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0747-01" ] }, { "cite": "119 N.M. 48", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561251 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "51" }, { "page": "933" }, { "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0048-01" ] }, { "cite": "2006-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670558 ], "weight": 4, "pin_cites": [ { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0406-01" ] }, { "cite": "2005-NMCA-089", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2549816 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0096-01" ] }, { "cite": "367 So. 2d 616", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9596782 ], "year": 1979, "pin_cites": [ { "page": "623", "parenthetical": "\"We hold, therefore, that the [DJouble [J]eopardy [C]lause does not bar the reprosecution of an accused who willfully refuses to perform a condition of a guilty plea which has been accepted by the trial court on that basis.\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/367/0616-01" ] }, { "cite": "114 N.M. 103", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731622 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "108", "parenthetical": "stating that where a party fails to cite any portion of the record to support its factual allegations, appellate courts need not consider its argument on appeal" }, { "page": "824", "parenthetical": "stating that where a party fails to cite any portion of the record to support its factual allegations, appellate courts need not consider its argument on appeal" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0103-01" ] }, { "cite": "1999-NMCA-016", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827371 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0628-01" ] }, { "cite": "2008-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4003399 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0297-01" ] }, { "cite": "103 N.M. 333", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711355 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "334" }, { "page": "876" }, { "page": "335" }, { "page": "877", "parenthetical": "holding that the defendant had no reasonable expectation of finality in a sentence obtained through misrepresentations at the time of sentencing" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0333-01" ] }, { "cite": "915 P.2d 1080", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1996, "pin_cites": [ { "page": "1085", "parenthetical": "en banc" } ], "opinion_index": 0 }, { "cite": "2002-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260702 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0501-01" ] }, { "cite": "2006-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2545110 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0450-01" ] } ], "analysis": { "cardinality": 1453, "char_count": 37792, "ocr_confidence": 0.826, "pagerank": { "raw": 6.483903893216579e-08, "percentile": 0.3990890974724781 }, "sha256": "36bd40282ecd665bc3c09eff1f3c3771bd1858d1e6c312f662323e235db0f273", "simhash": "1:97dfed15a9290ca1", "word_count": 6062 }, "last_updated": "2023-07-14T17:47:49.050081+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CELIA FOY CASTILLO, Chief Judge", "MICHAEL D. BUSTAMANTE, Judge", "LINDA M. VANZI, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL SOUTAR, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCASTILLO, Chief Judge.\n{1} Convicted of racketeering and several state securities violations, Michael Soutar (Defendant) now appeals his convictions. He challenges the court\u2019s revocation of his plea deal, the nature of the jury instructions, and the sufficiency and admission of evidence used to convict him. For reasons explained below, we affirm.\nI. BACKGROUND\n{2} Defendant was tried and convicted of multiple violations of the New Mexico Securities Act of 1986, NMSA 1978, Sections 58-13B-1 to -57 (1986, as amended through 2003) (repealed 2009), and one count of racketeering in violation of NMSA 1978, Section 30-42-4 (2002). These convictions arose out of Defendant\u2019s formation of Santa Fe International Development, a Limited Liability Company (the LLC), under which Defendant operated a business called the Santa Fe Market (the Market).\n{3} Defendant acted as general manager of the Market and advertised it as a facility near the Plaza in Santa Fe where artists could lease space, sell their products, and keep eighty-five percent of their proceeds, relinquishing the remainder to the Market. Defendant attracted several investors who bought interests in the LLC through investment contributions. These investments were significant, in the range of $25,000 and up.\n{4} The Market failed, and the investors lost all of their money. The victims alleged that they had been defrauded. Defendant was indicted in December 2004 on nine counts of securities violations for unlawfully selling interests in the LLC, one count of racketeering based on the securities violations, and numerous other charges including escape from jail, forgery, and fraud.\n{5} Defendant entered into plea negotiations with the State. He represented that he had $125,000 at his disposal from a third party and informed the State that he was willing to provide this money to the victims as an initial lump-sum restitution payment if an acceptable plea agreement was reached. Defendant further indicated that, if no plea was reached and Defendant was required to stand trial, this money would have to be put toward the costs of his defense. Defendant also informed the district court of the existence of these funds and his desire to compensate the victims as part of a plea agreement.\n{6} In October 2006, a plea hearing was held, and the district court accepted and entered a plea and disposition agreement. The agreement included a provision requiring Defendant to make restitution but did not specifically reference a lump-sum payment. Defendant agreed to plead no contest to three counts of fraudulent practices in connection with the sale of securities, one count of escape from jail, and one count of racketeering. Immediately after accepting the agreement, the district court proceeded to orally sentence Defendant. The sentence imposed \u2014 twelve years\u2019 confinement with all but three years suspended, entitlement to good time, and a five-year probationary period \u2014 was consistent with the terms of the agreement.\n{7} Seventeen days after the plea hearing, the State filed a \u201cmotion for reconsideration of sentence or to withdraw [the] plea.\u201d The State alerted the court to the fact that Defendant had failed to live up to his commitment to make restitution.\n{8} At the hearing on that motion, Defendant confirmed that he was either unable or unwilling to make an initial lump-sum payment. The district court informed Defendant that the only reason it had accepted the plea was because it understood that the terms of the agreement required Defendant to make restitution and that restitution involved a substantial, initial lump-sum payment. Defendant responded that, while the plea agreement did include a restitution provision, it did not include any reference to a lump-sum payment. Defendant further argued that double jeopardy and other legal principles precluded the court from withdrawing the plea or altering the orally imposed sentence. The court disagreed, withdrew the plea, and ordered Defendant to stand trial.\n{9} At the close of trial, Defendant proposed several instructions that the court denied. Defendant was convicted of one count of racketeering and three counts each of fraudulent practices in connection with the sale of securities in violation of Section 58-13B-30; selling unregistered securities in violation of Section 58-13B-20; and selling securities without a license in violation of Section 58-13B-3. He was sentenced to eighteen years\u2019 confinement for these offenses and an additional sixteen years\u2019 confinement as a habitual offender for a total period of thirty-four years\u2019 confinement.\nII. DISCUSSION\n{10} On appeal, Defendant raises five issues. He asserts that the oral sentence the court imposed under the plea agreement was final and binding and that double jeopardy precluded the court from ordering him to stand trial. Second, he contends that the district court abused its discretion when it ordered the plea agreement withdrawn and claims that \u201cafter the court accepted the plea agreement},] it was bound by its terms to sentence [him] to the negotiated sentence.\u201d He maintains that the plea agreement did not require him to make an initial lump-sum payment, yet the district court granted the State\u2019s request to withdraw the agreement due to his inability to make that payment. Third, he claims two errors regarding the court\u2019s denial of his proposed jury instructions. Fourth, he challenges the sufficiency of the evidence underlying his convictions. Fifth, and finally, he asserts that the court erred in admitting evidence of his prior bad acts. We address these issues in turn.\nA. Double Jeopardy\n{11} \u201cWe generally review double jeopardy claims de novo.\u201d State v. Rodriguez, 2006-NMSC-018, \u00b6 3, 139 N.M. 450, 134 P.3d 737. The Double Jeopardy Clause of the United States Constitution guarantees that no person shall \u201cbe subject for the same offense to be twice put in jeopardy of life or limb[.]\u201d U.S. Const, amend. V. However, \u201c[i]n order to successfully claim double jeopardy, a former jeopardy must have occurred \u2014 there must have been a previous proceeding in which jeopardy attached.\u201d State v. Angel, 2002-NMSC-025, \u00b6 7, 132 N.M. 501, 51 P.3d 1155. Here, Defendant acknowledges that jeopardy did not attach when the court accepted his plea. See id. \u00b6 13 (holding that jeopardy does not attach upon a court\u2019s acceptance of a guilty plea). Rather, he argues that jeopardy attached at the oral sentencing. We disagree.\n{12} Our Supreme Court has previously recognized that \u201cjeopardy attaches when the court enters a judgment and imposes a sentence on the guilty plea.\u201d Id. \u00b6 10. This is because entry of judgment and sentence carries with it an \u201cexpectation of finality.\u201d Id. \u00b6 15-\n[T]he analytical touchstone for double jeopardy is the defendant\u2019s legitimate expectation of finality in the sentence, which may be influenced by many factors such as the completion of the sentence, the passage of time, the pendency of an appeal or review of the sentencing determination, or the defendant\u2019s misconduct in obtaining the sentence.\nState v. Hardesty, 915 P.2d 1080, 1085 (Wash. 1996) (en banc).\n{13} In our view, Defendant could not have formed an expectation of finality in the oral sentence. An oral sentence is not \u201ca final judgment and is subject to change until reduced to writing.\u201d State v. Rushing, 103 N.M. 333, 334, 706 P.2d 875, 876 (Ct. App. 1985). As such, our Supreme Court has explained that \u201ca trial court\u2019s oral announcement of a result is not final, and parties to the case should have no reasonable expectation of its finality.\u201d State v. Lohberger, 2008-NMSC-033, \u00b6 20, 144 N.M. 297, 187 P.3d 162. Defendant acknowledges this law, but directs us to State v. Porras, 1999-NMCA-016, \u00b6 14, 126 N.M. 628, 973 P.2d 880, where we held that the defendant had a reasonable expectation of finality in an oral pronouncement of sentence because the defendant had begun serving his sentence. For the reasons that follow, Porras is inapplicable here.\n{14} As the State observes, Defendant has done nothing to explain how he began serving his sentence after the oral sentence was imposed beyond simply stating that he did so. See Santa Fe Exploration Co. v. Oil Conservation Comm\u2019n, 114 N.M. 103, 108, 835 P.2d 819, 824 (1992) (stating that where a party fails to cite any portion of the record to support its factual allegations, appellate courts need not consider its argument on appeal). More critically, the oral sentence arose out of the plea agreement and, as we explain in the following section of this Opinion, Defendant made representations about making an immediate lump-sum restitution payment, a basis upon which the district court accepted the agreement. Later, Defendant either could not or would not provide that payment. Defendant could not have formed an expectation of finality in an oral sentence imposed pursuant to a plea agreement, the terms of which he either could not or would not keep. See Rushing, 103 N.M. at 335, 706 P.2d at 877 (holding that the defendant had no reasonable expectation of finality in a sentence obtained through misrepresentations at the time of sentencing). This conclusion is in line with other authorities. Cf. Brown v. State, 367 So. 2d 616, 623 (Fla. 1979) (\u201cWe hold, therefore, that the [DJouble [J]eopardy [C]lause does not bar the reprosecution of an accused who willfully refuses to perform a condition of a guilty plea which has been accepted by the trial court on that basis.\u201d); 22 C.J.S. Criminal Law \u00a7 286 (2011) (\u201cThe Double Jeopardy Clause does not bar reprosecution of an accused individual who willfully refuses to perform a condition of a guilty plea.\u201d).\n{15} We conclude that double jeopardy principles did not preclude the district court from ordering Defendant to stand trial. Double jeopardy did not attach at the time of the oral sentencing. Thus, the district court\u2019s decision to require D efendant to stand trial did not implicate double jeopardy concerns. We turn now to the plea agreement and explain in greater detail why the court did not err in agreeing to withdraw the plea.\nB. Withdrawal of the Plea Agreement\n{16} Because the oral sentence was not final, we review the district court\u2019s decision to withdraw the plea only for an abuse of discretion. See State v. Hunter, 2005-NMCA-089, \u00b6 20, 138 N.M. 96, 117 P.3d 254 (\u201cA district court exercises its discretion when deciding whether to permit a pre-sentence plea withdrawal, and we review the court\u2019s ruling to determine whether, under the facts offered in support of the motion, the trial court abused its discretion.\u201d (internal quotation marks and citation omitted)), aff\u2019d, 2006-NMSC-043, 140 N.M. 406, 143 P.3d 168. \u201cA court abuses its discretion when it is shown to have acted unfairly, arbitrarily, or committed manifest error.\u201d Id. (internal quotation marks and citation omitted).\n{17} \u201cA plea agreement is a unique form of contract the terms of which must be interpreted, understood, and approved by the trial court.\u201d State v. Mares, 119 N.M. 48, 51, 888 P.2d 930, 933 (1994). \u201cIn reviewing and interpreting the agreement a court should construe the terms according to what [petitioner] reasonably understood when he entered his plea.\u201d Id. (alteration in original) (internal quotation marks and citation omitted).\n{18} Defendant\u2019s plea agreement included the following provision: \u201c[Defendant agrees to make restitution on all charges. ...\u201d Our review of the record reveals that all parties \u2014 Defendant, the district court, and the State \u2014 understood this provision to require Defendant to make an initial and immediate lump-sum restitution payment. At the plea hearing, the court informed Defendant that the court\u2019s primary concern was to ensure that the victims of Defendant\u2019s crimes received maximum restitution. Jail time, the court explained, did little to achieve that objective, and the court had significant doubts about Defendant\u2019s ability to make incremental payments over time. The court believed that the plea agreement, as the court understood it, satisfactorily addressed its primary concern because it entailed Defendant making a substantial and immediate lump-sum payment. The Court\u2019s understanding that the restitution provision in the agreement entailed a lump-sum payment was not based on surmise or assumption but on Defendant\u2019s representations.\n{19} At the plea hearing \u2014 specifically, during plea recommendations and before the court accepted the plea \u2014 Defendant made the following statements:\nDefense Counsel: Your honor, we, we, basically have spent a lot of time in trying to get this hammered out. I think that . . . [the plea is] a good resolution for everybody. We are, you know, we have the means over, you know, over the time period, to make the restitution. The intention has always been to make a, an initial lump-sum kind of based on .. . what the funds are available. I mean it\u2019s true, all the way back in January or February I made it clear that there was a finite amount of money and that it was impossible to both ... try the case, and lawyer the case out, and pay restitution.\nThe Court: What\u2019s the ballpark figure that you are talking about as far as an initial lump sum?\nDefense Counsel: You know, I need to speak with the person. I mean, you know, basically what we\u2019re looking at in terms of an initial lump sum would have been the original amount we had thrown out there was $ 125,000, but as time has gone along and there have been lawyer fees and everything else that cuts into the initial lump sum, and I just don\u2019t know what that is right now.\nThis excerpt refutes Defendant\u2019s contention that \u201c[t]he first mention of an initial lump-sum restitution payment came after the plea agreement had been accepted by the court.\u201d After accepting the plea, the district court gave Defendant specific instructions regarding the lump-sum payment:\nThe Court:Now this is what I want you to do. Between now and the time this case is over, so you now are under an obligation to make restitution.\nDefendant: Yes sir.\nThe Court: Between now and the time you deal with Arizona, I want to see you through your lawyer try to access that money that you talked about and get that paid.\nDefendant: Okay. Can I say something? The money that he talked about was last December that we came up with the money. There\u2019s been horrendous expense over the last year. And we discussed this up front because I wanted to get the money. That\u2019s the money I wanted to get back in their pockets.\nDefense Counsel: But there\u2019s nonetheless . . .\nThe Court: There is some available?\nDefendant: Oh, sure, absolutely your honor.\nThe Court: I don\u2019t want you to wait on making that payment. ... In other words, tomorrow I want you to start your efforts. I know it\u2019s difficult from jail, but through your lawyer I want you to start your efforts in getting that money transferred so that restitution can be made, immediately. I mean, if you go to Arizona, and they give you another three months there for your felony there, I don\u2019t want these people to have to wait another five months.\nDefendant: I understand.\nThe Court: So you start immediately.\nDefendant: I understand. That\u2019s my whole intention.\n{20} This interchange demonstrates that the plea agreement was premised on the understanding that Defendant would make a substantial and immediate lump-sum restitution payment. While this is not specifically stated in the agreement, the record supports the conclusion that Defendant reasonably understood that the restitution provision that is in the agreement entailed this type of lump-sum payment. Defendant was either unable or unwilling to make that payment and, thus, was unable to honor the terms of the agreement. The court did not abuse its discretion in withdrawing the plea.\nC. Jury Instructions\n{21} Defendant next claims that the district court committed reversible error in denying several of his proposed jury instructions. We review each claimed error in turn but first establish our standard of review. \u201cThe propriety of jury instructions given or denied is a mixed question of law and fact.\u201d State v. Lucero, 2010-NMSC-011, \u00b6 11, 147 N.M. 747, 228 P.3d 1167 (internal quotation marks and citation omitted). \u201c[W]e review any factual questions under a substantial evidence standard},] and we review the application of law to the facts de novo.\u201d State v. Neal, 2007-NMSC-043, \u00b6 15, 142 N.M. 176, 164 P.3d 57 (internal quotation marks and citation omitted). \u201cAn appellate court reviews challenged jury instructions to determine whether they correctly state the law and are supported by the evidence introduced at trial.\u201d Gonzales v. N.M. Dep\u2019t of Health, 2000-NMSC-029, \u00b6 28, 129 N.M. 586, 11 P.3d 550. \u201cIt is not error for a trial court to refuse instructions which are inaccurate.\u201d State v. Salazar, 1997-NMSC-044, \u00b6 57, 123 N.M. 778, 945 P.2d 996. Our review also involves deciding \u201cwhether a reasonable juror would have been confused or misdirected by the jury instruction.\u201d State v. Cunningham, 2000-NMSC-009, \u00b6 14, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted). It is not error for a court to refuse an instruction that is confusing or misleading. State v. Skipworth, 64 N.M. 175, 178, 326 P.2d 669, 670-71 (1958). \u201c[Jjuror confusion or misdirection may stem not only from instructions that are facially contradictory or ambiguous, but from instructions which, through omission or misstatement, fail to provide the juror with an accurate rendition of the relevant law.\u201d State v. Benally, 2001-NMSC-033, \u00b6 12, 131 N.M. 258, 34 P.3d 1134.\n{22} Defendant first argues thatthe district court erred in denying his proposed instruction defining the term \u201csecurity.\u201d We review the facts underlying this claim. As noted, Defendant was charged with multiple securities violations including three counts of fraudulent practices in connection with the sale of securities, three counts of selling unregistered securities, and three counts of selling securities without a broker\u2019s license. One essential element common to all of these offenses is that \u201c[Djefendant sold a security.\u201d D efendant prop o sed an instruction purp ortedly defining \u201csecurity\u201d; the suggested instruction read as follows:\nEssential Element of \u201cSecurity\u201d Defined\nFor you to find [Djefendant guilty of fraudulent practices in securities as charged in Count I, the State must prove beyond a reasonable doubt all of the elements that show that the instrument [Djefendant sold was a security.\nAn ownership interest in an LLC is a security if it is:\n1. An investment;\n2. In a common enterprise;\n3. With the expectation of profit; and\n4. To be derived through the essential managerial efforts of someone other than the investor;\n5. Unless context requires otherwise.\nHere, a \u201ccommon enterprise\u201d means an enterprise in which the fortunes of the investor are interwoven with and dependent upon the efforts and successes of those seeking the investment or of a third party;\nOR\n1. An investment by which an offeree furnishes initial value to an offeror;\n2. A portion of this initial value is subjected to the risks of the enterprise;\n3. The furnishing of the initial value is induced by the offeror\u2019s promises or representations;\n4. Which give rise to a reasonable understanding that a valuable benefit of some kind over and above the initial value will accrue to the offered;\n5. As a result of the operation of the enterprise; and\n6. The offeree does not receive the right to exercise practical and actual control over the managerial decisions of the enterprise;\n7. Unless context requires otherwise.\nEach transaction must be analyzed on the basis of the content of the instruments in question, the purposes intended to be served, and the factual setting as a whole.\nThe law provides that \u201ccontext requires otherwise\u201d where the parties have a unique agreement, the instruments do not have equivalent value to most persons, the instruments could not be traded publicly, and the purchaser is motivated by a desire to use or consume an item purchased.\nIf you find that \u201ccontext otherwise requires\u201d then the instrument is not a security, and you must find [Defendant] not guilty of fraudulent practices in securities.\nThe Court denied this instruction and, after consulting with the parties and reviewing UJI 14-4310 NMRA (defining \u201csecurity\u201d), issued the following instruction:\nA \u201csecurity\u201d is a [sic] ownership right or a creditor relationship and includes any investment contract and a limited liability company interest.\n1.Any investment contract means a contract:\na. Where an individual invests his money;\nb. In an undertaking or venture of two or more people or entities;\nc. With an expectation of profit;\nd.Based primarily on the efforts of others.\n2. A limited liability company interest means a member\u2019s or assignee\u2019s right to receive distributions and a return of capital from the limited liability companyf;]\n3. Unless the context requires otherwise.\nAn investment is the use of capital or money to create more money.\nDefendant claims that the \u201ccourt committed reversible error when it denied [his] tendered instruction on the definition of a security.\u201d We disagree.\n{23} We agree with the State\u2019s assessment that Defendant\u2019s proposed instruction is both misleading and unclear. Although the instruction is titled \u201csecurity defined\u201d, the instruction does not actually define the term. Rather, it purports to identify the circumstances under which an interest in a limited liability company constitutes a security. Moreover, the hulk of the instruction focuses not on the meaning of \u201csecurity,\u201d hut on the meaning of \u201ccommon enterprise.\u201d Finally, the sheer breadth of the instruction is troubling. We conclude that the instruction had great potential to misdirect and confuse the jury. See State v. Barber, 2004-NMSC-019, \u00b6\u00b6 19-20, 135 N.M. 621, 92 P.3d 633; State v. Rodarte, 2011-NMCA-067, \u00b6\u00b6 11-14, 149 N.M. 819, 255 P.3d 397, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717; Berry v. Fed. Kemper Life Assurance Co., 2004-NMCA-116, \u00b6 79, 136 N.M. 454, 99 P.3d 1166.\n{24} Moreover, the proposed instruction is not a correct statement of the law. In the definitions section of the New Mexico Securities Act of 1986, \u201csecurity\u201d is defined as follows: \u201cunless the context requires otherwise, \u2018security\u2019 means . . . any interest in a limited liability company}.]\u201d Section 58-13B-2(X). There is no dispute that Defendant sold interests in a limited liability company. The statute provides that such an interest constitutes a security, unless the context requires otherwise.\n{25} Defendant emphasizes the phrase \u201cunless the context requires otherwise\u201d and asserts that a jury must apply the \u201cinvestment contract test\u201d set out in S.E.C. v. W.J. Howey Co. (Howey), 328 U.S. 293 (1946) to determine whether an interest in a limited liability company is a security under the New Mexico Securities Act of 1986. In Howey, the United States Supreme Court examined the scope of the definition of \u201csecurity\u201d in the federal Securities Act of 1933, 15 U.S.C. \u00a7\u00a7 77a to 77aa(1933, as amended through 2000). Howey, 328 U.S. at 294. The federal act expressly defined \u201csecurity\u201d to include an investment contract. Howey, 328 U.S. at 297. The issue before the Court was whether a land sales contract, a warranty deed, and a service contract together constitute an investment contract. Id. The Court answered this question in the affirmative and, in doing so, adopted what Defendant refers to as the \u201cinvestment contract test\u201d so as to bring within the ambit of that Act the \u201cmany types of instruments that in our commercial world fall within the ordinary concept of a security.\u201d Id. at 299 (internal quotation marks and citation omitted). Defendant\u2019s argument that Howey and the investment contract test are relevant here ignores significant differences between the definition of \u201csecurity\u201d in the federal Securities Act of 1933 and the New Mexico Securities Act of 1986.\n{26} As stated above, the New Mexico statute defines an interest in a limited liability company as a security, unless the context requires otherwise. The definition under the federal statute is substantially different, in that it expressly includes investment contracts in its definition. With this difference in mind, we fail to see how Howey and the federal Securities Act of 1933 offer any guidance here. In addition, we have previously held that the term \u201csecurity\u201d in the New Mexico Securities Act of 1986 was intended to be construed broadly and that it is error to advocate a construction that narrows its applicability. State v. Sheets, 94 N.M. 356, 360, 610 P.2d 760, 764 (Ct. App. 1980). Such a narrow construction is precisely what Defendant advocates here. We recognize that the New Mexico statute definition allows consideration of the context, and our analysis should not be understood as an attempt to strip the phrase \u201cunless the context requires otherwise\u201d of any meaning. We simply conclude that this language does not have the meaning Defendant suggests \u2014 i.e., that the court was required to instruct the jury that it was to apply the investment contract test stated in Howey to determine whether the interests in the LLC that Defendant sold were securities.\n{27} We conclude that the district court did not err in denying Defendant\u2019s instruction defining \u201csecurity.\u201d That instruction was both confusing and legally inaccurate.\n{28} Defendant\u2019s second argument is that the court wrongly denied his proposed instructions relating to the charges of the sale of unregistered securities. As noted, Defendant was charged with three counts of selling unregistered securities in violation of Section 58-13B-20. This statute provides the following:\nIt is unlawful for a person to offer to sell or sell any security in New Mexico unless:\nA. the security is registered under the New Mexico Securities Act of 1986 [Chapter 58, Article 13B NMSA 1978];\nB. the security or transaction is exempt under that act; or\nC. the security is a federal covered security.\nSection 58-13B-20(B). The district court issued three identical instructions, one for each of the three counts charged, setting out the elements of the crime of selling unregistered securities. The court\u2019s instruction precisely tracks the language of the uniform instruction for this offense. See UJI 14-4301 NMRA. The instruction the court issued states:\nFor you to find [Defendant guilty of the sale of unregistered securities, as charged in Count[s] 2 [5, and 8], the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n1. [Defendant sold a security;\n2. The security was required by the state securities law to be registered with the State of New Mexico prior to the sale;\n3. The security was not registered as required by the state securities law;\n4. This happened in New Mexico on [various dates].\n{29} Defendant proposed an elements instruction that differed from this instruction and the UJI in that it included as an essential element, adding a requirement that \u201c[t]he sale of the security was not an exempt transaction}.]\u201d He also proposed an instruction setting out what constitutes an \u201cexempt transaction\u201d. This instruction informed the jury that if it found Defendant sold securities in the course of exempt transactions, it must acquit him of the crime of selling unregistered securities. This latter instruction was based on UJI 14-4321 NMRA, which courts are instructed to issue if a defendant alleges an exempt sale, and Section 58-13B-27(K), which governs the circumstances under which the sale of a security \u201cby a limited liability company\u201d constitutes an exempt transaction.\n{30} The district court denied both instructions. The court observed that Defendant\u2019s proposed elements instruction deviated from the UJI and further noted that Defendant was not entitled to the other instruction because the issue of exemption was never raised at trial. On appeal, Defendant claims this ruling was in error. He argues that he was entitled to any instruction for which there was sufficient evidence and that failure to instruct a jury on a defendant\u2019s theory of the case is reversible error.\n{31} We find no error in the district court\u2019s decision to reject Defendant\u2019s elements instruction. \u201cWhen a uniform jury instruction exists, that instruction must be used without substantive modification.\u201d State v. Caldwell, 2008-NMCA-049, \u00b6 24, 143 N.M. 792, 182 P.3d 775. As to the district court\u2019s decision to reject Defendant\u2019s instruction defining what constitutes an exempt transaction, we observe that Defendant correctly states the rules regarding a defendant\u2019s entitlement to instructions. See State v. Gaines, 2001-NMSC-036, \u00b6 6, 131 N.M. 347, 36 P.3d 438 (\u201cAs a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.\u201d (internal quotation marks and citation omitted)); State v. Trammel, 100 N.M. 479, 481, 672 P.2d 652, 654 (1983) (\u201cWhen evidence at trial supports the giving of an instruction on a defendant\u2019s theory of the case, failure to so instruct is reversible error.\u201d). However, as the district court observed, at trial Defendant did not advance the theory that the securities at issue were sold during an exempt transaction. The record amply demonstrates this point.\n{32} The court expressed surprise when it learned Defendant was requesting an instruction on the exempt transaction issue and stated \u201c[b]ut you\u2019re not claiming that.\u201d Defendant responded, \u201cActually, we are.\u201d The court replied, \u201cI didn\u2019t hear any evidence of that\u201d and then posed the following question to D efendant: \u201cI thought the only evidence we received was that this was not a security; not that it was an exempt security.\u201d Defendant responded \u201cI think Your Honor is characterizing correctly the gist of our defense at trial.\u201d Nevertheless, Defendant insisted that \u201cI do think there\u2019s facts to support the exemption\u201d and that \u201cthere\u2019s enough information on this record for us to give the defense to the [jjury.\u201d The court disagreed and responded that Defendant \u201cdidn\u2019t argue [that point] at all in his opening\u201d and further stated that Defendant failed to ask the expert witnesses any questions about whether the transaction qualified as exempt. The State agreed and noted its opposition to the inclusion of the exemption issue in the instructions. The court concluded by stating, \u201cI think there\u2019s no evidence to support that [exemption] was ever an issue raised by anybody\u201d and therefore denied the instruction that defined exempt transactions.\n{33} Defendant conceded that his trial theory was exclusively that the interests sold were not securities. This concession adequately supports the district court\u2019s determination that the issue of exemption was not raised at trial. Having failed to raise the issue of exemption at trial, Defendant is not entitled to an instruction on the issue. See State v. Skippings, 2011-NMSC-021, \u00b6 10, 150 N.M. 216, 258 P.3d 1008 (\u201cA defendant is entitled to an instruction on his or her theory of the case.\u201d (internal quotation marks and citation omitted)); State v. Boyett, 2008-NMSC-030, \u00b6 12, 144 N.M. 184, 185 P.3d 355 (\u201cFailure to instruct the jury on a defendant\u2019s theory of the case is reversible error only if the evidence at trial supported giving the instruction.\u201d). We hold that the court did not err in denying Defendant\u2019s proposed instruction setting out what constitutes an exempt transaction.\nD. Sufficiency of the Evidence\n{34} Defendant next claims that \u201c[tjhere was insufficient evidence to support [his] convictions.\u201d He first challenges the evidence related to the nine securities convictions and then addresses the evidence related to his racketeering conviction. We address his arguments in turn and start with standard of review. \u201cWhen evaluating the sufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the [s]tate, resolving all conflicts and indulging all permissible inferences to uphold a verdict of conviction.\u201d State v. Castillo, 2011-NMCA-046, \u00b6 24, 149 N.M. 536, 252 P.3d 760 (internal quotation marks and citation omitted), cert. denied, 2011-NMCERT-004, 150 N.M. 648, 264 P.3d 1171. \u201cWe measure the sufficiency of the evidence against the jury instructions.\u201d Id.\n{35} A closer examination of Defendant\u2019s sufficiency arguments related to his securities convictions reveals that Defendant repeats an argument he has previously made. He argues for the second time that the phrase \u201cunless the context requires otherwise\u201d in the definition of the term \u201csecurity\u201d in the New Mexico Securities Act of 1986 required the jury to apply the investment contract test set out in Howey to determine whether the LLC interest Defendant sold was a security. Defendant claims that the jury was not so instructed and did not perform this analysis. As such, he claims that the evidence was insufficient to support the securities convictions. We have already determined that the Howey test and the federal statute from which it is derived are inapposite here. We proceed to the sufficiency arguments concerning the racketeering charge.\n{36} The jury was instructed that the essential elements of racketeering include the following:\n1. . . . Defendant was associated with an enterprise, namely, The Santa Fe Market.\n2. While associated with that enterprise, . . . Defendant intentionally, and, directly or indirectly, participated or conducted the affairs of the enterprise by engaging in a pattern of racketeering activity.\n3. The pattern of racketeering activity includes two or more of the crimes of:\nA. Securities Fraud as charged in Counts 1, 4, and 7;\n4. This happened in New Mexico on or between December 17, 2003, and April 22, 2004.\nDefendant first argues that if we find insufficient evidence to support Defendant\u2019s convictions for fraudulent practices in connection with the sale of securities, we must vacate the racketeering conviction. We have rejected Defendant\u2019s contention that there is insufficient evidence to support his varying securities convictions. This argument is unavailing.\n{37} Defendant then argues that the State failed to prove \u201cthe existence of an enterprise with which [Defendant] associated.\u201d We disagree. The New Mexico Racketeering Act defines the term \u201centerprise\u201d as \u201ca sole proprietorship, partnership, corporation, business, labor union, association or other legal entity . . .\u201d NMSA 1978, \u00a7 30-42-3(C) (2009) (emphasis added). A limited liability company is a legal entity. See Martinez v. Roscoe, 2001-NMCA-083, \u00b6 7, 131 N.M. 137, 33 P.3d 887 (\u201cState courts have also required artificial legal entities, including limited liability companies, to be represented by a licensed attorney.\u201d). We are persuaded that there was sufficient evidence to establish Defendant associated with an enterprise; namely, the Santa Fe Market. We proceed to the final issue on appeal.\nE. Evidentiary Issue\n{38} Citing Rule 11-404(B) NMRA, Defendant contends that the court erred in allowing the State to \u201cintroduce evidence of his prior convictions, some of which were [more] than ten years old.\u201d The State responds that we need not reach the merits of this claim because Defendant failed to adequately develop it. We agree with the State.\n{39} This portion of Defendant\u2019s brief does not explain the factual underpinnings of his argument. See Muse v. Muse, 2009-NMCA-003, \u00b6 72, 145 N.M. 451, 200 P.3d 104 (\u201cWe will not search the record for facts, arguments, and rulings in order to support generalized arguments.\u201d). Our independent review of the record reveals that Defendant filed a motion to exclude evidence of convictions and prior b ad acts not related to fraud, and a motion to exclude evidence of convictions and prior bad acts more than ten years old. Defendant has not explained what the court decided regarding these motions or what evidence of his prior convictions was admitted.\n{40} Moreover, we observe that Defendant also filed a motion to limit references to his prior convictions to fact of conviction and crime. There, he concedes that his prior fraud and forgery convictions are admissible, notwithstanding Rule 11-404(B), as evidence of these convictions is an essential element of the three counts of fraudulent practices in connection with the sale of securities with which he was charged. Defendant has not explained how we are to make sense of these conflicting motions. In addition, we observe that evidence of prior bad acts \u201cis admissible under Rule [11-404(B)] if it is probative of a material element at issue.\u201d State v. McGhee, 103 N.M. 100, 104, 703 P.2d 877, 881 (1985).\n{41} We hold that Defendant has not sufficiently developed the contention that the district court admitted evidence in violation of Rule 11-404(B). We decline to further review the matter. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, \u00b6 15, 137 N.M. 339, 110 P.3d 1076 (declining to entertain a cursory argument that relied on several factual assertions that were made without citation to the record).\nCONCLUSION\n{42} For the foregoing reasons, we affirm Defendant\u2019s conviction on all counts.\n{43} IT IS SO ORDERED.\nCELIA FOY CASTILLO, Chief Judge\nWE CONCUR:\nMICHAEL D. BUSTAMANTE, Judge\nLINDA M. VANZI, Judge", "type": "majority", "author": "CASTILLO, Chief Judge." } ], "attorneys": [ "Gary K. King, Attorney General Margaret E. McLean, Assistant Attorney General Joel Jacobsen, Assistant Attorney General Santa Fe, NM for Appellee", "Jacqueline L. Cooper, Chief Public Defender Eleanor Brogan, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2012-NMCA-024\nFiling Date: February 10, 2012\nDocket No. 28,167\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL SOUTAR, Defendant-Appellant.\nGary K. King, Attorney General Margaret E. McLean, Assistant Attorney General Joel Jacobsen, Assistant Attorney General Santa Fe, NM for Appellee\nJacqueline L. Cooper, Chief Public Defender Eleanor Brogan, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0321-01", "first_page_order": 337, "last_page_order": 350 }