{ "id": 4249798, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Yvette RODARTE, Defendant-Appellant", "name_abbreviation": "State v. Rodarte", "decision_date": "2011-04-18", "docket_number": "No. 29,956", "first_page": "819", "last_page": "823", "citations": [ { "type": "official", "cite": "149 N.M. 819" }, { "type": "parallel", "cite": "255 P.3d 397" }, { "type": "parallel", "cite": "2011-NMCA-067" } ], "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": "116 N.M. 273", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727664 ], "weight": 10, "year": 1993, "pin_cites": [ { "page": "274" }, { "page": "955" }, { "page": "277-78" }, { "page": "958-59" }, { "page": "277-79" }, { "page": "958-60" }, { "page": "277-79" }, { "page": "958-60" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0273-01" ] }, { "cite": "117 N.M. 508", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552724 ], "weight": 8, "year": 1994, "pin_cites": [ { "page": "510" }, { "page": "256" }, { "page": "511" }, { "page": "257" }, { "page": "511-12" }, { "page": "257-58" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0508-01" ] }, { "cite": "70 N.M. 108", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2851778 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0108-01" ] }, { "cite": "140 P. 1108", "category": "reporters:state_regional", "reporter": "P.", "weight": 3, "year": 1914, "pin_cites": [ { "page": "1109" }, { "page": "1109" }, { "page": "1109" } ], "opinion_index": 0 }, { "cite": "19 N.M. 13", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4706502 ], "weight": 2, "year": 1914, "pin_cites": [ { "page": "16" }, { "page": "16" } ], "opinion_index": 0, "case_paths": [ "/nm/19/0013-01" ] }, { "cite": "2004-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428026 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 18" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0621-01" ] }, { "cite": "2006-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2545160 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 10" }, { "parenthetical": "\"[I]f the record reflects that the judge clearly understood the type of instruction the [defendant wanted and understood the tendered instruction needed to be modified to correctly state the law, then the issue is deemed preserved for appellate review.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0001-01" ] }, { "cite": "2001-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183105 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0258-01" ] } ], "analysis": { "cardinality": 588, "char_count": 12476, "ocr_confidence": 0.683, "pagerank": { "raw": 8.544160138190811e-08, "percentile": 0.4877458106630927 }, "sha256": "a0cbd500582ca53139ab9769f3cb10982489c14f88d5ed83e53fd488e2ba53fe", "simhash": "1:67adcc49b689bc69", "word_count": 2008 }, "last_updated": "2023-07-14T18:48:34.747020+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: JAMES J. WECHSLER and LINDA M. VANZI, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Yvette RODARTE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCASTILLO, Chief Judge.\n{1} Defendant challenges her conviction for fraudulent refusal to return leased property, in violation of NMSA 1978, Section 30-16^40(A)(3) (2006), on grounds that the jury instructions did not include a definitional instruction clarifying the meaning of the term \u201cintent to defraud.\u201d We affirm.\nBACKGROUND\n{2} In June 2006, Defendant leased home furnishings from Aaron\u2019s Sales & Lease Ownership (Aaron\u2019s) in Albuquerque, New Mexico. Aaron\u2019s delivered the furniture to Defendant but never received payment. A manager at Aaron\u2019s contacted Defendant and instructed her to either provide payment or return the furniture. Defendant did neither. Aaron\u2019s then attempted to repossess the furniture but discovered that Defendant had moved from the address she provided. Aaron\u2019s contacted the police in July 2006 and reported the furniture as stolen or fraudulently taken.\n{3} Defendant was indicted in June 2007 on one count of fraudulent acts to obtain or retain possession of leased personal property with a value over $500 but not exceeding $2,500, in violation of NMSA 1978, Section 30-16-39(C) (2006) and, in the alternative, one count of fraudulent refusal to return leased property with a value over $500 but not exceeding $2,500, in violation of Section 30-16-40(A)(3). Defendant was tried before a jury in May 2009 and was found guilty of fraudulent refusal to return leased property. Defendant was acquitted on the other charge. She was sentenced to a conditional discharge and now appeals her conviction. DISCUSSION\n{4} On appeal, Defendant \u201cclaims error with the jury instruction for the charge on which she was convicted.\u201d That charge was based on Section 30-16-40(A)(3), which provides:\nA person who, after leasing ... personal property under a written agreement that provides for the return of ... property to a particular place at a particular time and who, with intent to defraud the lessor of the ... property, fails to return the ... property to the place within the time specified, is guilty of a:\nfourth degree felony if the property ... has a value of over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500)[.]\nThere is no uniform jury instruction for this offense. At Defendant\u2019s trial, both parties proposed instructions purporting to set forth the essential elements of this offense. The court rejected Defendant\u2019s proposed instruction and included the State\u2019s instruction. That instruction directed the jury in the following manner:\nFor you to find [Djefendant guilty of fraudulent refusal to return leased property ..., the [Sjtate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n1. [Djefendant rented or leased furniture through a written agreement that provided for the return of the personal property to a particular place at a particular time;\n2. [Djefendant with intent to defraud Aaron\u2019s of the property failed to return the personal property to the place within a specified time;\n3. The furniture had a value over $500 but not more than $2,500;\n4. This happened in New Mexico on or about the 9th day of June, 2006.\n{5} Defendant argues on appeal that this instruction was insufficient because the term \u201cintent to defraud\u201d was not defined. She claims that a reasonable juror would have been confused by the meaning of that term. She asks that we reverse her conviction and remand for a new trial.\n{6} \u201cThe standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved[,j we review the instructions for. reversible error. If not, we review for fundamental error.\u201d State v. Benally, 2001-NMSC-033, \u00b6 12, 131 N.M. 258, 34 P.3d 1134 (citation omitted).\n{7} The State contends that the arguments Defendant now makes on appeal were not preserved in the district court. According to the State, Defendant did not ask the trial court to issue a definitional instruction. Rather, the State claims Defendant asked the court to graft elements associated with the crime of fraud, see NMSA 1978, Section 30-16-6 (2006), onto the instructions for the crime with which Defendant was charged. This request, the State claims, was properly rejected by the trial court and is different and distinct from Defendant\u2019s argument on appeal.\n{8} Our review of the record reveals that the State\u2019s assertions are correct. Defendant\u2019s proposed instruction included language from UJI 14-1640 NMRA, the uniform jury instruction for the crime of fraud. Defendant\u2019s proposed instruction included the following:\nFor you to find [Djefendant guilty of fraudulent refusal to return leased property ..., the [Sjtate must prove ...:\n1. [D]efendant[,j by way of words or conduct[,j made a promise she had no intention of keeping or misrepresented a fact to Aaron\u2019s ..., intending to deceive or cheat Aaron\u2019s ...;\n2. Because of the promise and Aaron[\u2019s] reliance on it, [Djefendant obtained the furniture[.j\nThese are not elements of the offense of fraudulent refusal to return leased property but are elements of the crime of fraud. Compare Section 30-16-40 with UJI 14-1640. Discussing this proposed instruction, Defendant stated the following at trial:\nWith intent to defraud, I don\u2019t believe that is sufficient to suggest that there is a specific intent and I would ask you to use my ... proposed instruction number 2 because it adds the elements of fraud.... So I believe that you need to add the fraud language because it is included in the statute.\nThe trial court rejected this request and gave the following explanation:\nIt seems to me that what the [djefense is essentially asking is that we engraved [sic] common law fraud concepts onto what\u2019s a statutory offense. And I think the best thing and safest thing to do when we\u2019re dealing with a statutory offense is to track the language of the statute and the State\u2019s instruction does essentially that[.]\n{9} We conclude that Defendant failed to preserve the argument she raises on appeal. See State v. Jemigan, 2006-NMSC-003, \u00b6 10, 139 N.M. 1, 127 P.3d 537 (\u201cGenerally, to preserve error on a trial court\u2019s refusal to give a tendered instruction, the Appellant must tender a legally correct statement of the law.\u201d). We observe that Defendant\u2019s tendered instruction requires the State to prove that she committed fraud in obtaining the property, as well as in refusing to return the property. The charge relates only to the failure of Defendant to return the property. Further, we find no support in the record that would allow us to conclude that the district court understood that Defendant wanted a definitional instruction clarifying the term \u201cintent to defraud.\u201d See id. (\u201c[I]f the record reflects that the judge clearly understood the type of instruction the [defendant wanted and understood the tendered instruction needed to be modified to correctly state the law, then the issue is deemed preserved for appellate review.\u201d). Accordingly, we review Defendant\u2019s argument for fundamental error. Benally, 2001-NMSC-033, \u00b6 12, 131 N.M. 258, 34 P.3d 1134 (stating that, if an issue regarding jury instruction has not been preserved, we review for fundamental error).\n{10} We will not \u201cuphold a conviction if an error implicated a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.\u201d State v. Barber, 2004-NMSC-019, \u00b6 18, 135 N.M. 621, 92 P.3d 633 (internal quotation marks and citation omitted). The specific issue before us is whether the absence of a definitional instruction as to the term \u201cintent to defraud\u201d caused such a \u201cfundamental unfairness\u201d in Defendant\u2019s trial. Id. (internal quotation marks and citation omitted). To answer this question, we evaluate \u201cwhether a reasonable juror would have been confused or misdirected by the jury instruction.\u201d Id- \u00b6 19.\n{11} Before examining Defendant\u2019s arguments, we express our doubts that a jury would be confused or misdirected by the term \u201cintent to defraud.\u201d In State v. Probert, 19 N.M. 13, 16, 140 P. 1108, 1109 (1914), superseded by statute as recognized by State v. Peke, 70 N.M. 108, 371 P.2d 226 (1962), our Supreme Court reached the unremarkable conclusion that \u201c[t]o do an act fraudulently is to do it with intent to cheat and defraud.\u201d Probert, 19 N.M. at 16, 140 P. at 1109. This somewhat circular reasoning does not reveal an analytical flaw. Rather, it illustrates that the terms, \u201cfraud\u201d and \u201cdefraud\u201d are readily understandable. In our view, Probert supports the conclusions that a reasonable juror would understand what the term \u201cdefraud\u201d means and would, therefore, understand what must be present to have an \u201cintent to defraud.\u201d See id. at 16, 140 P. at 1109. We find further support for this conclusion in the crime of fraud by worthless checks and the uniform jury instruction associated with that offense. Intent to defraud is an essential element of fraud by worthless checks. See NMSA 1978, \u00a7 30-36-4 (1963). The uniform jury instruction associated with that offense defines \u201cintent to defraud\u201d as, simply, \u201c[intent] to cheat or deceive.\u201d UJI 14-1670 NMRA. A reasonable juror would not struggle to discern what the phrase \u201cintent to defraud\u201d means. We now turn to Defendant\u2019s arguments.\n{12} Defendant presents five arguments on appeal. First, she observes that the uniform jury instruction for the crime of embezzlement, UJI 14-1641 NMRA, includes the term \u201cfraudulently intended\u201d and provides a definition for this term. This observation does little to resolve the question before us: whether a reasonable juror would be confused by the term \u201cintent to defraud.\u201d Defendant has provided us no authority that the term \u201cfraudulently intended\u201d in the embezzlement statute was defined because jurors could not reasonably be expected to understand the meaning of that term. Defendant\u2019s first argument is unavailing.\n{13} Defendant\u2019s second argument is premised on State v. Clifford, 117 N.M. 508, 873 P.2d 254 (1994) and State v. Green, 116 N.M. 273, 861 P.2d 954 (1993). She argues that these cases support her claim that the district court\u2019s failure to provide a definitional instruction for the term \u201cintent to defraud\u201d was error. These cases do not so hold. In both Clifford and Green, the defendants were charged with embezzlement. Clifford, 117 N.M. at 510, 873 P.2d at 256; Green, 116 N.M. at 274, 861 P.2d at 955. One of the essential elements of this offense is \u201cfraudulent intent.\u201d Green, 116 N.M. at 277-78, 861 P.2d at 958-59. The jury instructions issued in both cases failed to include any reference to this essential element. Clifford, 117 N.M. at 511, 873 P.2d at 257; Green, 116 N.M. at 277-79, 861 P.2d at 958-60. Our Supreme Court concluded, in both cases, that this was reversible error. Clifford, 117 N.M. at 511-12, 873 P.2d at 257-58; Green, 116 N.M. at 277-79, 861 P.2d at 958-60. Green and Clifford do not apply here. At Defendant\u2019s trial, all of the essential elements of the crime of fraudulent refusal to reten leased property were included in the jury instructions. Defendant does not argue to the contrary. She instead claims that a further definitional instruction clarifying the term \u201cintent to defraud\u201d should have been issued. Neither Clifford nor Green stands for the proposition.\n{14} Defendant\u2019s final argument is that jurors are neither appellate judges nor lawyers and, therefore, cannot be expected to understand what the term \u201cintent to defraud\u201d means. We disagree. Our inquiry is whether a reasonable juror would have been confused or misdirected by the instruction proffered. Barber, 2004-NMSC-019, \u00b6 19, 135 N.M. 621, 92 P.3d 633. For the reasons previously stated, we are persuaded that a reasonable juror would understand the meaning of these words. In addition, Defendant has failed to direct us to any concrete evidence that the jury at Defendant\u2019s trial was confused by the instructions.\nCONCLUSION\n{15} For the foregoing reasons, Defendant\u2019s conviction is affirmed.\n{16} IT IS SO ORDERED.\nWE CONCUR: JAMES J. WECHSLER and LINDA M. VANZI, Judges.", "type": "majority", "author": "CASTILLO, Chief Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Andrew S.Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.", "Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2011-NMCA-067\n255 P.3d 397\nSTATE of New Mexico, Plaintiff-Appellee, v. Yvette RODARTE, Defendant-Appellant.\nNo. 29,956.\nCourt of Appeals of New Mexico.\nApril 18, 2011.\nCertiorari Denied, May 20, 2011, No. 32,970.\nGary K. King, Attorney General, Andrew S.Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.\nChief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0819-01", "first_page_order": 845, "last_page_order": 849 }