{ "id": 1571108, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Kevin GARDNER, Defendant-Appellant", "name_abbreviation": "State v. Gardner", "decision_date": "1977-11-15", "docket_number": "No. 3083", "first_page": "302", "last_page": "305", "citations": [ { "type": "official", "cite": "91 N.M. 302" }, { "type": "parallel", "cite": "573 P.2d 236" } ], "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": "89 N.M. 800", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861233 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0800-01" ] }, { "cite": "87 N.M. 459", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2834227 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0459-01" ] }, { "cite": "90 N.M. 580", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871323 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0580-01" ] }, { "cite": "89 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868394 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0150-01" ] }, { "cite": "83 N.M. 208", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337230 ], "weight": 2, "year": 1971, "opinion_index": 1, "case_paths": [ "/nm/83/0208-01" ] }, { "cite": "88 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840581 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/88/0001-01" ] }, { "cite": "89 N.M. 800", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861233 ], "weight": 2, "year": 1976, "opinion_index": 1, "case_paths": [ "/nm/89/0800-01" ] } ], "analysis": { "cardinality": 551, "char_count": 10378, "ocr_confidence": 0.812, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.3075156119140537 }, "sha256": "1645034429f12088e038c94dd894e09880a20f6554890c1a3d59298913c371d3", "simhash": "1:9b6c444bb488bc78", "word_count": 1704 }, "last_updated": "2023-07-14T15:07:42.064818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and HERNANDEZ, JJ. (concurring in part and dissenting in part).", "HERNANDEZ, J., concurs." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Kevin GARDNER, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe indictment charged defendant with nine criminal offenses. One count was dismissed prior to trial. Trial was on four counts of fraud, see \u00a7 40A-16-6, N.M.S.A. 1953 (2d Repl. Vol. 6); two counts of worthless checks, see \u00a7 40-49-4, N.M.S.A. 1953 (2d Repl. Vol. 6); one count of falsely obtaining services or accommodations, see \u00a7 40A-16-16, N.M.S.A. 1953 (2d Repl. Vol. 6); and one count of contributing to the delinquency of a minor, see \u00a7 40A-6-3, N.M.S.A. 1953 (2d Repl. Vol. 6). At the close of the State\u2019s case-in-chief, the trial court directed a verdict in favor of defendant on the four fraud counts because the prosecution had been brought under the wrong statute. The jury convicted defendant of the other four counts; defendant appeals. We discuss: (1) preliminary matters; (2) evidence of bad acts; and (3) evidence of habit.\nThere is evidence to the effect that defendant\u2019s female companion, a minor, issued a series of checks when she knew she had insufficient funds with the bank for payment of the checks. There is evidence that these worthless checks were issued with defendant\u2019s knowledge and approval, and that in some instances defendant participated in persuading the merchant to accept the check involved. There is evidence that defendant falsely obtained food and accommodations from an Albuquerque hotel. There is evidence that defendant contributed to the delinquency of the minor female in various ways.\nPreliminary Matters\n(a) N.M.Crim.App. 205 requires the docketing statement to list the issues presented by the appeal, and a list of authorities believed to support the appellate contentions. The docketing statement listed issues (a) through (h). Only two of those issues are argued in the briefs. As to authority for the issue involving \u201cbad acts\u201d, the statement is that no New Mexico cases were found. No authority of any kind is listed in support of this issue. The \u201cbad acts\u201d issue involves Evidence Rule 404(b) and there are several New Mexico cases applying this rule. We remind counsel responsible for filing the docketing statement that in doing so they are subject to the Code of Professional Responsibility. The docketing statement raises questions under Rule 7-102(A)(2), Rule 7-106(B)(1) and Rule 7-106(C)(1). We caution trial counsel that violation of the Code in filing the docketing statement may be treated as contempt of this Court.\n(b) The two issues briefed (the other issues are deemed abandoned, State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct. App.1976)), are evidentiary matters. Even if defendant\u2019s position as to these evidentiary matters had been correct, any error would have been harmless in connection with the contributing conviction. It is undisputed that defendant used false identification to get the minor female admitted to establishments selling alcoholic beverages. Inasmuch as the sentence for contributing is the longest sentence imposed and all sentences are to be served concurrently, a fair question is whether this appeal is no more than an academic exercise at public expense.\nEvidence of Bad Acts\nAt the time of defendant\u2019s affair with the minor female, he was absent without leave from the Marine Corps. Over defendant\u2019s objection, the trial court admitted this evidence under Evidence Rule 404(b). Under this rule, evidence of a wrong or act is admissible \u201cas proof of motive\u201d. The trial court correctly admitted the evidence as tending to prove defendant\u2019s motive.\n\u201cMotive has been defined as \u2018supplying] the reason that nudges the will and prods the mind to indulge the criminal intent.\u2019 \u201d 2 Weinstein\u2019s Evidence, \u00b6 404[09] (1976). There is evidence that the minor female wrote some of the worthless checks to obtain various items of clothing for the defendant. There is also evidence that at times defendant misrepresented his identity. Defendant\u2019s absence from the Marine Corps, without leave, is a motive for these items. State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct.App.1977); State v. McCallum, 87 N.M. 459, 535 P.2d 1085 (Ct.App. 1975).\nEvidence of Habit\nThe minor female testified that defendant would beat her and that she wrote the worthless checks out of fear of another beating. Defendant denied that he had beaten the minor female. He also denied beating a former girl friend and a former wife. The prosecutor, in rebuttal, called a former girl friend and a former wife. They testified that defendant did in fact beat them. Defendant contends this rebuttal testimony was improperly admitted under several of the Evidence Rules. We need not consider these contentions because the trial court properly admitted the rebuttal testimony under the \u201chabit\u201d rule.\nEvidence Rule 406(a) provides that \u201c[e]vidence of the habit of a person ... is relevant to prove that the conduct of the person . . on a particular occasion was in conformity with the habit . . .\u201d\nEvidence Rule 406(b) states that habit may be proved \u201cby specific instances of conduct sufficient in number to warrant a finding that the habit existed. . . .\u201d\nThe proof in this case was by specific instances of beatings administered by defendant to female companions. The former wife married defendant in May, 1975 and lived with him for one month. During this period he beat his wife three or four times. The former girl friend \u201cknew\u201d defendant for two years and dated him until December, 1976. This time period overlaps the time defendant was living with the minor female in this case. The former girl friend testified that defendant beat her \u201c[a] number of times when I was living down at his mom\u2019s.\u201d This testimony is of a sufficient number of instances, and these instances occurred either before or during the time defendant lived with the minor female in this case. See De La O v. Bimbo\u2019s Restaurant, 89 N.M. 800, 558 P.2d 69 (Ct.App. 1976).\nDefendant contends the beating testimony was insufficient to show it was a \u201chabit\u201d. That word \u201cdescribes one\u2019s regular response to a repeated specific situation.\u201d McCormick on Evidence, 2nd Ed., Ch. 17, \u00a7 195 (1972). Defendant asserts the proof is deficient as to what the \u201cspecific situation\u201d was and as to how regular the beatings were in these undisclosed situations. The minor female testified that defendant beat her when defendant was upset about various things, when things did not go as he wished. There was no such testimony from the former girl friend or from the former wife. In this case, it was not necessary.\nThe \u201chabit\u201d in this case is not that defendant regularly beat up females to get them to commit crimes. The specific situation in this case is defendant\u2019s relationship with his female companions. A response of defendant to that relationship was to beat the females. The evidence is that beatings were a regular part of that relationship. The \u201chabit\u201d was that defendant regularly beat his female companions. How was this habit relevant in this case? The minor female testified she wrote the worthless checks out of fear of being beaten. Defendant controverted this explanation when he denied he beat the minor female. With this denial, the fact that he beat other female companions was relevant regardless of the reason for the beatings. This habit of beating female companions tended to show he acted the same way with the minor female in this case, and supported the explanation of why the worthless checks were written.\nJudges Hendley and Hernandez do not agree with my treatment of the \u201chabit\u201d issue, but agree that this issue does not affect the validity of the contributing conviction. The majority view, as to the disposition of this appeal is:\n(a) The contributing conviction is affirmed.\n(b) The other three convictions are reversed. As to these three convictions, the-cause is remanded for a new trial.\nIT IS SO ORDERED.\nHENDLEY and HERNANDEZ, JJ. (concurring in part and dissenting in part).", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "HENDLEY, Judge\n(concurring in part and dissenting in part).\nWe concur in Chief Judge Wood\u2019s opinion except for that section entitled \u201cEvidence of Habit.\u201d We reverse the convictions of the two counts of worthless checks and the one count of falsely obtaining services or accommodations. In reversing these counts we also recognize that no actual benefit is received by the defendant since all the sentences are to run concurrently. The contributing conviction, which carries the longer sentence, was not challenged and is accordingly affirmed.\nOur difference with Chief Judge Wood is in his application of habit to the facts of this case. McCormick on Evidence, ch. 17, \u00a7 195 (2d Ed. 1972) states that habit \u201c. . .is the person\u2019s regular practice of meeting a particular kind of situation with a specific kind of conduct. . . .\u201d See Advisory Committee Notes to Rule 406 of Proposed Rules of Evidence for United States Courts and Magistrates. We fail to see that the evidence presented proved habit or a routine practice. Even assuming defendant did have the habit of beating his women, it was not established that he beat them so as to coerce them into performing illegal acts.\nNeither do we see the relevancy or materiality of the evidence other than to show defendant as a \u201cbad guy.\u201d State v. Ross, 88 N.M. 1, 536 P.2d 265 (Ct.App.1975). Thus, the error cannot be considered harmless.\nNeither did the evidence establish defendant\u2019s character as being that of a violent person and thereby show his intent to coerce the victim to write the checks as the state asserts. The evidence went only to collateral issues. Compare State v. Mordecai, 83 N.M. 208, 490 P.2d 466 (Ct.App. 1971). Defendant was prejudiced by the evidence. The trial court abused its discretion in allowing the evidence to be introduced. See De La O v. Bimbo\u2019s Restaurant, 89 N.M. 800, 558 P.2d 69 (Ct.App.1976).\nWe reverse the convictions of the two counts of worthless checks and the one count of falsely obtaining services or accommodations.\nHERNANDEZ, J., concurs.", "type": "concurring-in-part-and-dissenting-in-part", "author": "HENDLEY, Judge" } ], "attorneys": [ "Jan A. Hartke, Chief Public Defender, Santa Fe, Joseph N. Riggs, III, Asst. Public Defender, Mark Shapiro, Asst. App. Defender, Albuquerque, for defendant-appellant.", "Toney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "573 P.2d 236\nSTATE of New Mexico, Plaintiff-Appellee, v. Kevin GARDNER, Defendant-Appellant.\nNo. 3083.\nCourt of Appeals of New Mexico.\nNov. 15, 1977.\nRehearing Denied Nov. 29, 1977.\nWrit of Certiorari Denied Dec. 30, 1977.\nJan A. Hartke, Chief Public Defender, Santa Fe, Joseph N. Riggs, III, Asst. Public Defender, Mark Shapiro, Asst. App. Defender, Albuquerque, for defendant-appellant.\nToney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0302-01", "first_page_order": 338, "last_page_order": 341 }