{ "id": 4334855, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. RAMONA BRADFORD, Defendant-Appellant", "name_abbreviation": "State v. Bradford", "decision_date": "2013-05-09", "docket_number": "Docket No. 31,734", "first_page": "242", "last_page": "246", "citations": [ { "type": "official", "cite": "2013-NMCA-071" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2004-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428026 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0621-01" ] }, { "cite": "2000-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217184 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 17-21" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0230-01" ] }, { "cite": "2003-NMCA-065", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15919 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 56-59" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0636-01" ] }, { "cite": "2011-NMCA-067", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4249798 ], "weight": 8, "pin_cites": [ { "page": "\u00b6\u00b6 7-11" }, { "page": "\u00b6 4" }, { "page": "\u00b6 4" }, { "page": "\u00b6 14" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0819-01" ] }, { "cite": "2011-NMCA-089", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4249821 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 8" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0512-01" ] } ], "analysis": { "cardinality": 500, "char_count": 11342, "ocr_confidence": 0.829, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14663750666544653 }, "sha256": "b49a2cb9a0f92f9bdaae8fab16803f60bab30127d02055b9f6fdb33c33a05df2", "simhash": "1:aa7cac70b1e9e4ab", "word_count": 1788 }, "last_updated": "2023-07-14T21:50:37.461651+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "TIMOTHY L. GARCIA, Judge", "WE CONCUR:", "JONATHAN B. SUTIN, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. RAMONA BRADFORD, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\nThe specific issue before this Court is whether the State\u2019s instructions to the grand jury were insufficient to advise the grand jury on the essential elements of an embezzlement charge in the absence of including the definitional instructions for the terms \u201cfraudulent intent\u201d and \u201cconverted.\u201d We hold that the grand jury was not properly instructed on the essential elements of the embezzlement charge and reverse the district court.\nBACKGROUND\nDefendant was arrested for embezzlement after her employer reported to the police that $2,719.98 was missing from the register and that Defendant was videotaped removing money from the register, placing the money into a register bag, entering the restroom with the bag in her hands, and exiting the restroom and the store without the bag. Following her arrest, a grand jury indicted Defendant for one count of embezzlement. Defendant filed a motion to dismiss the indictment and a motion for reconsideration, arguing that the grand jury was not properly instructed on all elements of her embezzlement charge.\nNMSA 1978, Section 30-16-8(A) (2007) defines \u201cembezzlement\u201d as \u201ca person embezzling or converting to the person\u2019s own use anything of value, with which the person has been entrusted, with fraudulent intent to deprive the owner thereof.\u201d The State instructed the grand jury as follows:\nFor you to return a true bill on the charge of embezzlement you must find probable cause as to each of the following elements: (1) the target was entrusted with property belonging to another, which had a market value of over $2,500 hut no more than $20,000; (2) after being entrusted with the property, the target, with fraudulent intent to deprive the owner of the property, converted it to his own use; and (3) this happened in New Mexico on or about the 26th day of September, 2009.\nDefendant argued that this instruction was insufficient because it failed to include uniform jury instruction (UJI) definitions of \u201cfraudulent intent\u201d and \u201cconverted\u201d for the benefit of the jury. See UJI 14-1641 NMRA. The district court found that the State\u2019s instruction was sufficient to advise the jury and denied Defendant\u2019s motion to dismiss her indictment. The district court also denied Defendant\u2019s motion to reconsider, but certified for interlocutory appeal the question of whether the grand jury was sufficiently instructed on the essential elements of embezzlement.\nSTANDARD OF REVIEW\n\u201cA prosecutor has a duty to advise the grand jury of the essential elements of the charges presented.\u201d State v. Moore, 2011-NMCA-089, \u00b6 8, 150 N.M. 512, 263 P.3d 289 (alteration, internal quotation marks, and citation omitted). This Court reviews de novo the question of whether a grand jury was properly instructed on all essential elements of a charge. Id. \u201c[T]he remedy for a failure to advise the grand jury of the essential elements is a dismissal of the charges without prejudice.\u201d Id.\nDISCUSSION\nThe specific issue before this Court is whether the absence of the definitional terms \u201cfraudulent intent\u201d and \u201cconverted\u201d that are specifically included in UJI 14-1641 rendered the instructions given in this case insufficient to advise the grand jury of the essential elements of Defendant\u2019s embezzlement charge. To answer this question, we must evaluate the current status of grand jury instructions promulgated by the Supreme Court.\nWe first address Defendant\u2019s primary argument. Defendant asserts that the definitions of the two terms at issue must be provided to the grand jury because UJI 14-1641 was adopted for the essential elements of an embezzlement charge and this specific UJI includes the definition of the two terms at issue. Although this general observation regarding UJI 14-1641 is correct, we turn to UJI 14-8005 NMRA to resolve the question of what instructions are properly required to be given to the grand jury.\nUJI 14-8005 provides a sample grand jury instruction involving the crime of burglary and addresses the proper presentation of definitional instructions for the grand jury in both the Use Note and committee commentary. Use Note 3 states that the grand jury \u201cshall be given\u201d the additional definitional instruction of a dwelling house contained in UJI 14-1631 NMRA, if \u201cthe charge is burglary of a dwelling house}.]\u201d The Use Note specifically directs that this definitional instruction \u201cshall be given\u201d even though the elements instruction for burglary, set forth in UJI 14-1630 NMRA, does not independently define a \u201cdwelling house.\u201d Thus, the sample instruction utilized by the Supreme Court in UJI 14-8005 requires that a completely separate UJI definitional instruction be given in order to properly instruct the grand jury regarding burglary of a dwelling house.\nIn contrast to the sample provided in UJI 14-8005, the essential elements instruction for embezzlement specifically includes both of the definitions requested by Defendant as part of the instruction. See UJI 14-1641 (defining both \u201cconversion\u201d and \u201cfraudulent intent\u201d in the appropriate sections of the elements instruction). Thus, the prosecution in the present case did not need to go outside the essential elements instruction to include the definitions that the UJI 14-8005 Use Note apparently recognizes as \u201cshall be given\u201d to the grand jury.\nThe committee commentary also supports a mandate to give the definitional instructions under UJI 14-1641. First, the commentary states that \u201c[applicable [UJIs] giving the essential elements of an offense shall be prepared and presented by the district attorney when the offense is being considered by the grand jury.\u201d UJI 14-8005 committee cmt. (emphasis added). It also states that \u201c}i]f no uniform essential elements instruction is available for an offense, the prosecutor shall instruct the grand jury based on the applicable statute and shall give a copy of the statute or a written instruction derived from the statute to the grand jury for their consideration.\u201d Id. Finally, it states that \u201c}a]ny other instructions, such as definitions, which are to be given with the essential elements instruction, shall also be prepared for the grand jury as required by law.\u201d Id. (emphasis added). Under the committee commentary, it is clear that the definitional instructions that are included within the essential UJI elements instruction for a crime shall be given to the grand jury. As a result, Defendant\u2019s first argument appears to correctly identify the current state of the law regarding the applicable UJIs\u2019 that are to be given to the grand jury.\nWithout any citation to the UJIs or arguments that address the UJIs for grand jury proceedings, the State asserts that the statutory elements set forth in Section 30-16-8(A) are all that is required to be used when instructing the grand jury on a charge of embezzlement. Other than State v. Rodarte, 2011-NMCA-067, 149 N.M. 819, 255 P.3d 397, the relevant authorities cited by the State also predate the current version of UJI 14-8005 adopted by our Supreme Court in 2008. Although this Court previously addressed the need for definitional instructions to the grand jury, the case predates the current version of UJI 14-8005. See State v. Augustin M., 2003-NMCA-065, \u00b6\u00b6 56-59, 133 N.M. 636, 68 P.3d 182 (addressing the need for a definitional instruction on proximate cause to the grand jury). In Rodarte, this Court only addressed the failure to give a definitional instruction during trial but the matter was raised under a fundamental error standard of review. 2011-NMCA-067, \u00b6\u00b6 7-11 (concluding that no fundamental error occurred when a definitional instruction on \u201cintent to defraud\u201d was not given for a conviction involving the refusal to return leased property). Our Supreme Court has not addressed the requirement for providing definitional instructions to the grand jury under UJI 14-8005, but it has previously held that certain definitional instructions are critical at trial, even under a fundamental error standard of review. State v. Mascarenas, 2000-NMSC-017, \u00b6\u00b6 17-21, 129 N.M. 230, 4 P.3d 1221 (recognizing that fundamental error occurred because the definitional instruction for the term \u201creckless disregard\u201d was critical in order to prevent confusion by the jury and of central importance to the defense of the charge at trial).\nWe determine that the State\u2019s reliance on Rodarte is misplaced. First, no UJI existed for the essential elements of the offense of fraudulently refusing to return leased property under NMSA 1978, Section 30-16-40(A)(3) (2006). Rodarte, 2011-NMCA-067, \u00b6 4. The defendant in Rodarte proposed a jury instruction that included elements of the crime of fraud and the instruction was rejected. Id. \u00b6 8. On appeal, the defendant then asserted a new argument \u2014 that it was error not to include a definitional instruction for \u201cintent to defraud,\u201d a term that was part of the essential elements of the offense of fraudulently refusing to return leased property under Section 30-16-40(A)(3). Rodarte, 2011-NMCA-067, \u00b6 4. Applying the general non-UJI approach taken from State v. Barber, 2004-NMSC-019, \u00b6 19, 135 N.M. 621, 92 P.3d 633, this Court determined that a reasonable jury would not be confused or misdirected regarding the term \u201cintent to defraud\u201d and what it means. Rodarte, 2011-NMCA-067, \u00b6 14. We also held that the definitional instruction for \u201cfraudulently intended\u201d in UJI 14-1641 did not translate into a mandatory requirement for the imposition of an \u201cintent to defraud\u201d definitional instruction under Section 30-16-40(A)(3). Rodarte, 2011-NMCA-067, \u00b6 12. This analysis is consistent with established Supreme Court precedent for determining fundamental error where no UJIs exist. Mascarenas, 2000-NMSC-017, \u00b6 20 (recognizing that only where a critical determination is involved will the failure to include a definitional instruction be akin to a missing elements instruction and constitute fundamental error). In the present case, a jury instruction does exist, UJI 14-1641, and the State has been instructed to use the applicable UJI when giving the elements instruction to the grand jury. UJI 14-8005.\nThe unique and distinguishable circumstances in Rodarte do not convince this Court to deviate from the Supreme Court\u2019s instructions in UJI 14-8005 and the accompanying committee commentary. As a result, UJI 14-1641 was required to be given to the grand jury in this case, including the definitional instructions for \u201cfraudulent intent\u201d and \u201cconversion\u201d that are part of this UJI. The failure to give the grand jury the proper instruction for embezzlement from UJI 14-1641 was error.\nCONCLUSION\nForthe foregoing reasons, we reverse the district court\u2019s denial of Defendant\u2019s motion to dismiss the grand jury indictment and remand for a dismissal of the indictment without prejudice.\nIT IS SO ORDERED.\nTIMOTHY L. GARCIA, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nM. MONICA ZAMORA, Judge", "type": "majority", "author": "GARCIA, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM for Appellee", "Bennett J. Baur, Acting ChiefPublic Defender J. K. Theodosia Johnson, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-071\nFiling Date: May 9, 2013\nDocket No. 31,734\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. RAMONA BRADFORD, Defendant-Appellant.\nGary K. King, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM for Appellee\nBennett J. Baur, Acting ChiefPublic Defender J. K. Theodosia Johnson, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0242-01", "first_page_order": 258, "last_page_order": 262 }