March 7, 2019-State of New Mexico v. Tin Cheung, No. A-1-CA-35827

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
I
2 	STATEOFNEWMEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-35827
5 TIN CHEUNG,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Judith K. Nakamura, District Judge
9 Hector H. Balderas, Attorney General
10 Maha Khoury, Assistant Attorney General
11 	Santa Fe, NM
12 for Appellee
13 	Coberly & Martinez, LLLP
14 Todd A. Coberly
15 	Santa Fe, NM
16 for Appellant
17 	MEMORANDUM OPINION
18 	MEDINA, Judge.
19 	{t} 	Defendant Tin Cheung challenges the sufficiency of the evidence supporting
20 his convictions for forgery, conspiracy to commit forgery, racketeering, conspiracy
21 	to commit racketeering, and making false affidavit perjury. The State concedes that
22 Defendant's convictions for forgery, conspiracy to commit forgery, racketeering,
23 	and conspiracy to commit racketeering cannot be sustained. We agree and reverse

1 and vacate those convictions. We disagree with the State, however, that sufficient
2: evidence supports Defendant's sixteen convictions for false affidavit perjury. We
i
3: therefore reverse and vacate those convictions as well.
4 BACKGROUND
5. {2} 	Defendant, along with his co-defendant Gordon Leong (who was tried
6: separately, see State v. Leong, 2017-NMCA-070, 404 P.3d 9, cert. denied, 2017-
7 NMCERT-_ (No. S-1-SC-36576, Aug. 	18, 2017), was charged with multiple
8 felony counts for selling New Mexico driver's licenses or identification cards to
9 foreign nationals in 2009 and 2010. The State charged Defendant as follows: forgery
10 (make or alter), contrary to NMSA 1978, Section 30-16-lO(A)(l) (2006); conspiracy
11 	to commit forgery (make or alter), contrary to NMSA 1978, Section 30-28-2 (1979)
12 and Section 30-16-lO(A)(l); forgery (issue or transfer), contrary to Section 30-16-
13 10(A)(2); conspiracy to commit forgery (issue or transfer), contrary to Section 30-
14 28-2 and Section 30-16-10(A)(2); making false affidavit perjury, contrary to NMSA
15 	1978, Section 66-5-38 (1978, amended 2018); conspiracy to commit false affidavit
16 perjury, contrary to Section 30-28-2 and Section 66-5-38; altering, forging, or
17 making a fictitious driver's license, contrary to NMSA 1978, Section 66-5-18(B)
18 (2004); conspiracy to alter, forge, or make a fictitious driver's license, contrary to
19 	Section 30-28-2 and Section 66-5-18(B); racketeering, contrary to NMSA 1978,
2 	'

1 Section 30-42-4 (2002, amended 2015); and conspiracy to commit racketeering,
2 contrary to Section 30-28-2 and Section 30-42-4.
3 	{3} 	After a jury trial, the jury convicted Defendant of seventy-seven counts
4 consisting of: seventeen counts of forgery (make or alter), nineteen counts of forgery
5 (issue or transfer), two counts of conspiracy to commit forgery (make or alter),
6 nineteen counts of conspiracy to commit forgery (issue or transfer), sixteen counts
7 of false affidavit perjury, two counts of conspiracy to commit false affidavit perjury,
8 one count of racketeering, and one count of conspir~cy to commit racketeering. The
9 district court subsequently entered a stipulated order vacating seventeen convictions
10 	of forgery (make or alter), two convictions of conspiracy to commit forgery (make
11 	or alter), and two convictions of conspiracy to commit false affidavit perjury.
12 Defendant was ultimately sentenced on fifty-six counts. This appeal followed.
13 	{4} 	We discuss the pertinent facts as needed in the context of our legal analysis
14 below.
15 STANDARD OF REVIEW
16 {5} 	"The test for sufficiency of the evidence is whether substantial evidence of
17 either a direct or circumstantial nature exists to support a verdict ofguilty beyond a
18 	reasonable doubt with respect to every element essential to a conviction." State v.
19 Montoya, 2015-NMSC-010, ,-r 52, 345 P.3d 1056 (internal quotation marks and ·
20 citation omitted). We "view the evidence in the light most favorable to the guilty
3

1 verdict, 	indulging 	all reasonable 	inferences 	and resolving 	all 	conflicts 	in the
2 evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, 126, 128
3 N.M. 711, 998 P.2d 176. We "disregard all evidence and inferences" that support a
4 different result. State v. Rojo, 1999-NMSC-001, 119, 126 N.M. 438, 971 P.2d 829.
5 DISCUSSION
6 	{6} 	Defendant challenges all his convictions on sufficiency grounds. In its answer
7 brief, the State concedes that in light of our opinion in Leong, Defendant's forgery,
8 racketeering, and conspiracy convictions must be reversed. As we explain below,
9 we agree.
10 A. 	Forgery and Racketeering
11 	{7} 	"Forgery consists of: ( 1) falsely making or altering any signature to, or any
12 part of, any writing purporting to have any legal efficacy with intent to injure or
13 	defraud; or (2) knowingly issuing or transferring a forged writing with intent to
14 injure or defraud." Section 30-16-10. "Forgery has been defined as a crime aimed
15 	primarily at safeguarding confidence in the genuineness of documents relied upon
16 in commercial and business activity." Leong, 2017-NMCA-070, 1 11 	(internal
17 quotation marks and citation omitted). "Though a forgery, like false pretenses,
18 requires a lie, it must be a lie about the document itself: the lie must relate to the
19 genuineness of the document." Id. (internal quotation marks and citation omitted).
20 "[W]hen a genuine document or writing contains false information, there is no basis
4

J
1 for a charge of forgery." Id. ,-r 14. "[A] writing signed with a defendant's genuine
2 signature is not a false endorsement and cannot support a conviction for forgery."
3 Id.117.
4 	{8} 	In Leong, the defendant, (Defendant's co-defendant) signed an MVD form
5 titled "Affidavit of New Mexico Residency ... by a Relative, Friend, Employer, or
6 Other," and asserted that the applicant for the driver's license resided with him and
7 was a New Mexico resident. 2017-NMCA-070, ,-r,-r 2-3. This Court reversed the
8 defendant's forgery and related conspiracy convictions on the basis that "[the
9 d]efendant did not make or manufacture a false document." Id. ,-r 16. Rather, "he
10 used a genuine MVD affidavit form and signed it with his actual name." Id.
11 	{9} 	Here, as in Leong, eleven of Defendant's nineteen forgery (issue or transfer)
12 convictions stemmed from his genuine signature on MVD affidavits of residency in
13 	which he attested to the residencies of applicants for driver's licenses. Because, as
14 we have held, false statements in an affidavit that the person signs under oath cannot
15 	be a basis for a forgery conviction, id. 	,-r 12, Defendant's convictions must be
16 reversed. To the extent that the remaining seven forgery convictions were based on
17 Defendant having notarized Leong's signature on five certificates of translation for
18 	five driver's license applications and having provided an unswom letter on official
19 Asian Qigong Association of Albuquerque letterhead for one other driver's license
20 application, and for one identification card application, those must also be reversed
5

1 because none relied upon an MVD document bearing Defendant's signature. We
2 reverse and vacate Defendant's nineteen convictions for forgery.
3 {10} 	· Given our holding that Defendant's convictions for forgery cannot stand,
4 Defendant's convictions for conspiracy to commit forgery must necessarily be
5 reversed. See id. ,r 19 (noting that to sustain a conspiracy conviction, the defendant
6 had to have committed the underlying crime). Finally, as with conspiracy to commit
7 forgery, racketeering requires proof of predicate offenses-in this case, forgery-as
8 part of a pattern of racketeering. State v. Loza, 2018-NMSC-034, ,r 16,426 P.3d 34.
9 Here, without the predicate forgery 	convictions discussed above, Defendant's
10 racketeering convictions must also be reversed and vacated.
11 	B. 	Perjury
12 	{11} 	The State opposes Defendant's argument that there is not sufficient evidence
13 	to support Defendant's convictions for false affidavit perjury. In particular, the State
14 contends that circumstantial and documentary evidence can be sufficient for a
15 	perjury conviction. We disagree with the State and decline its invitation to modify
16 New Mexico's two-witness rule. We explain.
17 {12} 	Defendant was convicted of sixteen counts of making false affidavit perjury
18 under Section 66-5-38. That section provides that "any person who makes any false
19 affidavit, or knowingly swears or affirms falsely to any matter or thing required by
20 the terms of the Motor Vehicle Code [NMSA 1978, § 66-1-1 (1978)] to be sworn to
6

1 or affirmed, is guilty of perjury and upon conviction shall be punishable by fine or
2 imprisonment as other persons committing perjury are punishable." Section 66-5-38
3 (1978).
4 	{13} 	Eleven of Defendant's convictions were based on Defendant having signed
5 affidavits of residency, attesting that the applicants resided with him. The evidence
6 supporting the other five convictions were based on Defendant having notarized
7 Leong's 	signature on three certificates of translation for three driver's license
8 applications and having provided an unswom letter of support on official Asian
9 Qigong 	Association 	of Albuquerque 	letterhead 	for 	two 	other driver's 	license
10 applications. Defendant challenges the sufficiency of the evidence for all sixteen
11 	perjury convictions.
12 	1. 	Eleven Affidavits of Residency
13 	{14} 	In order to sustain a perjury conviction in New Mexico, our appellate courts
14 have long required "the testimony of two witnesses [or] ... the testimony of one
15 	witness supported by corroborating evidence or circumstances." State v. Borunda,
16 	1972-NMCA-018, ,r 7, 83 N.M. 563, 494 P.2d 976; see State v. Naranjo, 1979-
17 NMCA-150, ,r 36, 94 N.M. 413, 611 P.2d 1107, aff'd in part and rev'd in part by
18 	1980-NMSC-061, 94 N.M. 407,611 P.2d 1101. Thus, "[the] evidence of one witness
19 alone, not corroborated by any other evidence, is insufficient to warrant a .conviction
20 	on a charge of perjury." Naranjo, 1979-NMCA-150, ,r 36. "Requirements of proof
7

1 in a perjury case are the strictest known to the law, outside of treason charges." Id.
2 ,-r 43. "To meet this challenge, the [s]tate must begin with the fact that an accused is
3 clothed with a presumption that one will tell the truth when under oath and until
4 th[at] presumption is dispelled, one did tell the truth under oath." Id. "[T]o sustain a
5 conviction for perjury, the evidence must be strong, clear, convincing and direct, and
6 based upon proof beyond a reasonable doubt." Id. ,-r 44 (citation omitted). "A heavy
7 burden is placed upon the [s]tate to prove a person guilty of perjury." Id. ,-r 46.
8 {15} 	The State urges this Court to abandon the two-witness rule in favor of reliance
9 on circumstantial evidence alone. Given that we are bound by our Supreme Court
10 precedent, we decline to do so. See Aguilera v. Palm Harbor Homes, Inc., 2002-
11 	NMSC-029, ,-r 6, 132 N.M. 715, 54 P.3d 993. Because the State offered no evidence
12 proving the falsity of the eleven affidavits of residency, Defendant's convictions
13 	cannot stand.
14 2. 	Five Accomplice Liability Convictions
15 	{16} 	Defendant argues that his remaining five perjury convictions lack sufficient
16 evidence because there was no evidence that he swore to, or affirmed falsely to
17 anything required by MVD to be sworn to or affirmed.
18 {17} 	Each of Defendant's five convictions under an accomplice theory was related
19 to one of five distinct applications submitted with documents signed by Leong.
20 There wa_s no testimonial evidence presented at trial that any of the documents
8

1 submitted to support these five applications contained false statements. Under New
2 Mexico's two-witness rule, the State had the burden and failed to prove the crime
3 itself occurred through either two witness testimonies proving the falsity ofLeong's
4 statements contained in these applications or one witness testimony proving the
5 falsity supported by sufficient corroborating evidence. Based on the foregoing, we
6 conclude that the evidence presented by the State was insufficient to reach a
7 conclusion that the crime of making false affidavit perjury was committed by
8 Defendant's co-conspirator.
9 CONCLUSION
10 	{18} 	For the foregoing reasons, we reverse and vacate Defendant's convictions.
11 	{19} 	IT IS SO ORDERED.
12
13 	UELINE R. MEDINA, Judge
14 WE CONCUR:
9