STATE V. JOHNSON, 1996-NMCA-017, 121 N.M. 337, 911 P.2d 231
(Ct. App. 1995)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
KENNETH JOHNSON, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1996-NMCA-017, 121 N.M. 337, 911 P.2d 231
APPEAL FROM THE DISTRICT COURT OF LEA
COUNTY. LARRY JOHNSON, District Judge.
Petition for Writ of Certiorari filed
January 8, 1996, denied January 31, 1996. Released for Publication February 7,
1996.
TOM UDALL, Attorney General, GAIL
MacQUESTEN, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellee.
ROBERT E. TANGORA, Santa Fe, New Mexico,
Attorney for Defendant-Appellant.
BENNY E. FLORES, Judge, A. JOSEPH ALARID,
Judge, MICHAEL D. BUSTAMANTE, Judge, concur.
{1} Defendant appeals
his convictions for thirteen counts of unlawful dealing in federal food coupons
under NMSA 1978, Section
30-16-7 (Repl. Pamp. 1994). Defendant was one of
approximately fifty people arrested in an undercover sting operation in Hobbs,
New Mexico. The object of the operation was to investigate and prosecute
persons buying and selling food coupons and to investigate and prosecute other
crimes connected to those dealings. Defendant raises several issues on appeal.
We affirm in part and reverse in part. We affirm on the issue regarding
objective entrapment by way of a circular transaction as to Count I. In this
regard, we hold as a matter of law that based on the facts in the record,
Defendant was not entrapped under this theory. We reverse on the grounds that
the trial court erred in (1) denying Defendant's motion in limine, and (2)
failing to instruct the jury on the single criminal intent doctrine. We remand
for a new trial, and because the evidence on retrial is likely to be different,
we do not address Defendant's remaining issues.
{2} Officer Robert
Sandoval worked as an undercover investigator for the Hobbs Police Department
and was the State's principal witness against Defendant. Officer Sandoval
testified that on May 22, 1993, while in the early stages of his sting
operation, his handgun was stolen from his vehicle. Officer Sandoval suspected
that the person he had given a ride to that day had taken the gun. Officer
Sandoval spoke with several unspecified persons to get information on his
stolen handgun. Officer Sandoval was informed that the person whom he suspected
to have stolen the handgun made arrangements to sell the handgun to Defendant.
Officer Sandoval contacted Defendant and told him that Defendant was the one
seen with the handgun and that Officer Sandoval wanted the handgun back.
Defendant told Officer Sandoval that he had seen the handgun and later told him
that he knew who had the handgun and that he would talk to that person. Officer
Sandoval told Defendant that he was willing to pay to get the handgun back, but
that he could only pay with food coupons. Two days after the handgun was
stolen, Defendant came to Officer Sandoval's residence and told him that the
man who had the handgun wanted $ 150 in cash or $ 300 in food coupons. Officer
Sandoval gave Defendant $ 300 in food coupons in exchange for his handgun.
Defendant was charged for unlawful trading in food coupons.
{3} Over the next six
months, Defendant engaged in twelve more incidents of unlawful buying, trading,
or possessing federal food coupons with Officer Sandoval. Most of the incidents
were initiated by Defendant, whereby Defendant contacted Officer Sandoval to
sell property, such as televisions, guns, and video cassette recorders. In each
count, Defendant accepted food coupons in exchange for either property or
information. Defendant was charged with and convicted of thirteen counts of
violating Section 30-16-7.
{4} Defendant argues
that the trial court erred in denying his motion in limine. At trial, Defendant
moved to limit the State from questioning him as to where he obtained the
property that he traded with Officer Sandoval for food coupons. The basis for
his motion was that his counsel advised him that it was in his best interest to
invoke his right against self-incrimination under the Fifth Amendment to the
United States Constitution.
See U.S. Const. amend. V. The State
responded that the circumstances regarding the way in which the property was
obtained was relevant to the reasons why the property was traded in this
manner. The State conceded that Defendant was not charged with theft of the
property because there was no such evidence, but stated that if Defendant did
testify, asking Defendant where he obtained the property was a legitimate
inquiry. The trial court denied the motion without comment. Based on the trial
court's ruling, Defendant elected not to take the stand.
1 Counsel stated for the record
{*340} that a defendant's right to testify in
his own defense is a fundamental constitutional right under the United States
and New Mexico Constitutions.
See U.S. Const. amend. VI;
N.M. Const.
art. II, § 14.
{5} Questioning
Defendant as to where he obtained the property that he traded for food coupons
was not relevant to the charges for which Defendant was being prosecuted.
Section 30-16-7 states, in relevant part, that "unlawful dealing in
federal food coupons . . . consists of a person buying, selling, trading,
bartering[,] or possessing food coupons . . . with the intent to obtain an
economic benefit to which he is not entitled under the rules and regulations of
the human services department." Simply buying, trading, or possessing food
coupons with the prerequisite statutory intent is enough to violate the
statute. Thus, where Defendant obtained the property that he traded for the
food coupons was irrelevant to the charged offenses in this case.
{6} We have previously
recognized that "the right of a defendant in a criminal case . . . to
testify on his own behalf is an integral part of an accused's constitutional
right to trial by jury. The right to testify is a fundamental privilege firmly
embedded in due process of law and protected by the fourteenth amendment."
State v. Henry, 101 N.M. 277, 280,
681 P.2d 62, 65 (Ct. App. 1984).
Here, as a result of the court's ruling, Defendant was essentially precluded
from testifying in his own defense for fear that he might incriminate himself
regarding an issue not relevant to the charges being prosecuted. Defendant was
thus further prevented from providing testimony in support of his entrapment
defense. Therefore, we hold that the trial court abused its discretion in
denying Defendant's motion in limine.
B. Single Criminal Intent Doctrine
{7} Defendant further
argues, for the first time on appeal, that the trial court committed
fundamental error under
State v. Brooks, 117 N.M. 751,
877 P.2d 557
(1994), by failing to instruct the jury that the State must prove beyond a
reasonable doubt that each count charged was the result of a separate, distinct
criminal impulse. Here, we do not decide whether failure to instruct the jury
on the single criminal intent doctrine constitutes fundamental error under
Brooks.
Rather, because we reverse on other grounds and remand for a new trial, we
address the single criminal intent doctrine in the event that it arises on
retrial.
{8} Initially, the single
criminal intent doctrine, also known as the single larceny doctrine, was
applied to simple larceny.
See State v. Klasner, 19 N.M. 474, 478,
145
P. 679, 680 (1914) (holding that taking nineteen cattle on same day from one
area but belonging to different individuals constituted one larceny as a matter
of law);
State v. Allen, 59 N.M. 139, 140-41,
280 P.2d 298, 299 (1955)
(holding that where trial court could not find, as a matter of law, that a
series of acts were either one or two offenses, question of fact for the jury
to decide). Subsequently the doctrine was applied to embezzlement, another form
of larceny.
See State v. Pedroncelli, 100 N.M. 678, 680,
675 P.2d 127,
129 (1984) (holding that where defendant charged and convicted of one
embezzlement for negotiating twenty-two checks and fourteen cash withdrawal
vouchers over a six-month period, the jury must be instructed on the single
criminal intent doctrine). In the instant case, we apply the single larceny
doctrine to the crime of unlawful dealing in food coupons, which is also a form
of larceny.
See NMSA 1978, ch. 30, art. 16 (Repl. Pamp. 1994).
{9} Under the single
larceny doctrine, if a series of acts cannot be said as a matter of law to be
either a single crime or separate crimes, the factual question of intent must
be decided by the jury.
Brooks, 117 N.M. at 755, 877 P.2d at 561. In
Brooks,
the defendant, who was a bookkeeper for a property management service,
confessed to withholding money from deposits of separate rental accounts on six
days, over a seven-week time period.
Id. at 752, 877 P.2d at 558. Our
Supreme Court held that because it could not "say as a matter of law
whether there existed a single intent, it was fundamental error for the trial
court not to instruct the jury on the single criminal intent doctrine."
Id.
at 755, 877 P.2d at 561.
{*341} {10} Similarly, in this case, Defendant engaged
in sporadic acts with one person of unlawfully buying, trading, and possessing
food coupons. Defendant did not know when he would obtain property or valuable
information to exchange for food coupons. Because we cannot say as a matter of
law whether there existed a separate intent to commit each count charged or if
Defendant's intent was to achieve a single, fraudulent scheme or plan through
the commission of several acts, see id. at 754 n.1, 877 P.2d at 560 n.1,
on retrial, the jury must be instructed on the single criminal intent doctrine.
{11} Next, we address
Defendant's contention that he was entrapped in Count I under the circular
transaction theory enunciated in Baca v. State, 106 N.M. 338, 341, 742
P.2d 1043, 1046 (1987). In Baca, our Supreme Court adopted the objective
standard of entrapment and discussed a circular transaction as being one
Example of entrapment under the objective standard. 106 N.M. at 340-41, 742
P.2d at 1045-46. A circular transaction occurs when "the government [is]
both the supplier and the purchaser of the contraband and [the] defendant [is]
recruited as a mere conduit." Id. at 341, 742 P.2d at 1046. In Baca,
the police agent provided the defendant with drugs and arranged for the sale of
the drugs by the defendant to another police agent. Id. at 339, 742 P.2d
at 1044. The Supreme Court held that the defendant was entrapped as a matter of
law. Id. at 340-41, 742 P.2d at 1045-46.
{12} Here, Officer
Sandoval's handgun was not contraband per se. Further, there is no evidence
that Officer Sandoval supplied the handgun to Defendant in order to purchase it
back from Defendant with food coupons. The evidence is that the gun was stolen
from Officer Sandoval's vehicle. Therefore, we hold that as a matter of law
there was no objective entrapment by way of a circular transaction as to Count
I. However, because we are remanding for a new trial and do not know what the
evidence on retrial will show, we do not address whether entrapment existed as
a matter of law in any other form or whether Defendant was entitled to jury
instructions on any theory of entrapment.
{13} For the foregoing
reasons, we affirm in part, reverse in part, and remand for a new trial.
MICHAEL D. BUSTAMANTE, Judge
1
The State did not argue that Defendant failed to preserve the denial of the
motion in limine by not testifying. See Luce v. United States, 469 U.S.
38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984).