{ "id": 4239398, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. WYATT EARP, Defendant-Appellant", "name_abbreviation": "State v. Earp", "decision_date": "2014-03-19", "docket_number": "Docket No. 32,512", "first_page": "138", "last_page": "142", "citations": [ { "type": "official", "cite": "2014-NMCA-059" } ], "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": "658 N.Y.S.2d 372", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 1251922 ], "year": 1997, "pin_cites": [ { "page": "373", "parenthetical": "\"Because the defendant had an equitable interest in the items he was charged with damaging or stealing, he could not be charged with these crimes}.] Therefore, the defendant's convictions of criminal mischief in the fourth degree (two counts" } ], "opinion_index": 0, "case_paths": [ "/ad2d/239/0612-02" ] }, { "cite": "116 N.M. 273", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727664 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/116/0273-01" ] }, { "cite": "1993-NMSC-056", "category": "reporters:neutral", "reporter": "NMSC", "weight": 3, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 7" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "2003-NMCA-090", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77195 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 12" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0118-01" ] }, { "cite": "2004-NMCA-111", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224678 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0301-01" ] }, { "cite": "46 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563046 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/46/0412-01" ] }, { "cite": "1942-NMSC-054", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0 }, { "cite": "73 N.M. 347", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321639 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/73/0347-01" ] }, { "cite": "1963-NMSC-223", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 0 }, { "cite": "91 N.M. 200", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571176 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0200-01" ] }, { "cite": "1977-NMSC-108", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 4-6" } ], "opinion_index": 0 }, { "cite": "93 N.M. 4", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568694 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0004-01" ] }, { "cite": "1979-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0 }, { "cite": "301 P.3d 858", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCERT-004", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "304 P.3d 730", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-066", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4333796 ], "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0183-01" ] }, { "cite": "2009-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242622 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0757-01" ] } ], "analysis": { "cardinality": 600, "char_count": 11744, "ocr_confidence": 0.787, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1407305985792994 }, "sha256": "d052e976507ad5ac05322b20c8ae96b800c10846d8a58243739fae51661d4f8b", "simhash": "1:11a0a6779f48aec2", "word_count": 1891 }, "last_updated": "2023-07-14T17:19:17.637489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "M. MONICA ZAMORA, Judge", "WE CONCUR:", "RODERICK T. KENNEDY, Chief Judge", "JONATHAN B. SUTIN, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. WYATT EARP, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nZAMORA, Judge.\n{1} Wyatt Earp (Defendant) appeals his convictions for criminal damage to property pursuant to NMSA 1978, Section 30-15-1 (1963), and for embezzlement pursuant to NMSA 1978, Section 30-16-8 (2007). He raises several issues relating to the jury instructions, evidentiary matters, sufficiency of the evidence, and damages. In this case, the dispositive issue is whether Defendant, as an equitable owner in a residential property, can be criminally charged with embezzling or damaging that property. We hold that he cannot be charged with those property crimes and reverse.\nBACKGROUND\n{2} In July 2006, Defendant purchased a home from Robert Carter (Seller) pursuant to a real estate contract. The terms of the contract provided for a down payment, monthly payments, and payment of the remaining balance in August 2009. When Defendant failed to pay the balance, Seller elected to terminate the contract. Prior to vacating the property, Defendant removed a number of appliances and fixtures from the home and left the home in a state of disrepair. Defendant was subsequently convicted of embezzlement and criminal damage to property.\nDISCUSSION\n{3} This case presents us with the novel question of whether a person who is purchasing a home under a real estate contract, but has not completed his obligations under the contract, c\u00e1n be charged with embezzlement and criminal damage to property for removing appliances and other fixtures from the home upon the seller\u2019s termination of the contract.\nStandard of Review\n{4} The parties\u2019 arguments primarily implicate questions of statutory interpretation. \u201cStatutory interpretation is a question of law, which we review de novo.\u201d State v. Smith, 2009-NMCA-028, \u00b6 8, 145 N.M. 757, 204 P.3d 1267 (internal quotation marks and citation omitted). \u201cOur primary goal when interpreting a statute is to give effect to the Legislature\u2019s intent, which is determined by looking at the plain language used in the statute, as well as the purpose of the underlying statute.\u201d State v. Parrish, 2013-NMCA-066, \u00b6 6, 304 P.3d 730, cert. denied, 2013-NMCERT-004, 301 P.3d 858.\nEquitable Ownership of Property\n{5} Our threshold question is whether Defendant had an ownership interest in the subject residential property. \u201cCriminal damage to property consists of intentionally damaging any real or personal property of another without the consent of the owner of the property.\u201d Section 30-15-1, Likewise, the crime of embezzlement \u201cconsists of a 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 Section 30-16-8(A). The State contends that Defendant\u2019s prosecution under both statutes was proper because the property he removed or damaged was not his own. We disagree.\n{6} It has long been established by New Mexico courts that, under a real estate contract, a purchaser acquires an equitable interest in the property and is treated as the owner of the land. \u201cIn New Mexico[,] the rule is that a [purchaser], under an executory contract for the sale of realty, acquires an equitable interest in the property. By application of the doctrine of equitable conversion, the [purchaser] is treated as the owner of the land and holds an interest in real estate.\u201d Maries v. City of Tucumcari, 1979-NMSC-045, \u00b6 5, 93 N.M. 4, 595 P.2d 1199; see MGIC Mortg. Corp. v. Bowen, 1977-NMSC-108, \u00b6\u00b6 4-6, 91 N.M. 200, 572 P.2d 547 (recognizing that a purchaser, under a real estate contract, holds an equitable interest); Gregg v. Gardner, 1963-NMSC-223, \u00b6 31, 73 N.M. 347, 388 P.2d 68 (\u201cIt is equally clear from our decisions that in equity a contract for sale of real estate results in the purchaser acquiring an equitable interest in the land which he may devise by will[.]\u201d); Mesich v. Bd. of Cnty. Comm\u2019rs of McKinley Cnty., 1942-NMSC-054, \u00b6 16, 46 N.M. 412, 129 P.2d 974 (\u201cIn law the effect of a contract whereby the owner agrees to sell and another agrees to purchase a designated tract of land, the vendor remains the owner of the legal title to the land . . . [b]ut, in equity the [purchaser] is held to have acquired the property ... [and] is looked upon and treated as the owner of the land and the equitable estate thereof as having vested in him.\u201d).\n{7} In Marks, and within the context of property tax, our Supreme Court examined property interests under executory contracts for the sale of real estate or real estate contracts. In New Mexico, the rule is that a purchaser, under a real estate contract, acquires an \u201cequitable interest in the property\u201d and \u201c[b]y application of the doctrine of equitable conversion, the [purchaser] is treated as the owner of the land and holds an interest in [the] real estate.\u201d 1979-NMSC-045; see NMSA 1978, \u00a7 7-35-2(G) (1994) (defining an \u201cowner\u201d as a \u201cperson in whom is vested any title to property\u201d). Because a purchaser under a real estate contract holds equitable title and because the Property Tax Code defines \u201cowner\u201d as the holder of any title, the purchaser under a real estate contract is an \u201cowner\u201d under the Code. Section 7-35-2(G)\n{8} More recently, this Court has held that a purchaser holding equitable title to property can be characterized as owning that property. Santa Fe Cnty. Bd. of Cnty. Comm\u2019rs v. Town of Edgewood, 2004-NMCA-111, \u00b6 5, 136 N.M. 301, 97 P.3d 633 (stating that in the context of a statute regarding annexation, \u201cthe plain meaning of \u2018owning land\u2019 is to have equitable or legal fee title ownership of real estate\u201d (emphasis added)).\n{9} In this case, Defendant held equitable title to the property by virtue of the real estate contract. Defendant\u2019s ownership interest is also evidenced by specific provisions of the contract that (1) allow Defendant to take and retain possession of the property; (2) require Defendant to keep the property insured \u201cfor the benefit of [Defendant] and Seller\u201d; (3) require Defendant to pay the property tax; and (4) grant Defendant conditional rights to sell or assign his interest in the property. Accordingly, Defendant can be characterized as owning the property at issue.\n{10} Having established that Defendant had an equitable ownership interest in the property he is accused of criminally damaging, we turn now to the question of whether he can be charged under Section 30-15-1 and Section 3 0-16-8 for damaging or removing property in which he had such an interest.\nCriminal Damage to Property\n{11} Criminal damage to prop erty consists of \u201cintentionally damaging any real or personal property of another without the consent of the owner of the property.\u201d Section 30-15-1. \u201cThe criminal damage to property statute ... is founded in the common law, and at common law, the crime could not be committed if the perpetrator was one of the owners of the property. We presume the [Legislature adopted the common law meaning in enacting the statute.\u201d State v. Powels, 2003-NMCA-090, \u00b6 18, 134 N.M. 118, 73 P.3d 256 (Wechsler, L, specially concurring). \u201cIt stretches the plain, unambiguous wording of Section 30-15-1\u201d to allow for prosecution for damage to \u201cproperty which a person owns.\u201d Powels, 2003-NMCA-090, \u00b6 12. Where ambiguity exists in the statute, \u201cwe are required to construe that ambiguity strictly against the [s]tate, because it is also the common law in New Mexico that penal statutes must be resolved in favor of lenity.\u201d Id. Accordingly, we conclude that Section 30-15-1 does not apply to property in which Defendant has an equitable ownership interest.\n{12} To the extent that the State argues that \u201cproperty of another\u201d includes property in which Defendant shares an ownership interest with Seller, we disagree. \u201cThe meaning of \u2018property of another\u2019 has been expanded by statute in other states to include a greater number of owners and possessors than at common law},]\u201d however, \u201c}t]here has been no such statutory modification in Section 30-15-1. On the contrary, the statute continues to adhere to the common law concept by requiring that the damage to the property be \u2018without the consent of the owner of the property.\u2019 \u201d Powels, 2003-NMCA-090, \u00b6 8 (citation omitted). It does not include property in which Defendant has an ownership interest.\nEmbezzlement\n{13} The crime of embezzlement was not recognized in common law but was statutorily created because common law larceny required a taking and therefore did not allow for prosecution of a person who was lawfully in possession of property of another. State v. Green, 1993-NMSC-056, \u00b6 6, 116 N.M. 273, 861 P.2d 954. Initially, English embezzlement statutes allowed \u201cpersons, such as bank employees and store clerks, who might have lawful possession of the property of another . . . to be convicted of embezzlement if they fraudulently converted the property in their lawful possession to their own use.\u201d Id. The early New Mexico embezzlement statute (1882 N.M. Laws, ch. LII, \u00a7 22) was similar to the English statutes, however, it \u201cadded \u2018agent\u2019 to the list of persons (servants, clerks, and employees) who could be held accountable under the statute.\u201d Green, 1993-NMSC-056, \u00b6 7.\n{14} \u201cLater versions of our embezzlement statute . . . , replaced the list of the types of persons who would be held accountable under the statute with the phrase similar to \u2018a person in lawful possession of the property of another\u2019 or to \u2018a person entrusted with the property of another.\u2019 \u201d Id. (citation omitted). The current version of our embezzlement statute states in relevant part: \u201cEmbezzlement consists of a 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 Section 30-16-8(A).\n{15} Because embezzlement necessarily requires the conversion of the property of another, \u201c[a] defendant cannot be guilty of embezzlement with respect to property owned jointly by him, or in which he has an interest}.]\u201d 3 Wharton\u2019s Criminal Law \u00a7 407 (15th ed.) (footnotes omitted); see also Wayne R. LaFave 3 Subst. Crim. L. \u00a7 19.6 (2d ed.) (\u201c}I]f one co-owner in possession of the jointly-owned property misappropriates the whole of such property for his own bad purposes,... cases generally hold that there is no embezzlement.\u201d (footnote omitted)).\n{16} In other contexts, courts have held that a person with an equitable interest in property cannot be convicted of embezzling such property because it is not solely the property of another. See People v. Person, 658 N.Y.S.2d 372, 373 (App. Div. 1997) (\u201cBecause the defendant had an equitable interest in the items he was charged with damaging or stealing, he could not be charged with these crimes}.] Therefore, the defendant\u2019s convictions of criminal mischief in the fourth degree (two counts) and petit larceny must be reversed, those counts of the indictment dismissed, and the sentences imposed thereon vacated.\u201d (citations omitted)). Similarly, here, we conclude that Section 30-16-8, like Section 30-15-1, does not apply to property in which Defendant has an equitable interest.\nCONCLUSION\n{17} For the foregoing reasons, we reverse Defendant\u2019s convictions for criminal damage to property and embezzlement. We need not address Defendant\u2019s remaining arguments.\n{18} IT IS SO ORDERED.\nM. MONICA ZAMORA, Judge\nWE CONCUR:\nRODERICK T. KENNEDY, Chief Judge\nJONATHAN B. SUTIN, Judge", "type": "majority", "author": "ZAMORA, Judge." } ], "attorneys": [ "Gary K. King, Attorney General MargaretMcLean, Assistant Attorney General Santa Fe, NM", "for Appellee", "Overstreet & Associates, P.C. S. Thomas Overstreet Alamogordo, NM", "for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-059\nFiling Date: March 19, 2014\nDocket No. 32,512\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. WYATT EARP, Defendant-Appellant.\nGary K. King, Attorney General MargaretMcLean, Assistant Attorney General Santa Fe, NM\nfor Appellee\nOverstreet & Associates, P.C. S. Thomas Overstreet Alamogordo, NM\nfor Appellant" }, "file_name": "0138-01", "first_page_order": 154, "last_page_order": 158 }