Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
MANUEL MONTANO, Defendant-Appellant.

Nos. 3809-3810 Consolidated

COURT OF APPEALS OF NEW MEXICO

1979-NMCA-101, 93 N.M. 436, 601 P.2d 69

August 14, 1979

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Rozier E. Sanchez, Judge

COUNSEL

JEFF BINGAMAN, Attorney General, SAMMY LAWRENCE PACHECO, JAMES, F., BLACKMER and JANICE M. AHERN, Assistant, Attorneys General, Santa Fe, New Mexico Attorneys for Appellee

JOHN B. BIGELOW, Chief Public Defender, Santa Fe, New Mexico, DENNIS MANZANARES, Assistant Public Defender, MARK SHAPIRO, Assistant Appellate Defender, Albuquerque, New Mexico Attorneys for Appellant

JUDGES

Wood, Chief Judge, wrote the opinion. WE CONCUR: Hendley, J., Andrews, J.

AUTHOR: WOOD

OPINION

{*437} WOOD, Chief Judge.

Venue

Competency

Severance

(a) Defendant wished to testify as to some counts, but not as to others. This does not provide a basis for severance. State v. Blakley, 90 N.M. 744, 568 P.2d 270 (Ct. App. 1977). In addition, this contention ignores the prosecutor's offer not to cross-examine defendant "as to anything he does not testify to."

(b) The motion to sever contended that defendant might be prejudiced through the admission of evidence which fails to meet the "other crimes" test. We understand this to be a claim that trial on all the counts would be prejudicial because, in proving a particular count, evidence would be admitted which, under Evidence Rule 404(b), would be inadmissible in connection with some other count. If this was the contention in the trial court, our answer is that, on appeal, no attempt has been made to demonstrate a violation of Evidence Rule 404(b). {*440} The appellate claim is that trial of all counts necessarily involves a violation of Evidence Rule 403 which requires a balancing of the probative value of evidence against the danger of unfair prejudice. See State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct. App. 1978). We answer this contention under paragraph (e), infra.

(c) Because of the number of counts "the jury is going to be confused and confounded as to what it is we're actually talking about." The record shows to the contrary. The evidence was presented on the basis of specified victims on specified dates. After the nolle prosequi, 51 counts remained. The trial court directed a verdict in defendant's favor as to one count. Fifty counts were submitted to the jury. There were 43 guilty verdicts and 7 non-guilty verdicts. As to two of the victims, defendant was convicted of the vehicular burglary involved, but acquitted of the related larceny and "disposing" charges. There was an acquittal of the disposing charge involving another victim, and an acquittal of the larceny and disposing charges involving still another victim. This record does not show that the jury was confused, but that it carefully applied the evidence to both the offense and victim. See State v. Schifani, supra, and cases therein cited.

(d) Because the trial lasted for seven trial days and because defendant slashed his wrists in the courtroom, during the trial, the argument is that there is "a very serious question about whether the strain had precipitated a psychosis. This is a very serious and unusual type of prejudice...." We assume that defendant is contending that if severance had been granted, the trial would not have lasted so long and defendant would not have slashed his wrists. A seven-day trial on 50 counts cannot be considered a long trial. The medical evidence is that the courtroom wrist slashing was "motivated by extreme fear of being convicted and sentenced to the Penitentiary." If any prejudice resulted from the wrist slashing, the prejudice was based on defendant's conduct and not on the lack of severance.

(e) Defendant contended in the trial court that the "very number" of counts being tried was prejudicial. It is this "very number" on which defendant bases his Evidence Rule 403 argument on appeal. The argument is that the number of counts demonstrates prejudice and requires severance. State v. McGill, 89 N.M. 631, 556 P.2d 39 (Ct. App. 1976) rejected a similar argument, pointing out that evidence as to certain charges was admissible on other charges and that the acquittals on certain charges was an indication that the jury had followed the evidence as to the different charges. Of importance in McGill, supra, and in this case, is that severance was a discretionary ruling, and the appellate issue is abuse of discretion. The admissibility of items of evidence on more than one charge and the jury's verdicts are not the only factors to be considered. The strength or quality of the evidence is another factor, a circumstance to be considered. See State v. Brewer, 56 N.M. 226, 242 P.2d 996 (1952). The strength and quality of the evidence on the various counts convinces us that defendant was not prejudiced by the failure to sever the 50 counts submitted to the jury.

The Meaning of Passing Title

Any person who, with intent to procure or pass title to a vehicle or motor vehicle which he knows or has reason to believe has been stolen or unlawfully taken, receives, or transfers possession of the same from or to another... is guilty...." (Our emphasis.)

At the time he transferred possession of the vehicle, the Defendant intended to permanently transfer the vehicle to another [person.]

{*441} {25} Section 66-3-505, supra, refers to an "intent to... pass title...." The jury instruction did not expressly refer to such an intent; the instruction required an "intent to permanently transfer." Defendant asserts the statutory requirement of intent to pass title was not met by an instruction which required an intent to permanently transfer. On this basis, defendant contends the jury was not instructed on the elements of the offense and his conviction of violating § 66-3-505, supra, must be reversed. We disagree.

{26} Defendant asserts that the thrust of the prosecution's case "was that Mr. Montano had no title to pass." "... Mr. Montano gave no title or keys and did not even indicate the truck was his." "Because Mr. Montano's alleged activity posed no threat to the wheels of traffic in documents of title, it did not meet the statutory definition...."

{27} Defendant would give "title" a restricted meaning. As used in § 66-3-505, supra, "title" has a broad meaning which includes the transfer of whatever title the transferor possesses.

{28} The essence of what is now compiled as § 66-3-505, supra, was enacted by Laws 1953, ch. 138, § 90. This 1953 law was a comprehensive statute relating to motor vehicles; it contained nine articles. Article III dealt with registration and certificates of title. Article IV dealt with transfers of title and included a provision for assigning title by endorsement upon the certificate of title. Section 90 was not a part of either Article III or IV; Section 90 was a part of Article IX, entitled "SPECIAL ANTI-THEFT LAWS." Section 90 was compiled as § 64-9-5, N.M.S.A. 1953. Section 64-9-5, supra, was repealed by Laws 1978, ch. 35, § 554. Laws 1978, ch. 35, § 92 re-enacted § 94-9-5, supra, as § 64-9-5, supra, was worded after an amendment in 1975.

{29} The legislative history shows that § 66-3-505, supra, is a part of the anti-theft provisions of the Motor Vehicle Code and that "title" in § 66-3-505, supra, is not limited to the "certificate of title" or "transfer of title" referred to in other provisions of the code. Accordingly, we reject defendant's claim that § 66-3-505, supra, "was primarily concerned with establishing documentary safeguards of title and protecting their authenticity and use." The primary concern of the portion of § 66-3-505, supra, involved in this case, was to prevent the transfer of stolen vehicles.

{30} "Title" to a vehicle may be transferred, or passed, even though there is a failure to comply with code provisions concerning the certificate of title. Knotts v. Safeco Insurance Company of America, 78 N.M. 395, 432 P.2d 106 (1967); see Forsythe v. Central Mutual Insurance Co. of N.Y., 84 N.M. 461, 505 P.2d 56 (1973).

{31} A thief does not have legal title to (or ownership of) the stolen vehicle, and neither does the purchaser from a thief. See Bustin v. Craven, 57 N.M. 724, 263 P.2d 392 (1953). Yet, § 66-3-505, supra, was intended to prevent such a transfer. What, then, does "title" mean? We note that the statute does not refer to legal title or legal ownership; all that is required is a title that may be passed.

{32} In determining the meaning of "title," defendant urges us to apply its ordinary meaning. See State v. Hernandez, 89 N.M. 698, 556 P.2d 1174 (1976). We do so. A common meaning of title in Webster's Third New International Dictionary (1966) is "the union of all the elements constituting legal ownership and being divided in common law into possession, right of possession, and right of property...." Defendant had neither right of possession nor right of property. The only aspect of "title" in defendant was possession.

{33} In Roberts v. Wentworth, 59 Mass. (5 Cush.) 192 (1849), plaintiff was required to show that he had title to the property at the time of the trespass. The decision points out that "title" is a word of indefinite meaning, and states:

A party may have a title to property although he is not the absolute owner. If he has the actual or constructive possession of property or the right of possession, he has a title thereto, although another {*442} party may be the owner. But if the plaintiff had not the possession, nor the right of possession, nor the right of property, he certainly could not maintain his action.

Bell v. Dennis, 43 N.M. 350, 93 P.2d 1003 (1939) is consistent with Roberts v. Wentworth, supra, when it refers to possession as a badge of ownership.

{34} The "title" requirement of § 66-3-505, supra, may be met by proof that the defendant intended to pass whatever form of title that he had. Defendant had a form of title by his possession, he met the requirement of passing title by intentionally transferring possession of the pickup that he knew was stolen. This interpretation does not result in a redundancy. Defendant must have transferred possession. He must also have had the intent to transfer any title that he possessed.

{35} The State does not urge such a broad meaning of title; it would restrict title to an intent to permanently transfer the vehicle. The concept of "permanent" was rejected as an element of § 66-3-504, N.M.S.A. 1978 which is a part of the same special anti-theft laws as is § 66-3-505, supra. State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct. App. 1969). Neither the wording nor the intent of § 66-3-505, supra, require a concept of "permanency." Any intentional passing of the transferor's title meets the statutory requirement; thus, the requirement of passing title is met where the title is possession and there is an intentional transfer, whether a sale or a loan. This accords with the statutory purpose of preventing the transfer of stolen vehicles.

{36} The instruction in this case was incorrect because the instruction required a permanent transfer. Defendant was not harmed by this error because the error added to the prosecution's burden of proof. The issue, however, is whether the instruction omitted an element of the statutory crime. There was no omission because the instruction stated that defendant must have intended to part with his possession. Since, in this case, defendant's title was his possession, the title element of the statute was met.

{37} Until such time as a uniform is adopted, we suggest that the instruction refer to the "intent to pass title" with an explanation of what is sufficient title under the statute.

{38} The judgments and sentences are affirmed.

{39} IT IS SO ORDERED.

WE CONCUR:

Hendley, J.

Andrews, J.