State v. Elawar

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 29,780 10 MICHAEL ELAWAR, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 13 William G.W. Shoobridge, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Francine A. Chavez, Assistant Attorney General 17 Albuquerque, NM 18 for Appellee 19 Hugh W. Dangler, Chief Public Defender 20 Adrianne R. Turner, Assistant Appellate Defender 21 Santa Fe, NM 22 for Appellant 23 MEMORANDUM OPINION 24 WECHSLER, Judge. 1 Defendant appeals from his conviction of two counts of receiving stolen 2 property—a second-degree felony for retaining 600 gallons of diesel fuel and a fourth3 degree felony for retaining a homemade diesel tank trailer. [RP 49-50, 79] In 4 Defendant’s docketing statement, he argued that there was insufficient evidence to 5 support his convictions. This Court issued a first notice of proposed summary 6 disposition, proposing to affirm. Defendant responded with a memorandum in 7 opposition in which he sought to amend the docketing statement to raise a double 8 jeopardy claim for the first time on appeal. The Court granted Defendant’s motion 9 and proposed to reverse his conviction for the fourth-degree felony and to affirm his 10 conviction for the second-degree felony. The State has filed a memorandum 11 indicating that it does not disagree with the proposed summary reversal of 12 Defendant’s fourth-degree felony conviction. Defendant has filed a memorandum in 13 which he agrees with our proposed reversal of his fourth-degree felony conviction, but 14 continues to maintain that there is insufficient evidence to support his conviction for 15 the second-degree felony. As Defendant’s memorandum raises no new facts or 16 arguments that would warrant reversal of his conviction for the second-degree felony, 17 we now affirm that conviction and reverse his conviction for the fourth-degree felony. 18 Sufficiency of the Evidence 19 Pursuant to State v. Franklin, 78 N.M. 127 , 428 P.2d 982 (1967), and State v. — 2 — 1 Boyer, 103 N.M. 655 , 712 P.2d 1 (Ct. App. 1985) [Def.’s 1st MIO 9; Def.’s 2nd MIO 2 2], Defendant contends that there was insufficient evidence to support the jury’s 3 conclusion that he knew or believed that the trailer and diesel fuel he was transporting 4 were stolen [DS 3-5], that there was insufficient evidence to establish the market value 5 of the fuel [DS 1, 5-6], and that there was insufficient evidence to establish the market 6 value of the fuel trailer [DS 1, 6-7]. In this Court’s first notice of proposed summary 7 disposition, we proposed to hold that, viewing the evidence in the light most favorable 8 to the verdict, there was sufficient evidence to support Defendant’s convictions. As 9 neither Defendant’s first nor his second memorandum in opposition provides any new 10 factual information or legal analysis that would persuade this Court otherwise, we 11 hold that the evidence was sufficient for the reasons stated in our first notice. 12 Double Jeopardy 13 In this Court’s second notice of proposed summary disposition, we proposed 14 to hold that pursuant to Sanchez v. State, 97 N.M. 445, 446 , 640 P.2d 1325 , 1326 15 (1982), Defendant’s two convictions for receiving stolen property violated double 16 jeopardy. In Sanchez, our Supreme Court stated that if a defendant is charged with 17 receiving stolen property, “each [act of] ‘receiving’ of the stolen property is a separate 18 crime and the defendant may be charged with a separate offense for each.” We stated 19 that in this case, it appears that there was evidence that would establish only one act — 3 — 1 of receiving, which included both the fuel and the fuel trailer, and that there was no 2 evidence of any indicia of distinctness to separate the act of receiving the fuel and 3 receiving the fuel trailer. Accordingly, we proposed to hold that Defendant’s two 4 separate convictions violated double jeopardy and to reverse his conviction for the 5 fourth-degree felony. See State v. Garcia, 2009-NMCA-107, ¶ 17 , 147 N.M. 150 , 217 6 P.3d 1048 (reversing the conviction with the lesser penalty upon a finding of a double 7 jeopardy violation), cert. denied No. 31,853 (Aug 18, 2009). 8 Both Defendant and the State have filed memoranda in which they indicate their 9 support for our proposed summary reversal of Defendant’s conviction for the fourth10 degree felony of receiving stolen property. The State, however, asserts that although 11 the judgment lists Defendant’s convictions as “receiving” stolen property [RP 79], the 12 criminal information, the evidence presented at trial, and the jury instructions 13 indicated that the factual predicate for these charges was “retaining” stolen property. 14 We agree with the State, and we also agree that as the analysis for “retaining” stolen 15 property is the same as that for “receiving” stolen property, because the simultaneous 16 possession of stolen items is a single act constituting a single offense, see Sanchez, 97 17 N.M. at 446, 640 P.2d at 1326, Defendant’s two convictions violated double jeopardy. 18 Accordingly, we reverse Defendant’s conviction for the fourth-degree felony of 19 receiving stolen property. — 4 — 1 Therefore, for the reasons provided in this opinion and in our first and second 2 notices of proposed summary disposition, we affirm Defendant’s second-degree 3 felony conviction and reverse his fourth-degree felony conviction. 4 IT IS SO ORDERED. 5 _______________________________ 6 JAMES J. WECHSLER, Judge 7 WE CONCUR: 8 ________________________________ 9 CELIA FOY CASTILLO, Judge 10 ________________________________ 11 TIMOTHY L. GARCIA, Judge — 5 —