March 30, 2020- State of New Mexico v. John C. Pacheco, No. A-1-CA-37105

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37105	4
JOHN C. PACHECO,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY	7
Steven Blankinship, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
M. Victoria Wilson, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
The Law Office of Scott M. Davidson, Ph. D., Esq.	14
Scott M. Davidson	15
Albuquerque, NM	16
for Appellant	17
MEMORANDUM OPINION	18
MEDINA, Judge.	19
{1} 	Defendant John Pacheco appeals his conviction for fraud over $20,000.	20
Defendant raises three issues. First, he challenges the sufficiency of the evidence	21
supporting his conviction. Second, he contends the district court’s exclusion of eBay	22
Court of Appeals of New Mexico
Filed 3/30/2020 8:42 AM

2
and Craigslist postings for sales of concession trailers was an abuse of discretion.	1
Third, he argues that cumulative error warrants reversal. We affirm.	2
BACKGROUND	3
{2} 	Defendant was charged with one count of fraud over $20,000, contrary to	4
NMSA 1978, Section 30-16-6(F) (2006). The district court subsequently granted	5
Defendant’s Rule 5-601 NMRA motion to dismiss. This Court reversed the dismissal	6
in State v. Pacheco, 2017-NMCA-014, 388 P.3d 307, and remanded the case for	7
trial.	8
{3} 	The following evidence was presented during Defendant’s bench trial. In	9
February 2012 Defendant offered to purchase Richard Aguilar’s (Aguilar) business,	10
Coffee Pronto, located in Ruidoso, New Mexico, for $43,000. Defendant disclosed	11
his assets, including a concession trailer he claimed was worth $65,000, to convince	12
Aguilar that he would not default on the purchase. Aguilar accepted the offer. He	13
and Defendant signed a two-year purchase agreement in which Defendant agreed to	14
pay for the business by making: (1) a $5,000 down payment; (2) twenty-four	15
monthly payments of $600; (3) a second payment of $5,000; and (4) a balloon	16
payment of $18,600 at the end of the two year term. Defendant made the down	17
payment and the first three payments.	18
{4} 	When the fourth payment was due, Defendant e-mailed Aguilar, who had	19
since moved to Oklahoma City, Oklahoma, stating that he was going to walk away	20

3
from the purchase agreement unless Aguilar agreed to lower the price to $24,000,	1
lower his monthly payments to $350, and allow him to make a balloon payment at	2
the end of the second year. Defendant alternatively proposed that Aguilar accept his	3
concession trailer in exchange for release of the remaining $36,200 debt, asserting	4
that he had the original manufacture purchase invoices for the trailer and the added	5
equipment. The following morning, Defendant emailed Aguilar various photographs	6
of the concession trailer as well as two invoices. The invoices showed that Defendant	7
paid $32,821 for the concession trailer and $10,275 for additional equipment.	8
Believing the invoices to be genuine, and that they showed the trailer and equipment	9
were worth more than what Defendant owed him, Aguilar accepted the concession	10
trailer and equipment as payment for Defendant’s $36,200 debt. On July 13, 2012,	11
Aguilar signed an agreement releasing Defendant from his debt. Aguilar took	12
possession of the trailer and transported it to Oklahoma City, Oklahoma, where he	13
listed it for sale. Aguilar soon discovered the invoices misrepresented the price	14
Defendant paid for the concession trailer and equipment.	15
{5} 	Ruidoso Police Detective Ray Merrit investigated the transaction between	16
Defendant and Aguilar. Detective Merrit obtained copies of the original invoices	17
related to Defendant’s purchase of the trailer and equipment. Those invoices	18
revealed: (1) Defendant purchased the trailer for $12,243.18; (2) Defendant paid	19
$2,690 for the equipment; (3) the equipment Defendant purchased was different than	20

4
what Defendant represented on the invoices; and (4) Defendant had deleted the	1
address and phone number for the business from the invoices. Detective Merrit	2
interviewed Defendant who admitted to altering the invoices before providing them	3
to Aguilar, claiming that he did so to reflect what he believed the trailer was worth.	4
{6} 	Unable to sell the concession trailer on his own, Aguilar took the trailer to a	5
large auction house, which sold the trailer on August 11, 2012, for $11,894.50. After	6
paying 	the 	costs 	associated 	with 	the sale, 	Aguilar 	recovered 	$8,726.46. 	On	7
September 10, 2012, Aguilar filed a UCC-1 Financing Statement to “show[] that	8
there was still money owed.” The district court found Defendant guilty of fraud over	9
$20,000. This appeal followed.	10
DISCUSSION	11
I. 	Sufficiency of the Evidence Supporting Defendant’s Conviction	12
{7} 	Defendant argues that the State presented insufficient evidence to support his	13
fraud conviction. “The test for sufficiency of the evidence is whether substantial	14
evidence of either a direct or circumstantial nature exists to support a verdict of	15
guilty beyond a reasonable doubt with respect to every element essential to a	16
conviction.” State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal	17
quotation marks and citation omitted). We “view the evidence in the light most	18
favorable to the guilty verdict, indulging all reasonable inferences and resolving all	19
conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-	20

5
009, ¶ 26, 128 N.M. 711, 998 P.2d 176. The question on appeal is whether the trial	1
court’s “decision is supported by substantial evidence, not whether the [district]	2
court could have reached a different conclusion.” In re Ernesto M., Jr., 1996-	3
NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. We therefore disregard all evidence	4
and inferences that support a different result. State v. Rojo, 1999-NMSC-001, ¶ 19,	5
126 N.M. 438, 971 P.2d 829.	6
{8} 	In order to convict Defendant of fraud as charged in this case, the State was	7
required to prove beyond a reasonable doubt that Defendant: (1) by any words or	8
conduct, misrepresented a fact to Aguilar; (2) intended to deceive or cheat Aguilar;	9
(3) because of the promise or representation and Aguilar’s reliance on it, Defendant	10
obtained property or money valued in excess of $20,000; (4) the property or money	11
belonged to someone other than Defendant; and (5) the fraud took place in New	12
Mexico. 	See 	§ 30-16-6(F); UJI 14-1640 NMRA (essential elements of fraud	13
instruction).	14
A. 	Defendant Misrepresented Facts	15
{9} 	With regard to the first factor, Defendant provided Aguilar with falsified	16
invoices on which he inflated the amount he paid for the trailer and equipment by	17
over $28,000. The falsified invoices also misrepresented what equipment Defendant	18
purchased for the trailer. This evidence is sufficient to establish that Defendant	19
misrepresented a fact, specifically, the amount of money he paid for the trailer and	20

6
equipment, what equipment he purchased, and that the invoices were the original	1
manufacture purchase invoices.	2
B. 	Defendant Intended to Deceive and/or Cheat Aguilar	3
{10} 	“[A]n individual’s intent is seldom subject to proof by direct evidence, [and]	4
may be proved by circumstantial evidence.” State v. Allen, 2000-NMSC-002, ¶ 65,	5
128 N.M. 482, 994 P.2d 728 (internal quotation marks and citation omitted). In this	6
case, Defendant asked Aguilar to accept the concession trailer in exchange for	7
release of his 	$36,200 	debt. Defendant 	provided 	Aguilar with 	invoices 	that	8
represented he paid $43,096 for the trailer and equipment when in fact he only paid	9
$14,933. This evidence supports the second factor and the district court’s reasonable	10
inference that Defendant intended to deceive Aguilar as to the value of the	11
concession trailer and to cheat him by inducing the release of his debt in exchange	12
for the trailer. See State v. Crews, 1989-NMCA-088, ¶ 16, 110 N.M. 723, 799 P.2d	13
592 (affirming that “[i]ntent to defraud can reasonably be inferred from the actions	14
of [the] defendants in furnishing incorrect documentation”).	15
C. 	Aguilar Relied on Defendant’s Misrepresentations	16
{11} 	With regard to the third factor, Defendant contends “materiality” is an element	17
of fraud and that “[e]ven assuming [Defendant’s] statements were false”1 they were	18
1 A comparison of the invoices Defendant provided to Aguilar to the invoices
subpoenaed from the manufacturer, not to mention Defendant’s admission to
altering the invoices, indisputably reveals that Defendant made false representations

7
not “material where the release agreement made no reference to these prices.”2 We	1
disagree. In, State v. Garcia our Supreme Court explained that to establish the	2
reliance element of fraud, the state must prove that a particular misrepresentation of	3
fact “induced the victim to act in a way that the victim would not have otherwise	4
acted.” 2016-NMSC-034, ¶ 18, 384 P.3d 1076 (internal quotation marks and citation	5
omitted).	6
{12} 	Aguilar testified that he would never have signed the release agreement had	7
he 	been 	provided 	the 	original 	invoices, 	and 	that 	the 	purported 	original	8
manufacturer’s invoices were “very” important to him because “that’s what . . .	9
established the value for the trade for releasing [Defendant] from the contract.”	10
Aguilar believed that execution of the release agreement for consideration of the	11
trailer 	satisfied 	Defendant’s 	$36,200 	obligation 	under 	the 	original 	purchase	12
agreement. 	This 	testimony 	is 	sufficient 	to 	establish 	that 	Aguilar 	relied 	on	13
Defendant’s misrepresentations. We reiterate the question is not whether there is	14
evidence from which the district court could have reached a different conclusion but	15
rather whether substantial evidence supports its conclusion. In re Ernesto M., Jr.,	16
1996-NMCA-039, ¶ 15. Aguilar’s testimony along with the invoices, are sufficient	17
regarding his purchases of the trailer, related equipment, and authenticity of the
invoices.
2 The fictitious invoices are exhibits to the release agreement

8
to prove that Defendant’s misrepresentations induced Aguilar to release him from	1
his debt, which he would not have otherwise done.	2
{13} 	To the extent Defendant directs us to Aguilar’s testimony in a corresponding	3
civil case and a UCC-1 Financing Statement filed by Aguilar, to show the falsified	4
invoices were not material to Aguilar’s decision to enter into the release agreement,	5
we remain unpersuaded because we do not reweigh potential conflicting evidence	6
on appeal. See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482	7
(recognizing that it is for the fact-finder to resolve any conflict in the testimony of	8
the witnesses and to determine where the weight and credibility lie).	9
D. 	Defendant Obtained Property or Money Valued in Excess of $20,000	10
{14} 	Defendant 	contends 	the 	State 	failed 	to 	prove 	anything 	“of 	value 	was	11
transferred to [Defendant] as a result of the alleged fraud.” Defendant draws our	12
attention to the fact that Aguilar did not transfer title to the coffee kiosk and that the	13
UCC-1 Financing Statement indicated that he still retains an ownership in the coffee	14
kiosk.	15
{15} 	Defendant’s argument conflates the transfer of value under the purchase	16
agreement for the value conferred by the release agreement. Regardless of whether	17
title transferred pursuant to the purchase agreement, or whether Aguilar retained an	18

9
ownership interest in the business,3 Defendant was still contractually obligated to	1
satisfy the debt thereunder, a debt amounting to approximately $36,200. By virtue	2
of his misrepresentation, Defendant induced Aguilar to release him from this	3
obligation and therefore received the value of the released debt. Cf. Sanchez v.	4
Saylor, 2000-NMCA-099, ¶¶ 14-16, 129 N.M. 742, 13 P.3d 960 (concluding that	5
promissory notes which had been forgiven and released had compensable value).	6
Even if we account for the amount Aguilar eventually received from the sale of the	7
trailer, Defendant still received a value of approximately $27,473, an amount greater	8
than the $20,000 required to establish fraud in the second degree.	9
{16} 	To the extent Defendant again directs us to Aguilar’s testimony in the	10
corresponding civil case and the UCC-1 Financing Statement, suggesting it is	11
evidence of the State’s failure to demonstrate the transfer of value or value exceeding	12
$20,000, we do not consider potential contrary evidence when evaluating the	13
sufficiency of the evidence. Rojo, 1999-NMSC-001, ¶ 19; Salas, 1999-NMCA-099,	14
¶ 13.	15
3 We note that though Defendant contends the UCC-1 Financing Statement
evidences a continued ownership interest, at most the financing statement represents
a security interest and does not necessarily equate to an ownership interest. See Alvin,
Inc. v. Manis, 1998-NMCA-011, ¶ 5, 124 N.M. 544, 953 P.2d 309 (“The purpose of
a 	financing 	statement 	is 	to 	notify 	third 	parties 	of 	the 	possibility 	of 	prior
encumbrances and alert them to the need for investigation.” (internal quotation
marks and citation omitted)); see also NMSA 1978 § 55-9-102(a)(32) (2013)
(defining “encumbrance” as a “a right, other than an ownership interest, in real
property”).

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{17} 	Finally, we decline to address Defendant’s argument that Aguilar’s efforts to	1
sell the trailer should somehow mitigate his culpability, as the argument is	2
unsupported by any relevant authority. “Where arguments in briefs are unsupported	3
by cited authority, we assume that counsel, after diligent search, was unable to find	4
any supporting authority.” State v. Bregar, 2017-NMCA-028, ¶ 48, 390 P.3d 212	5
(alterations, internal quotation marks, and citation omitted)). In the absence of	6
citation to authority we decline to address Defendant’s argument. See State v. Nozie,	7
2009-NMSC-018, ¶ 15, 146 N.M. 142, 207 P.3d 1119 (“[A]n appellate court is not	8
required to review issues raised in appellate briefs that are unsupported by cited	9
authority.” (internal quotation marks and citation omitted)); State v. Vigil-Giron,	10
2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts will not consider an	11
issue if no authority is cited in support of the issue and that, given no cited authority,	12
we assume no such authority exists.”). Accordingly, we hold that sufficient evidence	13
supports Defendant’s conviction.	14
II. 	The District Court Properly Excluded Defendant’s Collection of Internet	15
Listings	16
{18} 	Defendant argues the district court improperly excluded printouts of eBay and	17
Craigslist listings of “comparable” concession trailers during his bench trial.	18
Defendant specifically contends it was error to exclude the sales listings because	19
they were: (1) “probative evidence of the approximate market value of the	20
concession trailer”; (2) showed the ease with which Aguilar could have discovered	21

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such information; and (3) demonstrated that Aguilar could have sold the trailer for	1
an amount that made him whole under the release agreement thereby negating “the	2
State’s contention of fraud.” The State responds that the market value of the trailer	3
is irrelevant and that each of its trial objections supported the exclusion of the	4
listings.	5
{19} 	We review the “admission or exclusion of evidence for abuse of discretion.”	6
State v. Suazo, 2017-NMSC-011, ¶ 9, 390 P.3d 674 (internal quotation marks and	7
citation omitted). “An abuse of discretion occurs when the ruling is clearly against	8
the logic and effect of the facts and circumstances of the case. We cannot say the	9
trial court abused its discretion by its ruling unless we can characterize [the ruling]	10
as clearly untenable or not justified by reason.” Rojo, 1999-NMSC-001, ¶ 41	11
(internal quotation marks and citation omitted).	12
{20} 	The facts surrounding Defendant’s attempt to introduce the listings are as	13
follows. During cross-examination, defense counsel showed Aguilar a collection of	14
eBay and Craigslist listings for concession trailers that were used as evidence in the	15
related civil trial. Aguilar did not recognize the listings. The State objected to the	16
admission of the listings arguing:	17
There’s no foundation . . . . The witness has testified he doesn’t	18
recognize this document. He can’t lay the proper foundation. My	19
understanding is that counsel is the one that printed these off. But	20
they’re also advertisements for what people are asking, not what people	21
paid. But they’re also hearsay. They’re also not disclosed.	22

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I got this today in the middle of trial. The first time I’ve seen it, so it	1
violates [Rule 5-]502 [NMRA]of the rules of criminal procedure and	2
all of those, you know, hearsay, relevance, [Rule 11-]403 [NMRA].	3
The district court sustained the State’s objection without explanation.	4
A. 	Defendant Failed to Establish the Relevance of the Listings	5
{21} 	“Evidence is relevant if . . . it has any tendency to make a fact more or less	6
probable than it would be without the evidence, and . . . the fact is of consequence	7
in determining the action.” Rule 11-401 NMRA. Defendant’s primary argument	8
relies on an erroneous conflation of the market value of the trailer with the value	9
received by virtue of the released debt. While seemingly related, as we explain	10
below, evidence of the trailer’s potential market value is not relevant to the fact	11
finder’s determination of whether Defendant received value exceeding $20,000 at	12
the time fraud occurred.	13
{22} 	The State was required to establish Defendant obtained property or money	14
valued in excess of $ 20,000. Section 30-16-6(F). Fraud is complete upon taking or	15
misappropriation. See State v. Higgins, 1988-NMCA-072, ¶ 8, 107 N.M. 617, 762	16
P.2d 904 (“The essence of fraud is a taking or misappropriation, and the crime is	17
complete when that occurs.”). Significantly, pecuniary loss by a victim is not	18
required for fraud to occur. See State v. Clifford, 1994-NMSC-048, ¶ 16, 117 N.M.	19
508, 873 P.2d 254 (stating that “a criminal conviction for fraud does not require that	20
the victim suffer a pecuniary loss”). Rather, “the degree of the crime must be	21

13
measured by the value of the property obtained by the defendant as a result of the	1
deception, rather than the value of any property received by the victim.” State v.	2
Martinez, 1979-NMCA-104, ¶ 14, 95 N.M. 795, 626 P.2d 1292 (internal quotation	3
marks and citation omitted). Therefore even if—as Defendant argues—the internet	4
listings could be used to show that Aguilar might have recovered more money for	5
the trailer, such a fact is of no consequence to the question before the district court	6
i.e. whether the value conferred to Defendant, at the time the release agreement was	7
signed, was in excess of $20,000.	8
{23} 	Defendant’s contention that the availability of comparative sales information	9
is relevant to the question of fraud is also unavailing. Defendant’s argument suggests	10
a requirement that the victim’s response to the fraud be reasonable. This argument	11
is 	akin 	to 	the Defendant’s 	arguments 	regarding 	sufficiency and 	is 	similarly	12
unsupported by authority and undeveloped. Thus we assume counsel was unable to	13
find any supporting authority. Bregar, 2017-NMCA-028, ¶ 48. Accordingly, we	14
conclude that Defendant has failed to show how the internet sales listings were	15
relevant to the matter before the district court. See State v. Duffy, 1998-NMSC-014,	16
¶ 31, 126 N.M. 132, 967 P.2d 807 (“The proponent of the evidence bears the burden	17
of affirmatively demonstrating its relevance.”), overruled on other grounds by State	18
v. Tollardo, 2012-NMSC-008, ¶ 37, 275 P.3d 110.	19

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B. 	The Internet Listings Were Hearsay	1
{24} 	Even if the sales listings were relevant, they constituted inadmissible hearsay.	2
“Hearsay” is “a statement that (1) the declarant does not make while testifying at the	3
current trial or hearing, and (2) a party offers in evidence to prove the truth of the	4
matter asserted in the statement.” Rule 11-801(C) NMRA. In order to constitute	5
probative evidence of the trailer’s market value, the trier of fact would have to rely	6
on the multiple out-of-court descriptions of the trailers and assume: the accuracy of	7
the descriptions, the validity of the assigned sales listing, and that a buyer would	8
purchase the trailer for the asking amount. Because Defendant sought to use the out-	9
of-court statements contained on the sales listings for the truth of the matter asserted,	10
we conclude the exhibits were properly excluded as hearsay.	11
{25} 	To the extent Defendant additionally argues that the listings were proffered to	12
show: (1) publicly available sources of information concerning the market for	13
concession trailers; and (2) that market prices are “a little bit different” than the price	14
the trailer was ultimately sold for, both contentions still require the trier of fact to	15
accept as true the out-of-court statements made in the listings. Therefore, we	16
conclude this argument is without merit.	17
{26} 	Because we conclude the exhibits were excludable for lack of relevance and	18
as hearsay, it is unnecessary to address whether Defendant laid a proper foundation	19
for the admission of the listings. To the extent Defendant argues the district court	20

15
abused its discretion because it could have taken judicial notice of the exhibits, our	1
review of the record reveals that Defendant did not ask the district court to take	2
judicial notice. See State v. Leyva, 2011-NMSC-009, ¶ 36, 149 N.M. 435, 250 P.3d	3
861 (explaining that the preservation rule requires the parties to state the applicable	4
legal principle and develop the facts in the district court to adequately alert the court	5
to the claim and provide it an opportunity to correct a problem and to afford the	6
opposing party a fair opportunity to respond to the claim). Nor does Defendant	7
expand on this argument or explain which provision of Rule 11-201 NMRA, permits	8
the district court to take judicial notice of evidence admitted in the civil case. This	9
Court will not develop arguments for parties. We therefore decline to consider	10
Defendant’s claim. State v. Garcia, 2019-NMCA-056, ¶ 51, 450 P.3d 418 (citing	11
Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53).	12
III. 	Defendant’s Bench Trial Was Free of Cumulative Error	13
{27} 	Defendant contends that cumulative error deprived him of a fair trial and	14
therefore he is entitled to a new trial. Having identified no error at trial, we recognize	15
no cumulative error. See State v. Saiz, 2008–NMSC–048, ¶ 66, 144 N.M. 663, 191	16
P.3d 521 (stating that “where there is no error to accumulate, there can be no	17
cumulative error.”), abrogated on other grounds by State v. Belanger, 2009-NMSC-	18
025, ¶ 36, 146 N.M. 357, 210 P.3d 783.	19

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CONCLUSION	1
{28} 	For the foregoing reasons, we affirm Defendant’s convictions.	2
{29} 	IT IS SO ORDERED.	3
______________________________	4
JACQUELINE R. MEDINA, Judge	5
WE CONCUR:	6
____________________________	7
LINDA M. VANZI, Judge	8
_____________________________	9
BRIANA H. ZAMORA, Judge	10