STATE V. GARDNER, 1977-NMCA-129, 91 N.M.
302, 573 P.2d 236 (Ct. App. 1977)
STATE of New Mexico, Plaintiff-Appellee,
vs.
Kevin GARDNER, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1977-NMCA-129, 91 N.M. 302, 573 P.2d 236
Motion for Rehearing Denied November
29, 1977; Writ of Certiorari Denied December 30, 1977
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.
WOOD, C.J., wrote the opinion. HENDLEY and
HERNANDEZ, JJ. (concurring in part and dissenting in part). HERNANDEZ, J.,
concurs.
{*303} WOOD, Chief
Judge.
{1} The indictment charged
defendant with nine criminal offenses. One court was dismissed prior to trial.
Trial was on four counts of fraud, see § 40A-16-6, N.M.S.A. 1953 (2d Repl. Vol.
6); two counts of worthless checks, see § 40-49-4, N.M.S.A. 1953 (2d Repl. Vol.
6); one count of falsely obtaining services or accommodations, see § 40A-16-16,
N.M.S.A. 1953 (2d Repl. Vol. 6); and one count of contributing to the
delinquency of a minor, see § 40A-6-3, N.M.S.A. 1953 (2d Repl. Vol. 6). At the
close of the State's 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.
{2} There is evidence to the
effect that defendant's 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's 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.
{3} (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 "bad
acts", the statement is that no New Mexico cases were found. No authority
of any kind is listed in support of this issue. The "bad acts" 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.
{4} (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's position as to these evidentiary
{*304}
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.
{5} At the time of
defendant's affair with the minor female, he was absent without leave from the
Marine Corps. Over defendant's objection, the trial court admitted this evidence
under Evidence Rule 404(b). Under this rule, evidence of a wrong or act is
admissible "as proof of motive". The trial court correctly admitted
the evidence as tending to prove defendant's motive.
{6} "Motive has been
defined as 'supply[ing] the reason that nudges the will and prods the mind to
indulge the criminal intent.'" 2 Weinstein's Evidence, para. 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's
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).
{7} The 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 "habit" rule.
{8} Evidence Rule 406(a)
provides that "[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..."
{9} Evidence Rule 406(b)
states that habit may be proved "by specific instances of conduct
sufficient in number to warrant a finding that the habit existed...."
{10} The 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 "knew" 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 "[a] number of times when I was living down at his mom's."
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's Restaurant, 89 N.M.
800,
558 P.2d 69 (Ct. App.1976).
{11} Defendant contends the
beating testimony was insufficient to show it was a "habit". That
word "describes one's regular response to a repeated specific
situation." McCormick on Evidence, 2nd Ed., Ch. 17, § 195 (1972).
Defendant asserts the proof is deficient as to what the "specific
situation" 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.
{*305} {12} The "habit" 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's 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
"habit" 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.
{13} Judges Hendley and
Hernandez do not agree with my treatment of the "habit" 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:
(a) The contributing conviction is affirmed.
(b) The other three convictions are reversed. As to these
three convictions, the cause is remanded for a new trial.
HENDLEY and HERNANDEZ, JJ. (concurring in part and dissenting
in part).
HENDLEY, Judge (concurring in part and dissenting in part).
{15} We concur in Chief Judge
Wood's opinion except for that section entitled "Evidence of Habit."
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.
{16} Our difference with
Chief Judge Wood is in his application of habit to the facts of this case.
McCormick on Evidence, ch. 17, § 195 (2d Ed. 1972) states that habit "...
is the person's regular practice of meeting a particular kind of situation with
a specific kind of conduct...." 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.
{17} Neither do we see the
relevancy or materiality of the evidence other than to show defendant as a
"bad guy." State v. Ross, 88 N.M. 1, 536 P.2d 265 (Ct.
App.1975). Thus, the error cannot be considered harmless.
{18} Neither did the evidence
establish defendant's 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's Restaurant, 89 N.M.
800, 558 P.2d 69 (Ct. App.1976).
{19} We reverse the
convictions of the two counts of worthless checks and the one count of falsely
obtaining services or accommodations.