{ "id": 2828365, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Thomas A. LARD, Defendant-Appellant", "name_abbreviation": "State v. Lard", "decision_date": "1974-01-23", "docket_number": "No. 1341", "first_page": "71", "last_page": "76", "citations": [ { "type": "official", "cite": "86 N.M. 71" }, { "type": "parallel", "cite": "519 P.2d 307" } ], "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": "84 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772390 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0275-01" ] }, { "cite": "82 N.M. 509", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325604 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0509-01" ] }, { "cite": "79 N.M. 385", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737677 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0385-01" ] }, { "cite": "78 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322364 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/78/0655-01" ] }, { "cite": "81 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359847 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0445-01" ] }, { "cite": "79 N.M. 36", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2742972 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0036-01" ] }, { "cite": "82 N.M. 235", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334686 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/82/0235-01" ] }, { "cite": "77 N.M. 79", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803920 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0079-01" ] }, { "cite": "75 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5373612 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0537-01" ] }, { "cite": "78 N.M. 600", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324063 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0600-01" ] }, { "cite": "76 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500657 ], "weight": 5, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0111-01" ] }, { "cite": "76 N.M. 671", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504311 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0671-01" ] }, { "cite": "37 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "226 N.C. 216", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616488 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/nc/226/0216-01" ] }, { "cite": "97 L.Ed. 593", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1953, "opinion_index": 0 }, { "cite": "344 U.S. 604", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300869 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/us/344/0604-01" ] }, { "cite": "83 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334177 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0487-01" ] }, { "cite": "83 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336944 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0541-01" ] }, { "cite": "84 N.M. 306", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766078 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0306-01" ] }, { "cite": "83 N. M. 599", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5339065 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0599-01" ] }, { "cite": "42 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569795 ], "weight": 2, "year": 1937, "opinion_index": 0, "case_paths": [ "/nm/42/0001-01" ] }, { "cite": "51 N.M. 184", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1578214 ], "weight": 2, "year": 1947, "opinion_index": 0, "case_paths": [ "/nm/51/0184-01" ] }, { "cite": "85 N.M. 699", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775492 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0699-01" ] } ], "analysis": { "cardinality": 683, "char_count": 13996, "ocr_confidence": 0.804, "pagerank": { "raw": 5.014778369917547e-07, "percentile": 0.936373703640637 }, "sha256": "a23b76b05bcef27f6cdc25f712ebd1522528d4189217de411b3e5cec5b8bbd40", "simhash": "1:a80fad63154e2875", "word_count": 2335 }, "last_updated": "2023-07-14T22:44:27.328252+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Thomas A. LARD, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant appeals his conviction of larceny of money in excess of $100.00 but not more than $2500.00. Section 40A-16-1, N.M.S.A. 1953 (2d Repl.Vol. 6). He also appeals his sentence as an habitual offender. Section 40A-29-5, N.M.S.A. 1953 (2d Repl.Vol. 6). The issues are: (1) sufficiency of the evidence as to the larceny; (2) admissibility of a statement allegedly privileged; and (3) propriety of the enhanced sentence.\nThe trial proceedings were tape recorded through the use of a four channel tape recorder. The parties stipulated that the appeal could be presented on the basis of the original district court file and a duplicate tape. The stipulation was approved by the trial court and this Court. Compare State ex rel. Moreno v. Floyd, 85 N.M. 699, 516 P.2d 670, decided December 7, 1973. The result of so proceeding is that notice of appeal was filed in the district court on October 10, 1973, and the record for appeal purposes was filed in this Court on October 18, 1973. This eight-day period is to be compared with the ninety-day period allowed by applicable appellate rules. We commend the trial court and both counsel for their efforts in seeking ways to shorten the appellate process in criminal cases.\nSufficiency of the evidence.\nThe claim concerning the sufficiency of the evidence has three parts. The first two parts concern the defense motion at the close of the State\u2019s case in chief. At that point in the trial, defendant moved for a directed verdict on the basis that there was: (a) insufficient evidence to prove that defendant took the money and (b) insufficient evidence that the amount of money taken exceeded $100.00. Defendant asserts the denial of this motion as an independent point in this appeal.\nOnce the motion was denied, defendant proceeded to introduce evidence for the defense. In so doing he waived his claim that the evidence at the close of the State\u2019s case was insufficient for submission to the jury. State v. Smith, 51 N.M. 184, 181 P.2d 800 (1947); State v. Vargas, 42 N.M. 1, 74 P.2d 62 (1937). We add, however, that testimony of the witness Brown is substantial evidence that defendant took the money and that testimony of the witnesses Ausburn, Palmer and Brown is substantial evidence that the money taken exceeded $100.00.\nThe third part of this claim is directed to the sufficiency of the evidence once all testimony had been introduced. Defendant did not move for a directed verdict at the close of all the evidence. Because defendant did not do so, the State contends the defendant waived any claim that the evidence was insufficient.\nThe State\u2019s contention was correct under prior law. State v. Sandoval, 83 N. M. 599, 495 P.2d 379 (Ct.App. 1972); see State v. Cebada, 84 N.M. 306, 502 P.2d 409 (Ct.App. 1972). However, the Rules of Criminal Procedure changed this requirement. Section 41-23-40(j), N.M.S.A. 1953 (2d Repl.Vol. 6, Supp. 1973) provides: \u201cOut of the presence of the jury, the court shall determine the sufficiency of the evidence, whether or not a motion for directed verdict is made.\u201d The absence of a motion for a directed verdict at the close of all the evidence did not waive the claim that the evidence was insufficient at that point because the trial court was required to make that determination in the absence of a motion. This required determination is therefore an issue before us on appeal.\nDefendant testified. He admitted he took the money, but claimed that the amount he took was $82.00. The effect of this testimony, if believed, would be to reduce his crime from a fourth degree felony to a petty misdemeanor. See \u00a7 40A-16-1, supra. Defendant\u2019s contention is that he should have been believed; that testimony of witnesses placing the amount of money in excess of $100.00 should not be believed because of their motives. This third part of the sufficiency of the evidence issue is a claim concerning the credibility of the witnesses and the weight to be given their testimony. Such is to be determined by the jury. State v. Valles, 83 N.M. 541, 494 P.2d 619 (Ct.App. 1972). The appellate court does not weigh the evidence, nor may it substitute its judgment for that of the jury. State v. Page, 83 N.M. 487, 493 P.2d 972 (Ct.App. 1972).\nThe claim concerning the sufficiency of the evidence is without merit.\nAdmissibility of a statement allegedly privileged.\nIn answering the contentions concerning the sufficiency of the evidence we omitted any reference to the witness Evelyn Green. Her testimony supports other evidence concerning both the taking of the money and the amount of money taken. Defendant objected to her testimony, claiming it should not have been admitted under the husband-wife privilege.\nThe claim of privilege is based on Rule 505, New Mexico Rules of Evidence. Section 20-4-505, N.M.S.A. 1953 (Repl. Vol. 4, Supp. 1973). That privilege, generally speaking, is that an accused spouse in a criminal proceeding may prevent the other spouse from testifying against the accused. The evidence is that Evelyn Green was \u201cliving with\u201d the defendant at the time of defendant\u2019s larceny but was not married to defendant. Defendant asserts the privilege applies to these circumstances.\nWe disagree. \u201cSpouse,\u201d by definition, means a married person. Webster\u2019s Third New International Dictionary (1966). \u201cMarriage\u201d is a civil contract requiring a license. Sections 57-1-1, N.M. S.A. 1953 (Repl.Vol. 8, pt. 2) and 57-1-10, N.M.S.A. 1953 (Repl.Vol. 8, pt. 2, Supp. 1973). The claim that Evelyn Green and defendant were living together \u201cas man and wife\u201d is insufficient to show a marriage under New Mexico statutes and, therefore, is insufficient to show that Evelyn was defendant\u2019s spouse. The testimony of \u201ca mistress or concubine, being not a legal wife,\u201d 'is admissible. II Wigmore on Evidence, \u00a7 605 (3rd ed. 1940); see Lutwak v. United States, 344 U.S. 604, 73 S. Ct. 481, 97 L.Ed. 593 (1953); State v. Setzer, 226 N.C. 216, 37 S.E.2d 513 (1946).\nEvelyn Green\u2019s testimony was admissible ; the privilege did not apply.\nPropriety of the enhanced sentence.\nDefendant\u2019s sentence for the larceny was enhanced as provided in \u00a7 40A-29-5, supra. The enhancement resulted because of two prior convictions. The prior convictions were under \u00a7 54-6-38(B) (2), N.M.S.A. 1953 (Repl.Vol. 8, pt. 2, Supp. 1971) which, at the time of conviction, was a part of New Mexico\u2019s Drug and Cosmetic Act. Section 54-6-38(B) (2), supra, was subsequently repealed and a new \u00a7 54-6-38 was enacted. Laws 1972, ch. 84, \u00a7 47.\nThe prior convictions were for sale or delivery of an hallucinogenic drug (LSD). Defendant asserts his sentences for these prior convictions were under \u00a7 54-6-51, N.M.S.A. 1953 (Repl.Vol. 8, pt. 2, Supp. 1971) as that section was worded prior to its amendment by Laws 1972, ch. 84, \u00a7 53.\nNeither the repeal of \u00a7 54-6-38(B) (2), supra, nor the changes in penalties effected by the amendment to \u00a7 54 \u2014 6-51, supra, are involved in this appeal. See State v. Darrah, 76 N.M. 671, 417 P.2d 805 (1966).\nThe sentences actually imposed for the two hallucinogenic drug offenses do not appear in the record. Defendant asserts that he received an enhanced sentence for the second hallucinogenic drug offense and, because of this enhancement, he could not be subjected to a \u201csecond enhancement\u201d under \u00a7 40A-29-5, supra. He relies on State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966).\nFactually, State v. Lujan, supra, does not apply. In Lujan, supra, a defendant\u2019s sentence for a narcotic drug offense was enhanced under \u00a7 40A-29-5, supra. A prior offense, giving rise to the enhancement, was a non-narcotic drug offense. The enhanced sentence under \u00a7 40A-29-5, supra, was held to be erroneous because the Legislature had enacted specific punishments for violations of the Narcotic Drug Act. These specific punishments included enhanced penalties for repeated drug offenses. The enhanced penalties contained no provision for considering non-narcotic drug convictions. Because of the specific penalty provisions, the general habitual offender statute did not apply.\nHere, the enhanced sentence was imposed for the latest offense committed, the larceny. See State v. Tipton, 78 N.M. 600, 435 P.2d 430 (1967). There are no specific enhancement penalties for larceny, thus, the general enhancement statute, covering all felonies without regard to type, is applicable. That general statute is \u00a7 40A-29-5, supra.\nAlthough Lujan, supra, is not applicable to the facts of this case, it does raise the question of whether a specific enhancement provision applicable to Drug and Cosmetic Act conviction prohibits the use of such conviction under \u00a7 40A-29-5, supra.\nDefendant\u2019s argument bottoms on the contention that he received an enhanced sentence for his second hallucinogenic drug conviction. He relies on \u00a7 54-6-51 (G), supra, which reads:\n\u201cUpon a second or subsequent conviction of an adult for any violation for which a penalty is provided in this section, the imposition or execution of a sentence shall not be suspended or deferred and parole shall not be granted until one-third [1/3] of the minimum sentence provided for the offense has been served.\u201d\nWhat does the above quoted provision do? It removes the trial court\u2019s discretion to defer or suspend the sentence. Section 40A-29-15, N.M.S.A. 1953 (2d Repl. Vol. 6). It also may have an effect on when a prisoner is eligible for parole. Section 41-17-24, N.M.S.A. 1953 (2d Repl. Vol. 6). Thus, the possible effect of the quoted statute is to increase the amount of time to be served in prison. See Aragon v. Cox, 75 N.M. 537, 407 P.2d 673 (1965), overruled on other grounds, State v. Chavez, 77 N.M. 79, 419 P.2d 456 (1966) [State v. Chavez, supra, was questioned in the specially concurring opinion in State v. Riley, 82 N.M. 235, 478 P.2d 563 (Ct.App. 1970)].\nThe possible increase in prison time, however, is not an increase in the overall length of the sentence; the quoted statute makes no change in either the minimum or maximum length of the sentence.\nIn most instances, time under a deferred or suspended sentence, or time on parole, is counted in determining whether a sentence has been served. As to deferred or suspended sentences, see \u00a7 41-17-28.-1(B), N.M.S.A. 1953 (2d Repl.Vol. 6); State v. Reinhart, 79 N.M. 36, 439 P.2d 554 (1968); State v. Murray, 81 N.M. 445, 468 P.2d 416 (Ct.App. 1970); State v. Sublett, 78 N.M. 655, 436 P.2d 515 (Ct.App. 1968). As to time on parole, see \u00a7 41-17-30, N. M.S.A. 1953 (2d Repl.Vol. 6); Conston v. New Mexico St. Bd. of Probation & Parole, 79 N.M. 385, 444 P.2d 296 (1968). The total length of a deferred or suspended sentence, or the time served on parole, cannot exceed the maximum authorized sentence for the crime involved. Sections 40A-29-19 and 41-17-30, N.M.S.A. 1953 (2d Repl. Vol. 6).\nSince out-of-prison time under the above procedures in most instances counts as time served, and since such out-of-prison time may not exceed the maximum sentence, the effect of the quoted statute is on where the sentence is to be served. We recognize that requiring a portion of the sentence to be served in prison is properly to be considered an enhanced penalty. Compare State v. Soria, 82 N.M. 509, 484 P.2d 351 (Ct.App. 1971).\nThis enhanced penalty, however, applies to the sentence for a second or subsequent violation of \u00a7 54-6-38 (B) (2), supra. This enhancement is not involved in the sentence for the larceny offense. It is the fact of the prior felony, not the sentence imposed for the prior felony, that is the basis for the enhanced sentence imposed for the larceny conviction. State v. Gonzales, 84 N.M. 275, 502 P.2d 300 (Ct.App. 1972).\nThe question then is whether the requirement that a portion of the sentence imposed for a second violation* of \u00a7 54-6-38(B)(2), supra, prohibits the use of that conviction in imposing an enhanced sentence under \u00a7 40A-29-5, supra. We hold that it does not. Neither \u00a7 54-6-51, supra, nor \u00a7 40A-29-5, supra, expressly prohibit such use. The wording of the two statutes does not conflict. Since the enhanced penalty for a second violation of \u00a7 54-6-38(B)(2), supra, is limited to the place where the sentence is to be served, we do not discern a legislative intent to prohibit use of the conviction as a basis for an enhanced sentence under \u00a7 40A-29-5, supra.\nDefendant contends the enhanced penalty for a second violation of \u00a7 54-6-38(B) (2), supra, is a special statute and that this special statute must be applied, and not \u00a7 40A-29-5, supra, which is a general statute. See State v. Riley, supra. The \u201cspecial statute\u201d rule is not applicable because the two statutes do not cover the same thing. The enhanced penalty of \u00a7 54-6-51, supra, applies only to defendant\u2019s sentence for his violation of \u00a7 54-6-38(B) (2), supra. The enhanced penalty of \u00a7 40A-29-5, supra, is applied on the basis of the prior conviction, not the prior sentence.\nThe judgment and sentence is affirmed.\nIt is so ordered.\nHENDLEY and LOPEZ, JJ., concur.\nAPPENDIX\nDear Judge Wood:\nThe following is a comparative cost breakdown on the appeal in State v. Lard, which is being heard directly from the tape recording. With the type of machine we have been using, past experience has indicated there are about 12.4 tape counter units per written page if transcribed. In the present case there were 2031 tape counter units or 164 written pages if transcribed. The person who monitored the recorder during the trial and duplicated the tapes is a secretary earning $420.00 a month or $2.42 per h\u00f3ur. The reporter is paid $1,100.00 a month or $6.31 per hour.\n. Appended to this opinion is the substance of costs. the trial judge\u2019s letter concerning comparative", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Stephen F. Grover, Farmington, for defendant-appellant.", "Byron Cat\u00f3n, Thomas J. Hynes, Asst. Dist. Attys., Eleventh Judicial District, Farmington, for plaintiff-appellee." ], "corrections": "", "head_matter": "519 P.2d 307\nSTATE of New Mexico, Plaintiff-Appellee, v. Thomas A. LARD, Defendant-Appellant.\nNo. 1341.\nCourt of Appeals of New Mexico.\nJan. 23, 1974.\nStephen F. Grover, Farmington, for defendant-appellant.\nByron Cat\u00f3n, Thomas J. Hynes, Asst. Dist. Attys., Eleventh Judicial District, Farmington, for plaintiff-appellee." }, "file_name": "0071-01", "first_page_order": 101, "last_page_order": 106 }