STATE V. MORRISON, 1999-NMCA-041,
127 N.M. 63, 976 P.2d 1015
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
MICHAEL MORRISON, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1999-NMCA-041, 127 N.M. 63, 976 P.2d 1015
APPEAL FROM THE DISTRICT COURT OF LEA
COUNTY. Patrick J. Francoeur, District Judge.
Released for Publication March 17,
1999.
Tom Udall, Attorney General, William
McEuen, Assistant Attorney General, Santa Fe, NM, for Appellee.
C. Barry Crutchfield, Templeman and
Crutchfield, Lovington, NM, for Appellant.
JAMES J. WECHSLER, Judge. WE CONCUR:
THOMAS A. DONNELLY, Judge, RUDY S. APODACA, Judge.
AUTHOR: JAMES J. WECHSLER
{1} Defendant Michael
Morrison appeals from the trial court's judgment and sentence finding him
guilty of one count of forged evidence of financial responsibility in violation
of NMSA 1978, §
66-5-231 (1983) of the Motor Vehicle Code (the forged evidence
statute). Defendant was also convicted of operating a motor vehicle without
complying with the financial responsibility statute, NMSA 1978, §
66-5-205
(1991), and operating a motor vehicle without proper equipment, contrary to
NMSA 1978, §
66-3-801 (1991). These convictions are not challenged on appeal.
Defendant raises two issues on appeal: (1) whether there was sufficient
evidence for the trial court to find Defendant guilty of violating the forged
evidence statute; and (2) whether the trial court erred in its determination
that a conviction for violating the forged evidence statute is a felony as
opposed to a misdemeanor.
{2} For the reasons
discussed below, we reverse the trial court's determination that there was
sufficient evidence to convict Defendant of violating the forged evidence
statute. As a result of this conclusion, we need not reach Defendant's second
issue.
Facts and Procedural History
{3} Defendant was
charged by criminal information with one count of forged evidence (unlawfully
forging evidence of financial responsibility without authority) contrary to
Section 66-5-231, one count of no insurance contrary to Section 66-5-205, and
one count of improper equipment contrary to Section 66-3-801. The parties
stipulated that the arresting officer would have testified to the facts set
forth in the magistrate court complaint. The complaint stated that on August
30, 1996, Officer Jason Green of the Hobbs Police Department observed Defendant
operating a vehicle without a license plate light. Officer Green initiated a
traffic stop and asked Defendant to provide proof of insurance. Defendant
handed the officer a photocopy of an insurance card that Officer Green
suspected of being altered. After being read his
Miranda rights,
Defendant stated that the card might have been altered by his wife and that he
knew the card was not valid when he handed it to the officer. The parties also
stipulated that the wife of Defendant's deceased insurance agent would have
testified that Defendant did not have insurance at the time of his arrest and
that the insurance card presented had been altered.
{4} The trial court
heard argument as to whether the stipulated facts supported a conviction under
Section 66-5-231. The parties framed the issue as whether Defendant's conduct,
by presenting the insurance card knowing it was altered, but with no evidence
that Defendant altered it, constituted a violation of Section 66-5-231. After a
bench trial, the court found Defendant guilty of all counts. Following
Defendant's conviction of violating Section 66-5-231, the State prosecuted
Defendant as an habitual offender and his sentence on this count was enhanced
under the habitual offender statute.
The Stipulated Facts Do Not Support a Violation of Section
66-5-231
{5} Defendant's brief
in chief focuses almost entirely on the argument that Defendant did not violate
Section 66-5-231 because Defendant did not file the altered insurance card with
the Department of Motor Vehicles. Section 66-5-231 reads:
Any person who forges or, without authority, signs any
evidence of financial responsibility or who files or offers for filing any such
evidence knowing or having reason to believe that it is forged or signed
without authority shall be fined not more than one thousand dollars ($ 1,000)
or imprisoned {*65} for not more than
one year or both.
When examined in light of its component parts, however,
Section 66-5-231 can be violated either by forging evidence of financial
responsibility or by signing evidence of financial responsibility
without authority or by filing evidence of financial responsibility
knowing it is forged or signed without authority or by offering to do
so. See State v Dunsmore, 119 N.M. 431, 433, 891 P.2d 572, 574
("The use of the disjunctive 'or' indicates that the statute may be violated
by any of the enumerated methods."). The State does not contend that
Defendant filed the insurance card when he presented it to the officer, and the
State did not accuse Defendant of filing the document in the charging
information. Therefore, the trial court could only find Defendant guilty of
violating Section 66-5-231 by determining that Defendant forged the insurance
card simply by presenting it to the arresting officer with the knowledge that
it had been altered.
{6} In determining
whether there is sufficient evidence to convict Defendant of forging the
insurance card under Section 66-5-231, we first determine the meaning of the
term "forges" as used by the legislature in Section 66-5-231. We then
determine whether there was sufficient evidence to convict under the
definition. The interpretation of the definition of the term "forges"
in the forged evidence statute is a question of law that we review de novo.
See
State v. Rowell,
121 N.M. 111, 114,
908 P.2d 1379, 1382 (1995).
A.Definition of "Forges" in Section
66-5-231
{7} The State argues
that the definition of "forges" in Section 66-5-231 is the same as
"forgery" as defined in the general forgery statute, NMSA 1978, §
30-16-10 (1963).
See also UJI
14-1643 NMRA 1998 (forgery; essential
elements). Under the general forgery statute, a person is guilty of forgery who
knowingly issues or transfers an altered document purporting to have legal
efficacy with intent to injure or defraud.
See § 30-16-10.
{8} Defendant argues,
to the contrary, that there is no evidence that he forged the insurance card.
Defendant apparently contends that the common law definition of forgery applies
to Section 66-5-231. The common law definition of forgery, when applied to
Section 66-5-231, would require that Defendant actually altered the document as
opposed to having knowingly presented an altered document without having
altered it himself.
Compare 4 Charles E. Torcia,
Wharton's Criminal
Law § 476, at 71 (15th ed. 1996) ("Forgery . . . is the false making
or material alteration, with intent to defraud, of a writing which, if genuine,
has apparent legal efficacy."),
with State v. Baca, 1997-NMSC-18,
P18,
123 N.M. 124,
934 P.2d 1053 (holding that, under the statutory definition,
a defendant can be found guilty of forgery if jury finds he knew checks were
forged when he negotiated them or if he forged them himself).
See also
UJI
14-1644 NMRA 1998 (issuing or transferring a forged writing; essential
elements).
{9} To ascertain the
legislature's intended definition of the term "forges" in Section
66-5-231, we review the statutory history of Section 66-5-231 and the general
forgery statute.
See Los Quatros, Inc. v. State Farm Life Ins. Co.,
110
N.M. 750, 753,
800 P.2d 184, 187 (1990). We seek to interpret a statute as the
legislature understood it at the time of enactment.
See State v. Yarborough,
1996-NMSC-68, P29,
122 N.M. 596,
930 P.2d 131. In the absence of evidence to
the contrary, we interpret statutes using the common law concept "most
likely intended by the legislature to be embodied in the statute."
Id.
P 11.
{10} The legislature
enacted the predecessor to Section 66-5-231 in 1955.
See 1955 N.M. Laws,
ch. 182, § 403. At that time, there was no general forgery statute in New
Mexico, only a number of enumerated crimes that involved forgery, including a
separate crime for uttering or issuing a forged document.
See NMSA 1953,
§§ 40-20-1 to -18 (1853, as amended through 1893). The legislature enacted a general
forgery statute in 1963 as part of the revised Criminal Code.
See 1963
N.M. Laws, ch. 303, § 16-9. We believe, therefore, that the legislature
intended
{*66} to use the common law
definition of forgery when it enacted the predecessor to Section 66-5-231,
because no general forgery statute existed at the time.
{11} The legislature
revised and reenacted Section 66-5-231 in 1983 into its present form.
See
1983 N.M. Laws, ch. 318, § 30. When the legislature amends a statute, we assume
that it is aware of existing law.
See State v. Clah, 1997-NMCA-91, P11,
124 N.M. 6,
946 P.2d 210. We also assume that the legislature intends to change
the existing law when it enacts a new statute with substantial rewording.
See
Blackwood & Nichols Co. v. New Mexico Taxation & Revenue Dep't,
1998-NMCA-113, P15,
125 N.M. 576,
964 P.2d 137. Additionally, we strictly
construe a statute which is designed to effect a change from the common law.
See
State v. Bryant,
99 N.M. 149, 150,
655 P.2d 161, 162 ("A statute
designed to effect a change from that which existed under the common law must
be strictly construed; it must speak in clear and unequivocal terms and the
presumption is that no change is intended unless the statute is
explicit."). Thus, we examine the changes made in 1983 to determine if
they clarified or substantially rewrote the existing law or intended to change
the common law.
{12} Our review of the
changes that the legislature made indicates: (1) that the term "shall
forge" was changed to "forges"; (2) the words "any evidence
of proof of financial responsibility" were changed to "any evidence
of financial responsibility"; (3) the words "for the future"
were removed; and (4) the title of the statute was changed from "Forged
proof" to "Forged evidence." Other than these changes and some
punctuation changes, the statute remained the same.
{13} These changes
made by amendment did not materially affect the substance of the statute. They
indicate to us that the legislature intended to restate the existing statute in
a clarified form.
Cf. Blackwood & Nichols Co.,
1998-NMCA-113, P 15
(holding that substantial revision of statute materially changed existing law,
not merely clarified it). Nor do the stylistic changes evidence that the term
"forges" in Section 66-5-231 was to be interpreted differently from
the earlier statute which followed the common law. Nothing in the changes
indicates that the legislature intended to apply the definition of forgery
found in the general forgery statute to Section 66-5-231. Thus, we hold that strict
construction dictates that the term "forges" is to be defined using
its common law meaning.
B. Sufficiency of the Evidence to Convict Defendant
{14} Our review of the
sufficiency of the evidence to convict Defendant of violating Section 66-5-231
consists of determining "'whether substantial evidence of either a direct
or circumstantial nature exists to support a verdict of guilt beyond a
reasonable doubt with respect to every element essential to a
conviction.'"
State v. Clifford,
117 N.M. 508, 512,
873 P.2d 254,
258 (1994) (quoting
State v. Sutphin,
107 N.M. 126, 131,
753 P.2d 1314,
1319 (1988)). "We view the evidence in the light most favorable to
supporting the verdict and resolve all conflicts and indulge all permissible
inferences in favor of upholding the verdict."
Id.
{15} Applying the
interpretation discussed above to the provisions of Section 66-5-231, we
conclude that in order to prove that Defendant violated the statute, the State
must show that Defendant himself actually altered the insurance card. The State
does not contend that the stipulated facts present such evidence. As the State
relies upon a definition of forgery which does not comport with our
construction of Section 66-5-231, we conclude that there was not sufficient
evidence to support Defendant's conviction.
{16} We reverse the
trial court's determination that there was sufficient evidence to convict
Defendant of violating Section 66-5-231.
THOMAS A. DONNELLY, Judge