TUNNELL V. STATE, 1983-NMSC-013, 99 N.M.
446, 659 P.2d 898 (S. Ct. 1983)
CASE HISTORY ALERT: see ¶2 - affects
1982-NMCA-179
CODY RAY TUNNELL, Petitioner,
vs.
STATE OF NEW MEXICO Respondent.
SUPREME COURT OF NEW MEXICO
1983-NMSC-013, 99 N.M. 446, 659 P.2d 898
ORIGINAL PROCEEDING ON CERTIORARI
JEFF BINGAMAN, Attorney General, ANTHONY
TUPLER, Ass't. Attorney General, Santa Fe, New Mexico, Attorneys for
Respondent.
MICHAEL DICKMAN, Appellate Defender,
LYNNE CORR, Ass't. Appellate Defender, Santa Fe, New Mexico, Attorneys for
Petitioner.
Federici, J., wrote the opinion. WE
CONCUR: H. VERN PAYNE, Chief Justice, DAN SOSA, JR., Senior Justice, WILLIAM
RIORDAN, Justice, HARRY E. STOWERS, JR., Justice, dissenting.
{1} The Court of Appeals was
asked to decide on interlocutory appeal the issue of whether the New Mexico
gross receipts tax may be properly included within the value of an item of
property alleged to have been shoplifted. This is a question of first
impression in New Mexico.
{2} The Court of Appeals,
659
P.2d 902, held that whether the New Mexico gross receipts tax should be
included in the market value of the item is a factual issue for the jury to
determine under the evidence presented in each case. We granted certiorari and
reverse the Court of Appeals and the trial court.
{3} Defendant was arrested
and charged with shoplifting merchandise having a value
{*447}
of more than $100, in violation of Section
30-16-20(B)(2), N.M.S.A. 1978.
Prior to trial, defendant filed a motion to dismiss the charge of fourth degree
shoplifting on the ground that, as a matter of law, he was not guilty of the
alleged criminal offense because the item of property alleged to have been
taken had a value of less than $100 if the gross receipts tax was not added to
the advertised price of the merchandise. The State and defendant agreed to the
following stipulated facts:
1. The marked price of the shoplifted item was $99.99,
exclusive of sales tax.
2. With sales tax included, the price of the shoplifted item
was $103.95.
3. Magistrate Judge Donald Price bound the defendant over on
shoplifting, Fourth Degree, on the basis that market value includes sales tax.
{4} Section
30-16-20(B)(1),
N.M.S.A. 1978, provides that a person convicted of shoplifting merchandise
having a value of not more than $100 is guilty of a petty misdemeanor. Section
30-16-20(B)(2) provides that shoplifting of property with a value of over $100,
but not more than $2,500, constitutes a fourth degree felony.
{5} Defendant contends that
the market value of the merchandise cannot include the New Mexico gross
receipts tax since shoplifting of property is not a taxable event. Defendant
also contends that permitting the tax to be included in the value of the
property runs counter to the established principle of law that criminal
statutes should be strictly construed, and further, that since some counties
and municipalities levy a gross receipts tax while others do not, the penalty
imposed for shoplifting merchandise varies according to the locality where the
offense occurred, constituting an intrusion upon the prerogative of the
Legislature to set criminal penalties.
{6} In view of the result we
reach, it is only necessary for us to consider defendant's first contention,
that the market value of merchandise cannot include the New Mexico gross
receipts tax for the purposes of fixing criminal penalties under Section
30-16-20,
N.M.S.A. 1978.
{7} We agree with the Court
of Appeals opinion to the extent that it holds: (1) that generally the market
value of merchandise alleged to have been shoplifted is a question of fact; (2)
that "value" means "market value"; (3) that under N.M.U.J.I.
Crim. 16.01, N.M.S.A. 1978 (Repl. Pamp. 1982), "market value" means
the price at which the property could ordinarily be bought and sold at the time
of the alleged criminal act; (4) that the terms "market value" and
"retail price" are identical; and (5) that the rules governing proof
of value of property in civil cases are generally applicable in criminal
prosecutions.
{8} We disagree with the
Court of Appeals' conclusion that it is for the jury to determine whether the
gross receipts tax should be included in the market value of an item which has
been shoplifted within the penalties provided under Section
30-16-20, N.M.S.A.
1978.
{9} Shoplifting does not
constitute a sale or a purchase for the purpose of the imposition of a tax
under the Gross Receipts and Compensating Tax Act, Sections 7-9-1 through
7-9-81, N.M.S.A. 1978 (Repl. Pamp. 1980 and Cum. Supp. 1982).
{10} The amount of gross
receipts tax which could have been imposed on a regular sale of merchandise
cannot be included for purposes of determining "value" of the
shoplifted item under Section 30-16-20, unless the
total advertised retail
or actual market price of the merchandise which was shoplifted
included
the amount of New Mexico gross receipts tax applicable to that particular item
of merchandise.
{11} The Court of Appeals and
the trial court are reversed and the cause is remanded to the trial court for
the purposes of dismissing the fourth degree shoplifting count against
defendant and for further proceedings consistent with this opinion.
{12} The Clerk of the Supreme
Court is directed to publish the Court of Appeals opinion, including the
dissent by Judge Ramon Lopez.
WE CONCUR: H. VERN PAYNE, Chief Justice, DAN SOSA, JR.,
Senior Justice, WILLIAM RIORDAN, Justice.